PA Superior Court: Fire Risk from Growing Marijuana at Home Does Not Support Conviction for Risking Catastrophe or Recklessly Endangering Another Person

Zak Goldstein - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. McCoy, holding that growing marijuana in one’s home and the corresponding risk of fire do not provide enough evidence to support a conviction for Risking a Catastrophe or Recklessly Endangering Another Person.

Commonwealth v. McCoy

On December 22, 2015, Philadelphia police officers were called to a residence in Philadelphia. At the location, they met the defendant, who was complaining about trespassers. These trespassers were relative’s of the defendant’s recently deceased girlfriend. The defendant claimed that they were on scene and taking his property. While speaking to individuals in the apartment, one of the officers was informed by the mother of the defendant’s late girlfriend that the defendant was growing marijuana in his apartment.

One of the officers then asked the defendant where the marijuana was, and the defendant showed the officer to a closet in the front bedroom. The closet door was closed, but the officer noticed bags of potting soil and fans in the bedroom. The defendant then opened the closet door, revealing the marijuana plants inside. The defendant stated that he just grew the marijuana as a hobby and did not sell it. The officer then placed Appellant under arrest and called for a search warrant to be prepared. The police subsequently recovered 31 marijuana plants and one heat lamp. Notably, the defendant’s home is about fifteen feet away from his neighbor’s home. There was also a first floor apartment in the house, but no one was living there at the time.  

Police arrested the defendant and charged him with Risking a Catastrophe, Possession of Marijuana, and Recklessly Endangering Another Person (“REAP”). The defendant filed a pre-trial motion to suppress his statements and the physical evidence. The trial court denied the motions and convicted the defendant following a bench trial.

At this trial, the Commonwealth called a fire marshal who was qualified as an expert in the field of fire prevention. He testified that the defendant had used ordinary household extension cords to plug in the lamps in the closet. He opined that this created a dangerous condition because the lamp could draw a greater voltage than that which the cord could handle. Additionally, the fire marshal stated that in his expert opinion, the defendant’s marijuana growing operation represented a risk of causing a fire and that it was “an extreme fire hazard.” However, the fire marshal admitted that he was not familiar with the particular type of sun lamp used by the defendant, and he did not see evidence of transformers or an irrigation system in the operation.

The defendant also testified at his trial. He testified that he used a fluorescent lamp which did not generate heat in his marijuana growing operation. He also stated that the metal foil used in his closet was to reflect light, not heat, to the marijuana plants. He further stated that he watered the plants with a spray bottle and that he and his late girlfriend would monitor them in the morning and evening. 

At the conclusion of the trial, the court found him guilty of Risking a Catastrophe, Possession of Marijuana, and REAP. He received a sentence three years’ reporting probation. He appealed, arguing that the Commonwealth presented insufficient to convict him of either Risking a Catastrophe or REAP.  

What is Risking a Catastrophe?

Risking a Catastrophe is a serious felony charge in Pennsylvania. 18 Pa.C.S.A. § 3302(b) provides:

“[a] person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives, or other dangerous means listed in subsection (a) of this section (i.e. radioactive or poison materials).”

The fact that a catastrophe did not occur is not a defense to this statute. A catastrophe is defined as widespread injury or damage. However, courts have previously held that a risk of fire involving a single residence is not sufficient to establish a “catastrophe” for purposes of the statute. However, courts have held that if one has a methamphetamine lab in his or her home it is sufficient to convict a defendant of Risking a Catastrophe.

What is REAP?

18 Pa.C.S.A. § 2705 provides:

“[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”

To be convicted of REAP, one must have a conscious disregard of a known risk of death or great bodily harm to another person. The apparent ability to inflict harm is not sufficient to convict someone of REAP. Unlike most crimes, this is not a specific intent crime. As such, it is easier for the Commonwealth to prove the mens reas for REAP which is, unsurprisingly, recklessness.

The Superior Court Reverses the Convictions for REAP and Risking a Catastrophe.

After reviewing the record, the Superior Court reversed the convictions for REAP and Risking a Catastrophe. The Superior Court opined that though the defendant’s actions created a fire hazard, the record did not support that it had the potential for widespread injury or damage. Specifically, because he lived alone and the closest neighboring home was not in real danger of being engulfed by a potential fire from his house, he had not taken actions which sufficiently risked a catastrophe to justify a conviction under the statute.

The Superior Court further held that his actions were not “reckless.” Although the fire marshal described the defendant’s actions as “inadequate” to prevent a fire hazard, the Superior Court found that the defendant had taken steps that showed he was not being reckless. Specifically, the defendant watered the plants and monitored them twice a day. Further, the metal foil used in his closet was to reflect light, not heat. As such, according to the Superior Court, the defendant was not “reckless” and therefore was not guilty of REAP. Consequently, his convictions were reversed and he will be re-sentenced on his unchallenged possession of marijuana conviction.       

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Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Possession with the Intent to Deliver, Robbery, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.