PA Superior Court: One Fire Means One Sentence for Arson, No Matter How Many Buildings Are Damaged

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Swift, 2026 PA Super 66 (Pa. Super. March 31, 2026), holding that the unit of prosecution for the crime of arson endangering property under 18 Pa.C.S.A. § 3301(c)(2) is each act of arson, and not each property endangered by that act. The court reached this conclusion by applying the Pennsylvania Supreme Court’s recent analysis in Commonwealth v. Smith, 346 A.3d 1251 (Pa. 2025), which addressed the same question in the context of the closely related arson endangering persons statute. As a result, the Superior Court vacated the defendant’s judgment of sentence and remanded for resentencing, finding that the trial court had improperly imposed two consecutive sentences for two counts of arson endangering property when the defendant had set only one fire. This decision is significant for anyone facing arson charges in Pennsylvania because it limits the number of sentences a court may impose following a single act of setting a fire, regardless of how many properties are damaged.

The Facts of Commonwealth v. Swift

In July 2019, the defendant set fire to the home of his ex-girlfriend in Allegheny County. The fire caused substantial damage to that residence and also spread to the two adjoining residences on either side of the targeted home. Following a jury trial, the jury convicted the defendant of arson endangering persons under 18 Pa.C.S.A. § 3301(a)(1)(i), arson of an inhabited building under 18 Pa.C.S.A. § 3301(a)(1)(ii), and two counts of arson endangering property under 18 Pa.C.S.A. § 3301(c)(2). The two counts of arson endangering property arose from the fire spreading to and damaging the two neighboring residences, not from the fire set to the ex-girlfriend’s home itself.

On June 28, 2023, the trial court sentenced the defendant to five to ten years’ imprisonment for arson endangering persons and two consecutive terms of fifteen to thirty months’ imprisonment for each of the two counts of arson endangering property. The defendant filed a timely appeal challenging, among other things, the imposition of separate sentences for the two arson endangering property convictions as an illegal sentence.

The Procedural History

The defendant’s sentencing challenge raised a question that was already working its way through the appellate courts. In his initial appeal, the defendant relied on the analysis set forth in the dissent in the Superior Court’s en banc decision in Commonwealth v. Smith, 298 A.3d 1140 (Pa. Super. 2023). At that time, the Pennsylvania Supreme Court had granted allowance of appeal in Smith but had not yet issued a decision. The Superior Court panel in the defendant’s case denied relief and affirmed the judgment of sentence.

The defendant then sought allowance of appeal with the Pennsylvania Supreme Court. While that petition was pending, the Supreme Court issued its decision in Smith, reversing the Superior Court and holding that the unit of prosecution for arson endangering persons under Section 3301(a)(1)(i) is each act of arson, not each person endangered. On January 15, 2026, the Supreme Court granted partial relief to the defendant, vacated the Superior Court’s order affirming his judgment of sentence, and remanded the case for reconsideration in light of the new Smith decision. The Supreme Court’s remand order limited the issue to whether the trial court had imposed an illegal sentence by imposing separate, consecutive sentences for the two counts of arson endangering property.

The Superior Court’s Decision on Remand

On remand, the Superior Court applied the Supreme Court’s reasoning in Smith to the arson endangering property statute and reached the same conclusion: the unit of prosecution is each act of arson, not each property endangered.

The court’s analysis began with the text of the two statutes. The arson endangering persons statute, Section 3301(a)(1)(i), criminalizes intentionally starting a fire and thereby recklessly placing another person in danger of death or bodily injury. The arson endangering property statute, Section 3301(c)(2), uses identical language for the initial element, “intentionally start[ing] a fire or caus[ing] an explosion,” and then provides that the defendant must “recklessly place[] an inhabited building or occupied structure of another in danger of damage or destruction.” The Superior Court observed that the two statutes share the same structure: an intentional act of setting a fire, followed by a recklessness element involving harm to either persons or property.

The Supreme Court in Smith had determined that the arson endangering persons statute was ambiguous because the statutory language was capable of two reasonable interpretations: that the unit of prosecution was each act of arson, or that it was each endangered person. The Superior Court in Swift found that the arson endangering property statute, given its identical structure, was similarly ambiguous. The language could reasonably be read to mean that the unit of prosecution was either one act of arson or one damaged building.

Having found ambiguity, the court turned to the factors set forth in the Statutory Construction Act, 1 Pa.C.S.A. § 1921(c), which the Supreme Court had relied on in Smith. These factors include the occasion and necessity for the statute, the circumstances of its enactment, the mischief to be remedied, the object to be attained, and the consequences of a particular interpretation. The Superior Court incorporated the relevant discussion from Smith, in which the Supreme Court had reviewed the legislative history of Pennsylvania’s arson statutes. That history showed that the original penal statutes, written when the state was primarily rural, imposed severe penalties for burning structures important to an agricultural economy while providing inadequate penalties for fires that endangered life in urban settings. The modern Crimes Code replaced that scheme with a system that distinguishes only between arson endangering persons (a first-degree felony) and arson endangering property (a second-degree felony). Critically, the Supreme Court found nothing in the legislative history to suggest that the legislature intended to allow separate convictions and sentences for each individual endangered by a single act of arson.

Finally, and most critically, the Superior Court applied the rule of lenity. Because Section 3301 is a penal statute, any ambiguity must be resolved in the defendant’s favor. The Supreme Court in Smith had emphasized that the rule of lenity is not merely a convenient tool of statutory construction but is rooted in fundamental principles of due process, which require that no individual be forced to speculate about whether his conduct is prohibited.

Applying these principles, the Superior Court held that the unit of prosecution under the arson endangering property statute is each act of arson, not each damaged building or occupied structure. Because the record established that the defendant committed only one act of setting a fire, to his ex-girlfriend’s home, the trial court had erred in imposing separate sentences for the two counts of arson endangering property. The court vacated the defendant’s judgment of sentence and remanded to the trial court for resentencing.

The Takeaway

Commonwealth v. Swift is a significant sentencing decision for defendants facing arson charges in Pennsylvania. By extending the Supreme Court’s holding in Smith from the arson endangering persons statute to the arson endangering property statute, the Superior Court has now established that neither subsection of Section 3301 permits the imposition of multiple sentences based on the number of people endangered or properties damaged by a single fire. Instead, the unit of prosecution for both offenses is the act of setting the fire itself. A defendant who sets one fire can receive only one sentence for arson endangering persons and one sentence for arson endangering property, regardless of how many people were placed at risk or how many buildings were damaged.

This is an important development because arson cases frequently involve damage to multiple structures as fires spread. A defendant who sets fire to one building may cause damage to several neighboring properties. Under the prior approach, prosecutors could charge a separate count of arson endangering property for each building that sustained damage, and the trial court could impose a separate sentence for each count. Swift puts an end to that practice. While the defendant may still be convicted of multiple counts, the trial court may only impose a single sentence for the arson endangering property offense when the charges all arise from one act of setting a fire.

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