Philadelphia Criminal Defense Blog

Zak Goldstein 4/25/26 Zak Goldstein 4/25/26

PA Superior Court: Police Do Not Need a Warrant to Get Your Internet Subscriber Info

Criminal Defense Lawyer Zak T. Goldstein, Esquire

On April 22, 2026, the Pennsylvania Superior Court decided Commonwealth v. Zealor, 2026 PA Super 81, holding that police and prosecutors do not need a search warrant to obtain subscriber information, payment information, and internet connection records from an internet service provider. Instead, prosecutors can get this information through an “administrative subpoena” — a request signed by a Deputy Attorney General rather than a judge — under 18 Pa.C.S.A. § 5743.1.

The Facts of Zealor

Pennsylvania State Police were watching a peer-to-peer file-sharing network called BitTorrent for people sharing child pornography. They received a tip about a particular IP address (essentially the “phone number” of an internet connection) and downloaded files from it that turned out to include child sexual abuse material.

A Deputy Attorney General then sent an administrative subpoena to Comcast under 18 Pa.C.S.A. § 5743.1, a Pennsylvania statute that lets prosecutors obtain certain subscriber information from internet providers. Comcast told them the IP address belonged to a company called Digital Media, LLC, the company that provided the internet service for an apartment complex in Norristown. A second administrative subpoena to Digital Media identified the specific tenant whose connection was being used to share the files. Police then obtained a search warrant for that tenant’s apartment, found tens of thousands of images and videos, and the defendant was ultimately convicted on fifty counts of possessing child sexual abuse material.

Before trial, the defendant moved to suppress all of the evidence, arguing that police needed an actual search warrant and not just a prosecutor-signed subpoena to get the information from his internet provider. The Superior Court disagreed and affirmed his conviction.

Why the Court Said No Warrant Was Needed

The court relied mainly on its earlier decision in Commonwealth v. Kurtz, 294 A.3d 509 (Pa. Super. 2023), aff’d, 348 A.3d 133 (Pa. 2025), and on federal cases like United States v. Christie, 624 F.3d 558 (3d Cir. 2010). The court reasoned that under the “third-party doctrine,” when you voluntarily hand information over to a third party like your bank or your internet provider you generally lose your right to keep it private from the government, and so the defendant had no right of privacy here.

Applying that doctrine, the court held there is no reasonable expectation of privacy in:

• Your name, address, and basic payment information with your internet provider;

• Your IP address; or

• The connection logs showing which other IP addresses you connected to.

The court also distinguished Carpenter v. United States, 585 U.S. 296 (2018), the U.S. Supreme Court case that required warrants for cell phone location data, by reasoning that location data is generated automatically just by your phone being on, while peer-to-peer file sharing involves actively choosing to connect to other users.

Finally, the court rejected the argument that prosecutors could not subpoena out-of-state companies like Comcast, holding that the statute itself allows service on foreign corporations.

The Issue May Be Subject to Further Review

Even though Zealor is a loss, this is still a live issue, and we expect it to keep being litigated.

First, the Pennsylvania Supreme Court’s decision in Kurtz, which the Zealor court relied on so heavily, was a fractured plurality. Three justices agreed there was no expectation of privacy, three concurred on different grounds, and Justice Donohue dissented. A plurality decision does not bind future courts the way a majority opinion does, so the foundation for Zealor is shakier than it looks. Additionally, Kurtz dealt with the IP address itself, whereas this case deals with the information behind an IP address, making Kurtz distinguishable.

Second, and more importantly, the defendant in Zealor did not really argue that the Pennsylvania Constitution provides more privacy protections than the federal Fourth Amendment. The Pennsylvania Supreme Court has repeatedly held that our state constitution provides broader privacy rights than federal law in important areas including bank records and the rejection of the federal “good faith exception” to the exclusionary rule. See Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). The defendant in Zealor did not develop that kind of argument, and the court therefore analyzed the state and federal questions together as if they were the same. They are not.

That leaves the door open for additional challenges to these “subpoenas,” which are really just demand letters. A future defendant who actually makes a strong Pennsylvania Constitution argument and asks the Pennsylvania Supreme Court to require a warrant for this kind of internet subscriber information as a matter of state law would be in a much better position. The Pennsylvania Supreme Court could also grant review in this case or in another case which preserves the stronger state constitutional issue.

The Bottom Line

Zealor is a setback for these challenges, but it may not be the final word. If you have been charged in a case where police started by sending an administrative subpoena to your internet provider, your attorney should likely still be challenging these subpoenas, and most importantly, the attorney should make both Fourth Amendment and Pennsylvania Constitutional arguments. The law in this area is unsettled and changing, and the strongest version of the privacy argument has not yet been decided by the Pennsylvania Supreme Court.

Facing criminal charges? We can help.

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

Zak Goldstein 4/22/26 Zak Goldstein 4/22/26

Attorney Goldstein Wins New Trial in Philadelphia Arson Case — Client Released After More Than a Decade in Prison

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire, of Goldstein Mehta LLC, recently won a new trial and a new sentencing hearing for a client, R.H., who had been serving a 15-to-30-year state sentence for arson, conspiracy to commit arson, and recklessly endangering another person. After an evidentiary hearing on Attorney Goldstein’s amended Post-Conviction Relief Act (“PCRA”) petition, the Philadelphia Court of Common Pleas granted relief on three separate grounds: the failure to call a known defense witness who had previously testified that someone else committed the crime, the failure to impeach the Commonwealth’s only two civilian witnesses with their crimen falsi convictions, and the ineffective assistance of counsel at sentencing. The Court granted both a new trial and, in the alternative, a new sentencing hearing.

After the ruling, the Commonwealth offered R.H. a deal for time served. He accepted, and he is now home with his family after more than a decade in state prison.

The Evidence at Trial

The case involved a January 13, 2007, explosion and fire at a rowhome in North Philadelphia. The fire marshal determined that the fire was intentionally set, and the decedent’s body was found on the first floor of the property. The medical examiner concluded that the decedent had been stabbed and was already dead when the fire occurred.

The Commonwealth’s evidence tying R.H. to the arson was entirely circumstantial. No one identified him as having set the fire. No forensic or physical evidence connected him to the property. He did not make any incriminating statements. The case rested on four pieces of evidence: (1) a prior out-of-court statement from a neighbor that he had seen the co-defendant running from the scene with a man the neighbor identified only as his girlfriend’s boyfriend — presumably R.H.; (2) testimony from a second Commonwealth witness, R.H’s girlfriend, who lived across the street that R.H. had been in her home earlier that morning and that she later saw burns on his hand and face; (3) medical records showing that R.H. was treated at a local hospital for second-degree burns to his hand the following day; and (4) testimony from a then-Philadelphia police officer that, several months later, he had seen R.H. and the co-defendant smoke a marijuana cigar together in a public park.

R.H. was tried three times. The first trial ended in a mistrial due to a confrontation clause violation. At the second trial, the jury acquitted him of first- and second-degree murder but hung on the remaining charges. At the third trial, the jury convicted him of arson, conspiracy to commit arson, and recklessly endangering another person. The trial court then imposed an aggregate sentence of 15 to 30 years’ incarceration followed by 10 years of probation. The sentence was well above the applicable sentencing guideline range.

The PCRA Petition

After his direct appeal was denied and a prior PCRA petition was litigated solely on an issue involving the police officer’s later perjury arrest, R.H. retained Attorney Goldstein. Attorney Goldstein ordered the complete trial transcripts, reviewed the homicide file, and investigated the case. He then filed an objection to the Rule 907 notice of intent to dismiss and a supplemental PCRA petition raising several new ineffective assistance of counsel claims that had never been litigated.

Following an evidentiary hearing and post-hearing briefing, the PCRA Court granted relief.

Failure to Call a Witness Who Had Previously Testified for the Defense

The first ground on which the Court granted relief was trial counsel’s failure to call a defense eyewitness at the third trial. This eyewitness had given a statement to police and testified under oath at the second trial that the man she saw running from the burning property with the co-defendant was not R.H. Instead, it was the co-defendant’s brother. After she testified at the second trial, the jury acquitted R.H. of first- and second-degree murder and hung on the remaining counts.

At the third trial, however, trial counsel did not call this witness. The jury, which never heard her exculpatory testimony, convicted. Under Commonwealth v. Reid, 99 A.3d 427 (Pa. 2014), a PCRA petitioner can prevail on a failure-to-call-a-witness claim by showing that the witness existed, was available, was known to counsel, was willing to cooperate, and that the absence of the testimony prejudiced the defense. All of those elements were satisfied here. Trial counsel had tried the prior trials, the witness had given a statement and testified under oath, and her testimony directly pointed to someone else as the person seen running from the fire. She was also still willing to testify and appeared for an evidentiary hearing.

Failure to Impeach the Commonwealth’s Civilian Witnesses with Crimen Falsi Convictions

The second ground was trial counsel’s failure to cross-examine the Commonwealth’s civilian witness — the girlfriend — with her crimen falsi convictions, pending charges, and dismissed cases. Under Pa.R.E. 609(a), evidence that a witness has been convicted of a crime involving dishonesty or false statement “must be admitted” for impeachment purposes. And under Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986), and Commonwealth v. Nolen, 634 A.2d 192 (Pa. 1993), a witness’s pending or recently dismissed charges are generally admissible to show potential bias in favor of the prosecution.

By the time of trial, the girlfriend who lived across the street had a 2011 conviction for tampering with evidence, a 2010 conviction for multiple counts of forgery and theft by deception, and a retail theft arrest from 2013 that had been dismissed while R.H.’s case was pending. None of this was introduced at trial.

As Attorney Goldstein argued, this was not a close case on the impeachment issue. The Pennsylvania Supreme Court has granted new trials in circumstantial cases where trial counsel failed to impeach the only witnesses who directly linked the defendant to the crime with available crimen falsi. See Commonwealth v. Baxter, 640 A.2d 1271 (Pa. 1994). The civilian witness was the one of the most important witnesses and ne of the key people who put R.H. anywhere near the scene of the fire. She had serious convictions for dishonesty, and the jury never heard about them.

Sentencing Error

The third ground was trial counsel’s failure to object to the sentencing court’s use of an impermissible sentencing factor and failure to file a post-sentence motion challenging the sentencing court’s undisclosed departure from the guidelines.

With a prior record score of 1 and offense gravity scores of 10 for arson and 9 for conspiracy, the standard range guideline sentences would have led to a minimum aggregate of approximately 7.5 years’ incarceration. Even in the aggravated range, the guidelines would have called for roughly 9.5 years as the minimum. The sentencing court imposed 15 to 30 years.

At sentencing, the record reflected that the court repeatedly focused on the number of children R.H. had. When R.H.’s mitigation witness , the director of a prison rehabilitative program R.H. had completed, attempted to describe the program, the court cut him off to ask how many children R.H. had, to question how R.H. could be described as a caring father when he had children by multiple women, and to share its own personal views about absent fathers. Trial counsel did not object to the court’s reliance on the number of R.H.’s children as an aggravating factor, and he did not file a post-sentence motion challenging the departure from the guidelines.

The governing case law is clear that a sentence is not valid “if the record discloses that the sentencing court may have relied in whole or in part upon an impermissible consideration.” Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010). The number of children a defendant has and a sentencing judge’s personal views about that is not a proper sentencing factor. And under Commonwealth v. Beatty, 227 A.3d 1277 (Pa. Super. 2020), a sentencing court that departs from the guidelines without acknowledging the departure or placing contemporaneous reasons for the deviation on the record commits reversible error. The record here reflected that the sentencing court never acknowledged the departure at all.

Result

After the PCRA hearing and post-hearing briefing, the Court granted R.H. a new trial based on the ineffective assistance of counsel at the guilt phase and, in the alternative, granted a new sentencing hearing. Rather than relitigate the case, the Commonwealth offered R.H. a negotiated resolution for a sentence of time served. R.H. accepted and was swiftly released.

Facing a criminal appeal or PCRA petition in Pennsylvania?

Zak Goldstein 4/11/26 Zak Goldstein 4/11/26

Attorney Goldstein Wins IDSI Appeal: PA Superior Court Dismisses Conviction on Due Process Grounds

Case Result: Conviction Reversed by the Superior Court of Pennsylvania

Attorney Zak Goldstein recently won an important appeal before the Superior Court of Pennsylvania, obtaining a full reversal of his client D.M.’s convictions for involuntary deviate sexual intercourse (IDSI) and corruption of minors. In Commonwealth v. D.M., the Superior Court held that the Commonwealth violated D.M.’s due process rights by failing to establish the date of the alleged offense with sufficient particularity under Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975). The court also found that the trial court abused its discretion by consolidating D.M.’s case with his co-defendants’ cases for trial, though it did not need to reach that issue given the Devlin reversal.

The Facts of the Case

D.M. was one of three brothers tried together in Lackawanna County on charges stemming from allegations made by a single complainant, B.P. The complainant alleged that D.M. had assaulted her on a single occasion when she was sixteen years old. She did not report the allegations until October 2019, which was nearly two decades after the events supposedly occurred.

The Commonwealth originally charged D.M. with offenses occurring over a five-year window between January 1, 2003 and December 31, 2007. After D.M. filed pretrial motions challenging the vague timeframe, the Commonwealth filed amended informations narrowing the period first to one year (August 25, 2005 to August 24, 2006), and ultimately proceeding to trial on two charges, IDSI and corruption of minors, within that same one-year window.

Trial counsel argued from the pretrial stage that even a one-year window was far too broad to satisfy due process. D.M.’s pretrial motions objected that the vague timeframe made it impossible to present an alibi defense or call witnesses in support of one. The trial court denied those motions, finding D.M.’s reliance on Devlin to be “misplaced.” D.M. also moved to sever his trial from his co-defendants’ cases. The trial court denied that motion as well.

Following a three-day trial, a jury convicted D.M. of IDSI and corruption of minors. The court sentenced him to 5-10 years’ imprisonment.

The Due Process Claim: Failure to Fix the Date of the Offense

On appeal, the Superior Court found D.M.’s Devlin argument meritorious and dispositive. In Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), the Pennsylvania Supreme Court reversed a conviction where the only proof at trial was that the crime occurred sometime within a fourteen-month period, holding that this failed to meet the “sufficient particularity” standard and violated fundamental fairness.

The Superior Court then carefully distinguished D.M.’s case from a series of post-Devlin decisions in which courts had afforded the Commonwealth greater latitude, including Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. 1988), Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa. Super. 2007), Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. 1980), Commonwealth v. Renninger, 269 A.3d 548 (Pa. Super. 2022), and Commonwealth v. Benner, 147 A.3d 915 (Pa. Super. 2016). In each of those cases, courts had found the broader timeframe acceptable because the victims were very young children who could not be expected to recall specific dates, the allegations involved a continuing course of conduct with multiple assaults, or the Commonwealth presented additional evidence from other witnesses that helped narrow the timeframe.

D.M.’s case was critically different. B.P. was sixteen at the time of the alleged offense — well past childhood — and therefore had the capacity to recall temporal details. The allegation involved only a single, isolated incident, not an ongoing course of abuse. And the Commonwealth made no conscientious effort to help B.P. narrow the timeline at trial. B.P. provided detailed testimony about the location, what was said, the features of D.M.’s car, and what she did afterward, yet she could not tie the incident to any identifiable temporal marker — a season, a holiday, a school year, or her birthday — that would have narrowed the one-year window. She testified only that it happened on a “normal” day. Even the Commonwealth’s own affidavit of probable cause had originally placed the incident during “the fall months” after B.P.’s sixteenth birthday, but B.P. did not testify to that at trial.

The court also rejected the Commonwealth’s argument that testimony from another witness narrowed the timeframe. The witness had testified that D.M. made a statement to him about B.P. in late 2005 or early 2006, but the court found this still left a period spanning too many months to fix the date with the constitutionally required level of certainty. The court further noted that the witness’s statement actually related to vaginal intercourse, which was a different act entirely from the IDSI charged in the criminal information.

The over-thirteen-year delay in reporting further compounded the due process problem. The court noted that this delay prejudiced D.M.’s ability to find witnesses or other evidence that could corroborate a defense, making the case arguably harder to defend than in Devlin itself, where there was essentially no delay between the alleged offense and the report to police. The Court therefore reversed the trial court’s decision not to dismiss the case and dismissed the conviction.

The Improper Joinder Issue

Although the Devlin ruling was dispositive of D.M.’s appeal, the opinion also addressed the joinder issue in the context of a co-defendant’s appeal — and the court’s analysis makes clear that consolidating D.M.’s trial with his brothers’ cases was an abuse of discretion. D.M. had raised this same issue on appeal, and the court noted in a footnote that it did not need to reach D.M.’s severance argument given its decision to reverse on Devlin grounds.

Under Pa.R.Crim.P. 582, defendants charged in separate informations may be tried together only if they are alleged to have participated in the same act, transaction, or series of acts or transactions constituting an offense. Under Pa.R.Crim.P. 583, severance is required if a party may be prejudiced by the joinder.

The court found that while it was permissible to try D.M.’s two brothers together because the allegations against them arose from a single chain of events on the same day, D.M.’s case was entirely different. The allegations against D.M. involved a separate incident that took place in a different location, involved different conduct, and occurred approximately two years after the allegations against his brothers. There was no conspiracy or corrupt organization charge tying them together, and D.M. had nothing to do with the conduct alleged against his brothers.

The court found that joining D.M.’s trial with his brothers’ trial allowed the Commonwealth to introduce evidence against D.M. that tainted his brothers’ cases and vice versa. The above witness’s testimony, for example, was relevant only to D.M. but was heard by the jury deciding the brothers’ cases as well. The court noted that the trial court itself appeared to concede that the witness testimony was only relevant against D.M. and not his co-defendants.

Perhaps most critically, the court found that the prosecutor’s closing argument compounded the prejudice by repeatedly lumping all three brothers together. The prosecutor referred to the brothers as “three aggressors,” likened them to institutions known for protecting sexual abusers, and argued that B.P. had to come forward because “they” still had power over people who came to the store. These remarks encouraged the jury to find the defendants guilty by association rather than based on the evidence specific to each individual case. The court cited Commonwealth v. Hamilton, 303 A.3d 823 (Pa. Super. 2023), for the principle that even where there is some overlapping evidence between co-defendants, severance is required when the evidence of one defendant’s crimes is irrelevant and prejudicial to another defendant’s case.

Why This Case Matters

This published decision is a significant victory for due process rights in Pennsylvania. It reaffirms that even in cases involving serious allegations and delayed reporting, the Commonwealth cannot charge a defendant with committing a crime at some unknown point during a year-long span ~15 years ago and expect a conviction to stand. The government bears the burden of narrowing the timeframe with reasonable certainty so that the defendant has a fair opportunity to prepare a defense. When the complainant was old enough to recall temporal details, the alleged conduct was a single isolated incident, and the Commonwealth made no effort to narrow the timeframe through its own investigation, due process requires reversal.

The opinion’s joinder analysis is equally important for criminal defense practitioners. It establishes that simply sharing a last name and a complainant is not enough to justify consolidation. When the alleged offenses are separated in time by years, involve different conduct, and occur in different locations, the trial court abuses its discretion by forcing defendants to trial together. This is particularly true where the prosecutor exploits the joinder to encourage guilt by association.

The opinion also provides a comprehensive survey and analysis of the entire Devlin line of cases, making it a valuable roadmap for defense attorneys evaluating due process challenges in cases involving vague or broad charging timeframes.

Facing Criminal Charges or a Wrongful Conviction?

If you or a loved one has been wrongfully convicted or believes that the prosecution withheld evidence in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 4/1/26 Zak Goldstein 4/1/26

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

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.

Facing Criminal Charges or a Wrongful Conviction?

If you are facing criminal charges or believe that the prosecution engaged in misconduct in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.