663 A.2d 746 (Pa.Super. 1995), Commonwealth v. Lopez

Citation:663 A.2d 746, 444 Pa.Super. 206
Opinion Judge:The opinion of the court was delivered by: Kelly
Party Name:COMMONWEALTH of Pennsylvania v. Ana LOPEZ, Appellant.
Attorney:Linda F. Gerencser, Assistant Public Defender, Lancaster, for appellant.
Case Date:August 15, 1995
Court:Superior Court of Pennsylvania
 
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Page 746

663 A.2d 746 (Pa.Super. 1995)

444 Pa.Super. 206

COMMONWEALTH of Pennsylvania

v.

Ana LOPEZ, Appellant.

Superior Court of Pennsylvania.

August 15, 1995

Submitted July 17, 1995.

Page 747

[444 Pa.Super. 208] Linda F. Gerencser, Assistant Public Defender, Lancaster, for appellant.

Joseph C. Madenspacher, District Attorney, Lancaster, for the Commonwealth, appellee.

Before KELLY, JOHNSON and CERCONE, JJ.

KELLY, Judge:

In this appeal we are called upon to determine whether the trial court illegally sentenced appellant by imposing two consecutive terms of four to ten years imprisonment after she pled nolo contendere to two counts of arson endangering persons pursuant to 18 Pa.C.S.A. § 3301(a)(1)(i) and 18 Pa.C.S.A. § 3301(a)(1)(ii) for setting fire to a single residential property. We reverse and remand for resentencing.

The relevant facts and procedural history of this appeal are as follows. On May 21, 1994, appellant set fire to the residence of Jacob and Margaret Shultz in Lancaster, Pennsylvania. Although no one was injured, the fire caused extensive damage to the Shultz's home. On January 10, 1995, appellant pled nolo contendere to two counts of arson endangering persons under 18 Pa.C.S.A. § 3301(a)(1)(i) and 18 Pa.C.S.A. § 3301(a)(1)(ii). On May 1, 1995, at the sentencing hearing, appellant's counsel moved for a merger of the sentences. The trial court denied the motion and sentenced appellant to an aggregate term of eight to twenty years incarceration. Specifically, appellant was sentenced consecutively to four to ten years incarceration pursuant to 18 Pa.C.S.A. § 3301(a)(1)(i) and four to ten years incarceration pursuant to 18 Pa.C.S.A. [444 Pa.Super. 209] § 3301(a)(1)(ii). Appellant appeals the legality and discretionary aspects of this sentence.

On appeal, appellant raises the following issues:

I. DID THE COURT ERR IN IMPOSING TWO SEPARATE SENTENCES FOR SAME-EPISODE CONDUCT CONSTITUTING A VIOLATION OF "ARSON ENDANGERING PERSONS" UNDER 18 PA.C.S. 3301(a)(1)(i) & (ii)?

II. WAS THE COURT'S SENTENCE [OF] EIGHT YEARS TO TWENTY YEARS SO MANIFESTLY EXCESSIVE AS TO CONSTITUTE AN ABUSE OF DISCRETION?

III. DID THE COURT FAIL TO STATE ON THE RECORD ANY FACTOR WHICH COULD JUSTIFY A SENTENCE IN THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES?

(Appellant's Brief at 3).

Appellant first argues that the trial court erred in its interpretation of 18 Pa.C.S.A. § 3301(a), which provides as follows:

3301. Arson and related offenses

(a) Arson endangering persons.--

(1) A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on

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his own property or on that of another, and if:

(i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire; or

(ii) he commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another.

(2) A person who commits arson endangering persons is guilty of murder of the second degree if the fire or [444 Pa.Super. 210] explosion causes the death of any person, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire, and is guilty of murder of the first degree if the fire or explosion causes the death of any person and was set with the purpose of causing the death of another person.

18 Pa.C.S.A. § 3301(a). Appellant argues that she cannot be...

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