Com. v. Lopez

• Citation: 444 Pa.Super. 206,663 A.2d 746
• Parties: COMMONWEALTH of Pennsylvania v. Ana LOPEZ, Appellant.
• Decision Date: 15 August 1995
• Court: Superior Court of Pennsylvania

Page 746

663 A.2d 746

444 Pa.Super. 206

COMMONWEALTH of Pennsylvania v. Ana LOPEZ, Appellant.

Superior Court of Pennsylvania.

Submitted July 17, 1995.

Filed Aug. 15, 1995.

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. § 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 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 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 sentenced to consecutive terms for violations of both 18 Pa.C.S.A. § 3301(a)(1)(i) and 18 Pa.C.S.A. § 3301(a)(1)(ii) because they are not themselves separate offenses, but rather are alternative means for satisfying 18 Pa.C.S.A. § 3301(a)(1). Therefore, appellant claims, the trial court imposed an illegal sentence. We agree.

Instantly, we note that appellant's failure to raise this issue before the sentencing court does not constitute a waiver of this issue on appeal. The legality of a sentence cannot be waived. Commonwealth v. Anderson, 434 Pa.Super. 309, 313, 643 A.2d 109, 111 (1994). Thus, we will address the merits of this claim, even though appellant raises it for the first time on appeal.

When interpreting a statute, the court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. § 1921(a); Commonwealth v. Brown, 423 Pa.Super. 264, 266, 620 A.2d 1213, 1214 (1993); Commonwealth v. Edwards, 384 Pa.Super. 454, 460, 559 A.2d 63, 66 (1989), appeal denied, 523 Pa. 640, 565 A.2d 1165 (1989). In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. 1 Pa.C.S.A. § 1903(a). See Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994) (en banc).

When construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections because there is a presumption that in drafting the statute, the General Assembly intended the entire statute to be effective. 1 Pa.C.S.A. § 1922. See Commonwealth v. Mayhue, 536 Pa. 271, 307, 639 A.2d 421, 439 (1994); Commonwealth v. Berryman, supra at 268, 649 A.2d at 965. Statute headings may be considered in construing a statute. 1 Pa.C.S.A. § 1924. However, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S.A. § 1921(b); Commonwealth v. Reeb, 406 Pa.Super. 28, 34, 593 A.2d 853, 856 (1991), appeal denied, 530 Pa. 665, 610 A.2d 45 (1992).

In the present case, the Commonwealth argues that the trial court did not err in sentencing appellant to multiple sentences for her conviction of 18 Pa.C.S.A. § 3301(a)(1)(i) and 18 Pa.C.S.A. § 3301(a)(1)(ii), because the two provisions protect distinct and separate state interests. According to the Commonwealth, 18 Pa.C.S.A. § 3301(a)(1)(i) protects persons from fire whereas 18 Pa.C.S.A. § 3301(a)(1)(ii) protects property from fire. The Commonwealth cites Commonwealth v. Colpo, 367 Pa.Super. 223, 532 A.2d 870 (1987), for the proposition that statutory provisions that protect distinct Commonwealth interests do not merge for sentencing purposes. Id.

We note, however, that in Commonwealth v. Colpo, supra, the defendant was convicted of 18 Pa.C.S.A. § 3301(a), Arson Endangering Persons, and 18 Pa.C.S.A. § 3301(c), Arson Endangering Property. In order to effectuate the intent of the General Assembly, this Court in Commonwealth v. Colpo, supra, correctly held that 18 Pa.C.S.A. §§ 3301(a) and 3301(c) did not merge for sentencing purposes; we also concluded that these sections of the arson statute protect different state interests. In this case though, appellant was not convicted of violating both 18 Pa.C.S.A. § 3301(a) and (c), but rather was convicted of multiple counts of 18 Pa.C.S.A. § 3301(a). As indicated infra, we conclude that 18 Pa.C.S.A. § 3301(a) was only intended by the legislature to protect persons against fire, and not to protect property from fire. Accordingly, we believe that appellee's reliance on Commonwealth v. Colpo, supra, is misplaced.

The Commonwealth's reading of 18 Pa.C.S.A. § 3301(a) ignores the plain meaning of the statute. That section clearly states that a person is guilty of arson endangering persons 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 his property or on that of another, and if: (i) he thereby 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 lighting the fire; or (ii) he commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another." 18 Pa.C.S.A. § 3301(a) (emphasis added).

In Commonwealth ex rel. Specter v. Vignola, 446 Pa. 1, 5, 285 A.2d 869, 871 (1971), our Supreme Court held that the word "or," occurring in a statute, must be given its ordinary meaning unless such a construction would give a result which is absurd, impossible of execution, highly unreasonable, or tending to nullify the legislative intent. Id. "Thus, if the words of a statute indicate that the statute applies if A or B is true or C is true, and it is proven only that B is true, then the statute will apply." Commonwealth v. Belcher, 233 Pa.Super. 212, 217, 335 A.2d 505, 507 (1975) (citing Garratt v. Philadelphia, 387 Pa. 442, 127 A.2d 738 (1956) (emphasis in original).

Instantly, employing our Supreme Court's example, it is our conclusion that the word "or," used in its ordinary sense, indicates an alternative between two or more unlike actions. Applying that definition to 18 Pa.C.S.A. § 3301(a), we read the statute to mean that any person who either "recklessly places another person in danger of death or bodily injury" or "commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another" may be prosecuted for and convicted of committing arson endangering persons. However, it simply does not follow from this reading that a person who commits both of the above acts may be sentenced twice for arson endangering persons when only one criminal offense, i.e., starting one fire, has been committed. Not only does such a reading ignore the plain meaning of the word "or," but if applied could raise grave constitutional issues. See Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983) (intent of double jeopardy clause is to prevent courts from imposing more than one punishment under particular legislative enactment); Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981) (where, practically speaking, there was only one offense against Commonwealth, defendant may only be punished for one...