Commonwealth v. Chester, M., Aplt. , 627 Pa. 429 ( 2014 )

[J-32-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 61 MAP 2013
:
Appellee : Appeal from the Order of the Superior
: Court entered on July 9, 2012 at No. 1872
: MDA 2011 affirming the judgment of
v. : sentence of the Court of Common Pleas of
: Lancaster County, Criminal Division, dated
: October 14, 2011 at No. CP-36-CR-
MATTHEW ALLEN CHESTER, : 0002180-2010
:
Appellant : ARGUED: May 6, 2014
OPINION
MADAME JUSTICE TODD DECIDED: September 24, 2014
In this appeal by allowance, we consider whether first-degree burglary
constitutes “violent behavior” pursuant to the Recidivism Risk Reduction Incentive Act
(“RRRI Act”), 61 Pa.C.S.A. §§ 4501 et seq. For the reasons set forth below, we hold
that first-degree burglary, which we have consistently viewed as a violent crime in this
Commonwealth, is “violent behavior” as contemplated by the RRRI Act. Thus, we affirm
the decision of the Superior Court upholding Appellant’s judgment of sentence.
By way of background, the RRRI Act “seeks to create a program that ensures
appropriate punishment for persons who commit crimes, encourages inmate
participation in evidence-based programs that reduce the risks of future crime and
ensures the openness and accountability of the criminal justice process while ensuring
fairness to crime victims.” 61 Pa.C.S.A. § 4502. As part of achieving that aim, the
RRRI Act requires the trial court to determine at the time of sentencing whether the
defendant is an “eligible offender.” 61 Pa.C.S.A. § 4505(a). If the court finds the
defendant to be an eligible offender, or if the prosecuting attorney waives the eligibility
requirements under Section 4505(b), the trial court must calculate minimum and
maximum sentences, and then impose the RRRI minimum sentence, which “shall be
equal to three-fourths of the minimum sentence imposed when the minimum sentence
is three years or less,” or “shall be equal to five-sixths of the minimum sentence if the
minimum sentence is greater than three years.” Id. § 4505(c). Furthermore, if an
eligible offender “successfully completes the program plan, maintains a good conduct
record and continues to remain an eligible offender,” he or she may “be paroled on the
RRRI minimum sentence date unless the Board determines that parole would present
an unreasonable risk to public safety or that other specified conditions have not been
satisfied.” 37 Pa. Code § 96.1(b).
Importantly, in order to be eligible for an RRRI minimum sentence, the RRRI Act
provides that a defendant must satisfy each of the following requirements, the first of
which is presently at issue in the case at bar. Specifically, a defendant must establish
that he:
(1) Does not demonstrate a history of present or past
violent behavior.
(2) Has not been subject to a sentence the calculation of
which includes an enhancement for the use of a deadly
weapon as defined under law or the sentencing guidelines
promulgated by the Pennsylvania Commission on
Sentencing or the attorney for the Commonwealth has not
demonstrated that the defendant has been found guilty of or
was convicted of an offense involving a deadly weapon or
offense under 18 Pa.C.S. Ch. 61 (relating to firearms and
other dangerous articles) or the equivalent offense under the
laws of the United States or one of its territories or
possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation.
[J-32-2014] - 2
(3) Has not been found guilty of or previously convicted of or
adjudicated delinquent for or an attempt or conspiracy to
commit a personal injury crime as defined under section 103
of the act of November 24, 1998 (P. L. 882, No. 111), [18
P.S. § 11.103] known as the Crime Victims Act, except for
an offense under 18 Pa.C.S. § 2701 (relating to simple
assault) when the offense is a misdemeanor of the third
degree, or an equivalent offense under the laws of the
United States or one of its territories or possessions, another
state, the District of Columbia, the Commonwealth of Puerto
Rico or a foreign nation.
(4) Has not been found guilty or previously convicted or
adjudicated delinquent for violating any of the following
provisions or an equivalent offense under the laws of the
United States or one of its territories or possessions, another
state, the District of Columbia, the Commonwealth of Puerto
Rico or a foreign nation:
18 Pa.C.S. § 4302(a) (relating to incest).
18 Pa.C.S. § 5901 (relating to open lewdness).
18 Pa.C.S. Ch. 76 Subch. C (relating to
Internet child pornography).
Received a criminal sentence pursuant to 42
Pa.C.S. § 9712.1 (relating to sentences for
certain drug offenses committed with firearms).
Any offense for which registration is required
under 42 Pa.C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders).
(5) Is not awaiting trial or sentencing for additional criminal
charges, if a conviction or sentence on the additional
charges would cause the defendant to become ineligible
under this definition.
(6) Has not been found guilty or previously convicted of
violating section 13(a)(14), (30) or (37) of the act of April 14,
1972 (P.L. 233, No. 64), . . . known as The Controlled
Substance, Drug, Device and Cosmetic Act, where the
sentence was imposed pursuant to 18 Pa.C.S.
§ 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii)
(relating to drug trafficking sentencing and penalties).
[J-32-2014] - 3
61 Pa.C.S.A. § 4503 (emphasis added). Notably, the RRRI Act does not define what
constitutes a “history of present or past violent behavior.”
In the instant case, on March 10, 2011, Appellant entered an open guilty plea in
the Lancaster County Court of Common Pleas to three counts each of first-degree
burglary,1 criminal conspiracy to commit burglary, theft by unlawful taking, and receiving
1
At the time Appellant was charged, the burglary statute read, in relevant part, as
follows:
(a) Offense defined.--A person is guilty of burglary if he
enters a building or occupied structure, or separately
secured or occupied portion thereof, with intent to commit a
crime therein, unless the premises are at the time open to
the public or the actor is licensed or privileged to enter.
* * *
(c) Grading.--
(1) Except as provided in paragraph (2), burglary is a felony
of the first degree.
(2) If the building, structure or portion entered is not adapted
for overnight accommodation and if no individual is present
at the time of entry, burglary is a felony of the second
degree.
18 Pa.C.S.A. § 3502 (1990). This Section was amended in 2012, and now provides
that a defendant commits burglary if, with the intent to commit a crime therein, he:
(1) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense any person is present;
(2) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense no person is present;
(3) enters a building or occupied structure, or separately
secured or occupied portion thereof that is not adapted for
(continuedI)
[J-32-2014] - 4
stolen property, after his arrest for a series of burglaries across Lancaster, Chester, and
Delaware Counties. While sentencing was pending on those counts, Appellant pleaded
guilty and was sentenced in connection with the same burglary spree in the Chester
County Court of Common Pleas, where he received an RRRI-reduced sentence2 of 3 to
6 years incarceration. Thereafter, on June 3, 2011, following a pre-sentence
investigation, Appellant was sentenced in the Lancaster County matter to an aggregate
sentence of 6 to 15 years incarceration, to be served concurrently with his Chester
County sentence.3 Appellant subsequently filed a timely post-sentence motion to
modify his Lancaster County sentence on June 13, 2011, in which he asserted, inter
alia, that he was entitled to receive an RRRI Act minimum sentence because his first-
degree burglary conviction4 in Chester County did not constitute a “history of present or
(Icontinued)
overnight accommodations in which at the time of the
offense any person is present; or
(4) enters a building or occupied structure, or separately
secured or occupied portion thereof that is not adapted for
overnight accommodations in which at the time of the
offense no person is present.
18 Pa.C.S.A. § 3502(a) (2012). The Crimes Code now grades paragraphs (1) through
(3) as felonies of the first degree, and paragraph (4) as a felony of the second degree,
id. § 3502(c)(1)-(2); however, “[i]f the actor’s intent upon entering the building, structure
or portion under [paragraph (4)] is to commit theft of a controlled substance or designer
drug,” the burglary is graded as a felony of the first degree. Id. § 3502(c)(2)(ii).
2
It is not clear from the record whether the Chester County trial court herein found that
Appellant was eligible for RRRI relief or whether the Commonwealth waived Appellant’s
RRRI eligibility requirements pursuant to 61 Pa.C.S.A. § 4505.
3
Appellant was also later prosecuted and sentenced in Delaware County in connection
with the same string of burglaries.
4
As we discuss in more detail infra, Appellant represents that he has a single prior first-
degree burglary conviction in Chester County; however, the criminal docket sheet for
the Chester County incident reveals that he was convicted of three counts of first-
degree burglary. Commonwealth v. Chester, CP-15-CR-0001480-2011 (Docket Sheet).
[J-32-2014] - 5
past violent behavior” disqualifying him from RRRI sentence eligibility under Section
4503(1) of the RRRI Act.
The trial court denied Appellant’s motion to modify sentence, relying primarily on
the Superior Court’s decision in Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa. Super.
2010), wherein the Superior Court considered the issue of whether second-degree
burglary constituted “violent behavior” under Section 4503(1), and, ultimately,
determined that it did not. In reaching that conclusion, the Superior Court noted that,
unlike first-degree burglary, second-degree burglary, which involves illegal entry into an
unoccupied structure, does not involve the risk of violence or injury to another, and is
treated differently from first-degree burglary in other sentencing related statutes. See
42 Pa.C.S.A. § 9714(g) (listing first-degree burglary, and not second-degree burglary,
as a “crime of violence” subjecting recidivist offenders to a mandatory minimum
sentence); 61 Pa.C.S.A. § 3903 (listing first-degree burglary, and not second-degree
burglary, as a crime disqualifying an inmate from eligibility for “motivational boot
camp”).5 Given the General Assembly’s disparate treatment of second-degree burglary
in those statutes, and concluding the RRRI Act was remedial in nature,6 the Gonzalez
court held that the appellant’s prior second-degree burglary conviction should not have
been considered a “history of present or past violent behavior” disqualifying him from
receiving an RRRI Act sentence. Accordingly, relying upon the Superior Court’s
discussion in Gonzalez, the trial court in the instant case concluded that Appellant’s
first-degree burglary conviction necessarily must constitute a “history of present or past
5
The Superior Court additionally noted that 18 P.S. § 11.103, the Crime Victims Act,
does not include second-degree burglary as a “personal injury crime.” See Gonzalez,
10 A.3d at 1263. However, Section 11.103 also omits first-degree burglary.
6
Although the Superior Court characterizes the RRRI Act as remedial, we have
indicated that it is penal. Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).
[J-32-2014] - 6
violent behavior” rendering Appellant ineligible for reduced sentencing under the RRRI
Act.
On appeal, a three-judge panel of the Superior Court — with two judges
concurring in the result — affirmed. Commonwealth v. Chester, 1872 MDA 2011 (Pa.
Super. 2012). Specifically, Judge Wecht authored an unpublished memorandum
opinion recounting the court’s prior analysis in Gonzalez, discussed above, and
reasoned that, “[i]n light of the Gonzalez analysis,” the court was “persuaded that first-
degree burglary constitutes such a history of ‘violent behavior.’” Id. at *17. Thus, the
court concluded that the trial court did not err in determining that Appellant’s Chester
County first-degree burglary convictions rendered him ineligible for an RRRI minimum
sentence.
Appellant filed a petition for allowance of appeal with this Court, and we granted
review to determine “[w]hether a prior conviction of a felony one burglary, which is not
included as a disqualifier in the definition of ‘eligible offender’ may nevertheless amount
to a ‘history of present or past violent behavior’ such as to exclude a defendant from
RRRI [Act] eligibility.”7 Commonwealth v. Chester, 74 A.3d 116 (Pa. 2013) (order). As
this issue concerns a matter of statutory interpretation and is, thus, a pure question of
law, our standard of review is de novo and our scope of review is plenary. School Dist.
of Philadelphia v. Dep’t of Educ., 92 A.3d 746, 751 (Pa. 2014).
Appellant maintains that he should be considered an “eligible offender” under the
RRRI Act regardless of his prior first-degree burglary conviction because nothing in the
7
Although the courts below relied extensively upon Gonzalez, which, as discussed
above, held that second-degree burglary was not “violent behavior” under Section
4503(1), we note the question before us concerns only whether first-degree burglary is
violent behavior under that section. Thus, we need not, and do not, address whether
second-degree burglary may constitute violent behavior under the RRRI Act.
[J-32-2014] - 7
RRRI Act explicitly renders a defendant ineligible for reduced sentencing based upon a
conviction for burglary of any degree. Specifically, Appellant observes that the RRRI
Act expressly lists crimes precluding a defendant from receiving a reduced sentence,
including: offenses involving deadly weapons in Section 4502(2); personal injury crimes
enumerated under Section 103 of the Crime Victims Act8 in Section 4503(3); certain
sexual offenses in Section 4503(4); and specific drug offenses in Section 4503(6). He
notes that none of these include the crime of burglary. As burglary is omitted from the
other offenses enumerated in the RRRI Act, Appellant asserts that the legislature
intended to exclude it as a disqualifying crime; thus, he claims that burglary cannot then
qualify as “violent behavior” under Section 4503(1). Appellant further asserts that,
although burglary is characterized as a violent crime in Section 9714(g) of the
Sentencing Code, 42 Pa.C.S.A. § 9714(g), burglary has traditionally been viewed as a
property crime, as evidenced by the Pennsylvania Uniform Crime Report, which lists
burglary as a property crime. See Executive Summary Crime in Pennsylvania 2012
Annual Uniform Crime Report,
http://ucr.psp.state.pa.us/UCR/Reporting/Annual/pdf2012/2012ExecutiveSummary.pdf
(last visited Aug. 20, 2014).
While Appellant notes the courts below relied primarily upon Gonzalez in
reaching their decisions, he argues that such reliance was misplaced, as Gonzalez held
only that second-degree burglary should not be considered as a “history of present or
past violent behavior” under Section 4503(1) of the RRRI Act, and did not address
whether first-degree burglary falls within Section 4503(1). Rather than relying on
Gonzalez, Appellant suggests that we follow the Superior Court’s approach in
Commonwealth v. Hansley, 994 A.2d 1150 (Pa. Super. 2010) (finding defendant who
8
18 Pa.C.S.A. § 11.103.
[J-32-2014] - 8
was previously convicted of possession with intent to deliver was an “eligible offender”
under the RRRI Act because Section 4503(6) did not specifically list that offense among
the other enumerated disqualifying drug offenses); see Commonwealth v. Hansley, 47
A.3d 1180 (Pa. 2012), and Commonwealth v. Main, 6 A.3d 1026 (Pa. Super. 2010)
(holding defendant who is sentenced to a mandatory-minimum sentence may still be
eligible to receive a reduced minimum sentence under the RRRI Act). He claims that
these cases followed the common law maxim “expressio unius est exclusio alterius” —
the specific inclusion of one matter in a statute implies the exclusion of others — and
reasons that only offenses which are specifically named in the RRRI Act may exclude
an offender from eligibility.
Alternatively, Appellant contends that, even if we were to find that first-degree
burglary constitutes violent behavior under the RRRI Act, he is nevertheless an “eligible
offender” because a single prior offense is insufficient by itself to constitute a “history.”
Appellant claims the dictionary definition of “history” contemplates “a continuous record
of past events or trends,” which does not support the decisions of the courts below to
deny him an RRRI Act minimum sentence for what he claims was a single burglary
conviction. Appellant’s Brief at 15.
The Allegheny County Public Defenders Office filed an amicus curiae brief on
behalf of Appellant, asserting that first-degree burglary does not constitute disqualifying
violent behavior per se under Section 4503(1). Rather, amicus contends that, because
Section 4503(1) requires “violent behavior” and does not refer to mere threats of
violence, only those burglaries during which violence was actually employed exclude an
offender from RRRI Act eligibility under Section 4503(1). Accordingly, amicus suggests
that, in determining whether a defendant’s first-degree burglary conviction constitutes
[J-32-2014] - 9
disqualifying violent behavior under the RRRI Act, we should consider the individual
facts surrounding the burglary to ascertain whether violence was actually employed.
In response, the Commonwealth argues that offenses other than those
specifically enumerated within the RRRI Act may constitute a “history of present or past
violent behavior” under Section 4503(1). In support of its interpretation, the
Commonwealth notes that construing Section 4503(1) as pertaining only to offenses
which are specifically enumerated in Section 4503 would render the “history of present
or past violent behavior” subsection superfluous, contrary to established tools of
statutory construction. Rather than interpreting the statute in such a fashion, the
Commonwealth asserts that “[e]very statute shall be construed, if possible, to give effect
to all of its provisions.” Commonwealth’s Brief at 13 (quoting 1 Pa.C.S.A. § 1921(a)).
Applying those principles of statutory interpretation, the Commonwealth suggests that
the legislature intended the language of Section 4503(1) to be sufficiently broad so as to
include offenses or circumstances not specifically provided for in the other provisions of
the RRRI Act; otherwise, the Commonwealth argues, the General Assembly would
simply have written an exhaustive list of disqualifying offenses.
According to the Commonwealth, because the legislature intended offenses
beyond those specifically enumerated in the RRRI Act to fall within the ambit of Section
4503(1), first-degree burglary, which it claims is a crime of violence, constitutes a
“history of present or past violent behavior” under Section 4503(1). In so asserting, the
Commonwealth observes that we have consistently viewed first-degree burglary as a
violent crime in other contexts — such as the recidivist minimum sentencing provisions
in 42 Pa.C.S.A. § 9714(g) and the significant history of violent convictions aggravating
circumstance for capital sentencing under 42 Pa.C.S.A. § 9711(d)(9) — based upon the
basic principle that a person’s non-privileged entry into a structure creates the potential
[J-32-2014] - 10
for dangerous resistance and the “use or threat of violence to the person.”
Commonwealth’s Brief at 17 (quoting Commonwealth v. Small, 980 A.2d 549, 576-77
(Pa. 2009)). As further support for its position, the Commonwealth notes that the
Superior Court expressly recognized in Gonzalez that first-degree burglary, unlike
second-degree burglary, is viewed as a crime of violence in Pennsylvania.
Finally, the Commonwealth points out that Appellant had multiple first-degree
burglary convictions in Chester County, which it claims qualify as a “history” under
Section 4503(1). In the alternative, the Commonwealth maintains that even a single
conviction is sufficient to constitute a “history,” as, according to the Commonwealth,
“history” means “any history,” and is not exclusively a pattern of multiple events.
Commonwealth’s Brief at 24. The Commonwealth offers that, if the legislature intended
for the word “history” in Section 4503(1) to require multiple events, it would have
specifically included a modifier before the word “history,” as it did in 42 Pa.C.S.A.
§ 9711(d)(9), where it required the defendant to have a “significant history of felony
convictions involving the use or threat of violence to the person.” 42 Pa.C.S.A.
§ 9711(d)(9) (emphasis added).
We begin our analysis by discussing the jurisprudential principles underlying our
review. Because the question before us centers on the interpretation of the term
“history of present or past violent behavior” within Section 4503(1) of the RRRI Act, we
must turn to the Statutory Construction Act. 1 Pa.C.S.A. §§ 1501 et seq. As provided
by that Act, the objective of all interpretation and construction of statutes is to ascertain
and effectuate the intention of the legislature. Id. § 1921(a). The best indication of the
General Assembly’s intent is the plain language of the statute. Bayada Nurses, Inc. v.
Com. Dept. Labor and Indus., 8 A.3d 866, 880 (Pa. 2010). When considering statutory
language, “[w]ords and phrases shall be construed according to rules of grammar and
[J-32-2014] - 11
according to their common and approved usage.” 1 Pa.C.S.A. § 1903(a). If the words
of a statute are clear and unambiguous, we should not look beyond the plain meaning
of the statutory language “under the pretext of pursuing its spirit.” Id. § 1921(b).
Accordingly, only when the words of a statute are ambiguous should a reviewing court
seek to ascertain the intent of the General Assembly through consideration of the
various factors found in Section 1921(c). Id. § 1921(c); Bayada Nurses, 8 A.3d at 881.
With these principles in mind, we begin by examining the term “violent behavior”
under Section 4503(1). As noted above, Appellant maintains, pursuant to the maxim of
expressio unius est exclusio alterius, that, by enumerating specific offenses and
incorporating other offenses in Section 4503(2)-(6), the legislature has expressed its
intention to deem an offender ineligible under the RRRI Act only when he has been
convicted of a crime which is included among the enumerated or incorporated offenses
in the RRRI Act. The Commonwealth, on the other hand, views the “violent behavior”
language of Section 4503(1) as encompassing violent offenses or behaviors not
specifically provided for elsewhere in the RRRI Act.
Preliminarily, and contrary to Appellant’s contentions, we note that expressio
unius is inapplicable in this case because Section 4503(1) does not contain a list of
specific crimes excluding an offender from eligibility; rather, it employs broad, general
language encompassing all “violent behavior” in addition to the enumerated crimes
contained in Section 4503(2)-(6). See Meyer v. Cmty. Coll. of Beaver Cnty., 93 A.3d
806, 814 n.6 (Pa. 2014) (noting expressio unius “has no application where . . . the
legislature did not merely identify a list of covered subjects, but rather employed
‘catchall’ language designed to include similarly situated entities within the statutory
scope”). We find that Section 4503’s structure — namely, including specific classes of
offenses in Section 4503(2)-(6) while also including general language in Section
[J-32-2014] - 12
4503(1) concerning behavior — reflects an express choice by the legislature not to write
an exclusive list of disqualifying offenses, but, instead, to include Section 4503(1) as a
broad, “catchall” provision designed to encompass an array of behavior not explicitly
provided for in Section 4503’s other provisions.
Furthermore, although Appellant correctly observes that the RRRI Act specifies
numerous crimes within Section 4503(2)-(6) that render an offender ineligible to receive
a reduced minimum sentence — including offenses involving a deadly weapon, certain
personal injury crimes, certain sexual offenses, and certain drug offenses — Appellant’s
interpretation of Section 4503 as excluding offenses, such as burglary, which are not
expressly listed among those crimes would render Section 4503(1) to a degree
superfluous, as no crime could ever fall into this category if that crime was not listed in
Section 4503(2)-(6). It is well settled, however, that the legislature “is presumed not to
intend any statutory language to exist as mere surplusage.” Commonwealth v.
Ostrosky, 909 A.2d 1224, 1232 (Pa. 2006). Accordingly, to give effect to all of all of
Section 4503’s provisions, as we must pursuant to 1 Pa.C.S.A. § 1921(a), we conclude
that, notwithstanding the offenses enumerated in Section 4503(2)-(6), Section 4503(1)
covers violent behaviors not otherwise identified in the RRRI Act’s definition of “eligible
offender.”
Next, we must determine whether first-degree burglary constitutes “violent
behavior” as contemplated by Section 4503(1). Appellant suggests that all burglaries
are property crimes, rather than crimes of violence, and notes that, although an
individual was present during his burglary in Chester County, he did not engage in
violent behavior toward that individual, which he claims further supports his position that
his conviction did not constitute “violent behavior” under Section 4503(1). We are
unpersuaded by Appellant’s argument.
[J-32-2014] - 13
First, although burglary involves the unlawful entry of another person’s property,
and although burglary is characterized as a property crime for purposes of the
Pennsylvania Uniform Crime Report, it is well established within our case law that
“[b]urglary is a crime of violence as a matter of law,” signifying that first-degree burglary
necessarily constitutes violent behavior in all contexts, including under Section 4503(1).
See Commonwealth v. Spotz, 47 A.3d 63, 104 (Pa. 2012) (finding appellant’s prior
burglary convictions were properly admitted as evidence of a significant history of
violent felony convictions pursuant to 42 Pa.C.S.A. § 9711(d)(9)). Indeed, as we noted
in Commonwealth v. Rolan, 549 A.2d 553 (Pa. 1988), burglary has been treated as a
crime of violence dating back to the common law of England, which defined burglary as
a forcible invasion into the home with the intent to commit a felony therein, and
punished burglars with death “[b]ecause of the great public policy involved in shielding
the citizenry from being attacked in their homes and in preserving domestic tranquility.”
Id. at 558 (citing Blackstone Commentaries on the Law, Book IV, pp. 223-28). Based
upon those same motivations, and wishing to “protect people from the threat of violence
in other situations,” our legislature expanded the common law scope of burglary when it
drafted the Crimes Code, including within its definition various types of buildings and
structures in addition to the home, and extending the definition to encompass both
daytime and nighttime intrusions. Rolan, 549 A.2d at 558.
We continue to view burglary as a crime of violence today based upon the well
settled notion that “non-privileged entry . . . poses a threat of violence to persons.”
Small, 980 A.2d at 576; see also Rolan, 549 A.2d at 559 (“[T]he crime of burglary has
always been and continues to be viewed as a crime involving the use or threat of
violence to the person”); Commonwealth v. Rios, 920 A.2d 790, 814 (Pa. 2007)
(“[B]urglary is always classified as a violent crime in Pennsylvania.”); Commonwealth v.
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Pruitt, 951 A.2d 307, 321 (Pa. 2008) (citing cases noting that burglary is a crime of
violence in Pennsylvania). While we have recognized that all burglaries are crimes of
violence for purposes of the significant history of violent felony convictions aggravating
circumstance for capital sentencing, see 42 Pa.C.S.A. § 9711(d)(9), as the Superior
Court implied in Gonzalez, the case is even stronger for specifically construing the
commission of the crime of first-degree burglary as violent behavior under Section
4503(1), given that, unlike second-degree burglary, first-degree burglary is listed as a
crime of violence under the recidivist minimum sentencing provision in 42 Pa.C.S.A. §
9714(g), and the crime specifically renders an offender ineligible for motivational boot
camp pursuant to 61 Pa.C.S.A. § 3903.
Moreover, the Crimes Code treats first-degree burglary distinctly from second-
degree burglary, as first-degree burglary contemplates the potential for confrontation,
whereas second-degree burglary does not. At the time Appellant was charged, the
burglary statute distinguished first-degree burglary from second-degree burglary based
upon whether the building or structure entered was adapted for overnight
accommodation and whether an individual was present at the time of entry. See supra
note 1. Only if neither of these conditions were true — i.e., that there was no risk of
confrontation — was the entry a second-degree burglary.9 Thus, in light of
Pennsylvania’s long-standing view of burglary as a violent crime, as well as the fact that
first-degree burglary is treated distinctly, and more severely, under Pennsylvania law,
9
While the current burglary statute differs structurally from the prior version under which
Appellant was charged, the current statute follows the same scheme of distinguishing
between first-and second-degree burglary based upon the potential for confrontation
posed by overnight accommodation of the structure entered and/or the presence of
another individual at the time of entry. See supra note 1.
[J-32-2014] - 15
we have no hesitancy in concluding a conviction for first-degree burglary constitutes
“violent behavior” under Section 4503(1).10
Furthermore, while Appellant contends his first-degree burglary conviction was
not “violent behavior” because he did not employ violence during the burglary, it is an
offender’s non-privileged entry, which “invit[es] dangerous resistance” and, thus, the
possibility of the use of deadly force against either the offender or the victim, that
renders burglary a violent crime, not the behavior that is actually exhibited during the
burglary. Rolan, 549 A.2d at 559. Thus, the fact that Appellant did not actually engage
in any violent acts while committing first-degree burglary does not render that crime
“non-violent.” Similarly, we decline to accept the invitation of amicus to depart from our
well established case law — finding burglaries to be violent by their very nature — to
instead engage in a case-by-case evaluation into whether a particular burglary
conviction constitutes “violent behavior” under Section 4503(1). Thus, we believe a
conviction for first-degree burglary, a crime of violence, constitutes violent behavior for
purposes of Section 4503(1).
Having concluded that a conviction for first-degree burglary constitutes “violent
behavior” under Section 4503(1), we address Appellant’s final contention that he has
not engaged in a “history” of violent behavior. While Appellant maintains that he had
only one prior first-degree burglary conviction in Chester County and, thus, that he did
not engage in a “history” of violent behavior under Section 4503(1), as the
Commonwealth notes, and as our independent review of the Chester County criminal
10
Of course, although we generally treat burglary as a violent crime, as Chief Justice
Castille noted in his Concurring Opinion in Small, supra, the General Assembly is within
its power “to define [burglary] differently for other purposes” in other statutes. Small,
980 A.2d at 580 (Castille, C.J., concurring). However, there is no indication that the
legislature intended to treat burglary distinctly under the RRRI Act.
[J-32-2014] - 16
docket sheet confirms, Appellant was convicted of three counts of first-degree burglary
in connection with the Chester County incident. Thus, regardless of whether a single
conviction constitutes a “history” under Section 4503(1), we find that Appellant’s multiple
first-degree burglary convictions are more than sufficient to form a “history” of “violent
behavior” under Section 4503(1).
Accordingly, in light of the foregoing, we hold that Appellant’s prior first-degree
burglary convictions rendered him ineligible to receive an RRRI-reduced minimum
sentence. Thus, we affirm the order of the Superior Court.
Jurisdiction relinquished.
Mr. Chief Justice Castille and Messrs. Justice Saylor, Eakin, Baer, McCaffery
and Stevens join the opinion.
[J-32-2014] - 17