No. 2074 Philadelphia, 1980, Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, Pennsylvania, Criminal, No. 565 of 1979, imposed August 4, 1980.
Thomas B. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
Hester, Rowley*fn1 and Montgomery, JJ.
[ 299 Pa. Super. Page 280]
On February 28, 1979, appellant was charged with arson*fn2 in connection with a fire at the foundry where appellant was employed at the time. On July 11, 1979, appellant was convicted after a jury trial. His post-trial motions in arrest of judgment and for a new trial were denied. On August 4, 1980, appellant was sentenced to a term of imprisonment of not less than three (3) years nor more than ten (10) years, fined $100.00 and ordered to pay costs. He was also ordered to pay 1.5 million dollars in restitution.
[ 299 Pa. Super. Page 281]
Appellant first contends that the trial court erred in refusing to charge the jury on the offense of criminal mischief*fn3 as a lesser included offense of arson. Appellant specifically requested this instruction in his proposed points for charge.
"The test for determining whether an offense is a lesser included offense is whether all the essential elements of the lesser offense are included in the greater offense." Commonwealth v. Ostolaza, 267 Pa. Super. 451, 457, 406 A.2d 1128, 1131 (1979). See also Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (1976); Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). Applying that test, we conclude that criminal mischief is not a lesser included offense of arson.
Criminal mischief contains two elements not included in arson. First, criminal mischief involves "tangible property", while arson involves a "building or occupied structure". In Commonwealth v. Lezinsky, 264 Pa. Super. 476, 479, 400 A.2d 184, 186 (1979), the court indicated that "tangible property" is limited to personal property, while arson involves real property. Second, criminal mischief involves an intentional, reckless or negligent act, while arson does not include negligent conduct. Therefore, since all of the elements of criminal mischief are not included in arson, criminal mischief is not a lesser included offense of arson.
The Court's opinion in Commonwealth v. Lezinsky, supra, supports this conclusion. Although that case dealt with the issue of duplicate sentences, the Court stated that the offense of criminal mischief did not "merge" into the offense of arson. 264 Pa. Super. at 479, 400 A.2d at 186. The doctrines of merger and of lesser included offenses raise
[ 299 Pa. Super. Page 282]
essentially the same question. Commonwealth v. Ackerman, 239 Pa. Super. 187, 191 n. 4, ...