Appeal from the Superior Court order dated March 10, 2008, No. 384 EDA 2007, vacating the judgment of sentence entered September 7, 2006 in the Court of Common Pleas of Pike County, Criminal Division, at No. CP-52-CR-0033-2005 dated September 7, 2006 945 A.2d 198 (Pa. Super. 2008).
The opinion of the court was delivered by: Madame Justice Greenspan
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
We permitted this appeal in order to review the Superior Court's decision under 42 Pa. C.S. § 9714, Sentences for Second and Subsequent Offenses, commonly referred to as the "Three Strikes Law." The precise question is whether the Superior Court panel properly determined that the New York statute of Arson in the Third Degree, N.Y. Penal Law § 150.10, does not constitute an offense equivalent to the Pennsylvania statute of Arson Endangering Persons, 18 Pa. C.S. § 3301(a)(1). We conclude that the two offenses are not equivalent. As a result, we hold that the Superior Court did not err in concluding that a New York conviction for Arson in the Third Degree cannot serve as a prior crime of violence under Section 9714(a)(1). We affirm the Superior Court's order vacating the judgment of sentence and remanding the matter for resentencing.
Appellee Carl Northrip ("Appellee") was convicted of multiple counts of involuntary deviate sexual intercourse (IDSI), statutory sexual assault, incest, and corruption of minors in connection with repeated sexual attacks upon his 12-year-old daughter. Prior to sentencing, the Commonwealth sought application of Section 9714(a), which provides for a mandatory minimum sentence in the event a defendant has a prior conviction for a crime of violence. The Commonwealth's request was based on Appellee's prior conviction in New York for Arson in the Third Degree after he set fire to a building called Main Street Auto. The Three Strikes Law includes among its list of crimes of violence "arson as defined in 18 Pa. C.S. § 3301(a)" or "an equivalent crime in another jurisdiction." 42 Pa. C.S. § 9714(g). The trial court agreed that the mandatory minimum set forth in Section 9714 applied and ultimately sentenced Appellee to 30 to 60 years in prison.*fn1
On direct appeal to the Pennsylvania Superior Court, Appellee asserted that the trial court erred in applying Section 9714. Specifically, Appellee argued that New York's statute of Arson in the Third Degree was not equivalent to the specific Pennsylvania arson provision listed in Section 9714. The Superior Court agreed; it vacated the judgment of sentence and remanded the matter for resentencing. We granted the Commonwealth's petition for allowance of appeal, limited to the following question:
Whether the Pennsylvania Superior Court erred by determining that [Appellee's] conviction for Arson in the Third Degree, as defined in N.Y. Penal Law § 150.10, was not an equivalent offense to Arson as defined in the Pennsylvania Crimes Code at 18 Pa. C.S.A. § 3301(a), and thus, not a crime of violence as defined by 42 Pa. C.S.A. § 9714(g)?
The issue before us is one of statutory construction that implicates the legality of the sentence imposed. As a result, our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Samuel, 961 A.2d 57, 60-61 (Pa. 2008); Commonwealth v. Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001).
Although the statute generally is referred to as the Three Strikes Law, the facts in this case concern Appellee's "second strike," as Section 9714 provides that any person convicted of a crime of violence shall be subject to a minimum sentence of at least ten years if, at the time he committed the offense, he had previously been convicted of a crime of violence. 42 Pa. C.S. § 9714(a).*fn2 In defining the term "crime of violence," the Legislature set out explicit direction:
As used in this Section, the term "crime of violence" means murder of the third degree, voluntary manslaughter, aggravated assault as defined in 18 Pa. C.S. § 2702(a)(1) or (2). rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa. C.S. § 3301(a). kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa. C.S. § 3701(a)(1)(i), (ii) or (iii), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above,. or an equivalent crime in another jurisdiction.
42 Pa. C.S. § 9714(g) (emphasis supplied).
The resolution in this case rests on the interpretation of the phrase "equivalent crime in another jurisdiction." The Pennsylvania crime at issue in this case is defined as follows:
(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, included 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.
18 Pa. C.S. § 3301(a).*fn3
The New York crime is defined ...