# Commonwealth v. Rolan

> Supreme Court of Pennsylvania · October 18, 1988 · 520 Pa. 1

URL: https://www.frixlaw.com/law-library/cases/9746736

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Florencio ROLAN, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 18, 1988
- **Citations:** 520 Pa. 1; 549 A.2d 553; 1988 Pa. LEXIS 253
- **Precedential status:** Published
- **Opinion:** Dissent by Zappala
- **Judges:** Papadakos, Nix, Larsen, Flaherty, McDermott, Zappala
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ZAPPALA, Justice,
dissenting.
I am unable to assent to the determination that burglaries are inherently crimes falling within aggravating circumstance (d)(9), as “involving the use or threat of violence to the person.”
First, the majority confuses the concepts of “risk” and “threat”. The former involves simply a chance or possibility of injury whereas the latter describes more precisely an expression or indication of intention to inflict injury. Even if it is assumed that at common law burglary was considered a serious crime because of the risk of violénce to persons, it does not follow that burglary necessarily involves a threat of violence. Breaking and entering the close of the residence could be accomplished without excessive force, and the felony to be committed therein need not, in contemplation or realization, involve an encounter with the residents (theft for example). Thus the common law burglary could well have been committed without any expression of intention to do injury, although there might be the possibility of such should the resident come upon the burglar.
Second, the expanded definition of burglary contained in the Crimes Code counsels against considering burglary as being, by nature, a crime of violence. It is true that the types of structures subject to being burgled has been *18 broadened to include any that might be occupied, but it is not necessary that the structure in fact be occupied. The crime is complete even if the structure is unoccupied and is known to be unoccupied; only complete abandonment is a defense. Put simply, since entering an unoccupied, secured area to commit any crime is now a burglary, the legislature has de-emphasized the importance of the risk of harm to persons.
Nor is the majority’s notation that the Uniform Firearms Act includes burglary as a “crime of violence” persuasive. More telling, I think, is the fact that the legislature included burglary not in Article B of Title 18, under the heading “Offenses Involving Danger to the Person,” but in Article C, “Offenses Against Property.” Though a particular burglary might ultimately involve danger to the person, I believe the legislature has recognized that burglary by nature is essentially a property crime.
Finally, I am troubled by what I perceive to be a tendency exhibited here and in other cases to expansively construe the language of the aggravating circumstances. It should not be forgotten that the whole purpose of specifically enumerating aggravating circumstances was to narrow the type of first degree murder cases in which death would be an appropriate penalty. Especially as to circumstance (d)(9), where the issue is not the nature of the crime being punished but the defendant’s criminal history, it is contrary to this limiting purpose to broaden the range of what may be included. Under (d)(9), I believe it was the legislative intention to make the death penalty a possibility only where the first degree murderer had previously engaged in crimes where he had used, or had exhibited an intention to use, violence against a person. To now hold that it is also appropriate where the defendant’s prior crimes posed only a risk of violence opens the door too wide, and invites a challenge to the statute as giving too little structure to rationally distinguish capital from non-capital first degree murders.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746736. Public record. Not legal advice.