What Is the Difference Between Residential and Commercial Burglary?
Many people have misconceptions about what constitutes a burglary and how the law views the burglary of a home versus that of an office. Burglary occurs when a person enters a building for the purpose of committing a crime, but there are some exceptions: the building cannot be abandoned, it cannot be open to the public, and the person entering cannot be licensed or privileged to enter. So, for example, shoplifting is not burglary, even when the shoplifter enters the store intending to steal something, and a night watchman who goes to work planning to steal something does not commit burglary.
Most often, we associate burglary with theft, but a burglar could enter a residence to commit assault, rape, or various other crimes. It is also important to note that a perpetrator does not have to accomplish the secondary crime to be convicted of burglary. So, if you break into a home intending to steal some jewelry, but the dog scares you off before you get to the bedroom, you’ve still committed burglary. However, police cannot charge a perpetrator with burglary and the intended, let alone attempted, crime together, unless that intended/attempted crime is a felony of the first or second degree.
In Pennsylvania, burglary is divided into first- and second-degree felonies. “Residential burglary,” which occurs whenever a perpetrator enters a structure adapted for overnight accommodations, is always a first-degree felony. “Commercial burglary,” where a perpetrator enters a structure not adapted for overnight accommodations, is usually a second-degree felony, but it is a first-degree crime when a person is present in the structure. Commercial burglary is also a first-degree crime when the perpetrator intends to commit theft of controlled substances. The reason the law treats residential burglary more seriously is the greater risk to human life when a perpetrator enters a home as opposed to a business that is closed for the night.
Depending on the facts of the case, there could be disagreement about whether a burglary was residential or commercial. Suppose an executive sometimes sleeps in his office. He’s out of town at the time of the burglary, but is the office still “a structure adapted for overnight accommodations”? Is it enough that he has a sofa that folds out into a bed and a coffee maker on his sideboard? Or would a court decide those items have not “adapted” the “structure”? What if a homeowner has a storage shed in the backyard and allows his brother-in-law to “sleep it off” there once in a while? If he set up a cot and installed electricity, does that constitute adapting the structure for overnight accommodations?
The answers to these questions are vitally important, because the difference between the maximum sentence for a felony of the first degree and that of the second degree is 10 years. For this and many other reasons, it’s important to consult an experienced criminal defense attorney.