A criminal attempt charge in Pennsylvania can carry the same penalties as the completed crime, even when nothing was stolen, no one was hurt, and the plan fell apart. Under 18 Pa. C.S. § 901, you commit criminal attempt in Pennsylvania when you act with specific intent to commit a particular crime and take a substantial step toward carrying it out.1Pennsylvania General Assembly. Pennsylvania Code 18-901 – Criminal Attempt The crime does not need to be completed. The question is what you intended and what you actually did.
What the Prosecution Has to Prove
Two elements carry the entire offense: specific intent and a substantial step.
Specific intent means prosecutors must show you actually meant to commit the particular crime charged. Recklessness and negligence are not enough. An accidental firearm discharge in a crowded place might support other charges, but it cannot support an attempted shooting conviction unless the state can prove you meant to shoot someone.
The substantial step element separates punishable conduct from thinking, talking, or planning. You can mull a crime over, discuss it, even sketch it out, without crossing the line. The law looks for conduct that strongly corroborates your criminal purpose before treating what you did as an attempt.
What Counts as a Substantial Step
Pennsylvania focuses on whether your conduct, viewed as a whole, points unmistakably toward criminal intent rather than innocent activity. The acts that typically satisfy this element show up well before the crime itself would happen:
- Casing or scouting the place you planned to hit.
- Lying in wait for, searching for, or following an intended victim.
- Luring a victim to the place where you planned to commit the crime.
- Unlawfully entering a building or structure where the crime was supposed to happen.
- Possessing tools or materials specifically useful for the planned crime near the intended scene.
None of this has to come close to finishing the crime. Someone caught with burglary tools after breaking a window latch has likely taken a substantial step, even without entering or taking anything. That is why attempt charges can be filed earlier than many people expect.
Penalties Match the Target Crime
Pennsylvania grades a criminal attempt at the same level as the crime you intended to commit. Attempt a second-degree felony and you face a second-degree felony. Attempt a first-degree misdemeanor and you face a first-degree misdemeanor.2Pennsylvania General Assembly. Pennsylvania Code 18-905 – Grading of Criminal Attempt, Solicitation and Conspiracy The same-grade rule means the maximum prison sentence for an attempt can equal the maximum for the completed offense.
Attempted murder has its own sentencing structure that overrides the usual felony ranges. If serious bodily injury resulted from the attempt, the court can impose up to 40 years in prison. If no serious bodily injury occurred, the maximum is 20 years.3Pennsylvania General Assembly. Pennsylvania Code 18-1102 – Sentence for Murder, Murder of Unborn Child and Murder of Law Enforcement Officer
Fines track the grade of the offense:
- Attempted murder: up to $50,000.
- First- or second-degree felony attempt: up to $25,000.
- Third-degree felony attempt: up to $15,000.
- Misdemeanor attempt: $2,500 to $10,000 depending on the degree.4Pennsylvania General Assembly. Pennsylvania Code Title 18 Chapter 11 – Authorized Disposition of Offenders
One narrow safety valve exists. If the conduct charged as an attempt was so unlikely to result in the actual crime that neither the conduct nor the defendant presents a real public danger, the court has discretion to dismiss the prosecution.2Pennsylvania General Assembly. Pennsylvania Code 18-905 – Grading of Criminal Attempt, Solicitation and Conspiracy This rarely applies in practice.
Prior Convictions Change the Math
If the attempt is a crime of violence and you have prior violent convictions, Pennsylvania’s repeat offender statute takes over at sentencing. A second violent offense triggers a mandatory minimum of at least 10 years. A third raises the floor to at least 25 years, with a mandatory maximum of 50 years.5Pennsylvania General Assembly. Pennsylvania Code 42-9714 – Sentences for Second and Subsequent Offenses
If the court finds that 25 years will not protect public safety, it can sentence a third-time violent offender to life without parole.5Pennsylvania General Assembly. Pennsylvania Code 42-9714 – Sentences for Second and Subsequent Offenses Because attempt is graded at the same level as the completed offense, an attempted violent felony counts toward these strike thresholds just like a completed one.
Defenses That Work and Defenses That Don’t
Impossibility Will Not Save You
A widespread misconception is that an attempt charge collapses if the crime was impossible to complete. Pennsylvania’s statute explicitly rejects that defense. Under 18 Pa. C.S. § 901(b), it is not a defense that the crime would have been impossible to commit because of a misunderstanding about the circumstances.1Pennsylvania General Assembly. Pennsylvania Code 18-901 – Criminal Attempt
A pickpocket who reaches into an empty pocket has still attempted theft. A person who fires an unloaded gun at someone has still attempted assault or murder. The law judges you by what you believed and what you intended, not by whether the outcome was actually possible. Pennsylvania courts have applied this across a range of attempt charges, including attempts to receive stolen property that was actually in police custody at the time.
Voluntary Renunciation Can
Pennsylvania recognizes one affirmative defense: voluntary renunciation. Under 18 Pa. C.S. § 901(c), you have a defense if you voluntarily and completely abandoned your criminal intent before the crime was carried out. If walking away was not enough to prevent the crime, you must also have taken affirmative steps to stop it.1Pennsylvania General Assembly. Pennsylvania Code 18-901 – Criminal Attempt
Voluntary is the operative word. Backing out because you spotted a police car, realized the alarm was too sophisticated, or feared getting caught does not qualify. The renunciation has to reflect a genuine change of heart. In Commonwealth v. McCloskey, a defendant who had begun planning a prison escape returned to his cell before completing the act, saying he thought of his family and did not want to shame them. The appellate court vacated his conviction, finding he was still in the preparatory stage and had voluntarily abandoned his criminal purpose. Most defendants who stop mid-crime do so for tactical reasons, which is why successful renunciation defenses remain uncommon.
Attacking Intent and the Substantial Step
Because specific intent is rarely proven by a confession, prosecutors build it from circumstantial evidence: what you said, what you brought with you, where you went, what you did when you arrived. The same facts can often be reframed as ambiguous or innocent. A person outside a building at night with a crowbar might be a would-be burglar or a locksmith. Suspicious behavior is not the same as proof of specific criminal intent.
The substantial step element is equally open to challenge. The line between preparation and an attempt is not always obvious, and defense attorneys regularly argue that the conduct never crossed it. Reasonable people can disagree about which side of that line a given set of facts falls on, and that ambiguity is where many attempt cases are fought.
When an Attempt Merges With the Completed Crime
If the crime was actually completed, you generally cannot be convicted and sentenced for both the attempt and the finished offense. Pennsylvania bars multiple convictions for inchoate offenses that were designed to culminate in the same crime, so an attempt conviction merges into the completed offense at sentencing.
Conspiracy is the exception. Pennsylvania follows the common law rule that conspiracy does not merge with the completed crime, so you can be convicted of both conspiring to commit a crime and actually committing it.6Justia. Commonwealth v. Williams Plan a robbery with two others and carry it out, and you can face both conspiracy and robbery charges. But if prosecutors file both attempted robbery and completed robbery for the same incident, the attempt merges into the completed charge. This merger rule often shapes plea negotiations, because it limits how prosecutors can stack charges arising from a single course of conduct.