Pennsylvania Burglary Charges, Penalties, and Defenses

Burglary charges in Pennsylvania are always felonies. In most cases the charge is a first-degree felony carrying up to 20 years in prison, and it applies when a person enters a building or occupied structure with the intent to commit a crime inside. The grade depends on two things: whether the building is adapted for overnight stays, and whether anyone was present. Pennsylvania’s statute also builds in three defenses that, if they apply, defeat the charge entirely.¹

The Four Categories of Burglary

Pennsylvania’s burglary statute divides the offense into four scenarios based on the type of building and whether someone was inside at the time of entry.¹

Entering a home, apartment, or other overnight-adapted structure while a person is present. This is the most serious form, with an aggravated version when the entrant commits, attempts, or threatens a bodily injury crime after entry.
Entering a residence or other overnight-adapted structure when nobody is home.
Entering a business, warehouse, or other non-residential building while someone is inside.
Entering an empty non-residential building, such as a closed commercial property.

The first three are first-degree felonies. Only the fourth drops to a second-degree felony, and that reduction disappears if the entry was to steal controlled substances or designer drugs, which pushes the charge back up to a first-degree felony.¹

What “Occupied Structure” Actually Means

The phrase “occupied structure” is broader than it sounds. Under Pennsylvania law it covers any building, vehicle, or place adapted for overnight stays or for conducting business, whether or not anyone is actually inside at the moment of entry.² A store that closed hours ago still qualifies because it was adapted for business.

So the question of whether the building itself counts is separate from whether anyone was there. The first controls whether burglary applies at all; the second controls how the charge is graded. Prosecutors don’t need to prove someone was inside to charge you with burglary. They need it only to reach the higher grade.

Penalties

A first-degree felony burglary carries a maximum prison sentence of 20 years³ and a fine of up to $25,000.⁴ Aggravating factors like a weapon or an injured occupant push sentencing toward the upper end, and courts routinely order restitution for stolen property or damage to the building.

A second-degree felony burglary, meaning entry into an empty non-residential building, has a 10-year maximum and the same $25,000 fine cap.³⁴ Actual sentences depend on Pennsylvania’s sentencing guidelines, which weigh both the offense gravity and the defendant’s prior record score. A clean record and a heavy record can produce very different results at the same grade.

The Intent Element

Entering a building without permission is not, by itself, burglary. The prosecution has to prove you intended to commit a crime inside at the moment you entered.¹ Walking in lawfully and later deciding to take something is not burglary, though it can support other charges like theft or criminal trespass.

The intended crime doesn’t have to be theft. Entry to commit an assault, to damage property, or to commit any other offense meets the element. Nor does the intended crime have to be completed. What matters is the purpose at the threshold.

Because defendants rarely announce their intentions, courts look to circumstantial evidence: burglary tools like pry bars or lock picks, prior surveillance of the property, attempts to disable alarms, a disguise, or statements made before or after the entry. The thinner that evidence, the more room the defense has to argue the entry was innocent or that any criminal thought formed only after entry.

Defenses That Can Defeat the Charge

Three statutory defenses appear inside the burglary statute itself. If any one of them applies at the time of entry, the burglary charge does not stand:¹

The building was abandoned. Not merely unoccupied for a while, but genuinely abandoned, with no one maintaining or using it.
The premises were open to the public. A store during business hours or an open government building cannot be unlawfully entered for burglary purposes. This doesn’t shield you from charges for what you did inside, but the burglary charge itself fails.
You were licensed or privileged to enter. Permission from an owner or tenant, a legal right to be there, employee access, or an invited-guest situation all fit here.

Outside the statute, defendants commonly attack the intent element head-on, arguing there was no plan to commit a crime when they walked in. Identity is another frequent battleground, through alibi evidence or weaknesses in eyewitness identification. And where police searched a home or seized evidence without a warrant or valid exception, a motion to suppress can keep that evidence out of trial.

Burglary Versus Criminal Trespass

Criminal trespass covers the same physical act, entering a building without permission, but without the added element of intent to commit a crime inside.⁵³ Compared with 20 years for first-degree burglary, that’s why intent is often the most contested question at trial.

When prosecutors can’t prove intent at the moment of entry, trespass sometimes appears as a fallback charge. Defense attorneys, in turn, often negotiate a trespass plea to avoid a burglary conviction, which is a meaningful reduction even though trespass remains a felony in most scenarios.

Repeat Offender Mandatory Minimums

Pennsylvania’s second-strike law sets a 10-year mandatory minimum for a second conviction of a “crime of violence.” A third conviction carries a 25-year mandatory minimum, and the court may impose life without parole if it finds 25 years insufficient to protect the public.⁶

Not every burglary triggers these enhancements. The statute counts only burglary under section 3502(a)(1), the most serious category, involving an overnight-adapted structure with a person present.⁶ A second-degree burglary of an empty warehouse would not count as a predicate. The mandatory maximum is set at double the mandatory minimum, and these sentences override the normal statutory maximums and the court’s ordinary discretion.

Consequences That Outlast the Sentence

A felony burglary conviction carries collateral consequences that don’t end when a sentence is served. Pennsylvania does not allow expungement of felony convictions through the standard process; expungement is limited to non-conviction records, summary offenses after five years without arrest, and cases where the person has received an unconditional pardon.⁷ A pardon requires an application to the Pennsylvania Board of Pardons and evidence of rehabilitation over many years.

Pennsylvania’s Clean Slate Law seals some records from public view but explicitly excludes first-degree felony convictions.⁸ Because most burglary convictions are first-degree felonies, Clean Slate offers no relief in those cases. A second-degree burglary conviction can potentially qualify for limited access after 10 years without a new conviction and with restitution paid in full.

Federal law separately bars anyone convicted of a crime punishable by more than a year in prison from possessing firearms, which covers every degree of burglary in Pennsylvania.⁹ The record can also disqualify you from licenses in healthcare, education, and security work, and it creates lasting barriers in employment and housing.

1
Pennsylvania General Assembly. Pennsylvania Code 18-3502 – Burglary
2
Pennsylvania General Assembly. Pennsylvania Code 18-3501 – Definitions
3
Pennsylvania General Assembly. Pennsylvania Code 18-1103 – Sentence of Imprisonment for Felony
4
Pennsylvania General Assembly. Pennsylvania Code 18-1101 – Fines
5
Pennsylvania General Assembly. Pennsylvania Code 18-3503 – Criminal Trespass
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Pennsylvania General Assembly. Pennsylvania Code 42-9714 – Sentences for Second and Subsequent Offenses
7
Pennsylvania General Assembly. Pennsylvania Code 18-9122 – Expungement
8
Pennsylvania General Assembly. Pennsylvania Code 18-9122.1 – Petition for Limited Access
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Office of the Law Revision Counsel. 18 U.S. Code 922 – Unlawful Acts