Criminal attempt in Pennsylvania is defined by 18 Pa. C.S. § 901: you commit it when you act with the specific intent to commit a particular crime and take a substantial step toward carrying it out. The crime does not have to be completed, and the penalty is generally the same as if it had been. That means an attempted first-degree felony is punished as a first-degree felony, and an attempted misdemeanor is punished as a misdemeanor of the same degree.
What the Prosecution Must Prove
Two elements have to be established: specific intent and a substantial step.1Pennsylvania General Assembly. Pennsylvania Code 18-901 – Criminal Attempt
Specific intent means the prosecution has to show you actually meant to commit the particular crime charged. Reckless or negligent conduct is not enough. An accidental firearm discharge in a public place might produce other charges, but it cannot support an attempt conviction unless prosecutors can prove you deliberately intended to shoot someone.
The substantial step is what separates punishable conduct from thoughts, plans, or talk. Thinking about a crime, or even discussing it, does not cross the line. You have to do something that strongly corroborates criminal intent before the law treats your conduct as an attempt.
What Counts as a Substantial Step
Pennsylvania follows the Model Penal Code’s approach: courts ask whether your conduct strongly corroborates a criminal purpose, not how close you came to finishing the crime. That framing lets prosecutors charge attempt earlier in the sequence of events than many people expect.
Conduct that typically qualifies includes:
- Casing or scouting the location where the crime was to happen.
- Lying in wait, searching for, or following an intended victim.
- Luring or enticing someone to the place the crime was planned.
- Unlawfully entering a building or structure where the crime was supposed to occur.
- Possessing tools or materials specifically useful for the planned crime at or near the scene.
None of these has to come close to completing the offense. A person caught with burglary tools after breaking a window latch has likely taken a substantial step, even without entering or taking anything. The question is whether the conduct as a whole points unmistakably toward criminal intent rather than innocent activity.
Penalties by Grade
Attempt is graded at the same level as the target crime. Attempted second-degree felony is a second-degree felony; attempted first-degree misdemeanor is a first-degree misdemeanor.2Pennsylvania General Assembly. Pennsylvania Code 18-905 – Grading of Criminal Attempt, Solicitation and Conspiracy The maximum prison exposure for attempting a serious felony matches the maximum for completing it.
Attempted murder has its own sentencing rules that override the normal felony ranges. If serious bodily injury resulted from the attempt, the court can impose up to 40 years. 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 follow the offense grade. Attempted murder carries fines up to $50,000. A first- or second-degree felony attempt can result in a fine up to $25,000. Third-degree felony attempts carry fines up to $15,000, and misdemeanor attempts range from $2,500 to $10,000 depending on the degree.4Pennsylvania General Assembly. Pennsylvania Code Title 18 Chapter 11 – Authorized Disposition of Offenders
One 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 It comes up rarely.
How Prior Convictions Change the Math
An attempted violent crime becomes much more serious at sentencing if you already have violent convictions. Pennsylvania’s repeat offender statute imposes escalating mandatory minimums. A second violent offense triggers a mandatory minimum of at least 10 years. A third raises the floor to at least 25 years, and the court can impose the 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 is insufficient to protect public safety, it can sentence a third-time violent offender to life imprisonment without parole.5Pennsylvania General Assembly. Pennsylvania Code 42-9714 – Sentences for Second and Subsequent Offenses Because attempt is graded like the completed crime, an attempted violent felony counts toward these thresholds just like a completed one.
Impossibility Is Not a Defense
A widespread assumption is that you cannot be convicted of attempt if the crime was impossible to complete. Pennsylvania’s statute forecloses that argument. Under 18 Pa. C.S. § 901(b), it is not a defense that the crime could not have been committed because of a misunderstanding about the circumstances.1Pennsylvania General Assembly. Pennsylvania Code 18-901 – Criminal Attempt
A pickpocket reaching 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 on what you believed the circumstances to be and what you intended to do. Pennsylvania courts have applied this to reject impossibility defenses across a range of attempt charges, including attempts to receive stolen property that was actually in police custody.
Renunciation: The One Affirmative Defense
Pennsylvania recognizes voluntary renunciation as an affirmative defense. 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
The abandonment has to be voluntary. Backing off because you saw a police car, realized the alarm was too sophisticated, or feared getting caught does not qualify. The statute requires a genuine change of heart, not a tactical retreat. In Commonwealth v. McCloskey, a defendant who had begun planning a prison escape returned to his cell before completing the act and explained that he thought of his family and did not want to shame them. The appellate court vacated his conviction, finding he had voluntarily abandoned his criminal purpose while still in the preparatory stage.
Most defendants who stop mid-crime do so for reasons that fail the voluntariness test, so successful renunciation defenses are rare.
Attacking Intent and the Substantial Step
Because the state has to prove specific intent, the most common defense strategy is attacking that element. Intent is rarely proven by confession. Prosecutors build it through circumstantial evidence: what you said, what you brought with you, where you went, and what you did when you got there. The same facts can often be reframed as innocent or ambiguous conduct.
Proximity to a crime scene plus possession of items that could be used in a crime does not, by itself, establish intent. A person outside a building at night with a crowbar might be a would-be burglar or a locksmith. The prosecution has to connect the dots to specific criminal intent, not just suspicious behavior.
The substantial step element is equally open to challenge. Defense attorneys frequently argue the conduct never moved past preparation. The line between preparation and a substantial step is not always obvious, and reasonable people can disagree about where a given set of facts falls. Where evidence was obtained through an unlawful search or improper arrest, a motion to suppress can strip out the proof the state needs on either element, and the case can collapse.
When 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 (attempt, solicitation, and conspiracy) designed to culminate in the same crime, so the 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 a person can be convicted of both conspiring to commit a crime and committing it.6Justia. Commonwealth v. Williams If you planned a robbery with two others and carried it out, you can face charges for both conspiracy and robbery. If prosecutors charged both attempted robbery and completed robbery for the same incident, the attempt would merge into the robbery conviction. That distinction often shapes plea negotiations, because it limits how prosecutors can stack charges when a completed offense is on the table.