Com. v. Cianci, A.

J-S69005-15
2015 Pa. Super. 270
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY CIANCI
Appellant No. 3459 EDA 2014
Appeal from the Judgment of Sentence February 5, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004570-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
OPINION BY GANTMAN, P.J.: FILED DECEMBER 23, 2015
Appellant, Anthony Cianci, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial convictions for aggravated assault, simple assault, and recklessly
endangering another person (“REAP”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On the evening of July 3, 2012, Appellant and his girlfriend, Riana Hamlet,
were entertaining some friends at their apartment. Appellant became
intoxicated. At one point, Appellant took money set aside for rent and left
the apartment to purchase drugs, which upset Ms. Hamlet. When Appellant
returned to the apartment, he started punching Ms. Hamlet in the head,
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1
18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2705.
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causing her to fall to the ground. Appellant then started arguing with one of
the guests, who called the police. The police arrived but then left to take the
guest and her child home. Ms. Hamlet remained outside the apartment
building away from Appellant until around 3:00 or 4:00 a.m. on the morning
of July 4, 2012. When Ms. Hamlet went back into the apartment, Appellant
repeatedly told her to sleep on the couch but she refused. Appellant then
grabbed Ms. Hamlet’s hair and dragged her out of their bedroom into the
kitchen. Ms. Hamlet entered another bedroom, at which point Appellant
began to punch Ms. Hamlet in the face and head. The following day, a friend
drove Ms. Hamlet to the hospital to receive treatment for her injuries, which
included an orbital blowout fracture, a swollen lip, and multiple bruises and
scratches.
Following a two-day trial, a jury convicted Appellant of aggravated
assault, simple assault, and REAP. On February 5, 2013, the court
sentenced Appellant to a term of sixty (60) to one hundred twenty (120)
months’ incarceration followed by five (5) years’ probation for aggravated
assault, and a consecutive term of six (6) to twelve (12) months’
incarceration for REAP. The court merged Appellant’s simple assault
conviction for sentencing. Appellant filed a timely post-sentence motion on
February 14, 2013, which the court denied on February 21, 2013. Appellant
did not immediately file a direct appeal. On March 10, 2014, Appellant filed
a timely pro se petition pursuant to the Post Conviction Relief Act (“PCRA”)
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at 42 Pa.C.S.A. §§ 9541-9546. The court appointed counsel, who filed an
amended PCRA petition requesting reinstatement of Appellant’s direct appeal
rights nunc pro tunc. The court granted PCRA relief on November 6, 2014.
Appellant filed a timely notice of appeal nunc pro tunc on December 1, 2014.
The court ordered Appellant to file a concise statement of errors complained
of on appeal, pursuant to Pa.R.A.P. 1925(b). After the court granted an
extension, Appellant timely complied.
Appellant raises one issue for our review:
WHETHER THE SENTENCE IS ILLEGAL SINCE THE CRIMES
OF RECKLESSLY ENDANGERING ANOTHER PERSON AND
AGGRAVATED ASSAULT SHOULD HAVE MERGED?
(Appellant’s Brief at 5).
In his sole issue, Appellant argues his convictions for REAP and
aggravated assault should have merged for sentencing purposes. Appellant
contends merger is appropriate because identical facts supported both
convictions and all of the elements of REAP are included in the elements of
aggravated assault. Appellant concludes this Court should vacate his
judgment of sentence and remand for resentencing. We disagree.
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,
70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062
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(Pa.Super. 2011)).
The Pennsylvania Crimes Code defines the crime of aggravated assault
in pertinent part as follows:
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated
assault if he:
(1) attempts to cause serious bodily injury to another,
or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme
indifference to the value of human life[.]
18 Pa.C.S.A. § 2702(a)(1). REAP is defined as follows:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily
injury.
18 Pa.C.S.A. § 2705. To sustain a conviction for REAP, “the Commonwealth
must prove that the defendant had an actual present ability to inflict harm
and not merely the apparent ability to do so. Danger, not merely the
apprehension of danger, must be created.” Commonwealth v. Hopkins,
747 A.2d 910, 915 (Pa.Super. 2000) (internal citation omitted).
Whether two offenses merge for sentencing now turns on Section 9765
of the Sentencing Code, which addresses merger and provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
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statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765 (emphasis added). See Commonwealth v.
Coppedge, 984 A.2d 562, 563 (Pa.Super. 2009) (stating cases decided
before effective date of Section 9765 are not instructive in merger analysis;
relevant question in merger analysis now is whether person can commit one
crime without also committing other crime and vice-versa, regardless of
whether crimes arose from same set of facts; if elements differ, under
legislative mandate of Section 9765, crimes do not merge).
Instantly, a conviction for aggravated assault requires a person, under
circumstances manifesting extreme indifference to the value of human life,
to (1) attempt to cause serious bodily injury to another, or (2) cause such
injury intentionally, knowingly or recklessly. See 18 Pa.C.S.A. § 2702(a)(1).
By contrast, to commit REAP, a person must recklessly engage in conduct
which places or may place another person in actual danger of death or
serious bodily injury. See 18 Pa.C.S.A. § 2705; Hopkins, supra.
Aggravated assault contains an element missing from REAP—serious bodily
injury or an attempt to cause serious bodily injury. On the other hand, an
individual could recklessly place another person in danger of serious bodily
injury without attempting to cause (or actually causing) serious bodily
injury, which would support a conviction for REAP, but not for aggravated
assault. See, e.g., Commonwealth v. Vogelsong, 90 A.3d 717
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(Pa.Super. 2014) (affirming REAP conviction of defendant who twice let her
horse wander unattended on busy roadway and consciously disregarded
substantial risk of injury posed to passing motorists). Additionally, unlike
aggravated assault, REAP requires the element of actual danger of death or
serious bodily injury. An individual could attempt to cause serious bodily
injury to another person without placing that person in actual danger, which
would support a conviction for aggravated assault but not REAP. See, e.g.,
Commonwealth v. Lopez, 654 A.2d 1150 (Pa.Super. 1995) (holding
defendant who discharged firearm into empty residence could be convicted
of aggravated assault if he acted with intent to cause serious bodily injury to
person he believed was in residence even though that person was
elsewhere). Each offense requires proof of an element that is absent from
the other offense, and one offense can be committed without committing the
other offense. Therefore, Appellant’s convictions for aggravated assault and
REAP do not merge for sentencing.2 See 42 Pa.C.S.A. § 9765. Accordingly,
we affirm.
Judgment of sentence affirmed.
President Judge Emeritus Ford Elliott joins this opinion.
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2
Appellant’s reliance on Commonwealth v. Dobbs, 682 A.2d 388
(Pa.Super. 1996), is misplaced. Merger law has evolved substantially since
that case was decided. Instead, Section 9765 and the “elements” approach
to merger govern Appellant’s issue. See Quintua, supra; Coppedge,
supra.
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Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
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