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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 07, 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 memorandum.
       Judge Olson concurs in the result.
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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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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




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