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, 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2705. 
J-S69005-15

- 2 -

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”) 
J-S69005-15

- 3 -

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 
J-S69005-15

- 4 -

(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 
J-S69005-15

- 5 -

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 
J-S69005-15

- 6 -

(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.

____________________________________________

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. 
J-S69005-15

- 7 -

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2015