AGGRAVATED ASSAULT & RECKLESSLY ENDANGERING ANOTHER PERSON DO NOT MERGE FOR SENTENCING PURPOSES
The PA Superior Court has decided the case of Commonwealth v. Cianci, No. 3459 EDA 2014 (December 23, 2015), holding that the offenses of Recklessly Endangering Another Person and Aggravated Assault do not merge for sentencing purposes.
Cianci and his live-in girlfriend were entertaining friends at their apartment during which time he became intoxicated. He assaulted her on over the course of a number of hours that night. The following day, a friend drove his girlfriend to the hospital to receive treatment for her injuries, which included an orbital blowout fracture, a swollen lip, and multiple bruises and scratches.
Cianci was charged and, following a two-day trial, a jury convicted him of aggravated assault, simple assault, and Recklessly Endangering Another Person. On February 5, 2013, the court sentenced Cianci 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 Recklessly Endangering Another Person. The Simple Assault charge merged for sentencing purposes.
Cianci appealed, arguing that his convictions for Recklessly Endangering Another Person and Aggravated Assault should have merged for sentencing purposes. He contended that merger is appropriate because identical facts supported both convictions and, all of the elements of Recklessly Endangering Another Person are included in the elements of Aggravated Assault.
Whether convictions for Recklessly Endangering Another Person and Aggravated Assault should have merged for sentencing purposes
Cianci’s convictions for Aggravated Assault and Recklessly Endangering Another Person do not merge for sentencing.
In sum, Cianci’s convictions for Aggravated Assault and Recklessly Endangering Another Person do not merge for sentencing because 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.
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 statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
To sustain a conviction for Recklessly Endangering Another Person, 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. And, 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. By contrast, to commit Recklessly Endangering Another Person, a person must recklessly engage in conduct which places or may place another person in actual danger of death or serious bodily injury.
Aggravated Assault contains an element missing from Recklessly Endangering Another Person, i.e. —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. That act would support a conviction for Recklessly Endangering Another Person, but not for Aggravated Assault. Additionally, unlike Aggravated Assault, Recklessly Endangering Another Person requires the element of actual danger of death or serious bodily injury. In other words, 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 Recklessly Endangering Another Person.
Therefore, Cianci’s sentence was affirmed by the Superior Court.
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