PA Superior Court: Aggravated Assault (F1) and Aggravated Assault (F2) Do Not Merge

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Vializ-Rios, again holding that aggravated assault as a felony of the first degree does not merge for sentencing purposes with aggravated assault as a felony of the second degree. The Court held that F2 aggravated assault is not a lesser included offense of aggravated assault as a first degree felony. Therefore, a court may sentence a defendant to consecutive sentences following a conviction for both offenses even where the convictions arise out of the same conduct.

The Facts of Vializ-Rios

In a recent appellate decision, the Pennsylvania Superior Court affirmed the judgment of sentence imposed on the defendant following his convictions stemming from an alleged violent assault against the mother of his one-year-old child. The incident was prosecuted in Lancaster County, Pennsylvania.

During the altercation, which began inside a vehicle parked at a convenience store, the defendant repeatedly struck the complainant in the face with a closed fist and subsequently hit her with a glass bottle. The attack resulted in significant injuries, including substantial facial trauma, loose teeth, and a fracture of her alveolar ridge—a bone critical for supporting teeth. The complainant required stitches, dental realignment, and a splint, forcing her onto an all-liquid diet for six weeks. She continues to require ongoing medical treatment.

Following a jury trial, the defendant was convicted of aggravated assault (causing serious bodily injury) as a felony of the first degree, aggravated assault (causing bodily injury with a deadly weapon) as a felony of the second degree, recklessly endangering another person, endangering the welfare of a child, simple assault, and stalking. He received a sentence of 7½ to 15 years for aggravated assault causing serious bodily injury, with additional concurrent and consecutive sentences for the remaining charges. The defendant appealed to the Pennsylvania Superior Court.

The Issue on Appeal

On appeal, the defendant argued primarily that the two aggravated assault charges should have merged for sentencing purposes because they arose from the same criminal act—striking the complainant with a bottle. Under Pennsylvania law, charges merge for sentencing purposes when two offenses arise from a single criminal act and when all statutory elements of one offense are fully contained within the other offense. However, the Superior Court rejected the argument in this case, citing the sentencing statute (42 Pa.C.S. § 9765), which requires examining the elements of each offense independently. The court held that aggravated assault causing serious bodily injury and aggravated assault with a deadly weapon contain distinct statutory elements. Specifically, aggravated assault causing serious bodily injury involves causing severe harm intentionally, knowingly, or recklessly, without regard to the method used, while aggravated assault with a deadly weapon explicitly requires the use of such a deadly weapon and requires bodily injury rather than serious bodily injury. Due to these critical differences, the two charges do not merge under Pennsylvania law.

Additionally, the defendant challenged the trial court's authority to issue a no-contact order regarding the complainant and their child. Although the trial court initially issued a no contact order, the trial court later vacated the order, recognizing it lacked jurisdiction to impose such conditions on an individual serving a state prison sentence. That authority rests solely with the Pennsylvania Department of Corrections and the Parole Board.

Ultimately, the Superior Court affirmed, finding that the trial court could sentence the defendant to consecutive sentences because aggravated assault (F1) and aggravated assault (F2) are separate offenses which do not merge.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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