J-S22024-18


                                  2018 PA Super 206

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    ELLIS HODGES

                             Appellant                   No. 2780 EDA 2017


         Appeal from the Judgment of Sentence imposed June 27, 2017
              In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0000668-2017


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

OPINION BY STABILE, J.:                                    FILED JULY 16, 2018

        Appellant, Ellis Hodges, appeals from the judgment of sentence imposed

in the Court of Common Pleas of Delaware County following his conviction of

simple assault, 18 Pa.C.S.A § 2701.1           While simple assault is generally a



____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1 The relevant provisions of 18 Pa.C.S.A. § 2701 (Simple Assault) are as
follows:

(a) Offense defined.-- Except as provided under section 2702 (relating to
aggravated assault), a person is guilty of assault if he:
     (1) attempts to cause or intentionally, knowingly or recklessly
     causes bodily injury to another;
     ***
(b) Grading.--Simple assault is a misdemeanor of the second degree unless
committed:
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second-degree misdemeanor (M2), it is a third-degree misdemeanor (M3) if

the scuffle is entered into by mutual consent. 18 Pa.C.S.A. § 2701(b)(1).

Appellant contends the trial court imposed an illegal sentence because there

was no factual finding by the jury that Appellant’s scuffle with complainant,

Nicquita Tippens-Buggs, was not entered into by mutual consent. Following

review, we affirm.

       In its Rule 1925(a) opinion, the trial court included the following factual

background:

       The sole direct evidence of that which occurred on August 21,
       2016, was Ms. [Nicquita] Tippens-Buggs’s trial testimony. Ms.
       Tippens-Buggs and [Appellant] at that time had enjoyed a
       fourteen (14) year relationship and were the parents of a son. As
       recounted by Ms. Tippens-Buggs, she and [Appellant] were having
       a verbal argument about payments then due related to his work
       vehicle when [Appellant] grabbed her around the throat with such
       force that she was unable to breathe. Ms. Tippens-Buggs then
       began to punch and scratch at [Appellant] in an effort that he
       loosen his choke hold which caused her to fall backwards to the
       floor as [Appellant] yet maintained his grip about her throat. She
       while on the floor punched and kicked at [Appellant] in a
       continuing and finally successful attempt to break his choke hold;
       however, [Appellant] on letting go of Ms. Tippens-Buggs’s throat
       then commenced to kick and punch her about the face, chest,
       arms, and neck before fleeing the home immediately subsequent
       to concluding his multi-faceted assault. Ms. Tippens-Buggs at no
       time prior to [Appellant] commencing his attack had initiated with
       him in any manner physical contact.

       The trial evidence suggests at best Ms. Tippens-Buggs willingly
       engaged [Appellant] in a verbal disagreement driven by certain
____________________________________________


       (1) in a fight or scuffle entered into by mutual consent, in which
       case it is a misdemeanor of the third degree (M3)[.]



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      financial concerns, but most certainly does not demonstrate she
      consented to the ensuing physical melee clearly and solely
      prompted by [Appellant’s] unilateral decision to palpably escalate
      the situation when he grabbed her around the throat employing
      enough strength that Ms. Tippens-Buggs’s breathing became
      significantly impaired.

Trial Court Rule 1925(a) Opinion, 12/8/17, at 23 (references to Notes of

Testimony omitted).

      Following a preliminary hearing, the trial court dismissed a charge of

aggravated assault but bound over charges of simple assault, recklessly

endangering another person (REAP), and terroristic threats.           The case

proceeded to trial before a jury in May 2017. On May 8, 2017, prior to jury

selection, the Commonwealth moved to correct the grading of the simple

assault charge from an M1 to an M2 and downgrade the terroristic threats

charge from a third-degree felony to an M1. Defense counsel stated on the

record that he had no objection to the downgrades as proposed by the

Commonwealth. Notes of Testimony, Trial, 5/8/17, at 3-4.

      In a robing room discussion at the close of the Commonwealth’s case,

the trial court considered proposed jury instructions. Appellant’s counsel did

not request a jury instruction on mutual consent and no mutual consent

instruction was given by the trial court when it explained the elements of

simple assault to the jury. Notes of Testimony, 5/10/17, at 106-10; 144-45.

Trial counsel did not lodge any objection to the trial court’s instructions. Id.

at 151.




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      On May 10, 2017, the jury returned a verdict of guilty on the simple

assault charge and acquitted Appellant of REAP and terroristic threats. In the

course of discussions regarding pre-sentencing matters, Appellant’s counsel

acknowledged that his client’s conviction for simple assault was graded as an

M2. Id. at 159.

      On May 22, 2017, Appellant file a “Post-Trial Motion for Dismissal”

claiming the verdict was inconsistent and the evidence was insufficient to

support the simple assault conviction. By order entered May 24, 2017, the

trial court denied the motion.

      A sentencing hearing was held on June 27, 2017. There was no mention

of mutual consent or grading of simple assault as an M3 during the hearing.

Rather, the trial court explained that it had reviewed the presentencing reports

as well as the psychological and substance abuse evaluations, and had given

due consideration to the sentencing factors and the testimony offered at the

hearing, all as they “relate[] to Count 1, Simple Assault, a second degree

misdemeanor.” Notes of Testimony, Sentencing, 6/27/17, at 16. The court

then imposed a sentence of one to two years in a state correctional institution.

Id.

      On July, 5, 2017, Appellant filed a “Post-Sentencing Motion” asserting

“the charge of simple assault should be dismissed post trial due to lack of

credible evidence.”   Post-Sentence Motion, 7/5/17, at ¶ 5 (capitalization

omitted). Appellant did not challenge the grading of the offense and, in fact,


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acknowledged       Appellant     had    been     “sentenced     to   simple   assault—

misdemeanor of the second degree.” Id. at ¶ 3 (capitalization omitted).

       By order entered July 7, 2017, the trial court denied Appellant’s post-

sentence motion.        This timely appeal followed.2         The trial court directed

Appellant to file a Rule 1925(b) statement of errors complained of on appeal.

Appellant complied, asserting his intention “to complain of the following on

appeal: The sentence for simple assault, graded as a second-degree

misdemeanor, should be vacated. The offense should have been graded as a

third-degree misdemeanor since there was mutual combat.” Rule 1925(b)

Statement, 11/1/17, at 1 (emphasis in original).




____________________________________________


2 Upon the filing of this appeal, a motions panel of this Court issued an order
to show cause why the appeal should not be quashed as untimely filed on
August 9, 2017 from a June 27, 2017 judgment of sentence made final upon
denial of post-sentence motions on July 7, 2017. In response, appellate
counsel explained that Appellant filed a pro se notice of appeal that was timely
under the prisoner mailbox rule. Trial counsel was still counsel of record at
the time. Although he was represented by counsel, Appellant was not
precluded from filing a pro se notice of appeal.             As recognized in
Commonwealth v. Williams, 151 A.3d 621 (Pa. Super. 2016), “this Court
is required to docket a pro se notice of appeal despite Appellant being
represented by counsel, based on the rationale in [Commonwealth v. Ellis,
626 A2d 1137, 1138 (Pa. 1993)] and I.O.P. 65.24.” Id. at 624. In Ellis, our
Supreme Court noted that while there is no right to hybrid representation, an
appellant does have a right of appeal under Article 5, § 9 of the Pennsylvania
Constitution.

The motions panel referred the matter to this merits panel. Upon review, we
conclude the notice of appeal was timely filed.



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      In response, the trial court issued a 26-page opinion, concluding the

“appellate complaint should be deemed waived and even should no manner of

waiver be found, his conviction and judgment of sentence should otherwise

be affirmed.” Trial Court Rule 1925(a) Opinion, 12/8/17, at 26. The court

first suggested Appellant’s sole issue on appeal “should be deemed waived for

his inability to adequately articulate a cogent error assignment.” Id. at 7.

The court indicated that Appellant failed “to present a meaningful claim leaving

this court at best to speculate that which he is maintaining for purposes of the

pending appeal and such constrained guesswork should result in his proffered

appellate complaint’s waiver.” Id. The court elaborated, noting:

      Because this error assignment, even when viewed in the case
      record context, is utterly devoid of any particularized grounds
      offering the most modest explanatory suggestion(s), this court is
      compelled to decipher which of the possible following attacks
      [Appellant] may on appeal be advancing. Perhaps [Appellant] is
      maintaining this court should have in some manner sua sponte
      intervened during pre-trial proceedings and directed the simple
      assault allegation (count 1) be listed as and/or downgraded to a
      third degree misdemeanor. It could be [Appellant] is asserting
      this court erred at trial by not sua sponte reducing the grading of
      the simple assault allegation (count 1) to a third degree
      misdemeanor. [Appellant] may be contending this court when
      providing to the jury its final legal instructions should have sua
      sponte charged the jurors about third degree misdemeanor simple
      assault. See generally Pa. SSJI (Crim) 15.2701F. Alternatively,
      [Appellant] is possibly arguing this court should have as part of
      the post-verdict litigation, the sentencing hearing, and/or in
      addressing the defense’s post-sentence motion sua sponte
      regraded the simple assault count (1) to a third degree
      misdemeanor. See generally Commonwealth v. Shamsud-
      Din, 995 A.2d 1224 (Pa. Super. 2010) and Commonwealth v.
      Norley, 55 A.3d 526 (Pa. Super. 2012). Finally, [Appellant] could
      very well be averring on appeal all of these potential appellate


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      complaints or some combination of the same. See Statement of
      Matter Complained.

      The wholesale lack of specificity by [Appellant] represents his
      complete failure to follow the dictates of Pa.R.A.P. 1925(b)[4] and
      this court’s synonymous instruction via its relevant orders
      (September 18, 2017, and October 2, 2017) to “ ‘ . . . concisely
      identify each ruling or error that appellant intends to challenge
      with sufficient detail to identify all pertinent issues for the
      judge.’ Pa.R.A.P. 1925(b)[4] (Emphasis added).” See Orders
      dated September 19, 2017, and October 2, 2017.

      Having so frustrated its ability to review in the proper rubric of the
      case record that which he complains for purposes of the pending
      appeal, this court must guess what [Appellant] is referencing
      through his error assignment and such constrained conjecture
      should occasion his appellate complaint’s full waiver.

Id. at 7-9 (footnotes omitted) (emphasis in original).           The trial court

painstakingly proceeded to explore each of the possible scenarios it believed

Appellant might have claimed as error. The court determined each “error”

lacked merit, even if it were not waived.

      We agree with the trial court that Appellant’s Rule 1925(b) statement

failed to present a meaningful claim and left the court to speculate as to

Appellant’s basis or bases for relief. As such, a finding of waiver is warranted.

However, a finding of waiver based on a vague Rule 1925(b) statement does

not end our review in this case.     Despite Rule 1925(b)(vii)’s directive that

“issues not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived,” see Commonwealth v.

Lord, 719 A.2d 306, 309 (Pa. 1998), this Court has determined that a

challenge to legality of sentence is cognizable, even in the absence of a Rule


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1925(b) statement.     See, e.g., Commonwealth v. Edrington, 780 A.2d

721, 723 (Pa. Super. 2001). Further, despite Pa.R.A.P. 302(a)’s mandate that

“[i]ssues not raised in the lower court are waived and cannot be raised for the

first time on appeal[,]” Rule 302(a)’s prohibition does not apply to claims of

an illegal sentence. See, e.g., Commonwealth v. Barnes, 151 A.3d 121,

122 (Pa. 2016). “[L]egality–of–sentence claims are not subject to the

traditional waiver doctrine.” Commonwealth v. Wolfe, 140 A.3d 651, 660

(Pa. 2016).

      In his brief filed with this Court, Appellant presents a single issue for our

consideration:

      Whether the sentence for simple assault, graded as a
      misdemeanor of the second degree, is illegal since there was no
      factual finding by the jury that the fight or scuffle was entered into
      without mutual consent?

Appellant’s Brief, Statement of Question Involved, at 5. As phrased, Appellant

now specifically asserts that the trial court imposed an illegal sentence. As

this Court has explained:

      Our scope and standard of review for illegal sentence claims is as
      follows:

         The scope and standard of review applied to determine the
         legality of a sentence are well established. If no statutory
         authorization exists for a particular sentence, that sentence
         is illegal and subject to correction. An illegal sentence must
         be vacated. In evaluating a trial court’s application of a
         statute, our standard of review is plenary and is limited to
         determining whether the trial court committed an error of
         law.




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Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (quoting

Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2002)).

      Appellant does not argue the lack of statutory authorization for his

sentence.   Rather, he asserts he is raising “a variation of his initial non-

waivable illegal sentencing claim – specifically that his sentence is illegal since

the offense of simple assault cannot be graded as a second-degree

misdemeanor absent factual determination that the fight was entered into

without mutual consent.” Appellant’s Brief at 10. Although Appellant’s “illegal

sentence” claim is not waived on appeal, it nonetheless fails.

      Appellant contends his sentence is illegal because there was no factual

finding that the fight was entered into without mutual consent. However, no

such finding was required. In Commonwealth v. Norley, 55 A.3d 526 (Pa.

Super. 2012), an appeal involving a simple assault conviction following a

bench trial, this Court found guidance in our Supreme Court’s decision of

Commonwealth v. Bavusa, 832 A.2d 1042 (Pa. 2003), for guidance. The

Court stated:

      In Bavusa, our Supreme Court held that the existence of
      mitigating factors permitting a lesser grade of an offense does not
      impose upon the Commonwealth an additional evidentiary burden
      of negating that mitigating factor to obtain a conviction of the
      more severe grade of the same offense.

Id. at 530 (citing Bavusa, 832 A.2d at 1052).

      In Bavusa, the statute at issue was 18 Pa.C.S.A. § 6106(a) (carrying a

concealed firearm without a license). Under Section 6106(a)(1) generally, a


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person who carries a concealed firearm without a valid license commits a

felony of the third degree. However, that same subsection notes an exception

for a person otherwise eligible to possess a license if that person has not

committed any other criminal violation. In that case, the person commits a

misdemeanor of the first degree rather than a felony of the third degree. See

18 Pa.C.S.A. § 6106(a)(2). The Supreme Court ruled that “the availability in

subsection (2) of a downgrade from third degree felony to first degree

misdemeanor if certain ‘personal status factors’ exist (license eligibility and

never having committed any other crime) does not create new elements of

the crime in question (carrying a concealed firearm).” Norley, 55 A.3d at 530

(citing Bavusa, 832 A.2d at 1055).        To be convicted of the crime, the

Commonwealth must show that the individual carried an unlicensed concealed

firearm. “The ‘personal status factors’ are not elements of the crime, but are

instead merely grading factors.” Id. Similarly,

      Section 2701(b)(1) does not require the Commonwealth to
      disprove that the offending conduct occurred during a mutual fight
      or scuffle to establish a simple assault. That the offending conduct
      occurred during a mutual fight or scuffle is relevant only with
      respect to the subsequent grading of the offense.

      In this case, because section 2701(a)(1) sets forth the elements
      of the crime of simple assault, and because a mutual fight or
      scuffle is merely a grading consideration, the Commonwealth was
      not required to charge Norley separately with simple assault as
      second degree and third degree misdemeanors. To prove that
      Norley committed a simple assault, the Commonwealth did not
      have to prove that Norley’s offending actions occurred other than
      in a mutual fight or scuffle. Instead, once the Commonwealth
      proved that Norley committed a simple assault pursuant to
      subsection 2701(a)(1), the trial court had the discretion to grade

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        that offense as a second or third degree misdemeanor pursuant
        to the dictates of subsection 2701(b)(1) and sentence him
        accordingly.

Id. at 530-31 (emphasis in original). As in Norley, it was not necessary that

there     be   a   factual   finding   involving   mutual   consent.   Rather,   the

Commonwealth was obligated to prove that Appellant was guilty of simple

assault under the provisions of § 2701(a). The jury determined that he was

guilty of that offense. The trial court’s imposition of a sentence based on that

determination—a sentence within the guidelines for that offense—was free of

error.3


____________________________________________


3     As noted above, Appellant was sentenced at the conclusion of a June
27, 2017 sentencing hearing. Because there was no mention of grading the
simple assault as an M3, the trial court was not called upon to exercise its
discretion in grading the offense as a “second vs. third” degree misdemeanor,
as authorized by Norley. Similarly, there was no basis for even considering
whether Appellant proved mutual consent to warrant grading the simple
assault as an M3.
      In Bavusa, our Supreme Court explained that “[w]hether the offense
should be graded as a felony or a misdemeanor is a matter to be decided at
sentencing.” Bavusa, 832 A.2d at 1056. Under the facts of that case, it was
not necessary for the Court to determine which party bore the burden of
proving the appropriate grading. Id. Our Court subsequently addressed the
burden of proof in Commonwealth v. Coto, 932 A.2d 933 (Pa. Super. 2007),
another firearms case, and concluded:
      [T]he Legislature intended to establish an opportunity for a
      defendant to present mitigating factors at sentencing following a
      conviction under 18 Pa.C.S.A. § 6106(a), which the
      Commonwealth would then be free to attempt to rebut. Thus, we
      hold that the defendant carries the burden to prove, by a
      preponderance of the evidence, that the exception under Section
      6106(a)(2) applies, utilizing some or all of the factors enumerated
      in 18 Pa.C.S.A. §§ 6105 and 6109.



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       We acknowledge Appellant’s assertion that his sentence implicates

Apprendi v. New Jersey, 530 U.S. 466 (2000). His assertion lacks merit.

Apprendi directs that any fact, other than the fact of a prior conviction, that

increases the prescribed range of penalties for a crime must be submitted to

a jury and proved beyond a reasonable doubt. Id. at 490. However, the jury

here found Appellant guilty of simple assault graded—as charged—as an M2.

A finding of mutual consent would mitigate the penalty, not increase it. As

Judge McEwen recognized in Commonwealth v. Shamsud-Din, 995 A.2d

1224 (Pa. Super. 2010), Apprendi is not implicated when the penalty would

be decreased rather than increased. See Shamsud-Din, 995 A.2d at 1231

(McEwen, concurring). Appellant’s suggestion that the jury was required to

reach a determination of a question of fact “necessary to increase the

statutory maximum penalty” for simple assault “from one year of confinement

to two years,” Appellant’s Reply Brief at 3 (emphasis in original), is defeated

by the plain language of Section 2701(b), which dictates that the simple

assault is an M2 unless entered into by mutual consent, in which case it is a

M3. Again, a decrease is at issue, not an increase in penalty. Apprendi is

inapposite.

____________________________________________


Id. at 940. By extension, a defendant similarly carries the burden at
sentencing to prove the application of the exception at issue here—mutual
consent under 18 § 2701(b)(1)—in order to warrant a sentence for simple
assault as an M3. Appellant clearly failed to do so, as a reading of the
sentencing hearing transcript confirms.



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      Under the guise of claiming an illegal sentence, Appellant is actually

arguing the Commonwealth failed to disprove mutual consent, resulting in an

illegal sentence for simple assault as an M2. We reject his assertion under

Norley and Bavusa. Further, just as in Commonwealth v. Witmayer, 144

A.3d 939 (Pa. Super. 2016), in which the appellant’s challenge related to a

missing element of the crime of involuntary deviate sexual intercourse,

      [a]ppellant's allegation does not pertain to the legality of his
      sentence. He does not suggest that his sentence exceeded the
      mandatory minimum, should have been merged with another
      offense, or was imposed under an infirm mandatory minimum
      sentencing provision. He, instead, is asserting that an element of
      the crime in question was not proven. A position that the
      Commonwealth failed to prove all elements of a crime is obviously
      a challenge to the sufficiency of the evidence supporting a
      conviction and not to the legality of the sentence imposed upon
      that conviction.

Id. at 945.

      While Appellant insists his appeal is based on an illegal sentence, rather

than a challenge to sufficiency of the evidence, his 1925(b) statement

suggests otherwise.    Again, in that statement, Appellant asserted, “The

sentence for simple assault, graded as a second-degree misdemeanor, should

be vacated.    The offense should have been graded as a third-degree

misdemeanor since there was mutual combat.” Rule 1925(b) Statement at 1.

We have already determined that Appellant failed to preserve any issues in

his Rule 1925(b) statement by virtue of his “wholesale lack of specificity.” See

Trial Court Rule 1925(a) Opinion, 12/8/17, at 8. However, even if his issue




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were not waived, a sufficiency of evidence claim would fail.       Our Supreme

Court has explained:

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted).   We must evaluate the entire record and we must consider all

evidence actually received. Commonwealth v. Beasley, 138 A.3d 39, 45

(Pa. Super. 2016) (quoting Commonwealth v. Hansley, 24 A.2d 410, 416

(Pa. Super. 2011) (additional citations omitted)).        In passing upon the

credibility of witnesses and the weight of the evidence, the trier of fact is free

to believe all, part or none of the evidence. Id.

      The Commonwealth presented two witnesses at trial, Ms. Tippens-Buggs

and the investigating officer. Admitted exhibits include photographs depicting

injuries sustained by Ms. Tippens-Buggs.        Appellant did not present any

evidence at trial.

      Again, a person is guilty of simple assault is he intentionally, knowingly

or recklessly causes bodily injury to another.      18 Pa.C.S.A. § 2701(a)(1).

Viewing the evidence in the light most favorable to the Commonwealth as

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verdict winner, the evidence is sufficient to establish, beyond a reasonable

doubt, that Appellant intentionally, knowingly or recklessly caused bodily

injury to Ms. Tippens-Buggs. Whether or not there was mutual consent is of

no moment. A finding of mutual consent would affect only the grading of the

offense, not the simple assault conviction itself. See Norley. Therefore, even

if a sufficiency claim has been properly preserved and presented on appeal, it

would not afford Appellant any basis for relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/18




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