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 

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* 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 

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(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 postsentence 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).

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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. ShamsudDin, 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 nonwaivable 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

 

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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. 

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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