Commonwealth v. Hodges

193 A.3d 428

COMMONWEALTH of Pennsylvania, Appellee

v.Ellis HODGES, Appellant

No. 2780 EDA 2017

Superior Court of Pennsylvania.

Submitted April 2, 2018

Filed July 16, 2018

Reargument Denied September 5, 2018

Patrick J. Connors, Public Defender, Steven M. Papi, Public Defender, and Max J. Orenstein, Public Defender, Media, for appellant.

Katayoun M. Copeland, Assistant District Attorney, and William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, appellee.

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

OPINION BY STABILE, J.:

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 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 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.

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, 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).

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 generallyCommonwealth 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 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...