Com. v. Hodges, E. , 193 A.3d 428 ( 2018 )


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  • 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:
    J-S22024-18
    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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    J-S22024-18
    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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    J-S22024-18
    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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