Com. v. Horning, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD I. HORNING :
:
Appellant : No. 507 MDA 2020
Appeal from the Judgment of Sentence Entered February 18, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001071-2011
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 30, 2020
Appellant, Edward I. Horning, appeals from the judgment of sentence
entered on February 18, 2020, following the revocation of his probation. After
review, we remand with instructions.
The record reveals that on February 18, 2020, the trial court revoked
Appellant’s probation and imposed a new sentence. Appellant filed a timely
appeal, and the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his
Pa.R.A.P. 1925(b) statement, Appellant raised the following issues:
1. The evidence presented at Appellant’s revocation hearing was
insufficient to support the court’s finding that Appellant violated
his special conditions of probation. The Commonwealth did not
admit the alleged pornographic video into evidence. Rather, the
court relied solely on the Commonwealth’s testimony regarding
the content of that video. The court’s finding of the violation
necessarily required the court to determine if the video was
considered pornography. The test for such a determination is, “I
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know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184 (1964)
(Stewart, J., concurring). Because the Commonwealth failed to
admit the video into evidence, the court’s finding of that violation
was improper.
2. The court violated Appellant’s substantive due process rights
under the Fifth and Fourteenth Amendments to the United States
Constitution when it violated Appellant for his own thoughts. While
there are numerous special conditions for sex offenders, the
courts may not control or regulate one’s thoughts.
Pa.R.A.P. 1925(b) Statement, 5/1/20, at 1-2.
Our Supreme Court has explained that 42 Pa.C.S. § 9771 allows for
termination of supervision or modification of the conditions of probation at any
time. Commonwealth v. Foster, 214 A.3d 1240, 1249-1250 (Pa. 2019).
“Revocation of probation, however, is sanctioned only ‘upon proof of the
violation of specified conditions of the probation.’” Id. at 1250 (quoting 42
Pa.C.S. § 9771(b)) (emphasis omitted).
In its Statement in Lieu of Memorandum Opinion, the trial court found
that Appellant failed to request the notes of testimony from the February 18,
2020 hearing, and this failure resulted in waiver of the issues on appeal.
Statement in Lieu of Memorandum Opinion, 5/4/20, at 1. Our review of the
certified record supports the trial court’s conclusion that the transcripts were
not available when the trial court drafted its Statement in Lieu of Memorandum
Opinion on May 4, 2020. However, the record also reveals that on May 5,
2020, Appellant requested the February 18, 2020 notes of testimony, and on
May 19, 2020, they were filed in the trial court. Thus, the trial court now has
the benefit of the February 18, 2020 notes of testimony.
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In the interest of judicial economy, we remand this matter to the trial
court to draft a supplemental Pa.R.A.P. 1925(a) opinion addressing the issues
Appellant raised in his Pa.R.A.P. 1925(b) statement. The trial court shall file
its opinion within thirty days from the date this Memorandum is filed.
Case remanded with instructions. Panel jurisdiction retained.
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