J-A22029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD I. HORNING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.