                            [J-96-2019] [OAJC: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                    :   No. 25 MAP 2019
                                                  :
                      Appellee                    :   Appeal from the Order of Superior
                                                  :   Court at No. 1893 MDA 2017 dated
                                                  :   August 31, 2018 Affirming the Order
               v.                                 :   dated October 26, 2017, filed
                                                  :   October 31, 2017, of the Lycoming
                                                  :   County Court of Common Pleas,
 TODD DANIEL HOOVER,                              :   Criminal Division, at No. CP-41-CR-
                                                  :   2120-2012
                      Appellant                   :
                                                  :   ARGUED: November 19, 2019

                                  CONCURRING OPINION

JUSTICE WECHT                                                   DECIDED: May 19, 2020
       I agree with the learned Opinion Announcing the Judgment of the Court (“OAJC”)

that, as a general matter, 42 Pa.C.S. § 5505 authorizes a trial court to modify or to rescind

an order terminating a sentence of intermediate punishment, so long as the parties had

notice before the original order was vacated and so long as the rescinded order had not

yet been appealed. That said, I disagree with the OAJC’s assessment of the trial court’s

utilization of that authority in this case. Because the record contains no evidence to

support its decision, the trial court’s decision to rescind its order terminating Todd

Hoover’s intermediate punishment sentence necessarily was an abuse of discretion.

       Nonetheless, I agree with the OAJC’s ultimate conclusion that, although the statute

technically authorized the trial court’s rescission of its order terminating Hoover’s

intermediate punishment sentence, the effect of that rescission violated Hoover’s due

process rights. Thus, I concur in the result reached by the OAJC.

       Section 5505 provides that, “[e]xcept as otherwise provided or prescribed by law,

a court upon notice to the parties may modify or rescind any order within 30 days after its
entry, notwithstanding the prior termination of any term of court, if no appeal from such

order has been taken or allowed.” 42 Pa.C.S. § 5505. By its own terms, the statute is

broad in its scope, containing no prescribed limitations on the type or character of orders

that are subject to modification or revocation. Indeed, the statute empowers trial courts

to alter or revoke “any” order within thirty days of its issuance. Clearly, then, the order at

issue in this case—one that released Hoover from intermediate punishment—constitutes

such an order and falls within the purview of the statute, provided that the other statutory

criteria are met. When the trial court subsequently revoked that order, the parties had

been notified, the order had not yet been appealed, and thirty days had not elapsed. And,

as the OAJC explains, there exists no other statute or rule in Pennsylvania that otherwise

would preclude vacatur of the type of order revoked in this case. See OAJC at 8-9.

       The General Assembly’s use of the word “any” plainly demonstrates its intent to

subject every type of court order to modification or revocation, with no exceptions,

including judgments of sentence.       However, that an order terminating intermediate

punishment can be revoked or modified under Section 5505 does not mean that it should

be. To the contrary, in my view, courts should exercise considerable restraint in their

discretionary invocation of Section 5505 under these, and similar, circumstances. As

Judge Kunselman cogently pointed out in her dissent below, Section 5505 was enacted

with the intent of providing trial courts with the authority to correct errors or reconsider

factual determinations before an appeal is taken, in part, one must assume, in an effort

to conserve judicial resources by stemming off a costly and time-consuming appeal.

Commonwealth v. Hoover, No. 1827 MDA 2017, 2018 WL 4215020, Dissenting

Memorandum, slip op. at 4 (Pa. Super. Aug. 31, 2018) (Kunselman, J., dissenting). The

statute was not enacted to provide trial courts with an unrestrained mechanism to

reconsider their earlier exercises of discretion, nor was the statute meant to afford courts




                             [J-96-2019] [OAJC: Todd, J.] - 2
an opportunity to run the order, or the defendants subject thereto, through a thirty-day

test period to ensure that the order was effective or wise, or that the particular defendant

was deserving of, or capable of complying with, the terms of the order. It takes little

imagination to envision how this power can become troublesome when wielded in a

manner contrary to its intent.     Fortunately, the OAJC’s due process ruling—which I

understand to require trial courts to provide specific notice to defendants about the terms

and conditions that could result in vacatur of orders releasing those defendants from

criminal sentences—will go a long way toward curbing the potential for abuse.

       The power to modify or revoke orders is not unchecked. Although this Court has

not yet opined on the matter, it has become well-established in Pennsylvania law that

Section 5505 is a discretionary authority, albeit a broad one, and thus subject to an abuse

of discretion standard of review upon appeal. See Haines v. Jones, 830 A.2d 579, 584

(Pa. Super. 2003) (“Under [S]ection 5505, the trial court has broad discretion to modify or

rescind an order, and this power may be exercised sua sponte or invoked pursuant to a

party’s motion for reconsideration.”); Justice v. Justice, 612 A.2d 1354, 1357 (Pa. Super.

1992) (per curiam) (explaining that invocation of Section 5505 is “almost entirely

discretionary”). “Discretion is abused when the course pursued represents not merely an

error of judgment, but where the judgment is manifestly unreasonable or where the law

is not applied or where the record shows that the action is a result of partiality, prejudice,

bias or ill will.” Commonwealth v. Baumhammers, 960 A.2d 59, 86 (2008) (internal

quotation marks and citation omitted).

       It is axiomatic that a judgment, even a discretionary one, must be based upon the

facts of record presented to the jurist. Our courts consistently have held that a trial court

abuses its discretion by rendering judgments based upon facts dehors the record, or facts

that the court independently investigated and uncovered. See M.P. v. M.P., 54 A.3d 950,




                             [J-96-2019] [OAJC: Todd, J.] - 3
955 (Pa. Super. 2012); Ney v. Ney, 917 A.2d 863, 866-67 (Pa. Super. 2007); and Eck v.

Eck, 475 A.2d 825, 827 (Pa. Super. 1984). Hoover relies upon these cases in asserting

that the trial court’s decision to revoke the order terminating his intermediate punishment

was an abuse of discretion, because, he correctly points out, the revocation hearing was

not transcribed. Thus, when an appellate court reviews the certified record generated in

this case, no evidence supporting the trial court’s decision, including the fact that Hoover

was arrested for DUI on the date that the trial court released him from intermediate

punishment, can be found. I agree. The record does not support the court’s decision.

       The    OAJC rejects Hoover’s reliance upon M.P. and Eck, finding them

distinguishable because neither case involved Section 5505, and because, in both cases,

“the parties had no notice of, or opportunity to respond to,” the extra-judicial evidence

relied upon by the trial courts in those cases.” OAJC at 10. Noting that Hoover had notice

of the evidence—his new DUI arrest—that purportedly formed the basis of the trial court’s

decision in this case, the OAJC concludes that neither M.P. nor Eck influence this case.

Respectfully, I disagree, as I do not believe that notice of evidence is the dispositive

aspect of this analysis.

       In Eck, the Superior Court reviewed a trial court’s decision to overrule a divorce

master’s recommendation to award alimony to the wife in the dispute. Eck, 475 A.2d at

827. The master had recommended that the wife be awarded alimony, in part, because

she cared for her elderly, blind mother. Id. at 826. The husband filed exceptions to the

alimony award, which the trial court granted, denying alimony to the wife. Id. at 827. In

the trial court’s opinion in support of its order, the trial court explained that, among other

things, the wife had failed to demonstrate that she could not obtain meaningful

employment due to the onus of caring for her blind mother, a burden that she assumed

voluntarily. More importantly for present purposes, the trial court also had learned by a




                             [J-96-2019] [OAJC: Todd, J.] - 4
letter that was not a part of the evidentiary record that the wife’s mother had passed away

since the master’s hearing and recommendation. Id.

       The Superior Court found that the trial court’s decision constituted an abuse of

discretion. To reach this decision, the Superior Court refused to consider the evidence

of the wife’s mother’s passing, predicating that ruling upon the well-founded axiom that

“a trial court may not consider facts or evidence dehors the record in making its

determination.” Id. (citing Commonwealth ex rel. Bowers v. Widrig, 464 A.2d 1299, 1302

(Pa. Super. 1983)).      With regard to the role of an appellate court under such

circumstances, the Superior Court then emphasized that a reviewing court may not

“uphold a trial court’s order on the basis of off-the-record facts.” Id. (citing In re Frank,

423 A.2d 1299 (Pa. Super. 1980)). The court proceeded to review the of-record evidence,

and found that the trial court had abused its discretion in overruling the master’s well-

founded recommendation. Id. at 828. Notably, the wife undeniably would have been on

notice that her mother had died, yet that notice did not render the otherwise extra-record

information available to be used against the wife, as today’s OAJC would do against

Hoover.

       In M.P., a mother filed a custody petition seeking permission to take her daughter

out of the country to visit relatives. M.P., 54 A.3d at 951. The father opposed the petition

and, after a hearing, the trial court entered an order holding, “without any explanation,”

that the mother was prohibited from taking the child abroad. Id. at 952. The reasons for

the rejection became clear in the trial court’s opinion, in which the court explained that the

mother had failed to prove that the custody order in place would have been afforded

comity by the foreign country via the Hague Convention on the Civil Aspects of

International Child Abduction treaty. Id. at 954. Neither party had presented any evidence

on the record regarding this treaty. The trial court, on its own volition, had engaged in




                             [J-96-2019] [OAJC: Todd, J.] - 5
internet research and learned that the country to which the mother sought to travel had

violated that particular treaty no less than four times. Id.

       The Superior Court found that the court’s independent research and acquisition of

information, and the subsequent decision based thereupon, was an abuse of discretion.

Id. at 955. As an additional point, the court noted that, “[e]ven if we were to conclude that

the court could take judicial notice” of the treaty information, Rule 201(e) of the

Pennsylvania Rules of Evidence required notice and an opportunity to be heard on a

court’s intent to take judicial notice of that fact. Id. However, the lack of notice to the

parties was not the driving factor in the Superior Court’s decision, as it had already

declared that the trial court had abused its discretion merely by relying upon evidence not

of-record. The notice discussion was offered as additional support for the Superior

Court’s already-rendered decision.

       Likewise, in Ney, a father sought a reduction in his child support obligations based

upon a reduction in his income. Ney, 917 A.2d at 866. The father had presented evidence

in support of his claim, as well as evidence that he was unable to find a higher-paying job.

Id. at 868. Despite this evidence, the trial court performed its own internet research and

apparently had found pertinent job openings.          The trial court admitted that it had

conducted its own research and questioned father about the openings that the court had

found while the father was testifying. Id. at 867. Although the trial court advised the father

about the information during the hearing, the Superior Court still found that the trial court’s

decision based upon its own research constituted an abuse of discretion. The parties

had neither submitted that information to the court, nor moved it into the evidentiary

record. Father’s obvious notice to the existence of the information later relied upon by

the trial court did not affect the Superior Court’s ruling in any manner.




                              [J-96-2019] [OAJC: Todd, J.] - 6
       What is evident from these cases is that notice is not, as the OAJC suggests,

dispositive of the question. To the contrary, notice was only used as supplemental

support to the court’s decision in M.P. A party’s knowledge that extra-record evidence or

information exists, or even knowledge that the trial court would base its decision on such

evidence, is not a litmus test for whether a party can establish an abuse of discretion.

Pennsylvania law, as I understand it, is clear.1 Either the evidence is of-record or it is not.

If it is not, any decision based upon that information constitutes a clear abuse of

discretion, and, as an appellate court, we may not uphold such a decision. Eck, 475 A.2d

at 827.

       Notice was not a prominent feature in any of these cases, and is not in my view a

fair distinguishing feature. Nor is the fact that neither Eck nor M.P. involved a modification

of an order pursuant to Section 5505, as the OAJC indicates. See OAJC at 10. At issue

is the general principle that an appellate court cannot uphold a decision that was based

upon facts not of-record. That well-established premise is not specific to any statute, nor

is it otherwise limited by subject matter. It applies to any claim that comes before an

appellate court. This one is not exempt merely because it is a criminal case instead of a

domestic relations case.2


1      As is evident throughout this opinion, the body of relevant cases is comprised
primarily of Superior Court cases, which are not binding on this Court. See In re Estate
of duPont, 2 A.3d 516, 524 (Pa. 2010). Nonetheless, because there are no cases from
this Court of which I am aware that conflict with those Superior Court decisions, and
because those cases are consistent with our other rules governing appellate law and
procedure, I consider that body of Superior Court precedent to be an accurate
representation of Pennsylvania law.
2     If the subject matter were a distinguishing feature as the OAJC suggests, then its
own analysis necessarily fails as well. This is because the only discussion of notice
appears in M.P., and the requirement for notice specifically arose from the Rules of
Evidence in the area of judicial notice. Thus, if bound to subject matter as the OAJC
would have it, the notice discussion would have no impact here because this case has



                              [J-96-2019] [OAJC: Todd, J.] - 7
       Nor can it be said that Hoover, as the non-moving party, had any burden to ensure

that the hearing was transcribed. He only incurred a burden after he received an adverse

ruling and then filed an appeal. His duty at that point only is to ensure that the record, as

was constructed in the court below, is complete, because anything not in that record does

not exist for appellate purposes. See Pa.R.A.P. 1921 Note (citing Commonwealth v.

Williams, 715 A.2d 1101, 1106 (Pa. 1998)). An appellant has a duty to order all transcripts

of proceedings that will facilitate appellate review. Pa.R.A.P. 1911. However, a non-

moving party has no obligation to ensure that the hearing is transcribed in the first place.

Hoover could only produce for the Superior Court and this Court that which was created

by the moving party (or, as can occur in Section 5505 cases, created by the trial court

sua sponte).

       Hoover, as appellant, can only forward to appellate courts that which exists. In this

case, he did so. As the OAJC highlights, “[f]or reason unknown, the hearing was not

conducted on the record.” OAJC at 3. For this reason, there was no transcript for Hoover

to order, and there is no evidence of-record that supports the trial court’s decision to

revoke its earlier order terminating Hoover’s intermediate punishment. Nor does it matter

that the reason for the trial court’s revocation—a DUI arrest—was obvious or known to

everyone. Cf. Jones v. Ott, 191 A.3d 782 (Pa. 2018) (finding a request for a jury charge

waived even though moving party filed a written point for charge and ultimately did not

receive the instruction, because the charging conference with the trial court was not

transcribed). All that matters is that the certified record before the court contains no

evidentiary support for the trial court’s decision. Consequently, I am unable to uphold the

trial court’s order, as it was a clear abuse of discretion.



nothing to do with a court taking judicial notice. As noted, however, subject matter is not
a distinguishing feature in this particular analysis.


                              [J-96-2019] [OAJC: Todd, J.] - 8
       Unlike the OAJC, which excuses the absence of an evidentiary record by relying

upon its newly-created notice rule, Justice Donohue would find that there exists evidence

in the certified record that would support the trial court’s rescission order.

       It is necessary to once more repeat what happened in this case. The trial court

held a hearing. At that hearing, I assume that there was evidence, testimony, stipulations,

arguments, or any combination of these typical forms of record builders. Based upon that

hearing, the trial court rescinded its earlier order releasing Hoover from intermediate

punishment. For whatever reason, and not because of anything Hoover did or did not do,

the hearing was not transcribed. Nonetheless, the trial court’s decision was predicated

upon what happened at that hearing. There now exists no way for this Court, or any

appellate court, to perform our traditional function, which is to review the record and

ensure that the trial court’s decision was not an abuse of discretion.

       Justice Donohue sidesteps this traditional analysis by relying upon two items that

appear on the docket in this case. First, she notes that the critical fact that has been

alleged against Hoover, that he was arrested for another DUI, appears in an order issued

by another judge.      Judge Lovecchio originally sentenced Hoover to the term of

intermediate punishment. However, for reasons unknown and presently immaterial,

Hoover’s petition to be released from the sentence was assigned to a different judge.

When Judge Lovecchio was asked to revoke the trial court’s release order, Judge

Lovecchio issued an order explaining that he was unable to do so as that order was issued

by a different judge. In so explaining, he mentioned Hoover’s alleged DUI.

       This hardly creates an evidentiary record that we can review for the present

purposes. To put it differently, Justice Donohue would find an evidentiary basis for one

trial court’s decision because another judge mentioned an alleged fact while explaining

why that judge could not address the merits of the petition that the other judge ultimately




                              [J-96-2019] [OAJC: Todd, J.] - 9
resolved after holding a hearing. I have found no cases in which this Court has authorized

such an expansive definition of what constitutes support for one trial court’s decision. The

argument might have some merit if the ruling trial judge did not conduct a hearing. But

that is not what happened here. There was a hearing, there was a ruling, and there was

no excuse for not transcribing the hearing. We do not typically allow parties to skate by

our rules so easily, and we should not do so here. See Jones v. Ott, supra.

       Second, Justice Donohue finds record support for the trial court’s ruling because

the trial court mentioned Judge Lovecchio’s order (again, not the order that disposed of

the petition, but instead an order explaining why he could not make the decision that is

now before us on appeal) in her Pa.R.A.P. 1925(a) opinion. This basis for excusing the

lack of an evidentiary record is even less compelling than the first. A Rule 1925(a) opinion

is an opportunity for a trial court to explain why it decided the way it did, and to identify

the information from the record created by the parties upon which the court relied in

making that decision. The opinion is based upon the record; however, the opinion itself

is not the record. To allow such supplementation and substitution would excuse the need

to create a record in the first instance.

       In my view, this is a straightforward appellate exercise. We must review a trial

court’s decision for an abuse of discretion. The hearing upon which the exercise of

discretion was based in this case is nowhere to be found in the record, and no amount of

notice renders the absence Hoover’s fault. That should end the matter, as it always has

in Pennsylvania appellate law. We should not go searching for evidence in the various

entries in the docket in order to try to remedy the gap in the record, especially when we

know there was a hearing and that the ruling trial judge relied upon it.

       In a footnote responsive to this concurring opinion, the learned OAJC now asserts

that, although it is the OAJC itself that has discussed (and rejected) the issue of abuse of




                             [J-96-2019] [OAJC: Todd, J.] - 10
discretion, this case does not even contain such an issue. See OAJC at 16-17 n.7

(maintaining that the issue in this case is whether the trial court has the authority to act at

all, “not its abuse of that authority”). The OAJC’s insistence that the abuse of discretion

question is not at issue in this case is, to say the least, confounding.          The OAJC

simultaneously resolves the question, then in a footnote asserts that the issue is not part

of the case, and then, in the same footnote, defends its analysis of the question it says is

not in the case. I disagree, because, as the OAJC’s own opinion makes plain, the issue

presented is (at least) two-fold: whether the trial court’s revocation of its termination order

was permitted by the authority vested in the court by Section 5505 and, if so, whether the

trial court’s decision to invoke that authority, or the manner in which it did so, was an

abuse of the discretion afforded by the statute. The OAJC answers both questions, and

so do I. That we reach opposing results on the latter question makes it no less a part of

this case.

       In the body of the opinion, the OAJC excuses the fact that the trial court neglected

to hold a hearing on the record by blaming Hoover, the non-moving party, because he

apparently had notice of the fact that drove the trial court’s decision. In footnote 7, the

OAJC once more maintains that M.P. and Eck support such a result. However, as

outlined above, neither case stands for that proposition. The consequence of erroneously

extrapolating such a rule is clear, and the resulting difficulty is evident. Because those

cases do not stand for what the OAJC says they stand for, Hoover at the time could not

have known that it somehow became his burden to force the moving party and the trial

court to install a court reporter and direct that reporter to transcribe the hearing. The

cases clearly and more naturally are read for the proposition that Hoover cites: that a

decision based upon evidence not of record cannot be upheld by an appellate court. This

is just such a case. But the OAJC turns those cases on their head, such that Hoover now




                             [J-96-2019] [OAJC: Todd, J.] - 11
loses his meritorious claim, and learns (along with all of us) that Hoover’s putative notice

of the operative fact shifted the burden to him. This has never been our law.

        There is considerable danger in going forward with such a rule. The debate will

now center on whether a defendant had notice of a fact that is not entered into the record

by the moving party. If an appellate court finds that the defendant did have such notice,

then a decision based thereupon can be upheld, despite clear language to the contrary

in Eck. The problem, though, is that notice does not create a record to review. When the

appellate court reviews the record to assess the trial court’s decision, there is still nothing

to review. And because notice of the fact apparently shifted the burden, the challenger,

regardless of the quality of the argument, necessarily loses. This effectively creates a

burden-shifting scheme that spawns a new form of waiver. This is the consequence of

the OAJC’s decision. The OAJC insists that this case is only about authority. But in

rejecting the abuse of discretion claim in the manner that it does, the OAJC manufactures

a new rule that lower courts will follow, a rule that will work to the detriment of many good

faith litigants.

        The OAJC concludes footnote 7 by stating that none of this matters because this

case is decided upon notice in the due process context, and not upon notice for record-

creation purposes. The OAJC misses the point. By deciding the abuse of discretion

question (incorrectly) along the way to its due process analysis, the OAJC creates a new,

unfortunate rule. Both notice issues are important questions of law, but they are not

questions that we should address when we are not compelled to do so. See In re Fiori,

673 A.2d 905, 909 (Pa. 1996) (explaining that courts should “adhere to the sound tenet

of jurisprudence that courts should avoid constitutional issues when the issue at hand

may be decided upon other grounds.”) (citation omitted). By maintaining that the due




                             [J-96-2019] [OAJC: Todd, J.] - 12
process claim renders the prior discussion of notice irrelevant, the OAJC gets things

backwards.

       As I would avoid the more complicated constitutional question in this case, I concur

in the result reached by the OAJC. That said, however, I fully agree with the OAJC’s well-

reasoned due process analysis. That analysis not only is correct, but also will ensure that

Section 5505 will not be used in a manner that exceeds its intent, and further will ensure

that trial courts afford defendants notice as to what conduct would constitute violations of

court orders.




                            [J-96-2019] [OAJC: Todd, J.] - 13
