Furthermore, relevant to the issue presently before this Court, Judge Kunselman observed that, when considering whether to modify a prior order, a trial court generally is limited to consideration of facts that were of record in the original proceeding. See Hoover , 1893 MDA 2017, at 1-2 (Kunselman, J., dissenting) (citing, inter alia , M.P. v. M.P. , 54 A.3d 950 (Pa. Super. 2012) (holding that trial court abused its discretion in denying mother's custody petition seeking permission to travel with her daughter based on the court's own internet research conducted subsequent to the custody hearing); Eck v. Eck , 327 Pa.Super. 334, 475 A.2d 825 (1984) (holding that trial court, in reversing a hearing master's award of alimony, abused its discretion by considering facts and evidence not of record)). She also suggested that the trial court's actions were inconsistent with this Court's decision in Commonwealth v. Holmes , 593 Pa. 601, 933 A.2d 57, 67 (2007), which she cited for the proposition that a trial court's authority under Section 5505 is meant to correct errors, not to reevaluate its sentencing decision based on a defendant's subsequent conduct.
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, 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.
When reconsidering its order, I believe the trial court was limited to facts that were of record in the proceeding that took place on September 29, 2017. See e.g. M.P. v. M.P., 54 A.3d 950, 955 (Pa. Super. 2012) (trial court abused its discretion by relying on information it obtained through its own internet search that took place after the hearing had been concluded); Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984) (a trial court may not consider facts or evidence outside of the record in making its determination, citing Cf. Commonwealth ex rel. Bowers v. Widrig, 464 A.2d 1299, 1302 (Pa. Super. 1983)). Additionally, this Court may not uphold a trial court's order on the basis of off-the-record facts.
This, we believe, is a misapplication of the law under the instant facts. We do so in light of this Court's recent pronouncement in Eck v. Eck, 327 Pa. Super. 334, 475 A.2d 825 (1984). In Eck, a 55-year-old wife was denied alimony from her 57-year-old employed husband (with a net income of $349.22 per week) following the grant of a divorce, which order also terminated support payments of $45.50 per week.
42 Pa.C.S. §5505. Next, the OAJC properly rejects Appellant's argument that the trial court could not vacate its prior order pursuant to Section 5505 based on facts not of record at the time it granted early termination of Appellant's intermediate sentence on the basis of the Superior Court's decisions in M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012) (holding that the trial court abused its discretion in denying mother's custody petition seeking permission to travel with her daughter based on the court's own internet research conducted subsequent to the custody hearing) and Eck v. Eck, 475 A.2d 825 (Pa. Super. 1984) (holding that the trial court, in reversing a hearing master's award of alimony, abused its discretion by considering facts and evidence not of record)). Specifically, the OAJC observes that in M.P. and Eck, the trial court orders were reversed because the orders were based on the consideration of evidence outside of the record to which the parties had no notice of, or opportunity to respond.
Furthermore, relevant to the issue presently before this Court, Judge Kunselman observed that, when considering whether to modify a prior order, a trial court generally is limited to consideration of facts that were of record in the original proceeding. See Hoover, 1893 MDA 2017, at 1-2 (Kunselman, J., dissenting) (citing, inter alia, M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012) (holding that trial court abused its discretion in denying mother's custody petition seeking permission to travel with her daughter based on the court's own internet research conducted subsequent to the custody hearing); Eck v. Eck, 475 A.2d 825 (Pa. Super. 1984) (holding that trial court, in reversing a hearing master's award of alimony, abused its discretion by considering facts and evidence not of record)). She also suggested that the trial court's actions were inconsistent with this Court's decision in Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa. 2007), which she cited for the proposition that a trial court's authority under Section 5505 is meant to correct errors, not to reevaluate its sentencing decision based on a defendant's subsequent conduct.
I am obligated to affirm the result below, purely as result of Mark Greenfield, Esquire, trial counsel for Sosa, failing to present the trial court with any evidence whatsoever that he and Lauren Glynn, Esquire, trial counsel for Sebastian Rodriguez and the IBS Group ("the Defendants"), entered into an agreement stipulating to Rodriguez's liability. See Pa.R.A.P. 1925(a) opinion, 2/6/18, at 2 ("No written stipulation was presented to the court and no stipulation had been entered on the docket for court approval."); see also Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984) ("[A] trial court may not consider facts of evidence dehors the record in making its determination.") (emphasis added). I, therefore, cannot consider it an abuse of discretion for the trial court to fail to enforce an agreement for which no evidence was presented. See N.T. Trial, 10/11/17, at 13 (ruling below based on "conversation on the record" which does not reflect a "broad stipulation.").
Specifically, the record lacks support for the court's findings that Father's sentence prohibits him from having contact with Child, that Child suffers from autism and is confused, that Mother is in poor health and does not drive, and that one of Father's victims was approximately the same age as Child. See Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984) ("[A] trial court may not consider facts or evidence dehors the record in making its determination. Nor may this court uphold a trial court's order on the basis of off-the-record facts.") (citations omitted).
"[A] trial court may not consider facts or evidence dehors the record in making its determination." Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825, 827 (1984). See alsoCommonwealth v. McNeal, 120 A.3d 313, 328 (Pa. Super. 2015) (vacating judgment of sentence because the trial court "convicted McNeal of a crime with evidence that the Commonwealth never introduced at trial.
"A trial court may not consider evidence outside of the record in making its determination. Eck v. Eck , 327 Pa.Super. 334, 475 A.2d 825, 827 (1984). Nor may this [C]ourt uphold a trial court's order on the basis of off-the-record facts.