J-S57007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                v.                       :
                                         :
                                         :
KIRK ERIC HOLLERBACH                     :
                                         :
                     Appellant           :   No. 714 EDA 2017

                   Appeal from the Order February 3, 2017
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0001920-2006


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 01, 2017

      In 2006, the Commonwealth charged Appellant, Kirk Hollerbach, with

criminal mischief, terroristic threats, and stalking. After the stalking charge

was dismissed by the magisterial district justice, the criminal mischief charge

was nolle prossed, and Hollerbach pled guilty to a summary harassment

charge. The record is unclear on the resolution of the terroristic threats

charge.

      In 2016, Hollerbach petitioned the court to have these arrest records

expunged from his record pursuant to 18 Pa.C.S.A. § 9122(b)(3)(i). That

section provides for the possibility of expungement of criminal history

records related to a summary conviction when the defendant “has been free

of arrest or prosecution for five years following the conviction for that

offense.” Id.
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       After   hearing   argument    from       counsel,   the   trial   court   denied

Hollerbach’s petition. On appeal, Hollerbach claims that the trial court erred

in allowing the Commonwealth to read the relevant affidavits of probable

cause to the court, and that the court abused its discretion in dismissing his

petition. After careful review, we conclude that the record is insufficient to

support the trial court’s decision. We therefore reverse in part, vacate in

part, and remand for further proceedings.

       In his first issue, Hollerbach argues that the trial court erred in

allowing the Commonwealth to present hearsay evidence to the court. As

will become clear in our discussion of Hollerbach’s second issue, we disagree

with   both    Hollerbach’s   and   the    Commonwealth’s        description     of   the

proceeding that occurred in the trial court. Since we reverse and remand for

further proceedings, we need not address this issue other than to note that

no sworn witnesses provided testimony, and Hollerbach did not explicitly

concede the authenticity or accuracy of the affidavits the assistant district

attorney read into the record. Thus, it is not clear that this constituted

evidence of any sort.

       Turning to the issue dispositive of this appeal, criminal history records

related to a conviction may be expunged “only under very limited

circumstances that are set forth by statute.” Commonwealth v. Giulian,

141 A.3d 1262, 1267 (Pa. 2016) (citation omitted). In contrast, where a

defendant has been acquitted of criminal charges, “he is generally entitled to


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automatic expungement of the charges for which he was acquitted” under

his right to due process of law. Commonwealth v. Hanna, 964 A.2d 923,

925 (Pa. Super. 2009) (citations omitted).

      Here, we are presented with hybrid circumstances. The criminal docket

sheets reveal that Hollerbach was initially charged with three separate

crimes arising from an incident that occurred on February 5, 2006: Criminal

mischief/damage to property, terroristic threats, and stalking. After a

preliminary hearing, the magisterial district judge dismissed the stalking

charge and bound the first two charges over for trial.

      The Commonwealth never sought to reinstate the stalking charge.

Thus, the district magistrate found there was insufficient evidence to try

Hollerbach on the stalking charge, and the Commonwealth acquiesced to this

determination. See Pa.R.Crim.P. 544 (permitting the Commonwealth to

refile charges previously dismissed by issuing authority). As such, Hollerbach

is entitled to have all records of the stalking charge expunged.

      Nor was Hollerbach convicted of the two charges that were bound over

for trial. The criminal dockets reveal that the Commonwealth nolle prossed

the criminal mischief/damage to property charge, while it changed the

terroristic threats charge to the summary harassment/subject other to

physical contact charge to which Hollenbach ultimately pled guilty.

      The Commonwealth argues that this record indicates that Hollenbach

accepted a negotiated guilty plea. Thus, the Commonwealth believes that


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Hollenbach      would      be     ineligible     for   expungement   pursuant   to

Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001). In Lutz, a panel

of this Court held that a petitioner is not entitled to expunction of the

records of charges dismissed pursuant to a negotiated plea agreement.

        A subsequent panel of this Court recognized that “Lutz is arguably

inconsistent with broad language from this Court and our Supreme Court, as

well as the prevailing trend of our case law.” Hanna, 964 A.2d at 928-929.

However, the panel also acknowledged that Lutz is still controlling law until

it is overruled by this Court en banc or by the Supreme Court of

Pennsylvania.      See id., at 929.            We have not located any controlling

precedent that overrules Lutz. Thus, we conclude that we are still bound by

Lutz.

        However, we disagree with the Commonwealth that the record before

us establishes there was any form of plea agreement between the parties.

The record indicates that, after Hollerbach filed a habeas corpus motion,1 the

Commonwealth nolle prossed the criminal mischief charge, and changed the

charge of terroristic threats to a charge of summary harassment. The guilty


____________________________________________


1 “A pre-trial habeas corpus motion is the proper means for testing whether
the Commonwealth has sufficient evidence to establish a prima facie case.
To demonstrate that a prima facie case exists, the Commonwealth must
produce evidence of every material element of the charged offense(s) ….”
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en
banc) (citations omitted).



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plea colloquy is not of record. Nor is there any other evidence that the

Commonwealth responded to Hollerbach’s habeas corpus motion.

        In fact, at the hearing on Hollerbach’s expungement petition, the

Commonwealth did not present the testimony of any sworn witness. The

assistant district attorney read documents that were purportedly the

affidavits of probable cause. The trial court overruled Hollerbach’s objections

to this process by noting that these readings were not being admitted for the

truth of the assertions within the affidavits, but merely to provide context as

to what the charges were. The Commonwealth offered no other evidence.

        We are therefore left with two equally plausible interpretations of the

record. It is possible that the Commonwealth is correct, and Hollerbach did

enter into a negotiated plea agreement whereby the Commonwealth

dropped these charges in consideration for the plea. However, it is also

possible that the Commonwealth concluded that it could not meet its burden

to overcome Hollerbach’s habeas corpus motion, and this may be the reason

it nolle prossed the criminal mischief charge and changed the terroristic

threats charge to a summary harassment charge. As such, we cannot

conclude that Lutz controls this case based upon the record before us.2

        Under these circumstances, we conclude that Hanna is controlling.

There, as here, the hearing on the expungement petition “consisted

____________________________________________


2   We note that the trial court did not base its dismissal on Lutz.



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primarily of oral argument rather than sworn testimony.” 964 A.2d at 928.

Thus, “the current state of the certified record is inadequate to resolve” the

factual dispute over the existence of a plea agreement. Id. “[W]e are

constrained to vacate the existing order and remand for further proceedings

so that the trial court may resolve these factual disputes, and support its

factual findings with evidence that may be found in the certified record.” Id.

      Hollenbach is entitled to expunction for the stalking charge, and we

therefore reverse the trial court’s order in this regard. As to the remaining

charges, we vacate the order and remand for further proceedings consistent

with this memorandum.

      Order reversed in part and vacated in part. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2017




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