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

v.

KIRK ERIC HOLLERBACH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 t hreats, and stalking . After the stalking charge was dismissed by the magisterial district justice, the criminal mischief charge

w as 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 the se arrest records expunged from his record pursuant to 18 Pa.C.S.A. § 9122(b)(3)(i). That

s ection 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 th at 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 th at 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 hi s 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 t he 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 issu e dispositive of this appeal, criminal history records related to a co nviction 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 genera lly entitled toJ

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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 Holler bach 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 hear ing, 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
Ho ller bach 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, Holler b a ch is entitled to have all records of t h e stalking charge expunged

. Nor was Holler bach 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 t hreats 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 believ es thatJ

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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 n egotiated 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

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. However, t he 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 Holle r bach filed a habeas corp us 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 produ ce 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).J

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plea colloquy is not of record. Nor is there any other evidence that the Commonwealth respo nded to Holler bach’s habeas corpus motio n. 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 affidavi ts 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 Com monwealth is correct, and Holler bach 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 me et its burden to overcome Holler bach’s habeas corpus motion , and this may be the reason
it nolle prossed the criminal misc hief 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 p lea 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 re versed in part and vacated in part. Case remanded for further proceedings. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/1/2017