J-S57007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KIRK ERIC HOLLERBACH 

Appellant

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 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 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 

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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 

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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