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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S57007-17
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
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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. J-S57007-17
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
-2- J-S57007-17
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
-3- J-S57007-17
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).
-4- J-S57007-17
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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