Summary: When a defendant files a motion to expunge, the Commonwealth bears the burden of proving that Commonwealth v. Lutz is applicable. If Lutz is not applicable, then the court will determine whether the record will be expunged under the test set forth in Commonwealth v. Wexler.
Illustration: Some of the charges against a defendant were nolle prossed and the defendant argued that the nolle prosse was not part of a plea agreement. The defendant argued that he had the right to have those charges expunged. Although the Superior Court concluded that the factual record in this case was not adequate to determine whether the defendant was right, the Court concluded that it is the Commonwealth’s burden to prove that the nolle prosse was part of a plea bargain under Lutz. The Superior Court also noted that Lutz appears inconsistent with existing case law, but is still applicable because it has not been overrulled by an en banc panel of the Court.