In Re: Private Criminal Complaint Ivy, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: PRIVATE CRIMINAL : IN THE SUPERIOR COURT OF
COMPLAINT FILED BY GLAVIN IVY : PENNSYLVANIA
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APPEAL OF: GLAVIN IVY :
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: No. 1274 WDA 2019
Appeal from the Order Entered July 22, 2019
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): No. 258-MD-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 4, 2020
Glavin Ivy (Ivy) appeals pro se from the order of the Mercer County
Court of Common Pleas (trial court) denying his Petition for Review of a Private
Criminal Complaint that was disapproved by Mercer County District Attorney
(D.A.) Peter C. Acker, Esquire. We affirm.
On June 11, 2019, Ivy submitted a Private Criminal Complaint against
Ms. Caitlin Shea Dobran (Dobran) to the D.A. for approval. The Complaint
alleged Dobran committed the crimes of perjury, false swearing, unsworn
falsification to authorities and tampering with or fabricating physical evidence
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* Retired Senior Judge assigned to the Superior Court.
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in a criminal case against him in which she was the victim.1 (See Private
Criminal Complaint, Affidavit of Probable Cause, 7/08/09, at 1).
I.
A.
The charges that Ivy seeks to have brought against Dobran arose out of
actions and testimony that she took or provided involving criminal charges
brought against Ivy. In 2014, Ivy was arrested for making Terroristic Threats
and Harassment and with Stalking and Harassment of Dobran. (See id. at
2). He contends that while at his home, Dobran viewed a restraining order
and a petitioner’s affidavit, which she photographed, and that she later used
those allegations in her own complaint about an incident that occurred on May
1, 2014, that she gave to police on May 9, 2014. Essentially, the crime that
Ivy alleged is that Dobran provided an unsworn false statement to authorities.
Regarding the same criminal charge, Ivy alleges that after he was
arrested, Dobran filed a Petition for Protection from Abuse (PFA) against him
and that at the PFA hearing, Dobran testified about Ivy’s threats to ruin her
reputation, including facts that were not in the original May 9, 2014 document
provided to authorities. On October 14, 2014, Ivy pleaded guilty to a
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1 18 Pa.C.S. §§ 4902, 4903, 4904, and 4910, respectively.
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summary count of Harassment. Nonetheless, he contended that her
testimony in the PFA was false and constituted perjury.
The second matter involved Dobran’s involvement in an action involving
Ivy’s abuse of Amanda Carroll (Carroll). According to the Affidavit of Probable
Cause, after Ivy’s October release, he met Carroll. Carroll then contacted
Dobran asking for advice about how to handle a situation she had with Ivy.
Ivy alleged that Dobran attempted to dissuade Carroll from dating him by
claiming that he had victimized several women and that Dobran told Carroll
that Ivy had ruined her reputation. Ivy was arrested for abusing Carroll.
Dobran testified on Carroll’s behalf at trial, but Ivy states that her testimony
was inconsistent with the earlier documents she had given to police and her
testimony at her 2014 hearings. Ivy maintains that Dobran committed perjury
in an effort to repair her own reputation. (See id. at 4-21).
In August 2016, Ivy was arrested for rape and related charges at docket
number 1513-CR-2016. The case still is active and has not yet gone to trial.
Dobran is the victim in that pending litigation.
B.
By letter dated July 8, 2019, the D.A. notified Ivy that following an
investigation, he was disapproving the Private Criminal Complaint on the
bases that (1) the statute of limitations barred the prosecution of the alleged
crimes, and (2) his conclusion that Ivy was attempting to damage the
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credibility of Dobran because she is the victim in the current criminal case
against him. (Letter, 7/08/19, at 1).
On July 15, 2019, Ivy petitioned the trial court to review the D.A.’s
disapproval pursuant to Pennsylvania Rule of Criminal Procedure 506. In his
petition, he alleged that the D.A.’s disapproval of his Private Criminal
Complaint was “an abuse of discretion, unconstitutional, blatantly
unreasonable, pretextual, arbitrary, not in the public’s interest and not in the
interest of justice.” (Petition for Review, 7/15/19, at 1). The trial court denied
Ivy’s Petition for Review on July 22, 2019.
On July 25, 2019, Ivy filed an Amended Petition for Review which the
trial court denied on August 7, 2019. Ivy timely appealed and
contemporaneously filed a statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on August 16,
2019.
II.
Ivy maintains that the trial court abused its discretion when it upheld
the D.A.’s disapproval of his Private Criminal Complaint. Specifically, he
claims that the crimes are not barred by the statute of limitations and that
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prosecuting individuals for perjury is not within the jury’s province. 2 (See
Ivy’s Complaint, at 6).3
A.
An individual who is not a law enforcement officer may submit a private
criminal complaint to the district attorney seeking prosecution for the crimes.
See Pa.R.Crim.P. 506(A).4 The district attorney, within his discretion, may
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2 When the district attorney disapproves a private criminal complaint on a
hybrid of legal and policy considerations, we “review the trial court’s decision
for an abuse of discretion, in keeping with settled principles of appellate review
of discretionary matters.” Commonwealth v. Wilson, 879 A.2d 199, 215
(Pa. Super. 2005) (en banc) (citations omitted). “An abuse of discretion is
not merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.” Commonwealth v.
Jones, 826 A.2d 900, 907 (Pa. Super. 2003) (citation omitted).
3 At the beginning of the argument section of his brief, Ivy lists a second,
abstract, question about whether an individual who committed perjury in the
past is immune from suit if she is the victim in other pending litigation that is
based on the same alleged perjury. (See Ivy’s Brief, at 7). The trial court
denied review of this question on the basis that it is hypothetical since there
was no grant of immunity to Dobran and she has not committed perjury. (See
Trial Court Opinion, 8/16/19, at 3). Even if Ivy had not waived this claim by
failing to provide any argument to support it, we also would not decide its
merits. See Pa.R.A.P. 2101, 2119(a); Pittsburgh Palisades Park, LLC v.
Com., 888 A.2d 655, 659 (Pa. 2005) (“The courts in our Commonwealth do
not render decisions in the abstract or offer purely advisory opinions[.]”).
4Pennsylvania Rule of Criminal Procedure 506 governs the approval of private
criminal complaints and provides, in pertinent part that:
(A) When the affiant is not a law enforcement officer, the
complaint shall be submitted to an attorney for the
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then elect to either approve or disapprove the complaint. Id. At a minimum,
the private criminal complaint must set out a prima facie case of criminal
conduct. In re Ullman, 995 A.2d 1207, 1213 (Pa. Super. 2010). The district
attorney is further obliged to investigate the allegations in the complaint to
determine whether prosecution is in the public interest. Id.
[E]ven if the facts recited in the complaint make out a prima facie
case, the district attorney cannot blindly bring charges,
particularly where an investigation may cause him to question
their validity. Forcing the prosecutor to bring charges in every
instance where a complaint sets out a prima facie case would
compel the district attorney to bring cases he suspects, or has
concluded via investigation, are meritless.
***
The district attorney is permitted to exercise sound discretion to
refrain from proceeding in a criminal case whenever he, in good
faith, thinks that the prosecution would not serve the best
interests of the state. This decision not to prosecute may be
implemented by the district attorney’s refusal to approve the
private criminal complaint at the outset.
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Commonwealth, who shall approve or disapprove it without
unreasonable delay.
(B) If the attorney for the Commonwealth:
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(2) disapproves the complaint, the attorney shall state the
reasons on the complaint form and return it to the affiant.
Thereafter, the affiant may petition the court of common pleas for
review of the decision.
Pa.R.Crim.P. 506(A), (B)(2).
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In re Miles, 170 A.3d 530, 535 (Pa. Super. 2017) (internal quotations and
citations omitted).5
If the district attorney disapproves a private criminal complaint, the
complainant can petition the Court of Common Pleas for review. In such a
challenge to the disapproval, the complainant must do more than show that
the district attorney’s decision was flawed but is also required to show that
the decision amounted to bad faith, fraud or was unconstitutional. In the
absence of such evidence, the trial court cannot presume to supervise the
district attorney’s exercise of prosecutorial discretion and should leave the
district attorney’s decision undisturbed. See In re Private Criminal
Complaints of Rafferty, 969 A.2d 578, 581-82 (Pa. Super. 2009).
B.
Here, after an investigation, the D.A. disapproved the Private Criminal
Complaint for the policy reason that Ivy appeared to be attempting to
“undercut” the credibility of Dobran, the alleged victim in his current,
outstanding litigation, and because the alleged criminal conduct was barred
by the statute of limitations. (See Letter from D.A. Peter C. Acker to Ivy,
7/08/19, at 1 (announcing the decision of the District Attorney); see also
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5 On appeal, this court considers whether the trial court committed an error
of law or an abuse of discretion in evaluating the district attorney’s disapproval
of the private criminal complaint; we do not review the district attorney’s
underlying decision. See In re: Private Complaint of Owens, supra.
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Private Criminal Complaint, 6/14/19, 1-21). We begin with the presumption
that the D.A.’s decision was sound and made in good faith. See
Commonwealth v. Michaliga, 947 A.2d 786, 792 (Pa. Super. 2008). The
trial court observed that:
. . . [T]he District Attorney relied on a hybrid of legal and policy
bases. Th[e] [c]ourt reviewed the District Attorney’s decision
under the abuse of discretion standard. The District Attorney
offered two reasons for its dismissal in its July 2019 letter. The
letter contained a legal determination that the claim of perjury
was barred by the statute of limitations. The letter also contained
a policy reason that the private criminal complaint was against an
alleged victim in [] Ivy’s pending criminal case and it appeared
that [he] was attempting to undercut the credibility of her
potential testimony. Th[e] [c]ourt found that the District Attorney
did not act in bad faith, fraud or unconstitutionality in denying the
[Private Criminal Complaint]. . . .
(Trial Court Opinion, 8/16/19, at 3).
We conclude that the trial court did not misapprehend or misinterpret
the D.A.’s denial of Ivy’s Private Criminal Complaint. See Michaliga, supra
at 791-92. Our independent review confirms that Ivy’s Petition for Review
and appellate brief fail to establish that the D.A.’s decision amounted to “bad
faith, fraud or unconstitutionality” where the facts of the case do not “lead
only to the conclusion that the [D.A.’s] decision was patently discriminatory,
arbitrary or pretextual, and therefore not in the public interest.” Id. (citation
omitted).
Instead, Ivy argues that the D.A.’s public policy rationale was flawed
because he is not attempting to undermine Dobran’s credibility, but prosecute
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her for committing perjury. (See Ivy’s Brief, at 16-21). However, even
assuming arguendo that his Private Criminal Complaint set forth a prima facie
claim against Dobran, it was still within the D.A.’s purview to decline to
prosecute it if he believed, after his own independent investigation, that it
lacked merit and wasn’t in the public’s interest to pursue. See In re Miles,
supra at 535. Similarly, although Ivy maintains that his Private Criminal
Complaint does not violate the statute of limitations, because the D.A.
exercised his wide discretion in disapproving Ivy’s Private Criminal Complaint,
and there is no evidence that this was done for “patently discriminatory,
arbitrary or pretextual” reasons, the trial court properly found that the D.A.’s
decision must stand and we will not disturb it.
Accordingly, we affirm the trial court’s order denying Ivy’s Petition for
Review of the D.A.’s disapproval of his Private Criminal Complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2020
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