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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
                                               :
                                               :
    APPEAL OF: GLAVIN IVY                      :
                                               :
                                               :
                                               :
                                               :   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:

                                       *       *   *

             (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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