Commonwealth v. Ivy

146 A.3d 241

2016 PA Super 183

Commonwealth of Pennsylvania, Appellant

v.Glavin Justan Ivy, Appellee

Commonwealth of Pennsylvania, Appellee

v.Glavin Justan Ivy, Appellant

No. 1485 WDA 2015

No. 1575 WDA 2015

Superior Court of Pennsylvania.

Submitted April 4, 2016

FILED AUGUST 19, 2016

Robert H. Hartley, Jr., Assistant District Attorney, Mercer, for Commonwealth.

Charles F. Gilchrest, Mercer, for Ivy.

BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

OPINION BY SHOGAN, J.

Appellant, the Commonwealth of Pennsylvania, appeals from the September 10, 2015 pretrial order precluding the admission of evidence in the impending trial of Appellee, Glavin Justan Ivy, who has filed a cross appeal.¹ The order appealed granted in part and denied in part the Commonwealth's motion in limine seeking to introduce prior bad acts of Appellee pursuant to Pa.R.E. 404(b).² Following our careful review and for the reasons that follow, we reverse in part and remand. We quash Appellee's cross-appeal.

In its opinion pursuant to Pa.R.A.P. 1925(a) (“Rule 1925 Opinion”), the trial court summarized the facts and procedural history of the case as follows:

Glavin Justan Ivy ( [“Appellee”] ) has been charged with Rape, 18 Pa.C.S. § 3121(a)(1), Kidnapping, 18 Pa.C.S. § 2901(a)(3), and Aggravated Assault, 18 Pa.C.S. § 2702(a)(1) for an alleged violent sexual assault incident that occurred November 18, 2014 through November 19, 2014. The victim in this incident is [A.C.], age 30.

On November 19, 2014, [A.C.] reported to the Sharon Police Department that she had met [Appellee] online using a dating service called “Plenty of Fish” approximately one month prior, at the end of October, 2014. The two of them began a relationship via texting, and [A.C.] and [Appellee] first met in person at [Appellee's] apartment on November 7, 2014. After that date, [A.C.] and [Appellee] continued to spend their weekends together at [Appellee's] apartment.

On November 18, [2014, A.C.] received a number of messages via Facebook Instant Messenger^[3]wherein [Appellee] “dumped” [A.C.] because [Appellee] believe[d A.C.] lied about when she had last seen another male. Throughout the messages, [Appellee] calls [A.C.] a variety of derogatory names and expresses his hopes that she kills herself in a myriad of ways. [Appellee] also compares [A.C.] to his ex-girlfriend, [C.D.], by saying that they are “sooo alike” and “they are the same.” Throughout these messages, [A.C.] continually apologizes for making [Appellee] upset, expresses her love for [Appellee], and pleads to still be able to see him. Ultimately, [A.C.] messages that she would like to go to [Appellee's] apartment to collect the pillow she left there.

[A.C.] arrived at [Appellee's] apartment at approximately 6:42 p.m., and [Appellee] simply opened the apartment door, threw the pillow out to [A.C.], and then shut the door. As [A.C.] walked away, [Appellee] then re-opened the apartment door, held out his arms as if indicating that he wanted a hug, and asked [A.C.] to come upstairs to his bedroom. Once in the bedroom, [Appellee] began questioning [A.C.] about all of her previous sexual partners. [Appellee] also began calling her a “stupid bitch,” among other names.

At one point, [Appellee] motioned as if to kick [A.C.]; [A.C.] dodged and attempted to get out of the room through the bedroom door. [Appellee] blocked her access to the door and told her that she was not going to leave. [Appellee] then pushed [A.C.] onto the bed with the palm of his hand and told her to sit against the wall, which she did. [Appellee], while still calling her names, then struck [A.C.] on the right side of the face using the back of his hand. He did so with enough force to turn her head and cause the left side of her face to strike part of the window. [Appellee] then backhanded her again in the nose. [Appellee] then grabbed [A.C.] by the throat with such force that he was able to pick her torso up off of the bed. [A.C.] was unable to breathe and could not remember if she lost consciousness, although she could recall begging [Appellee] to stop, but stated it was very hard to talk. [Appellee's] use of force caused bruising on [A.C.'s] neck.

When [Appellee] let [A.C.] go, he grabbed her hair with both hands and started to pull her hair. [A.C.] began to cry, which in turn made [Appellee] cry. He then began hugging [A.C.], saying[,] “you broke my heart, so I had to teach you a lesson not to lie to me again.” [A.C.] told [Appellee] several additional times that she wanted to leave. [Appellee] refused these requests, and [A.C.] again attempted to leave at one point, but [Appellee] jumped in front of the door and would not let her pass. For an unknown period of time, [Appellee] and [A.C.] laid in [Appellee] bed talking, and [Appellee] asked [A.C.] if she wanted to have sex. [A.C.] agreed to have sex, but only did so because she was afraid [Appellee] would assault her again or force himself on her if she refused. Afterwards, [A.C.] was permitted to use the restroom, but [Appellee] accompanied her the entire time.

Ultimately, [Appellee] agreed to let [A.C.] leave at approximately 3:00 a.m. on November 19[, 2014,] so that she could go to work. Later that day, after [A.C.] discontinued all messaging with [Appellee, Appellee] messaged her on Facebook stating that he had recorded them having sex using his cellular phone and threatened to send the recording to everyone they knew. [A.C.] reported to police late on November 19[, 2014,] everything that happened. On November 20, [2014, Appellee] was taken into custody by Sharon police officers. [Appellee] was Mirandized, waived his Miranda rights, and made a statement to Lieutenant [Jeffrey] Wiscott of the Sharon Police Department. In his statement, [Appellee] admitted to a disagreement between [Appellee] and [A.C.], and further admitted to having sexual intercourse, but attributed the bruising on [A.C.'s] neck to consensual “rough sex.”

Also relevant to this Opinion is the relationship between [Appellee] and two prior women; [M.F.] and [C.D.]. Regarding [M.F.], she filed for and received a temporary and permanent restraining order against [Appellee] in 2013 in Morton County, North Dakota. In the sworn petition forming the basis for the restraining order, [M.F.] described several accounts of abuse that occurred during her relationship with [Appellee], stating that [Appellee] had been “hitting her hard on a daily basis.” She also explained that she was afraid to leave [Appellee] for fear that he would kill her, and she described several incidents where [Appellee] regularly beat her in the face, dragged her by her hair, hit her very hard, and bragged that he knew how to strike her without leaving marks.

[M.F.] and [Appellee's] abusive relationship culminated in a violent attack inside of [Appellee's] vehicle on May 22, 2013. On that occasion, [Appellee] coaxed [M.F.] to get into a car with him by promising to drive her to a store in town. Instead of taking [M.F.] to the store, [Appellee] turned off onto a country road, began beating her while driving erratically at 90 miles per hour, stating that he was going to take her into the woods and “beat her up then kill [her],” that “no one would hear her scream,” and that “no one would find her.” [M.F.] escaped by slipping into the back seat, sticking her hand out of the window, and capturing the attention of a passing van. The driver of the van observed [Appellee] continuing to struggle with [M.F.] in the car.

Police responded several minutes later, which caused [Appellee] to cease his attack. [M.F.] filed charges and received the above-mentioned restraining orders. [Appellee] was convicted of Menacing, a Class A Misdemeanor, and Reckless Driving, a Class B Misdemeanor, in Morton County, North Dakota. During the course of the investigation, the Facebook account of [Appellee] was obtained, and it revealed that [Appellee] joined a group on Facebook called [, “]Physiognomy,” which is the study or art of identifying the personality and inner-character traits of another, simply by examining the physical features of a person's face.

Regarding [C.D., C.D.] knew [Appellee] for four months before she began dating him on March 8, 2014. Shortly into the relationship, on March 13, 2014, there was a dialogue exchanged on Facebook Instant Messenger where [Appellee] and [C.D.] got into an argument because [Appellee] claimed that he was going to “re-wire [C.D.] for the better” because “he had the power.” [Appellee] also sent numerous messages during this exchange where he insulted [C.D.'s] intelligence and professed that [Appellee] is a genius who has a close connection with God. During the messages, [C.D.] (similar to [A.C.] ) goes on to tell [Appellee] that she loves him and that she cares for him, trying to resolve the argument.

On April 10, 2014, [Appellee] and [C.D.] went swing dancing in Ohio. On the drive home, [C.D.] was driving and [Appellee] was sitting in the front passenger seat. [Appellee] began to display jealousy over the men that [C.D.] danced with while swing dancing. [Appellee] then began to verbally berate [C.D.], calling her a “whore,” “slut,” and “bitch,” and [Appellee] threatened to ruin [C.D.'s] reputation by telling everyone [C.D.] knew that she was a “whore.” [Appellee] then grabbed the steering wheel of the vehicle and attempted to steer the car off the road and into the woods. [C.D.] was [able] to apply the brakes to avoid any collision. After the car came to a stop, [Appellee] slammed [C.D.'s] head against the window of the vehicle, and grabbed [C.D.'s] knife, which she kept on her person for protection. [C.D.] eventually disarmed [Appellee], did not call the police, and ultimately continued her relationship with [Appellee].

On the drive home, [C.D.] used her cell phone to record the conversation immediately after the assault, wherein [Appellee] and [C.D.] discussed the event, and [Appellee] made several concessions that he had hurt [C.D.]. The incident was also discussed via text

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