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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID WAYNE FAUST :
:
Appellant : No. 943 EDA 2020
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000513-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID WAYNE FAUST :
:
Appellant : No. 944 EDA 2020
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000512-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.
MEMORANDUM BY PANELLA, P.J.: Filed: May 20, 2021
David Faust appeals nunc pro tunc from two judgments of sentence
entered in the Court of Common Pleas of Bucks County, which followed
separate open guilty pleas wherein Faust, owner of a funeral home, admitted
to forging physician signatures on death certificates and defrauding customers
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Retired Senior Judge assigned to the Superior Court.
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who had pre-paid for funeral expenses, as well as using forged documents to
improperly receive Social Security benefits.1 Following those pleas, Faust
received an aggregate sentence of nine to eighteen years of incarceration in
addition to nine years of probation. On appeal, Faust asserts that his sentence
is facially excessive or, in the alternative, that his aggregate sentence is the
product of partiality, prejudice, bias, or ill-will from the sentencing court. As
we determine that Faust failed to raise a substantial question in his former
issue and, too, see no merit to his latter assertion, we affirm.
Given the amount of criminal offenses involved, the factual history of
this case is long, complicated, and multi-faceted. However, we discern the
following from Faust’s guilty plea colloquies in addition to the briefs filed by
the parties. After receiving information from a professional conduct
investigator working for the Pennsylvania Department of State, Bucks County
detectives were put on notice of several death certificates containing forged
physician signatures. In total, seven forged death certificates were uncovered,
which all listed Faust Funeral Home, the funeral home owned by Faust, as the
funeral facility. Each certificate also contained both Faust’s signature as well
as his Pennsylvania funeral director license number. Those seven certificates
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1 Specifically, he pled guilty to: theft by deception, 18 Pa.C.S.A. § 3922(a)(1);
two counts of forgery, 18 Pa.C.S.A. § 4101(a)(2), (a)(3); tampering with
public records, 18 Pa.C.S.A. § 4911(a)(1); two counts of identity theft, 18
Pa.C.S.A. § 4120; impersonating a holder of a professional or occupational
license, 18 Pa.C.S.A. § 4913(a)(1); theft by failure to make required
disposition of funds received, 18 Pa.C.S.A. § 3927; and deceptive business
practices, and 18 Pa.C.S.A. § 4107(a)(2).
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were delivered by Faust to the Pennsylvania local registrar for certification
purposes even though they had not actually been authorized by the certifying
physicians.
When questioned by the detectives, Faust admitted to having authored
the forged death certificates. At that point, Faust also relayed to them that he
was injured and receiving full Social Security benefits. From this statement,
the detectives inquired about how it was possible for him to simultaneously
receive those full benefits while managing his funeral home. Faust’s response
to this inquiry did nothing to allay the detectives’ concerns.
The detectives then contacted the Social Security Administration, where
it was determined that Faust had been collecting social security benefits for
approximately three-and-one-half years, with those benefits totaling in the
hundreds of thousands of dollars. Now armed with this information, the
detectives directly asked Faust whether he had been working during the period
that he was receiving Social Security benefits. Faust affirmatively answered
that he had been working over that time span.
Several months later, the detectives began receiving phone calls from
Faust Funeral Home customers who had prepaid for certain funeral-related
services, but received nothing in return. These calls led to the execution of a
search warrant on Faust Funeral Home and resultantly, an examination of the
complaining customers’ files. Through a review of the funeral home’s
documents, detectives uncovered the forged death certificate of a still-living
person as well as corresponding bank receipts dating back to 2003. It was
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later determined that this person put a down payment on funeral expenses
with Faust Funeral Home and believed that her funds were still being held for
that purpose. Ultimately, after further investigation, it was established that
Faust’s fraudulent acts were at the expense of dozens of customers. Although
he neither placed the business’s received funds into an escrow trust account
nor held them properly otherwise, Faust obtained approximately three
hundred thousand dollars from over fifty customers and used those funds for
his own personal benefit.
After receiving Faust’s guilty plea, the court scheduled a sentencing
hearing. The hearing was continued several times at Faust’s request, and over
Commonwealth objections, allegedly for the purpose of allowing Faust to
gather assets for victim restitution. After a full hearing, the court sentenced
Faust to a term of imprisonment of five to ten years for the theft from the
customers who pre-paid their funeral costs; eighteen to thirty-six months of
imprisonment for the identity theft associated with the theft of pre-paid costs;
two and one-half to five years of imprisonment for the theft of Social Security
benefits; and nine years of probation for other associated crimes. All four of
these sentences were imposed consecutively.
Following sentencing, Faust filed post-sentence motions at both docket
numbers. Despite there being several procedural irregularities throughout the
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appeal process2, both Faust and the sentencing court have now complied with
their respective obligations under Pa.R.A.P. 1925. Accordingly, this matter is
properly before our Court.
On appeal, Faust presents the following issues for our review:
1. Did the sentencing court abuse its discretion?
2. Was his aggregate sentence based on partiality, prejudice,
bias, or ill-will?
See Appellant’s Brief, at 4.
Both of Faust’s questions appear to be interrelated and deal exclusively
with the discretionary aspects of his aggregate sentence. Preliminarily, we
note that “[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.
Super. 2014). Instead, such a claim “must be considered a petition for
permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265
(Pa. Super. 2014). As a series of procedural prerequisites, “[a]n appellant
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2 While Faust filed his post-sentence motions at both docket numbers, the
sentencing court only entered an order denying one of those motions. Faust,
pro se, appealed this singular order to our Court. On appeal, we found that
Faust’s counsel had rendered ineffective assistance, and we restored his direct
appeal rights nunc pro tunc. See Commonwealth v. Faust, 1374 EDA 2019
(Pa. Super. March 18, 2020) (unpublished memorandum). Further, we
concluded that the motion associated with the other docket number was
denied by operation of law. See id. Immediately thereafter, Faust filed two
new and now timely notices of appeal. However, the sentencing court still did
not enter an order denying the second docket’s post-sentence motion. Our
Court then issued an order directing the sentencing court to enter an order
denying that second docket’s post-sentence motion by operation of law. The
sentencing court has complied with this order.
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must satisfy a four-part test to invoke this Court’s jurisdiction when
challenging the discretionary aspects of a sentence.” Id. The four-part test
requires an appellant to preserve his claims at sentencing or in a post-
sentence motion; file a timely notice of appeal; set forth, pursuant to Pa.R.A.P.
2119(f), a concise statement of reasons for the allowance of the appeal; and,
in that statement, raise a substantial question for our review. See
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018).
We find that Faust has complied with the first three prongs. Faust
contested the discretionary aspects of his sentence in his post-sentence
motions, timely appealed the sentencing court’s denial of his post-sentence
motions, and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore,
we must ascertain whether his statement, when read in its entirety, poses a
substantial question for our review.
An appellant “presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (internal
quotation marks and citation omitted). Whether a question is substantial is
adjudicated on a case-by-case basis. See Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa. Super. 2003). However, “we cannot look beyond the
statement of questions presented and the prefatory 2119(f) statement to
determine whether a substantial question exists.” Commonwealth v.
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Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012). Moreover, a Rule 2119(f)
statement that merely “contains incantations of statutory provisions and
pronouncements of conclusions of law” is legally deficient. Commonwealth
v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation omitted).
In his four-sentence statement, Faust identifies that his “sentence is
well beyond the guidelines and excessive in light of the criminal conduct.”
Appellant’s Brief, at 13. Faust then proceeds to indicate that the court
erroneously, yet exclusively, focused on the impact of his actions on the
victims and “failed to place sufficient reasons on the record to support
consecutive terms of imprisonment.” Id. Finally, Faust asserts that his
sentence “is the result of partiality, prejudice, bias[,] or ill-will.” Id.
Although it contains a typographical error, Faust’s 2119(f) statement
consists of one statutory citation: 42 Pa.C.S.A. § 9721(b). Section 9721(b)
outlines the general standards a court is to utilize when crafting a specific
sentence. Faust’s statement does not reference any case law. Furthermore, in
contrast with Dodge, the Commonwealth has objected to the adequacy of
Faust’s 2119(f) statement. See 77 A.3d at 1271; Appellee’s Brief, at 16-20.
We agree with the Commonwealth that Faust’s 2119(f) statement is
woefully deficient. Each sentence is conclusory and without attribution or
support. In Commonwealth v. Robertson, we held that “a substantial
question exists where the sentencing court failed to provide sufficient reasons
for imposing a sentence outside of the guidelines.” 874 A.2d 1200, 1212 (Pa.
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Super. 2005). However, here, while Faust mentions that his sentence exceeds
the guidelines, there is no basis provided as to why it was in error for the court
to perform this deviation. See Commonwealth v. Ousley, 573 A.2d 599,
601 (Pa. Super. 1990) (“Appellant’s conclusory assertion in the 2119(f)
statement that the sentence exceeded the guidelines, without more, does not
raise a substantial question.”).
Conversely, his terse mention of the court failing to provide a sufficient
rationale on the record was specific to the consecutive structure of his total
sentence. A challenge to the exercise of a sentencing court’s discretion to
impose its sentence concurrently or consecutively does not usually raise a
substantial question. See Commonwealth v. Pass, 914 A.2d 442, 446-47
(Pa. Super. 2006). With that said, if such an issue is raised, the question
hinges on “whether the decision to sentence consecutively raises the
aggregate sentence to, what appears on its face to be, an excessive level in
light of the criminal conduct at issue in the case.” Commonwealth v.
Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010).
Under these circumstances, we conclude that Faust’s 2119(f) statement
does not preserve his claim that the court abused its discretion by imposing
an excessive sentence. However, despite these deficiencies, which we do not
condone, we conclude that Faust has established his independent claim that
the aggregate sentence was the result of bias, prejudice, or ill-will raises a
substantial question for our review. See Commonwealth v. Corley, 31 A.3d
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293, 297 (Pa. Super. 2011) (indicating that an allegation of bias raises a
substantial question).
We review Faust’s sentence for an abuse of discretion:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation
omitted).
In his remaining claim, Faust believes that the sentencing court was
guided by partiality, prejudice, bias, or ill-will. Faust presents a series of
purported facts to evince this assertion: 1) the court determined it would
sentence Faust outside of the guidelines prior to its consideration of the §
9721(b) factors; 2) the court assumed a role as advocate, rather than
impartial judge, at sentencing when it belittled Faust’s funeral business; 3)
the court’s indication that Faust’s actions injured the community at large, with
the court being affected personally; 4) the court’s sentencing Faust to the
exact same number of years as his criminal conduct spanned; and 5) the
court’s pejorative references to Faust: e.g., “Father Faust.” Appellant’s Brief,
at 24-26. We find that all of these suggested incidences of prejudice or bias
are inaccurate, irrelevant, or insufficient.
Initially, we note that Faust admits that, at sentencing, the court
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provided its reasons as to why it departed from the sentencing guidelines.
See Appellant’s Brief, at 21-22 (describing, through record citations, that the
court indicated that the sentencing guidelines failed to take into consideration:
1) the number of victims; 2) the victims’ relationship with Faust; 3) the
damage done to this entire group of people; 4) Faust’s lack of remorse; and
5) the extended period of time over which Faust performed these illicit acts);
see also N.T. 11/15/18, at 40-41, 77, 96-97, 117-40, 145 (outlining the
factors relied upon by the sentencing court when it exceeded the sentencing
guidelines, including, but not limited to, consideration of the victims, Faust,
and the general lack of mitigating circumstances). With this reasoning on the
record, we cannot conclude that the imposition of outside-the-guidelines
sentences indicates that the court was improperly biased against Faust.
Returning to the specific incidents highlighted by Faust as indicative of
bias, Faust first takes issue with the court’s use of the word “ongoing,” N.T.,
6/5/18, at 42, to describe Faust’s conduct, which was uttered at his pre-
sentence bail determination hearing. Contextually, we do not see how this
demonstrates bias, as the court appears to have been merely referring to the
fact that Faust’s illicit conduct continued over a seventeen-year period.
Moreover, as the statement was made during bail proceedings, we do not see
how use of that word implies that the court was inherently biased and
therefore guaranteed to sentence outside of the sentencing guidelines.
On the second purported occurrence, it is unclear how a passing
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reference to Faust’s funeral business as being “little” rises to the level of
demonstrating partiality, prejudice, bias, or ill-will from the court or how such
a statement even constitutes mockery. Likewise, as to his third alleged
demonstration of bias, we find the court’s use of the phrase “to all of us,” N.T.,
11/15/18, at 130, in reference to both the effects of his actions, which is
accurate given Faust’s negative impact on dozens of individuals, and guided
by the court’s perception of Faust demonstrating a lack of remorse. Contrary
to Faust’s declaration, we cannot conclude that such a phrase was specifically
referential to the court itself.
The fourth averment, that his sentence ended up being the same length
as the time he spent committing criminal acts, appears to be entirely
speculative and, at most, coincidental. Without any objective evidence or
precedent, Faust has failed to meet his burden in presenting even a colorable
argument that the duration of his criminal actions somehow influenced the
specific aggregation of his sentences, resulting in a comparable amount.
Moreover, given the minimum and maximum nature of his sentence, Faust’s
singular fixation on the maximum sentence is misplaced.
Finally, we find that fleeting references made by the sentencing court to
Faust, e.g., “Father Faust” and “most manipulative human,” do not indicate a
bias against Faust; rather, they indicate the court’s impression of the facts to
which Faust pled guilty. While, perhaps, it could have used different language
on those occasions, there is no doubt that Faust admitted to defrauding not
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only the Social Security Administration, but also fifty-five vulnerable
customers over nearly two decades. See, e.g, N.T., 6/5/18, at 9-10, 33-34.
Further, the court itself had been misled by Faust. The court, upon Faust’s
representations that he was gathering assets to provide restitution to his
victims, delayed sentencing. However, ultimately, the court “was informed
that [Faust] had encumbered his business and personal assets beyond what
[Faust] represented to counsel, the [court] and his family and that little or no
equity was available with regard to those properties to compensate the
victims.” Trial Court Opinion, 7/29/2019, at 13. Despite this, it is clear the
sentencing court crafted a highly individualized sentence, guided by, among
other things, the dictates of our sentencing code and facts as pleaded to by
Faust. As such, we discern no evidence of actual bias employed by the
sentencing court and find no merit to Faust’s argument.
Having found neither of Faust’s issues to be meritorious, we affirm his
judgments of sentence.
Judgments of sentence affirmed.
Judge Pellegrini joins the memorandum.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/21
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