Com v. Faust, D.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2021
• Docket: 943 EDA 2020
• Status: Unpublished

Opinion

J-S06009-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S06009-21

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

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

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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