Com. v. Faust, D.

• Court: Superior Court of Pennsylvania
• Decided: March 1, 2024
• Docket: 913 EDA 2023
• Status: Unpublished

Opinion

J-S31022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID WAYNE FAUST : : Appellant : No. 913 EDA 2023

Appeal from the PCRA Order Entered March 16, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No: CP-09-CR-0000512-2018, CP-09-CR-0000513-2018

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 1, 2024

Appellant, David Wayne Faust, pro se, appeals from the March 16, 2023

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 24 Pa.C.S.A. §§ 9541-46.1 We affirm.

Appellant, a licensed funeral director, owned and operated Faust Funeral

Home in Bucks County, Pennsylvania. This matter arises from his preparation

of fraudulent death certificates, his mishandling of funds he received from

prepaid funeral contracts, and his applying for and receiving social security

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1 Appellant has filed a single appeal at two docket numbers, in violation of our Supreme Court’s pronouncement in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Because the March 16, 2023 order dismissing Appellant’s petition implied that a single appeal would suffice in this case, we accept this appeal for review pursuant to Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super. 2020) (en banc). J-S31022-23

disability benefits while he was still operating and earning income from his

funeral home. In all, Appellant received more than $300,000.00 toward

prepaid funeral services, from 55 customers, that he failed to maintain in

escrow accounts. Instead, he spent the money for his own benefit. Appellant

received nearly $130,000.00 in social security disability benefits while he was

still working.

Appellant pled guilty to numerous offenses, including theft by failure to

make required disposition of funds, 18 Pa.C.S.A. § 3927, deceptive or

fraudulent business practices, 18 Pa.C.S.A. § 4107, identity theft, 18

Pa.C.S.A. § 4120, theft by deception, 18 Pa.C.S.A. § 3922, and forgery, 18

Pa.C.S.A. § 4101, tampering with public records, 18 Pa.C.S.A. § 4911, and

impersonating a holder of a professional license, 18 Pa.C.S.A. § 4913. On

December 7, 2018, the trial court imposed an aggregate 9 to 18 years of

incarceration followed by 9 years of probation. This Court affirmed the

judgment of sentence on May 20, 2021. Our Supreme Court denied allowance

of appeal on November 29, 2021.

Appellant filed his timely first PCRA petition on May 13, 2022. On

December 16, 2022, appointed counsel filed a no merit letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court filed its Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s

petition on January 9, 2023. On March 16, 2023, the PCRA court dismissed

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Appellant’s petition and granted counsel’s petition to withdraw. Appellant filed

this timely pro se appeal on April 5, 2023.

On review, we determine whether the record supports the PCRA court’s

fact findings and whether the court committed legal error. Commonwealth

v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018). We are deferential to the PCRA

court’s fact findings but apply a de novo standard of review to its legal

conclusions. Id.

Instantly, the PCRA court dismissed Appellant’s petition because the

only issue Appellant wishes to raise—a challenge to the trial court’s sentencing

discretion—is not cognizable under the PCRA. The PCRA court is correct in

this regard, as an alleged abuse of sentencing discretion does not render a

petitioner eligible for PCRA relief under § 9543(a)(2).

Appellant persists with the same argument on appeal, claiming he is

eligible for relief because of the sentencing court’s alleged bias, prejudice, and

ill will toward him. In specific, Appellant argues the sentencing court failed to

take account of Appellant’s alleged drug dependence that stems from his

treatment for a work related injury. As noted just above, this issue is not

cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2). Furthermore,

§ 9543(a)(3) provides that claims previously litigated are not eligible for

collateral relief. A claim is previously litigated if the “highest appellate court

in which the petitioner could have had review as a matter of right has ruled

on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2). This Court reviewed

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and rejected Appellant’s claim of sentencing court bias on direct appeal.

Commonwealth v. Faust, Nos. 943 and 944 EDA 2020 (Pa. Super. 5/20/21),

unpublished memorandum, at 9-12. Our Supreme Court denied allowance of

appeal. Thus, Appellant’s claim has been previously litigated for purposes of

the PCRA. Appellant develops no argument that his sentencing counsel was

ineffective in any way, nor does he raise any other issue that is cognizable

under the PCRA.

No findings of fact are at issue in this appeal, and we discern no error

in the PCRA court’s legal conclusion. We therefore affirm the order dismissing

Appellant’s petition.

Order affirmed.

Date: 3/1/2024

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