Com. v. Bean, D. ( 2018 )

J-S45040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID CHARLES BEAN :
:
Appellant : No. 1512 MDA 2017
Appeal from the Judgment of Sentence June 5, 2017
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0002186-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID CHARLES BEAN :
:
Appellant : No. 1513 MDA 2017
Appeal from the Judgment of Sentence June 5, 2017
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0001868-2014
BEFORE: PANELLA, J., OTT, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 07, 2018
In these consolidated cases, Appellant, David Charles Bean, appeals
from the judgment of sentence imposed following his jury conviction of eight
burglaries, and related crimes. Specifically, Appellant challenges the denial of
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* Retired Senior Judge assigned to the Superior Court.
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his motion to suppress evidence, and the discretionary aspects of his
sentence. We affirm.
The underlying facts of the case are not in dispute. The jury convicted
Appellant of eight burglaries and one attempted burglary. The trial court
imposed an aggregate sentence of not less than thirty-two years and three
months, nor more than sixty-four years and six months of incarceration in a
state correctional institution. (See N.T. Sentence, 6/05/17, at 12-17).
Of particular note for the first question on appeal, after his arrest
Appellant offered to provide law enforcement with evidence of other
burglaries, not committed by him. The suppression court provides a narrative
of the district attorney’s response:
[Appellant] had written to the detective to offer information
about other unrelated matters and was brought into the district
attorney’s office to be interviewed in that regard. After
[Appellant] has a lengthy, supposedly private, discussion with his
attorney, the detectives and the District Attorney enter the room
and the District Attorney tells [Appellant] that in addition to taking
the information he has to offer, the detectives will ask him about
pending criminal charges because they need to establish his
credibility. He is told that he must provide 100% cooperation but
that the [District Attorney] is “not making [him] any promises in
exchange” for the information provided, and that there is “no
agreement as to how the pending cases are to be handled other
than that I will take into account your level of cooperation”. The
District Attorney promises [Appellant] that "you will be better off
for having cooperated with me than not, but other than that, I
can’t promise you anything”. The only mention of a plea
agreement is that there is none.
(Suppression Court Opinion and Order, 3/15/16, at 2) (footnote omitted).
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Notwithstanding the narrowly limited nature of the District Attorney’s
commitment, Appellant, after conferring with counsel, elected to waive his
Miranda1 rights, and gave a statement to the county detectives, which
incriminated him in four burglaries at issue in this case.
Appellant filed a pre-trial motion to suppress the statement he gave to
the detectives about the burglaries. The suppression court denied the motion.
The jury convicted Appellant of the crimes previously identified.
At the sentencing hearing, the court, with the benefit of a pre-sentence
investigation report (PSI), noted Appellant’s prior record score and that
Appellant was a repeat felon (REFEL). (See N.T. Sentence, at 2). The
sentencing court observed that Appellant had a life-long criminal record
extending to his mid-forties, including many sentences which were served in
their entirety. The court decided that Appellant was “totally incapable of any
kind of rehabilitation.” (Id. at 12). The sentencing court also found Appellant
to be “totally without any remorse” and concluded that society needed to be
protected from his continuing criminal activities. (Id.). Appellant filed a post-
sentence motion claiming an excessive sentence, which the trial court denied
(except for the grant of credit for time served). This timely appeal followed.2
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 Counsel filed a statement of errors on October 6, 2017. The suppression
court filed an opinion and order on March 15, 2016. The trial court filed an
order denying a motion for reconsideration of sentence on August 16, 2017.
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Appellant presents two questions for our review:
I. Did the trial court err by denying the Appellant’s motion
to suppress statements made to District Attorney Detectives when
he was making a proffer in order to cooperate for a plea
agreement?
II. Did the trial court abuse its discretion by sentencing the
Appellant to an aggregate term of [not less than thirty-two] years
and [three months] to [not more than sixty-four] years and [six]
months for burglary offenses?
(Appellant’s Brief, at 4).
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010), appeal denied,
562 U.S. 832 (2010) (citation omitted). “It is within the suppression court’s
sole province as factfinder to pass on the credibility of witnesses and the
weight to be given their testimony.” Commonwealth v. Gallagher, 896
A.2d 583, 585 (Pa. Super. 2006) (citation omitted). Moreover, our scope of
review from a suppression ruling is limited to the evidentiary record that was
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The trial court filed a Rule 1925(a) opinion, referencing the pertinent
preceding opinions, as the basis for its decisions. (See 1925(a) Statement of
Trial Judge, 10/18/17). See also Pa.R.A.P. 1925.
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created at the suppression hearing. See In re L.J., 79 A.3d 1073, 1087 (Pa.
2013).
Here, Appellant first argues that his inculpatory statements were made
in hopes of a plea agreement, and therefore admitted into evidence in violation
of Pennsylvania Rule of Evidence 410(a)(4).3 (See Appellant’s Brief, at 9).
We disagree.
On independent review, we conclude that the suppression court’s factual
findings are supported by the record and the legal conclusions drawn from
those facts are correct. The plain meaning of the interaction between the
district attorney, Appellant, and his counsel, as found by the suppression
court, is that the district attorney was not willing to engage in plea
discussions. Therefore, Rule 410 does not apply.
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3 In pertinent part, Rule 410 provides:
(a) Prohibited Uses. In a civil or criminal case, evidence of the
following is not admissible against the defendant who made the
plea or participated in the plea discussions:
* * *
(4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions did not
result in a guilty plea or they resulted in a later withdrawn guilty
plea.
Pa.R.E. 410(a)(4) (emphasis added).
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That Appellant, who had the benefit of conferring with counsel, chose to
cooperate anyway does not convert the district attorney’s refusal to bargain
into a plea discussion. As the trial court succinctly noted, “[t]he only mention
of a plea agreement is that there is none.” (Suppression Ct. Op. and Order,
at 2).
Of primary importance in assessing an accused’s subjective
expectation of negotiating a plea is whether the Commonwealth
showed an interest in participating in such discussions. In line
with this reasoning, voluntary, unsolicited statements uttered by
an accused to authorities cannot be said to be made in furtherance
of striking a plea bargain.
Commonwealth v. Calloway, 459 A.2d 795, 801 (Pa. Super. 1983).
Considering the totality of the circumstances, in particular the district
attorney’s personal appearance and express disclaimer of any interest in a
plea bargain, we conclude that the suppression court properly found that there
was no plea discussion and therefore no basis to exclude Appellant’s
voluntary, inculpatory statements. Appellant’s argument does not merit relief.
In the second argument for his first claim, Appellant asserts that his
waiver of Miranda rights was not knowing, intelligent and voluntary. (See
Appellant’s Brief, at 21-23). We disagree.
Preliminarily, we note that Appellant has failed to include this issue in
his statement of errors. (See Concise Statement, 10/06/17, at 1-2).
Accordingly, this claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).
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Moreover, the claim would not merit relief. The record leaves no doubt
that Appellant had the benefit of counsel and conferred with him before signing
a Miranda waiver. (See N.T. Suppression Hearing, 3/11/16, at 4).
“[W]hen a suspect waives his right to counsel after receiving warnings
equivalent to those prescribed by Miranda v. Arizona, supra, that will
generally suffice to establish a knowing and intelligent waiver of the Sixth
Amendment right to counsel for purposes of post-indictment questioning.”
Commonwealth v. Kuzmanko, 709 A.2d 392, 397 (Pa. Super. 1998),
appeal denied, 729 A.2d 1126 (Pa. 1998) (quoting Michigan v. Harvey, 494
U.S. 344, 349 (1990)).
Here, it bears emphasis that Appellant was never deprived of the
opportunity to confer with counsel. To the contrary, he conferred with counsel
and chose to speak with the detectives anyway. (See N.T. Suppression
Hearing, at 4). Appellant’s Miranda claim is waived. His first claim does not
merit relief.
In his second question, Appellant challenges the discretionary aspects
of his sentencing. (See Appellant’s Brief, at 4). Appellant argues that the
sentencing court abused its discretion by imposing a sentence which is
manifestly excessive. (See id. at 24-26). We disagree.
“It is well-settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.” Commonwealth v.
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Mastromino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825
(Pa. 2011) (citation omitted).
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. Two requirements must be
met before we will review this challenge on its merits. First, an
appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. The
determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must show actions
by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004) (citations omitted). “Of course, we do not
accept bald assertions of sentencing errors. Rather, Appellant must support
his assertions by articulating the way in which the court’s actions violated the
sentencing code.” Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.
Super. 2006) (citation omitted).
Here, Appellant has included in his brief a Rule 2119(f) statement of
reasons for the allowance of an appeal of the discretionary aspects of his
sentence. (See Appellant’s Brief, at 8). However, he has failed to show
actions by the trial court inconsistent with the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process.
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Rather, Appellant makes a bald claim of excessiveness, citing his age
(forty-four at sentencing), and concluding that the court imposed a “de facto
[ ] life sentence.” (Id.). He reaches the conclusion of a life sentence by
combining the instant thirty-two year minimum sentence with a separate
minimum sentence of eighteen years’ imprisonment for rape and further sex
offenses unrelated to these burglaries.
The fifty-year sentence is a function of Appellant’s numerous crimes, not
a defect in sentencing, a deviation from the fundamental norms underlying
the sentencing process or a violation of the Sentencing Guidelines. We
conclude that Appellant fails to present a substantial question. His excessive
sentence claim does not merit review.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/07/2018
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4 Moreover, we recognize that the sentencing court properly exercised its
discretion in declining to afford Appellant a “volume discount.”
Commonwealth v. Belsar, 676 A.2d 632, 636 (Pa. 1996).
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