J-S06009-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID WAYNE FAUST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

DAVID WAYNE FAUST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 postsentence 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 presentence 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