J-S45040-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

DAVID CHARLES BEAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

 Appellee

v.

DAVID CHARLES BEAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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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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 

Miranda1rights, 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 postsentence 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).