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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S45040-18


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

____________________________________________


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.




____________________________________________


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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