Com. v. Tarapchak, S. ( 2020 )

J-S17021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
STEPHANIE TARAPCHAK
Appellant No. 281 MDA 2018
Appeal from the Judgment of Sentence Entered March 10, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0000550-2014
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2020
Appellant Stephanie Tarapchak appeals nunc pro tunc from the March
10, 2016 judgment of sentence entered in the Court of Common Pleas of
Lackawanna County (“trial court”), following her jury convictions for insurance
fraud, theft by deception, corrupt organizations, perjury, endangering the
welfare of children (“EWOC”), drug delivery resulting in death, distributing
prescription to drug dependent person, and refusal or failure to keep records.1
Upon review, we affirm.
The facts and procedural history of this case are undisputed.2 Appellant
operated a small internal medicine practice in Ashland, Pennsylvania. She
____________________________________________
118 Pa.C.S.A. §§ 4117(a)(2), 3922(a)(1), 911(b)(2), 4902(a), 4304(a)(1),
2506(a), and 35 P.S. § 780-113(a)(13), (21), respectively.
2Unless otherwise specified, these facts come from the trial court’s July 17,
2019 opinion. See Trial Court Opinion, 7/17/19, at 3-6, 27-30, 42-43, 51-
53.
J-S17021-20
became the focus of an extensive narcotics and drug diversion investigation,
which led to an audit of her DEA, license, including prescription orders,
practices, and dispensation in January 2008 through February 2012, spanning
three Pennsylvania counties, Lackawanna, Luzerne, and Schuylkill.
Concomitantly, Appellant prescribed and dispensed excessive amounts of
narcotics to her paramour, Delton Bolton, as well as her minor child, F.T.,
whereby Appellant became engaged in a hostile custody dispute with her ex-
husband, Alex Tarapchak. Additionally, Appellant was investigated in
connection with the fatal drug overdose of Thomas Kromer (the “victim”). On
April 7, 2014, the Office of the Attorney General charged Appellant with, inter
alia, the above-mentioned offenses.
Subsequently, on September 21, 2015, Appellant proceeded to a two-
week jury trial on all of the above-cited criminal offenses. During trial, the
Commonwealth presented thirty-four witnesses and admitted a voluminous
amount of exhibits. With respect to the victim’s death, the Commonwealth
offered the testimony of six witnesses.
First, several witnesses including Deputy Coroner, David Truskowsky,
pharmacy manager Scott Rishel, and pain management expert, Dr. Stephen
Thomas testified that Appellant prescribed Oxycodone to the victim on June
6, 2011. Second, Mr. Rishel, and Dr. Thomas testified that Appellant
prescribed an increased dosage and prescription, which was not in good faith
or in accordance with treatment principles accepted by a responsible segment
of the medical profession in violation of the Controlled Substance, Drug,
-2-
J-S17021-20
Device, and Cosmetic Act. Specifically, Dr. Thomas testified that Appellant
failed to comply with the minimal activities outlined by the Pennsylvania Code
for prescribing controlled substances. He noted that Appellant failed to
document any medical decision making regarding the victim throughout his
seven years as her a patient. Dr. Thomas testified that despite Appellant’s
recognition of the victim’s apparent physical susceptibility as an individual,
and apparent misuse/abuse of his opioid prescription, Appellant enhanced the
toxicity of his opioids and did nothing to minimize the fatal effects. Mr. Rishel
testified that the victim’s May 19, 2011 Oxycodone prescription should not
have necessitated a re-fill prior to June 14, 2011. He recalled that on June 6,
2011, Appellant prescribed an increased dosage and a different medication so
as to enable the victim to re-fill his prescription early, and evade insurance
restrictions. He verified that if the victim attempted to re-fill the May 19, 2011
Oxycodone prescription on June 6, 2011, his insurance would have rejected
payment. Importantly, Mr. Rishel explained that if a person seeks to re-fill a
prescription earlier than their supply expiration, then the person must be
ingesting the prescription above the therapeutic range.
Third, forensic pathologist, Dr. Richard Bindie, and pain management
expert, Dr. Thomas, testified that the victim died as a result of using the June
6, 2011 Oxycodone prescription. Dr. Bindle testified within a reasonable
degree of medical certainty that the combined adverse effects of the multiple
drugs in the victim’s system induced depressed respiration and arrhythmia.
Dr. Thomas testified within a reasonable degree of medical certainty that the
-3-
J-S17021-20
normal therapeutic concentration of Oxycodone is less than 100 nanograms
per ML and death has been known to occur in susceptible individuals at a level
greater than 200 nanograms ML. In this case, Dr. Thomas noted that the
victim’s urine concentration reflected Oxycodone at 300 nanograms ML, the
highest concentration of any controlled substance within his system at death.
Similar to Dr. Bindie, Dr. Thomas confirmed that the Alprazolam within the
therapeutic range and the Oxycodone in the toxic range acted synergistically
to cause respiratory depression and led to the victim’s death.
Finally, Tracy and David Kuczynski testified that the victim appeared
overmedicated and disheveled. Mrs. Kuczynski noted that Appellant failed to
provide the victim with instructions or safety mechanisms to prevent abuse
and ensure that the victim ingested his prescriptions within the therapeutic
range. Mr. Kuczynski confirmed that Appellant hardly ever examined or
evaluated the victim prior to filling his prescriptions. He also confirmed that
Mr. Kromer re-filled his prescriptions at least seven to ten days earlier than
his supply expiration. Mr. Rishel corroborated that the victim’s May 19, 2011
Oxycodone prescription should have lasted until June 14, 2019. Instead, Mr.
Rishel recalled that Appellant increased the dosage of the victim’s prior
prescription and changed the medication to Oxycodone without Tylenol. He
explained Appellant’s modification enabled an early re-fill, evaded insurance
restrictions, and represented an increase three times the strength of his
previous prescription.
-4-
J-S17021-20
Dr. Bindie opined that a patient like the victim, who is predisposed to
arrhythmia and is prescribed opiates will experience adverse effects that could
increase blood pressure or decrease oxygen and lead to cardiac arrest. He
testified that an individual will die from arrhythmia produced by the
combination of all the drugs that were present in the victim’s urine
concentration at death. Lastly, Dr. Thomas testified that the victim lacked a
medical record, lacked regular visitation or examination, yet he obtained
prescriptions from Appellant at an accelerating pace. He observed that
Appellant enabled the victim, a susceptible individual to misuse/abuse his
prescriptions at a continuing and accelerated rate. Dr. Thomas concluded that
Appellant prescribed a toxic dosage of Oxycodone to the victim for an
underlying headache without any documented medical rationale in order to
bypass the victim’s insurance safeguards. Dr. Thomas found that Appellant’s
actions were anything but accidental and showed no consideration for the
consequences of her increase to the victim, an individual she knew susceptible
to psychiatric illness and arrhythmia consumed his opioids in a haphazard and
reckless manner.
The Commonwealth also presented evidence demonstrating that
Appellant owned the internal medicine practice in Ashland. Appellant
exhibited control of the distribution of narcotics to individuals in Ashland
through her internal medicine practice and fraudulently billed insurance
companies.
-5-
J-S17021-20
Appellant’s paramour, Mr. Bolton, testified that Appellant dispensed or
prescribed quantities of Vicodin and testosterone to him throughout their two
year relationship utilizing the Moore catalog. He recognized the Moore
catalog, and described in detail the manner in which Appellant ordered the
Vicodin, and designated the location of the Vicodin, on the nightstand. Mr.
Bolton testified that he became a daily Vicodin user. He ingested fifteen pills
at one hundred and fifty milligrams. Similarly, Mr. Bolton routinely employed
testosterone injections. All controlled substances knowingly supplied by
Appellant, despite Mr. Bolton’s apparent addiction. In fact, Mr. Bolton
described the manner in which Appellant surreptitiously provided an elderly
patient’s blood sample on behalf of Mr. Bolton, and increased the dosages of
Adderall so as to bypass insurance regulations.
Mr. Bolton related that he suffered withdrawal symptoms when he
fought with Appellant, and Appellant controlled his access. He felt
manipulated and compelled to stay with Appellant so as to feed his addiction.
He testified: “our relationship was very codependent [. . .] I was sick of being
dependent on the medicine [. . .] I wanted to be able to wake up and not
have to [. . .] need 5 Vic 10’s to function to go to work [. . .] and it didn’t
happen. She dangled that out there. And then next thing you know, I’m
taking them and I’m in a vicious cycle again.” Mr. Bolton verified Appellant’s
awareness of his addiction, and admitted that they discussed his addiction on
several occasions. Dr. Babar Choudhry confirmed Appellant’s awareness of
Mr. Bolton’s addiction, and testified that Appellant became a part of his
-6-
J-S17021-20
discharge plan. Dr. Choudhry warned Appellant to discontinue the psychiatric
and pain medication prescriptions.
Dorothy Berg, an insurance representative, testified that the insurance
company relied on Appellant’s misrepresentations as material information
necessary to process payment. Ricky White (Appellant’s former paramour
who oversaw the billing department), Kelly McDonald (Appellant’s office
manager), and Ms. Berg testified that Appellant always billed using codes
99214 or 99215 and billed the same treatments for the same patient on
multiple occasions. Mr. White testified that Appellant submitted false claims
with the intent to defraud the insurance company, in that Appellant billed, and
re-billed for treatments knowing that the treatments never occurred. Mr.
White clarified multiple explanation of benefits letters listing dates of services
that made his presence or her presence clearly impossible. Conspicuously,
Appellant billed for dates of services, which included: a few days after giving
birth, during a scheduled court appearance, and while Mr. White and Appellant
were court ordered to have no contact as well as days Mr. White worked. Both
Ms. McDonald and Mr. White testified that Appellant held intimate knowledge
of the billing practice, refused to outsource the billing, and retained control
over and complicity with the fraudulent claims.
Similarly, Ms. Berg indicated that Capital Blue Cross began flagging
claims submitted by Appellant’s medical practice. In 2008 and 2009, Capital
Blue Cross notified Appellant’s practice of its improper 99215 coding versus
the procedures actually performed. Although Capital Blue Cross and Ms. Berg
-7-
J-S17021-20
informed Appellant of the coding problem, Appellant’s medical practice
continued to bill at 92214 and 92215 codes without complete medication
documentation. Ms. Berg testified that she discussed the use of the incorrect
code with Appellant and provided alternative codes to office manager Ms.
McDonald; however despite being advised, Capital Blue Cross received
subsequent claims in 2011 with the code 92215 lacking any documentation
on the patient’s progress note.
At the conclusion of trial, the court granted demurrer as to the charge
of controlled substance contraband to confined persons, 18 Pa.C.S.A. §
5123(a). Thereafter, the jury began deliberations, and on October 6, 2015,
the jury found Appellant guilty of insurance fraud, theft by deception, corrupt
organizations, perjury, EWOC, drug delivery resulting in death, distributing
prescription to a drug dependent person, and refusal or failure to keep
records.3
The trial court directed the Lackawanna County Adult Probation
Department to prepare a pre-sentence investigative report (“PSI”). In
preparation for sentence, the court carefully reviewed the applicable standard
Sentencing Guidelines, Appellant’s PSI, a Sentencing Memo dated February
22, 2016, including all mitigating and aggravating factors, as well as
correspondence from victims, and oral statements by Appellant’s children and
____________________________________________
3 The jury acquitted Appellant of other charges, including criminal conspiracy,
recklessly endangering another person, acquisition by misrepresentation or
fraud, and administration or prescription of controlled substances outside the
scope of practice.
-8-
J-S17021-20
current paramour. Additionally, the court carefully considered Appellant’s
underlying criminal conduct, the seriousness and frequency of Appellant’s
offenses, as well as the particularized facts associated with Appellant’s
conduct, placing her patients at risk and causing loss of life. The court stated:
“your understanding that came from your medical background was put aside
as you attempted to provide people who you clearly knew were addicted with
things that would only enhance their addiction, and, as in this case, result in
the loss of life of one of those people.” Further, the court stated: “when I saw
that you put drugs in the hands of a member of your own family who was a
minor. That presents serious problems to the court, because I don’t know
what was clouding your thinking, because in your mind you had to know you
were doing wrong. To give a prescription without the appropriate diagnostic
procedures and having to treat the person fully, clearly is doing wrong from
the perspective of being a healer of people.” Therefore, the court sentenced
Appellant to an aggregate term of ninety to one hundred and eighty months’
imprisonment.4
Subsequently, on July 5, 2016, Appellant filed a counseled “Petition for
Review Post-Sentence Motion Nunc Pro Time.” Upon conclusion of a hearing
____________________________________________
4 In particular, Appellant was sentenced to three to six months’ incarceration
with respect to insurance fraud, six to twelve months with respect to theft by
deception, nine to eighteen months for corrupt organizations, nine to eighteen
months for perjury, three to six months for EWOC, sixty to one hundred and
twenty months for drug delivery resulting in death, three to six months for
distributing prescription to a drug dependent person, and six months’
probation for refusal or failure to keep records.
-9-
J-S17021-20
held on September 7, 2016, the court held the matter under review, wherein
Appellant filed a supplemental brief in support on October 28, 2016. While
pending review, Appellant prematurely filed a pro se notice of appeal, and
later sought removal of post-trial counsel. On September 11, 2017, Appellant
filed a pro se petition under the Post- Conviction Collateral Relief Act, citing
abandonment of post-trial counsel and an inability to file a direct appeal. On
January 17, 2018, the PCRA court reinstated Appellant’s ability to file a direct
appeal and appointed appellate counsel. On February 6, 2018, Appellant filed
a timely notice of appeal to this Court. Due to the voluminous and complex
nature of Appellant’s case, appellate counsel requested multiple extensions to
file a concise statement. Appellant filed a concise statement on December 18,
2018, raising fourteen assertions of error. In response, the trial court issued
a detailed Pa.R.A.P. 1925(a) opinion, concluding that Appellant was not
entitled to relief.
On appeal, Appellant presents the following issues for our review:
[1.] Whether the evidence was insufficient as a matter of law to
sustain a conviction on the charge of drug delivery resulting in
death where the Commonwealth failed to prove the requisite mens
rea of malice and the element of causation[.5]
____________________________________________
5 To the extent Appellant argues that the evidence was insufficient because
she was acquitted on a separate, general charge under 35 P.S. § 780-
113(a)(14), such argument is waived, as the Commonwealth points out,
because she failed to raise it in her Rule 1925(b) statement. 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.”); see
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating, “[a]ny
issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”).
- 10 -
J-S17021-20
[2.] Whether the evidence presented by the Commonwealth was
insufficient as a matter of law to establish each element beyond a
reasonable doubt for the crime of conviction of Corrupt
Organizations in violation of 18 Pa. C.S.A. § 911(b)(2)[.]
[3.] Whether the trial court erred and abused its discretion in
allowing the substance of text messages and Facebook messages
to be admitted into evidence and attributed to Appellant without
proper foundation and authentication establishing that Appellant
was the author of said message[.]
[4.] Whether the trial court erred and abused its discretion in
allowing the testimony of James Hirscher that Appellant’s
daughter suffered an overdose as a result of medication alleged
provided by Appellant[.]
[5.] Whether the trial court erred and abused its discretion in
allowing the admission of transcripts from Appellant’s custody
matter with judicial findings that the [c]ourt believed that
Appellant had lied[.]
[6.] Whether the trial court erred as a matter of law in admitting
evidence of prior bad acts pursuant to Pa. R. E. 404(b) including:
i. Testimony of Karen Mervine regarding her belief
that Appellant was responsible for Mervine’s mother’s
addiction, as well as testimony regarding drug addicts
frequenting Appellant’s office and her opinion that
Appellant allowed Kelly McDonald to illegally write
prescriptions;
ii. Testimony of Robert Phillips that left the erroneous
impression that Appellant committed a crime when
she was in possession of prescription medication for
which no criminal charges were filed or sought[.]
[7.] Whether the trial court erred as a matter of law and violated
Appellant’s Due Process rights by failing to instruct the jury that
they must not draw any adverse inference from her decision to
remain silent, rather than take the witness stand in her own
defense[.]
[8.] Whether, to the extent that any evidence was properly
admitted pursuant to an exception under Rule 404(b), the trial
court erred as a matter of law in failing to identify and failing to
- 11 -
J-S17021-20
instruct the jury detailing the limited purpose(s) for which such
evidence may be considered, thereby depriving Appellant of a fair
trial[.]
Appellant’s Brief at 5-6.
At the outset, as the Commonwealth notes and we agree, Appellant has
waived several of her issues on appeal. In particular, she has waived issues
3, 4, 5, 6(i), 7 and 8 because she failed to preserve them in the trial court.
With respect to issues 3 through 6(i), our review of the record confirms that
Appellant failed to assert contemporaneous objections to evidence admitted
at trial. It is settled that an appellant’s “failure to raise a contemporaneous
objection to evidence at trial waives that claim on appeal.” Commonwealth
v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citation omitted); see
Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (to
preserve issue for appellate purposes, party must make timely and specific
objection to ensure trial court has opportunity to correct alleged error); Keffer
v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012)
(“one must object to errors, improprieties or irregularities at the earliest
possible stage of the adjudicatory process to afford the jurist hearing the
case the first occasion to remedy the wrong and possibly avoid an unnecessary
appeal to complain of the matter.”) (citations omitted) (emphasis added); see
also Pa.R.E. 103(a) (providing that an “[e]rror may not be predicated upon a
ruling that admits or excludes evidence unless . . . a timely objection . . .
appears of record.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
- 12 -
J-S17021-20
With respect to issues 7 and 8, Appellant neither requested an adverse
inference and a Rule 404(b) instructions nor objected to their omission.
Failure to request an instruction upon the introduction of evidence “constitutes
a waiver of a claim of trial court error in failing to issue a cautionary
instruction.” Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004); see
Pa.R.Crim.P. 647(C) (“No . . . omissions from the charge may be assigned as
error, unless specific objections are made thereto before the jury retires to
deliberate. All such objections shall be made beyond the hearing of the
jury.”). Even if these issues were not waived, we would still conclude
Appellant would not be entitled to relief based on the reasons set forth in the
trial court’s 1925(a) opinion. See Trial Court Opinion, 7/17/19, at 55-71, 73-
82.
We now turn to Appellant’s first two issues, which challenge the
sufficiency of evidence. In particular, Appellant argues that the evidence was
insufficient to sustain her convictions for drug delivery resulting in death and
corrupt organizations. A claim challenging the sufficiency of the evidence is a
question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000).
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
- 13 -
J-S17021-20
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
Appellant’s sufficiency challenge regarding drug delivery resulting in
death lacks merit. At the time of the victim’s death, the then in-effect and
now repealed version of Section 2506 of the Crimes Code provided:
A person commits murder of the third degree who administers,
dispenses, delivers, gives, prescribes, sells or distributes any
controlled substance or counterfeit controlled substance in
violation of section 13(a)(14) or (30) of the act of April 14, 1972
(P.L. 233, No. 64) known as The Controlled Substance, Drug,
Device and Cosmetic Act, and another person dies as a result of
using the substance.
18 Pa.C.S.A. § 2506(a) (repealed Sept. 6, 2011). In Commonwealth v.
Ludwig, 874 A.2d 623 (Pa. 2005), the Supreme Court found that although
the now-repealed Section 2506(a) did not contain an explicit mens rea, “the
General Assembly has provided a default culpability provision in Section
302(c) of the Crimes Code that is to be applied to determine the appropriate
element of culpability.” Ludwig, 874 A.2d at 630. The Court concluded that,
by designating the crime as one of murder in the third degree, culpability was
- 14 -
J-S17021-20
otherwise provided because it had long held that the mens rea for murder in
the third degree was malice. Id. at 630–31.
Here, after careful review of the record and relevant case law, we
conclude that the trial court accurately and thoroughly addressed the merits
of Appellant’s sufficiency challenge regarding her conviction for drug delivery
resulting in death. See Trial Court Opinion, 7/17/19, at 17-36. The court
found, among other things, that Appellant demonstrated extreme indifference
to human life by continuing to prescribe the victim opioids at an accelerated
pace without (a) adequately evaluating him, (b) maintaining medical records
or (c) a prescribing rationale. Id. at 34. The trial court found that Appellant
was aware that the victim “consumed his opioid prescriptions in a haphazard
and reckless manner, presented with several psychiatric diagnoses as well as
chronic obstructive pulmonary disease, and possessed a predisposition for
arrhythmia.” Id. Yet, “she deliberately increased the potency and dosage”
of his prescriptions “so as to bypass the restraint of the insurance company.”
Id. In so doing, Appellant consciously disregarded an unjustified and
extremely high risk that her actions might cause death or seriously bodily
injury. Id. Accordingly, we agree with the trial court’s conclusion that, viewed
in a light most favorable to the Commonwealth, the evidence establishes that
the Commonwealth proved beyond a reasonable doubt that Appellant
committed drug delivery resulting in death.
In her second issue, Appellant challenges the sufficiency of the evidence
supporting her conviction for corrupt organizations. Section 911 of the Crimes
- 15 -
J-S17021-20
Code, relating to corrupt organizations, provides in relevant part that “[i]t
shall be unlawful for any person through a pattern of racketeering activity to
acquire or maintain, directly or indirectly, any interest in or control of any
enterprise.” 18 Pa.C.S.A. § 911(b)(2). “Racketeering activing” is “[a]n act
which is indictable under any of the following provisions of [the Crimes Code],”
including, inter alia, theft, insurance fraud, and violation of the Controlled
Substances Act. 18 Pa.C.S.A. § 911(h)(1)(i), (ii). A “pattern of racketeering
activity” is “a course of conduct requiring two or more acts of racketeering
activity[.]” 18 Pa.C.S.A. § 911(h)(4). An “enterprise” is defined as “any
individual, partnership, corporation, association or other legal entity, and any
union or group of individuals associated in fact although not a legal entity,
engaged in commerce and includes legitimate as well as illegitimate entities
and governmental entities.” 18 Pa.C.S.A. § 911(h)(3).
Here, we conclude that the trial court also accurately and thoroughly
addressed the merits of Appellant’s sufficiency challenge regarding her
conviction for corrupt organizations. See Trial Court Opinion, 7/17/19, at 36-
55. The trial court found, inter alia, that Appellant “either directly or indirectly
participated in a pattern of racketeering activity through the two predicate
acts of Insurance Fraud, and Distributing Prescriptions to Drug Dependent
Person.” Id. at 53-54. The court reasoned:
The two predicate acts formed a pattern related to the enterprise
in that Appellant used the resources of her medical practice to
acquire and maintain through the Moore catalog an inventory of
narcotics. She utilized this inventory to supply Vicodin to her
drug-addicted paramour without a prescription so as to avoid
- 16 -
J-S17021-20
insurance regulations and criminal investigation. She further used
the resources of the enterprise, including the labor of her
employees, and unwitting patients to receive income from
insurance companies and funnel the income to herself under the
guise of legitimate income. Appellate engaged in illegal commerce
on an ongoing regular basis, supplying patients with excessive
opioid prescriptions without conducting examinations, or
documenting her medical decision making, yet fraudulently billing
insurance companies as if she did.
Id. at 54. We therefore agree with the trial court’s conclusion that, viewed in
a light most favorable to the Commonwealth, the evidence establishes that
the Commonwealth proved beyond a reasonable doubt that Appellant was
guilty of corrupt organizations.
We finally address Appellant’s sole remaining issue challenging the trial
court’s evidentiary ruling admitting testimony of Mr. Robert Phillips. It is
settled:
[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or misapplication
of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.
Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal
citations omitted). Moreover, an appellant bears a “heavy burden” to show
that the trial court has abused its discretion. Commonwealth v. Christine,
125 A.3d 394, 398 (Pa. 2015).
We conclude the trial court did not abuse its discretion in permitting Mr.
Phillips, a Deputy Sheriff for the Schuylkill County Domestic Relations Office,
- 17 -
J-S17021-20
to testify regarding Appellant’s possession of narcotics (Percocet 30s tablets)
wrapped in cellophane when Appellant was not charged with any crimes
relating to the possession. Trial Court Opinion, 7/17/19, at 71-72. The trial
court reasoned that Mr. Phillips’ testimony was admissible “to show motive to
commit criminal acts and support her addition.” Id. at 73. Moreover,
evidence of “Appellant’s drug addiction explains the history of the case,
including events surrounding her criminal conduct for which [she] is charged.”
Id. Mr. Phillips’ testimony was not prejudicial in that it did not create in the
minds of the jury an impression that Appellant had committed a crime, much
less a possessory crime. Mr. Philips expressly testified that Appellant claimed
to have a valid prescription for the narcotics and that she was never charged
with any crimes relating to her possession of the same. Id. Thus, the court
found, and we agree, “the probative value of Mr. Phillips’ testimony
outweighed the prejudicial effect.” Id.
In sum, we conclude that Appellant waived issues 3, 4, 5, 6(i), 7 and 8,
the evidence was sufficient to sustain her convictions for drug delivery
resulting in death and corrupt organizations, and the trial court did not abuse
its discretion in allowing Mr. Philips to testify regarding Appellant’s possession
of narcotics. Accordingly, we affirm Appellant’s March 10, 2016 judgment of
sentence. We further direct that a copy of the trial court’s July 17, 2019 Rule
1925(a) opinion be attached to any future filings in this case.
Judgment of sentence affirmed.
- 18 -
J-S17021-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/23/2020
- 19 -
Circulated 05/28/2020 03:49 PM
COl\'IMONWEAL1.'EC OF lN THE COURT OF COMMON PLEAS
PENNSYLVANIA OF LACKAWANNA COUNTY
v.
STEPHANIE T ARAPCIIAK.
MEMORANDUM
BRAXIQN. £wL
-piis opinion is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure and pursuant to the request of the Penasylvanie Superior Court The
Appellant's grounds for appeal are as follows:
A. Wbetb.01· the trial conrt erred and abused its discretion in allowing
the substance of text messages and Facebook messages to be
aihn.itted into evidence and attributed to Appellant without
· foundational evidence proving that appellant was tho author of
said messages through the testimony of James Hischar?
B. Whether the evidence was insufficient as a matter of law to sastain
a conviction on the charge of drug delivery resulting in death as
the Commonwealth failed to prove the requtstte mens rea of
malice and failed to produce sufficient evidence to sustain a
verdict of guilty on the element of causation?
C. Whether the evidence was insufficient as a matter of law to sustain
a convictlon cm the charge of corrupt orga,iizations as the
Commonwealth failed to produce sufficient evidence to support a
finding that Appellant participated in racketeerlng activity and
that an "enterprise'' existed'!
D. Whether the trial court erred as a matter of law and vlolatnd the
Appellant',,; due process rights by falling to instruct th� jury that
they must not draw any adverse inference from her deelslon to
remain silent rather than take the witness stand in her own
defense?
...... ,.. _ ,_. --- "' � ·- .,,.., ' *' ..
. . -· ". ,.,_ -·· __ .. _.., -� .. � ..
E. Whether the trial court erred as a matter of law in denying the
Appellant's pre-trial motion to dismiss for lack of jurisdiction as
the case was not properly venued in Lackawanna County since the
charges joined for trial were not part of a single criminal episode
and Iaeked the requisite factnal basis to sustain such a finding, and
the facts underl,-ing the Appellant's medical practice and actions
associated with same occurred outside Lackawanna County and
should have been tried in. Schuylkill County violating th.e
Appellant's due process rights?
F. Whether the trial court erred as a matter oflaw in admitting
evidence of the following prior bad acts pursuant to Pa. R. E. 404
(b)?
a. The testimony of Alex Tnripchak regarding custody
proceedings and dlcgatious of drug use by the
Appellant; Tarapchak's ex-husband when she had
opposed in a contentious custody battle, testify thnt
Til.l'apchak used drugs all the time but no judge did
anything to her, and no notice was given of their intent
to use such conduct;
b. The admission of n-anscripts from the Appellant's
custody bearing with judicial findings that the court
believed that the Appellant had lied;
c. Testimony of Delton Bolton regarding the Appollant' s
drug and alcohol use;
d, Testimony of Karen Mervine regarding her belief thnt
that the Appellant was responsible for Ms. Merviue's
mother's addiction as well as testimony regarding drug
addicts frequenting the Appellant's office and her
opinion fuat the Appellant �llowed Kelly McDonald to
illegally write prescriptions;
e, Testimony of Robert Phillips that left the erroneous
intpres1,ion. that the Appellant committed a crime
when she was in possession of prescription medication
for which no erimmal charges were filed or sought;
f. Testimony detailing fue prescription statistics of Dr.
Kraynick who was not charged individually or as a
co-consplrater with the Appellant. This testimony
erroneously suggested. to the jury that the Appellant
engaged la illegal conduct witli. Dr. Kraynick;
2
g. Testimony of Trooper James Htschar that the
Appellant's daughrer suffered an overdose as a result
of medication allegedly provided by the Appellant.
· G. Whether the trial court erred as amatter of law in failing to identify
a llmltation on Rule 404(b) evidence and failing to instruct the Jury
detailing the llmlted purpose(s) for which such evidence may be
considered, depriving the Appellant of a fair trial?
FACTUAL AND PROCEDU,;ML,HISTORY
Appellant; Stephanie Tarapchak operated a small internal medicine practice in
Ashland, Pennsylvania. She became the focus of an extensive narcotics and drug
diversion investigation, which led to an audit of her DEA license, including prescription
orders> practices, and dispensation in January 2008 through February 2012, spanning
three Pennsylvania. counties, Lackawanua, Luzerne, and Schuylkill. Concomitantly, the
Appellant prescribed and dispensed excessive amounts of narcotics to her paramour.
Delton Bolton, as well as her minor child> Fallon Tarapchak, wherein the Appellant
became engaged in a hostile custody dispute with her ex-husband, Alex Tarapchak. As a
result oftb.e investigation, on April 7; 2014, the Office of the Attorney General charged
the- Appellant with the following: one (1) count of Insurance Fraud., 18 C,S. §4117 (.:t-)(2);
one (1) count of Theft By Deception-False Impression, 18 Pa. C.S. §3922(a){l); one (1)
count of Criminal. Conapiracy to Commit Th.eft By Deception, 18 Pa. C.S. §903; one (1)
count of Corrupt Organizations, 18 Pa, C.S. §911; one (1) count of Recklessly
Endangering Another Person. 18 Pa. C.S. §2705; one (1) count of Perjury, 18 Pa, C.S.
§4902(a); one (1) count ofEndangerlngtbe \Velfare of Children, 18 Pa, C.S.
§4304(a)(l); one (l) count of Controlled Substance Contraband to Confined Persons, 18
:Pa.. C.S. §S123(a); one (1) count of Drug Delivery Resulting in Death, 18 Pa. C.S.
3
§2506(a); one (1) count of Acquisition by Misrepresentation Fraud, etc., 35 P.S. §780-
l13(a){12); one (1) count of Distributing Prescription to Drug Dependent Person, 35 P.S.
§780-113(a)(13); one (1) count of Prohibited Acts, etc. Outside Scope of Practice, 35
P.S. §780-113(a)(14); and one (1) count of Prohibited Acts, Refusal or Failure to Keep
Records, 3S P.S. §780�U3(n)(21).
Subsequently) on September 211 20151 the Appellant proceeded to a two- week
jury trial on all of the above-cited criminal offenses. (Notes to Testimony heretnatter,
'�.T." September 21, 2015). During trial, the Commonwealth presented thirty-four
(34) witnesses and admitted a voluminous amount of exhibits. At the conclusion of trial,
this Court granted demurrer as to the charge of Controlled Substance Contraband to
Confined Persons, 18 Pa. C.S. §S123(a). (N.T. October 5, 2015 p. 22). Thereafter, the
jury began deliberation, and on October 6, :2015� the jury found the Appellant guilty as to
one (1) count of Insurance Fraud, one (1) count of Theft By Deception, one (1) count of
Corrupt Orgaaizations, one (1) count of Perjury, one (1) count of Endangering the
Welfare of Children, one (1) count of Drug Delivery Resulting in Death, one (1) count of
Distributing- Prescription to Drag Dependent Person, and one (1) count of Prohibited
Acts, Refusal or Failure to Keep Records. '!'he jury found the Appellant not guilty as to
one (1) count of Criminal Conspiracy to Commit Theft By Deception, one (1) count of
Recklessly Endangering Another Person, one (1) count of Acquisition By
Misrepresentation Fraud, eto., and one (1) count of Prohibited Acts, Outside Scope of
Practice. (N.T. October 6, 2015 p. 5-6).
Accordingly, this Court directed the Lackawanna County Adult Probation
Department to prepare a pre-sentence investigative report (hereinafter "PSI''). lg. at 10.
4
In preparation for sentence, this Court carefully reviewed the applicable standard
Sentencing Guidelines, the Appellant's PSI, a Sentencing Memo dated February 22,
2016, including all mitigating and aggravating factors, as well as correspondence from
victims, and oral statements by the Appellant's children and current paramour.
Additionally, this Court carefully considered the Appellant's underlying criminal
conduct, the seriousness and frequency of the Appellant's offenses, as well as the
particularized facts associated with the Appellant's conduct, placing her patients at risk
and causing loss of life. This Court stated: "your understanding that came from your
medical background was put aside as you attempted to provide people who you clearly
knew were addicted with things that would only enhance their addiction, and, as in this
case, result in the loss of life of one of those people." (N.T. March 10, 2016 p. 60-61).
Further, this Court stated: "when I saw that you put drugs in the hands of a member of
your own family who was a minor. That presents serious problems to this Court, because
I don't know what was clouding your thinking, because in your mind you had to know
you were doing wrong. To give a prescription without the appropriate diagnostic
procedures and having to treat the person fully, clearly is doing wrong from the
perspective of being a healer of people." Id. at 63. Therefore, this Court sentenced in
the standard range as follows:
insurance Fraud,
18 Pa. C.S. §4117(a)(2); three (3)- six (6) months
Theft By Deception-False Impression,
18 Pa. C.S. §3922(a)(l): six (6) - twelve (12) months
Corrupt Organizations,
18 Pa. C.S. §9ll(b)(2): nine (9)- eighteen (18) months
5
- · ---- - ··-···,-----·-····-----Pei·jui·y;···· · .,. · ······ · ··--·-··· ··· ·-··-··'"··-·········-'·-·····-···· ·• .
18 Pa. C.S. §4902(a): nine (9)- eighteen (18) mouths
Endangering Welfare of Child,
18 Pn. C.S. §4304(a.)(1): three (3) - six (6) months
Drug Delivery Resulting in Death,
18 Pa. C.S. §2S06(a): sixty (60)- one hundred and twenty (120) months
Dlstrlbuting Prescription to Drug Dependent Person,
35 P.S. §780 ... 113(a)(13): three (3)-six (6) months, concurrent
Prohibited Acts, Refusal or Failure to Keep Records,
35 P.S. §780�113(a)(21): six (6) months probation
Aggregate Sentence ninety (90)- one hundred and eighty (180) 1110111:hs with six (6)
months state probation.
(N.T. March 10� 2016 p. 66¥ 81).
Subsequently, on July 5, 2016� the Appellant filed a counseled "Petition for
Review Post-Sentence Motion Nuno Pro Tune." Upon conclusion of a hearing held 011..
September 7, 201'6, this Court held the matter under review, wherein the Appellant filed a
Supplemental Brief in Support on October 28, 2016. While pending review, the
Appellant prematurely filed a pro se Notice of Appeal, and later sought removal of post-
trial counsel. On September 111 2017, the Appellant file a prose petitionu.n4cr the Post-
Conviction Collateral Relief Act, citing abandonment of post-trial counsel and an
inability to file a direct appeal. On January 17, 2018� thfa Court reinstated tho
Appellant's ability to file a direct appeal and appointed appellate. counsel. On Pebruary
6, 2018) the Appellant filed a timely Notice of Appeal to the Pennsylvania Superior
Court. Due to th� vohuninous.and complex nature of the Appellant's case, appellate
counsel requested multiple extensions to file a Concise Statement. The Appellant filed a
Concise Statement on December 18: 2018.
6
DISCUSSIQi,{1
PRETRIAL
A. Whether the trial court erred in denying the Appellant's Motion to Dismiss fo:r
lack of jurisdiction based upon improper [cinder, where it is alleged that the
charges joined for trial were not parr of H single criminal episode and lacked the
requisite factual basis?2
Subject matter j'lu·isdicti.on speaks to the competency of a court to hear and
adjudicate the type of controversy presented. Jurisdiction is purely a. question of law; the
appellate standard of review is de novo and the scope of review is plenary. Controversies
stetn:ruing fro.in violations of the Crimes Code are entrusted to tho original jurisdiction of
the courts of common pleas for resoluti 011. All jurists within that tior of the unified
judieinl system arc competent to hear and resolve a matter arising out of the Crimes
Code. Comm011weaj.th v• .Ellia, 83 A.3d 254. 265 (Pa. Super. 2013). Jurisdiction
relates to the court's power to hear and decide the controversy presented.
CoDW),qnwealth v. Betq.eo, 828 A.2d 1066, 1074 (Pa. 2003). "[A]ll courts of common
pleas have state-wide subject matter jurisdiction in cases arising under the Crimes Code."
Id. Thus, this Court does possess subject matter jurisdiction. in this matter.
Tho Commonwealth. charged the Appellant with having violated the following
sections of the crimes code: Insurance Fraud, 18 Pa. C.S. §4117; Theft by Deception, 18
Pa. C.S. §3922; Criminal Conspiracy, 1.8 Pa. C.S. §903i Corrupt Organizations: 18 Pn.
I Due to the voluminous and complex n1:.ture of the above-captioned matter, th.is Court hl:I..S reorgenized the order of
the Appellant's issues to preserve simplicity and Improve continuity in the discnssica of each issue.
2 Listed as issue 5 In tho Appellant's Concise Statement of Brrors. The
Appellant incorrectly combines and muddies
subject matter Jurisdiction, venue, and joinder in one Issue, therefore this Court addressea each legal precept
i:espectivoly. However, issues not raised in the lower court arc 'Wal.ved and cannot be raised for the first time on
appeal. Pi\. R. A, .P, 302(.n); See also P11,ltCrl.m.'P, S78, comment (''l'ypes of rcliefapproprlate for the omnibu!I
pretrial motions include the following requests: ... (2) fot severance and jcinder or ccnsolidetion"). In the present
cese, the Appe-Tiant only ollallongod venue, habeas corpus, and a violation. of the statute of limitations In an omnibus
pretrial motion. The Appeliult did not file a Motion for Severance citing improper joinder..A.s such, t'l).e
Appellant's challenge tCJ joinder is waived. Notwtthstunding, tbls Court will address the propriety cfjoinder within
'!bis section.
7
C.S. §911; Recklessly Endangering Another Person> 18 Pa. C.S. §2705; Perjury> 18 Pa.
C.S. §4902; Endangering the 'Welfare of Children, 18 Pa. C.S. §4304; Controlled
Substance Contraband to Confined. Persons, 18 Pa. C.S. §5123; Drug Delivery Resulting
in. Death, 18 Pa. C.S. §2506. Also, the Commonwealth charged the Appellaut with
violating the following sections of the Controlled Substance, Drug Device, and Cosmetic
Act: 35 P.S. §780--:113(a)(l2)�(a)(14);(a)(21). Aud since these charges were set forth in.
the same criminal informatlor, joinder is governed by Rule 563 of the Pennsylvania
. Rules of Criminal Procedure. Pa. R. Crlm, P. 563(a) provides: "Two or more offenses,
of any grade, may be charged in the same information if: (1) the evidence of each of the
offenses would be admissible in a separate trial for the other and is capable of separation
by the jury so that there is no danger of confusion; or (2) the offense's charged are based
on the same act or transaction." Under, Pa. R. Crim. P. 563(.a.), the Appellant's offenses
as charged do meet the criteria for joinder. The Commonwealth has established that the
offenses charged are based on the same act or trnnsaction.
Io. CommQnwsilth v. Grillo, 917 A.Z.d 343, 344 ..45 (Pa. Super. 2007)� the
Pennsylvania Superior Court utilized the analysis regarding 18 Pa. C.S. §110 to
determine whether offenses charged are "based on the same act or transaction." The
Grillo court explained that while section 1103 prohibits subsequent prosecution "for any
offense based on the same conduct or arising from. the same criminal episode," the
language "based on the same act or transaction," found in Pa. R. Crim. P. 563(a) is
3
In the instant case, the question presented is whether "the �rlitl court erred 1;..� n mn�r of law in denying the
appellant's pre-trial motion to dismiss fot lack of jurisdiction (. , . ) the charges jolned for trial were 1101 part of a
single criminal episode and lacked the requisite factual besis to sustain such a finding ( .. , J the jolnder of the
ch:l'l'ges also violated the appe1lant'i; Due Process rights." As previously mentioned, the Appellant failed to nl: a
motion for severance. Therefore w1'Jle the Appellant utilizes compulsory jotnder language, this Court rurmiacs thnt
the Appellnnt is challenging permissive joinder since compulsory joinder is inapplicable.
8
.. ,,_; ..
similar and subject to the same analysis to determine whether there was a single criminal.
episode. The Grillo court considered the factors outlined in Commonw��tlth v. Lane,
658 A.2d 1353t 1355 (Pa. Super. 1995), which include consideration of the following:
(1) the temporal sequence of events, (2) the logical relationship between the acts, and (3)
whether they share common issues of law and fact. Further, the concept of a single
criminal episode, "must not be from a hyper technical and rigid perspective [ ... ] thus,
where a number of charges are logically and/or temporally related and share common
issues of law and fact, a. single criminal episode exists, and separate trials would involve
substantial duplication and waste of scarce judicial resources." Commouwea.lli!..L_
Hudet 4S8 A.ld 170, 183 (Pa.198.3); Se,e also C9mmonw�.altb.v. Patterson, 546 A.2d
596, 600 (Pa, 1998)(emphasizing that the "the general policy of the law is to encourage
joinder of offenses [ ... ] when judicial economy can thereby be effected, especially
when tb.� result will be to avoid the expensive and. time-consuming duplication of
evidence..). Therefore, when determining whether a number of statutory offenses sre
"logically related," the court should inquire "whether there is a substantial duplication of
factual.and/or Iegal issues presented by the offenses. If there is duplication, then the
offenses are Iogically related an.d must be prosecuted at one trial." Rude, supra at 181-
183. Further, statutory offenses involving additional issues oflaw or fact is not sufficient
to create a separate criminal episode since "an absolute identity of factual backgrounds,"
is not required. !Ji. A single criminal episode should not be limited to acts which are
immediately connected in time, and may comprehend a series of many occurrences. Id.
In addition, Pennsylvania Rule of Criminal Procedure 583 states: "The court may
order separate trials of offenses [ ... ] or provide other appropriate relief, if it appears
9
.... that any party may be prejudiced by offenses (. .. J. being tried together," Pa. R. Crim ...
P, 583. Finally, "the decision to sever offenses is within the sound discretion of the trial
court and. will be reversed only for a manifest abuse oftbat discretion." .QQmmouwealth
:V: c;olU,n,s, 70,3 A.2d, 418� 422 (Pa. 1.997); Commonwealth v, N�ll--man, 598 A,2d 275,
277 (Pa. 1991).
Io. the present case, all of the Appellant's charges grew out of the same incident
and are inextricably intertwined, flowing from the same events, fanning parts of the same
story, Separate trials would have resulted in a repetition of'testimotry and needless
expenditures of time and resources. Over a. four (4) year period the Appellant nm a
profitable enterprise in which she fraudulently billed insurance companles, and
excessively supplied narcotics to her patients, family members, and paramours through
the resources of her internal medicine practice. Much like a television series, each I
!
j
week's story had similar characters/witnesses, and continuity of storyline, with multiple
episodes in each county, entwining characters, who would not otherwise know each j
other, and indeed furthering the Appellant's interest in her criminal scheme. The
I
characters/witnesses The Appellant forged her own sequence and linkage of events I
centered on the supply, distribution, and personal consumption of narcotics. The
I
Appellant's criminal charges share common facts. The Appellant's source of narcotics is
I
the same, the Moore catalog and her prescription pad; the some investigating officers, I.
Agent Hischar and Dorothy Berg among others; the same victims, her patients, her
daughter, and her pnraruours causing fatal and near fatal overdoses. When the
Appellant's daughter nearly overdosed on a prescription that the Appellant prescribed,
the Appellant concealed that she'prescribed her daughter any medication during a
10
. Lackawanna Countycustody proceeding, The Appellanthelda motive to lie under oatfi .
to protect her prescription practices and thwart any investigation. The Appellant utilized
her internal medicine practice to fraudulently receive Insurance payments and fund her
purchase of narcotics from tho Moore catalog. As such, the events. described at trial were
interwoven with and naturally developed one from the other. See Commonwealth!:..
\£pofaver, 989 A.2d 883 (Pa. 2010)(.holding that Murder charges, Sexual Assault
charges and -Solicitation to commit murder charges should all be tried together because
the charges all flowed froia the same events and were part of the same story, joinder for
trial was appropriate). Here all of the Appellao.t's charges relate to her involvement as a
prescription drug organization. The Appellant's activities were all logically related
because they were entwined with, and indeed furthered the interest of the Appellant's
prescription drug organization. These activities are all part of the same act or transaction.
Additionally, the evidence of each of the offenses would be admissible in a
separate trial for the other. Each charge is admissible to prove motive, knowledge,
opportunity, absence of mistake, and history of the case. The Appellant engaged in
several criminal offenses to protect or further her illegal prescription practices. See
Commonwealth v. Collms, 703 A,2d 418 (Pn. 1997)(fiuding no prejudice in. permitting
the jury to convict based upon distinct, yet interrelated, evidence of those crimes);
Commomyealth y. :Pnglellof 665 A.2d 439 (Pa, 1995)(bolding that tbe admission of
relevant evidence connecting a defendant to the crimes charged is a natural. consequence
of a criminal ttial,.and it is not grounds for severance by itself); Conunonnealtl1 v.
Paddv, 800 A.ld 294, 308 (Pa. 2002)(evidence of other crime admissible where it la part
of chain or sequence of events which became part of theory of case and formed part of
11.
..... "natural development of facts); �promonwenlth ,d.Vlurph,i1 499 A.2d 1080, 1082 (Pa .
'
Su per, 1985)(fw.ding evidence admissible where it is part of the chain. or sequence of
. events which became part of the history of the case and formed part of the natural
development of the facts). In this case, the Appellant's thefr-related charges were
explicable in relation to the corrupt organizations charge and chug-related charges.
Evidence of the Appellant's other criminal acts completed the story providing immediate
context of happenings, in time and place. Each of the Appellant's offenses arose from
·th.e Appellant's illegal prescription and illegal business practices relevant to demonstrate
the history and natural development of the facts.
Im:pott.antly. the fact that the Jury separated the charges is evinced by its verdict of
not guilty on. the Criminal Conspiracy, Recklessly Endangering Another Person,
Acquisition by Misrepresentation Fraud, and Prohibited Acts Outside the Scope of
Practice. Therefore, the Appellant cannot demonstrate prejudice. As such, this Court
did not abuse its discretion.
B. Whether the trial court erred in denying the Appellant's Motton to Dismiss for
lack of .iurisdiction based upon improper venue, where it is alleged that the
underlying actions occurred outside of Lackawanna Councy?4
Jurisdiction relates to the court's power to bear and decide the controversy
presented, Commorr�.r�altb v,J}ptbea, 828 .A.Zd 1066, 1074 (Pa1 2003). ''[A)ll courts of
common pleas have statewide subject matter jurisdiction in cases arising under the
Crimes Code."! Id, Whereas, venue refers to the conve:oienoe and locality of trial, or
"the right of a party to have the controversy brought and heard in a particular judicial
4 Listed asissue 5 in the Appeltanes Concise Statement of Errors.
3 Appellant's claim {hat the Lackawanna County Court of Common Pleas did not have tm.bjoot matter jurisdiction
over criminal conduct occurring in Schuylkill County is without merit. "[AJII courts of common pleas have
statewide subject matter jurisdictionin cases arising under the Crimes Code." S1\pr11, �·
1.2
district," B,ethea� at 1074. Veoue assumes jurisdiction exists and it "can only be proper
where jurisdiction already exists." !g. at 1074�1075. Eve11 though all common pleas
courts may have jurisdiction to resolve a case, such should only be exercised in the
judicial district in which venue lies, and venue properly Lies in the place where the crime.
occurred, Id. at 1075. Notwithstanding, dismissal is not the proper remedy for an
allegedly improper venue. Commonwealth v. Gross, 101 A.3d 28, 36 (Pa.
2014)(holding that no provision in the rules of criminal proce�ure permits dismissal as a
remedy for improper venue). TI1e moving party bears the burden of demonstrating the
necessity of a change of venue, supra, Bethea.
A trial court's decision on a motion for change of venue rests within the sound
discretion of the trial judge, whose ruling thereon will not be disturbed on appeal absenr .
an abuse of that discretion. Commonwealth v. DtmnheUer, 808 A.Zd 893, 902 (Pa.
2002)(quoting Connuonwenlth v.1\-farinelll, 690 A.2d 203, 213 (Pa. 1997). A change
of venue becomes necessary when. the trial court determines that a fair and impartial jury
cannot be selected in the county in which the crime occurred, however. a defendant is not
entitled to a chan ge of venue unless she can show that pre-trial publiciry.resulted in actual
prejudice that prevented the impaneling of an impartial jury, Pa. R. Crim, 1\ 584(a).
The mere existence of pre-trial publicity does not warran� a presumption of prejudice.
Common,tealtb v. Dupre, 866 A,ld 1089, 1107-08 (Pa. Super. 2005).
Pre-trial publicity will be presumed prejudicial if:
the defendant is able to prove that the publicity was sensational,
inflammatory, and slanted toward conviction, rather than factual
or objective; that such publicity revealed the defendant's prior
criminal record, if any, or referred to confessions, admissions,
or reenactments of the crime by the defendant; or that it was
derived from otficial police and prosecutorial reports. Eve11 if
13
the defendant proves the existence of one or more of these
circumstances, a change of venue or venire is not warranted
unless he or she also shows that the pre-trial publicity was so
extensive, sustained, and pervasive that the community must
be deemed to have been saturated with it, and that there was
insufficient time between the publicity and the trial for any
prejudice to have dissipated.
!!!.; quoting Commonwealth '.'.· Karenbauer, 715 A... 2d 1086, 1092 (Pa. 1998).
Accordingly, the instant proceedings were properly tried in Lackawanna County
pursuant to the venue provisions of 42 Pa. C.S. § 455l(d), Section 455l(d) provides: "In
any case where a multicounty investigating grand jury returns a presentment the
supervising judge shall select the county for conducting the trial from among those
comities having jurisdiction." This section of the Judicial Code empowers the
supervising judge to designate one county in which several alleged offenses may be
consolidated in a single trial. If offenses are otherwise properly consolidated, it is not
necessary that the county so chosen be the situs of each and every crime charged. It is
enough that one of the offensesbeing tried occurred in that county. Sec nlso
Commonwealth v. Bradfield, 508 A.2d 568 ('Pa. Super. 1986)(holding that it is
unreasonable to believe that the legislature intended separate trials in each county where
acts of a criminal nature had been committed, rather, the legislature intended that the
supervising judge would select a single county in which all offenses set forth in a
presentment could be tried).
The Appellant having supplied Xanax to her minor daughter, Fallon Tarapchak
resulting in overdose, having made a false statement under oath during custody
proceedings regarding her daughter, Fallon Tarapchak, and having rectally smuggled
narcotics into the Lackawanna County prison in Lackawenna County, the supervising
14
judge could direct that the Appell.ant be tried inLackawanna County foi· al'i ·�e criminal
offenses arising from the same criminal scheme to supply and prescribe excessive
quantities of narcotics to patients, friends, family members and paramours as well as
fraudulently bill insurances companies using the resources of her internal medicine
practice. There is ample reason to conclude that acts of crime occurred in Lackawanna
County. Neither the evidence nor the charges were so limited or isolated so as to compel
trial in Schuylkill County solely because tho Appellant's medical practice ia located in
Schuylkill County. In view of the fact, that the grand jury rendered an indictment against
dle Appellant based upon a criminal scheme that spanned, Lackawanna, Luzerne, and
Schuylkill counties, trial in any one would have been proper.
Furthermore, the Appellaut based her venue challenge upon the bald and vague
suggestions that a Lackawanna County jury panel might be biased since some offenses
occurred in Schuylkill County causing confusion as to why the trial is occurring in
Lackawanna County> 6 as well as the limited resources of the Lackawanna County Public
Defender's office, 7 and her romantic relationship with Joseph Pilchesky, a publicly
litigious individual. The Appellant did not cite to any specific, frequent, or recent
publicity that appeared inflammatory or sensational. The Appellant makes no claim that
sµiy of the factors that compel the presumption of pretrial prejudice were present in the
instant matter. Therefore, this Court did not have to consider the pre-trial publicity
factors. In fact, the Appellant's trial occurred approximately more than one (1) year later
from the date of the Appellant's motion. See Comn�onwealth v. Bow��r, 624 A.2d 125,
5 See (;;Qmmonwealth :y. Broold11s, 10 A.3d 1251 (Pa.
Super. 2010)(fu1ding that change of venue was not
warranted in prosecnrion for possession with intent to deliver (PWID), criminal conspiracy, and corrupt
or,guni:a:.tions, even though defendant argued she comn,-itted no criminal acts in county where case was tried).
1 In this Court's denial order dated October 6, 2014, this Court recognized it.s ability to
provide edctttiona'I resources
to ensure that the Lackawanna County Public Defender's Office rendered a fair and adequate defense.
15
(Pa. Super. 1993)(finding that eleven-month period before trial after pretrial. pub licity
regarding car accident had been disseminated dissipated any potential prejudice by time
that proceeding began).
Additionally, the Appellant presented no evidence that an)' juror formed a fixed l
opinion of her guilty as a result of the above suggestions, there were no allegations that 1-
1
i
this Court "Would. be unfair in any way, and there was no indication of how or why jurors
would be unable to be fair and impartial: See Commonwealth v,. Deyrie�, 112 A.3d 663 I
!
(Pa. Super. Z01 S). The. Appellant did not establish tba.t impartial juries could not be
obtained in Lackawanna County. This Court remained satisfied that an objective, open-
I
minded jury could be selected from members of the community.
Similarly, the Appellant did not establish prejudice by having her case tried in
Lackawanna County rather than Schuylkill C.. ouuty. The Appellant did not present any
witnesses. and all other witnesses required to travel from Schuylkill County to
Lackawanna County were the Commonwealth's witnesses. Accordingly, the
Commonwealth endured most of the burden by trying the case in Lackawanna County.
Also, the Appellant failed to demonstrate actual prejudice in the seated jurors.
This Court conducted an extensive and thorough voir dire of the potential jurors, the
result of which was the empaneling of a jury of twelve jurors and alternate jurors, who
testified that they had no fixed opinion on 'the �ilt or innocence ofthe Appellant> and
would decide the matter consistent with this Court's instructions and evidence solely
presented At trial This Court dismissed far cause all potential jurors, who were unable to
be fair or impartial. The protections instituted by this Court were sufficient to preserve
16
the Appellant's right to a fair trial. Thus, this Court did not err in denying the
Appellant's motion to change venue.
SUFFICIENCY OF THE EVIDENCE
A. Whether the evidence was insufficient as a· matter of law to sustain a conviction
on the charge of Drug Delivery Resulting in Death, where it i.s alleged that the
Commonwealth failed to prove the requlsite mens rea of malice and ca.u!iation?8
The standard of review regarding a sufficiency of the evidence claim requires a
determination. as to "whether the evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to enable a reesonable jury to find every element of the
crime beyond a reasonable doubt," Commonwealth V..: Laird, 988 ,A.. ld 618, 624 (Pa.
2010) (citing �qmmonwcnJth v, ��t.Jdns. 843 A•.2d 1203, 1211 (Pa. 2003)). S_ee also,
�.9mmonwea.lth v. ;Rivera, 983 A.Zd 1211, 1220 (Pa. 2009) (whether viewing all
..
evidence and reasonable inferences viewed in favor of the Commonwealth as verdict
winner establishes all elements of the offense beyond a reasonable doubt). The evidence
established at trial need not preclude every possibility of innoceace and the fact-finder is
free to believe all, part, or none of the evidence presented. It is not within �e province of
an appellate court to re-weigh the evidence and substitute judgment for tbat of the fact-
finder. Moreover, the Commonwealth's burden may be met by wholly circumstantial
evidence, and any doubt about the defendant's guilt is to be, resolved by the fact-finder
unless the evidence is so weak: and inconclusive thati as a. matter of law, no probability of
fact can be drawn from the combined circumstances, Comn1on;�veglfl! v. Pack,u-, 168
A.3d 161, 163 n.3 (Pa. 2017); C21nmon:wenlth v. Rodrigue� 14.l A.3d 523, 525 (Pa.
Super. 2016)(quoti.ng <;.pmmomyealth y. TarJJLc!\, 42 A.3d 342, 345 (Pa. Super..
8 Listed as Issue 2 in the Appellent's Concise Statement of Errors,
17
2012)); Comm,mweoJtit v. ·n1s·1:era110, 182 A.2d 574, 582 (Pa. Super. 2001)�
Existence of inconsistencies in witness testimony does not alone render evidence
insufficient to support a verdict. �oromonwealth v. Long, 624 A,2d 200, 208 (Pa,
Super. 19�3). Toe established facts and circumstances do not have to be absolutely
incompatible with the defendant's innocence, Cgmrncmwealth v. Morales, 69 A.Zd
10031 1005 (Pa. Super.1996).
A review of the record reveals that the Commonwealth established sufficient
evidenceto enable the fact... finder to conclude that all elements of Drug Delivery
Resulting in Death, 18 Pa. C.S. §2506(a) were proven beyond a reasonable doubt.
Therefore, the Appellant's sufficiency of the evidence on this charge must fail.
D111g Delivery Resulting in Death is defined in the Pennsylvama Criminal Code
as: Ha person commits murder of the third degree who administers, dispenses, delivers)
gives, prescribes, sells or distributes any controlled substance or counterfeit controlled
substance in violation of section 13(a)i(14) or (30) of the Controlled Substance) Drug,
Device and Cosmetic Act? and another person dies as a result of using the substance,"?
See generahy 18 Pa, C.S. §2506(a). Subsection (a) references the crime of third degree
murder, which is defined as any killing with mnlice that is not first or second degree
murder. DiSte.fnno, at 582. Malice has been characterized as exhibiting an
9 On
September 6, 201 l, the legislature amended the 13nguagc in section 2506 to define the off.ensci as "a felony of
the first degree if the person intentionally adm.inisters, dispenses, delivers, gives, prescribes, sells or dil!tritmtes nny
controlled aubstance or counterfeiit controlled substance in violation ofsoctton 13(11.), (14) or (30) of the Contro:Jcd
Substance, Drug, Device and Cosmetic Act, and another person dies as a result of'usiug the aubstance." In the,
present case, the Commonwealtl; alleged tho.t the Appellant violated section 2506 in June 2011. Therefore, this
Court's analysis reflects theatandard prior to September 7, 2011. On September 6, 2011, the Legislati.ire removed
the phrase "[r.] person commits murder of the tbfrd degree who ... [,]" llb.•C,S,A. § 2�P@ (repealed Sept. 6,
ZOU), and substit1.1ted "[a] person commits a felony oftbe first degree if the person intentionally ... " 18 Pa,G,S.,A.J...
�, (effective Sept. 6, 2011). A discuselon of House Bill 396 (of April '27, 2011)1 makes it. clear that the
Lcgislerure cleHherately changed the wording to remove the mens rea o:f malice and did so with the intention of
making it easier to convict and impose greater penalties Oil individwtls who sold drugs when those 431 A.2d 2301 232 (Pa.1981). Malice consists of
"a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences,
and a mind regardless of social duty." Commonwealth vl Co�ta, 861 A.2d 358, 363
(Pa. Super. 2004); QiStefano, supra, Therefore, the applicable mental state for a
conviction under 18 Pa. C.S. §2S06(a is malice. �ommo.nwea,ltb, v. Luclwlg� 874 A.2d
623, 631 (Pa, Super. 2005).
Viewing the totality of the circumstance, the Commonwealth presented ample
evidence that Appellant acted with malice. Tracy K.u.czynski testified that she lived with
her brother, Thomas Kromer. (N.T. September 28, 2015 p. 96). Recently, she noticed
that her brother appeared confused, demonstrated memory deficits, and suffered many
falls. DJ., at 98, 107. She stated: "his mind was so messed that he just didn't know [ . , . ]
be honestly didn 't know he was taking pills [ ... ] anybody that would see him would
have known he was overmedicated," Id. at 99. Prior to his death, Ms. Kuczynski
observed her brother suffer withdrawal symptoms that corresponded with him scheduling
another appointment with the Appellant. !d· at 100-101. Lastly, Ms. Kuczynski testified
that the Appellant did. not provide her brother with any i.ttst.mctions or initiate safety
mechaaisms to ensure that her brother ingested his medications safely or within tho
therapeutic range. Id. at 111. David Kuczynski, Thomas Kromer's brother-in-law,
testified that he drove Mr. Kromer to the Appellant's office on several occasions. He
19
-stated: "I'd take him up there and he would walk inand she was not in, the secretary had
· given him the prescription and i.t [w]as usually five to seven days, sometimes ten days, he
would get itrefilled way before time." Id. at 115. Mr. Kuczynski explained that without
seeing the Appellant, his brother-in-law obtained his prescription signed by the
Appellant Id, at 116, 120·121. Throughout the entirety of his testimony Mr. Kuczynski ·
emphasized that his brother-in-law obtained his prescriptions at least seven to ten days r
earlier than the re-fill date, appeared "overmedioated, ., acted "like a junkie needing a fix,"
and had difficulty walking and talking. lg. at 1.15-117� ll9t121-123. He stated: "he
would just go get the prescription off of the receptionist or wherever it was, I don't know,
nurse or whatever, and I'd take him to the Rite Aid and they would get it filled the same
day which is, like I said, seven to ten days earlier [ ... J I can say that he bad it filled way
before it was time to be filled," lg. at 117. Finally, Mr, Kuczynski testified that on June
10) 2011, the day after his brother-in-law filled a Roxicodone prescription, he discovered
bis brother-in-law deceased ill his bedroom, Id. at 118.
Accordingly, on June 10, 2011 i Deputy Schuylkill County coroner, David
Truskowsky arrived to Mr, Kromer's residence. Id. at 166-167. He described the
procedures he utilized during an investigation, specifically the investigation of Mr.
Kromer's death. Id. at 166--197. Deputy Truskowsky completed a coroner's "view
report," and noted the presence of several prescription bottles near Mr, Kromer' s body.
lg. at 178-180. As a result, Deputy Trusknwsky photographed all of the prescription
bottles, examined the labels, and the contents, if any. M!, at HI0�181. Deputy
Truskowsky noticed the Appellant's name as the prescriber, Id. at 181. Specifically,
Deputy Truskowsky recalled the Appellant's name on the following prescriptions:
20
Alprazolam, Lamotrig, Xanax, Prozac, as well as several indescribable prescriptions.
Id, at 180�186. He also recalled Samuel Garloff's name as the prescriber on the
following prescriptions: Seroquel, Oxycodone, as well as several indescribable
prescriptions. !g. at 183-186. Deputy Truskowsky recognized one prescription bottle
recovered in. Mr'. Kramer's bedroom labeled as "DISP for Roxicodone," with the ID
number of "02478 0620019/> dated June 6� 2011. Id. at 200. He verified: "This looks
like the prescription that was written for Thomas Kromer by Dr. Tarapohak, It shows
what it looks it says "Oxy" and then something, and it- looks like maybe 30 milligrams,
number �>O.'> �· at 201. Deputy Truskowsky also verified that although the bottle label
indicated Samuel Gerloff M the dispenser, the prescription itself lists Stephanie
Tarapchak lg.
Scott Rishel, long-term. pharmacy manager at the Rite Aid Pharmacy in Ashland,
Pennsylvania testified that "02478trepl'esents the Ashland Rite Aid store number. (N.T.
September 29, 2016 p. 127, 144). Relative to the June 6, 2011 Oxyoodone 30 milligram
prescription, 90 tablets, 23 day supply, Mr, Rishel explained that the bottle label listed the
wrong physicien. Id. at 145. Mr. Rishel indicated that the June 6, 2011 prescription
should have listed Stephanie Tarapchak, and mislabeled the prescriber as Samuel
Garfoff.10 Jj;!. at 145, 147.. 148. Finally, Mr. Rishel testified that Roxicodone is a brand.
name for the June ·6� 2011 prescription, 11 and that Mr. Kromer filled the prescription five
---· ---
Ho described a computer program which allowed the pharmacist to choose. tb.e prescribing phy.i;it:iati. fr«nfl a drop
10
down box. The drop down box the.n stored prior prescribers specific to each patie:nt so as to avoid typing the ·
physlcian's name on multiple occasions, However, Mr. Rlahel stated: "it led to things like this whore If the wrong
doctor was picked from thnt drop duwn mid th�n'fhe pharmacist didn't catch. it when we're checking it, that the
wrong doctor's name would have been on the prescription the.n [ ... j bow we woltld have even picked Dr. Gerloff
because we bad that drop down on our computer that kept, you. know, tho last two or tbreo doctors on that drop
down that the patient used before. Dut tbai's why it would have had that doctor's name instead of'Tarapohak's name
on it." (N.'f. September 29, 2015 p. l4fH.47). .
11
He explaiaed; "plain Oxycodone is Roxicodone." (N,'f, September 29, 2015 p, 161).
21
.. ·· (5) days prior to re-fill, 12 15:l. at 148, 150. In addition, the June 6, 201 l .prescriplion
increased the dosage of Mr, Kromer's prior May 19, 2011 prescription from ten (10)
milligrams of Oxycodone with Tylenol to thirty (30) milligrams of Oxycodone without
Tylenol, 13 three times the strength of his previous prescription. lil· at 150�15, 175, Mr,
Rishel noted that the "different strength or different medication," enabled Mr, Kromer to
evade insurance restrictions and re-fill the prescription. early, ;ffi, at 170-171_. Otherwise,
if Mr. Kromer attempted to re-fill the May 19, 201 l prescription on. June 6, 2011, his
insurance would have rejected payment. !d, 14
Importantly, Dr. Richard Bindie, who previously performed over 6,000 autopsies,
performed au autopsy of Mr. Kromer on June l l, 201 I. (N.T. October 1, 2015 p. 9.11,
32). At the time of Mr, Kromer's death> bis urine showed positive results for
Benzodiazepines.P TCA.,16 Amphetamine,'? and Oxycodone.'! lg. nt 17. Witb a
reasonable degree of medical certainty; Dr. Bindle attributed Mr. Krorner's death to the
l
"combined adverse effects of multiple drugs and a contributory factor of the heart
enlargement." !g. S\t 27, 31, 43. He explained: "there certainly was enough drugs there
f
11 Mr. Rishel explained that Mr. Kromer's May 19, 2011 Oxycodone prescdption dispensed from Rite Aid should . I
not have neoeilsitimcl a re-fill by June 6, 2011. (N,T, September 29., 2.015 p.164j. Mr. Kromer's May 19> 2.011
prescription should have lasted until June 14, 2011. ;!!]. al: 170. Mr. Rishel stated: "Not enough days supply would I
have been used up on the ZS clays supply for it. to go through for that same medioation, •> h!, at 171.
lJ Mr. Rishel stated: "It's going to be 120 milligrams of the Oxyeodone compared to the other one taking it every 4
I
ii
hours, 6 tablets a day> is 60 milligrams [ ... ) it is double, you know, double the Oxycodone if they are tnking, you !
know, lho one, just the plain Oxycodone, 4 a day." (.K.T. September 29, .2-015 p. 166).
14 Mr. Rishel testified: "it won't lot th�
prescription go through for a narcotic wtil. the day that the previous one was
used up as far as just inllW'itnce ls getting more stricter with people gottlng things filled early [ ... J they're not goi11g
to reimburae for the same medication if. the person is coming in every other day to got som.ethiDg that should have
lasted them 30 days [., . J even too, if it's k:ad.ing then to abuse of the medication, like why the person iH even
looking to ger something refilled so much early, they· must be not trucing i: tho way it's prescribed by the physician."
(N:r. Sllpten:aber 2.9, 20.1-s p.170�1?1).
u Dr, Bindie stated; ''Bew.,odinzopines, whichis 1ike Alprazolam," (X.'t. October 1> :tOlS p.17, 24).
16 Dr. l3indie explained: 1
TCA, which ie a psychla.tric med [ ..• ] Qnetiapine, that's Seroquel, thnt'.s forp8'Johiatric
condition [ ... J Prozac, that's a payoblatric drug also [ ... ] Tricyclic, Ami-depressants. They are psychiatric meds.
(N.T. October 1, ZOIS p.17, 22, 231 36). .
17 Dr. Bindie stated: .Arnphcwnine is a speed." (N.T. October 1, 2015 p. 24),
11
is Dr. B.indic explained. "Oxycodone is a narcotic, an opiate [ ... J f.Roxioodo�J that's u trade name. The generic
would be tho Oxyoontin." (N.T. October 1, 2015 p. 24, 45).
22
and when you mix drugs up you get this combined adverse effects of drugs and i.t makes
all of tho adverse effects of indivldual drugs present much worse then they are with that
level [ •.. ] in other words) if there is a level of ten say, when they are all combined that
level in blood of that particular drug could act like a drug with a level oftbe 50. Tuey
interact and it's dangerous to mix drugs." lg. at 28�27. Relative to the heart
enlargement, Dr. Bindie opined: "You will die from the arrhythmia produced by the
combination of 11.Jl tho drugs." IQ.. at 29. Meaning, that the combined adverse effect of
multiple drugs "would make the heart start acting err.atically."19 Id. 29-30. Moreover,
Dr. Bindle opined: "Opiates depress respirations and the oxygen in the blood is reduced
and if a person has any coronary artery disease or any kind of heart that is predisposed to
an arrhythmia, hypoxia would induce the anhythmia in that patient." IQ. at 31.
Especially, in overdose, Dr. Blndie verified that Oxycodone can produce severe
respiratory depression, hypertension, and cardiac arrest. Id. at 48-49
Similarly, Dr. Stephen Thomas licensed since 1992, an. expert in anesthesiology,
specifically pain medicine and addiction, opined within a reasonable degree of medical
certainty that the level of'prescribed Oxycodone led to Mr. Kromer's dea.th.20 lg. at 55�
56:'15, 81, 85�86, 112, 135. Upon review of the toxicology report, Dr. Thomaa verified
that Mr. Kromer's urine concentration showed a number of different chemical substances
1� Dr. Bindle explain(.\d: "the benrt problems, the left ventricular hypertrophy Is associated with high blood pressure
usually and it causes mally adverse effects that could make you short ofhreath or increase your blood pressure or it
could decrease OX)'ge.n in the blood end would cause the heart to go into arrhythmie [ ... ] adverse effects of opia:ti:s,
you get short of breath sometimes, depressed respirarlons, and. if you have any kind of heart disease it needs
oxygen," (N.T. October 1, 201.5 p. 29�30).
20 Dr. Thornas stated: "So the
tberapcufi.o range for Al:;iraiolam tends to be fa the range under -between 30 and l 00
nanograms per ML. And this is .in the therapeutic range, but the Oxyoodone is in the super therapeutic: rauge'or the
toxic range for that drug. In the absence of other reasons for Mr. Kromer to prer;ent e.a he did, one cansay .it was
within a reo.son�ble degree of medical certalnty that tho cause of his death was the combined toxicity of all of these
drugs." (N.T. October 1, Z015 p. �l). He testified: "There was post-morten; that showed Oxycodone ip.to::tication.
There was pharmacy records that showed that be had been changed from 7.5 'milligrams of Oxyoodone with A.pap lo
10 milligrams of Oxycodone with }\pap to Oxycodone 30 milligrams over the course of a 50 day period." IQ. at 135.
23
. - ·within his system, wherein Oxycodone accounted for the highest concentratiou at a .1 evel
of 300 nanograma per ML, 21 and Alprazolam accounted for 40 nanograms per 1'.1L. Id .. at
78. He clarified: "Alprazolam ( .. , J is generally not a drug that by itself will cause
respiratory depression. However, it is important to understand that when Alprazolam is
combined with an opioid, it acts _011 a different part of the system that keeps us breathing ;
such that in therapeutic levels it can enhance the- toxicity of opioids, Alprazolam acts to
decrease the part of the brain that keeps us awake [ ... ) Mien we combine the problem
of not being awake with the problem of not responding to the normal signals that reach
our brain to tell us to breathe, then we have a problem that can lead to profound
respiratory depression and. a spiral loading to death. Thus, the-having two different parts
of the brain being suppressed by these drugs was the rnecbanism by which this death
occurred [ ..• ] we know that there was one drug that was in toxic concentration,
Oxycodone. We know that there was one drug that acted synergistically or in an additive
way with that drug that was in a therapeutic range, Alprazolam, Aud we know that there
were other drugs in lower concentrations, most of which were central nervous system
depressants that also contributed to this central nervous system depression which led to
his death." Jg, at 78,. 79, 112. Dr. Thomas confirmed that the Appellant prescribed Mr,
Kromer the Alprazolam and the Oxycodone on June 612011. l!!,, at 79-80, 112.
After determining the medical cause of Mr. Kromer's death, Dr. Thomas opined
at length that the Appellant's treatment was not reasonable and necessary or in
accordance with the accepted treatment principles of any responsible segment of the
21 Dr. Thomas stated: "The normal the'l'apeutic concemration of Ox)•codone is generally less than 100 nanograrns per
lvfL. At levels greater than 200 nanograma per ML, des.th haa been known to occur [ ... ] it is the finding of a level
of Oxycodone that is in the range where death is known lo occur in a suscepttble individual: partlculerly ill the
presence of other drugs in the therapeutic rang" like the Alprazolam." (N.'1", October l1 2015 p, Bl).
24
medical community. g!,. at 51-110. He related that within the medical community,
federal and state guidelines exist as to the use of prescribing opiates. Id. at 59. He
commented that there is a. wide variety of literature about the guidelines in practice as
well as organizations that assist with guideline compliance. Id. at 59·60.
In Pennsylvania, regulatory guidelines describe the expectation of physicians, as
well as evaluation and documentation of the use of all controlled substances, including
opioids . .(4. Dr. Thomas described a "model policy," utilized for controlled substances
and chronic pain patients. Id. He stated: "docurnentation, the need for trial, the need to
start low and go. slow, the need to gradually, to repeatedly evaluate the patient to see what
is the patient's response, are they achieving side effects> are they experiencing issues with
the use of controlled substances [ ... ] the need to both monitor the patient, to document
the response [ ... ] being clear on the balance of the risk of the drugs with the benefits."
Id. at 60-61, Under the Pennsylvania Code, Dr: 'Thomas outlined the minimal activities
expected of a physician. !g. at 66. Minimal activities include: initial history and
physical examination, the development of a treatment plan, periodic re-evaluation of the
responses, advising the patient of risks and benefits, maintaining adequate and complete
medical records describing the physician's approach to prescription. Id. Dr. Thomas
testified that the general precept is to administer the amount which produces the desired
effect while minlmizing the possibility of undesired effects. Id. at 85. He noted that
because controlled substances are susceptible to overuse and abuse, it is crucial for a
physician to ascertain why a patient is requesting another prescription prior to the
expected date of re-fill. Id. at 91.. Purthennore, he noted that if a physician were to
change a prescription to avoid insurance regulation, the physician would not be in
25
accordance with the accepted tre'atnient principles In a responsible segment ofthe
medical community, Jg. at 92.
In the present case, Dr. Thomas questioned Mr. Kromer's primary pain problem.
He opined that in the treatment of a headache, opioids play a limited role, especially
when a patient like Mr. Kromer suffers from several psychiatric diagnoses and chronic
obstructive pulmonary disease. lg. at 97, 11(). Dr. Thomas recognized that Mr.
Kromer' s complete medical record of seven (7) years treating with tbe Appellant totaled
only two (2) pages in its entirety. In fact, one page solely regarded Mr. Kromer's death.
Ho opined: "it is by �ery measure completely inadequate for the purpose of
documenting hls medical treatment. It contains no information that would. - except for
tb.e fact that he got drugs=-that would be required [ ... ] it contains none of the medical
decision making that would be required by tho model policy for: the use of controlled
substances in the treatment of pain. 1t is not in any real sense a medical record." Id. at
98.
Notwithstanding, Mr. Kromer's lacking medical record and absence of regular
visitation or examination, Dr. Thomas observed that Mr. Kromer obtained medications
and at an accelerating pace. !g. a.t 106 .. 107. Dr. Thomas testified that the Appellant
enabled Mr. Kromer to use his medication. at an. accelerated pace, instead of identifying a.
problem. with Mr. Kromer's use. !4. at 107. .Dr. Thomas opined that the Appellant's
considerable increase. in Mr. Kromer's previous dose "allowedhim to continue to use the
medication in an out of control fashion leading to his death." .hl, at 107-108. He
explained that eaoh time Mr. Kromer ingested a pill under the new prescnption, Mr.
Kromer ingested three (3) times as much as when he ingested a pill every other time. !i!,
26
at 109. Other than over prescribing practices, Dr. Thomas observed an absence of
possible legitimate explanations. He related that nothing in Mr. Kromer's medicalrecord
showed the Appellant's decision making process to account for the change i11 prescription
and increased dosage. !g. at 110, 114. As a result, Dr, Thomas opined 'that the Appellant
. failed to adequately evaluate the pattern of her own over prescribing. J!!. at 114.
Finally> Dr. Thomas concluded to a reasonable degree of medical certainty that
the Appellant's treatment in causing Mr, Kxomer's death could have been prevented and
demonstrated deliberate prescribing bel:lavior as well as ignorance of Mr, Kromer' s best
interest. lg. at 109-110,11'.t Dr. Thomas testified: "Given that the prescription was
written at the request of the patient in her hand on her prescription pad and given to the
patient deliberately in an attempt to bypass the restraint by the insurance company of
paying for it, that was certainly no accident." Id. a.t 113. Dr. Thomas opined that the
Appellant failed to protect Mr, Kromer from his· addictive opioid consumption, and
showed no consideration, for the consequences of "her dramatic iacrccse in the potency
and dose." lg. at 114. The Appellant provided access "for. a person who had clearly lost
control in his consumption of opioids." 14. Dr. Thomas explained: "So we had someone
[ . , . ] who was a person with known psychiatric disease using medication in au
accelerated fashion, appearing to be rather disheveled, at least at the time of his death.
And that the accelerating use of the medication was made possible only by [the
Appellant's] prescribing. !!'!· at 107.
Accordingly, the Commonwealth presented six (6) witnesses, who established
each of the elements of Drug Delivery Resulting in Death> 18 Pa. C.S. §2506(a) beyond.
a reasonable doubt. First, several witnesses including Deputy Coroner, David
27
Truskowsky, pharmacy manager Scott Rishel, and pain management expert, Dr. Thomas
testified that the Appellant prescribed Mr. Kromer the June 6, 2011 Oxycodone.
Second, Scott Rishel, and Dr. Thomas testified that the Appellant prescribed an
increased dosage and prescription> which was not in good faith or i11 accordance with
II
I
I
treatment principles accepted by a responsible segment of the medical profession in i.i
violation of the Controlled Substance, Drug, Device, and Cosmetic Act. Specifically, Dr.
l j
! r
I
Thomas testified that the Appellant failed to comply with. the minimal activities outlined
by the Pennsylvania. Code for prescribing contro�oo substances. He noted that the
Appellant failed to document any medical decision making regarding Mr. Kromer
throughout his seven years as her a patient. Dr. Thorons testified that despite the
Appellant's recognition of Mr. Kromer's apparent physical susceptibility as an
individual, and apparent misuse/abuse of his opioid prescription, the Appellant enhanced
the toxicity of his opioids and did nothingto minimize tlie fatal effects. Scott Rishel
testified that Mr. Kromer's M�y 19, 2011 Oxycodonc prescription should not have
necessitated a re-fill prior to June 14. 2011. He recalled that on June 6, 2011, the
Appellant. prescribed an increased dosage and a different medication so as to enable Mr.
Kromer to re-fill his prescription early, and evade insurance restrictions. He verified that
if 11:r. Kromer attempted to re-fill the May 19, 2011 Oxycodone prescription on June 6>
2011� ·his insurance would have rejected payment. Importantly, Mr. Rishel explained that
if a person seeks to re-fill a prescription earlier than their supply expiration, then the
'
person must be Ingesting the prescription above the therapeutic range.
I
. Third> forensic pathologist, Dr. Bindie, and pain management expert, Dr. Thomas,
I
testified tha.t Mr. Kromer died as a result of using the June 6, 2011 Oxycodone
I
28
prescription. Dr. Bindle testified within a reasonable degree of medical certainty that the
combined adverse effects of the multiple drugs in Mr. Kramer's system induced
depressed respiration and arrhythmia, Dr. Thomas testified within a reasonable degree of
medical certainty that the normal therapeutic concentration of Oxycodone is less than l 00
I
nanograms per ML and death has been known to occur in susceptible individuals: at a
level greater than 200 nano grams ML. In this case, Dr. 'Ihomas noted that Mr. Kromer's
urine concentration reflected Oxycodone at 300 nanograms ML, the highest
concentration of any controlled substance within his system at death. Similar to Dr.
Bindie, Dr. Thomas confirmed that the Alprazolam within the therapeutic range and the
Oxycodone in the toxic range acted syne.r.gfatically to cause respiratory depression and
led to Mr, Kromer's death.
Finally, all six (6) witnesses testified that the Appellant acted with malice. Tracy
and David Knczynski testified that Mr. Kromer appeared overmedicated and disheveled.
Mrs. Kuczynski noted that the Appellant failed to provide Mr. Kromer with lnatrocnons
or safety mechanisms to prevent abuse and ensure that Mr. Kromer ingested his
prescriptions within the therapeutic range. Mr. Kuczynski confirmed that the Appellant
hardly ever examined or evaluated Mr. Kromer prior to filling his prescriptions. He also
confirmed that Mr. Kromer re-filled his prescriptions at least seven to ten days earlier
than his supply expiration. Scott Rishel corroborated that M'.r. Kromer's May 19t 2011
Oxycodone prescription should have lasted until June 14. 2019. Instead, Mr. Rishell
recalled that the Appellant increased the. dosage of Mr. Kromer's prior prescription and
changed the medication to Oxycodone without Tylenol. Ile explained the Appellant's
modification enabled an early re-fill, evaded insurance restrictions, and represented an
29
· increase three times the strength of his previous prescription. Dr. Bindie opined that a
patient like Mr. Kromer, who is predisposed to arrhythmia and is prescribed. opiates will
experience adverse effects that could increase blood pressure or decrease oxygen and lead
to cardiac arrest. He testified that an individual will die from arrhythmia produced by the
combination of all the drugs that were present in Mr. Kromer's urine concentration at
death. Lastly, Dr. Thomas testified that Mr. Kromer lacked n medical record, lacked
regular visitation or examination, yet he obtained prescriptions from the Appellant at an
accelerating pace. Ho observed that the Appellant enabled Mr-, Kromer, a susceptible
individual to misuse/abuse bis prescriptions at a continuing and accelerated rate. Dr.
Thomas concluded that the Appellant prescribed a toxic dosage of Oxycodone to Mr.
Kromer for an underlying headache without any documented medical rationale in order to
bypass Mr. Kramer's lnauranoe safeguards. Dr. Thomas found that the Appellant's
actions were anything but accidental and showed no consideration for the consequences
of her increase to Mr, Kromer, an individual she knew susceptible to psychiatric illness
and arrhythmia consumed his opioids in a haphazard and reckless manner.
The Appellant's reliance on Conunonwsaltb v. Ludwig, 874 A,ld 623 (Pa.
Super. 2005) is misplaced. Unlike Ludwig, the record is replete with evidence that a
high probability of death would result from Mr. Kromer's ingestion of the June 6, 2011
Oxycodone prescription. Also unlike Ludwig. the Appellant did not merely supply a
potentially dangerous drug to Mr. Kromer, and the Commonwealth did not solely rely on
the Appellant's delivery to establish malice.
In Ludwig, a teenage boy supplied two teenage girls a double dosage of ecstasy,
resulting in the death ofone teenage girl The Lmhtjg Court held that without more, the
30
mere sale of drugs did not evidence wickedness, hardness of heart, cruelty, and
recklessness required for malice aforethought. Notwithstanding, the Ludwig Court
analyzed five (5) factors relevant to a malice inquiry: (1) supplying another with r:i.r.
illegal and dangerous substance of unknown quality; (2) lack of knowledge of the
recipient's reaction or tolerance to the drug; (3) the age of the recipients; (4) providing a
:-
.
• i.
drug in an amount twice its "normal" dosage; and (5) motivetion by profit. !!!· at 632,
First Dr. Thomas testified that the Appellant prescribed Mr. Kromer a toxic range of
Oxycodone where death has been known to occur in a susceptible individual, particularly
in the presence of other drugs like Alprazolam, In this case. the increased dosage and
potency of Oxycodone at the direction of the Appellant, where Mr. Kromer ingested three
(3) times as much as when he ingested a pill every oilier day rises to the level of malice,
Dr. Thomas recalled pharmacy records which showed that the Appellant modified Mr.
Kromer's 7.5 milligrams of Oxycodone prescription v:ith Apap to IO milligrams of
Oxycodone with Apap to Oxycodone 30 milligrams over the course of fifty days.
Second, the Appellant as Mr. Kromer's primary care physician demonstrates knowledge
as to Mr. Kromer's medical history and tolerance for the drug to support a finding of t
t.
t..r
malice. Contrary to the teenage boy in Lud·wig. it is reasonable to conclude that a 1
!,
t
physician ko.owing a patient's tolerance or possible reaction to a drug.establishes the 'f
i
requisite wickedness, cruelty, recklessness, and disregard of social duty required for
malice. The facts known to the Appellant include Mr. Kromer's headache pain, I
r
psychiatric diagnoses, and chronic obstructive pulmonary disease. Dr. Thomas testified }.
that opioids play a limited role in the treatment of a headache, especially for a chronic
period of time, and should not be utilized, (N.T. October 1, 2015 p.124) Dr. George
31
Woody, the Commonwealth's drug dependency and drug diversion expert, emphasized
the importance of understanding the tolerance of the individual so as to avoid overdose.
He opined that the Appellant routinely prescribed high doses "without any clear evidence
of tolerance on the part of the patient, which is dangerous." (N.T. September-z S, 2015
p.11, 25)
Additionally, Dr. Thomae testified that the Appellant prescribed. Mr. Kromer
Alprazolam, which by itself will not cause respiratory depression. However, when
Alprazolam is combined with an opioid, the two drugs acting synergisti.cally combined I
with lower concentrations of central nervous system. depresssnts can lead to respiratory
depression and death. Dr. Bindie explained that the combined adverse effects of multiple I
I
I
I
J
drugs would. make a heart start acting erratically, and opiates would depress respirations
inducing arrhythmia, especially if a person has a predisposition to arrhythmia. Tile
I
,!
evidence showed "that prior to June lO, 2011> the Appellant conducted no examinations I
I
before writing prescriptions for Mr. Kromer. The Commonwealth presented the above.
expert testimony to establish that the lack of examinations and failure to maintain any II
type of medical record was not in accordance with treatment principles recognized by the j
·I
medical community. In addition, the Appellant's conduct: after June 1 O> 201122 when
added to the other facts of this cesc, increasing the potency and dosage to bypass
insurance regulations, showed that the prescriptions she wrote prior to that date were not
r.i The Commonwealth presented a recorded telephone conversation iu which the Appellant admitted to Increesing
the dosage, and stated that 'Ml'. Kromer previously tolerated tbe. same medication ill 2006. She also stated that she
did not believe Oxycodone 90 to be a high dosage. Contrary to the Appellant's starements, Dr. Tbomns testifi�d th.11.t
J his review of Mr. Kromer' s medical file dicl not indicH,te the Appellant prescribed the same medicafion ill. 2.006.
I Moreover, as to the dosage increase, Dr. Thomas opined: "�iving someone three times as much medicine is a
considerable increase fo dosage, 300 percent is 3 00 percent [ •..J 2, 700 i� signU:icantly w-eij.ter than the. l ,500 that he
had when he was given 150/10 milligram tablets." (N,T. Oct(1ber 1., 2015 p.108).
32
made in good faith in the course of her professional practice. See Qommouwealth v.
Possinger, 399 A.2d 1077 (Pa.. Super. 1979).
Relative to the third factor, the Commonwealth did not present any evidence that
establishes malice because of Mr. Kromer's age. Tue fourth and fifth factors, providing a
triple dosage of the drug and profit motive establishes hardness of heart, willful
disregard> and an extreme indifference to the value of human life. Dr. Thomas testified
that the Appellant's deliberate prescribing made 11r. Kromer's accelerated use possible.
At the time of death, Mr. Kramer's medication list totaled thirty .(3-0) different
prescriptions. (N.1'. September 28, 2015 p. 15�). Dr. Thomas explained th�t the
Appellant increased Mr. Kromer's prior dosage 300 percent and allowed him to continue
to misuse his Oxycodone prescription in "an out of control fashion." Dr. Thomas opined
that the Appellant bypassed. insurance safeguards23 in order to prescribe Mr. Kromer a i l
l '
I
dose of a drug that Jed to bis death. · I:Ie acknowledged that post-mortem showed
Oxycodone intoxication, In fact> Oxycodone accounted for the highest concentration in
Mr. Kromer's urine at a level of 300 nanograms per ML. There is no evidence to indicate
that the Appellant cautioned Mr. Kromer. Mrs, Kuczynski testified that the Appellant did
not provide Mr. Kromer with any instructions or employ any safety mechanisms to
ensure the Appellant ingested his prescriptions safely. Nor did the Appellant maintain
any medical record to show her decision-making process. Dr. Thomas and Scott Rishel
explained that a physician must recognize when a patient is using more than expected and
in a way that is not producing the desired result. Dr. Thomas indicated that there are
several checks and balances, which prevent a patient from. obtaining a prescription before.
7J Delton Bolton, the App�lfant'.•i former pruamour testified that th.� Appell1m.t made adjustmcmtf to the dosages of
prescriptions in order to be able to have presoriptions paid by his insurance. (N.T. September 13, 2015 p. 208). ·
33
· 'their supply expires. He opined that the first safeguard lies with the physician, who must
ascertain why they need to re-fill a prescription earlier than expected and to document the
reason in the medical record. The Appellant failed to undertake either pre-caution. The
Appellant showed no concern for Mr. Kromer's well-being. Ip this case, the Appellant's
increase in dosage and potency to guarantee insurance payment is indicative of a
wickedness, hardness of heart, cruelty, and recklessness.
Based upon the above analysis, the Appellant demonstrated an extreme
indifference to human life by continuing to prescribe Mr. Kromer opioids at an
accelerated pace without adequately evaluating Mr. Kromer, without maintaining 1�edical
records or a prescribing rationale, showing no consideration for the consequeaces, despite
her knowledge that Mr. Kromer consumed bis opioid prescriptions in a haphazard and
reckless manner, presented with several psychiatric diagnoses as well as chronic
obstructive pulmonary disease; and possessed a predisposition for arrhythmia, On
repeated occasions, Appellant consciously disregarded an unjustified and extremely high
risk that her actions might cause serious bodily injury. In particular, she deliberately
increased the potency and dosage so as to bypass the restraint of the insurance company..
Accordingly, the jury's decision to convict the Appellant of third-degree murder is
supported by sufficient evidence.
The Appellant also claims that the Commonwealth failed to prove that the .
June 6, 2011 Oxycodone caused Mr. Krorner's death citing a "but-for" test of causation,
However, the Appellant does not cite any Pennsylvania case law that has found that a
court cannot convict a person of drug delivery resulting in death in a case of mixed
toxicity. In fact, a defendant's conduct need not be the only cause of the victim 1.s death
34
i.11 order to establish a causal connection, Criminal responsibility may be properly
assessed against an individual whose conduct was a direct and substantial factor in.
producing the death even though other factors combined with that conduct to achieve the
result. Sec Commonwealth v, Nunn, 947 A.2d 756, 760 (Pa. Super. 2008). A review of f_
the evidence in the light most favorable to the Commonwealth, reveals that the
I
Appellant' s conduct satisfies the causation. test. The Appellant's conduct was a direct i
J
and substantial factor in Mr. Kromer's death. A. review of the pharmacy records reveals
that on June 6, 2011, the Appellant prescribed Mr . Kromer 30 milligrams of Oxycodone
without Tylenol, three times the strength of his previous prescription. Pain management
expert, Dr. 'Ihomas testified that Mr, Kromer died as a result of using the June 6, 2011
Oxycodone prescription. Notwithstanding the other substances within Mr. Kromer's
urine concentration, the amount of Oxycodone ingested by MI. Kromer was in the toxic
range. Dr. Thomas testified within a reasonable degree of medical. certainty that the
normal therapeutic concentration of Oxycodone is less than 100 nanograms per ML and
death has been. known. to occur in susceptible individuals at a level greater· than 200
nanograms ML. In this case, D!'. Thomas recognized Mr. Kromer as a susceptible
individual, and noted that Mr. Kromer's urine concentration reflected Oxycodcne at 300
nanograms ML, the highest concentration of acy controlled substance within his system
at death. Similar to Dr. Bindie, Dr. Thomas confirmed that the Alprazolam within the
therapeutic range and the Oxycodone in the toxic range acted synergistically to cause
respiratory depression and led to Mr. Kromer's death.
Therefore, the evidence itt trial showed that but-fur Mr. Kromer's ingesting the
June 6, 2011 Oyxcodone, he would not have died. Moreover, it is foreseeable that if you
35
prescribe a susceptible patient, Oxycodone in the toxic range, that patient could die.
Tbus, the Commonwealth established sufficient evidence to demonstrate that Mr. Kromer
died because he ingested Oxycodone supplied. to him by the Appellant,
B. Whether the evidence was insufficient as a matter of law to sustain a conviction
011 the charge of Corruptlon Organizations, where it is alleged that the
Commonwealth failed to prove racketeering activity and that an enterprise
c:x:isted? 24
As previously articulated above, appellate review of a challenge to the sufficiency
of the evidence is well-established, and must be viewed in the light most favorable to the
verdict winner to determine whether there is sufficient evidence to allow the jury to find
every element beyond a reasonable doubt. ,Commonwealth v, !�jQ.d.ih 107 A.3d 788,
792...793 (Pa. Super, 2015). A review of the record reveals tbat the Commonwealth
established sufficient evidence to enable the fact-finder to conclude that all elements of
Corrupt Organizations, 18 Pa. C.S. §911(b)(2) were proven beyond a reasonable doubt.
Therefore, the Appellant's sufficiency of the evidence claim as to this charge must fail.
The crime of corrupt organizations is codified at Section 911 of the Crimes Code,
which provides, in relevant part:
(b)(2) It shall be unlawful for any person through a pattern of
racketeering activity to acquire or maintain, directly or Indirectly,
any interest in or control of any enterprise.
Subsection (h) defines "enterprise" as "any individual, partnership, corporation,
association or other legal eo:tiiy and. any union or group of individuals associated in fact
0
although not a legal entity, engaged in commerce and includes legitimate as well as
illegitimate entities and governmental entities." 18 Pa, C.S.§9ll(h)(3). Further, the
lists numerous crimes that constitute "racketeering activity," including theft
I �---subsection
i 24 Listed ,w issue 3 in the Appellant's Concise St.atcmeut of Errors.
36
and insurance fraud, a violation of the Controlled Substance, Drug, Device, and Cosmetic
Act relating to the sale and dispensing of narcotic drugs, and defines a. "pattern of
racketeering activity" as "a course of conduct requiring two or more acts of'racketeering
activity 011e of'which occurred. after tho effective date of this section." 18 Pa. C.S.
§§911(h)(1),(h)(4); See Coromogwealth v. Stocker, GZ2 A.2d 333, 340 (Pa. Super.
l993)(holding that tho Pennsylvania Corrupt Organlzations Act, does not require that a
defendant be convicted of the predicate crimes which constitute a pattem.of racketeering
activity, only that the Commonwealth specify and attempt to prove the elements of two or
more predicate acts beyond a reasonable doubt). As cited above, the prohibited activities
require that the jury find beyond a reasonable doubt. "a pattern of racketeering activity,"
and tbe Appellant's interest in an "enterprise." As such, tac Commonwealth must prove
three (3) elements: (1) that the Appellant's internal medicine practice was an
"enterprise;' (2) that the Appellant was associated or employed by the enterprise, and (3)
that the Appellant' s actions oonstituted "a pattern of racketeering activity," that is 1:'No or.
more criminal acts such as Distributing Prescription to a Drug Dependent Person, and
Insurance Fraud.
Viewing the totality of the circumstances, the Commonwealth presented ample
evidence beyond a reasonable doubt that the Appellant's internal medicine practice in
Ashland, Pennsylvania constituted a Iegithnate business entity engaged in commerce.
The Appellant, Stephanie Tsrapchak D.0. exhibited control of the distribution of
narcotics to individuals in Ashland, Pennsylvania, through her internal medicine practice
and fraudulently billed insurance companies involving various employees. And that
through these employees> and the use of the Moore catalog, narcotics were delivered to
37
the Appellant's practice. 'D1e Appellant then. distributed the narcotics to other .
individuals, including her former paramour, Delton Bolton. The evidence shows that
Appellant controlled the process by which the drugs would be picked up and delivered,
and that these transactions occurred over a period of'time with the ultimate goal of
dispensing narcotics and fraudulently billing insurance companies in Ashland,
Pennsylvania. The Appellant controlled how the drugs were dispensed, and who had
access. Therefore, the "enterprise," requirement of the Act is satisfied. Second, the
Appellant is associated with the enterprise in question. 'because the Appellant owned and
operated the internal medicine practice from. which she dispensed narcotics. See
Commonwealth v. B,ogal, 120 A,3d 994, (Pa. Super. 201S)(�ncliJ1g sufficient evidence
to prove that defendant participated in racketeering activities as required for conviction of
corrupt organizations where defendant owned and operated pain clinic, described himself
as the doctor in. charge, and submitted. billing at a value ten times that of the procedures
actually performed); Com.monwenlth v.. Dellls@ti, 876 A.2d 366 (Pa. Super. i
. j
2005)(bolding that defendant was "associated" with Corrupt Organizations Act enterprise
by virtue of her ownership of store from which drug paraphernalia was sold). Herc, the
Appellant is described as the individual, who ran the medical practice and exhibited
knowledge and control of the practice's procedures. Further, the Appellant deposited all
income, cash, check, or insurance payment derived from her medical practice into her
personal bank account. All money garnered directly and solely benefited the Appellant
Finally, the Comrnonwealth presented ample evidence beyond a reasonable doubt
that the Appellant's actions met the requirements in that she participated fa. "racketeering
actlvity." A person can commit "racketeering activltyt hy violating the Controlled
38
Substance, Drug, Device, and. Cosmetic Act (relating to the sale and dispensing of
narcotic drugs), 18 Pa. C,S. §9ll(h)(l)(ii). There was sufficient evidence to sustain the
conviction of Distributing, Prescription to a Drug Dependent Person, 35 P.S. §780�
ll3(a)(13). Section (a)(13) prohibits: "the sale, dispensing, distribution, prescription or
gift by any practitioner [ .. ,] any controlled substance to any person known to such
practitioner to be or whom such practitioner has reason to know is a drug dependent
person. unless said drug is prescribed, administered, dispensed or given, for .tlle cure or .
treatment of some malady other than drug dependency." The definition of drug
dependent, "means a. person who is using a drug, controlled substance or alcohol, and
who is in a state of psychic or physical dependence, or both, arising from administration
of that drug, controlled substance or alcohol on a continuing basis. Such dependence is
characterized by behavioral and other responses which include a strong compulsion to
take the. drug) controlled substance or alcohol on a cotinuous basis in order to experience
Its psychic effects, or to avoid the discomfort of its absence. This definition shall include
those persons commonly known as "drug addicts." 35 P.S. §780·102.
Delton Bolton, the Appellant's former paramour testified that he met the
Appellant in late 2009, and began a. relationship in early 2010. He testified. that he "lived
011 and off," with the Appellant above her internal medicine practice in. Ashland.
Pennsylvania.: (N.T. September 23, 2015 p, 179, 190, 193). MI. Bolton. explained that
he 'became addicted to Percocet prescribed by the Appellant. !!!, at 193. At this time, he
recalled the Appellant ordering Vicodin, Benn_dryl1 IV� Valium, Kctamine, Adipex, and
testosterone through the Moore catalog. Id. at 193�196�197. Referring tothe Moore
catalog, Mr. Bolton stated: "she actually sat down with me and we used to go through it
39
together." If!. at J.94. Also, at this time, he. acknowledged transitioning away from street ;
. ;
!
'!
drugs as he "got wrapped up into the opiates." !f!. at 196. Mr. Bolton testified that the
Appellant ordered bottles of Vi codin through the Moore catalog. He stated; "she would
just like circle things [ ... ] write them down. And then, however she ordered it, I don't
know how she ordered it [ ... J when she ordered the Vicodin, she would order Vicodin
for the office. And then, there would be a bottle specifically for me right next to the bed
stand that was my bottle. And explained to me [ .... ] if I keep writing your prescriptions,
'With all the custody stuff she was going through and all the allegations [ J she decided
just to get the Vicodin. That way, there's like 500 of them in the bottle [ ) And they
were like riglit in the bedroom for specifically for me." !.tat 198�199; (N.T.
September 24, 2015 p. 35). Similarly, Mr. Bolton testified that throughout tJ.10 wbote
relationship, the Appellant would routinely supply him. with testosterone injections. Id.
at 199; (N.T. September 24, 2015 p. 28-29, 117). Mr. Bolton described the progression
of his Vioodin addiction: and explained an exchange system with the Appellant. !d, at
211. He detailed that in exchange {or providing Vicodin, the Appellant would prescribe
him Ritalin and Adderall. Afterwards, Mr. Bolton "swapped out," the Ritalin. and
Adderall for his Vicodin. Mr. Bolton testified: "she would say, hey, I'll write this in your
name, you give me it and I'll keep giving you your Vicodin." IQ.. at 2U. He observed
that the Appellant obtained the Vicodin from the Moore catalog. Ji!. at 213. Mr, Bolton
testified that he ingested about fifteen (J.5) Vicodin daily. He stated: "and there would be
a nightstand here and the bottle of Vicodln would be. there. And. every morning, I would
wake up. I would eat five and get rolling. And then> I'd put 10 more in my pocket and
go to work." (N.T. September 24, 2015 p. 36). Mr. Bolton indicated. that the Vicodin
40
changed his behavior. He described irritability, highs and lows, as well as instability and
drowsiness. !!!·
Mr. Bolton portrayed a chaotic relationship with the Appellant, during which he
became aware of his addiction, andfelt compelled to remain in the relationship so as to
continue his addiction. Id. In particular, Mr. Bolton recalled a traumatic incident
wherein he ingested a near fatal dose of Adderall prescribed by the Appellant, 25 and
became hospitalized in Saint Catherine's Hospital. M· at 215-223. During 'his
hospitalization, Mr. Bolton and the Appellant participated in therapeutic sessions
regarding the Appellant's supply of narcotics. lg. nt 220, 222. In fact, Dr, Babar
Choudhry testified that be discussed the Appellant's medical treatment of Mr, Bolton.
(N.T. September 30, 2015 p. 126). He stated: "a bigger concern was that Delton has
taken medication that was prescribed by the family member [ ... ] 1 mean it is against
medical ethics. It is -every physician knows that it is against the core=-especially in
psychiatric medication it is not supposed to be prescribed by a family member [ ... ]
!
upon the discharge [ we discussed] [ ... ] the good medication that he was overdosing on
and what was he using or abusing. We discussed about it and that was part of the I
j
conversation. Yes [ ... ] she was in an agreement that she would not do this practice l
i
'
anymore." Id.
After his hospitalization> Mr. Bolton noted the Appellant supplied him Vicodin,
and another addictive cycle commenced. !g. at 226. He stated: "she knew I was addicted
to pills [ ... ] wcry time we'd. fight, I'd got sick and come back. She knew I was
i5Delton Bolton testified that the Appellant prescribed him Adderall, however be never ingested the Adderall. He
related I.hat the Adderall prescriptions were solely for the Appellant's peeaonal use. With the excepnon of bis
overdose, and attempted suicide) Mr. Bolton never ingested the Adderall, He recalled filling several Addo:nll
prescriptions for the Appellant's personal use throughout their relationship. (;N.'f. September 24, 2015 p. 43-46).
41
addicted to pills .. That's why she'd always give me them. At one point, I think she did
give me some Suboxone and then she cut me off from. it. Because I was getting a little bit
better." lg_. at 227. Mr. Bolton explained that if the Appellant and him were fighting: "all.
medication would be completely deprived. I wouldn't have access to it at all." (N •.T.
September 24, 2015 p, 30). He verified multiple scripts written by the Appellant and
identified the Appellant's handwriting on each script, (N.T. September 24, 2015 p. 44�
49). On one occasion, Mr. Bolton recalled that the Appellant submitted an. elderly
patient's blood sample on behalf of Mr. Bolton iu order to validate the testosterone
scripts. I!!, at 49-51.
In August 2011, while still addicted to approximately 150 milligrams of Vicodin,
Mr. Bolton's relationship with the Appellant ended, At this time, the Appellant cut his
access to Viccdin. (N.T. September 24> 2015 p, 13 �16).
Accordingly, the testimony of Delton Bolton indicates that the Appellant
dispensed or prescribed quantities of Vico din and testosterone to him throughout. their
tvvo·(2) year relationship utilizing the Moore catalog. He recognized the Moore catalog,
and described in detail the manner in. which the Appellant ordered the Vioodh1, and
designated the location of the Vicodin, on the nightstand. Mr. Bolton testified that he
became a daily Vicodin user. He ingested fifteen (15) pills at one bundred and fifty (150)
milligrams. Similarly, Mr. Bolton routinely employed testosterone injections. All
controlled substances knowingly supplied by the Appellant, despite Mr. Bolton's
I . apparent addiction. In fact, Mr. Bolton described the manner in which the Appellant
surreptitiously provided an elderly patient's blood sample 011 behalf of Mr. Bolton, and
increased the dosages of Adderall sons to bypass insurance regulations. Mr, Bolton
42
related that he suffered withdrawal symptoms when he fought with the Appellant, and the
Appellant controlled his access, He felt manipulated and compelled to stay with the
Appellant so as to feed his addiction. He testified: "our relationship was very co-
dependent [ ... J 1 was sick of being dependent O'..J the medicine [ ... ] I wanted to he
able to wake up and not have to ( ... ] need 5 Vic I O's t.o function to go to work [ ... )
and it didn't happen. She dangled that out there. And then next thing you know, I'm
taking them and I'm in. a vicious cycle again." (N.'f, September 23, 2015 P: 226). Mt.
Bolton verified the Appellant's awareness of his addiction, and admitted that they
discussed his addiction on several occasions. Dr. Choudb.ry confirmed the Appellant's
awareness of Mr. Bolton s addiction, and testified that the Appellant became a part of his
I
discharge plan, Dr. Choudhry warned the Appellant to discontinue the psychiatric and.
pain medication prescriptions. (September 30, 2015 p. 135).
. .
(
I
A person can also commit "racketeering activity," by committing Insurance !.
i
Fraud, 18 Pa. C.S. §911(h)(l)(l). There was sufficient evidence to sustain the conviction r1
'
j
cf Insurance Fraud> 18 Pa. C.S. §4117(a)(2). A pets on commits insurance fraud i
"knowingly and with the intent to defraud any insurer or se)f�inaured, presents or causes
to be presented to any insurer or self-insured any statement forming a part of, or in l
f.
support of, a. claim that contains any false, incomplete or misleading information
concerning any fact or tb.ing material to the claim." 18 Pa. C.S. §4117(a)(2). Under the
I
(
insurance fraud statute, it is not neccssery that the' defendant personally submit a false '
claim) rather it is sufficient to "cause to be presented [ ... ] any statement forming a part
of, or in support of, a claim that contains false, incomplete, or misleading information."
18 Pa. C.S. §4117(a)(2) or "knowingly benefits, directly or indirectly, from the proceeds
43
derived from a violation of this section due to the assistance [ ... ] of any person." 18
Pa. C.S. §4ll 7(a)(5), Thus, it does not matter whether the defendant personally
.
submitted the false claims or had someone else do so. The statute contemplates both
direct or indirect conduct.
In the present case. the Appellant intentionally and systematically used
improper hilling codes to collect higher insurance payments for procedures and
examinations never performed in her internal medicine practice. The Appellant owned
and operated a small internal medicine practice in Ashland, Pennsylvenia. She
supervised the employees, while Kelly McDonald, the office manager, and her former
paramour Ricky White nm the billing department.
· Ricky White testified that he met the Appellant in 2005, and dated fuc Appellant .
for approximately three (3) years. (N.'l'. September 30, 2015 p, 4). During their
il relationship, Mr. White became intimately familiar with the Appellant> s medical practice
and her billing department. Id. at 4,7. He assisted with the Medicare/Medicaid section
of her billing department Id. at 10. Mr. White testified that he became familiar with the
codes "99215/' and 1199214." Jg_. at 11. He indicated that the Appellant instructed him
to use code "99215." because in her words "everybody was a 99215." !g. at 11·12. Mr.
White explained: "Everybody was a 99215 because that was the maximum amount of
money that you could be paid for an office visit [ ... ] the co .. pay was only $3. And
sometimes they couldn't afford the $3. And she said she was getting her money, she was
getting paid." lg. nt 12. Ultimately, the Appellant maintah1ed control. He stated."
"Stephanie knew bow to bill [ ... } she controlled everything." Id. at 13-14.
Furthermore, he recalled that while Kelly McDonald and. Karen Mervine processed the
44
billing, the Appellant knew how to bill. He remarked: "she stated to me that she owns
hei- own business, she Oi¥11S her own 'company, she needs to know everything about
what's going on in tho office and she too knew how to bill" !g. at. 47.
In addition, Mr, White recognized that during his relationship with the Appellant,
the Appellant submitted bills to his personal insurance company. He recalled receiving
several explanation ofbenefits letters, detailing the billing date, the procedure received,
and the amount covered by the insurance company. lg. at 1.4. Upon review, Mr. White
discovered that henever received any procedures nor attended office visits listed in the
letters. Id. at 15. He testified: "there were visits there [ ... ] that I wasn't there for," Ig.
a
at 16. As result, Mr. White began documenting the false service dates as well as dates
that the Appellant double or triple billed, and re-billed, To that end: Mr. White explained
several explanation of benefits letter, in which he documented that he never attended a
visit or had been billed for the same service twice. Iq. at 17-40. None of the
explanation. of benefits letters corresponded with legitimate services, yet the checks from
his insurance. company would be transferred directly to the Appellant. Id. at 50. He ·
testified at length as follows;
Q: And you mentioned on your writing down here that this
is a Saturday, That would be March 15th of 2008?
A: Yes.
Q: And I'm showing you what I've marked Commonwealth's
Exhibit 4261 that's a calendar for the year 2008?
A: Yes.
Q: And looking at March 15th, what fa the actual day of the week?
A: It's a Saturday.
· 45
Q: .. And Commonwealth's Exhibit 427, what is the dates of service
for that?
A: 4/8 of '08.
Q: And again, what is your writing on the bottom?
A: "This is a Sunday. I'm on paternity leave and the baby
was just born on the 211d."
Q: And again, Commonwealth's Exhibit 428, is that the same I
explanation of benefits and the same services? r'
A: Yes.
l
�'
Q: And is the difference tho date received and completed on the
light-hand side? r
A: Yes.
l
i
Q: And what is the date received and completed?
A: July th of 2010.
Q: And again, the check is paid to Dr. Stephanie Tsrapchak? 1
!
l
I
A: Yes. I
Q: And Commonwealth's Exhibit 429, what's the date of service 011 I
that?
I
!
A: 4il5 of '08.
�
I
Q: And what is your handwritten notes on the bottom?
A: It says, "I'm on paternity leave from work and working at the I
high school all morning. Then, babysat in. tbe afternoon." t
i;
Q: And going to the actual billing on that one, the first billing is for i !
I
office visit by general practitioner, is the.t correct? r
..
A:
Q:
Yes.
And the second one is prolonged service, OP'?
t.
r
I I
I
!
A: Yes.
46
Q: And again: did you. ever have an appointment or see the defendant
at that time?
A: No.
Q: Showing you what's marked as Commonwealth's Exhibit 430,
what is the date of service on that?
I-
A: 4/15 of '08
I
Q: And again, what are your notes on the bottom?
A: 'I'm on paternity leave from work. I worked at the school all
1
morning . .An.d I babysat in. the. afternoon."
Q: And you. didn't see the defendant at all that day forany office
visit?
A: No.
Q: Commonwealth's Exhibit 431, what's the date of services?
A: 5/S of '08.
Q: And again, what is your handwriting on the bottom?
A: "Paternity leave and working at the school."
Q: And Commonwealth's Exhibit 432, is that the same explanation of
benefits?
A: Yes.
Q: And what is the received. and completed dates?
[. ' .]
Q: And there was a point in time after June 9th that you. and the
defendant were to have 110 contact with eacn other?
A: Yes.
47
ji
I
Q: Aud when. you received an explanation of benefits, were there
explanation of benefits for office visits that occurred after .
June 9tb when you were supposed to .not have any contact?
A: Yes.
[ ... ]
Q: Alright, so those were all for things tbat didn't occur to you r
and visits that didn't. happen?
A: That's correct.
Id. at 3540, Sl.
In the same way, Thomas Biscoe, a former patient testified that in 2008 he
i
requested a physician's note to return to work. He recalled that the Appellant did not
perform any examination. M., at 11 G. Later, Mr. Biscoe received a11 "inflated" bill
I
approximately $500.00. Id: at 111..ns.
I
i
'I
!
Importantly, Kelly McD01wd, office manager, testified that the Appellant marked
the patient's super bill with a code. Id. at 60. She indicated. that she would bill the code .
as marked by the Appellant, and did not have the authority or knowledge to modify the Ii
super bill. Id. at 61. In fact, Ms. McDonald emphasized that she had no involvement in I
the diagnosis to be able to "code it." !g. She testified that the code originated with the
I
1
Appellant !g. She stated: ''I was billing at the number that was written on the super bill. I
Whatever was on the super bill is what was billed." Id. at 98w99.
Furthermore, after submission of the super bill, Ms. McDonald related that Blue
Cross and Blue Shield electronically transferred payment into the Appellant's personal
bank account. She testified that the Appellant did not utilize a separate business account.
Id. at 59-60, 71. Ms. McDonald explained. that she kept the co-pay cash and the co-pay
checks in a zip lock pouch until the end of the day when she placed the cash and checks ill
48
a purple folder. The Appellant knew the folder's location, and the contents of the folder
would be retrieved by the Appellant later that day. Id. at 72.
Subsequently, Ms. McDonakl recalled an audit and explanation by an insurance .
representative, Dorothy Berg. Ms. Berg notified that the billing codes were being billed
at the highest level, 99125, and reflected billing for services that the practice could not
provide) meaning the practice lacked the proper equipment as well as maintained medical
files with no documentation. Ms. Mclrouald testified tha:t the Appellant routinely billed
at 99215, 99214, and directed services he billed regardless of lack of equipment. J!!. at
69, 99. Lastly. Ms. Mclronald testified that after the audit occurred, specifically in 2011,
the Appellant continued to bill at 99214� and continued to bill without documentation in
the medical file. Id. at 109-110. She stated: "Whatever it was marked at, that's what it
was billed at." J4. at 110.
Dorothy Berg, a clinical investigator for Capital Blue Cross testified that her
responsibilities involved reviewing claims fox fraud, waste and abuse, or potential fraud,
waste and abuse. (�.T. September 23, 2015 p, 69). As part of her role, Ms. Barg
1
I
opened on investigation against the Appellant's practice in 2009 due to "odd billings."
Id. at 74,76. She indicated that the Appellant's practice receiveda warning/educational
27
correspondence citing excessive high billing of 9221426 and 92215) the highest levels
of office visit as well as notification of an improper code for the administration of
Lidocaine. !!!, at 7S-76. The correspondence notified the Appellant that "she stood as �n
outlier reporting a higher level of services than her peers." gt. at 119.
24 Dorothy Berg explained that code 99214 triggered a charge amount of $125.00. (N.'l'. September 23, 2015 p.
115).
21Dorothy Berg explained that code 99ZJ $ triggered 11. charge amount of$200.00. (N,T, September l3, 2015 p.
nsi
49
As part of the investigation, Ms. Berg conducted a review of the Appellant's
claims history, and prepared a medical record request. Id· at 78. She observed several
red flags in the Appellant's claims histo1y. She explained: "high codes for the evaluation
and management, so if we saw a patient with a lot of 992151s and then we looked at the
patient's claim history and we weren't seeing admissions, we weren't seeing other
referrals, that was a red fla.g [ ... ] we saw some other oddities. For example, there was a
code for what would have been a VQ scan. that's like a nuclear medicine test. \Ve felt
pretty confident that was not being done in the physician's office ( ... [because it's a
nuclear medicine. You have to inject a dye and then you follow-up with a scan." Ii!, 79-
80. Ms. Berg also recalled that the Appellant's claims history reflected prolonged visits
· of seventy (70) minutes, which is unusual for a family practitioner. l!l· at 81, As a
result, Ms, Berg notified the Appellant of an on-site inspection. During the on-site
inspection, Ms. Berg expressed concern over the Appellant's documentation. She
observed incomplete files, !!!· at 90. She testified: "so as rm looking at these records
and I'm seeing no detailed information that if I didn't know the patient I wouldn't be able I
:::��::�:.[:::�::�: ·:::::::.:f.::l:::::. ��]- ::: :::::
lI
if the Appellant were billing at 99214, the corresponding expectation is detailed
responses," a referral to a specialist, or order for physical therapy or X-Ray. IQ. at 95-
96. Especially with a 99214 code and compared to the Appellant's pharmacy records,
Ms. Berg explained: "I would expect to see where that was a fairly detailed exam history
and that the medical decision making was of a detailed nature." Id. at 96. Here, the
za For example, Ms. Berg reviewed patient Peter Yawormicky's file and found only tho date, 1/19/J 1, with no
tu...'i!J.er entries, (September 23� 2015 p. 125). She explained that medical decision making in II medical file should
include patient history, un examination, impression, and then a plan, !g. 11.t 126.
50
Appellant's progress notes only indicated the date) and included inconsistent dates or pre-
dated services with no justification for prescriptiona" Id. at 96"97,117, Also during the
on-site inspection, Ms. Berg observed the lack of equipment necessary to perform the
medical testing previously billed by the Appellant's practice. Id, at 99. Therefore, Ms..
Berg found that the Appellant utilized a higher code than the level of service
documented lg. at 118. In conclusion, Ms. Berg found that the Appellant created the
medical records to satisfy the audit. Lg. Her conclusion required a second visit to the
Appellant's practice. Ms. Berg recalled that the Appellant answered questions vaguely,
il
and feigned laziness with recording vitals if a patient presented stable. !g. at 103, J.08.
I
Ultimately, Ms. Berg determined that based upon the claims with medical records
II
I
available for review," the Appellant overbilled $24,504.41. !!!., at 1191130t133. After I
the audit, Ms, Berg testified that the Appellant's incomplete progress notes continued, in I
I
particular the Appellant provided. no basis for the medications she prescribed. lg. at
I
127,129.
Accordingly) the testimony of Ricky White, Kelly Mclfonald, and Dorothy Berg
established beyond a reasonable doubt that the Appellant intentionally and knowingly
misrepresented to Capital Blue Cross, an insurance provider, the facts of submitted
I
claims in that her supporting medical records were incomplete, failed to substantiate the
2� Dr Woody testified that he reviewed seven (7) oft.h� Appellant's medical records and offered an opinion aii to he
whether the Appellant prescribed according to accepted medical standards, Be stated; "Overall, there was a lot of
prescriptions writteo for controlled substances; opiates, and stimulants [ ... ] and I did not see any clear justificat):m
for prcscdbing these substances, There was no clear data tJ1al would establish a diagnoiis tha� would j1l3tify the
prescribing of ( .•. J opiates and stimul.ants that were being prescribed [ ... ] the.re was uo record on the nature of
the iajury or documentation. that he needed such a high dose of opioid doses on u chronic basis [ ... ] uo clear
documentation. Particular. over auoh & long period of time, And particularly, such high doses." (September Z8,
1
· 2015 p.13 �21). He confirmed that typically a plrysioinn documents some derail about the patient's response to
treatment, a.uytbing relevant to clinical management, especially an operative note or some new occurenco, however
the Appellnnt maintained blank files, Jacking all documentation. J,!J. at 60..Gl,67· 73.
30
Ms. Berg clarified that the audit only reviewed over t!iirt,�30) records, and did not enccmpass the entirety ofth¢
Appellant's patients. (N.T. September 23, 2015 p.1.20-121).
51
11
highest level of billing code, and failed to substantiate that services were even provided.
Dorothy Berg testified that the insurance company relied on the Appellant's
misrepresentations as material information necessary to process payment. AU three (3)
witnesses testified that the Appellant always billed using codes 99214 or 99215 and
billed the same treatments for the same patient on multiple occasions. Ricky White
testified that the Appellant submitted false claims with the intent to defraud the insurance
company, in th.at the Appellfmt billed, and re-billed for treatments knowing that the .
treatments never occurred. Mr, White clarified multiple explanation of benefits letters
listing dates of services that made liis presence or her presence clearly impossible.
Conspicuously, the Appellant billed for dates of services, which included: a few days
after giving birth, during a scheduled court appearance, and while Mr, White and the
Appellant were court ordered to have no contact as well as days Mr. White worked. Both
Kelly Mcfionald and Mr. White testified that the Appellant held intimate knowledge of
the billing practice, refused to outsource the billing, and retained control over and
complicity with the fraudulent claims.
Similarly) Ms. Berg indicated that Capital Blue Cross began flagging claims
submitted by the Appellant's medical practice. Iu 2008 and 2009, Capital Blue Cross
notified the Appellant's practice of its improper 99215 coding versus the procedures
actually performed. Although Capital Blue Cross and Ms. Ber� informed the Appellant
of the coding problem, the Appellant's medical practice continued to bill at 92214 and
92215 codes without complete medication dooumentation, Ms. Borg testified that she
discussed the use of the incorrect code with the Appellant and provided alternative codes
to office manager Kelly McDonald, however despite being advised, Capital Blue Cross
52
received subsequent claims in 2011 with the code 92215 lacking any documentation on
the patient's progress note.
Based upon the foregoing, the Commonwealth presented sufficient evidence to
support the Appellant's Corrupt Organizations conviction beyond a reasonable doubt.
The Corrupt Organizations statute proclaims it unlawful to acquire or maintain "directly
or indirectly." an interest through a pattern of racketeering activity. 18 Pa. C.S.
§911(b)(2). Here, the Commonwealth presented evidence that directly and indirectly
linked the Appellant. to a pattern of racketeering activity. Mr. White, and Ms. McDonald
as well as several other Commonwealth witnesses employed by the Appellant confirmed
that the Appellant "controlled" her internal medicine practice. Moreover, based upon
Ms. Berg's testimony, the jm-y could infer the Appellant's awareness of the billing issues
and lack of documentation as well as the insurance company's warnings and request for
off-set re-payment. Ms. Bergt s testimony indicated that the Appellant acquiesced in tho
improper billing when her practice continued to bill Capital Blue Cross even after being
instructed to stop. Although Kelly Mclronald, Karen Mervine. and Ricky White assisted
with the billing department> none of those employees were the doctor. Therefore, it is
reasonable to infer that the employees consulted the Appellant regarding any medical
questions about the billing. See Cogunonw�altb v. Rogal, 120 A.3d 994, 1003-1004
(Pa. Super. 2015). In addition, Mt. Bolton's testimony revealed that although be
suffered an apparent drug addiction, the Appellant supplied him with high doses of
Vicodin and testosterone ordered through the Moore catalog without justification or
documentation for these prescriptions. 'Therefore, the Appellant either directly or
53
indirectly participated in a pattern of racketeering activity through the two predicate acts
of Insurance Fraud, and Distributing Prescription to Drug Dependent Person.
The two predicate acts formed a pattern related to the enterprise in that the
Appellant used the resources of her medical practice to acquire and maintain through the
Moore catalog an inventory of narcotics, She utilized this inventory to supply Viocodin
to her drug addicted paramour without A prescription so as to avoid insurance regulations
and criminal investigation. She further used the resources of the enterprise, including tbe
labor of her employees, and unwitting patients to receive income from insurance
companies and funnel the income to herself under the guise oflegitiroa.te income. The
Appellate engaged in illegaJ commerce 011 an ongoing regular basis, supplying patients
with excessive opioid prescriptions without conducting examinations, or documenting her
medical decision making, yet fraudulently billing insurance companies as if she did. The
intertwining of her medical practice, fraudulent billing and narcotics supply is substantial.
But for her medical practice, the Appellant would have to develop a completely different
method of obtaining and supplying narcotics as well as income. Commerce at the
Appellant's medical practice encompassed both legal and illegal sources of income. The
· Appellant's corrupt organization enab led her to generate direct and indirect reveanes that
were unavailable to other medical practices. The flow of patients arising from the easy
access to excessive narcotic prescriptions, and other items purchased by the Appellant
through the Moore catalog provided the Appellant with an unfair edge in commercial
competition. The Appellant's regular use of au otherwise legitimate business to engage
in illegal conduct is precisely a 00111.1.pt organization under Pennsylvania law.
54
., ..
Accordingly, the Appellant's conviction under 18 Pa. C.S. §9ll(b)(2) should be
affirmed.
EVIDENQE
I
•
I
t
A. Whether the trial court erred and committed an abuse of discretion, where it is j_
!
alleged that the trial court allowed the substance of text messages and Facebook
messeges to be admitted dnring the testimony of James Hischar without
foundational .evtdence that the Appellant anthnred the messages?31
The trial court's decision to admit evidence is subject to the following standard of
review: "only a showing of an abuse of that discretion, and resulting prejudice,
constitutes reversible error." Commonwealth y. Ballatd, 80 A.3d 380, 392 (Pn ..
2013). An abuse of discretion is not merely an error in judgment, but misapplication
of the law, or judgment that is manifestly unreasonable, or the result of partiality,
prejudice, bias> or ill-will. Commonwealth v, Stollai:, 2014 WL 241864 * 15 (Ptl.,
2014); (;oromonwealth,v1 l\foser, 999 A.2d 602, 605 (Pa. Super. 201(1).
Pennsylvania Rule of Evidence 901, provides that authentication is required prior
to admission of evidence. The proponent of the evidence must introduce sufficient
evidence that the matter is what it purports to be. Pa. R. E. 901(a.). Testimony of a
witness with personal knowledge that a matter is what it is claimed to be can be
sufficient. Pa. R. E. 901(b)(1). See also comment, citing Commonwealth v.
Iludson, 414 A.2d 1381 (Pa. 1980). Furthermore, electronic writings typically show
their source, so they cm be authenticated by contents in. the same way that a
communication by postal mail can be authenticated. Circumstantial evidence may
suffice where the circumstaaces support a finding that the writing is genuine. I!! the.
Interest, F,,P .. a Minor, 878 A.2d 91 (Pa. Super. 2005). Importantly, in In the
91 Listed as issue l in the Appellant's Concise Statement of Errors.
55
Interest, F.P .• a. Minor. supra the Pennsylvania Superior Court rejected tho
argument that emails or text messages are inherently unreliable due to their relative
anonymity and the difficulty in connecting them to their author. lg. at 95. Instead,
the Pennsylvania. Superior Court held that such evidence is to be evaluated on a case·
I
J
L
I
by-case basis as any other document to determine whether there has been au adequate
foundational showing of its relevance and mitbeaticity. Authentication of electronic l
!
I
1
communicaticns, like documents, requires more than mere confirmation that the
number or address belonged to a particular person. Circumstantial evidence, which
tends to corroborate the identity of the sender: is required. J:.g. For example,
circumstantial or direct evidence such as testimony from the person who sent or
received the communication, or contextual clues in the communication tending to
reveal the identity of the sender. Commonwealth,y, M:ang�!, 181 A.3d 1154, 1162
(Pa .. Super, 2018); See also �pmmonweaJth v. !(och, 39 A.ld 996 (Pa, Super.
2011).
In the instant case, the Commonwealth's witnesses provided ample circumstantial.
and direct evidence to meet the threshold for admission of the text messages and J
l
I
Facebook messages against the Appellant. During the testimony of Agent James i
i
Hisohar, and De Iton Bolton, the Commonwealth introduced the Appellant' B text
j
messages and Facebook messages. Agent Hischar testified to several facts suggesting
the Appellant's ownership of the relevant text messages and Facebook messages.
Agent Hischar testified that he met with the Appellant'sformer paramour, Delton
Bolton, who submitted his cell phone for forensic examination, (N.T. September 22, 1
2015 p. 98; N.T. September 24, 2015 p. 52). Through forensic extraction, Agent
56
Hischar observed several text messages and photographs on Mr. Bolton's cell phone.
M!,, at 103-104. AgcntHischar explained that the forensic extraction separates
received and sent text messages. Id, at 108.. J09. He verified that Mr. Bolton
received text messages from the Appellant's cell phone number, and that Mr. Bolton
responded to messages received from the Appellant's cell phone, that the number. in
fact belonged to the. cell phone that the Appellant owned, Duling the text
conversation, the Appellant referenced· smuggling or "boffing," her "robin's egg
stash" into the county prison, which coincided with the timing of the Appellant' s
lacarceratlon, Agent Hischar corroborated that "robin's egg," meant the
Phentermine/Adipex pills, which matched the Appellant's Moore catalog invoice.
Tbe text conversation also addressed and questioned previous cirournstances or
interactions personal to the Appellant, Mr. Bolton, and her child. The text
..
conversation mentioned "London's toy." Agent Hischar testified that "London," is
the Appellant's daughter. Lastly, Agent Hischar attended a custody hearing in
Lackawanna County) wherein the Appellant's attorney verified the Appellant's cell
phone number as the same number observed. on 111". Bolton's phone, and the same
number in. text conversation with Mr. Bolton. �:r. Septemher 22, 2015 p.107).
105, 110-112, 109, 138, 168-169). Furthermore> the Commonwealth presented
testimony from Mr. Bolton, who directly received the Appellant' s text messages. He
confirmed that he often texted the Appellant, and likewise he often received texts
from. the Appellant. He identified the Appellant's cell phone number. Mr. Bolton
confirmed that the Appellant texted him about smuggling adipex in her anal cavity
· while incarcerated. He explained the terms "robin's egg," and "hoofed" relative to the
57
conversation, which corroborated that the messages being sent were being sent by the
Appellant. (N.T. September 24, 2015 p. S-6, 53�55).
Thus, direct and circumstantial evidence established that the Appe!lant authored
the text messages admitted at trial, The personal information that Agent Hisehar and
Mr. Bolton each confirmed. during their testimony corresponded to the Appellant's
personal details interspersed throughout the conversations. Moreover, this Court
provided the Appellant ample opportunity to cross-examine Agent Hischar andMr.
Bolton about the accuracy aad validity of the textmessages. This Court did not abuse
its discretion in rendering this evideatiary ruling.
Equally, this Court did not abuse its discretion as to the admission of the
!
Appellant's Facebook messages. The Commonwealth presented evidence
substantiating that Appellant owned the Facebook account in question, and authored I
the messages, Agent Hischar executed a search warrant on the Facebook account,
I
I
I
I
I
and testified that the creation of the Facebook account and messages coincided with a I
time period in which a court order precluded the Appellant from unsupervised
I
communicated with her children. As such, Agent Hischar testified that the Appellant I
created a sham Facebook account under the guise of "Corrine Hartford, 11 to avoid the
court order and communicate with her children unsupervised, (N.T. September 22t
2015 p. 114-115). Additionally, Mr. Bolton provided Agent Hischar with
photographs of Facebook messages. lg. 115·116. Agent Hischar testified that the
search warrant results duplicated the photographs provided by Mr. Bolton. J.g. 116,
118; 119, 164-165. The search warrant revealed account numbers specific to the
following account names and authors: Stephanie Tarapchak, Corrine Hartford, Fallon
58
Tarapchak, and London White. g!. at 119, 171-172. Each of the Facebook
messages contained. contextual clues and distinct characteristics that linked the
Appellant as the author of the messages. The Facebook messages expressed
consistent themes about the specific custody circumstances, encouraging
communication at any time "without Danielle creeping," including instructions about
deleting messages as well as themes about prescribing or supplying medicine, and
attending medical license classes. Id. at 122, 124-127. 'The messages used names or
variations of names common to the Appellant and known among her children, such
as the guardian ·ad litem 's name, "Danielle," the Harry Potter character) "Hermione,"
the sham account name "Corrine Hartford," and the email address
"Urmoml 8 l 8@gmail.com." Jg. at 122�123, 134. Specifical ly, the messages
reference or address all of the Appellant's daughters> "London," "Ashtyn," and
"Fallon." Independently, Agent Hischar attended a Lackawanna County custody
hearing to confirm the author of the Facebook messages. li· at 175. During the
hearing, he recalled. that the Appellant admitted to creating a sham Facebook
account, under the guise of Corrine Hartford to secretly communicate with her
children in contradiction. of the court order. lg. I
The Commonwealth introduced subsequent testimony from Mr. Bolton, a l
I
knowledgeable party to substantiate the Feccbook account and by association, the
Facebook messages. Mr. Bolton testified that he often communicated with the
I
I
Appellant through Facebcok (N.T. September 24, 201511. SS). He related that the
Appellant created a sham Facebook account with her older children ns a means to
sidestep the supervised contact custody provision. IQ. at 59, 61. Jo fact, the
59
Appellant admitted to Mr. Bolton that she used the sham account to communicate.
1.4, at 62"63. Lastly, Mr. Bolton explained that the Appellant utilized "Hermione"
because the family enjoyed Harry Potter. Similarly, the Appellant utilized the nfil:ne1
"Corrine" because her niece is named Corrine, Id. at 68, 9S. Therefore, the
contextual clues in the Facebook messages taken. together with the testimony
provided by Mr, Bolton support the conclusion that the Appellant created and
authored the Facebook messages. · Therefore, this Court properly admitted the
substance of text messages and Facebook messages.
RULE 404. CHARACTEE, EYIQENCE. CRIME OR OTHER ACTS
The Pennsylvania Rules of Evidence provide:
(b) Cd mes, Wrongs ot Other Acts.
(1) Prohibited Uses. Bvidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive. opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
Io. a. criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice,
Pa. R. E. 404(b)(l),(2); See generally Commonwealth v. Lark, 543 A,ld 491,
497 (Pa. 1998)(evidence of other crimes, while generally not admissible solely to show
criminal propensity, may be admissible in special circumstances where relevant for some
other legitimate purpo5ie; one special circumstance is "res gestae " exception> where
such evidence became part of history of case and formed part of natural development of
facts). In. determining whether evidence of other prior bad acts is admissible, the trial
60
If
court is obliged to balance the probative value of such evidence against its prejudicial
impact CQmmonwealth v. Po3vell, 956 A.2d 406, 419 (Pa. 2008); �ouuuonwealth v.
Sherwood> 982 A.2d 483, 497 (Pn, 2009); .C:.ommonwealth v. Dillon, 925 A.2d 131,
141 (Pa. 2007)(stating that "[ejvidence will not be prohibited merely because it is
hermful to the defendant"),
. .
lo. reviewing a trial court's discretion in evidentiary issues, the standard of review
is as follows:
[qjuestions regarding the admission of evidence are left to the sound
discretion of the trial court, and ( .. , ] an appellate court, will
not disturb the trial court's rulings regarding the admissibility of
evidence absent an abuse of that discretion, An abuse of discretion
is not merely an error of judgment; ra.ther, discretion is abused
when. the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record
�oromonwealth "· Richard, 150 A.3d 504, 512 (Pa. Super, Z016). The
following subsections address the Appellant's challenges to this Court's admission of
evidence.
A. Whether the trial court erred in ad.mi.ttin.g prior ba.d act evidence pursuant to
Pa. R. E. 404(1,), where it ls alleged that the trtal court allowed the testimony of ·
James Hlschar regarding the-prescription the Appellant provided her daughter,
and the daughter's subsequent overdose'/3Z
First> the Appellant failed to timely object to Agent Hischar's overdose testimony.
Therefore, the Appellant's challenge is waived. See Pa. R. A. P. 302(a);
Corn5nc,uwealth v. May, 887 A.2d 750� 758 (Pa. 2005); �otnmonwealth ·y. )?roll,.!!,
359 A,2d 393 (Pa. 1976)(ho1ding that the lack of a timely objection waived issue for
appellate review). The Appellant is not entitled to relief. Notwithstanding, prior bad acts
Ji Listed as issue 6 iu the Appcllanr'a Concise Statement of Errors.
61
---·- -�---------------- .
evidence may be admissible as res gestae when relevant to furnish the complete story or
context of events surrounding the crime. See _roi:r.1monwcalth v. Williams, 896 A.2d
523, 539 (Pa. 2006); Commonwe.alth v. Paddv, 800 A.2d 2-94, 308 (Pa, 2002). Agent
Hiscbar testified that his investigation uncovered the following: "Fallon is her eldest
I
1-
daughter, I believe at the time was probably about 15. She had overdosed of Xanax, that
i
occurred at school, and I looked into where the Xanax came from and found that it came
from Dr. Tarapchak." (N.T. September 22, 105 p. 114). This Court permitted the
Commonwealth to introduce thls evidence, first because it demonstrated intent and
knowledge by establishing that the Appellant supplied her minor child with a Xanax
prescription, and that tb.e minor child. did not ingest the Xanax accidentally; second that it
demonstrated motive to make a false statement under oath during a custody proceeding to
conceal her illegal prescription practices and escape those consequences, tbe perjury
charge grew out of the minor child's overdose; third that it explained the history and
course of events surrounding the Appellant's criminal conduct in excessively supplying
or dispensing prescriptions without good faith or in ccntradiction to accepted medical
practices within. the medical community. The evidence showed that the Appellant bad
excessively supplied or prescribed controlled substances to family members and
paramours. See Commonwealth v. :Brown, 52 A. 3d 320, 332 (Pa. Super. 2012)(tb.e
history of the res gestae exception demonstrates that it is properly invoked when the. bad
acts ate part of the same transaction involving the charged crime) See also
Commonwealth v. Powell� 956 A.2d 406 (Pn. 2008)(trlal court properly admitted
evidence where the statement was offered not to show appellant's propensity to clime. but
in the context of establishing the family environment and relationships among appellant).
62
Evidence of the Appellant's prescribing to her minor child, taught the jury about the
course of the investigation that culminated in the Appellant's arrest. Moreover, the
probative. value of Agent Hiscbar's testimony outweighed its prejudicial effect as the
Commonwealth introduced Agent Hischar's testimony for the purpose of proving intent,
knowledge, and motive.
B. Wbether the trial court erred. ht admittlng prior bad act evidence pursuant to
Pa. R. E, 404(b),· where it is alleged that the t:rlal court allowed the testimony of
AJex T�rapchak regarding custody proceedings and the Appellant's drug -use'/33
Again, the Appellant failed to timely object to Alex Tarapchak's custody battle
and drug use testimony. Therefore, the Appellant's challenge is waived. See Pa. R. A.
P, 302(a); Co:mmonwealth v. Mav, 887 A.2.d 750, 758 (Pa. 2005); C9mmom:vealth ,,.
pro'!.!!, 359 A.2d 393 (Pa. 1976)(bold:ing that the lack of a timely objection waived issue
for appellate review). The Appellant is not entitled to relief. Notwithstanding, the
history of the Appellant's custody litigation showed the chain or sequence of events that
led to the underlying investigation. See Commonwealth v. Drumheller, 808 A.2d 893,
905 (Pa. 2002); Commonwealth v. Tyson, 119 A.3d 353� 360 (Pa. Super. 2015}. Alex
Tarapchak testified that he contacted the Drug Enforcement Agency regarding the
Appellant as the result of acrimonious custody litigation between 2002 through 2013. He
testified that he wrote a letter to the Drug Enforcement Agency because "there were jus:
so many things that were continuing to happen and one day it had occurred to me that
why no one did anything about it, you know because we were in front of all of these
custody judges, you know, in. Lackawanna County, Northhampton County) and no one
ever did anythit1g - ahe tested positive for drugs all the time, she was in the car with my
23 Listed as issue 6 in the Appellant's Concise Statement of Brrors
63
children while drinking, on drugs, you name it, and she would be punished in the effect
that she would have supervised visits, different things like that, but she was committing
criminal acts regularly and not only to my children." (N.T. September 24, 2015 p. 150�
151). Here, Alex. Tarapohak's testimony regarding the Appellant's custody litigation
demonstrated the continual and escalating nature of the Appellant's criminal activity and
illegal prescription practices. The Appellant's custody litigation is important to-estnblish
the history of the Appellant's relationship with her minor children and formecparamours,
to whom she provided prescriptions, as well as to show Alex Tarapchak's awareness of
the Appellant's criminal activity. Furthermore, evidence of a defendants drug-related
activity is admissible to establish motive. CopunCJn.we�)th. ,,. M�lloy, 856 A.2d 767 (Pa.
2004); See also ,Commonwealth v� 57 A.3d 85, 100 (Pa. 2012)(hoidingthat to
. establish motive under 404(h), there must 'be a specific 'logical connection' between the
other act and the crime at issue which establishes that the crime currently being
considered grew out of or was in any way caused by tho? prior set of facts and
. circumstances); See Commonwealth v. Powel!, 956 A.2d 406 (Pa. 2008)(fu1ding that
testimony was not offered to sbow criminal propensity, but in 'the context of establishing
the family environment and relationships among the defendant).
Evidence that the Appellant abused prescriptions is motive that the Appellant
engaged in criminal activity to support her addiction. Additionally, the Appellant's drug
and alcohol abuse is relevant to establish that the Appellant acted recklessly, and provides
context for later testimony that the Appellant ordered narcotics for herself and her
paramour from the Moore catalog. Lastly, the probative value of Alex Tarapobak's
testimony outweighed its prejudicial effect as the Commonwealth introduced his
64
testimony to explain. the underlying investigation and show motive for the Appellant's
. ,
criminal activity.
C. \Vhetlter the trial court erred. in admitting prior bad act evidence pursuant to -
Pa. R. E. 404(b), where it is alleged that the trial court allowed the testimony of
Delton Bolton regarding the Appellant's drug and alcohol use?34 (
I
,.
'
Delton Bolton, the A1lpellaut'.g former paramour testified at length about his two ·1
(2). year relationship with. the Appellant. During the course of their relationship, Mr.
Bolton testified that he ingested and. injected "all kinds of' drugs with the Appellant.
(N.T. September 23, 2015 p. '181,183, 186-190, 194, 1961228; September 24, 2014 'P·
4-5, 35, 109-110, 116). Shortly thereafte», Mr. Bolton testified that the Appellant ordered
excessive quantities of'Percocet, Vlcodin, and Phentermine/Adipex from the Moore
catalog. lg, at 1.93, 19S..198. He described au exchange system, in. which the Appellant
prescribed him Ritalin and Adderall, directing him to several different pharrnacies to fill
the prescriptions. Mr. Bolton then filled the prescriptions and gave them to the Appellant
in exchange for excessive quantities of Vicodin. Id. at 212-214; N.T. September 24,
201S p. 43, 45.:.46, In. particular) Mr. Bolton recalled that the Appellant consumed
Adipex on a daily basis. Id. at 229. Mr. Bolton also testified about the Appellant's
I,
I
public intoxications and alcohol induced violence. (N.T. September 24, 2015 p, 23,
26,38). The Appellant only objected as to speculation during the length of Mr - .Bolton's
testimony regarding the Appellant's drug and alcohol use. In fact, the Appellant cross-
examined Mr, Bolton about the Appellant's court ordered. drug test requirements. lg. at
110�1.ll, Regardless, the Appellant did not object as to inadmissibleprior bad act
evidence. The Appellant did not make a timely and specific objection; and. therefore did
34 Listed as issue 6 in tho Appellant's Conci,qa Statement ofl:lrrors.
65
- . ·-··· .. ,,_ __ �··---..···�·· __ _.,.,, ---- . ·- , - " . . .. . . . . . . ,., ..
not properly preserve the issue of whether this Court improperly admitted testimony
regarding the Appellant's drug and alcohol abuse. See Pn. R. E.103(a); Commonwealth
y. Cousa.r, 928 A.2d 10251 1041 (Pa. 2007)(citing that the rule is well settled that a party
complaining, on appeal, of the admission of evidence in the [cjourt below will be
·,-
confined to the specific objection there made).
In the alternative, Mr, Bolton's testimony is admissible as evidence of motive
demonstrating that the Appellant's criminal actions
. grew out of the Appellant's. d111g. and
alcohol abuse. Further, the Appellant's drug and. alcohol abuseformed the bistory.of the
case becoming part of a. chain. of a sequence of events. The Appellant's drug 1'1,Ud alcohol
abuse is relevant because it occurred in the presence of Mr. Bolton, and with Mr. Bolton.
Both the Appellant and Mr. Bolton became addicts, living together in a volatile
relationship centered on theexchange ofnarcctics. In the relevant time period, Mr.
Bolton explicitly showed the Appellant's addiction to prescription and street drugs. Mr.
Bolton's testimony established the relationship with the Appellant, and the environment
in which the Appellant operated. her internal medicine practice, especially as to why the
Appellant prescribed iu the matter shQ did. Mr. Bolton's testimony also established state
of mind, knowledge, absence of mistake, intent, and lack of good faith, The Appell�t's
drug and alcohol abuse is fundamental to the entire story; therefore any prejudice is
outweighed by the probative value.
66
D. Whetller the trial court erred In admitting prior bad act evidence pursuant to
Pa. R. E. 4.04(b), where it is alleged that the trial court allowed the admission of
the Appellant's custody hearing transcripts with judicial fiudings?3s
In order to prove tho charge of Perjury against the Appellant, the Commonwealth
must prove that the Appellant made a false statement under oath or affirmation in an
au official proceeding. In establishing the elements of this offense, the Commonwealth
presented court reporter, Lorissa Senczakowicz to demonstrate that the Appellant
appeared before the Honorable Margaret.Biaignaui-Moyle fora custody hearing. Ms.
Senczakowicz testified to the accuracy of her notes and the transcription therof (N.T.•
September 30, 1015 p.137"140, 143-148). In the present case, the Appellant objected as
to the authentication of tho transcript, The Appellant's counsel did not object as
inadmissible prior bad acts, instead on appeal the Appellant attempts to recast the basis of'
tbe objection by arguing that this Court erred in permitting prior bad act evidence. The
Appellant did not make a timely and specific objection, and therefore did not properly
preserve the issue of whether this Court improperly admitted custody hearing transcripts.
See Pa. R.. E. 103(a); Commop1ve.alth v. ,Cousar, 928 A.2d 1025, 1041 (Pa.
2007)(citing that the rule is well settled that a party complaining> on appeal, of the
admission of evidence in the [c]ourt below will be confined to the specific objection there
made); Co.mmonwealth ·v. JMcGiff, 160 A.3d 863 (Pa. Super. 2011)(finding that
appellant waived appellate review, although he lodged an anticipatory objection prior to
the Commonwealth's calling of witnesses in connection with hfo motion in limine,
counsel failed to make a timely and specific objection to. their testimony at the time tha.t it
was actually proffered); Commonwealth v, Tgck�i:, 143 A.23d 955 (Pa. Super. 2016);
Commonwealth v. lionck, 102 A.3d 443 (Pa. Super. 2014); (;Qm(tlonwealth �· Rose,
as Listed as issue 6 in the Appellant's Concise Statement of Brrors.
67
172 A.3d 1121 (Pa. Super. 2017){the defendant did not preserve for appeal a claim that a
burglary victim's testimony regarding incidents of intimidation was irrelevant and
prejudicial where the defendant's objection at trial lacked specificity and merely asserted. ·
that the victim's statements were inadmissible hearsay). I
!
[,
Notwithstanding, admission of the custody hearing transcripts is necessary to !
j
complete the picture of the hearing at which the perjury occurred. See Commonwealth 1
v. Robinson, 480 A,2d 1229 (Pa. Super. 1984)(:finding no abuse of discretion in
admission of evidence of crimes involved in a bail hearing in a prosecution for perjury
which occurred at the bail revocation bearing, since> in establishing elements of pe_i:jury,
Commonwealth could properly demonstrate that defendant had appeared for the bail
revocation hearing, and reference to the prior criminal charges was necessary to complete
the picture of the bail hearing at which the perjury occurred, the evidence was not offered
to prove a general criminal disposition). The custody hearing transcripts demonstrate the
Appellant's knowledge of her false statements and intent to conceal her prescription
practices. See £!,mmonwcalth "'· Kinard� 95 A.3d 279 (Pa. Super. Z014)(holding that
other crimes evidence, telephone calls that the defendant made from prison in which he
discussed drug transactions using terminology commonly employed by drug dealers to
evade detection showed defendant's knowledge and awareness of drug trafficking, to
support police officer's testimony that defebdant was not merely an innocent visitor to
place where drugs had been found, and. to show defendant's knowledge and use of coded
language). Therefore, when balancing the probative versus prejudicial nature of this
evidence, the admission of the custody hearing transcripts is critical in helping the jury to
nnderstand that the Appellant's false statements were not a mistake.
68
I
E. \\1Jlether the trial court erred in admitting prior pad act evidence pursuant to I
I
Pa. R. E. 404(b ), where it is alleged that the trlal court allowed the testimony of
Karen Mervine regarding the Appellant's role in patient addiction, and the
· manner in which. the Appellant allo·wed Kelly McDona1d to write I
I
prescriptionS"/36
Karen Mervine, the Appellant's former employee> testified that she personally
observed. tbe office manager, Kelly McDonald write prescriptions. (N.T. September 29,
2015 p, 42). She stated: "the doctor sometimes would be sick or Say she was sick when
she was upstairs, wouldn't co1?e down and there would be a waiting room full of patients
and Kelly would just write out scripts and give thew. to the patiout.s and send them. on
their way"). !g. She further testified: "People called her Dr. Kelly that went there. My
mom would even say that Kelly is like a doctor." lg. at 43. Subs·:,quently, the Appellant
objected as to hearsay> and this Court sustained the objection. 111e Appellant did not
object to the admission of prior bad acts, Later on re-direct, Ms. Mervine testified that
she consulted with the Appellant regarding her prescribing practices. Id. at 57. She
stated: "I asked the· doctor, I said 'Doc, is it legal for you to have Kelly, yon know write
prescriptions and sign your name?' and she just said 'Karen, you are not here for that,
you are here to help me with my billing. Don't worry about it." lg. In response, the
Appellant objected as to legal conclusion, and this Court overruled the Appellant's
objection flnding Ms. Mervine recounted her personal observations. !g. at SS. Ms.
Mervine than testified that she became concerned with the types of patients the Appellant
treated. !g. at 59. She explained that the patients "were already street users of drugs."
Id, The Appellant objected without more, and this Court overruled based upon Ms.
Mervine's ability to recount her personal observations and reasonable inferences
36 Listed as issue 6 in the Appel I ant's Concise Statement of Errors,
69
therefrom. Id. at 60. On appeal the Appellant attempts to recast the basis of the
objections by arguing that this Court erred in permitting prior bad act evidence. The
Appellant did not make a timely and specific objection. and therefore did not properly
preserve the issue of whether this Court improperly admitted Karen Mervine's personal
observations of Kelly Mclronald writing prescriptions or observations of the types of
patients the Appellant treated. See Pa. R. E. 103(a); Commonwealth v. CoJ!lli, 928
A.2d. l02St 1041 (Pa. 2007)(citing that the rule is well settled that a party complaining,
on appeal, of the admission of evidence in the [cjourt below will be confined to the
specific objection there made); Common�eajtlJ v. McGiff, 160 A.3d 863 (Pa. Super,
20 l 7)(:fu1d:i.11g that appellant waived appellate review, although he lodged an anticipatory
objection prior to the Commonwealth's calling of witnesses in connection with his motion
in Ilmine, counsel failed to make. a timely and specific objection to their testimony at the
time that it was actually proffered); ComI1)01nveaJtb v� ):ucker, 143 A.23d 955 (Pa,
Super. 2016); Commonwealth v. �' 102 A.3d 443 (Pa. Super. 2014);
Commpnwealth "� Rose) 172 A.3d 1121 (Pa. Super. Z017)(the defendant did not
preserve for appeal a claim that a burglary victim's testimony regarding incidents of
intimidation was irrelevant and prejudicial where the defendant's objection at trial lacked
specificity and merely asserted that the victim's statements were inadmissible hearsay).
Altematively, Ms. Mervine's testimony based on her own personal observations,
discussed prior bad acts relevant and probative in explaining her employee/employer
relationship with the Appellant, and the history of the Appellant's prescribing practices
and fraudulent billing. Ms. Mervine's testimony established the Appellant1s state of
70
mind, chain of events, knowledge> and absence of mistake. Therefore, the prejudicial
impact of Ms. Mervine's testimony did not outweigh its probative value ..
Additionally, Ms. Mervine testified that her mother became the Appellant's
patient when she maintained a Frackville office, approximately nine (9) years prior to
trial. Id, at 27. She explained that the Appellant prescribed her mother multiple
medications, including Percocet, Oxyeodone, Ativan, and Xanax. lg. il.t 29, As a result, ·
Ms. Mervine testified that her mother acted strange, and ultimately suffered a bead injury ..
r
Id. at 30-32.. After the incident, Ms. Mervine recalled: "I went in her room and I went
through everything and I found drugs all over the place and prescriptions [ ... J and I
I
f
t
called a new doctor [ ... J and I explained to him that I believe my mom was an addict
and I needed help because I was afraid she was going to overdose." Ml· at 32. Again, as
previously cited, Ms. Mervine's testimony based on her own personal observations,
discussed prior bad acts relevant and probative in explaining her mother's
patient/physician relationship with the Appellant, and the history of the Appellant's
excessive prescribing practices. Ms. Mervine's testimony established the Appellant's
state of mind, chain of events, knowledge, and absence of mistake. SimHarly, the
prejudicial impact of Ms. Mervine's testimony did not outweigh its probative value.
F. Whether the trial court erred in admitting prior bad act evidence pursuant to
Pa. R, �:. 404(b), where it is alleged that the trlal court allowed the testnnony of
Robert Phillips 1:�gnrding the Appellant's illegal possession of prescription
medleanon for which no crlmlnal charges were filed? 37
Robert Phillips, the deputy sheriff assigned to the Schuylkill County Domestic
Relations Office testified that he served a bench warrant on the Appellant, and recovered
'1
23 'A small blue tablets in a -�� [ ... ] wrapped in a cellophane cigarette pack wrapper
37 Listed as issue 6 in the Appellant's Concise Statement of'Errors.
71
inside her purse." (N.T. September 291 2015 r· 87-88). He recalled the absence of a .
prescription bottle in the Appellant's purse, but noted that the Appellant identified the
pills as Percocet 30s. !d. at 88. 1'1r. Phillips explained that he confiscated the pills
because the Schuylkill County Prison prohibited contraband, Id. at 89.. 90. At this time,
the Appellant objected as to relevance, and this Court overruled the App�llant'R
objection. Lastly, Mr. Phillips explained th�t the Schuylkill County Drug Task Force
might pursue an investigation as to "bow and why she possessed those pills." Id. at .90.
The Appellant objected as to Mr. Phillip's reference to uncharged conduct> and this Court
overruled the Appellant's objection based upon a prior. evidentiary ruling allowing
admission of evidence regarding the Appellant's drug abuse and addiction, !g. at 91.
This Court allowed Mr. Phillips to continue his testimony, wherein he stated: "during her
protest of me seizing her pills she had questioned me if I knew how bad she was going to
withdrawal from the pills and she basically stated that she was addicted to the pills, that
she was taking upward of six pills a day and that when she goes to the prison she will not
have access to those pllls." Isl, at 92. On cross-examinetion.fbe Appellant further .
elicited testimony from Mr, Phillips regarding the uncharged conduct. In response to the
Appellant's questions, Mr, Phillips stated: "under the law you have to have a prescription
bottle with a specific markings such as the dosege, the item that's in the bottle, and the
name of the patient, name of the doctor and the dates and so forth and she bad nothiag, It
was only a-pills were in a plastic bag [ ... ] the defendant stated that she could produce
a prescription; a written prescription from a doctor." Id. at 93�94, Mr. Phillips testified.
that the Appellant named "Ray Kraynak," as the prescriber. lg. at 94. Mr. Phillips
72
concluded that at the time of his testimony, the Appellant did not have any criminal
charges pending in connection. with her possession of the loose pills. !.!!, ·
First, evidence of the Appellant's drug abuse and addiction is admlssible to show·
motive to commit criminal acts and support her addiction. Second, evidence of the
Appellant's drug addiction explains the history of the case, including the events
surrounding her criminal conduct for which the Appellant is charged. The probative
value of Mr, Phillips' testimony outweighed. the preiudicial effect in tha� the Appellant's
addiction explains the deficient quantities of narcotics ordered. from the Moore catalog
that she supplied to herself and her patients as well as her excessive prescribing practices.
SceJ:;o,nmonweglth v . .J',.follg_y, 856 A.ld 767 (Pa. 2004); Conunonwef\lth v. Wruker,
656 A.2d 90� 98 (Pa, 1995)(finding that evidence is relevant to establish a course of
conduct of drug-related activity and thehistory of the case); Co:mmonwea.lth y.
;pattako.ci, 754 A.2d 679 (Pa. Super. ZOOO)(holding that evidence of prior uncharged
drug transactions admissible as to the existence of the relationship between the defendant
and the informant critical to the jury's understanding of why the police targeted the
defendant). · Evidence of the Appellant's uncharged conduct is critical. to the jury's
understanding of the Appellant's drug addiction, and the means the Appellant utilized to
continue and conceal her addiction.
G. Whether the trial court erred in admlttuig prior bad act evidence pursuant to
Pa. R. E. 404(b), where it alleged that that trial court allowed te�timony
regarding the prescription statistics of the Appellant and Dr. Kraynick, who was
not charged as n co-consptratorf'"
The Appellant failed to timely object to Scott Rishel s testimony regarding the
I
prescription statistics of the Appellant and Dr. Kryanick, Therefore, the Appellant's
3s Listed as issue 6 in the Appellant's Concise Statement of Brrors,
73
• ••• • • • •• • .... k ••••••• challengeis waived ... See Pa. R ... .A. P... 30Z(a); :Common.wealth v . .May, 887 A.2d 750,
758 (Pa. 2005); Qgn;unonwealtb v. ;Brown, 359 A.2d 393 (P�. 197G)(holding that the
lack of a timely objection. waived issue for appellate review). The Appellant iii not
entitled to relief. Scott Rishel testified at length involving prescription statistics in the
Ashland area, and the Appellant did not object. (N.'f. September 29, 2015 p. 134�138).
For example, the Commonwealth questioned. Mr, Rishel: "And was there another doctor
or doctors in the· area that were also writing prescriptions?" Mr -.Rishel responded: .. we
do have another doctor that does write for a lot of C2's that even now just about every
other month we get a call from management saying, we're on the high usage report. But
usually it is due to this other doctor too that we just see a lot. n The Commonwealth
further questioned: "Aud who would that be?" Mr, Rishel stated: "Dr. Raymond
Kraynak," Id. at 135. The Appellant did not object, Later on cress-examination, in
response to whether .Mr. Rishel still received high usage calls despite Dr. Tarapchak's
DEA suspension, Mr, Rishel responded in the affirmarive, Id. at 160. Subsequently, on ·
re-direct, the Commonwealth questioned whether Dr. Kraynak remained the reason for
high dosage calls, Mr. Rishel stated: "I feel it is why we're still high. T mean, with him;
just the prescriptions that we see from his office [ .• , J he had office hours in the same
office there as what [Dr. Tarapchak] had, yes." lg. at 162. The Commonwealth then
asked: "So they shared tb.� same office?'.' In response, the Appellant objected as to
relevance. Thls Court overruled the. Appellant's relevancy objection. since the Appe1la11t
failed to object on direct, and. then challenged the issue on cross-examination. J_g. at 163.
The above excerpt shows relevancy as the basis for the.Appellant's objection, The
Appellant' s counsel did not object as inadmissible prior bad acts, instead on appeal the
74
Appellant attempts to recast the basis of the objection by arguing that this Court erred in
permitting prior bad act evidence. The Appellant did not make a timely and specific
objection, and therefore did not properly preserve the issue of whether this Court
improperly admitted prescription statistics erroneously suggesting illegal conduct with
Dr. Kraynak. See Pa. R. E. 103(a); �ommonwealth v. Cousar, 928 A.2d 1025, 1041
(Pa.• 2007)(citin.g that the rule is well settled that a party complaining, on appeal, of the
admission of evidence in the [c[curt below will be confined to the specific objection there
made); Commonwealth "f, .McGill, 160 A.3d 863 (Pn. Super. 2017)(ftndill.g that
appellant waived appellate review, although he lodged an anticipatory objection prior to
the Commonwealth's calling of witnesses in connection with his motion in lunine,
counsel failed to make a timely and specific objection to their testimony at. the time that it
was actually proffered); ConunO!!lfei!.lth ,-. Tuclfer, 143 A.2:ld 955 (Pa. Super. 2016);
Commonwealth,,. Houck, 102 A.3d 443 (Pa� Super. 2014); 9,Jnmonw;ealth v. Rose,
172 A.3d 1121 (Pa. Super. 2017)(th� defendant did not preserve for appeal a claim that a
burglary victim's testimony regarding incidents of intimidarion was irrelevant and
prejudicial where the defendant's objection at trial lacked specificity and merely asserted
that the victim's statements were. inadmissible hearsay).
Nevertheless, evidence of the Appellant's prescription statistics in conjunction
with Dr. Kraynak's prescription statistics established knowledge that the Appellant
excessively prescribed. narcotics to her patients. Moreover, the Appellant's prescription
statistics established her state of mind, particularly her lack of good faith mprescribing
narcotics. Mr. Rishell's testimony regarding the Appellant's prescription statistics
formed part of the natural development of the facts. Lastly, where Criminal Conspiracy
75
I
is charged, testimony regarding conspiracy-related activities is admissible. See
.Qomroonwea]tb v� Williams, 936 A,2d 12 (Pa. 2007)(holding that evidence of the same
type of non-charged conduct was admissible to show the :full extent and scope of the
conspiracy). The probative value of the prescription statistics testimony outweighed its
prejudicial effect as the Commonwealth introduced Scott Rishel's testimony to show
knowledge and state of mind as well as the full extent and scope of the Appellant's
charged conspiracy.
,J.1IRY INSTRU:�TIONS
A. Whether the trla! court violated the Appellant's Due Process rlghts, where it is
alleged that .the trial court fa.ile598 A.2d 975 (Pn.1991).
The charge is not required in all criminal cases, however once a defendant has expressed
I
.,
I
a clear intent to either include or exclude the charge that the defendant's intent must be
carried out. Commonweali:h v. Thompson, 674 A ..2d 217, 220-221 (Pa, 1996).
Pennsylvania law has made clear that a. defendant's request for the charge requires the
charge. See ,Commonwealth v, Stanley, 830 A.2d l.021, 1024 (Pa. Super. 2003)(the
.Court also held that while the "no adverse inference" instruction is not required in all
criminal cases> when requested the charge must be given). Io. the instant case, trial
counsel did not expressly request the "no adverse inference" instruction nor did counsel
assert a contemporaneous objection to the omission, Pa. R. Crim. :P.. 647 provides, in
relevant part, that "[n]» portions of the charge nor omissions from the charge may be
39 Listed as issue 4 in the A:ppella.'1.t's Concise Statement of Brrors.
76
assigned as error, unless specific objections are made thereto before the jury retires to
deliberate!' Pa. R. Crim. P, 647(c). Furthermore, a defendant will waive a subsequent
challenge if the response is in the negative when the court asks whether additions or
corrections to a jury charge are necessary, See C9rnmonwea'Jth v, Marguez, 980 A.2d
145, 150 (Pa. Super. 2009), appeal denied 987 A.3d 160 (Pa. 2009)(defendant failed to
object at the conclusion of jury charge and state that he had no objections or exceptions to
it, claim waived under the requirements of Pa. R. Crim. P. 647(c)), citing
,Cgnnnonwealth y. ]!re�sJc� 887 A.2d 220, 224 (Pa, 2005}; Commonwealth v, Mouty,
992 A.2d 162) 118 (ra. Super. 2010)(holding that a specific and timely objection must
be made to preserve a challenge spccif.i.oally where trial counsel did not respond when. the
trial court asked counsel if there were any questions regarding the charges and after
instructing the jury later asked if counsel had anything further); c;ommonwealth:Y·�
McCLosJce,£, 835 A,2d 801, 811 (Pa. Super. Z003)(fiu.ding claims concerning jury ·
'
instructions waived because Mccloskey "did not object to the instructions at the time i
they were made and, further, did not mention the alleged errors at the close of the jury
charge when the court specifically asked both parties if they were satisfied"). The proper
procedure in nl!'!kin.g the objections is for counsel, at the completion of the charge and
I
before the jury is removed from the court room, to request to approach the bench, and at
side.. bar, but on the record, specifically state what is objectionable about the ·cbarge. See
Commonwealth v. Sruighe.z, 82 A.3d 943, 978 (.Po.. 2013)(holding that even where trial
court denies request for specific charge at charging conference, party must make a
specific objections to its omissions when charge is given to preserve the issue for appeal).
In the present case) at the completion of the charge> this Court held discussion at sidebar
77
between b:ial counsel, Attorney Brown, and the Commonwealth, Attorney Labar. The
following exchange occurred:
THE COURT: That was toy final charge, any additions I
I
or corrections gentlemen?
Mt. BROWN: No. f-
Mr. LABAR: The only addition I would have, your Honor,
is the charge regarding the stipulations, there
were many stipulanons on it.
THE COURT: I will put those ou the. record. Thank you
· for reminding me.
(N.1'. October S, 2015 p, 114-115).
Attorney Brown responded in the negative when asked if'he had anything to add
to tho jury instructions, and did not expressly request any corrections. Pursuant to
Pennsylvania. law, the Appellant did not specifically request a no adverse inference
instruction at all. Further, at the time this C01Jrt issued the charge, the Appellant did not
make a specific objection to its omission in order to preserve the isS;'U6 for appeal. Supra)
Sauchez. Thus, the Appellant's claim is waived, See Com.mouwenlth v. �ewis, 598
A.2d 975, 982 (Pa. Super.1991)(reasonio.g that as long as the defendant or his attorney
ruakcs a timely request for such a charge, this is sufficient to preserve the Issue for
appeal).
In the alternative, while this Court did not provide the "no adverse Inference"
instruction, it did instruct the Jury during initial and closing instructions as follows:
At t:hp close of the Commonwealth's ease, the attorney for
the defendant may present evidence for tho defendant. But
as I told you before, the defendant bas no obligation to offer
evidence or to testify. Under our constitution and the law,
every defendant is presumed to be innocent and has the dght
78
to remain silent: The burden is always on the Commonwealth
to prove the defendant guilty beyond a reasonable doubt
(N.T. September 21, 2015 p, 7).
A Iundamental principle of our system of criminal law is that
a defendant is presumed innocent. The mere fact that she has been.
arrested and is charged with crimes is not evidence of her guilt.
Furthermore, a defendant is presumed to remain innocent throughout
the trial unless arid until you conclude based upon careful and
impartial consideration of the evidence that the Commonwealth
has proven her guilty beyond a reasonable doubt of the charges
made against her. It is not the defendant's burden to prove that she
is not guilty. Instead, it is the Commonwealth that always has the
burden. of proving each and every element of the crime charged
and that the defendant is guilty of those crimes beyond a reasonable
doubt.
A person accused of a crime is not required to present evidence or
to prove anything in. her own defense. If the evidence presented
fails to meet the Commonwealth's burden, then your verdict must
be not guilty,
(N.'f. October 5, 2015 p. 81�82).
In Commonwealth v. Howard� 645 A.2d 1300, 1307 (Pa, 1.994), the trial court
instructed the jurors during voir dire, however the trial court failed to repeat this charge during
final instructions. Relying on Commonwealth v. Lewls, supra, the Howard court held that the
"no adverse inference" charge must be given at the time the jury is fiually instructed before
deliberations, if timely requested by the defendant, Id. at 1307. Here, this Court initially
instructed tbe jurors during voir dire, and at the completion of trial that the defendant is not
required t.o offer evidence o.r testify.
Additionally, while the Appellant did not testify, the Commonwealth presented
overwhelming evidence against the Appellant. The Commonwealth presented approximately
twenty-one ( 21) eyewitnesses, and several expert witnesses as well as hundreds of
79
11
.. demonstrative exhibits. Given the nature . of the evidence presented at the Appellant's trial, the
traditional concerns which prompt a request for, or a specific request to omit, the "no adverse
inference" instruction are not present in this case. In contrast to the instant case, the situations
which prompt counsel to consider requesting or omitting a "110 adverse inference" instruction
arise when the testimony of the defendant is vital to the nature of the defense asserted. The
defense at trial focused upon the legality of the Appellant's actions, and whether criminal
offenses had actually been committed citing lack of evidence.' Therefor�, the lack of n "no
adverse instruction," would have no bearing on. the Appellant's defense.
Finally, tho Appellant is unable to assert that the verdict might have been differout or the
error contributed adversely had the instruction been given. Appellant received an acquittal 011
i
four (4) offenses: Criminal Conspiracy· Theft by Deception; Recklessly Endangering Another i
Person; Acquisition by Miarepresentation Fraud; and Prohibited A.c,1:S, Outside Scope of Practice. I
'
It is obvious that this Court's instructions cautioning the jury that the defendant had no
obligation ta testify or present evidence in her own. defense, clearly defined the issues for the
jury. The Appellant's acquittal on four (4) offenses is inconsistent with the notion that the
Appellant's failure to testify instilled within the jury a fixed bias against the Appellant that
rendered it incapable of basing its verdict on a fair assessment ofthe evidence. The acquittal was
I
favorable, and reflects that the jury did not draw an adverse inference against the. Appell ant for
failure to testify.
B. Whether rhe trial court deprived the Appellant of a fa.tr trial, where it is alleged
that the trinl court failed to Iasnuct the jury on the Iimlted purpose(s) for
which Rule 404(b) evidence might be consi and asked counsel if there were "any additions or
corrections'?" Id, The Appellant's trial counsel responded: "No." lg. The Pennsylvania
Superior Court has held that "[a] specific and timely objection must be made.to preserve
a challenge to a particular jury instruction. Failure to do so results in wavier.
Ct>mmonwealth v. Mom, 992 A.2d 162, 178 (Pa. Super. 2010)(''Generally, a
defendant waives subsequent challenges to the propriety of the jury charge on appeal if
he responds in the negative when the court asks whether additions or corrections to a jury
charge are necessary"); Qommont1•ealth v. McCloskev, 835 A.2d 801, 812 (Pa. Super.
2003) (finding claims conceming jury instructions waived because M:)Closk.ey "did not
object to the instructions at the time they were made and, further, did not mention the
alleged errors at the close of the Jury charge when the court specifically asked both
parties if they were satisfied"); CoJnmonw�alth v� Sane he� 82 A.3d 943, 978 (Pa.
2013)(holdin.g that even where trial court denies request for specific charge at charging
conference, party must make a specific objections to its omissions when charge is given
to preserve the issue for appeal). Importantly, the "failure to request a cautionary
instruction upon the introduction of evidence constitutes a waiver of a claim of trial court
error in failing to 'issue a cautionary.instruction," Commonwealth ·v. B.ry�mt, 855 A.2d
726, 739 (Pa. 2004); Commonwealth,,. ·wallacc, 561 A.2d 719 (Pa. 1989)(trial.
counsel's failure to object when trial court did not issue cautionary instruction following
introduction of evidence of defendant's prior incarceration resulted in waiver of any claim
of error based upon trial court's failure to give cautionary instruction). Therefore, the
Appellant's claim is waived. See also Commonwealth v. Tedford, 960 A.2d 1 (Pa.
81
Super. 2008)(when other crimes evidence is admitted, the defendant is entitled upon
request to a jury instruction explaining to the jury that the specific evidence is only
admissible for limited purposes). Here, the Appellant's counsel did not request a
cautionary instruction either at the introduction of evidence, during the jury charge, or at
the close of the jury charge,
.CONCLUSION
In summary, this Court has carefully reviewed the entire record and finds no harmful,
prejudicial, or reversible error and nothing to justify granting the Appellant's requests for relief
For the reasons set forth above, the judgment of this Court should be affirmed,
I
I
I
I
II
I
!
I
i
I
I
82
!,-
BY THE COURT: i
!
!!
.,
.I
!
!