Com. v. Chowdhury, R. ( 2018 )

J-S16004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMEEZA S. CHOWDHURY :
:
Appellant : No. 577 MDA 2017
:
Appeal from the Judgment of Sentence March 16, 2017
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001172-2014
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 15, 2018
Rameeza S. Chowdhury appeals from the judgment of sentence of six
to eighteen years imprisonment imposed following her non-jury trial
convictions for three counts of unlawful administration of a controlled
substance by a practitioner, two counts of racketeering, and one count each
of conspiracy, perjury, insurance fraud, and hindering prosecution. We vacate
the insurance fraud conviction, affirm the remaining convictions, and remand
for resentencing.
The instant crimes arose from an investigation by the Office of the
Attorney General into Berks Psychiatry (“BP”), a medical office headed by
Doctor Mohammed Khan. The Commonwealth received information that
patients could walk in to BP and receive prescriptions for certain controlled
substances with little if any medical examination. A search warrant was
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* Retired Senior Judge assigned to the Superior Court.
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executed on October 16, 2012, resulting in the seizure of numerous records
and approximately seven million dollars in cash. The lead investigator,
Michael Golebiewski, determined that Dr. Khan unlawfully prescribed
approximately 145,000 pills from January 1, 2012, through October 16, 2012.
Appellant, BP’s office manager, was charged as an accomplice to Dr.
Khan with respect to prescribing three controlled substances (Xanax, Adderall,
and Ritalin). In addition, the Commonwealth filed several charges particular
to Appellant as a principal, which encompassed fraudulent billing,
racketeering, perjury, and hindering prosecution. Briefly stated, the theory
for the fraud charges concerned Appellant’s involvement with falsifying
documentation. The testimony indicated that patients who received Medicare
would be seen for ten or fifteen minutes by the therapists, but the billing
sheets would state the patients were seen for forty-five minutes. Additionally,
Medicare would be billed for separate visits on different dates, i.e., one day
with the therapist and one day with Dr. Khan, when, in reality, the patients
saw both persons on the same day. Several BP witnesses testified that
Appellant ordered the alterations.1
The final two charges, perjury and hindering prosecution, concerned a
grand jury investigation initiated following execution of the search warrant.
Appellant and several other BP employees were subpoenaed to testify. One
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1 The Commonwealth charged Appellant with insurance fraud for these
actions, and concedes that the conviction for this crime must be vacated as
Medicare does not qualify as an “insurer” for purposes of the charged statute.
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employee, Gina Talarico, agreed to record conversations with Appellant. The
Commonwealth introduced transcriptions of two conversations, which
occurred on October 30, 2013, and October 31, 2013, as well as emails that
Appellant sent after the recorded conversations, directing Ms. Talarico to give
certain answers. Appellant testified at the grand jury proceeding that she did
not speak to other employees regarding what they should say at the hearing.
Appellant was convicted of all charges, and the trial court thereafter
imposed the aforementioned sentence. Appellant’s post-sentence motion was
denied, and a timely notice of appeal followed.2 Appellant raises seven
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2 The Commonwealth writes:
[Appellant]’s brief indicates that she has appealed from the trial
court’s Order dated March 16, 2017 imposing sentence. Because
she filed a March 27, 2017 post-sentence motion for relief, her
appeal must be from the trial court’s final order denying that
motion on March 28, 2017. See, e.g., Commonwealth v. Rojas,
874 A.2d 638, 642 (Pa.Super. 2005). An appeal from an
interlocutory, non-final order such as the trial court’s March 16,
2017 sentencing order must be quashed on jurisdictional grounds.
Id. The Commonwealth is willing to give [Appellant] the benefit
of the doubt that her erroneous statement regarding the order
appealed from constitutes an inadvertent misstatement that
should not be viewed as depriving this Court of jurisdiction.
Commonwealth’s brief at 3 n.2. Rojas discusses this Court’s jurisdictional
ability to address an appeal while a post-sentence motion remains pending
before the trial court. That issue is not involved herein, since Appellant did
not file her notice of appeal until after the trial court denied her post-sentence
motion. Thus, Appellant properly appealed from the judgment of sentence
imposed in open court on March 16, 2017, as made final by the denial of post-
sentence motions. See Commonwealth v. Chamberlain, 658 A.2d 395,
397 (Pa.Super. 1995) (“[An] order denying post-sentence motions acts to
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separate claims on appeal, which, for brevity’s sake we shall not reproduce,
as the questions quote large portions of the statutory language for each crime
and would encompass several pages of text. Each of Appellant’s claims
challenges the sufficiency of the evidence supporting the verdicts for the six
discrete crimes at issue.3 Our standard of review is well-settled, and we apply
the following principles.
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a
reasonable doubt. [T]he facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. It is within the province of the fact-finder to determine
the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. The Commonwealth may
sustain its burden of proving every element of the crime by means
of wholly circumstantial evidence. Moreover, as an appellate
court, we may not re-weigh the evidence and substitute our
judgment for that of the fact-finder.
Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017)
(citations and quotation marks omitted).
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finalize the judgment of sentence for purposes of appeal. Thus, the appeal is
taken from the judgment of sentence, not the order denying post-sentence
motions.”).
3 Racketeering (counts one and two), unlawful distribution of controlled
substances (three, four, and five), criminal conspiracy (six), perjury (seven),
insurance fraud (eight), and hindering apprehension (nine).
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The distribution of controlled substances crimes charged at counts
three, four, and five lie at the heart of this case, and we therefore commence
our review by discussing those convictions. The statutory language reads:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
....
(14) The administration, dispensing, delivery, gift or
prescription of any controlled substance by any
practitioner or professional assistant under the
practitioner’s direction and supervision unless done (i)
in good faith in the course of his professional practice;
(ii) within the scope of the patient relationship; (iii) in
accordance with treatment principles accepted by a
responsible segment of the medical profession.
35 P.S. § 780-113(a)(14).
Appellant does not dispute that Dr. Khan committed the aforementioned
crimes.4 The question is whether Appellant was connected to Dr. Khan’s illicit
activity to a degree that she is also criminally culpable. Appellant was
doubtlessly involved insofar as she directed and managed the office, but the
parties question the inferences that may reasonably be drawn from her actions
in that capacity.
The trial court found Appellant guilty based on accomplice liability. The
Crimes Code defines that type of liability as follows:
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4Dr. Khan pleaded guilty at CP-06-CR-000706-2012 to one count of unlawful
administration of controlled substances in violation of 35 P.S. § 780-
113(a)(14), insurance fraud, and conspiracy.
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(c) Accomplice defined.--A person is an accomplice of another
person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it;
or
(ii) aids or agrees or attempts to aid such
other person in planning or committing
it[.]
18 Pa.C.S. § 306(c)(1). Our Supreme Court has explained that accomplice
liability requires satisfaction of two prongs:
First, there must be evidence that the defendant intended to aid
or promote the underlying offense. Second, there must be
evidence that the defendant actively participated in the crime by
soliciting, aiding, or agreeing to aid the principal. While these two
requirements may be established by circumstantial evidence, a
defendant cannot be an accomplice simply based on evidence that
he knew about the crime or was present at the crime scene. There
must be some additional evidence that the defendant intended to
aid in the commission of the underlying crime, and then did or
attempted to do so. With regard to the amount of aid, it need not
be substantial so long as it was offered to the principal to assist
him in committing or attempting to commit the crime.
Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004) (citations
omitted).
Appellant maintains that she was not Dr. Khan’s accomplice because she
was merely the manager of the practice who did little more than run a tight
ship, and she analogizes her participation to mere presence and knowledge.
“The most damning inference that can be drawn from these facts is that
[Appellant] was on a mission to run an efficient medical practice, as was her
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duty as the Officer Manager[.]” Appellant’s brief at 25. Appellant identifies a
number of facts that she contends undercut the inference that she intended
to aid Dr. Khan in the commission of these offenses, namely that Dr. Khan’s
illegal practices predated her employment at BP. Additionally, she highlights
that there was no apparent motive, as reflected by the absence of evidence
tying her to the profits generated by the increased business.5
We find that the Commonwealth presented sufficient evidence to affirm
the trial court’s conclusion that Appellant acted as an accomplice, and we
reject Appellant’s fundamental assertion that her role in Dr. Khan’s crimes was
limited to running an efficient practice. We agree with the Commonwealth
that the evidence overwhelmingly demonstrates that Appellant structured BP’s
practice to enable Dr. Khan’s criminal behavior. The Commonwealth called
several witnesses who described Appellant’s role in not only increasing the
number of illegitimate prescriptions, but actively preventing legitimate
medical treatments.
Cynthia Cruz, a therapist employed by BP, testified how medical
treatment should occur in “a perfect world.” The first time a patient visited
the practice, a therapist would see the patient for an initial discussion and
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5 The Commonwealth conceded the lack of evidence of a motive during its
closing argument. “She ran [BP] with an iron fist. Why, when she wasn’t
making any money? I don’t know that answer. I don’t have to prove motive.
I can’t know why someone chooses to do what they do.” N.T., 3/8/17, at 229.
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psychiatric evaluation. The patient would then be put on an appointment
calendar for regular visits. At the second visit, the patient would see the
doctor, who would perform an initial evaluation. Finally, on the third visit, the
doctor would determine if medication was warranted, with further follow-up
as needed. N.T., 3/8/17, at 35. The doctor would not meet the patient on
the same day as a therapy session, but would review the therapist’s notes and
speak to the therapist if necessary before prescribing any medication. As we
shall detail, BP’s operations fell well short of those ideals.
We do not, of course, suggest that any deviation from that scenario
warrants a finding of criminality. However, BP’s operation, as described by
Ms. Cruz and others, was so dysfunctional and divorced from good faith
medical practice that the label “pill mill” is well-deserved. Ms. Cruz stated
that patients were seen for as little as ten minutes, and that the “overall
essence of [BP] was that, [sic] to get them in and to get them out[.]” Id. at
36. Ms. Cruz stated that Appellant put pressure on her to see more patients,
and ordered Ms. Cruz to alter medical logs “to match what the doctor wrote.”
Id. at 41. Thus, the therapy notes were written to match the prescribed
medication, “rather than the other way around.” Id.
Bolaji Owoloja, a nurse practitioner who worked at BP, stated that all
the patients she saw were on medication, which she believed to be medically
unnecessary. She voiced her concerns to Appellant, and informed her that
she intended to wean some of the patients off medication. Appellant “wasn’t
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pleased with that suggestion,” and told Ms. Owoloja that she “should not
change whatever Doctor Khan prescribes.” Id. at 79. Appellant told Ms.
Owoloja that she spent too much time with the patients, and pressured her to
see more patients so that the practice would make more money. Id. at 83.
Nan Kurlancheek, a clinical social worker, testified that she became the
licensed clinical supervisor after Dr. Khan was fined $250,000 in 2009
following an audit. She was supposed to supervise all of the therapists.
Appellant, who joined BP approximately six months after her, attempted to
take over Ms. Kurlancheek’s role and hired therapists without her consultation
or input. Appellant also implemented, over Ms. Kurlancheek’s objection, a
policy that BP would see walk-in patients five days a week. That policy
increased business to the point that “[t]here were lines outside the building”
on occasion. Id. at 112.
Gina Talarico, the aforementioned therapist who recorded conversations
with Appellant, similarly stated that the office was chaotic and could not
medically accommodate the sheer number of patients. She was responsible
for seeing twenty or more patients a day, with approximately one hundred
people in the waiting room. Id. at 125.
Taken together, the evidence established that Appellant managed the
office’s day-to-day business to aid Dr. Khan’s ability to write large numbers of
medically-unnecessary prescriptions. Tellingly, patients with insurance, who
were a source of greater profits for the practice, were seen by therapists, while
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cash patients were immediately funneled to Dr. Khan. That fact alone tends
to establish that Appellant aided Dr. Khan in prioritizing the distribution of pain
medication over legitimate medical treatment. Moreover, when therapists
took too long with a patient, Appellant pressured them to move the patients
along to Dr. Khan for prescriptions. “Accomplice liability may be established
wholly by circumstantial evidence. Only the least degree of concert or
collusion in the commission of the offense is sufficient to sustain a finding of
responsibility as an accomplice. No agreement is required, only aid.”
Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa.Super. 2016)
(quotation marks and citation omitted). We find ample evidence to support
accomplice liability for these three crimes.
We now address the closely-related question of whether the
Commonwealth presented sufficient evidence that Appellant conspired with
Dr. Khan to do the above, as charged at count six. “Conspiracy requires proof
of an additional factor which accomplice liability does not—the existence of an
agreement.” Commonwealth v. McClendon, 874 A.2d 1223, 1229
(Pa.Super. 2005) (citation omitted).
We note that Dr. Khan’s unlawful prescriptions apparently predate
Appellant’s employment with his practice. However, “A conspiracy can form
after one of the actors begins committing a substantive crime[.]”
Commonwealth v. Chambers, --- A.3d ----, 2018 WL 3455394, at *7 (Pa.
July 18, 2018). The focus is on whether the parties had a common plan,
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agreement, or understanding, and we find the Commonwealth established
that Appellant and Dr. Khan formed a conspiracy.
In this regard, we incorporate the foregoing discussion with respect to
the existence of an agreement in terms of circumstantial evidence. We fully
agree with the trial court’s observation that “It beggars belief that an
individual would conduct such transparent fraud in the clinical area of the
practice, without the express approval of and in agreement with the head
doctor.” Trial Court Opinion, 6/21/17, at 8. While circumstantial evidence
alone can suffice, we note that there is some direct evidence that Dr. Khan
and Appellant were acting in concert.
Particularly, Ms. Owoloja testified that, on one occasion, she decided to
speak to Dr. Khan about her concerns that the patients were overmedicated.
Dr. Khan said he would look into it. Shortly thereafter, a memo written by Dr.
Khan was circulated stating that patients meeting certain parameters would
be weaned off medication. Ms. Owoloja started following that procedure, and
Appellant told Ms. Owoloja that her patients were complaining as they wanted
their medication. We quote Ms. Owoloja’s testimony on this point:
[Appellant said] nobody wants to see you. Everybody [is] not
happy because you[‘re] weaning them off the medication. You
are not - - - I said well, that is the agreement. I’m just following
the memo. So I said, okay. Who are the people? She’s like there
is a chart this high, no one wants. Let me see the charts. And
then she went up front. She couldn’t produce any one for anyone
that doesn’t want to see me. And I said, you know what, that’s
fine. You can reschedule those people with Doctor Khan, but I will
not give – write those medications for them.
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So she wasn’t – well, you have to see them. We are losing money.
I said, well, it is about my license. It’s not about money. Well,
she was just not happy.
Id. at 80-81. On cross-examination, Ms. Owloja was asked if Dr. Khan, who
wrote the memo, undid the policy. She replied, “Between the two of them
they undid the policy.” Id. at 93.
Additionally, Gina Talarico testified that a memo was issued at one point
explaining that any patient with a controlled substance prescription could no
longer be seen monthly and had to be seen on a more frequent basis.
Appellant created signs to display in the lobby stating that certain days were
reserved for certain prescriptions: “[Appellant] hung a sign up saying Xanies
and Benzos, I don’t know, Monday and Wednesday, whatever the day was.”
Id. at 128. This evidence combined with the circumstantial evidence sufficed
to establish a conspiracy to unlawfully prescribe controlled substances.
We now address the crimes of racketeering, charged at counts one and
two as separate violations of the corrupt organizations statute. The pertinent
language reads as follows:
(b) Prohibited activities.—
....
(3) It shall be unlawful for any person employed by or
associated with any enterprise to conduct or
participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of
racketeering activity.
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(4) It shall be unlawful for any person to conspire to
violate any of the provisions of paragraphs (1), (2) or
(3) of this subsection.
18 Pa.C.S. § 911(b).
The only elements that Appellant challenges are whether (1) her actions
constituted a “pattern of racketeering activity”, and (2) whether she was
employed by the enterprise. Her argument in support largely tracks the
foregoing arguments.
[Appellant] asserts that the evidence is insufficient to support her
convictions where it failed to establish that she had a knowledge
or intention to be involved in a corrupt organization. As argued
previously, [Appellant] asserts that the Commonwealth has failed
to prove beyond a reasonable doubt that she had any intention of
aiding Dr. Khan in unlawfully prescribing controlled substances,
only in aiding him in running an efficient medical practice.
Appellant’s brief at 32.
Appellant’s argument is little more than a repackaging of her claims
that she was neither an accomplice nor conspirator in Dr. Khan’s crimes. For
the reasons set forth at length regarding accomplice liability, we find that the
Commonwealth established a pattern of racketeering activity. The definitions
section for corrupt organizations includes “an offense indictable under . . . The
Controlled, Substance, Drug, Device and Cosmetic Act (relating the sale and
dispensing of narcotic drugs).” 18 Pa.C.S. § 911(h)(1)(ii). Thus, the three
counts of unlawful distribution of narcotics, which we have affirmed under
accomplice liability, qualify as a pattern of racketeering activity in which she
is culpable.
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In Commonwealth v. Dellisanti, 876 A.2d 366 (Pa. 2005), our
Supreme Court applied § 911 and determined that four sales of drug
paraphernalia from a retail store constituted a pattern of racketeering activity.
As to “enterprise,” the Court held as follows: “We find that it is obvious that
Dellisanti’s store was a legitimate business entity engaged in commerce.
Therefore, the ‘enterprise’ requirement of the Act is satisfied.” The same is
true herein. Appellant asserts that she was not part of the criminal aspect of
the “enterprise” but, again, that is simply an alternative way of asserting that
she was not part of the pattern of racketeering activity.
Turning to the separate crime of conspiracy under § 911, our discussion
of conspiracy under 18 Pa.C.S. § 901 similarly applies. Since Appellant
conspired with Dr. Khan to commit the controlled substance offenses, she
likewise conspired to violate the racketeering act. Hence, no relief is due.
Next, Appellant challenges the conviction for perjury at count seven.
The crime of perjury is established by evidence that “in any official proceeding
[the person] makes a false statement under oath or equivalent affirmation, or
swears or affirms the truth of a statement previously made, when the
statement is material and [the person] does not believe it to be true.” 18
Pa.C.S. § 4902(a). Falsity cannot be established by the uncorroborated
testimony of a single witness. 18 Pa.C.S. § 4902(f).
Appellant’s conviction was based upon her grand jury testimony, which
we reproduce in relevant part:
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Q. Have you suggested answers to any staff members, current or
former, for them to give to the investigators or the Grand Jury?
A. No.
Q. Meaning have you attempted to coach them in their answers?
A. No.
Q. Any staff members?
A. No.
Q. Have you and any other staff member, current or former,
compared potential answers to Grand Jury questions?
A. Grand Jury questions?
Q. Yes, potential Grand Jury questions.
A. No.
Q. Have you and any staff member, current or former, compared
potential answers to investigators’ questions?
A. No, because we didn’t really know who met with who [sic].
N.T., 3/8/17, at 720-21 (Commonwealth’s Exhibit C-6) (photocopy of grand
jury transcript).
To establish the falsity of these statements, the Commonwealth
introduced the wiretap recordings made by Ms. Talarico prior to Appellant’s
grand jury appearance. In those conversations, Appellant repeatedly
instructed Ms. Talarico to give certain answers. For example, Appellant told
her, “[Y]ou have to say that Dr. Khan told you guys to see the patients the
day before. That’s what I’m going to say. Dr. Khan told you guys to see the
patients on the same day, I mean different day.” Id. at 572 (Commonwealth’s
Exhibit C-3). Appellant added, “We’re going to talk about what you have to
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say.” Id. at 573. Appellant followed these conversations with an email sent
to Ms. Talarico, which stated “Gina – be careful – I think my thing sounds
better – say that ‘Mrs. C. [Appellant] & Connie both told us to do therapy and
med check on the same day and same superbill, bec[ause] that is what I will
say.’” Id. at 765 (Commonwealth’s Exhibit C-7) (photocopy of email).
The Commonwealth asserts that Appellant has waived her challenge to
the perjury conviction. In her concise statement, Appellant alleged that the
Commonwealth failed to produce sufficient evidence because she “did not
testify before the grand jury in a manner that was materially false and could
have affected the outcome of the proceeding[.]” Concise Statement, 4/26/17,
at 3. In her brief, however, Appellant offers a different argument. She now
argues that she interpreted the prosecutor’s question to only encompass
coaching for “nefarious purposes.” Appellant’s brief at 36. Additionally,
Appellant emphasizes that the Commonwealth’s perjury conviction rests on a
credibility determination. Appellant claims that she was, in fact, telling the
truth on the tapes when she told Ms. Talarico things like, “Don’t say [I] said
to change the date, because I did not.” N.T., 3/8/17, at 574. As set forth
supra, Ms. Talarico and other witnesses testified to the contrary. According
to Appellant, her perjury conviction rests upon the trial court’s credibility
determination. In other words, her “coaching” was not perjury since she told
Ms. Talarico to tell the truth, and the falsity of Appellant’s statements
therefore has not been corroborated.
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We agree that Appellant has waived her argument since it bears no
resemblance to her concise statement challenge. As the Commonwealth
correctly observes, a litigant must “specify the element or elements . . . with
regard to which he deems the evidence was insufficient to sustain a
conviction.” Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa.Super.
2017). Appellant thus waived her current challenge to the perjury conviction
by failing to include it in her Pa.R.A.P. 1925(b) statement.
Nevertheless, we would not give relief even if it were preserved, as we
disagree with Appellant’s position that the perjury conviction rests on the trial
court’s credibility determinations. Appellant was asked at the grand jury
proceeding, under oath, whether or not she coached witnesses or even
compared potential answers with any other employee. Her own words on tape
clearly contradict her grand jury testimony. Thus, even if Appellant is correct
that every witness lied at trial about her involvement in Dr. Khan’s crimes,
that conclusion has no bearing on the falsity of her grand jury testimony that
she did not compare answers with other employees. Those recordings are
corroboration of her perjury. See Commonwealth v. Robinson, 480 A.2d
1229, 1231 (Pa.Super. 1984) (“[The statute] does not preclude a conviction
where the only proof of falsity is documentary evidence. Thus, an
uncorroborated record of a criminal conviction is sufficient to demonstrate the
falsity of a sworn statement that the speaker has never been convicted of a
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crime.”). We would therefore reject Appellant’s challenge to the perjury
charge.
We likewise find that the Commonwealth presented sufficient evidence
to sustain the charge of hindering prosecution, which states:
(a) Offense defined.--A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction or
punishment of another for crime or violation of the terms of
probation, parole, intermediate punishment or Accelerated
Rehabilitative Disposition, he:
....
(3) conceals or destroys evidence of the crime, or
tampers with a witness, informant, document or other
source of information, regardless of its admissibility in
evidence[.]
....
(b) Grading.--The offense is a felony of the third degree if the
conduct which the actor knows has been charged or is liable to be
charged against the person aided would constitute a felony of the
first or second degree. Otherwise it is a misdemeanor of the
second degree.
18 Pa.C.S. § 5105.
Appellant argues that the conviction is invalid because “the
Commonwealth’s proof is lacking as to both the identity of the aided party and
the necessary intent.” Appellant’s brief at 48. She continues:
Clearly, Dr. Khan is named in the Information as the party
[Appellant] allegedly aided. However, at no point during the Bench
Trial testimony is the identity of the aided party established.
Although it is apparent that a grand jury investigation took place
into the inner workings of Berks Psychiatry, any number of
individuals could have been aided by [Appellant]’s alleged
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interference with Gina Talarico. At best, this omission leaves
[Appellant]’s conviction for this offense resting on mere inference.
Id. at 48-49.
We disagree. The Commonwealth’s case-in-chief in large part focused
on the relationship between Dr. Khan’s crimes and Appellant’s knowledge
thereof. Notably, this case was tried before a judge as fact-finder, thus
obviating the need for written instructions which, no doubt, would have
instructed the jury that the Commonwealth’s theory was that Appellant’s
interference with Ms. Talarico’s grand jury appearance was designed to hinder
prosecution of Dr. Khan.
In this respect, Appellant’s assertion that “any number of individuals
could have been aided” by Appellant’s interference with Ms. Talarico simply
highlights the fact that Appellant’s intent was to hinder the prosecution of
“another.” The Commonwealth was obviously investigating the entirety of
BP’s operations in order to identify any wrongdoing. We do not doubt that
Appellant intended to protect herself and the others in BP by “closing ranks”
and presenting a consistent story. However, that simply shows that
Appellant’s intent was to hinder the prosecution writ large. The fact that
Appellant was attempting to hinder the prosecution of several people, herself
and Dr. Khan included, is hardly a valid defense. As the Commonwealth notes,
Appellant told Ms. Talarico, among other things, “don’t throw me and Dr. Khan
under the bus[.]” We therefore affirm.
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Finally, we address Appellant’s conviction for insurance fraud at count
eight. The relevant text states:
(a) Offense defined.--A person commits an offense if the person
does any of the following:
....
(3) Knowingly and with the intent to defraud any
insurer or self-insured, assists, abets, solicits or
conspires with another to prepare or make any
statement that is intended to be presented to any
insurer or self-insured in connection with, or in
support of, a claim that contains any false, incomplete
or misleading information concerning any fact or thing
material to the claim, including information which
documents or supports an amount claimed in excess
of the actual loss sustained by the claimant.
18 Pa.C.S. § 4117.
The Commonwealth states that Medicare does not qualify as an insurer
under the statutory definition of that term, and concedes that the evidence is
thereby insufficient.6 We agree, and we therefore vacate the conviction.7
Since our disposition upsets the trial court’s sentencing scheme, we must
remand for resentencing.
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6 Fraud in connection with programs such as Medicare is separately
criminalized. See 62 P.S. § 1407.
7Appellant argues that the Commonwealth failed to present evidence that she
had the requisite intent to defraud. To its credit, the Commonwealth points
out an independent flaw in the conviction not identified by Appellant.
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Insurance fraud conviction discharged. Judgment of sentence vacated.
Case remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/18
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