J-A30005-16
                                  2017 PA Super 126


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ANGELA D. BIESECKER

                            Appellant                 No. 318 MDA 2016


         Appeal from the Judgment of Sentence September 18, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0003502-2013


BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.:                                 FILED APRIL 26, 2017

       Angela Biesecker appeals from the judgment of sentence of five years

probation imposed following her convictions for Medicaid fraud, theft by

deception, and receipt of stolen property. We affirm.

       Appellant’s adult son, E.B., who is deaf and autistic, qualified for

government assistance through Medicaid.1 A provision in the law, referred

to at trial as an OBRA2 waiver, permits funds that would otherwise go

towards care at an institutional facility to be paid to caregivers who provide
____________________________________________


1
  See Colonial Park Care Ctr., LLC v. Dep't of Pub. Welfare, 123 A.3d
1094 (Pa.Cmwlth. 2015) (“Medicaid provides federal financial assistance to
states choosing to reimburse needy individuals for certain medical
expenses.”)
2
  The acronym apparently refers to the federal Omnibus Budget and
Reconciliation Act.
J-A30005-16



services      at    the   client’s    residence     or   out   in    the   community.        The

Commonwealth prosecuted Appellant for receiving funds that she was not

entitled to under these programs.

      The record indicates that E.B. first applied for an OBRA waiver in June

of 2007 from the Cerebral Palsy Association of Chester County (hereinafter

“CPA”), a Medicaid support agency.                  Kimberly Sharpe, the supervisor of

adult and community services at the CPA, testified that the chosen support

agency coordinated caregiving services.                  Appellant, E.B., and Ms. Sharpe

jointly prepared an individual service plan (“ISP”), which set forth specific

goals tailored to E.B.’s needs. The major goal was community integration,

which is designed to develop the client’s skills “in order to live more

independently in the community.” N.T., 7/7-10/15, at 311. “[W]hat you’re

trying to do is improve quality of life, enable [participants] to go back out

into the community and be able to adequately communicate and assimilate

without being trapped [in a facility].” Id. at 464. Activities that qualified as

community          integration       are   correspondingly     quite       broad.     Examples

mentioned at trial included learning how to purchase ingredients and

prepare a meal, balancing a checkbook, learning hygiene, using public

transportation,       ordering        food,   and   enjoying        recreational    and   leisure

activities.        Integration remained the primary goal for subsequent ISPs

prepared for June 1, 2008 through June 30, 2009, and July 1, 2009 to June




                                               -2-
J-A30005-16



30, 2010. Appellant was present for meetings regarding the ISPs. Id. at

318-19.

       ISPs were submitted to the Commonwealth’s Department of Public

Welfare for funding authorization.             Id. at 461-62.      Once approved, the

support agency was permitted to bill the Commonwealth for the specified

amounts each month.          Id. at 523.        The support agency did not actually

provide the caregiving services, however. The participant chose from a list

of approved agencies to provide the services listed in the ISP. Id. at 314.

E.B.’s ISP specified that he was to receive services from two agencies:

Caring Companions and The Arc of Chester County (“the Arc”).                     These

agencies then billed the support agency as authorized by the ISP.

       The dispute in this case focused on the time period spanning July 1,

2009 to June 30, 2010, as the Commonwealth eventually learned that

Caring Companions, which employed Appellant, and the Arc, which did not

employ Appellant, billed CPA for services performed at the same times.

       Caring    Companions        employed       Appellant   as    E.B.’s   caregiver.3

Appellant, like all employees who provided caregiving services, received an

hourly salary. When hired, employees were instructed to list the start time
____________________________________________


3
  The record does not clearly indicate when Appellant was first employed by
Caring Companions; however, her employment began prior to the charged
events. Presumably, Appellant was hired in 2008 following the approval of
the June 1, 2008 ISP.




                                           -3-
J-A30005-16



and end time for the periods services were rendered, as that was the basis

for billing. Id. at 114. Marisol Alvarez, the director of operations for Caring

Companions, testified that all new employees received training, which

included how to fill out timesheets. Id. at 113-14. Another employee, Sheri

Willman, testified that employees were instructed to list the actual hours

that services were provided. Thus, if a caregiver actually provided services

from 9:00 a.m. to 12:00 p.m., the employee was not permitted to list 6:00

p.m. to 9:00 p.m.   Id. at 168. Appellant’s timesheets generally listed large

blocks of time that lacked detail and progress notes. Ms. Alvarez stated that

the company relied “on the honor system . . . since [she] was the mother of

the client.” Id. at 111.

      The Arc also provided services to E.B., commencing on or about July 1,

2009. Employees testified to the services they provided and authenticated

timesheets detailing their care and progress notes from July of 2009 through

July of 2010. Id. at 193-214; 238-48. These sessions were largely one-on-

one and Appellant was not providing services at those times.

      In December of 2009, Ms. Sharpe reviewed timesheets from both

agencies and realized that CPA was being double billed.      Id. at 330. She

sent letters to both agencies requesting confirmation that services were

provided.   Id. at 331-32.   Ms. Sharpe also contacted the Department of

Welfare. Id. at 335. In April of 2010, the number of authorized hours was

reduced due to the double billing.       Id. at 334.    The Arc, which was

                                     -4-
J-A30005-16



previously authorized to provide services for thirty hours a week, was

reduced to fifteen hours. Caring Companions, which was authorized to bill

for forty hours a week, was reduced to twenty-five hours. Id. at 334, 1383

(Commonwealth’s Exhibit 43).

      Agent Luis Gomez from the Medicaid Fraud Control unit testified at

trial and explained that he compared timesheets submitted by Appellant to

Caring Companions against timesheets submitted by the Arc for the time

period spanning July 1, 2009 to June 30, 2010. Id. at 530. For these dates,

Caring Companions billed 1,843 total hours, 608.25 of which overlapped

with hours billed by the Arc. Agent Gomez calculated that the Department

of Public Welfare paid out $10,926.80 for the 608.25 hours of overlap. The

charges herein pertained only to the overlapping hours.

      The Commonwealth also introduced evidence regarding developments

in E.B.’s care following the period of double billing.   Sometime during the

summer of 2010, Appellant contacted Cathy Stein, the owner of Provider of

Co-Op Services, regarding care for E.B.       Id. at 435.    Ms. Stein hired

Appellant’s daughter to provide services to E.B. These services commenced

July 1, 2010 and ended in September of 2011.         Id. at 429, 454.   The

daughter submitted timesheets for these time periods claiming that she

provided services to E.B. from 12:00 p.m. to 8:00 p.m. Id. However, she

was employed as a medical assistant for a doctor’s office during this same

timeframe, and the manager for that office confirmed that the daughter

                                    -5-
J-A30005-16



worked 8:30 a.m. to 5:00 p.m. during the week from September of 2010 to

May of 2011. Id. at 422-23. Thus, these services were not provided, at a

minimum, during the hours of 12:00 p.m. to 5:00 p.m. The daughter was

paid almost $28,000 for these services, approximately $23,000 of which was

transferred to Appellant’s bank account from August 25, 2010, through June

15, 2011. Id. at 526-28.

      Appellant testified in her defense. She stated that CPA refused to pay

for communication support for E.B. and referred Appellant to Caring

Companions, since that agency would hire family members as caregivers.

Id. at 610-11. She stated that, with respect to training, Caring Companions

simply told her that she was E.B.’s mother and knew what to do.              Id. at

613. She agreed that she submitted timesheets that did not specifically list

which community integration tasks she performed with E.B. However, she

explained that Caring Companions neither trained nor required her to do so,

and said it was not feasible for her to list all the activities in detail due to her

dual role of mother and caregiver. She agreed that the Commonwealth was

double billed but reiterated that she did not have a specific schedule and

said she was instructed to spread the allocated hours over the course of the

week. Id. at 654.

      The jury returned guilty verdicts at all three counts. Appellant timely

appealed and presents the following issues for our review.




                                       -6-
J-A30005-16



      I.     Was the evidence insufficient to prove beyond a reasonable
             doubt that the Defendant committed Medical Assistance
             Fraud, Theft By Deception and Receiving Stolen Property?

      II.    Did the Trial Court abuse its discretion in denying the
             Defense’s Motion in Limine to exclude evidence of alleged
             medical assistance fraud purported by the Defendant’s
             daughter subsequent to Defendant’s alleged fraudulent
             activity?

      III.   Did the Court abuse its discretion in denying the Defendant’s
             motion for a mistrial after the Attorney General questioned
             the Defendant regarding increased security required at a
             government office due to the Defendant’s alleged behavior?

      IV.    Were the verdicts against the weight of the evidence?

Appellant’s brief at 4.

      Appellant’s first issue challenges the sufficiency of the evidence for all

three convictions.    Whether the evidence was sufficient to support the

conviction presents a matter of law; our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Walls, 144 A.3d 926,

931 (Pa.Super. 2016) (citation omitted). In conducting our inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      Appellant’s brief states that the elements challenged at each conviction

largely overlap. “As [Appellant] is contesting the Commonwealth presenting

evidence sufficient to prove elements similarly required by all three statutes,


                                      -7-
J-A30005-16



the analysis will be consolidated.” Appellant’s brief at 32. Before turning to

the individual statutes, we review Appellant’s argument.

      Appellant’s overarching claim is that the Commonwealth failed to

establish the requisite intent.    She concedes that her timesheets were

inaccurate and that she billed for services that she did not actually provide

during those times. “The Commonwealth proved beyond a reasonable doubt

that her timesheets were an inaccurate accounting of when she worked.”

Appellant’s brief at 35. Appellant contends, however, that she actually did

perform those services; she simply performed them at times other than

those reflected on the timesheets submitted to Caring Companions. Hence,

since she provided integration services to E.B. at other times, she was

lawfully entitled to the compensation.

      Having established Appellant’s argument, we now examine the

elements of the crimes.     We begin with the Medicaid fraud crime, which

states:

      (a) It shall be unlawful for any person to:

            (1) Knowingly or intentionally present for allowance
            or payment any false or fraudulent claim or cost
            report for furnishing services or merchandise under
            medical assistance, or to knowingly present for
            allowance or payment any claim or cost report for
            medically unnecessary services or merchandise
            under medical assistance, or to knowingly submit
            false information, for the purpose of obtaining
            greater compensation than that to which he is legally
            entitled for furnishing services or merchandise under
            medical assistance, or to knowingly submit false

                                     -8-
J-A30005-16



           information    for   the    purpose    of  obtaining
           authorization for furnishing services or merchandise
           under medical assistance.

62 P.S. § 1407(a)(1).    Hence, the applicable mens rea is “knowingly or

intentionally.” (emphasis added). There is a significant difference between

these two mental states, and the Commonwealth need not show both.

Compare Commonwealth v. Scolieri, 813 A.2d 672 (Pa. 2002) (analyzing

criminal statute that required proof of knowing and intentional conduct).

The Crimes Code defines the two as follows:

     (b) Kinds of culpability defined.—

           (1) A person acts intentionally with respect to a
           material element of an offense when:

                 (i) if the element involves the nature of
                 his conduct or a result thereof, it is his
                 conscious object to engage in conduct of
                 that nature or to cause such a result;
                 and

                 (ii) if the element involves the attendant
                 circumstances, he is aware of the
                 existence of such circumstances or he
                 believes or hopes that they exist.

           (2) A person acts knowingly with respect to a
           material element of an offense when:

                 (i) if the element involves the nature of
                 his     conduct    or    the    attendant
                 circumstances, he is aware that his
                 conduct is of that nature or that such
                 circumstances exist; and

                 (ii) if the element involves a result of his
                 conduct, he is aware that it is practically

                                    -9-
J-A30005-16



                  certain that his conduct will cause such a
                  result.

18 Pa.C.S. § 302. Appellant does not specify whether (2)(i), (2)(ii), or both

apply. For the following reasons, we find that both are met since Appellant

knowingly submitted the timesheets (the conduct) and knew payment would

occur (the result).

      Appellant argues that she did not knowingly or intentionally commit

this offense because the definition of community integration services is quite

broad, and includes a number of tasks that comfortably fit under the

umbrella of skills regularly taught to children by their parents.   Thus, she

argues, since those parental tasks would clearly qualify as community

integration services if performed by a third party, she was similarly entitled

to submit claims for those services. Building on this premise, Appellant asks

us to find that she was entitled to the funds because she actually did provide

community integration services, albeit at times other than those listed on

the timesheets.       We also take heed of Appellant’s plea that minutely

accounting for each of these tasks on the timesheets would be quite difficult.

      Appellant’s arguments would be more forceful if the Commonwealth

sought to hold her criminally liable for each hour that she submitted under

these programs. However, the Commonwealth limited its prosecution to the

608.25 hours that Appellant billed for services that were actually performed

by the Arc from July 1, 2009 through June 30, 2010.             We recognize



                                    - 10 -
J-A30005-16



Appellant’s argument that, upon E.B.’s return home following Arc activities,

Appellant could have provided additional community integration tasks.

However, that does not explain why Appellant did not submit accurate

timesheets that reflected those services, and the Commonwealth presented

evidence that Appellant was trained on the proper procedures.

      Moreover, the Commonwealth presented evidence that suggested she

did not, in fact, provide those services during other time periods.

Significantly, Appellant agreed that she billed Caring Companions for

caregiving services when E.B. was on a trip with the Arc in New Jersey,

when she could not have possibly provided caregiving services.             The

Commonwealth specifically highlighted a recreational trip to Wildwood, New

Jersey. Lori Meyers, an employee of the Arc, testified that E.B. accompanied

Ms. Meyers on a weekend trip to Wildwood from July 10, 2009 to July 12,

2009. Id. at 269. Appellant was not present. The Arc timesheets billed for

the entire weekend, including the overnight stay in New Jersey. However,

Appellant also submitted timesheets for those time periods.

      Additionally, our precedents permit the consideration of common sense

in determining whether an actor has acted knowingly as specified in § 302.

In Commonwealth v. Smith, 956 A.2d 1029 (Pa.Super. 2008), we

reviewed a challenge to the sufficiency of the evidence for endangering the

welfare of a child, which required proof that the actor knowingly performed

an act that “could threaten the child’s physical or psychological welfare.” Id.

                                    - 11 -
J-A30005-16



at 1038. The infant victim exhibited signs of Shaken Baby Syndrome. The

appellant claimed that doctors did not specifically instruct him about the

dangers of shaking a baby.     We quickly disposed of that claim.    “It takes

nothing more than common sense for an adult, let alone an experienced

father such as [a]ppellant, to know that violently shaking an infant child with

enough force to cause an abusive head trauma could threaten the child's

physical and/or psychological welfare.”      Id. at 1038–39.   Similarly, it is

common sense that billing an agency for work one did not actually perform

could result in overpayment. There is little logical reason to submit over 600

hours of timesheets for work that was not performed during the hours

specified.

      Thus, we find that the Commonwealth provided sufficient evidence for

the jury to conclude that Appellant “knowingly . . . submit[ted] false

information, for the purpose of obtaining greater compensation than that to

which [s]he is legally entitled for furnishing services or merchandise under

medical assistance.” 62 P.S. § 1407(a)(1). She was not legally entitled to

be paid for services performed by other persons, and we therefore affirm the

conviction at this count.

      We likewise find the convictions for theft by deception and receipt of

stolen property were supported by sufficient evidence. The crime of theft by

deception states:




                                    - 12 -
J-A30005-16



      (a) Offense defined.--A person is guilty of theft if he
      intentionally obtains or withholds property of another by
      deception. A person deceives if he intentionally:

             (1) creates or reinforces a false impression, including
             false impressions as to law, value, intention or other
             state of mind; but deception as to a person's
             intention to perform a promise shall not be inferred
             from the fact alone that he did not subsequently
             perform the promise;
      ....

18 Pa.C.S. § 3922. Finally, the crime of receipt of stolen property reads:

      (a) Offense defined.--A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable property
      of another knowing that it has been stolen, or believing that it
      has probably been stolen, unless the property is received,
      retained, or disposed with intent to restore it to the owner.

18 Pa.C.S. § 3925.

      The property in both cases is the funds paid by the Commonwealth.

Unlike the medical care fraud crime, both of these statutes require proof of

intentional conduct. Appellant’s argument that the Commonwealth failed to

meet its burden largely repeats the points set forth above.

      We find that the convictions were supported by sufficient evidence.

The Commonwealth is permitted to establish intent through circumstantial

means. “As intent is a subjective frame of mind, it is of necessity difficult of

direct proof.   Accordingly, we recognize that ‘[i]ntent can be proven by

direct or circumstantial evidence; it may be inferred from acts or conduct or

from the attendant circumstances.’”      Commonwealth v. Matthews, 870

A.2d 924, 929 (Pa.Super. 2006) (citations omitted).


                                     - 13 -
J-A30005-16



      The following circumstances are relevant to our finding.          First,

Appellant’s submission of over 600 hours of services that she did not

actually provide suggests, as a matter of common sense as discussed supra,

that her aim was to defraud. Second, Agent Gomez testified that, during the

arraignment process Appellant stated, “When my son wakes up at 3:00 in

the morning screaming and I have to take care of him, why shouldn’t I get

paid for that?”    N.T., 7/7-10/15, at 561.        Third, the Commonwealth

presented evidence of medical assistance fraud committed by Appellant’s

daughter, and showed that approximately $23,000 of those proceeds were

transferred to Appellant after the double billing stopped. This evidence was

powerful proof of intent in that it tends to negate the argument that she

mistakenly believed she was entitled to receive the funds at issue. The jury

could properly infer Appellant was involved in this scheme given the timing,

familial relationship, and transfer of money.    The scheme established that

Appellant intentionally submitted the instant inaccurate timesheets for

fraudulent purposes.    The timesheets created a false impression which

resulted in overpayment.     We therefore find that sufficient evidence was

presented to uphold these two convictions.

      The transfer of money segues into Appellant’s second issue on appeal,

a claim that the trial court abused its discretion in denying her motion in

limine seeking exclusion of these acts.         Our review of a trial court's

evidentiary rulings applies the following standard.

                                    - 14 -
J-A30005-16



      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has 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. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016). Pa.R.E.

404 governs the admissibility of this evidence.

      Under the Pennsylvania Rules of Evidence, evidence of other bad
      acts or crimes that are not currently being prosecuted against
      the defendant are not admissible against the defendant to show
      his bad character or propensity to commit criminal acts.
      However, evidence of other [acts] may be admissible where that
      evidence is used for some other purpose. Such purposes
      explicitly   include   “proving   motive, opportunity,   intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident.” Rule 404(b)(2).

Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa.Super. 2016) (citations

omitted).   Evidence is admissible for these other purposes “only if the

probative value of the evidence outweighs its potential for unfair prejudice.”

Pa.R.E. 404(b)(2). “To be admissible under this exception, 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 the prior set of facts and circumstances.”

Commonwealth v. Cox, 115 A.3d 333, 337 (Pa.Super. 2015) (en banc).




                                     - 15 -
J-A30005-16



       Appellant challenges the logical connection between the two acts,

stating that Appellant’s link to her daughter’s fraud4 is tenuous.               We

disagree.     As explained supra, there is a clear logical and temporal

relationship between the acts and the crimes charged. Therefore, the trial

court did not abuse its discretion in admitting the evidence.

       Appellant’s third argument on appeal assails the failure of the trial

court to declare a mistrial at Appellant’s request.          This motion was made

after the Commonwealth asked Appellant, on cross-examination, whether

she knew that the CPA added security to their facility due to Appellant’s past

behavior. The judge sustained the objection but denied a mistrial request,

and Appellant did not ask for a curative instruction.

       We find no abuse of discretion.             A mistrial is not required simply

because the prosecutor makes an improper remark.

       Initially we note that the decision whether to declare a mistrial is
       within the sound discretion of the trial judge and will not be
       reversed absent a flagrant abuse of discretion. The granting of
       such a motion is not required in all situations where the
       language of the district attorney is intemperate, uncalled for or
       improper. Prosecutorial comments will constitute reversible error
       only where the unavoidable effect of such comments would be to
       prejudice the jury, forming in their minds fixed bias and hostility

____________________________________________


4
   Appellant labels the evidence as fraudulent. We note that Appellant’s
daughter was separately charged in another county for her acts. The
prosecutor informed the court that he did not join these cases for trial due to
the fact that he extended an offer of ARD to the daughter. N.T., 7/7-10/15,
at 18.



                                          - 16 -
J-A30005-16



      toward the defendant so that they could not weigh the evidence
      objectively and render a true verdict.

Commonwealth v. Cottam, 616 A.2d 988, 997 (Pa.Super. 1992). We do

not find that the comments meet this lofty standard.

      Appellant’s final issue attacks the weight of the evidence.              Our

standard of review is well-settled. We review the exercise of the trial court's

discretion in ruling on the weight claim, not the underlying question of

whether the verdict is against the weight of the evidence. Commonwealth

v. Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015) (citing Commonwealth v.

Brown, 23 A.3d 544, 558 (Pa.Super. 2011)). “One of the least assailable

reasons for granting or denying a new trial is the lower court's conviction

that the verdict was or was not against the weight of the evidence and that a

new trial should be granted in the interest of justice.” Id. at 82.

      Instantly, Appellant claims that the evidence met this high standard

because the evidence strongly suggests that Appellant provided the services

for which she was paid and is guilty of nothing more than inappropriate

record keeping. However, this argument ignores the evidence that Appellant

did, in fact, receive training on proper timesheet procedures and ignores the

common sense notion that an employee must accurately report the actual

hours worked.

      The jury was entitled to weigh all evidence presented in considering

Appellant’s   alternative   theory   as   set   forth   in   her   own   testimony.



                                      - 17 -
J-A30005-16



Commonwealth v. Sanders, 627 A.2d 183, 187-88 (Pa.Super. 1993).

Hence, we find that the trial court did not abuse its discretion in determining

the verdicts were not against the weight of the evidence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




                                    - 18 -
