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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S16004-18



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
____________________________________________


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.


                                           -2-
J-S16004-18



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

____________________________________________


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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J-S16004-18



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).



____________________________________________


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:


____________________________________________


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


                                      -6-
J-S16004-18


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


____________________________________________


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.



                                           -7-
J-S16004-18


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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J-S16004-18


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.




____________________________________________


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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J-S16004-18


     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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