J-A03027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EDWARD FEIERSTEIN

                            Appellant                No. 1017 EDA 2015


            Appeal from the Judgment of Sentence March 30, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001241-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                            FILED MARCH 01, 2016

        Appellant, Edward Feierstein, appeals from the March 30, 2015

judgment of sentence of twenty-three months of intermediate punishment,

with the first thirty days on house arrest and electronic monitoring, followed

by five years’ probation, imposed after the trial court convicted Appellant of

insurance fraud and perjury.1 After careful review, we affirm on the basis of

the trial court’s June 12, 2015 opinion.

        The trial court recited the relevant factual and procedural history as

follows.

                   On May 13, 2006, [Appellant] was driving
              home from Germantown Cricket Club when his car
              was struck from behind. The driver of the second
____________________________________________


1
    18 Pa.C.S.A. §§ 4117(a)(2) and 4902, respectively.
J-A03027-16


          car was insured by Chubb Indemnity Insurance Co.
          (“Chubb”). Two days after the accident, [Appellant]
          filed a claim with Chubb seeking reimbursement for
          his bodily injuries. On February 1, 2008, nearly two
          years later, [Appellant] filed suit [] for $125,000
          against Chubb’s insured, seeking damages for his
          medical bills and for his pain and suffering.
          Specifically, [Appellant] complained of the re-tear of
          the rotator cuff of his right shoulder.

                 Chubb assumed defense of the action and
          hired    a   private  investigation   firm,   Stumar
          Investigations, to conduct surveillance to determine
          the extent of [Appellant’s] injuries. In August and
          September of 2008, one of Stumar’s investigators,
          Brian Foster, recorded video footage of [Appellant]
          at Aquatic Fitness Center in Bala Cynwyd and at
          Germantown Cricket Club in Philadelphia on six
          different occasions. [Appellant] was seen stretching,
          exercising on an elliptical machine and a weight-
          lifting machine, and on at least two of the dates,
          playing tennis.

                On January 28, 2009, Chubb’s attorney, Carol
          Comeau, took [Appellant’s] deposition in preparation
          for the civil suit.    Unaware of the surveillance
          showing the contrary, [Appellant] stated during the
          deposition that he had not played tennis at all since
          the accident, that he had not worked out in any
          gyms since the accident, that the only exercise
          equipment he had used since the accident was his
          in-home treadmill, that he attends Germantown
          Cricket Club only for meals, and that he can no
          longer serve overhand. In the weeks following the
          deposition, [Appellant] was not made aware of the
          surveillance footage, although Chubb had provided
          [Appellant’s] attorney with a copy.       [Appellant]
          continued to pursue his suit until withdrawing it on
          July 12, 2011.

                On December 15, 2011, a criminal complaint
          was filed against [Appellant], charging him with
          insurance fraud (18 Pa.C.S.A. § 4117), perjury (18
          Pa.C.S.A. § 4902), attempted theft by deception (18
          Pa.C.S.A. § 901 with § 3922(a)), and false swearing

                                  -2-
J-A03027-16


            (18     Pa.C.S.A.   § 4903).1       [Appellant]   filed
            “Defendant’s Amended and Superseding Omnibus
            Pre-Trial Motion” on December 28, 2012, which
            argued, amongst other things, that the charge of
            insurance fraud was barred by the statute of
            limitations, and that the video surveillance should be
            suppressed at trial. A hearing on the motion was
            held on January 11, 2013, before the Honorable
            Joseph A. Smyth. Judge Smyth denied [Appellant’s]
            motion on February 25, 2013.

                  [Appellant] acted pro se at his bench trial [] on
            November 3, 4, 5, and 6, 2014.2          During trial,
            [Appellant] renewed his objection to the video
            surveillance, and also objected to the introduction of
            the attendance records of Aquatic Fitness Center.
            (These records showed all the dates between
            January 1, 2006, and January 26, 2009, on which
            [Appellant] had entered the gym. Without obtaining
            a subpoena, Special Agent Mark Sabo of State
            Attorney General’s office had requested the records
            from Aquatic Fitness Center, and the records were
            subsequently provided.) [Appellant’s] motions were
            denied and the evidence was admitted.

                  At the conclusion of the trial, the [trial court]
            found [Appellant] guilty of insurance fraud and
            perjury. [Appellant] was sentenced on March 20,
            2015, to twenty-three months of intermediate
            punishment, the first thirty days of which were to be
            spent on house arrest with electronic monitoring, in
            addition to five years of consecutive probation, three
            years of concurrent probation, $1,000 in restitution,
            and the costs of prosecution. [Appellant] filed a
            post-sentence motion on March 23, 2015.
            1
                The false swearing charge was later dropped.
            2
              The pro se representation occurred after th[e trial
            c]ourt allowed two other attorneys, both privately
            retained, leave to withdraw their appearance and
            representation.

Trial Court Opinion, 6/12/15, at 1-3 (footnotes in original).



                                      -3-
J-A03027-16


       On March 30, 2015, the trial court modified Appellant’s sentence and

ordered Appellant “to serve the first thirty days of his Intermediate

Punishment as house arrest with electronic monitoring.”            Order, 3/30/15.

The trial court otherwise denied Appellant’s post-sentence motion. Appellant

filed a timely appeal April 13, 2015.2

       On appeal, Appellant presents four issues for our review.

          1. Was the evidence insufficient as a matter of law to
             support [Appellant’s] convictions for perjury and
             insurance fraud, where the Commonwealth failed to
             prove the element of materiality?

          2. Even if the evidence were sufficient to support
             [Appellant’s] convictions, were the guilty verdicts
             nevertheless against the weight of the evidence?

          3. Should the trial court have suppressed video,
             photographic, and documentary evidence obtained in
             violation of [Appellant’s] Fourth Amendment rights?

          4. Should this matter be remanded for a hearing on after-
             discovered evidence?

Appellant’s Brief at 5.

       In summarizing his four issues on appeal, Appellant first asserts that

the Commonwealth “failed to prove the element of materiality” with respect

to his convictions, stating, “all the Commonwealth proved here is that Chubb

effectively knows how to spring a perjury trap.”            Appellant’s Brief at 10.

Appellant    vigorously argues        that     the   Commonwealth’s own evidence

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                             -4-
J-A03027-16


demonstrating Appellant’s mistaken deposition testimony was material to

nothing. Id. at 13. Appellant additionally assails the weight of the evidence

and says, “[i]t is uncontested that at the time [Appellant] gave his

deposition testimony, multiple ailments caused him to be confused, and as

such, incapable of forming the requisite intent.” Id. at 10. Appellant further

contends that the “video, photographic, and documentary evidence obtained

in this case should have been suppressed as [Appellant’s] reasonable

expectation of privacy in those items was violated.” Id. Finally, Appellant

maintains “at a minimum, [the Superior Court] should remand this case for

a hearing on after discovered evidence pursuant to Pa.R.Cr.P. 720, as a key

witness has recanted and corrected his testimony from trial.” Id.

      We note the statutory definitions of insurance fraud and perjury as

follows.

            § 4117. Insurance fraud

            (a) Offense defined.-- A person commits an
            offense if the person does any of the following:

                                      …

                  (2) Knowingly and with the intent to defraud
                  any insurer or self-insured, presents or causes
                  to be presented to any insurer or self-insured
                  any statement forming a part of, or in support
                  of, a claim that contains any false, incomplete
                  or misleading information concerning any fact
                  or thing material to the claim.

18 Pa.C.S.A. § 4117.

            § 4902. Perjury

                                      -5-
J-A03027-16




              (a) Offense defined.--A person is guilty of perjury, a
              felony of the third degree, if in any official proceeding
              he 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 he does not believe it to be true.

Id. § 4902.

      We are further mindful of our appellate standards of review.         In

examining Appellant’s first issue challenging the sufficiency of the evidence,

we are bound by the following.

              The standard we apply in reviewing the sufficiency of
              the evidence is whether viewing all the evidence
              admitted at trial in the light most favorable to the
              verdict winner, there is sufficient evidence to enable
              the fact-finder to find every element of the crime
              beyond a reasonable doubt. In applying the above
              test, we may not reweigh the evidence and
              substitute our judgment for the fact-finder.         In
              addition, we note that the facts and circumstances
              established by the Commonwealth need not preclude
              every possibility of innocence. Any doubts regarding
              a defendant’s guilt may be resolved by the fact-
              finder unless the evidence is so weak and
              inconclusive that as a matter of law no probability of
              fact   may     be     drawn    from    the    combined
              circumstances. The Commonwealth may sustain its
              burden of proof of proving every element of the
              crime beyond a reasonable doubt by means of wholly
              circumstantial evidence. Moreover, in applying the
              above test, the entire record must be evaluated and
              all the evidence actually received must be
              considered. Finally, the trier of fact[,] while passing
              on the credibility of the witnesses and the weight of
              the evidence produced, is free to believe all, part[,]
              or none of the evidence.




                                       -6-
J-A03027-16


Commonwealth v. Yong, 120 A.3d 299, 311 (Pa. Super. 2015) (citation

omitted).

      As to Appellant’s second issue challenging the weight of the evidence,

we recognize that a challenge to the weight of the evidence “concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal that a guilty verdict shocks one’s sense of justice.” In re J.B., 106

A.3d 76, 95 (Pa. 2014) (citation omitted). “A motion for a new trial alleging

that the verdict was against the weight of the evidence is addressed to the

discretion of the trial court.” Commonwealth v. Weathers, 95 A.3d 908,

910-911 (Pa. Super. 2014), appeal denied, 106 A.3d 726 (Pa. 2015), citing

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). Therefore, on

appeal, the reviewing court “reviews the exercise of discretion, not the

underlying question whether the verdict is against the weight of the

evidence.” Id. “A new trial is not warranted because of a mere conflict in

the testimony and must have a stronger foundation than a reassessment of

the credibility of witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711,

723 (Pa. Super. 2015) (citation and internal quotation marks omitted),

appeal denied, 125 A.3d 1198 (Pa. 2015).        “[O]nly where the facts and

inferences disclose a palpable abuse of discretion will the denial of a motion

for a new trial based on the weight of the evidence be upset on appeal.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (emphasis in


                                     -7-
J-A03027-16


original; citation omitted), cert. denied, Morales v. Pennsylvania, 135 S.

Ct. 1548 (2015).

      Our standard of review from an order denying a suppression motion is

as follows.

              [W]e may consider only the Commonwealth’s
              evidence and so much of the evidence for the
              defense as remains uncontradicted when read in the
              context of the record as a whole. Where the record
              supports the factual findings of the trial court, we are
              bound by those facts and may reverse only if the
              legal conclusions drawn therefrom are in error.

Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citation

omitted).

      Finally, in his fourth issue Appellant seeks relief based on after-

discovered evidence, but failed to raise this claim in his March 23, 2015

post-sentence motion.        We therefore agree with the trial court that

Appellant’s proper recourse for this claim is with collateral review pursuant

to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.            Trial Court

Opinion, 6/12/15, at 17; see also Pa.R.A.P. 302(a) (issues not raised in the

lower court are waived and cannot be raised for the first time on appeal).

      Having reviewed Appellant’s issues, in conjunction with the foregoing

facts of record and pertinent legal authority, we conclude that the Honorable

Garrett D. Page, sitting as the trial court, has authored a comprehensive

opinion which thoroughly discusses Appellant’s claims, such that further

commentary by this Court would be redundant.            In sum, Appellant’s first


                                       -8-
J-A03027-16


three issues are without merit, and his fourth issue is not properly before us

on direct appeal. Accordingly, we affirm Appellant’s judgment of sentence

on the basis of the trial court’s June 12, 2015 opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




                                     -9-
Lj.                                                                                    Circulated 02/16/2016 02:56 PM




      IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
                              CRIMINAL DIVISION

      COMMONWEAL TH OF PENNSYLVANIA

                                                                                    No. 1241-2012
                               vs.
                                                                                    1017 EDA 2015
      EDWARD FEIERSTEIN


                                           OPINION OF THE COURT
      Page, J.                                                                      June 12, 2015


                                     FACTS AND PROCEDURAL             HISTORY

              On May 13, 2006, Defendant Edward Feierstein was driving home from Germantown

      Cricket Club when his car was struck from behind. The driver of the second car was insured by

      Chubb Indemnity Insurance Co. ("Chubb"). Two days after the accident, Defendant filed a claim

      with Chubb seeking reimbursement for his bodily injuries. On February I, 2008, nearly two

      years later, Defendant     filed suit against for $125,000.00    against Chubb's insured, seeking

      damages for his medical bills and for his pain and suffering. Specifically, Defendant complained

      of the re-tear of the rotator cuff of his right shoulder.

              Chubb assumed defense of the action and hired a private investigation firm, Stumar
                                                                                I

      Investigations, to conduct surveillance to determine the extent of Defendant's injuries. In August

      and September of 2008, one of Stumar's investigators, Brian Foster, recorded video footage of

      Defendant at Aquatic Fitness Center in Bala Cynwd and at Germantown Cricket Club in

      Philadelphia on six different occasions. Defendant was·seen stretching, exercising on_an elliptical

      machine and a weight-lifting machine, and on at least two of the dates, playing tennis.

              On January 28, 2009, Chubb's attorney, Carol Comeau, took Defendant's deposition in

      preparation for the civil suit. Unaware of the surveillance showing the contrary, Defendant stated
. .ci~


             during the deposition that he had not played tennis at all since the accident, that he had not

             worked out in any gyms since the accident, that the only exercise equipment he had used since

             the accident was his in-home treadmill, that he attends Germantown Cricket Club only for meals,

             and that he can no longer serve overhand. In the weeks following the deposition, Defendant was

         not made aware of the surveillance footage, although Chubb had provided Defendant's attorney

         with a copy. Defendant continued to pursue his suit until withdrawing it on July 12, 2011.

                    On December 15, 2011, a criminal complaint was filed against Defendant, charging him

         with insurance fraud (18 Pa. C.S.A. § 4117), perjury (18. Pa. C.S.A. § 4902), attempted theft by

         deception (18 Pa. C.S.A. § 901 with § 3922(a)), and false swearing (18 Pa. C.S.A. § 4903).1

         Defendant filed "Defendant's Amended and Superseding Omnibus Pre-Trial Motion" on

         December 28, 2012, which argued, amongst other things, that the charge of insurance fraud was

         barred by the statute of limitations, and that the video surveillance should be suppressed at trial.

         A hearing on the motion was held on January 11, 2013, before the Honorable Joseph A. Smyth.

         Judge Smyth denied Defendant's motion on February 25, 2013.

                    Defendant acted prose at his bench trial before the undersigned on November 3, 4, 5, and

         6, 2014.2 During trial, Defendant renewed his objection to the admission of the video

         surveillance, and also objected to the introduction of the attendance records of Aquatic Fitness

         Center. (These records showed all the dates between January 1, 2006, and January 26, 2009, on

         which Defendant had entered the gym. Without obtaining a subpoena, Special Agent Mark Sabo

         of State Attorney General's office had requested the records from Aquatic Fitness Center, and

         the records were subsequently provided.) Defendant's motions were denied and the evidence was

         admitted.

         I
          The false swearing charge was later dropped.
         2
          The pro se representation occurred after this Court allowed two other attorneys, both privately retained, leave to
         withdraw their appearance and representation.


                                                                   2
        At the conclusion of the trial, the undersigned found Defendant guilty of insurance fraud

and perjury.    Defendant     was sentenced   on March 20, 2015, to twenty-three        months of

intermediate punishment,     the first thirty days of which were to be spent on house arrest with

electronic   monitoring,    in addition to five years of consecutive    probation,   three years of

concurrent probation, $1,000.00 in restitution, and the costs of prosecution. Defendant filed a

post-sentence motion on March 23, 2015, which challenged the weight and sufficiency of the

evidence. The motion was denied on March 30, 2015. Defendant filed notice of appeal to the

Superior Court of Pennsylvania      on April 13, 2015,   and filed a Concise Statement of Matters

Complained of on Appeal ("Statement") on May 5, 2015.




                                              ISSUES

        In his Statement of Matters Complained of on Appeal, Appellant complains of the

following:

        1) The Court erred by denying Appellant's Omnibus pre-trial motion because:
               a. The insurance fraud charge was initiated after the expiration of the
                   applicable statute of limitations;
               b. Appellant's motion to suppress the video footage of himself and the
                   records associated with his gym attendance should have been
                   suppressed as the collection of same was a violation of his
                   Constitutional right of privacy because the person who effectuated the
                   collection was acting as an agent for the goverrunent at the time of the
                   collection and did so without a warrant.
        2) The evidence was insufficient to support Appellant's convictions for perjury
           and insurance fraud because the Commonwealth failed to establish the
           element of materiality for both crimes. This is particularly so because the
           attorney for the insurance entity testified that she did not rely on Appellant's
           deposition testimony in any way, and in fact, recommended that the
           underlying civil action was a "no-pay" suit and that it should be taken to trial.
        3) The evidence was insufficient to support both of Appellant's convictions
           because he renounced whatever alleged intent may have been inferred when
           he withdrew his civil lawsuit, thus rendering his deposition testimony moot.
        4) Appellant's conviction for perjury was not supported by sufficient evidence
           because the Commonwealth did not prove beyond a reasonable doubt that he



                                                 3
              was given an adequate opportunity to correct the mistakes he made in his
              deposition via use of the standard errata sheet because his civil lawyer failed
              to communicate with him in any way about the deposition.
           5) Appellant's convictions were against the weight of the evidence, particularly
              in light of Defendant's post-trial motion/submission of a communication from
              witness Dr. Gogarnoiu, who explained that his trial testimony about playing
              tennis with Defendant was mistaken as to the dates of the matches.

           This opinion will analyze applicability of the statute of limitations, the suppression of

    evidence, and the sufficiency and weight of the evidence, in turn.



                                                     ANALYSIS

    I.     The Statue of Limitations does not Bar the Charge of Insurance Fraud

           Defendant claims that the Commonwealth initiated the charge of insurance fraud after the

expiration of the statute of limitations. Defendant thereby raises a question of law, so the

standard of review for the appellate court is de novo, and its scope of review plenary.

Commonwealth v. Riding, 68 A.3d 990, 993-94 (Pa. Super. 2013).

           The statute of limitations for fraud is expressed in 42 Pa. C.S.A. § 5552(b), which states

that prosecution must be commenced within five years after the fraud is committed. The offense

of insurance fraud is defined by 18 Pa. C.S.A. § 4117, and includes when a person:

           Knowingly and with the intent to defraud any insurer or self-insured, presents or
           causes to be presented to any insurer or self-insured any statement forming a part
           of, or in support of, a claim that contains any false, incomplete or misleading
           information concerning any fact or thing material to the claim.

18 Pa. C.S.A. § 4 l 17(a)(2) (emphasis added).

           In the instant case, Defendant committed fraud on January 28, 2009, when, during the

course of his deposition he issued a false statement in support of his insurance claim.3 Therefore,


3
  Defendant stated at his deposition he lacked capacity to participate in certain physical activities, such as playing
tennis, while video evidence showed the contrary.


                                                           4
A.!J
       the Commonwealth had five years, or until January 28, 2014, to bring charges against Defendant

       based on the statements made during the deposition. The Commonwealth initiated charges

       against Defendant on December 14, 2011, well before the expiration of the applicable statute of

       limitations.

               Although Defendant's statements at the deposition were made as a direct consequence of

       Defendant's civil lawsuit, rather than during the initial submission of his insurance claim to

       Chubb, the distinction is meaningless in the instant case. Defendant initiated litigation against

       Chubb's insured in furtherance of his insurance claim, and Chubb was obligated to defend its

       insured against the suit. Insurance fraud is not (and ought not be) limited to the pre-litigation

       stages of a claim. The fraud therefore occurred when the false statements were made during the

       deposition in 2009, not at the initial filing of the claim in 2006 (when Defendant had not yet

       made any false allegations). In 2011, when the charges were brought against Defendant, the

       statute of limitations had not yet expired.



       II.    Defendant's Motions to Suppress were Properly Denied

              Defendant moved to suppress the video surveillance obtained by Chubb's private

       investigator and the attendance records from Aquatic Fitness Center obtained by the

       Commonwealth on the grounds that both were violations of Defendant's constitutional right to

       privacy. No conflicting evidence was presented regarding the circumstances with which the

       evidence was obtained. Where there is no disagreement on the factual findings of a suppression

       court, an appeals court may only reverse if the legal conclusions are in error or the law is

       misapplied. Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003).




                                                      5
.:




               A.       Defendant's Motion to Suppress the Video Surveillance was Properly Denied
                        Because the Private Investigator was not Acting as a Government Agent

               Both the federal and state constitutions aim to protect citizens from unlawful government

     intrusion.4 Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 (Pa. Super. 2013), affirmed 107

     A.3d 29 (Pa. 2014). The exclusionary rule therefore does not apply to evidence obtained by a

     private citizen, unless acting as an agent or instrument of the state. Commonwealth v, Dingfelt,

     323 A.2d 145, 146 (Pa. Super. 1974). To determine whether a search was conducted by a private

     citizen who was acting in such a capacity, a court must consider the purpose of the search, the

     party who initiated it, and whether the government acquiesced in it or ratified it. Commonwealth

     v. Elmobdy, 823 A.2d            180, 184 (Pa. Super. 2003). "Where the relationship                       between the

     individuals committing the wrongful acts and the government is such that those acts can be

     viewed as emanating from the authority of the state, our case law dictates a finding of state

     action." Id

              Here, Chubb's         private    investigator     was not acting as a government                  agent. The

     surveillance was initiated by Chubb in 2008, to be used as a defense to the civil suit brought

     against it by Defendant. Sean Scanlan, a Casualty Special Investigator for Chubb, testified that

     he was asked by Chubb's claims examiner to hire surveillance, and thereafter assigned the task to

     Stumar Investigations. According to the affidavit of probable cause, the Commonwealth first

     became aware of the video footage and Defendant's perjurous statements on October 19, 2011.

     The Commonwealth was therefore aware of the surveillance until after it occurred, and could not




     4
       Defendant does not specify in his Statement whether he contends a violation of the Fourth Amendment of the
     United States Constitution or the Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania. In
     his original motion he protests that the evidence violates his constitutional right to privacy and his right to be free
     from unreasonable searches and seizures. In his Memorandum of Law on his pre-trial motion, dated February 25,
     2013, he restricts his argument to the Fourth Amendment.


                                                                 6
.........   -   • .._   I




                                have ratified it or acquiesced in it. Therefore, the investigator was acting in a purely private

                                capacity when he surveilled Defendant in 2008.

                                       Furthermore, David Foster of Stumar Investigations testified that he had gained access to

                            Aquatic Fitness Center by use of a guest pass and internet promotion. He did not gain access to

                            Germantown Cricket Club, but observed Defendant through a chain-link fence. The investigator

                            therefore did not wield seeming government authority to obtain the footage. Since the

                            investigator's activity did not emanate from the authority of the state, Defendant's constitutional

                            rights were not violated, and the motion to suppress was properly denied.

                                       Defendant alleges that because Chubb pays a fee to the Commonwealth to fund insurance

                            fraud investigations, 5 the private investigator w~s acting as an agent of the Commonwealth.

                            Defendant's argument, albeit creative, fails. Defendant ignores the case law which says the

                            government must be exercising its authority over the agent at the time of the search. While the

                            government has authority to excise fees from private citizens, this does not condone nor elicit the

                            actions of private individuals or impute those actions to law enforcement. To find otherwise

                            would make any taxpayer a government agent in any other number of circumstances. Even if the

                            payment to the state government can be construed as subsidizing the state's prosecution of

                            Defendant, that would make the Commonwealth an agent of Chubb, not the other way around.




                            5
                              Per 40 Pa. C.S.A. § 325.23, all companies engaging in writing certain types of insurance coverages are obligated to
                            contribute to Insurance Fraud Prevention Trust Fund. Chubb, therefore, deposited monies into this fund, which is
                            administered by the State Treasurer and used in part for "the costs of administration and operation of ... the unit for
                            insurance fraud in the Philadelphia District Attorney's Office." 40 Pa. C.S.A. § 325.23(e)(2).


                                                                                       7
         B.       Defendant's Motion to Suppress the Attendance Records was Properly Denied
                  Because Defendant did not have a Reasonable Expectation of Privacy in the
                  Records

         Defendant made a motion at trial to suppress the records of his attendance at Aquatic

Fitness center.6 The records showed that Defendant attended the facility 401 times between May

of 2006 and January of 2009. Defendant's motion was rightly denied. While Defendant's

attendance records were obtained by a government agent (Special Agent Mark Sabo of the

Bureau of Criminal Investigations of the Insurance Fraud Unit of the State Attorney General's

office), who had not secured a warrant, Defendant did not have a reasonable expectation of

privacy in the information provided to the Commonwealth.

         Both the Fourth Amendment of the United States Constitution and Article I, Section 8 of

the Constitution of the Commonwealth of Pennsylvania protect against warrantless searches and

seizures by the government where 1) a person has a subjective expectation of privacy and where

2) the person's expectation is one that society recognizes as reasonable and legitimate.

Commonwealth v. Duncan, 817 A.2d 455, 463 (Pa. 2003). Whether a person has a reasonable

expectation of privacy is to be determined by an examination of the totality of the circumstances.

Commonwealth v. Reed, 851 A.2d 958, 961 (Pa. Super. 2004).

         However, both the federal and state constitutions allow for a warrantless search where a

third party, who has joint access and control over the property, consents to the search.

Commonwealth v. Kean, 556 A.2d 374, 387 (Pa. Super. 1989). This is because a defendant who

allows joint access has assumed the risk that the third party will consent to a police search. Id

(citing United States v. Matlock, 415 U.S. 164 (1974)). Where joint access or control exists, there

can be no reasonable or legitimate expectation of privacy. Commonwealth v. Lowery, 451 A.2d

6 Defendant did not make this motion prior to trial, although he had already been heard on the issue of suppression.
However, whereas Defendant was represented by (several) counsel before his trial, he was acting prose during the
trial, and the Court decided to entertain his late-made suppression argument in the interests of justice.


                                                          8
-   .........   I




                    245, 248 (Pa. Super. 1982). There is therefore no privacy violation where a third party gives

                    business records to the police at their request. See, e.g., Commonwealth v. Duncan, 817 A.2d 455

                    (Pa. 2003) (bank providing the name and address of an ATM card holder to the police);

                    Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010) (defendant's girlfriend providing her

                    telephone records to police, where her phone had been used by defendant).

                           Here, the joint access and control that Aquatic Fitness Center had over their attendance

                    records destroyed any expectation of privacy held by Defendant. One of the owners of Aquatic

                    Fitness Club, Leslie Littman, testified that the attendance record was created when the defendant

                    swiped his bar code upon entering the facility. These records were created by the business, for

                    use by the business. The attendance records did not convey what Defendant did after entering the

                    facility. The records are therefore fairly innocuous in regards to Defendant's privacy interests.

                    See, e.g., Duncan, 817 A.2d at 463. Also, while most gyms are privately owned facilities,

                    membership is typically open to the public. Members can also bring in guests. Anyone, therefore,

                    could have monitored Defendant's attendance at the club. Defendant never asked Aquatic Fitness

                    Center to keep his information private. Presumably, many employees had access to the records.

                    The Court was therefore not convinced that Defendant had a subjective expectation of privacy in

                    the attendance records held by the gym, or that such an expectation would be objectively

                    reasonable given the gym's common authority over the records. No violation of Defendant's

                    right to privacy occurred when Aquatic consented to provide the attendance records.



                    III.   There was Sufficient Evidence to Support Defendant's Convictions

                           Defendant claims there was insufficient evidence to support his convictions. Specifically,

                    Defendant challenges whether the Commonwealth provided evidence that Defendant's




                                                                    9
statements     were material   and whether   Defendant   possessed   the requisite criminal    intent.

Evidentiary    sufficiency presents a question of law. Therefore, the appellate court's standard of

review is de novo, and its scope of review is plenary. Commonwealth v. Meals, 912 A.2d 213,

218 (Pa. 2006).

          To judge a claim of insufficiency of evidence, an appellate court must determine whether

"the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when

viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to

enable the fact finder to conclude that the Commonwealth established all of the elements of the

offense beyond a reasonable doubt." Commonwealth v. Fears, 836 A.2d 52, 58-59 (Pa. 2003).

The Commonwealth may prove all elements beyond a reasonable doubt through the use of

wholly circumstantial evidence. Id. The evidence is sufficient "unless the proof relied upon for a

conviction is so weak and inconclusive that as a matter of law no probability of fact can be

drawn from the combined circumstances." Commonwealth v. Rawles, 462 A.2d 619, 622 (Pa.

1983). The trier of fact is "free to believe all, part, or none of the evidence." Commonwealth v.

Burton, 2 A.3d 598, 601 (Pa. Super. 2010) (quoting Commonwealth v. Galvin, 985 A.2d 783,

789 (Pa. 2009)).

          A.     There was Sufficient Evidence to Find that Defendant's Statements were Material

          The offenses of insurance fraud and perjury both require not just that a person make a

false statement, but that the statement be material. A person is guilty of insurance fraud when he

or she:

          Knowingly and with the intent to defraud any insurer or self-insured, presents or
          causes to be presented to any insurer or self-insured any statement forming a part
          of, or in support of, a claim that contains any false, incomplete or misleading
          information concerning any fact or thing material to the claim.




                                                  10
18 Pa. C.S.A. § 4 I l 7(a)(2) (emphasis added). The statute does not provide further guidance on

the meaning of the word "material," but the offense does not require a defendant to cause actual

injury. See Commonwealth v. Riding, 68 A.3d 990, 996 (Pa. Super. 2013) (holding that the

definition of fraud does not include the element of detriment to the victim); Commonwealth v.

Pozza, 750 A.2d 889, 894 (Pa. Super. 2000) ("In the [insurance fraud] statute there is no

requirement that the transference of the insurer's property must take place before a crime occurs.

Rather, the mere submission of any false statement done knowingly and with intent to defraud is

sufficient to violate the statute.").

        The perjury statute is more explicit on what constitutes a "material" statement. A person

is guilty of perjury "if in any official proceeding he 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 he does not believe it to be true." 18 Pa. C.S.A. § 4902(a). The perjury

statute clarifies that:

        Falsification is material ... if it could have affected the course or outcome of the
        proceeding. It is no defense that the declarant mistakenly believed the falsification
        to be immaterial. Whether a falsification is material in a given factual situation is
        a question of law.

18. Pa. C.S.A. § 4902(b ). The comment to the statue further elucidates that

        Under existing law testimony is material where it tends to directly prove or
        disprove one side or the other in the main issue or where, under established rules
        of evidence, it indirectly tends to do so by crediting or discrediting other evidence
        or the testimony of another witness. The definition of "materiality" does not
        substantially differ from that of existing law.

18. Pa. C.S.A. § 4902(comment). A material statement under § 4902 is one which has the

potential to influence a fact-finder. Whether it actually does influence the fact-finder is of no

import. Commonwealth v, Lobel, 440 A.2d 602, 606 (Pa. Super. 1982); Commonwealth v.

Lafferty, 419 A.2d 518, 521-22 (Pa. Super. 1980). .



                                                 11
        Defendant claims that there was insufficient evidence to prove that his statements

regarding his physical abilities were material to his insurance         claim or to the deposition

proceeding. Defendant asserts that because Chubb's attorney already had the surveillance video

of Defendant playing tennis, she couldn't have believed or relied upon Defendant's            false

statement that he couldn't play tennis, and therefore, this information was immaterial. Chubb's

attorney stated in a document following the deposition, "I do not believe plaintiffs testimony has

any affect [sic] on my liability opinion."

        Clearly, whether or not Defendant could play tennis was material to the outcome of the

suit. The only reason Defendant made the false statements was to contribute to the success of his

claim. The only reason Chubb ordered the surveillance was to prove the limited extent. of

Defendant's injury. Defendant was not stretching the truth on a collateral issue, but offering a

direct measure of the extent of the effects of his injuries in an attempt to increase his award,

which was still at issue.

       Even though Chubb's attorney knew that Defendant had played tennis at the time he

stated the contrary, this does not insulate Defendant from his actions. At the deposition, Chubb's

attorney found that Defendant would gamer sympathy from a jury; Chubb's attorney wrote after

the deposition that Defendant "appeared truthful and credible" and that a jury would "believe

plaintiff until vigorous    cross-examination."   Therefore, if, at the deposition, Defendant had

spoken truthfully (rather than ann Chubb with impeachment ammunition), it might have altered

the attorney's recommendation as to whether Chubb ought to settle the claim out of court, or

might have influenced jurors deciding the claim. Defendant did not need to actually change the

outcome of the deposition. Defendant's false representations as to the extent of his injuries were

meant to, and did, have a central role in the survival and strength of his insurance claim.




                                                  12
        B.     There was Sufficient Evidence to Find that Defendant had the Requisite Criminal
               Intent

        Defendant also contests that there was sufficient evidence to prove that he possessed the

requisite criminal intent to commit insurance fraud and perjury. The crime of insurance fraud

applies when a defendant acts "[k]nowingly and with the intent to defraud.'' 18 Pa. C.S.A. §

4 l l 7(a)(2). The perjury statute, in contrast, does not specify a level of intent, but only requires

that the defendant does not believe his statement to be true. 18 Pa. C.S.A. § 4902(a). However,

"When the culpability sufficient to establish a material element of an offense is not prescribed by

law, such element is established if a person acts intentionally, knowingly or recklessly with

respect thereto." 18 Pa. C.S.A. § 302(c). Therefore, the perjury statute is satisfied when a

defendant acts intentionally, knowingly, or recklessly.

       The Pennsylvania Crimes Code defines each of the above mental states in section 302. A

person acts "intentionally" when "it is his conscious object to engage in conduct of that nature or

to cause such a result." 18 Pa.C.S.A. § 302(b)(l )(i). A person acts "knowingly" when "he is

aware that it is practically certain that his conduct will cause such a result." 18 Pa.C.S.A. §

302(b){2){ii). A person acts "recklessly" when "he consciously disregards a substantial and

unjustifiable risk that the material element [of an offense] exists or will result from his conduct."

18 Pa. Cons. Stat. Ann. § 302(b)(3). Defendant's intentions in making his false statements "can

indeed, [and] often must[,] be proved by circumstantial evidence." Commonwealth v. Broughton,

390 A.2d 1282, 1290 (Pa. Super. 1978).

       Defendant claims that he renounced any intent when he withdrew his lawsuit against

Chubb. However, he withdrew his suit years after the deposition had passed, upon finding out

about the surveillance. Defendant even stated on the record that he did not withdraw his suit

voluntarily. Furthermore, the statute implies that a defendant's intent is contemporaneous with



                                                 13
his action, and here Defendant intended to make the false statements at the time that he made

them.7 See, e.g. Commonwealth v. Sanchez, 848 A.2d 977 (Pa. Super. 2004) (defendant had

intent to commit insurance fraud when he signed forms in support of a claim even though he

knew that the car in question was not insured at the time of the accident).

        Defendant also challenges the sufficiency of the evidence of the perjury conviction on the

basis that he did not have an adequate opportunity to correct the mistakes at his deposition via

the use of a standard errata sheet. Defendant's former counsel, Lee Rosenfeld, testified for the

defense that he did not tell Defendant about the video surveillance at the time that he received it

from Chubb, weeks after the deposition.

        This Court cannot find any legal basis for Defendant's argument. Defendant's perjury

occured when he lied at his deposition. The only defense provided for in the statute is that "No

person shall be guilty of an offense under this section if he retracted the falsification in the

course of the proceeding in which it was made before it became manifest that the falsification

was or would be exposed and before the falsification substantially affected the proceeding." 18

Pa. C.S.A. § 4902(d) (emphasis added). If Defendant had retracted his statements during the

deposition, he would have been able to claim the defense. If he had retracted his statements with

an errata sheet after learning of the surveillance, not only would the proceeding have concluded,

but that would be after it "became manifest that the falsification would be exposed." Id. The

Court as fact-finder found that Defendant did not attempt to retract his statements before finding

out about the surveillance, despite his claims to the contrary. There was therefore sufficient

evidence to find that Defendant committed perjury.


7
 During the trial, Defendant argued that he was confused, depressed, medicated, and merely exaggerating during his
deposition, to contest that he had intended to commit insurance fraud or perjury. Defendant did not revive these
arguments in his Concise Statement. However, the Court notes that to make such a finding would be to view the
evidence in the light most favorable to Defendant.


                                                        14
IV.    Defendant's Convictions were not Against the Weight of the Evidence

       Defendant claims that his convictions were against the weight of the evidence. On a

motion for a new trial based on a challenge to the weight of the evidence, the trial court is not

obligated to view evidence in the light most favorable to the verdict winner. Commonwealth v.

Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004). Rather, the trial court may grant a new trial

because the verdict is against the weight of the evidence only when the verdict rendered is so

contrary to the evidence as to shock one's sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to prevail. Commonwealth v.

Goodwine, 692 A.2d 233, 236 (Pa. Super. 1997). An appellate court does not judge whether the

verdict was against the weight of the evidence, but is limited to a review of whether the trial

court palpably abused its discretion in ruling on the weight claim. Commonwealth   v,   Lewis, 911

A.2d 558, 565 (Pa. Super. 2006). A trial court's denial of a motion for a new trial based on a

weight of the evidence claim is the least assailable of its rulings. Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008).

       Here, Defendant stated during a deposition that he had not played tennis at all since his

automobile accident, that he had not worked out in any gyms since the accident, that the only

exercise equipment he had used since the accident was his in-home treadmill, that he attends

Germantown Cricket Club only for meals, and that he can no longer serve overhand. The

Commonwealth presented clear evidence, through video surveillance and the gym attendance

records, that Defendant's statements were untrue. Additionally, the Commonwealth offered the

statement of John Melvin, who admitted that he was photographed playing tennis with Defendant

(although Mr. Melvin did not offer a date for the photographs, and erroneously identified the

location as the Philadelphia Cricket Club). The Commonwealth also submitted a copy of




                                               15
Defendant's Complaint against Chubb's insured from 2008 and Defendant's Pre-Trial Statement

from 2011,        showing     Defendant's      pursuit    of compensation         for his injuries.       Finally,   the

Commonwealth        provided the document that Carol Comeau, Chubb's attorney, created following

the deposition.

         In his defense, Defendant testified that he hadn't played tennis between the time of the

accident and the date of the surveillance and that he wasn't at the gym to work out as so much as

to pursue his physical therapy. He explained his medical and emotional history at length, and

claimed that during the deposition           he was suffering from severe depression and physical pain,

which caused him to be confused. He claimed that he meant, at the deposition, to convey to

Chubb that he didn't truly have the ability to play tennis to his full capacity.

         Defendant offered evidence of his mental illness through Dr. Iaccarino, who testified that

he had treated Defendant since 2009 for severe depression, and the notes of Dr. Leslie Schwartz

from October of 2014, stating that "In my professional opinion his significant depression ( due in

part to a break-up of a romantic relationship) and his excessive alcohol consumption contributed

to his impaired thinking and judgment when he made statements in a deposition in Jan. of 2009."

Defendant also introduced the report of Dr. Gerald Cooke, who had assessed Defendant for this

Court to determine his competency to stand trial, which included a review of his medical records

from 2011     to 2014 and new tests which diagnosed Defendant with chronic major depressive

disorder, post-traumatic stress disorder, unspecified neurocognitive disorder leading to impaired

memory functioning, alcohol abuse, and personality disorder. 8


8
  Dr. Cooke's report includes the following: "It is this examiner's opinion that at the time he was severely depressed,
and also was still abusing alcohol, including the night before the deposition (by his self-report but consistent with his
overall pattern.) He was also even at that point suffering from the organic brain deterioration, which would have
compromised his judgment and reasoning to some extent, though not to as great an extent as is seen currently. At the
same time Mr. Feierstein's manipulative tendencies, which emerge clearly on testing, cannot be ruled out. Based on
this analysis the present examiner can only state that those psychologically-based, substance abuse-based, and
organically based deficits were present at the time he gave the deposition, but I cannot go as far as to say that he


                                                           16
r :
      :::   ,




                         Defendant also offered evidence regarding the extent of his physical injuries through Dr.

                Ari Greis, who had treated Defendant with physical therapy in 2010, through the report of

                Rimkus Consulting Group, which had prepared an assessment of Defendant's claim for Chubb's

                attorney in 2006, and through the video deposition of Dr. Gerald Williams, who had treated

                Defendant in 2003, 2006, 2010, and 2013. Defendant also offered around ten character

                witnesses.

                         Despite Defendant's storied history, documented emotional issues, and the legitimate

                injuries Defendant may have suffered as a result of the accident, Defendant's convictions for

                insurance fraud and perjury were not against the weight of the evidence. Defendant, a seasoned

                attorney, was aware that he was making false statements under oath, and he was making them to

                facilitate the success of his insurance claim. The evidence presented by Defendant, though

                distressing, does not outweigh the evidence presented by the Commonwealth to the extent that

                his conviction is so contrary as to shock ones sense of justice. Goodwine, 692 A.2d at 236.

                         Defendant points out in his Statement that the Court received a letter directly from one of

                Defendant's character witnesses, Dr. Gogamoiu, after the conclusion of trial. Dr. Gogarnoiu

                testified on the stand that he had played tennis with Defendant since 2000, including in 2007 and

                2008, thereby corroborating the Commonwealth's evidence. The letter attempts to amend his

                testimony and states that Dr. Gogamoiu has not played tennis at all since 2005.

                         This post-trial letter was not in the evidence presented at trial, and therefore does not

                affect the weight of the trial evidence. A motion for a hearing on after-acquired evidence is the

                purview of a post-conviction proceeding, and is not properly pursued on direct appeal.

                lacked the capacity to form criminal intent. .. Similarly, despite these problems that compromised his functioning to
                some extent, I cannot go as far as to say that he lacked criminal responsibility. He certainly had the capacity to
                understand that misrepresenting his status at that time was illegal and wrong. He does say that he was confused, and
                this examiner would agree that it is likely that given his various deficits present at that the he was confused, but
                again not to the point that he would Jack the capacity for criminal intent or criminal responsibility."


                                                                         17
.
'   '/




                                          CONCLUSION

         For all of the aforementioned reasons, this Court's order should be affirmed.




                                                18
