Com. v. Kennedy, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALVIANETTE A. KENNEDY, :
:
Appellant : No. 3612 EDA 2018
Appeal from the Judgment of Sentence Entered, November 14, 2018,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No(s): CP-46-CR-0000647-2018.
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 15, 2019
Alvianette A. Kennedy appeals from the judgment of sentence imposed
following her conviction of insurance fraud and securing execution of
documents by deception.1 We affirm.
The relevant facts are as follows. On October 22, 2014, Kennedy was
involved in a work-related car accident. Two months later, on December 19,
2014, Kennedy saw Anthony Salem, M.D., of Suburban Orthopedic Specialists.
During the visit, Dr. Salem dictated notes regarding the appointment, which
were later transcribed and placed in Kennedy’s patient file. The notes from
the December 19, 2014 visit stated that Dr. Salem gave Kennedy a script
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 4117(a)(2), 4114.
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which excused her from work on December 18 and 19 of 2014 due to her
accident-related injuries. Per office policy, the practice also retained the
carbon copy of the script for Kennedy’s patient file.
On December 22, 2014, Kennedy made a claim to her insurance carrier,
Esurance, for lost wages. In support of her claim, she faxed a packet of
documents to Esurance. Included in the claim documents was a copy of the
script from Dr. Salem. However, the script faxed to Esurance had been altered
to include additional dates that Kennedy was purportedly excused from work:
October 23, 2014, through December 5, 2014; and December 10-12, 2014.
Based on the documentation submitted by Kennedy, Esurance issued her a
check in the amount of $5,336.14 for lost wages from October 31, 2014,
through the check issue date of February 27, 2015.
After a dispute emerged between Esurance and Kennedy, Esurance
conducted an internal investigation. Ultimately, the alteration of the script
was discovered, and Kennedy was charged with the above-mentioned
offenses. At trial, the court admitted Dr. Salem’s office notes, and the carbon
copy of the script issued to Kennedy. The court also admitted, as Exhibit C-
1, the packet of claim documents that Kennedy faxed to Esurance, which
included a copy of the altered script. Following the trial, a jury found Kennedy
guilty on both charges. On November 14, 2018, the trial court imposed an
aggregate sentence of five years of probation, and ordered Kennedy to pay
restitution to Esurance in the amount of $5,336.14. On November 27, 2018,
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Kennedy filed an untimely post-sentence motion. On December 13, 2018,
before the trial court ruled on the motion, Kennedy filed a notice of appeal.
Both Kennedy and the trial court complied with Pa.R.A.P. 1925.
Kennedy raises the following issues for our review:
1. Was evidence sufficient to establish that Ms. Kennedy
intentionally submitted a false statement to her insurer, a
requisite finding to substantiate both convictions?
2. Was the Commonwealth Exhibit C-1 improperly admitted as a
business record exception to hearsay?
Appellant’s Brief at vi.
Kennedy’s first issue challenges the sufficiency of the evidence
supporting the intent element of her convictions.2 Our standard of review of
a sufficiency claim is as follows:
[W]e evaluate the record in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is
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2 Both the trial court and the Commonwealth claim that Kennedy’s first issue
is waived based on her failure to state the issue with sufficient specificity in
her Pa.R.A.P. 1925(b) concise statement. We disagree. Kennedy’s first issue
challenges only the sufficiency of the evidence supporting the intent element
of her convictions. In her concise statement, she states “The evidence was
insufficient to support the convictions. . . . The Commonwealth also failed to
establish that Ms. Kennedy had the requisite intent.” Concise Statement,
6/4/19, at 2-3. As we deem the issue adequately stated, we decline to find
waiver.
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to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted). The finder of fact is free to believe all, part,
or none of the evidence presented, and determines the credibility of the
witnesses. Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013)
(en banc).
A person commits the offense of insurance fraud by:
Knowingly and with the intent to defraud any insurer . . . presents
or causes to be presented to any insurer . . . 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(a)(2). A person acts “knowingly” when “[s]he is aware
that it is practically certain that h[er] conduct will cause such a result.” Id.
§ 302(b)(2)(ii). Likewise, a person acts “intentionally” when “it is h[er]
conscious object to engage in conduct of that nature or to cause such a result.”
Id. § 302(b)(1)(i). In addition, section 4117 defines the term “statement,” in
part, as “[a]ny oral or written presentation or other evidence of loss, injury or
expense, including, but not limited to, any notice, statement, proof of loss,
receipt for payment, invoice, account, bill for services, diagnosis, prescription,
hospital or doctor records, X-ray, test result or computer-generated
document.” Id. § 4117(l). Finally, although section 4117 does not provide
guidance on the meaning of the word “material,” the statute does not require
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an insured to cause actual injury to the insurer. See Commonwealth v.
Pozza, 750 A.2d 889, 894 (Pa. Super. 2000) (under section 4117, there is no
requirement that transference of insurer’s property must take place before
crime occurs; rather, mere submission of any false statement done knowingly
and with intent to defraud is sufficient to violate statute); see also
Commonwealth v. Riding, 68 A.3d 990, 996 (Pa. Super. 2013) (holding that
definition of fraud does not include element of detriment to victim).
A person commits the offense of securing execution of documents by
deception “if by deception he causes another to execute any instrument
affecting or purporting to affect or likely to affect the pecuniary interest of any
person.” 18 Pa.C.S.A. § 4114.
Kennedy contends that the evidence was insufficient to prove that she
sent Esurance an altered document with the intent to defraud, which was a
requisite finding to both criminal charges. According to Kennedy, although
the prosecution alleged that she submitted an altered doctor’s script which
added dates excusing her from work, the Commonwealth did not establish
that she altered the script, or sent the script to Esurance, or that the script
induced Esurance to pay the claim. Kennedy acknowledges that the altered
script was in Esurance’s possession, but points to her own testimony that she
sent an unaltered script to Esurance. She also points out that no handwriting
experts were introduced, and that neither her copy of the fax sent to Esurance,
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nor the Commonwealth’s copy contained a confirmation sheet listing the pages
sent or received, or a date stamp documenting the transaction.3
Although a conviction of insurance fraud requires an intent to defraud,
and a conviction for documents by deception requires an intent to deceive,
rare is the occasion when a party lays bare his or her subjective intent.
Commonwealth v. Parker, 104 A.3d 17, 24 (Pa. Super. 2014). Accordingly,
the requisite intent to commit insurance fraud and documents by deception
may be inferred from the surrounding circumstances. See Commonwealth
v. Sanchez, 848 A.2d 977 (Pa. Super. 2004) (holding defendant had intent
to commit insurance fraud when he signed forms in support of claim even
though he knew that car in question was not insured at time of accident).
Here, the evidence introduced at trial, when viewed in the light most
favorable to the Commonwealth, established that Dr. Salem issued Kennedy
a script excusing her from work for two days, as indicated by his office notes
and the carbon copy of the original script that his office retained. The evidence
also established that Kennedy faxed documents to Esurance in support of her
____________________________________________
3 Under our appellate rules, the parties’ briefs must include a discussion of
each question raised on appeal and a “citation of authorities as are deemed
pertinent.” See Pa.R.A.P. 2119(a); see also Commonwealth v. Heggins,
809 A,2d 908, 912 n.2 (Pa. Super. 2002) (holding that an issue identified on
appeal but not developed in appellant’s brief is abandoned and therefore
waived). In her brief, Kennedy fails to cite to, let alone discuss, any controlling
case law or relevant authority which supports her claim. While we could find
waiver on this basis, we decline to do so.
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wage loss claim, which included an altered version of the script to which
several weeks of excused work days had been added.
Based on this evidence, the jury could properly infer that Kennedy, in
an attempt to obtain insurance benefits that she was not entitled to receive,
intentionally provided an altered script to Esurance seeking wage loss
payments for days that she was not deemed unable to work, in an attempt to
defraud and deceive it. The jury, having the right to believe all, some, or none
of Kennedy’s case, decided that she acted with the requisite intent to defraud
and deceive. Accordingly, viewed in the light most favorable to the
Commonwealth, the evidence was sufficient both in quantity and quality to
establish that Kennedy acted with the requisite intent to support her
convictions of both insurance fraud and documents by deception. Thus, her
first issue merits no relief.
In her second issue, Kennedy contends that the trial court erred by
admitting the claim documents she faxed to Esurance (Exhibit C-1) under the
business records exception to the hearsay rule. Our standard of review
concerning the admissibility of evidence is well-settled:
The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
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Pennsylvania Rule of Evidence 803(6) provides that a record of an act,
event, or condition may be admitted under the following circumstances:
(A) the record was made at or near the time by-or from
information transmitted by-someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a “business,” which term includes business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) with a statute permitting
certification; and
(E) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
Additionally, pursuant to Pennsylvania’s Uniform Business Records as
Evidence Act:
A record of an act, condition or event shall, insofar as relevant, be
competent evidence if the custodian or other qualified witness
testifies to its identity and the mode of its preparation, and if it
was made in the regular course of business at or near the time of
the act, condition or event, and if, in the opinion of the tribunal,
the sources of information, method and time of preparation were
such as to justify its admission.
42 Pa.C.S.A. § 6108.
Kennedy contends that the altered script was improperly introduced as
a business record through the testimony of James Cohn, one of Esurance’s
Senior Special Investigators who was brought in to investigate her claim.
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Kennedy points out that Mr. Cohn was not a percipient witness to any
exchange of documents between her and Esurance, and that he merely pulled
the documents included in Exhibit C-1 from Esurance’s computer system
during his investigation. She argues that, while Mr. Cohn’s testimony
established that the altered script was in Esurance’s possession, his testimony
did not provide sufficient justification to establish that the altered script was
included in the claim documents that Kennedy faxed to the insurer. According
to Kennedy, Mr. Cohn was not present when the fax was received by Esurance,
and did not personally enter, or observe another individual entering, the fax
into Esurance’s document retention system. Kennedy further argues that,
although Mr. Cohn testified that documents associated with a claim are either
scanned into the system or are automatically uploaded, he did not specify
whether the faxed documents were scanned or uploaded, or whether they
were stored in the system as one document or as multiple documents.
Kennedy also complains that the documents included in the fax did not have
a date or time stamp, indicating either when they passed through a fax
machine or when they were uploaded into the Esurance document retention
system. She additionally points out that the script was not listed on the fax
cover page as included in the documents faxed to Esurance.
Kennedy misapprehends the nature of the Uniform Business Records as
Evidence Act. As this Court has explained:
It is not essential . . . to produce either the person who made the
entries or the custodian of the record at the time the entries were
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made. Moreover, the law does not require that a witness
qualifying business records even have a personal knowledge of
the facts reported in the business record. As long as the
authenticating witness can provide sufficient information relating
to the preparation and maintenance of the records to justify a
presumption of trustworthiness for the business records of a
company, a sufficient basis is provided to offset the hearsay
character of the evidence.
Bayview Loan Servicing, LLC v. Wicker, 163 A.3d 1039, 1048 (Pa. Super.
2017) (quoting Boyle v. Steinman, 631 A.2d 1025, 1032-33 (internal
citations omitted)).
The trial court determined that Mr. Cohn provided sufficient information
relating to the preparation and maintenance of Esurance’s document retention
system to justify a presumption of trustworthiness of its business records,
including Exhibit C-1. The court explained the basis for its ruling, as follows:
James Cohn, a senior special investigator for Esurance, has been
with the company for ten (10) years, exercising his role as
investigator of potential fraudulent or inaccurate claims. In April
2015, Mr. Cohn was tasked with investigating [Kennedy’s]
insurance claim. Mr. Cohn accessed [Kennedy’s] file off of the
Esurance computer system for his internal investigation, including
the fax submitted as [Exhibit] C-1. Mr. Cohn uses and is familiar
with Docfinity, the Esurance centralized document system, and
was able to explain in detail how the documents were loaded and
maintained within the system. He testified that contemporaneous
with the document being received, as part of the ordinary course
of business the document is either uploaded directly or scanned
into the system. It was Mr. Cohn’s testimony that the fax entered
into evidence as [Exhibit] C-1 was scanned into the Docfinity
system. As such[,] Exhibit C-1 was sufficiently authenticated by
Mr. Cohn and, therefore, fits squarely within the business record
hearsay exception.
Trial Court Opinion, 2/11/19, at 7-8 (citations to the record and footnote
omitted).
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We discern no abuse of discretion in the trial court’s evidentiary ruling.
Accordingly, Kennedy’s second issue merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/19
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