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HomeMy WebLinkAbout94-0081 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 94-0081 CRIMINAL TERM : CHARGE: (A) INSURANCE FRAUD v. : (24 Cts.) : (B) CRIMINAL ATTEMPT : (C) THEFT BY DECEPTION : (24 Cts.) : (D) FORGERY (14 Cts.) CAROLYN A. BORWEGEN : AFFIANT: PTL. EARL BOCK OTN: E075030-4 IN RE: DEFENDANT'S PETITION FOR HABEAS CORPUS BEFORE OLER, J. ORDER OF COURT AND NOW, this J~ day of May, 1994, after careful consideration of Defendant's Petition for Habeas Corpus, the Petition is DENIED. BY THE COURT, JU~esley Oler~Jr., j. ~fhomas A. Placey, Esq. Assistant District Attorney Michael L. Bangs, Esq. Attorney for Defendant : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 94-0081 CRIMINAL TERM : CHARGE: (A) INSURANCE FRAUD v. : (24 Cts.) : (B) CRIMINAL ATTEMPT : (C) THEFT BY DECEPTION : (24 Cts.) : CAROLYN A. BORWEGEN : AFFIANT: (D) FORGERY (14 Cts.) OTN: E075030-4 PTL. EARL BOCK IN RE: DEFENDANT'S PETITION FOR HABEAS CORPUS BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. This criminal case arises out of the alleged submission by Defendant of insurance claims for reimbursement of prescription costs to which she was not entitled. Following the filing of criminal complaints charging Defendant with 24 counts of insurance fraud, 24 counts of theft by deception, 15 counts of forgery, and one count of attempted insurance fraud and theft by deception, a 1 preliminary hearing was held before District Justice Ronald E. Klair of Mechanicsburg, Pennsylvania. It appears that all counts charged in the complaints were bound over for court, with the exception of a forgery charge.2 Defendant has now filed a Petition for Habeas Corpus, requesting dismissal of the charges pending against her on the ground that the Commonwealth failed to establish ~ See Defendants's Petition for Habeas Corpus, Exhibit A. 2 Se___9e ~ommonwealth v. Borwegen, 81 Criminal 1994, Commonwealth's Exhibit 27 (transcript of proceedings of preliminary ~hearing, January 7, 1994), N.T. 62 (hereinafter N.T. ~). 94-0081 CRIMINAL TERM a prima facie case at the preliminary hearing.3 The facts as postulated by Defendant, or as otherwise suggested by the Commonwealth,s evidence at the preliminary hearing, may be summarized as follows. In 1985, while Defendant was employed by Seidle Memorial Hospital, she was injured on the job.4 As a result of the injury, she became entitled to Workmen's Compensation benefits, which were administered by USF&G Insurance Company.5 Defendant was placed on prescription medication, which she continues to receive today,6 and USF&G acknowledges a continuing responsibility to pay for these prescriptions pursuant to the Workmen's Compensation process.7 In January of 1986, Defendant became employed by the Commonwealth of Pennsylvania and was thereby rendered eligible for certain benefits through the Pennsylvania Public Employees Health ~nd Welfare Fund (Health and Welfare Fund).8 This is a trust fund established on behalf of Commonwealth employees from which certain 3 Se--_ge Defendant's Petition for Habeas Corpus. 4 N.T. 30; Brief in Support of Defendant's Petition for Writ of Habeas Corpus, at 1. 5 N.T. 30; Brief in Support of Defendant's Petition for Writ of Habeas Corpus, at 1. 6 Brief in Support of Defendant's Petition for Writ of Habeas Corpus, at 2. 7 N.T. 32. 8 Brief in Support of Defendant's Petition for Writ of Habeas Corpus, at 1-2. 2 94-0081 CRIMINAL TERM group benefits are purchased, one of which is a prescription drug pr°gram.9 Under the program, a Commonwealth employee who becomes eligible for participation in the plan is sent an I.D. card, permitting him or her to utilize a participating pharmacy to have a prescription filled.~° Upon filling the prescription, the pharmacist submits the claim to National Prescription Administrators (NPA), administrator of the program on behalf of the Health and Welfare Fund.~ NPA pays the pharmacist and then bills the Health and Welfare Fund for that claim.~2 In addition to being sent an I.D. card upon becoming eligible for participation in the plan, an employee is furnished a brochure describing the benefits of the program and terms of benefit- availability.~3 Included in this brochure are explanations of certain items excluded from the program, one being "[p]rescriptions ~for any condition covered by Worker's Compensation...~4 These brochures have been handed out since November 1, 1973,~s and Defendant stipulated that she became eligible for participation in N.T. 52. I d____~.. I d___~. I d____~. N.T. 53-54; Commonwealth,s Exhibit 26. N.T. 53. 3 94-0081 CRIMINAL TERM the plan in January of 1986.~6 In July of 1992, Nancy Southard, a nurse employed by USF&G to audit medical claims for Worker's Compensation, discovered what were perceived to be irregularities while reviewing claims for reimbursement of prescription costs that Defendant submitted.~? The submitted claims consisted of receipts from the pharmacy relating to prescriptions that were filled, along with letters from Defendant stating the amounts for which she sought reimbursement.~8 In reviewing the receipts submitted by Defendant, Ms. Southard discovered that a portion of a given receipt had been cut off unevenly, apparently with scissors.~9 The area which was cut off was normally dedicated to the display of any co-pay amount.20 The "co-pay" is an amount that specific insurance plans, including NPA, require a member to pay on a prescription, the balance of the price ~eing covered by the plan.2~ In addition, Ms. Southard noticed the NPA designation on the left hand side of the receipt, which indicated to her that a prescription card was being used by the N.T. 55. N.T. 4-5. N.T. 9. N.T. 5. N.T. 7. N.T. 5. 4 94-0081 CRIMINAL TERM cust°mer.2~ Upon discovering the first such document, Ms. Southard called the Pathmark pharmacy that issued the prescription and received confirmation that the prescription had indeed been submitted to NPA for payment.~3 Upon further investigation, Ms. Southard located over twenty documents submitted by Defendant which had been modified as above.24 Clarence Hitz, a Pathmark supervising pharmacist, testified that he had contact with Defendant in his duties as a pharmacist.25 When a prescription is filled, he indicated, a receipt is produced.26 This receipt contains either a computer-generated label which includes the drug prescribed, the quantity, and the price, or a handwritten indication of the same. The stamp of the pharmacy, which includes its name and address, is in the lower left corner of the receipt, and the signature of the pharmacist is in the lower ~i.ght corner.27 Mr. Hitz identified 14 receipts on which he believed the signature, purported to be his, was either not his signature or was a mere photocopy of his signature.28 Additionally, N.T. 4, 7. N.T. 5. N.T. 11-25; see also Commonwealth Exhibits 2-24. N.T. 32-33. N.T. 35; se___ge, e.gn, Commonwealth,s Exhibit 9, at 3-4. .See,~, Commonwealth,s Exhibit 9. N.T. 37-44; Commonwealth,s Exhibit 9-19, 22-24. 5 94-0081 CRIMINAL TERM the information written on many of the prescriptions was perceived not to be in Mr. Hitz's handwriting.29 According to Mr. Hitz, who acknowledged that technicians at his store could fill in the top portions of receipts, he did not recognize the handwriting on the receipts as belonging to someone with whom he was familiar.30 Mr. Hitz did not utilize a signature stamp,3~ and only one person, Pam Smith, was authorized to sign his name to a prescription; however, Mr. Hitz discounted the possibility that his signature in this case had been affixed by Ms. Smith, based on his knowledge of her writing.32 The prescription receipts were kept behind the register and handed out on an individual basis by request only.33 The proper means of challenging the Commonwealth,s prima facie case at a preliminary hearing is to petition the trial court for a writ of habeas corpus. _Commonwealth v. Morman, 373 Pa. Super. 360, ~4.1 A.2d 356 (1988). "In the pretrial setting, the focus of the habeas corpus hearing is to determine whether sufficient Commonwealth evidence exists to require a defendant to be held in government ~custody, until he may be brought to trial." Id. at 367, 541 A.2d at 360. The trial court should use the record from N.T. 37-44. N.T. 44, 49. N.T. 44. N.T. 50. N.T. 48-49. 6 94-0081 CRIMINAL TERM the preliminary hearing and any additional evidence the Commonwealth submits on the issue to decide if a prima facie case has been made.34 The basic principles with respect to a preliminary hearing in Pennsylvania have been well established. The function of a preliminary hearing is to guard an individual's rights against unlawful arrest and detention. .Commonwealth v. Muller,, 460 Pa. 336, 333 A.2d 755 (1975). Consequently, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and the accused is the one who committed it. Id__~.35 Unlike the issue at trial, at which the defendant must be proven guilty beyond a reasonable doubt, the question at a preliminary hearing is "whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with crime.', ~Qmmonwealth v. Rick, 244 Pa. Super. 33, 36, 366 A.2d 302, 304 (1976). To establish its prima facie case, the Commonwealth must present evidence relating to each material element of the charge and establish sufficient probable cause to justify a belief that the defendant committed the offense. ~ommonwealth v. Woidak~, 502 Pa. 359, 367-68, 466 A.2d 991, 996 (1983). ~4 .Commonwealth v. Morman, 373 Pa (1988). · Super. 360, 541 A.2d 356 ~5 Se---ge Pennsylvania Rule of Criminal Procedure 141(d) ("If a prima facie case of defendant's guilt is not established at the preliminary hearing ..., the issuing authority shall discharge the defendant..,) . 7 94-0081 CRIMINAL TERM Insurance fraud is defined in Section 4117 of the Crimes Code, providing, in pertinent part, as follows: (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, presents or causes to be presented to any insurer any statement forming a part of, or in support of, an insurance claim that contains any false, incomplete or misleading information concerning any fact or thing material to the insurance claim. Act of February 7, 1990, P.L. 11, §2, as amended, 18 Pa. C.S.A. S4117 (1993 Supp.). Theft by Deception is defined in Section 3922 of the Crimes Code, which states, in pertinent part: (a) Offense defined. -- A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally: (1) creates or reinforces a false impression as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; ... or (3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship. Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S.A. ~3922. 8 94-0081 CRIMINAL TERM In the present case, a review of the evidence recited heretofore indicates that it is sufficient for establishment of a prima facie case as to insurance fraud, theft by deception, and attempt to commit the same. The evidence tended to show that, when having a prescription filled, Defendant would present an NPA card in lieu of payment and receive a receipt from the pharmacy; that the receipt, in an altered form suggestive of concealment of the payment by NPA, was submitted to USF&G for reimbursement under Defendant's Worker's Compensation claim; and that this practice was engaged in notwithstanding notice through a brochure that prescriptions eligible for reimbursement under Worker's Compensation were not covered under the NPA plan. Forgery is defined in Section 4101 of the Crimes Code, which provides, in pertinent part as follows: (a) Offense defined. -- A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:... (2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or (3) utters any writing which he knows to be forged in a manner specified in [paragraph] ... (2) of 9 94-0081 CRIMINAL TERM this subsection. Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S.A. S4101. In the present case, the evidence was sufficient for the establishment of a prima facie case as to forgery. Clarence Hitz, the pharmacist whose signature purportedly appeared on the receipts Defendant submitted to USF&G for reimbursement, testified as to signatures which he believed were not his and as to other signatures which appeared to be mere photocopies of his signature. Only one other person in the pharmacy was authorized to sign his name, and it did not appear that she had done so in this case. In her brief, Defendant argues that she was legally entitled to benefits from both NPA and USF&G, and that consequently, the case does not involve any criminal activity at all. Defendant relies in this respect on Fr iare v. Workmen's Com ensation A eal ~o.ard, 105 Pa. Commw. 325, 524 A.2d 1016 (1987), wherein it was held that there is no public policy or authority which would prevent a claimant from simultaneously recovering under Worker's Compensation and private health insurance. _Id. at 331, 524 A.2d at 1019-20. In that case, however, there was no evidence that the benefits for which reimbursement was sought were specifically excluded from the private health insurance program. In the case sub judice, the existence of such an exclusion and of notice thereof was part of the prosecution's evidence. ~ can not, therefore, be regarded as controlling. 10 94-0081 CRIMINAL TERM For these reasons, and without in any way expressing an opinion as to the underlying merits of the prosecution, the Court will enter the following Order: ORDER OF COURT AND NOW, this .O-~ day of May, 1994, after careful consideration of Defendant's Petition for Habeas Corpus, the Petition is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Thomas A. Placey, Esq. Assistant District Attorney Michael L. Bangs, Esq. Attorney for Defendant ~ rc