J-A30005-16

2017 PA Super 126

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ANGELA D. BIESECKER

Appellant No. 318 MDA 2016

Appeal from the Judgment of Sentence September 18, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003502-2013

BEFORE: BOWES, OLSON AND STABILE, JJ.

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

Angela Biesecker appeals from the judgment of sentence of five years 

probation imposed following her convictions for Medicaid fraud, theft by 

deception, and receipt of stolen property. We affirm. 

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

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

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

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

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1 See Colonial Park Care Ctr., LLC v. Dep't of Pub. Welfare, 123 A.3d 

1094 (Pa.Cmwlth. 2015) (“Medicaid provides federal financial assistance to 

states choosing to reimburse needy individuals for certain medical 

expenses.”)

2 The acronym apparently refers to the federal Omnibus Budget and 

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

Commonwealth prosecuted Appellant for receiving funds that she was not 

entitled to under these programs.

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

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

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

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

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

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

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

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

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

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

into the community and be able to adequately communicate and assimilate 

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

community integration are correspondingly quite broad. Examples 

mentioned at trial included learning how to purchase ingredients and 

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

transportation, ordering food, and enjoying recreational and leisure 

activities. Integration remained the primary goal for subsequent ISPs 

prepared for June 1, 2008 through June 30, 2009, and July 1, 2009 to June 
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30, 2010. Appellant was present for meetings regarding the ISPs. Id. at 

318-19. 

ISPs were submitted to the Commonwealth’s Department of Public 

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

support agency was permitted to bill the Commonwealth for the specified 

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

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

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

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

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

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

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

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

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

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

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

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

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

____________________________________________

3 The record does not clearly indicate when Appellant was first employed by 

Caring Companions; however, her employment began prior to the charged 

events. Presumably, Appellant was hired in 2008 following the approval of 

the June 1, 2008 ISP. 
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and end time for the periods services were rendered, as that was the basis 

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

Companions, testified that all new employees received training, which 

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

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

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

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

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

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

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

the client.” Id. at 111. 

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

2009. Employees testified to the services they provided and authenticated 

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

July of 2010. Id. at 193-214; 238-48. These sessions were largely one-onone and Appellant was not providing services at those times. 

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

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

sent letters to both agencies requesting confirmation that services were 

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

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

reduced due to the double billing. Id. at 334. The Arc, which was 
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previously authorized to provide services for thirty hours a week, was 

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

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

(Commonwealth’s Exhibit 43). 

Agent Luis Gomez from the Medicaid Fraud Control unit testified at 

trial and explained that he compared timesheets submitted by Appellant to 

Caring Companions against timesheets submitted by the Arc for the time 

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

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

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

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

charges herein pertained only to the overlapping hours. 

The Commonwealth also introduced evidence regarding developments 

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

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

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

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

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

daughter submitted timesheets for these time periods claiming that she 

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

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

timeframe, and the manager for that office confirmed that the daughter 
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worked 8:30 a.m. to 5:00 p.m. during the week from September of 2010 to 

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

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

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

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

15, 2011. Id. at 526-28. 

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

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

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

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

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

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

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

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

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

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

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

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

week. Id. at 654.

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

appealed and presents the following issues for our review.
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I. Was the evidence insufficient to prove beyond a reasonable 

doubt that the Defendant committed Medical Assistance 

Fraud, Theft By Deception and Receiving Stolen Property? 

II. Did the Trial Court abuse its discretion in denying the 

Defense’s Motion in Limine to exclude evidence of alleged 

medical assistance fraud purported by the Defendant’s 

daughter subsequent to Defendant’s alleged fraudulent 

activity? 

III. Did the Court abuse its discretion in denying the Defendant’s 

motion for a mistrial after the Attorney General questioned 

the Defendant regarding increased security required at a 

government office due to the Defendant’s alleged behavior? 

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

Appellant’s brief at 4.

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

three convictions. Whether the evidence was sufficient to support the 

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

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

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

examine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, support the 

jury's finding of all the elements of the offense beyond a 

reasonable doubt. The Commonwealth may sustain its burden by 

means of wholly circumstantial evidence.

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

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

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

evidence sufficient to prove elements similarly required by all three statutes, 
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the analysis will be consolidated.” Appellant’s brief at 32. Before turning to 

the individual statutes, we review Appellant’s argument.

Appellant’s overarching claim is that the Commonwealth failed to 

establish the requisite intent. She concedes that her timesheets were 

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

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

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

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

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

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

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

lawfully entitled to the compensation. 

Having established Appellant’s argument, we now examine the 

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

states:

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

(1) Knowingly or intentionally present for allowance 

or payment any false or fraudulent claim or cost 

report for furnishing services or merchandise under 

medical assistance, or to knowingly present for 

allowance or payment any claim or cost report for 

medically unnecessary services or merchandise 

under medical assistance, or to knowingly submit 

false information, for the purpose of obtaining 

greater compensation than that to which he is legally 

entitled for furnishing services or merchandise under 

medical assistance, or to knowingly submit false 
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information for the purpose of obtaining 

authorization for furnishing services or merchandise 

under medical assistance.

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

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

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

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

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

The Crimes Code defines the two as follows: 

(b) Kinds of culpability defined.—

(1) A person acts intentionally with respect to a 

material element of an offense when:

(i) if the element involves the nature of 

his conduct or a result thereof, it is his 

conscious object to engage in conduct of 

that nature or to cause such a result; 

and

(ii) if the element involves the attendant 

circumstances, he is aware of the 

existence of such circumstances or he 

believes or hopes that they exist.

(2) A person acts knowingly with respect to a 

material element of an offense when:

(i) if the element involves the nature of 

his conduct or the attendant 

circumstances, he is aware that his 

conduct is of that nature or that such 

circumstances exist; and

(ii) if the element involves a result of his 

conduct, he is aware that it is practically 
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certain that his conduct will cause such a 

result.

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

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

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

occur (the result). 

Appellant argues that she did not knowingly or intentionally commit 

this offense because the definition of community integration services is quite 

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

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

argues, since those parental tasks would clearly qualify as community 

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

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

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

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

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

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

Appellant’s arguments would be more forceful if the Commonwealth 

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

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

608.25 hours that Appellant billed for services that were actually performed 

by the Arc from July 1, 2009 through June 30, 2010. We recognize 
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Appellant’s argument that, upon E.B.’s return home following Arc activities, 

Appellant could have provided additional community integration tasks. 

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

timesheets that reflected those services, and the Commonwealth presented 

evidence that Appellant was trained on the proper procedures. 

Moreover, the Commonwealth presented evidence that suggested she 

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

Significantly, Appellant agreed that she billed Caring Companions for 

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

when she could not have possibly provided caregiving services. The 

Commonwealth specifically highlighted a recreational trip to Wildwood, New 

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

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

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

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

Appellant also submitted timesheets for those time periods. 

Additionally, our precedents permit the consideration of common sense 

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

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

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

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

an act that “could threaten the child’s physical or psychological welfare.” Id. 
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at 1038. The infant victim exhibited signs of Shaken Baby Syndrome. The 

appellant claimed that doctors did not specifically instruct him about the 

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

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

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

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

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

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

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

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

specified. 

Thus, we find that the Commonwealth provided sufficient evidence for 

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

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

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

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

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

conviction at this count. 

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

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

deception states:
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(a) Offense defined.--A person is guilty of theft if he 

intentionally obtains or withholds property of another by 

deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including 

false impressions as to law, value, intention or other 

state of mind; but deception as to a person's 

intention to perform a promise shall not be inferred 

from the fact alone that he did not subsequently 

perform the promise;

. . . . 

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

(a) Offense defined.--A person is guilty of theft if he 

intentionally receives, retains, or disposes of movable property 

of another knowing that it has been stolen, or believing that it 

has probably been stolen, unless the property is received, 

retained, or disposed with intent to restore it to the owner.

18 Pa.C.S. § 3925. 

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

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

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

meet its burden largely repeats the points set forth above. 

We find that the convictions were supported by sufficient evidence. 

The Commonwealth is permitted to establish intent through circumstantial 

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

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

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

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

A.2d 924, 929 (Pa.Super. 2006) (citations omitted). 
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The following circumstances are relevant to our finding. First, 

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

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

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

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

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

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

presented evidence of medical assistance fraud committed by Appellant’s 

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

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

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

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

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

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

Appellant intentionally submitted the instant inaccurate timesheets for 

fraudulent purposes. The timesheets created a false impression which 

resulted in overpayment. We therefore find that sufficient evidence was 

presented to uphold these two convictions. 

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

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

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

evidentiary rulings applies the following standard.
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The admissibility of evidence is solely within the discretion of the 

trial court and will be reversed only if the trial court has abused 

its discretion. An abuse of discretion is not merely an error of 

judgment, but is rather the overriding or misapplication of the 

law, or the exercise of judgment that is manifestly unreasonable, 

or the result of bias, prejudice, ill-will or partiality, as shown by 

the evidence of record.

Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016). Pa.R.E. 

404 governs the admissibility of this evidence. 

Under the Pennsylvania Rules of Evidence, evidence of other bad 

acts or crimes that are not currently being prosecuted against 

the defendant are not admissible against the defendant to show 

his bad character or propensity to commit criminal acts. 

However, evidence of other [acts] may be admissible where that 

evidence is used for some other purpose. Such purposes 

explicitly include “proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.” Rule 404(b)(2).

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

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

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

Pa.R.E. 404(b)(2). “To be admissible under this exception, there must be a 

specific ‘logical connection’ between the other act and the crime at issue 

which establishes that the crime currently being considered grew out of or 

was in any way caused by the prior set of facts and circumstances.” 

Commonwealth v. Cox, 115 A.3d 333, 337 (Pa.Super. 2015) (en banc). 
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Appellant challenges the logical connection between the two acts, 

stating that Appellant’s link to her daughter’s fraud4is tenuous. We 

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

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

court did not abuse its discretion in admitting the evidence.

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

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

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

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

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

and Appellant did not ask for a curative instruction. 

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

because the prosecutor makes an improper remark.

Initially we note that the decision whether to declare a mistrial is 

within the sound discretion of the trial judge and will not be 

reversed absent a flagrant abuse of discretion. The granting of 

such a motion is not required in all situations where the 

language of the district attorney is intemperate, uncalled for or 

improper. Prosecutorial comments will constitute reversible error 

only where the unavoidable effect of such comments would be to 

prejudice the jury, forming in their minds fixed bias and hostility 

____________________________________________

4

 Appellant labels the evidence as fraudulent. We note that Appellant’s 

daughter was separately charged in another county for her acts. The 

prosecutor informed the court that he did not join these cases for trial due to 

the fact that he extended an offer of ARD to the daughter. N.T., 7/7-10/15, 

at 18.
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toward the defendant so that they could not weigh the evidence 

objectively and render a true verdict. 

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

not find that the comments meet this lofty standard.

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

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

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

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

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

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

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

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

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

Instantly, Appellant claims that the evidence met this high standard 

because the evidence strongly suggests that Appellant provided the services 

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

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

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

common sense notion that an employee must accurately report the actual 

hours worked. 

The jury was entitled to weigh all evidence presented in considering 

Appellant’s alternative theory as set forth in her own testimony. 
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Commonwealth v. Sanders, 627 A.2d 183, 187-88 (Pa.Super. 1993). 

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

the verdicts were not against the weight of the evidence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2017