J-A04007-22

2022 PA Super 99

COMMONWEALTH OF PENNSYLVANIA

v.

PATRICIA FARKAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2070 EDA 2020

Appeal from the Judgment of Sentence Entered October 7, 2020

In the Court of Common Pleas of Northampton County Criminal Division 

at No(s): CP-48-CR-0001997-2019

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY LAZARUS, J.: FILED MAY 27, 2022

Patricia Farkas appeals from the judgment of sentence, imposed in the 

Court of Common Pleas of Northampton County, after she was convicted of 

Medicaid Fraud—Submission of False Information (F-3),

1 and sentenced to 4-

23 months’ imprisonment, a probationary term of 37 months, and restitution 

in the amount of $14,513.71. After careful review, we affirm. 

In November 2015, Farkas, a licensed practical nurse (LPN), worked for 

Medicaid, in a “participant[-]directed services” program (Program), as an inhome caregiver for her elderly father, Walter Farkas (Walter/participant). 

Walter suffers from early-onset Alzheimer’s and requires 24-hour-a-day 

supervision. The Program allows family members to be compensated for 

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1 62 P.S. § 1407(a)(1). Farkas was also charged with Medicaid Fraud—

Misrepresented Services (Count II), id. at § 1407(a)(7), and Theft by 

Deception—False Impression (Count III), 18 Pa.C.S.A. § 3922(a)(1). She was 

acquitted of these two offenses.
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providing care within a patient’s home, rather than having the patient be cared 

for at an institutional facility. 

Farkas, as a direct-care worker (DCW), was employed by and supervised 

by Services Access Management (SAM), an agency that coordinates care 

services for elderly, infirm adults in the community. In accordance with an

Individual Service Plan (Plan), which set forth specific goals tailored to 

Walter’s needs, Farkas was originally authorized to work up to 12 hours a day, 

for an 84-hour2 work week.3 Farkas’ boyfriend, John Murray, was designated 

as a “common law employer” (CLE)—a person who oversaw, approved and 

submitted Farkas’ timesheets.

4

 In addition to taking care of Walker, Farkas 

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2 The remaining 12 hours of daily care were provided by other family members 

who were not compensated. 

3 Soon after she started working for the Program, a service coordinator 

supervisor advised Farkas that her weekly hours should be decreased (initially 

to 70 and then later recommended 56) to prevent “burnout,” and that another 

DCW should be registered to cover the remaining weekly hours. When Farkas 

failed to reduce her weekly hours, Farkas was no longer approved to work 

with a participant directed services program, but was offered only agency 

model services, where her hours are monitored by an agency. In December 

2017, Comforting Home Care (CHC), a non-medical personal care agency, 

employed Farkas as Walter’s caregiver. N.T. Jury Trial, 9/1/20, at 136-38. 

Farkas’ signed employment agreement with CHC specifically required her to 

use the client’s telephone to “clock in/clock out [u]pon [her] arrival and 

departure at the client’s home. Commonwealth’s Exhibit 11, at [3]. This 

record represented Farkas’ “official time sheet[,] which [was] used to create 

[her] payroll.” Id. See also N.T. Jury Trial, 9/1/20, at 146-47. Farkas 

worked for CHC from December 1, 2017 to September 14, 2018. Id. at 150.

4 An individual who approves a Program worker’s time sheets is known as a 

CLE. N.T. Jury Trial, 8/31/20, at 89. Although it was intimated at trial that 

Dawn Mulvihill replaced Murray as Farkas’ CLE in June of 2017, Mulvihill 

(Footnote Continued Next Page)
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also worked at other non-Medicaid healthcare facilities, a practice that was 

not prohibited by the Program. 

Special Agent Ryan King (Agent King) of the Medicaid Fraud Control 

Section of the Pennsylvania Office of the Attorney General investigated

allegations that Farkas was “submitting more hours than what was authorized 

for her, and[,] on two occasions during home visits with [SAM,] she was not 

present [at Walters’ home,] yet billed as though those services were 

provided.” N.T. Jury Trial, 9/1/20, at 177. Farkas’ time sheets reflected that 

she worked her 12-hour daily shifts for Walter from 7:00 a.m. until 7:00 p.m. 

Agent King compiled Farkas’ records from the other employers she worked 

for; those records showed that Farkas was collecting income for other jobs 

during the same 7:00 a.m. to 7:00 p.m. period that she allegedly was caring 

for Walter. Thus, Agent Ryan presumed that Farkas was double billing by 

submitting timesheets to the Program and being compensated by Medicaid for 

hours when she was working elsewhere.

Farkas was charged with Medicaid Fraud—Submission of False 

Information (Count I), Medicaid Fraud—Misrepresented Services (Count II), 

and Theft by Deception—False Impression (Count III). A three-day jury trial 

was held from August 31 through September 2, 2020. Teresa Reeser (Public 

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testified that she never cared for Walter or acted as a CLE for Farkas. Id., 

9/1/20, at 117-20.
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Partnerships’ (PPL)

5 employee),6 Emily Laurent (SAM employee), Dawn 

Mulvihill (Farkas family friend), Margaret Skibinski (COO and Director of 

Nursing for Comforting Home Care), Agent King, John Murray, and Farkas 

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5 PPL provided financial management services to Walter. After PPL receives a 

direct-care worker’s timesheet, it directly bills Medicaid for the amount it pays 

to the direct-care worker as well as the employer costs, which would include 

FICA, Social Security matching, federal unemployment, state unemployment, 

and workers’ compensation. N.T. Jury Trial, 8/31/20, at 80. 

6 At trial, Teresa Reeser testified that as a direct-care worker (DCW), Farkas 

could create her own template for a weekly time sheet. Reeser testified that 

when the DCW fills out the time sheet, she “needs to ensure that the . . . in[-

]and[-]out time accurately represents the time for service is provided on those 

dates.” N.T. Jury Trial, 8/31/20, at 71. Specifically, Reeser testified that the 

DCW must “confirm[] the accuracy of the time sheet [and] submit[] the time 

sheet to the common law employer for approval [and then t]he common law 

employer must log into the [PPL web] portal, review the time sheet, verify 

that those were the dates and times and hours that services were provided[,] 

and then approve the time sheet.” Id. at 72. “Once the common law 

employer approves the time sheet, it gets submitted into [the] PPL system for 

processing.” Id. While the system automatically populates the total number 

of weekly hours a DCW has worked, the total number is based on the in and 

out times that the DCW has specifically input on her time sheet. Id. at 73. 

Finally, before the system will permit a DCW to submit her timesheet, she has 

to check a box that says her “time entry accurately represents the allotted 

hours and approved rate of pay from the most recent individual budget. 

Misuse of the funds provided by Medicaid for services is considered Medicaid 

fraud.” Id. at 74.

Resser also testified that, as a DCW, Farkas was required to enter her own 

“in” time and “out” time and that the times must accurately represent the 

hours during which she was providing the services for Walter. N.T. Jury Trial, 

8/31/20, at 66-67, 70. Finally, Resser testified that even using a template 

provided by the billing portal, a DCW would still have to accurately designate 

her exact hours worked, id. at 70, as the “in and out times” are not 

prepopulated, but are directly input by the DCW. Id.
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testified at trial.7 After the jury retired, the judge received a written request 

to have “all exhibits of evidence” sent back with the jury during deliberations. 

N.T. Jury Trial, 9/2/20, at 155. The trial judge granted the jury’s request and 

permitted all 21 of the Commonwealth’s exhibits admitted at trial to go back 

with the jury. Id. at 165-66. Farkas, however, objected to Commonwealth 

Exhibits 19-21 being sent back with the jury, arguing that they were akin to

expert reports. See id. at 158-66. The jury ultimately convicted Farkas of 

Count I and acquitted her of Counts II & III. 

On October 7, 2020, Farkas was sentenced to 4-23 months’ 

imprisonment,8 a probationary term of 37 months, and restitution in the 

amount of $14,513.71. The court calculated the restitution9 owed by adding 

up the total amount Farkas was paid by Medicaid for overlapping hours—hours 

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7 Two character witnesses, Glenda Gerena and Peggy Jean McGuire Kuhns, 

testified at trial with regard to Farkas’ reputation as an honest individual.

8 The crime, graded as a third-degree felony, had an offense gravity score 

(OGS) of five and a prior record score (PRS) of zero. According to the 

Sentencing Guideline matrix, a standard-range sentence for such an offense 

is R[estorative] S[antions]-nine months. As a third-degree felony, the 

statutory maximum sentence would be seven years in prison and a fine of 

$15,000. Although not stated, we note that there may be collateral 

consequences to this conviction which will implicate her ability for future 

employment. Those are not part of the record and we do not consider them 

here. 

9 This is not a case where the jury was left to determine the amount of 

restitution that was owed, despite evidence that Farkas worked many hours 

for Walter, but just not necessarily daily between 7 AM to 7 PM. The jury 

apparently either rendered a compromise verdict, acquitting her of two of the 

three charges, or determined that Farkas’ testimony was not credible.
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when Farkas was not actually providing care for Walter under the Program, 

but was billing for those times.

10

 Farkas was 

At sentencing the trial court noted the following:

According to the [presentence investigation report], it indicates 

that the Commonwealth is seeking restitution in the amount of

$14,513.71, and is seeking that money be paid[—]they have 

actually made a request, and that was noted and provided to you 

before trial that they were seeking under the [s]tatute, the 

Medicaid Fraud Statute, notice of intent to seek treble damages, 

which is meaning not to just . . . order you to pay back the 

[$]14,500[,] but three times that amount as a penalty. So that’s 

what they’re requesting at this time. I will note that for the 

record.

* * *

I’m not going to fine you in this case, but I am going to order 

restitution in the full amount of $14,513.71. I am not going to 

treble those damages. I’m not going to multiply those damages 

in any fashion. I will keep it basic. It’s a sizable amount of money 

to begin with, and you’re going to need to get that paid back within 

the period of time provided for here.

You will also be ordered to pay with that the statutory interest that 

would be accumulated under the section regarding the amount 

and the time that it takes for you to pay that back. I am going to 

order that you pay costs and fees in the sentence of this case as 

well. And I will make [you] eligible for work release. 

N.T. Sentencing, 10/7/20, at 22-23.

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10 Although unexplained, on at least one occasion Farkas reportedly 

documented and was paid for working more than 24 hours in a given day. 

See N.T. Jury Trial, 9/1/20, at 211 (reporting for 24-hour day, Farkas’ time 

sheet showed she worked total of 30 hours and 14 minutes).
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Farkas filed a timely notice of appeal and court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. She presents 

the following issues for our review:

(1) Did the trial court commit reversible error by allowing the 

Commonwealth’s expert report to be shared with the jury 

during their deliberations?

(2) Did the trial court impose an illegal sentence where the 

amount of restitution ordered was neither a direct result of 

[Farkas’] criminal conduct, nor was it supported by the 

record evidence?

Appellant’s Brief, at 4 (unnecessary capitalization omitted). 

In her first issue on appeal, Farkas contends that the trial court abused 

its discretion in permitting the Commonwealth’s Exhibit 19 (spreadsheet 

compiling hours Farkas reported at each job in stated time period), Exhibit 20

(displaying ten detailed examples of overlapping work hours and showing 

reproduced time sheets from non-Medicaid employers alongside Medicaid 

work hours Farkas reported), and Exhibit 21 (compiling instances where 

Farkas purportedly worked more than 24 hours in one day) to be sent back 

with the jury during deliberations. She argues that it was reversible error to 

allow the jury to receive the exhibits because they essentially amounted to a 

summation of the Commonwealth’s expert’s opinions and, thus, the material 

unduly influenced the jury. We disagree.

The determination as to whether an exhibit should be permitted to go 

out with the jury during deliberations “is within the sound discretion of the 

trial judge, and such decision will not be overturned absent an abuse of 
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discretion.” Commonwealth Parker, 104 A.3d 17, 25 (Pa. Super. 2014) 

(citations omitted). Pennsylvania Rule of Criminal Procedure 646 provides, in 

relevant part, that “[u]pon retiring[,] the jury may take with it such exhibits 

as the trial judge deems proper.” Pa.R.Crim.P. 646(A). 

Here, the Commonwealth’s three exhibits (19-21) contained no expert 

opinion; they merely collected the same facts (number of hours worked and 

overlapping hours) included in the Commonwealth’s other exhibits. Moreover, 

even if the exhibits had contained expert opinions, expert reports are not 

specifically precluded from jury deliberations under Rule 646. See 

Pa.R.Crim.P. 646(C) (rule specifically prohibits jury to have transcript of trial 

testimony, copy of defendant’s written or recorded confession, copy of 

information or indictment, and written jury instructions), but see id. at (B) 

(jury may have written copies of portion of judge’s charge on elements of 

offenses, lesser included offenses, and any defense upon which jury has been 

instructed). Because the three Commonwealth exhibits facilitated the jury’s 

synthetization of pertinent information necessary to arrive at a verdict on the 

issue of Medicaid fraud, we do not find that the trial court abused its discretion 

by permitting the exhibits to go to the jury during deliberations. Parker, 

supra.

In his second issue, Farkas asserts that the trial court’s restitution 

sentence is illegal because the Commonwealth did not prove a “loss” directly 

caused by the alleged “false information” Farkas provided to Medicaid. 

Specifically, Farkas argues that because the jury acquitted her of Count II 
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(misrepresented Medicaid services) and Count III (theft by deception), see 

supra at n.1, the jury did not believe that the Commonwealth suffered any 

attendant loss. Accordingly, she asserts that because the “false information” 

was not causally connected to the Commonwealth’s “property,” restitution 

should not have been ordered as part of her sentence.

To support her restitution argument, Farkas cites to case law that 

discusses restitution imposed as part of a direct sentence under 18 Pa.C.S.A.

§ 1106(a) of the Crimes Code.11 See Harriott, supra (compiling caselaw 

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11 Section 1106 provides:

§ 1106. Restitution for injuries to person or property.

(a) General rule. — Upon conviction for any crime wherein 

property has been stolen, converted or otherwise unlawfully 

obtained, or its value substantially decreased as a direct 

result of the crime, or wherein the victim suffered personal 

injury directly resulting from the crime, the offender shall 

be sentenced to make restitution in addition to the 

punishment prescribed therefor.

18 Pa.C.S.A. § 1106(a). “With regard to appeals stemming from the 

imposition of restitution as a condition of the judgment of sentence under 

section 1106, restitution may be imposed only for those crimes to property or 

person where the victim suffered a loss that flows from the conduct that forms 

the basis of the crime for which the defendant is held criminally accountable.”

Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999) (internal 

citations and quotations omitted). Moreover, 

[i]n computing the amount of restitution, the court shall consider 

the extent of injury suffered by the victim and such other matters 

as it deems appropriate. Because restitution is a sentence, the 

amount ordered must be supported by the record; it may not be 

speculative or excessive. The amount of a restitution order is 

(Footnote Continued Next Page)
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discussing section 1106’s statutory language “directly resulting from the 

crime” requires causal connection between crime and loss). Instantly, Farkas 

was convicted of the following offense under the Public Welfare Code:

12

§ 1407. Provider prohibited acts, criminal penalties and 

civil remedies

(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,[13]

or to knowingly submit false information for the purpose of 

obtaining authorization for furnishing services or merchandise 

under medical assistance.

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limited by the loss or damages sustained as a direct result of 

defendant’s criminal conduct and by the amount supported by the 

record.

Id. “Due to the language ‘directly resulting from the crime,’ restitution is 

proper only if there is a direct causal connection between the crime and the 

loss.” Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007). 

“The sentencing court applies a ‘but for’ test in imposing restitution; damages 

which occur as a direct result of the crimes are those which would not have 

occurred but for the defendant’s criminal conduct.” Commonwealth v. 

Wright, 722 A.2d 157, 159 (Pa. Super. 1998).

12 See Title 62, Chapter 1, Article XIV (Fraud and Abuse Control), §§ 1401-

1418.

13 Initially, Farkas was authorized to work an 84-hour work week. Because 

Farkas’ weekly submitted hours did not exceed 84 hours, she arguably did not 

purport to obtain greater compensation than that to which she was legally 

entitled.
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62 P.S. § 1407(a)(1) (emphasis added). “The penalties for violating the 

provisions of the Medicaid Fraud and Abuse Control Statute are set forth at 62 

P.S. § 1407(b)(1).” Commonwealth v. Lurie, 569 A.2d 329, 332 (Pa. 

1990).14 Subsection 1407(b)(1) provides:

[(b)](1) A person who violates any provision of subsection (a), 

excepting subsection (a)(11), is guilty of a felony of the third 

degree for each such violation with a maximum penalty of fifteen 

thousand dollars ($15,000) and seven years[’] imprisonment. A 

violation of subsection (a) shall be deemed to continue so long as 

the course of conduct or the defendant’s complicity therein 

continues; the offense is committed when the course of conduct 

or complicity of the defendant therein is terminated in accordance 

with the provisions of 42 Pa.C.S. § 5552(d) (relating to other 

offenses). Whenever any person has been previously convicted 

in any state or Federal court of conduct that would constitute a 

violation of subsection (a), a subsequent allegation, indictment or 

information under subsection (a) shall be classified as a felony of 

the second degree with a maximum penalty of twenty-five 

thousand dollars ($25,000) and ten years[’] imprisonment.

62 P.S. § 1407(b)(1). In addition to the penalties provided under subsection 

(b), 

the trial court shall order any person convicted under 

subsection [1407](a):

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14 In Lurie, our Supreme Court stated that:

The purpose of the Medicaid Fraud and Abuse Control Act is “to 

eliminate fraudulent, abusive[,] and deceptive conduct and 

practices that may occur.” Introductory paragraph of Act 1980, 

July 10, P.L. 493, No. 105. In speaking of “fraudulent, abusive 

and deceptive” conduct, the legislature most certainly is referring 

to willful conduct as opposed to recklessness or negligence.

Id. at 331. Thus, if Farkas’ conduct were proven to be reckless and/or 

negligent, it would not rise to the level of intent necessary to prove fraud. Id.
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(i) to repay the amount of the excess benefits or 

payments plus interest on that amount at the 

maximum legal rate from the date payment was made 

by the Commonwealth to the date repayment is made 

to the Commonwealth[.]

Id. at § 1407(b)(2)(i) (emphasis added). Thus, it is mandatory under section 

1407(b)(2)(i) to order a defendant, convicted under section 1407(a), to repay 

any excess payments he or she has fraudulently acquired, plus interest on 

that amount, to the Commonwealth. 

In Commonwealth v. Coleman, 905 A.2d 1003 (Pa. Super. 2006), a 

defendant, convicted of Medicaid Fraud and related charges, claimed on 

appeal that the trial court had imposed an illegal sentence of restitution 

because neither the Department of Public Welfare nor the Attorney General 

were “victims” as defined in section 1106 of the Crimes Code. Our Court 

concluded that the defendant’s argument was “misplaced, as there exists 

independent statutory authority to require the payment of restitution to the 

Department of Public Welfare.” See 62 P.S. § 1407(b)(2)(ii). 

Just as in Coleman, Farkas’ argument is misplaced. As the trial court 

notes, the restitution Farkas was ordered to pay is “specifically authorized for 

any conviction arising from the Medicaid Fraud statute.” Trial Court Opinion, 

4/20/21, at 3. We agree and, thus, find her argument meritless. See Lurie, 

supra.

15

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15 This case presents a real conundrum. On the one hand, testimony indicates 

that Walter was well taken care of by family and friends and was not left to 

(Footnote Continued Next Page)
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Order affirmed.16

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/27/2022

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the vagaries of care that might or might not have been as good in a facility. 

Although, admittedly, Farkas sometimes left Walter alone at home. See N.T. 

Jury Trial, 9/2/20, at 89-90 (Farkas admitting “on certain occasions” Walter 

had to be left alone when she had to work other overnight jobs), but see id.

at 8-9, 12 (Farkas testifying Walter was never left alone). On the other hand, 

this case provides a clear example of how easily fraud can occur in this setting 

and the dangers of not reporting accurately actual hours worked as required 

by the statute. Due to our resolution of the issues on appeal, we will not opine 

on whether the Commonwealth was harmed to the extent restitution was 

claimed. It is best left to our Legislature to determine the risks v. benefits of 

home health care and how to best implement it. 

16 To the extent that Farkas’s claim can be interpreted as a sufficiency of the 

evidence argument (lacking requisite intent to commit Medicaid Fraud), we 

would find this claim waived. Farkas’ counsel acknowledged at oral argument 

that he did not raise, and, thus, preserve a sufficiency claim on appeal.