J-A06024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
OWEN ROGAL
Appellant No. 5 EDA 2014
Appeal from the Judgment of Sentence November 18, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002115-2012
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JUNE 02, 2015
Dr. Owen Rogal appeals the judgment of sentence entered November
18, 2013, in the Philadelphia County Court of Common Pleas. The trial court
sentenced Rogal to a term of one to seven years’ imprisonment after a jury
found him guilty of 31 charges, including corrupt organizations, conspiracy,
theft by deception, attempted theft by deception, and insurance fraud. 1 The
jury determined Rogal and his daughter, co-defendant Kim Rogal,
intentionally and systematically used an improper billing code to collect
higher payments from insurance companies for procedures performed in
their pain clinic. On appeal, Rogal contends (1) the evidence was insufficient
____________________________________________
1 18 Pa.C.S. §§ 911, 903, 3922, 901, and 4117(b), respectively. J-A06024-15
to support the verdict; (2) the trial court failed to act as gatekeeper when it
permitted the dual testimony of Commonwealth witness, Frank J. Dubeck,
Jr., M.D., as both a lay witness and expert witness; and (2) the court erred
in failing to determine that Rogal’s attorney operated under a conflict of
interest. For the reasons below, we affirm.
The facts underlying Rogal’s conviction are as follows. Rogal and his
daughter, Kim Rogal, owned and operated The Pain Center (“TPC”), a clinic
that specialized in performing radiofrequency surgery (“RFS”) to relieve
pain. Rogal, a dentist by trade, supervised the doctors employed by TPC
and interviewed prospective patients, while Kim Rogal was the office
manager and ran the billing department.2 Kim Rogal also developed the
computerized billing program TPC used to bill insurance companies for the
RFS procedure.
RFS is a simple, “low-risk” procedure, performed in an office suite,3
that uses “high-intensity heat” to reduce pain. N.T., 4/23/2013, at 20, 89.
At TPC, a doctor would apply a local anesthetic to numb the area on the
patient, and then insert a needle, guided by a fluoroscope,4 to administer ____________________________________________
2 Kim Rogal also owned the building out of which TPC operated. N.T., 4/25/2013, at 40. 3 The RFS performed at TPC did not require either a sterile room or an anesthesiologist. N.T., 4/23/2014, at 22, 111. 4 A fluoroscope is a two dimensional x-ray machine. Id. at 31.
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heat to a small area to stop the pain. See id. at 31-38. The doctors
working at TPC did not receive any specialized training, but rather, simply
observed other physicians performing RFS for a few days before attempting
the procedure themselves. Id. at 15. Dr. John Paul Palmerio, who worked
at TPC from November of 2004 until March of 2012, testified the doctors at
TPC “worked strictly on bone” to relieve pain in the “cervical spine, thoracic
spine, lumbar spine, hips, on a knee, or on a[n] elbow[.]” Id. at 23.
Since 1990, TPC has been billing insurance companies for the RFS
procedure using standard billing code 61790 (“CPT Code 61790”).5 In
layman’s terms, CPT Code 61790 refers to “destroying tissue with precise
locational control by sticking something through the skin that destroys the
nerve of the gasserian ganglion.” N.T., 4/22/2013, at 75. The gasserian
ganglion, located in the “cranial vault,” is “one of the 12 cranial nerves in the
brain,” and “supplies sensation to the face and taste to the anterior two-
thirds of the tongue.”6 Id. at 69. The procedure described in CPT Code ____________________________________________
5 The Current Procedural Terminology (“CPT”) Manual contains standardized billing codes for all medical procedures, which enables insurance companies to process claims electronically. N.T., 4/22/2013, at 50-51. The CPT manual is created by physicians and updated annually. Id. at 52. Dr. Dubeck, an expert in medical billing and coding, testified that insurance companies take the code submitted by the medical professional “at face value” so that most claims are processed by the computer and reimbursements are paid within a few weeks. Id. at 59. 6 Dr. John Lee, an expert in neurosurgery, testified the cranial nerves are “a very intricate anatomy and you spend many years studying this anatomy to operate on it safely.” N.T., 4/25/2013, at 14.
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61790 is a “very delicate” procedure which is usually performed by a
neurosurgeon in an operating room with the assistance of an
anesthesiologist. Id., at 70; N.T., 4/25/2013, at 21. It is used as a last
resort to treat patients with trigeminal neuralgia, “a debilitating facial pain.”7
N.T., 4/22/2013, at 88. While the procedure described in CPT Code 61790 is
similar to the RFS procedure performed at TPC, that is, a doctor sticks a
needle through the skin to destroy nerves, the doctors at TPC never
performed procedures near the brain.8
Nevertheless, TPC always billed its low-risk RFS procedure using CPT
Code 61790, which had a reimbursement value of $4,800. N.T., 4/23/2013,
at 51, 54-55. Whereas, the typical reimbursement value for the actual
procedure performed at TPC was $300 to $400. Id. at 109. During the
course of the subsequent investigation, the Commonwealth determined that
TPC billed 12 insurance companies in excess of $5,000,000.00 under CPT
7 Dr. Lee explained the pain suffered by patients with trigeminal neuralgia is so severe that “[s]ome people have even termed it the suicide pain” because it almost drives patients to suicide. N.T., 4/25/2013, at 11. 8 Coding expert, Dr. Dubeck, explained the CPT Code Manual specifically instructs physicians to “accurately identify the service performed” and not to “merely approximate[] the service performed.” N.T., 4/22/2013, at 79. The Manual states “[i]f no such specific code exists, then report the service using the appropriate unlisted procedure or service code.” Id. To that end, Dr. Dubeck testified TPC committed a “direct violation of the coding instructions” when they billed their RFS procedure at CPT Code 61790 simply because their procedure “met four out of five elements of the code[.]” Id. at 102.
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Code 61790.9 N.T., 4/24/2013, at 108. Furthermore, although the
Commonwealth’s expert neurosurgeon testified it would be rare for a patient
to undergo the procedure at CPT Code 61790 more than once, TPC billed
insurance companies for as many as 78 treatments for the same patient.
See N.T., 4/24/2013, at 116-117; N.T., 4/25/2013, at 31.
Eventually, the insurance companies began flagging claims submitted
by TPC. See N.T., 4/22/2014, at 123 (Blue Cross Excellus); N.T.
4/24/2013, at 20 (Horizon Blue Cross Blue Shield of New Jersey); 75
(Aetna). In 2005, both Horizon and Aetna notified TPC that its use of CPT
Code 61790 was improper for the procedure actually performed. Ann
Browne, Senior Investigator for Horizon, testified that after meeting with
TPC’s attorney, Kevin Rafeal, she obtained 12 peer reviews, per his request,
which all confirmed that CPT Code 61790 was not appropriate for the
procedure performed at TPC. N.T., 4/24/2012, at 15. Although she
informed Rafeal of the coding problem in 2006, TPC continued to bill Horizon
for CPT Code 61790, using the individual physician’s taxpayer ID numbers
until June of 2010. Id. at 22. Similarly, Elizabeth Saragusa, fraud
investigator for Aetna, testified that Aetna began flagging TPC claims in
2004. Id. at 75.
9 The records revealed, however, that the insurance companies paid only $1.8 million in reimbursements for the amount billed. N.T., 4/24/2013, at 109.
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Dr. Stuart Kaufmann began working for TPC in late 2004. About a
year later, he was contacted by a Blue Cross representative, who informed
him of the billing code discrepancy. N.T., 4/23/2013, at 101. Dr. Kaufmann
testified at trial that he was angry because he feared he might lose his
medical license. Id. at 102. He stated he confronted Rogal who responded
as follows:
He tried to reassure me that he had really good attorneys who said that the procedure [was] billed correctly, and not to worry, and I am making something out of nothing, that insurance companies for years have been trying to take him down. It was just more of a witch hunt is basically what he told me.
Id. at 103. Dr. Kaufmann then spoke with TPC’s attorney, Kevin Rafeal,
regarding his concerns about the legality of the code. After that
conversation, Dr. Kaufmann left TPC.
In February of 2005, another TPC physican, Dr. John Paul Palmerio,
received a similar letter from Highmark Insurance Company questioning his
submission of bills using CPT Code 61790. Id. at 52, 57. Dr. Palmerio
spoke with Kim Rogal the next day. She told him “not to worry” because
“[t]hese people are not allowed to do what they are doing.” Id. at 60. She
also told him she was “turning it over to the lawyers who [would] write
[him] a letter regarding this matter.” Id.
Dr. Dubeck, who was medical liaison to the fraud unit for Blue Cross
Excellus, testified that his company was notified by another Blue Cross plan
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to take a “closer look” at the TPC bills.10 N.T., 4/22/2013, at 67. His
investigation revealed the billing code TPC used was for “brain surgery,” but
the procedure actually performed “was nowhere near the brain.” Id. at 68.
Blue Cross Excellus began flagging TPC’s claims in September of 2009. In
response to an appeal by TPC, Dr. Dubeck sent Kim Rogal a detailed letter
on December 18, 2009, in which he explained the use of CPT Code 61790 for
the RFS procedure performed at TPC was incorrect and provided two
alternative codes for the procedure performed. Id. at 170-173. However,
despite having advised Kim Rogal “in no uncertain terms … not to bill
[Excellus] using the code 61790 ever again[,]” Execellus received at least six
subsequent bills from TPC in 2010 with CPT Code 61790. Id. at 174-175.
Additionally, in late 2009, the Philadelphia District Attorney’s Office
received a referral regarding TPC’s fraudulent billing practices from the
National Insurance Crime Bureau. After further investigation, District
Attorney Detective Karl Supperer secured a search warrant for TPC, which
he executed on November 22, 2010. A 15-month grand jury investigation
followed, after which the Commonwealth charged Rogal and his daughter
with multiple crimes, including corrupt organizations, conspiracy and
insurance fraud.11 On February 16, 2012, the trial court granted the ____________________________________________
10 As noted supra, Dr. Dubeck testified as both an expert and lay witness. 11 Both Rogal and Kim Rogal exercised their 5th Amendment rights, and chose not to testify before the investigating grand jury. N.T., 12/14/2011, (Footnote Continued Next Page)
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Commonwealth’s motion to bypass a preliminary hearing and proceed to
trial.
On May 1, 2013, a jury returned a verdict of guilty on all charges
against both Rogal and Kim Rogal. Prior to sentencing, Cheryl J. Sturm,
Esq., entered her appearance on behalf of Rogal. On October 22, 2013,
counsel filed a motion for extraordinary relief challenging, inter alia, the
sufficiency of the evidence, several evidentiary rulings and a potential
conflict of interest regarding trial counsel’s representation. The trial court
denied the motion without a hearing on November 5, 2013. On November
18, 2013, the court imposed concurrent sentences of one to seven years’
incarceration on each of Rogal’s 31 convictions.12 Rogal filed a timely post
sentence motion and a motion for modification of sentence, both of which
the trial court denied without a hearing. This timely appeal follows. 13 _______________________ (Footnote Continued)
at 10-11. They were represented by the same attorney during the grand jury proceedings, but retained separate counsel after the charges were filed. See N.T., 3/7/2012. 12 The court sentenced Kim Rogal to concurrent terms of 11½ to 23 months’ of house arrest, followed by five years’ reporting probation on each of her 31 convictions. N.T., 11/18/ 2013, at 58. 13 The trial court did not order Rogal to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the court’s Rule 1925(a) opinion addressed only Rogal’s request for bail pending appeal. Thereafter, the Commonwealth filed an application requesting this Court remand the appeal to allow the trial court to file an opinion addressing the claims raised by Rogal in his appellate brief (“Rogal’s Principal Brief”). We granted the Commonwealth’s request on May 21, 2014, and directed Rogal to file a Rule 1925(b) statement. Upon remand, Rogal filed a lengthy (20- (Footnote Continued Next Page)
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In his first issue on appeal, Rogal challenges the sufficiency of the
evidence supporting his convictions of corrupt organizations and conspiracy.
With respect to the corrupt organizations charge, Rogal argues that there is
no evidence he committed a predicate act of racketeering. Further, with
respect to the conspiracy charge, he contends he was found guilty by
association. Specifically, Rogal asserts there was no evidence he had a
shared criminal intent with his daughter to defraud the insurance companies.
Rather, he argues, the evidence demonstrates he had no involvement in the
billing process, which was handled exclusively by Kim Rogal, and the jury
improperly inferred a conspiracy based solely on their father/daughter
relationship. He also maintains the remaining convictions were tarnished by
the stigma of the corrupt organizations charge.
Our review of a challenge to the sufficiency of the evidence is well-
established.
We review the evidence in the light most favorable to the verdict winner to determine whether there is sufficient evidence to allow the jury to find every element of a crime beyond a reasonable doubt.
In applying the above test, we may not weigh 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 _______________________ (Footnote Continued)
page) concise statement, and the trial court filed an opinion in response. Thereafter, this Court granted Rogal’s request to file a Supplemental Opening Brief in response to the court’s opinion (“Rogal’s Supplemental Brief”).
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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 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 evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015)
(citation omitted).
The crime of corrupt organizations is codified at Section 911 of the
Crimes Code, which provides, in relevant part:
It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.
18 Pa.C.S. § 911(b)(3). It is also unlawful for a person to conspire to violate
subsection (b)(3). Id. at § 911(b)(4). Subsection (h) defines “enterprise”
as “any … corporation, association or other legal entity, … engaged in
commerce and includes legitimate as well as illegitimate entities and
governmental entities.” Id. at § 911(h)(3). Further, the subsection lists
numerous crimes that constitute “racketeering activity,” including theft and
insurance fraud, and defines a “pattern of racketeering activity” as “a course
of conduct requiring two or more acts of racketeering activity one of which
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occurred after the effective date of this section.” Id. at §§ 911(h)(1),
(h)(4).
With regard to Rogal’s conspiracy conviction, we note:
To sustain a conviction for criminal conspiracy, the Commonwealth must establish the defendant: 1) entered into an agreement to commit or aid in an unlawful act with another person or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the conspiracy. The conduct of the parties and the circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. The conspiratorial agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode.
Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super. 2013)
(citation and internal punctuation omitted), appeal denied, 81 A.3d 75 (Pa.
2013).
Here, the trial court concluded there was sufficient evidence to support
Rogal’s convictions beyond a reasonable doubt. First, the court detailed the
evidence demonstrating “a patent dissimilarity” between the “simple, low
risk, pain relief procedure” performed at TPC, and the “brain surgery” billed
at CPT Code 61790. Trial Court Opinion, 8/28/2014, at 3-4. The RFS
procedure performed at TPC was described as “relatively straightforward and
safe.” Id. at 3. Most of TPC’s physicians began performing the procedure
after less than a week of observation. Id. It required no special training, no
anesthesiologist, and no sterile room. Id. at 3-4. Conversely, the
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procedure billed at CPT Code 61790 was within the brain surgery billing
category, and performed “almost exclusively by neurosurgeons.” Id. at 3.
Expert neurosurgeon Dr. Lee testified that the procedure required “extensive
training” and required both an attending anesthesiologist and sterile
operating room. Id. The trial court also noted that the “patent dissimilarity”
between the two procedures is even more evident when considering the
reimbursement value. Id. at 4. CPT Code 61790 had a reimbursement
value of approximately $4,800, while the typical reimbursement value for
the RFS procedure performed at TPC was approximately $300 to $400. Id.
at 4-5, citing N.T., 4/23/2013, at 51, 54, 109.
Next, the court cited to the evidence which “may have reasonably
been interpreted by the jury as suggesting [Rogal’s] intimate knowledge of
[TPC’s] billing practice as well as his control and complicity therein.” Id. at
4. First, Rogal described himself as “the individual who ran the Pain Center.”
Id., citing N.T., 4/23/2013, at 13. When Dr. Kauffman confronted him in
2005 with the letter he had received from an insurance company questioning
the billing code, Rogal “neither expressed confusion nor directed the inquiry
to [Kim Rogal].” Id. at 4. Rather, the court explained:
[Rogal] declared that the billing was being handled correctly, further explaining that insurance companies have been on a witch hunt, contesting his billing method for years.
Id., citing N.T., 4/23/2013, at 103. Second, the trial court noted that when
Dr. Palmerio confronted Kim Rogal with a similar letter, her “response
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mirrored that of [Rogal], assuring Dr. Palmerio that his concern was
misplaced.” Id. at 4, citing N.T., 4/23/2013, at 50. The court opined:
Their shared retort when challenged about billing supported a reasonable inference that [Rogal and Kim Rogal] shared the conspiratorial intent to fraudulently bill rather than, as [Rogal] maintains, demonstrating that [Kim Rogal] was acting as a rogue employee.
Id. at 4.
Finally, the trial court noted “the expression of uncertainty by [Rogal’s]
attorney regarding the propriety of [CPT C]ode 61790” who described the
billing to Dr. Kauffman as “an ambiguous grey area.” Id. at 5, citing N.T.,
4/23/2013, at 115. The court opined the jury may have interpreted Rogal’s
staunch support of the use of CPT Code 61790 in contrast to his attorney’s
uncertainty “as corroborative of [Rogal’s] illicit intent.” Id. at 5. Based
upon the foregoing, the trial court found the evidence was sufficient to
support a guilty verdict on the charges of corrupt organizations and
conspiracy.
Our review of the record supports the trial court’s decision. First, with
regard to his corrupt organizations charge, Rogal argues there was no
evidence he committed “even one predicate act of racketeering.” Rogal’s
Principal Brief at 12. Rather, he contends, the evidence demonstrated that
Kim handled all the billing and developed the computerized billing system.
However, the racketeering statute proclaims it unlawful to participate
“directly or indirectly” in a pattern of racketeering activity. 18 Pa.C.S. §
911(b)(3) (emphasis supplied). Here, the Commonwealth presented
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evidence that indirectly linked Rogal to the racketeering activity. For
example, Rogal characterized himself as “the gentleman who ran The Pain
Center.” N.T., 4/23/2013, at 13. Moreover, based on his response to Dr.
Kauffman’s concern regarding the billing, the jury could infer that Rogal was
clearly aware of the billing issue, and, in particular, the insurance
companies’ objections. See id. at 103. It strains credulity to believe that
Rogal, who was clearly the “doctor” in charge of the practice and director of
the clinic, did not, at the very least, acquiesce to the improper billing
practices when TPC continued to bill insurance companies at a
reimbursement rate ten times the value of the procedure even after being
explicitly instructed to stop doing so by the insurance companies.
Furthermore, Rogal’s attempt to hide behind the advice of his attorney is
similarly unavailing when two doctors in his practice both testified that a
reimbursement value of $4,800 for the procedure they were performing was
outrageous. See id. at 73, 109-110. Indeed, Rogal’s practice was receiving
reimbursements ten times their value and billing for multiple procedures on
a single patient when the Commonwealth’s expert neurosurgeon testified he
would rarely perform the procedure at CPT Code 61790 even twice.
Accordingly, we find the Commonwealth presented sufficient evidence for
the jury to conclude that Rogal conspired with Kim to seek reimbursements
for the RFS procedure at a much higher value than the procedure warranted,
and therefore, either directly or indirectly, participated in a pattern of
racketeering activities.
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With respect to his conspiracy conviction, Rogal contends the evidence
established “nothing more than guilt by association.” Rogal’s Principal Brief
at 16. Specifically, he argues the jury inferred his guilt based solely on his
father/daughter relationship with Kim, when “[t]he established facts indicate
that [Kim] acted alone when she took it upon herself to submit bills using
CPT Code 61790, and took it upon herself to defend the use of Code 61790.”
Id. at 21.
Again, we agree with the trial court that “the jury was presented with
evidence beyond merely the familial relationship to infer a conspiratorial
agreement.” Trial Court Opinion, 8/28/2014, at 5. Rogal was the person
who “ran” TPC. N.T., 4/23/2013, at 13. Although Kim handled the billing
procedures, she was not a doctor. Therefore, it was reasonable for the jury
to infer that Rogal was consulted regarding any medical questions about the
billing. Moreover, Rogal was clearly aware of the insurance company
disputes, in which he defended the billing practice when confronted by Dr.
Kauffman – characterizing the dispute as an insurance company “witch
hunt”14 - and continued to approve billing under CPT Code 61790 after being
instructed by the insurance companies to stop doing so.15 Accordingly, we
find Rogal is entitled to no relief on his first issue. ____________________________________________
14 N.T., 4/23/2013, at 103. 15 As noted supra, Rogal’s attempt to place the blame on his attorneys is unavailing. He emphasizes the testimony of Drs. Kauffman and Palmerio who (Footnote Continued Next Page)
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Next, Rogal contends the trial court “abdicated [its] role as
gatekeeper” when it failed to provide the jury with contemporaneous
instructions during the dual lay/expert testimony of Commonwealth witness,
Dr. Dubeck. Rogal’s Principal Brief at 23. Rogal insists that Dr. Dubeck
testified only as an employee of Blue Cross Excellus, and not as an expert
witness, and the court should have instructed the jury as such. He argues
the court’s failure to do so “guaranteed confusion on the part of the jury.”
Id. at 24.
Preliminarily, we note that “[a] trial court has broad discretion to
determine whether evidence is admissible and a trial court’s ruling on an
evidentiary issue will be reversed only if the court abused its discretion.”
Commonwealth v. Huggins, 68 A.3d 962, 966, (Pa. Super. 2013) (citation
omitted), appeal denied, 80 A.3d 775 (Pa. 2013). Furthermore, this Court
has held that a witness may testify as both a lay witness and expert witness
during trial. As we opined in Huggins, supra:
_______________________ (Footnote Continued)
stated that both Rogal and Kim Rogal directed them to TPC’s attorney when they inquired about the billing practices. See Rogal’s Supplemental Brief at 3-4. However, as the trial court noted in its opinion, Dr. Kauffman testified TPC’s attorney told him that CPT Code 61790 was “ambiguous” and the proper code was “a grey area.” N.T., 4/23/2013, at 115. Furthermore, Dr. Kauffman testified that after this conversation with TPC’s attorney, he left his position at TPC. Id. at 103-104. Subsequently, he opened his own RFS practice, where his typical reimbursement is $300 to $400 per procedure. Id. at 109. Therefore, the jury clearly could have determined Rogal’s feigned ignorance of the billing dispute was incredible.
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[Pa.R.E.] 702 permits an expert to testify to scientific, technical or other specialized knowledge beyond that possessed by a layperson. [Pa.R.E.] 701 permits a layperson to testify in the form of an opinion, however, such testimony must be rationally based on that witness’ perceptions. Thus, an expert must have additional specialized knowledge in rendering an opinion; whereas, a lay witness must form an opinion based upon his or her rationally based perceptions. The Rules, however, do not specifically delineate that a witness must be only one or the other. Instead, the witness’ association to the evidence controls the scope of admissible evidence that he or she may offer. Furthermore, Pennsylvania Rule of Evidence 704 clearly permits both expert and lay opinion testimony on issues that ultimately must be decided by the trier of fact, in this case, the jury.
Id. at 967.
In the present case, contrary to Rogal’s assertion, Dr. Dubeck was
accepted by the trial court as “an expert on medical billing.” N.T.,
4/22/2013, at 60. Rogal did not object to Dr. Dubeck’s qualifications as an
expert witness, and therefore, he has waived any challenge to that ruling on
appeal. See Pa.R.A.P. 302.
With regard to Dr. Dubeck’s dual testimony as both a lay and expert
witness, the trial court opined:
Although Dr. Dubeck also offered non-expert testimony in the capacity of an insurance company employee, the court found that his dual testimony was easily distinguishable to the jury. [Rogal] specifically challenges an inquiry regarding a letter written by Dr. Dubeck to Kim Rogal condemning the use of code 61790 as necessitating a contemporaneous instruction. The court found that the question, “did you in no uncertain terms in writing advise Kim Rogal not to bill your health insurance company using the code 61790 ever again?” was not an inquiry implicating technical expertise, but rather straightforward, comprehensible lay testimony. [Rogal] affirmatively endorsed the question as formulated, and did not maintain any objection to it. [N.T., 4/22/2013, at 174].
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[Rogal] also challenges as confusing Dr. Dubeck’s testimony regarding the appropriateness of code 61790 when only four of the five elements (of the code) are satisfied. Id. at 102. In contrast to the above non-expert testimony, this particular inquiry seemed to clearly implicate Dr. Dubeck’s expertise. Specifically, his testimony that the Pain Center failed to accurately code the RFS treatment was based upon his citation to the procedure delineated in the coding instructions. Given that Dr. Dubeck’s expert assessment of the applicability of code 61790 was clearly articulated, the court did not find that the supplemental lay testimony elicited at trial presented an appreciable risk of jury confusion. Furthermore, the jury was instructed on the proper assessment of expert testimony as well as the evaluation of non-expert testimony. N.T. 5/1/2013 at 72- 74, 102-103.
Trial Court Opinion, 8/28/2014, at 6. We find the opinion of the trial court
appropriately addresses the claim of Rogal on appeal. Accordingly, Rogal’s
second claim is meritless.16
In his last issue, Rogal argues he was denied due process of law
because his attorney operated under a conflict of interest. Specifically, he
contends that he and Kim were represented by attorneys who practiced in ____________________________________________
16 Rogal also argues that Dr. Dubeck’s testimony “is not reasonable or rational” because he “has a bad habit of using the pronoun ‘they’ without an antecedent noun.” Rogal’s Principal Brief, at 24-25. However, Rogal does not cite to any examples of this testimony in the trial transcript, and, significantly, does not state that he objected to this testimony at trial. Therefore, this claim is waived. See Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (“We have long held that [f]ailure to raise a contemporaneous objection to the evidence at trial waives that claim on appeal.”) (citation omitted); Commonwealth v. Harris, 979 A.2d 387, 393 (Pa. Super. 2009) (“When an allegation is unsupported [by] any citation to the record, such that this Court is prevented from assessing this issue and determining whether error exists, the allegation is waived for purposes of appeal.”).
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the same law firm, and, although he waived the conflict of interest during
the grand jury proceedings, his waiver did not extend to their joint jury trial.
Further, Rogal argues that if his attorney had been conflict-free, the attorney
“would have made an argument distancing [Rogal] from Kim Rogal.” Rogal’s
Principal Brief at 34. Essentially, he claims his defense should have been to
blame Kim for the fraudulent billing practices.
When considering whether an attorney operated under a conflict of
interest, we must bear in mind the following:
[R]epresentation of co-defendants by different attorneys of the same law firm constitutes dual or joint representation. Commonwealth v. Albertson, 269 Pa.Super. 505, 410 A.2d 815 (1979). … However, dual representation is insufficient to support a finding of conflict of interest, and is not a per se violation of constitutional guarantees of effective assistance of counsel. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). To make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, but must at least show the possibility of harm. Commonwealth v. Westbrook, [400 A.2d 160 (1979)]. The law applicable to dual representation cases was delineated in Commonwealth v. Breaker, 456 Pa. 341, 344–45, 318 A.2d 354, 356 (1974):
“Our dual representation cases make several principles clear. First, ‘[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that such harm may result, furnishes the appropriate criterion.’ Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641, 643 (1962). Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because ‘dual representation alone does not amount to a conflict of interest.’ Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968); Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A.2d 356
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(1965), cert. denied, 386 U.S. 1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967). Third, ‘[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, ... but he must at least show the possibility of harm ....’ Commonwealth v. Wilson, supra [429 Pa.] at 463, 240 A.2d at 501. Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, ‘that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.’ Id. Accord, Commonwealth v. Cox, 441 Pa. 64, 69, 270 A.2d 207, 209 (1970) (plurality opinion).”
Commonwealth v. Evans, 451 A.2d 1373, 1374-1375 (Pa. Super. 1982).
Our review of the record, however, reveals Rogal was not subject to
dual representation, and, even if he was, he waived any potential conflict of
interest at the March 7, 2012, bypass hearing.
It is undisputed that Rogal and Kim Rogal were both represented by
Todd Henry, Esq., during the grand jury proceedings, and they both
executed a conflict waiver during those proceedings. After the criminal
charges were filed, the Commonwealth petitioned the court for permission to
file Bills of Information without a preliminary hearing. Commonwealth’s
Petition to File Bills of Information Without a Preliminary Hearing, 2/6/2012.
A “bypass” hearing17 was held on February 16, 2012, at which time, the trial
court granted the Commonwealth’s motion. Neither Rogal nor Kim Rogal
17 A “bypass” hearing is conducted when the Commonwealth seeks to “bypass” the requirement of a preliminary hearing. See Rogal’s Principal Brief at 3-4.
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was present for the hearing, and a new attorney, who practiced in the same
office as Mr. Henry, entered his appearance for Kim Rogal. 18 Accordingly, on
March 7, 2012, the court conducted a second bypass hearing, with both
defendants present, to address whether their attorneys were operating
under a conflict of interest. See N.T., 3/7/2012, at 2-5.
At the March 7th hearing, an associate of Mr. Henry appeared on behalf
of Rogal, and Jeremy Walker, Esq. appeared on behalf of Kim Rogal. The
prosecutor raised a concern regarding a possible conflict of interest because
Mr. Walker practices in the same office suite as Mr. Henry, and his full
biography is listed on Mr. Henry’s web site “as one of Mr. Henry’s
associates.” Id. at 8. However, Mr. Walker explained that while he serves
as general counsel for Mr. Henry’s firm on civil cases, he maintains his own
firm for his criminal practice:
Basically, I have my own separate [practice] with regards to criminal law. I have my own firm, own LLC, own business ID. The only thing I do with Mr. Henry is I’m his general counsel when it comes down to civil cases. Obviously, this is not a civil case. So that’s the only time we intermingle business is when it comes down to civil cases. As to criminal, we have two separate practices.
Id. at 7.
Accordingly, based upon Mr. Walker’s averment that his criminal
practice is separate from Mr. Henry’s criminal practice, we do not find that ____________________________________________
18 Mr. Henry continued to represent Rogal.
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Rogal and Kim Rogal were subject to dual representation. Nevertheless,
even if the attorneys’ association did present a potential conflict in these
circumstances, we conclude Rogal and Kim Rogal unequivocally and
knowingly waived any conflict of interest.
It is well established that:
An individual may knowingly and intelligently waive a constitutional right. For that individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same. In such a situation the record must clearly demonstrate an intentional relinquishment of a known right or privilege. … Moreover, the Commonwealth merely needs to establish a knowing and intelligent waiver of a constitutional right by a preponderance of the evidence.
Commonwealth v. Szekeresh, 515 A.2d 605, 607 (Pa. Super. 1986)
(citations omitted), appeal denied, 529 A.2d 1080 (Pa. 1987).
In the present case, after Mr. Walker explained that he and Mr. Henry
shared office space but maintained separate criminal practices, the trial
court conducted the following colloquy:
THE COURT: Okay. And Doctor Rogal, has [the shared offices of Mr. Henry and Mr. Walker] been explained to you?
DOCTOR ROGAL: Yes.
THE COURT: Ms. Rogal, has this been explained to you as well?
MS. ROGAL: Yes.
THE COURT: And you have independently retained, Doctor Rogal, Mr. Henry’s office?
THE COURT: And, Ms. Rogal, you have independently retained Mr. Walker’s office?
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THE COURT: Okay. And you both understand that they work together but they maintain separate practices?
THE COURT: Okay. And do you each understand that you may – or actually do have a conflict being defenses regarding the charges which have been brought against you?
MS. ROGAL: Would you explain that?
THE COURT: Yes. In other words, there has been charges brought against each of you, and there could potentially be different defenses which may apply to each of your cases.
MS. ROGAL: Thank you. Yes.
THE COURT: Okay. And have you considered that factor in terms of your retaining counsel to represent each of you?
THE COURT: Okay. And do you each understand what a conflict of interest is?
THE COURT: Okay. Has anyone forced you in any way into retaining the attorneys that you have retained?
DOCTOR ROGAL: No.
MS. ROGAL: No.
THE COURT: And you’ve each agreed to this arrangement; is that correct?
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THE COURT: And do you understand that by agreeing presently that you are essentially waiving any future right to raise this issue regarding what may be perceived as a conflict of interest?
THE COURT: And at this time, do either of you wish to reconsider your choice regarding the selection of counsel?
…
THE COURT: Okay. Do you have any questions of the Court at this time?
THE COURT: Okay. Then the Court, having colloquied Doctor Rogal and Ms. Rogal, is satisfied that they’ve made a knowing, intelligent, and voluntary selection of counsel. Okay.
Id. at 8-11.
Accordingly, contrary to Rogal’s contention, Rogal and Kim Rogal
unequivocally and knowingly waived any potential conflict of interest after
the criminal charges were held for court. See Rogal’s Principal Brief at 29.
The court did not simply presume their waiver of a dual representation
conflict during the grand jury proceedings was sufficient to waive any
potential conflict for trial.19 Therefore, Rogal’s final claim fails. ____________________________________________
19 Indeed, the record demonstrates that on December 14, 2011, both Rogal and Kim Rogal knowingly and voluntarily waived their right to have separate (Footnote Continued Next Page)
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Because we conclude the three issues raised by Rogal on appeal merit
no relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/2/2015
counsel, and chose to have Mr. Henry represent them both during the grand jury proceedings. See N.T., 12/14/2011, at 4-11. Thereafter, they again waived any potential conflict of interest, after the grand jury proceedings were complete and the criminal charges were filed, when Kim Rogal chose to be represented by Mr. Walker who shares an office suite with Mr. Henry. See N.T., 3/7/2012, at 8-11.
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