NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-46
COMMONWEALTH
vs.
ELENA KURBATZKY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant, the sole owner of
Harmony Home Health Care, LLC (Harmony), was convicted of three
charges of medical assistance fraud, in violation of G. L.
c. 118E, § 40; one charge of medical assistance fraud, in
violation of G. L. c. 118E, § 39; and three charges of larceny
over $250, in violation of G. L. c. 266, § 30 (1), as amended
through St. 1987, c. 468, § 1. Over a year and a half later,
she filed a motion for a new trial arguing that she had been
incompetent to stand trial. After a three-day hearing at which
three mental health experts testified, the motion judge, who was
also the trial judge, denied the motion. He also denied the
defendant's motion to reconsider. The defendant's appeal from her convictions was consolidated with her appeal from the
denials of her motion for a new trial and motion to reconsider.
We affirm.
The defendant maintains here, as she did in her motion for
a new trial, that her mental illness rendered her incompetent to
stand trial at the time of trial and during pretrial
proceedings.1 Her other challenges relate to pretrial and trial
issues described below.
Background. 1. Facts underlying charges. In the light
most favorable to the Commonwealth, the following evidence was
established at trial. See Commonwealth v. Latimore, 378 Mass.
671, 677 (1979). The defendant was a registered nurse and the
sole owner of Harmony. Harmony operated as a home health agency
and was a provider for MassHealth, the Commonwealth's Medicaid
program. From February 2015 until October 2016, the defendant
submitted claims to MassHealth on behalf of Harmony for patient
1 The defendant's standby counsel and the Commonwealth moved in the Superior Court to impound the defendant's mental health evaluations related to her motion for a new trial. The defendant herself opposed those motions, "urging that the proceedings in her case be in the public file, to promote transparency." The judge denied the motions for impoundment. In light of the defendant's position, we have included her full name in the case caption and have not restricted our discussion of her mental health evaluations herein. See G. L. c. 123, § 36A ("all reports of examinations made to a court pursuant to [G. L. c. 123, §§ 1-18, 47, 48] shall be kept private except in the discretion of the court").
2 services that were not authorized by a physician, which is
against regulation. The defendant also submitted claims for
services that were never provided, and she submitted claims with
inaccurate modifier codes resulting in overpayments. The
defendant also submitted claims on behalf of herself as a
purported Harmony patient; these services had not been
authorized by a physician. In total, Harmony and the defendant
received over $3 million from MassHealth based on fraudulent
claims.
2. Pretrial proceedings. During pretrial proceedings, the
defendant discharged several appointed attorneys and standby
counsel. On October 24, 2017, a judge of the Superior Court
conducted a colloquy with the defendant and allowed her to
represent herself without standby counsel. On March 9, 2018,
after the defendant filed forged paperwork with the Superior
Court clerk's office leading to subsequent charges for uttering
a false writing (uttering case), another judge ordered a
competency evaluation pursuant to G. L. c. 123, § 15 (a).
On the same date, Dr. Heather Jackson interviewed the
defendant and conducted a competency evaluation. In her report,
Dr. Jackson concluded that "[w]hile [the defendant] described
some general overarching paranoia regarding the legal system and
potential conspiracies, it did not appear to be causing
significant deficits in her competency related abilities." Dr.
3 Jackson advised that the defendant could benefit from the
appointment of standby counsel to assist "with more complex
legal processes and a potential trial."
3. Posttrial competency evaluations related to uttering
case. Eight months into her incarceration, on April 17, 2019,
the defendant was ordered by a judge in her uttering case to
undergo a competency evaluation pursuant to G. L. c. 123,
§ 15 (a). The evaluator, Dr. Jodie Shapiro, concluded that as a
result of "her fixed ideas about her cases or due to her
paranoid and illogical beliefs about her case," the defendant
"present[s] with competence-related deficits," and recommended
further evaluation. On June 7, 2019, the defendant was
evaluated for competency by Dr. Ingrid Li on an inpatient basis
pursuant to G. L. c. 123, § 15 (b). Dr. Li opined that the
defendant was "exhibiting significant deficits" in competency-
related abilities, but did not require psychiatric
hospitalization. Dr. Li further stated that while the defendant
"had a factual understanding of the proceedings against her,
[she] did not have a rational understanding and would have
difficulty consulting with an attorney." Dr. Li believed the
defendant's presentation was most consistent with a personality
disorder.
On September 16, 2019, after meeting with the defendant
again, Dr. Shapiro provided an updated competency report and
4 opined that the defendant had "significant competence related
deficits due to the symptoms of her mental illness." On
November 18, 2019, the judge in the uttering case found the
defendant incompetent to stand trial. Two further competency
evaluations in November and December 2020 determined that the
defendant was still not competent to stand trial.
Discussion. 1. Past competence to stand trial. "A motion
for new trial is addressed to the sound discretion of the
judge." Commonwealth v. Moore, 408 Mass. 117, 125 (1990). Such
a motion is "granted only in extraordinary circumstances."
Commonwealth v. Comita, 441 Mass. 86, 93 (2004). It is the
defendant's burden to prove "facts upon which [she] relies in
support of [her] motion for a new trial." Commonwealth v.
Chatman, 466 Mass. 327, 333 (2013). "A trial judge is entitled
to rely on [his] knowledge of what occurred at trial when ruling
on a motion for a new trial." Id. at 333-334. "Where, as here,
the motion judge [was] also the trial judge, we give 'special
deference' to the judge's findings of fact and . . . decision on
the motion" (citation omitted). Commonwealth v. Kolenovic, 471
Mass. 664, 672-673 (2015).
It is well settled under both the Fourteenth Amendment to
the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights that, "a person whose mental condition is
such that he [or she] lacks the capacity to understand the
5 nature and object of the proceedings against him [or her], to
consult with counsel, and to assist in preparing his [or her]
defense may not be subjected to a trial" (quotation omitted).
Commonwealth v. Brown, 449 Mass. 747, 759 (2007). When
competency is raised in a motion for a new trial, the defendant
is required to "establish by a preponderance of the evidence
that the Commonwealth would not have prevailed had the issue [of
competency] been raised at trial." Chatman, 466 Mass. at 336.
The "time frame for determining a defendant's competency to
stand trial is the condition of the defendant at the time of
trial" (citation and quotation omitted). Commonwealth v.
Companonio, 445 Mass. 39, 50 (2005). "Because a postverdict
motion requires a retrospective determination of the defendant's
competency, 'the weighing process must necessarily place greater
emphasis on evidence derived from knowledge contemporaneous with
the trial.'" Commonwealth v. Chatman, 473 Mass. 840, 847 (2016)
(Chatman II), quoting United States v. Makris, 535 F.2d 899, 907
(5th Cir. 1976), cert. denied, 430 U.S. 954 (1977).
6 There is no dispute that the defendant has been diagnosed
as mentally ill due to a personality disorder.2 However, while
the "presence or absence of a mental illness is informative on
the question of competency," it is "not dispositive." Chatman
II, 473 Mass. at 847. The "hallmark of a postverdict competency
inquiry is the defendant's 'functional abilities.'" Id. at 846,
quoting Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004).
Assessment of those functional abilities includes considering
(1) whether the defendant has "sufficient present ability" to
assist in her own defense "with a reasonable degree of rational
understanding," and (2) whether she has "a rational as well as
factual understanding of the proceedings." Chatman II, supra at
847, quoting Commonwealth v. Harris, 468 Mass. 429, 443 (2014).
The judge analyzed the defendant's "functional abilities"
at both the pretrial stage and during trial. Goodreau, 442
Mass. at 350. The judge credited Dr. Jackson's pretrial
conclusion that, despite the defendant's paranoid beliefs about
the legal system, her mental state "did not appear to be causing
significant deficits in her competency related abilities." This
2 Although it was not until April 2019, approximately nine months after the defendant's conviction, that the defendant's mental illness was identified as a possible personality disorder, the parties appear not to dispute that personality disorders are enduring and typically present by late adolescence or early adulthood (long before the diagnosis here).
7 was the only evaluation performed during the relevant time
period, and it was reasonable for the judge to place significant
weight on this opinion. See Chatman II, 473 Mass. at 847.
Based on his review of the transcripts, the judge also made
specific findings regarding the defendant's performance at
important pretrial proceedings. For example, he noted that at
the hearing on her motion to dismiss, the defendant made several
legally unsound arguments. He concluded, however, that none of
her behaviors evidenced "disabling mental illness" resulting in
incompetency. Rather, her shortcomings merely reflected
"inadequate legal training."
Regarding a May 15, 2018 hearing, the judge found that
while the defendant "made several conspiratorial and paranoid
statements . . . [she] was able to address the legal and factual
issues when directed." He highlighted the defendant's
presentation of legitimate issues, such as concerns about the
competency of infirm witnesses and the basis of the
Commonwealth's probable cause to search Harmony's records. The
judge remarked that the defendant "presented those issues
cogently and without evidence of a thought or processing
disorder."
Noting that his involvement in the case began just prior to
trial in July 2018, the judge concluded that based on his own
observations of the defendant's pretrial behavior, while she
8 sometimes presented conspiratorial beliefs, she was, overall,
"very organized, logical . . . processed the information,"
responded appropriately, and "generally demonstrated clarity of
thought." He carefully detailed many examples of his pretrial
interactions with her to support his conclusions.
The judge also appropriately placed significant weight on
his own observations of the defendant's abilities during the
trial itself. See Chatman II, 473 Mass. at 847. He first noted
that on the morning of the first day of trial, he conducted a
full colloquy regarding her decision to represent herself at
trial and "[a]fter numerous questions and appropriate
responses," he found that she was competent to represent
herself. Based on his own observations, he ultimately concluded
that:
"Throughout the trial, [the defendant's] overall thought process was reasoned and organized, with some exceptions of course. She was polite to witnesses, largely focused her questions on topics relevant to the indictments against her, and generally complied with courtroom norms throughout the trial, especially in front of the jury. She responded in a measured, and even compassionate, way despite the obvious hostility expressed by some of the witnesses. Particularly significant is her ability to understand that she needed to consult with stand-by counsel on two occasions, which presented technical legal issues beyond her knowledge and training. She in fact did consult with standby counsel on those occasions. Those instances confirmed her understanding of the role of counsel, the existence of legal rules beyond her knowledge, and her willingness to consult an attorney to learn and follow those rules."
9 Turning to the posttrial proceedings, the judge found that
of the three experts who testified at the hearing, only one, Dr.
Mendoza, had read the trial transcript in depth.3 Dr. Mendoza
concluded that although the defendant "presents, at times, with
extreme forms of grandiosity, aggressiveness, hypersensitivity,
paranoia and quickly paced thoughts," from his review of the
record, he saw "no evidence of disjointed, disorganized, [or]
paranoid [thought]," and did not believe there was "substantial
evidence to suggest that [she was] not competent to stand
trial."4 In support, Dr. Mendoza cited numerous examples of the
defendant's reasonable decision-making and rational actions she
took throughout the proceedings, both pretrial and at trial.
3 There was no clear error in the judge's finding that Dr. Mendoza "was the only expert to read the trial transcript in depth (or, perhaps, at all)." The judge acknowledged that the defendant's expert, Dr. Paul Nestor, had reviewed the trial transcript, and further clarified in his order denying the motion to reconsider that he believed Dr. Nestor had not reviewed the transcript in "any depth." The judge also stated that he had not disregarded Dr. Nestor's testimony. Thus the record does not support the defendant's contention that the judge "reject[ed]" Dr. Nestor's testimony on false grounds that he failed to review the trial transcript.
4 Despite the defendant's argument to the contrary, that Dr. Mendoza did not provide a definitive opinion on the defendant's competency at the time of trial and Dr. Nestor did make such a conclusion, the evidence was not "in equipoise." Dr. Mendoza did not opine on the defendant's competency because, as he testified, based on "[g]uidelines, ethics, codes of conduct" it would be inappropriate for him to make such a determination without having examined the defendant at the relevant time.
10 Even the defendant's expert,5 Dr. Paul Nestor, opined that
the defendant "performed adequately" at trial, and that her
conduct "showed evidence of a degree of rational understanding
of the criminal proceedings." Dr. Nestor also acknowledged that
the defendant's decision to consult with the duty attorney twice
during trial could support a finding that she trusted the advice
she had received the first time and valued the input from the
attorney.
The evaluations concluding the defendant was incompetent to
stand trial dated from eight months to two years after her
trial. Significantly, as the judge found, following the
defendant's convictions in this case, she "suffered considerable
external stressors, including incarceration, loss of custody of
a child, and financial hardship." Such "stressors could have
impacted the [defendant's] clinical presentation and, at a
minimum, make it inappropriate to assume that the conclusions of
post-trial evaluators demonstrate incompetency to stand trial at
the earlier time of pre-trial proceedings and the trial itself."
Indeed, all three experts acknowledged that, in general, stress
5 The defendant's other expert, Dr. Jeffrey Burl, interviewed the defendant more than two years after trial. He gave no opinion about her competency during the relevant time period, and other than seeing some excerpts attached to the motion, he did not review the trial transcripts. Accordingly, his report and testimony added little to the analysis of whether the Commonwealth could have met its burden at the relevant time.
11 could exacerbate functional impairments in those with
personality disorders.
Thus, based on his review of the record, his own
observations, and informed by the reports and testimony of
experts, the judge reasonably concluded that the defendant
failed to establish by a preponderance of the evidence that the
Commonwealth would not have been able to meet its burden to show
competency had the issue been raised prior to or at trial. See
Chatman II, 473 Mass. at 854. We discern no error or abuse of
discretion in the judge's assessment.
2. Sufficiency of evidence. The defendant maintains that
the evidence was insufficient to support her convictions on the
three indictments charging medical assistance fraud under G. L.
c. 118E, § 40. Specifically, she challenges the evidence that
she was a "provider" with respect to charges 1 and 3 (the felony
offense within G. L. c. 118E, § 40) and that she was a "non-
provider" (with respect to charge 2, the misdemeanor offense
within the statute). We disagree.
When reviewing the sufficiency of the evidence, the
"question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Latimore, 378 Mass. at 677, quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
12 For the felony convictions, the Commonwealth needed to
prove that the defendant was a provider who knowingly submitted
false claims to MassHealth for home health services that were
not authorized by a physician (charge 1), and knowingly
submitted false claims to MassHealth by failing to use
appropriate modifier codes (charge 3). G. L. c. 118E, § 40.
Contrary to the defendant's argument on appeal, her status as a
provider6 did not vary depending on whether the specific service
for which she was fraudulently submitting a claim had actually
been provided. Rather, proving that the defendant was a
provider as defined in G. L. c. 118E, § 40, required showing
that she was "a person who furnishes [home health services]"
during the time when the fraudulent activity took place, which
the Commonwealth did. See G. L. c. 118E, § 40. See also G. L.
c. 118E, § 8 (defining "provider" as "any institution, agency,
individual, or other legal entity qualified under the laws of
the commonwealth to perform the medical care or services for
which medical assistance and medical benefits are available
under this chapter"). We find no support in the statute or
elsewhere for the defendant's position that to be deemed a
6 Significantly, the defendant never disputed Harmony's role as a provider.
13 provider she must have provided services in every instance in
which she acted fraudulently.
The jury convicted the defendant for a felony violation
with respect to charge 2, knowingly submitting false claims to
MassHealth for "home health services that were not provided."
Following the jury's verdict, however, pursuant to
Mass. R. Crim. P. 25 (b), as amended, 420 Mass. 1502 (1995), the
judge reduced charge 2 to the nonprovider misdemeanor offense
within the same statute. Because charge 2 related to bills for
home health services that had not been rendered, the judge
reasoned that the defendant could not be a "provider" for
purposes of that indictment. The defendant maintains that a
finding of not guilty was required because the misdemeanor
offense is not a lesser included offense of the felony
conviction.
Given our analysis above, we are skeptical of the judge's
legal reasoning in reducing the verdict in charge 2, but
conclude that the conviction was sound and the defendant is not
entitled to the relief she seeks. The statute defines parallel
offenses that share all the same underlying conduct and differ
solely based on whether a defendant furnishes services or does
not, punishing the former more harshly. G. L. c. 118E, § 40.
Accordingly, the statute contains a "nonelement-creating
differentiation" distinguishing an enhanced crime from its
14 misdemeanor version. Commonwealth v. Lockwood, 95 Mass. App.
Ct. 189, 197 (2019), quoting Commonwealth v. Muir, 84 Mass. App.
Ct. 635, 640 (2013). Thus, while the Commonwealth was required
to show the defendant was a provider or one "who furnishes
services" for purposes of the felony offense, proof of her "non-
provider" status for the misdemeanor offense required no
additional evidence. See Commonwealth v. Dobbins, 96 Mass. App.
Ct. 593, 595-596 (2019) (holding, in prosecution for indecent
assault and battery on person who has attained age fourteen,
G. L. c. 265, § 13H, age reference in statute intended to
differentiate crime from same offense on child under fourteen
did not create additional element); Lockwood, supra at 196-197
(in prosecution under G. L. c. 266, § 18, "no person lawfully
therein being put in fear" not element of crime but "means by
which to distinguish § 18 from the more serious crime" specified
in G. L. c. 266, § 17, which does require proof of person "being
put in fear").
3. Motion to dismiss indictments. For the first time on
appeal, the defendant argues that the indictments should be
dismissed because (1) they failed to provide "fair notice" of
the offenses charged, and (2) there is a risk the grand jury
indicted the defendant based on different underlying conduct
from that for which she was found guilty at trial, violating
art. 12 of the Massachusetts Declaration of Rights.
15 As to the first issue, the defendant has waived any claim
regarding alleged deficiencies in the indictments. See G. L.
c. 277, § 47A.7 Although she filed a motion to dismiss the
indictments pretrial, the defendant did not raise any claim in
that motion related to what she now alleges was a lack of detail
in the indictments, nor did she ever seek a bill of particulars.
See Mass. R. Crim. P. 13 (b) (1), as appearing in 442 Mass. 1516
(2004).
As to the second issue, we see no risk that, due to
vagueness in the indictments on charges 1 through 3, the
defendant was convicted of a crime for which she was not
indicted. Each of those indictments charged a "continuing
course of conduct" -- that is, a scheme -- employed by the
defendant to defraud MassHealth over a period of time.
Commonwealth v. Sullivan, 492 Mass. 36, 37 (2023) (conviction
affirmed and art. 12 satisfied where single indictment for
misleading investigators about assault encompassed multiple
incidents of defendant's misleading different investigators over
several years). Compare Commonwealth v. Barbosa, 421 Mass. 547,
554 (1995) (conviction reversed where there was risk grand jury
7 While a defendant can raise "at any time" an "objection based upon . . . the failure to charge an offense," pursuant to G. L. c. 277, § 47A, the indictments did not fail to charge the defendant with crimes for which she was later tried, as discussed below.
16 indicted and petit jury convicted defendant based on unrelated,
separate acts taking place on same date). Accordingly, there
was no violation of the defendant's art. 12 rights.8
4. Admission of search warrant affidavits and audit
findings. The defendant next argues that the judge improperly
allowed her to offer in evidence two search warrant affidavits
and the initial audit findings of MassHealth, claiming
statements therein commented on the ultimate issue.
We discern no substantial risk of a miscarriage of justice
in the admission of search warrant affidavits, which were
offered by the defendant. The defendant offered the affidavits
to impeach the affiant, a State police trooper, with allegedly
inconsistent statements. The judge gave a thorough,
contemporaneous, appropriate limiting instruction to the jury.
In doing so, the judge highlighted "the fact that a search
warrant . . . issued is really not relevant to your
consideration."9 The judge also gave an instruction on
8 The defendant's argument that, with respect to certain instances underlying charges 1 and 3, the Commonwealth failed to show services were or were not provided and therefore she may have been indicted for the misdemeanor offense in G. L. c. 118E, § 40, but convicted of the felony based on her status as a provider or nonprovider is unpersuasive given our analysis supra.
9 There was also no substantial risk of a miscarriage of justice when, upon the admission of the second affidavit, the judge instructed the jury that they could also use the
17 inconsistent statements in his final charge. The defendant has
failed to show how these limiting instructions would not have
cured any potential prejudice from the admission of the
affidavits. Accordingly, we discern no substantial risk of a
miscarriage of justice. See Commonwealth v. Lamontagne, 42
Mass. App. Ct. 213, 220 (1997) (no substantial risk of
miscarriage of justice in admission of testimony where "clear
and emphatic instructions . . . were quite sufficient to remind
the jurors of the limited purposes of such testimony").
We similarly perceive no substantial risk of a miscarriage
of justice in the admission of the audit findings within exhibit
5, the "Initial Notice of Overpayment and Notice of Sanction
(Immediate Termination)." The defendant's claim that the audit
findings "repeatedly opined that Harmony billed fraudulently" is
not supported by any record citation, and we found no such
language in the letter. As a program manager at MassHealth
summarized in her testimony, the audit findings
"talk[] about . . . failure to show medical need for some of these services. It talks about some discrepancies where nurses were administering insulin to members who were not diabetic. The plans of care were incomplete. There were some missing pieces of documentation and indications for need for medication administration without records of such administration."
affidavits "for the purpose of showing the context for the seizure of the documents that have been put in evidence."
18 Therefore, not only did the findings provide context as to why
MassHealth terminated Harmony as a provider and the impetus for
the criminal investigation, but they simply did not touch on the
ultimate issue of the defendant's guilt. Moreover, the records
that were the basis of the audit findings were properly admitted
and were not challenged by the defendant at trial or on appeal.
Accordingly, there was no substantial risk of a miscarriage of
justice. See Commonwealth v. Ortiz, 487 Mass. 602, 611 (2021)
(no substantial risk of miscarriage of justice where evidence
cumulative).
5. Authentication of phone calls and e-mails. The
defendant claims that multiple phone calls and e-mails
attributed to her were admitted without proper authentication.
Because she did not object at trial, we review for a substantial
risk of a miscarriage of justice. See Commonwealth v. Brum, 492
Mass. 581, 600 (2023).
"Before a communication may be admitted in evidence, the
judge must make a determination regarding its authenticity; that
is, the judge must determine whether there exists sufficient
evidence that, if believed, a reasonable jury could find by a
preponderance of the evidence that the communication in question
is what it is purported to be." Commonwealth v. Lopez, 485
Mass. 471, 477 (2020). Significantly, the judge does not
determine that the evidence is what it is purported to be, but
19 rather determines whether the evidence is sufficient to support
such a finding.
While mere self-identification is insufficient to support a
finding that statements on phone calls were made by the
defendant, see Commonwealth v. Howard, 42 Mass. App. Ct. 322,
324 (1997), the Commonwealth presented more than just the
defendant identifying herself in the two phone calls. Evidence
about the first phone call included the testimony of a former
MassHealth employee who identified a letter (exhibit 5) that
preceded the phone call. The witness testified that on that
call the defendant "showed signs of aggression" and told him,
"[they] did not know what [they] were doing at MassHealth." The
testimony made clear that the witness's interlocutor was
familiar with the content of the letter, supporting the judge's
conclusion that the defendant made those statements. See, e.g.,
Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-675 (2011)
(defendant's authorship of e-mail shown through his appearance
at time and place indicated therein).
The other phone call the defendant now challenges -- the
conversation in which the defendant told MassHealth that she did
not have a certain income -- came after she was sent a notice
from MassHealth informing her of the change in eligibility based
on reported income. Like the first call, this call was tied to
the defendant through content and timing, and thus there was
20 sufficient evidence to support a finding that the defendant made
the statements therein. See Amaral, 78 Mass. App. Ct. at 674-
675.
The evidence also included "confirming circumstances" (in
addition to her name appearing as the sender) of various e-mails
that the Commonwealth alleged were written by the defendant.
Commonwealth v. Purdy, 459 Mass. 442, 448-449 (2011). For
example, the e-mails about the immediate termination letter came
after the letter was sent to the defendant, and the content of
those e-mails shows the author disputing the audit findings
contained in that letter. Further, the e-mail from the
defendant's e-mail address beginning "[f]ollowing my
conversation with our office manager . . . please find below
answers on some of your questions," followed the recipient-
witness's meeting with the defendant's office manager to present
a records request and ask her questions about the company.
Another e-mail sent from the defendant's e-mail address and
received by the same witness followed a voicemail the witness
had left the defendant and again pertained to the records
request. The necessary "confirming circumstances" permitted the
jury to conclude the defendant sent the communications within
the e-mails.10 Purdy, 459 Mass. at 448-449.
The defendant also cites to testimony from a former 10
employee about how the defendant would direct her by "calendar
21 6. Investigator's testimony. For the first time on appeal
the defendant claims that testimony from a fraud investigator
with the Attorney General's Office improperly "implied that
patients had implicated" the defendant by confirming certain
services had not been received.
In her testimony, the investigator described how she
investigated the claims surrounding the defendant and Harmony by
reaching out to patients and providers whose names appeared in
Harmony's records. Contrary to the defendant's argument,
nothing in the investigator's testimony "asked the jury to
speculate or imagine evidence not before them." The
investigator did not testify about any hearsay statements of the
people she interviewed nor did she comment on the ultimate
issue. As for the inference that can be made from the
investigator's testimony that patients had not received
services, this was cumulative of other evidence presented at
trial. We therefore discern no substantial risk of a
miscarriage of justice. See Commonwealth v. Avila, 454 Mass.
744, 763 (2009).
or by e-mail" to submit claims. However, a reference merely indicating the use of e-mail does not implicate Purdy, 459 Mass. at 448-449. The defendant has also failed to show how the authenticity of a tax form admitted in evidence falls under Purdy, supra.
22 7. Moffett claims. The defendant raises multiple claims
of error pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208
(1981). We address them briefly.
First, the Commonwealth did not fail to put the defendant
on notice of the intent required to commit a violation of G. L.
c. 118E, § 40. The language in the indictments tracks almost
verbatim the language of the statute, including that the false
claims must be submitted "knowingly." G. L. c. 118E, § 40.
With respect to her argument about preindictment delay, and even
assuming there was a delay, the defendant failed to show it was
intentional and prejudicial. See Commonwealth v. Perito, 417
Mass. 674, 681-682 (1994).
We also see no merit to the defendant's argument that
because she allegedly did not have a "National Provider
Identifier" number, she could not have been a provider. As
previously discussed, the Commonwealth presented sufficient
evidence that the defendant met the definition of a provider for
purposes of G. L. c. 118E, §§ 8, 40.
Finally, the defendant has provided no legal support for
her claim that the Massachusetts Limited Liability Company Act,
23 G. L. c. 156C, shielded her from responsibility for her criminal
actions.
Judgments affirmed.
Orders denying motion for new trial and motion for reconsideration affirmed.
By the Court (Massing, Hershfang & Tan, JJ.11),
Clerk
Entered: August 6, 2025.
11 The panelists are listed in order of seniority.