Commonwealth v. Elena Kurbatzky.

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,

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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.

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