Commonwealth v. Stein
526 A.2d 411
Pa.
1987
Check Treatment

*2 CAVANAUGH, BECK, Before MONTEMURO and JJ. CAVANAUGH, Judge: began

This in 1983 when appellee, action licensed podia- trist, charged was with over counts of Medicaid fraud.1 The charged appellee with billing De- for partment podiatric of Public Welfare several office ($6.00) each, visits for the sum of Six Dollars when fact the patient had never visited office. The disputed billings in this case renewals of prescriptions, involved over shoes orthopedic for the children of three telephone, qualified recipients.2 trial, medical Prior assistance ap- a motion pellee filed entitled “Motion for Accelerated Reha- Disposition bilitative and/or Motion to Strike Information” which the trial court as a to quash. treated The *3 trial court in granted part appellee’s motion dismissing 27 of 99 against counts him. The proceeded Commonwealth to trial on the At remaining counts. the conclusion of the case, Commonwealth’s the lower appellee’s court sustained 60 demurrer to counts him. against The court later found appellee guilty remaining not on the 12 counts.

The appealed Commonwealth the court’s lower orders Phi, (3015 85) counts quashing sustaining 27 and appellee’s (3016 Phi, 85). demurrer to 60 counts These appeals were consolidated. The Commonwealth later discontinued its Phi, appeal following 3016 85 Supreme at the U.S. Court's Pennsylvania, v. Smalis decision in 476 106 U.S. S.Ct. Smalis, (1986). 90 L.Ed.2d 116 In the U.S. Supreme grant Court held that a of a demurrer to an accused cannot appealed be where reversal would lead to further trial proceedings thereby implicating the jeopardy double clause. Thus, appellant brings one issue before this court: whether Appellee 1407(a)(1), (a)(4) was indicted under 62 Pa.Stat. Ann. §§ (a)(9). (Purdon Part). and 1986 Cumulative Annual Pocket 2. A appellee, thirty-three review of the record discloses that on occa- sions, Department the billed Public an of Welfare for "office visit” (Procedure #90005) Code a from member of of these one families. granting in error reversible committed lower the him. We against 27 counts quash motion to reverse. court abused argues that the lower

The Commonwealth to in motion granted part appellee’s it when its discretion were question that the informations argues It quash. defective so and were not otherwise facially defective that the argues further Appellant prosecution. prohibit to motion as it granted when it erred legally lower court against assessment of the evidence on an its decision based per validity se a determination of upon and not appellee informations. deny a grant that the decision to recognize firstWe of the trial the sound discretion is within quash where appeal only be reversed on decision will whose judge of discretion. Commonwealth has been a clear abuse there (1980); 422 A.2d 1369 see Niemetz, Pa.Super. v. 519, 178 A. Pa.Super. Hackney, v. also Commonwealth stated: (1935). We have also Quash appar- be used to raise may A Motion to defects or other on the ent defects face of information Quash an A Motion to prohibit prosecution. would anor guilt determining procedure information is neither sufficiency determining means for pre-trial omitted.) (Citations (Empha- evidence. Commonwealth’s added.) sis 50, 51-55, 452 A.2d Meoli, Pa.Super. (1982).

1032, 1033-1034 alia, in stated, opinion its The lower court inter *4 as decision, it 27 counts quashed of its that support an in the definition of existed enough ambiguity of an ... 1, revision 1983 January ‘office visit’ before the [of create a so as to Fee Department’s Medicaid Schedule] ‘office of the term misinterpretation reasonable basis for definition---- of the revised prior to the issuance visit’ or confusion as ambiguity any that agree appellant We with is more of the Fee Schedule interpretation to appellant’s which could to defense appellee's a matter relevant properly 414 However,

be asserted at trial. we do not believe that an ambiguity asserted confusion serves as a basis quash to facially valid informations. Chew, Commonwealth v. 338 472, (1985); 487 1379 Pa.Super. A.2d Commonwealth v. Moser, 237, (1984); 476 Pa.Super. 328 A.2d 980 see also 225, Pa.R.Crim.P. Commonwealth v. Baranyai, 278 Pa.Su- per. 83, (1980). 419 A.2d 1368 reject appellee’s arguments

We the lower court acted within its discretion when it his granted in the of a petition corpus. nature habeas Appellee petition entitled his before the lower court “Motion for Disposition Accelerated Rehabilitative to and/or Motion Strike Information.” The lower court opinion stated its that it as petition Quash.” treated a “Motion to Now appellee argues that his motion was “in the nature aof petition corpus.” Appellee, having for habeas inartistically motion, denominated his permitted should not be to now advance a new its theory scope. Regardless to however, appellation petition, of this believe lower court its abused discretion in dismissing these counts. is It true that a trial court has authority to review evidence presented aat to preliminary hearing ascertain a whether prima case has been made out a against defendant. facie Hess, 580, v. Pa. (1980); Commonwealth 414 A.2d 1043 Ballard, 230, see also Commonwealth v. 501 Pa. 460 A.2d (1983). This is true petitioner’s even where a caption is incorrectly provided titled his intent is clear. Common Hess, wealth v. supra. See also Commonwealth v. Hether Pa. ington, (1975). However, 331 A.2d 205 lower charged court is with the to examine duty the evi dence with the limited inquiry as to whether there exists sufficient evidence to require defendant stand trial. Ballard, Commonwealth v. 501 Pa. at 460 A.2d at 1092, citing Hess, and supra, Commonwealth Common Krall, (1973). wealth v. Pa. A.2d 488 See also v. Hetherington, Our supra. review of the record presented discloses that the Commonwealth lower evidence, respect with sufficient with to these counts, to meet the traditional threshold associated with *5 Therefore, remand this case to the lower inquiry.3 opinion. consistent with this proceedings for further relin- remanded. Jurisdiction Case reversed. Order quished. concurring statement.

BECK, J., files a BECK, concurring: Judge, informations conclusion that the majority’s

I concur invalid, nor other they present any did facially were Therefore, the trial prosecution. prohibit defect would quash. motion to in granting court erred consid- However, apparent I with the disagree majority’s that his motion below was argument of appellee’s eration rather than a corpus for habeas petition the nature of a permitted should not be quash. Appellee motion to appeal. the nature of his motion on his as to change theory A.2d 413 Westley HALL Pennsylvania and Commonwealth Delores BROWN Department of Public Welfare.

Appeal of Delores BROWN. Pennsylvania. Superior Court of Argued 1986. Oct. May

Filed 1987. Code disagree court’s assertion that Procedure We with the lower interpretation by ambiguous a medical subject to an #90005 was provider____” "... under the Code is defined "[an] An “office visit” examination, visit, do treatment.” We evaluation office brief and/or reasonably be receipt phone call could that the of a not believe construed to meet the requirements of an of the Code’s definition visit. office