Commonwealth v. Perez, 44 N.E.3d 886

Background

Defendant Gloria Perez, a bank customer service representative, was indicted on 26 property-related counts after internal bank review; a jury convicted her of six counts (two larcenies over $250 including one against a person 60+, two for forgery, two for uttering).
Key transactions involved elderly customer Phyllis Wall: two withdrawals (June 5, 2006 for $1,000; July 21, 2006 for $300) bearing signatures alleged to be forged and the defendant’s initials with an "ID only" annotation; defendant deposited cash into other accounts soon after at least one withdrawal.
Another conviction involved multiple withdrawals from Hector Rodriguez’s account; Rodriguez testified he never received the cash and that Perez had frequent access to his records.
Bank fraud investigator Thomas Backstrom testified about the bank’s record-keeping, authenticated transaction slips and computer-generated entries, and recounted the defendant’s admissions during an August 2, 2006 interview (including admitting she signed Wall’s withdrawal slip for $300).
At trial the Commonwealth introduced various bank documents (some compound and some computer-generated); defense argued admission violated hearsay/business-records rules, the bank-records affidavit statute (G. L. c. 233, § 77), and the Confrontation Clause; defendant also argued insufficiency of larceny intent as to Wall.

Issues

Issue	Commonwealth's Argument	Perez's Argument	Held
Whether bank documents admitted violated hearsay or Confrontation Clause	Documents were non-hearsay verbal acts or machine-generated entries; not offered for truth of out-of-court assertions	Documents contained out-of-court statements and so were hearsay triggering Confrontation concerns	Admission did not raise hearsay/Confrontation problems because contested items were operative verbal acts or computer-generated data, not hearsay statements
Whether contested documents had proper authentication (incl. business-records exception, G. L. c. 233, § 78)	Backstrom’s testimony about bank systems and document circumstances sufficiently authenticated records; some items admitted for non-hearsay purposes	Lack of keeper-affidavit and some records allegedly forged undermined § 78/business-records authentication	Authentication was adequate via Backstrom’s testimony; allegedly forged items could still be admitted for non-hearsay purposes
Whether admission without a § 77 keeper-of-records affidavit violated § 77	§ 77 is not the exclusive means to admit bank copies; live-witness authentication suffices	Absence of required § 77 affidavit rendered copies incompetent under the statute	§ 77 does not preclude other authentication methods; no § 77 violation and no miscarriage of justice shown
Sufficiency of evidence on intent to permanently deprive (larceny) as to Wall	Circumstantial evidence (forged signature, lies to investigator, quick deposit of $200 into defendant’s account) supports intent to steal	Wall’s death meant no direct testimony she didn’t receive money; defendant claimed she delivered funds to Wall, undermining intent element	Viewed in light most favorable to prosecution, evidence was sufficient for a rational jury to find intent to permanently deprive

Key Cases Cited

Commonwealth v. Siny Van Tran, 460 Mass. 535 (2011) (defining hearsay and business-records requirements)
Commonwealth v. Purdy, 459 Mass. 442 (2011) (operative words/verbal acts are not hearsay)
Tennessee v. Street, 471 U.S. 409 (1985) (Confrontation Clause and admission of records)
Commonwealth v. Hurley, 455 Mass. 53 (2009) (Confrontation considerations for documentary evidence)
United States v. Pang, 362 F.3d 1187 (9th Cir. 2004) (verbal acts doctrine for signatures and similar writings)
United States v. Bowles, 751 F.3d 35 (1st Cir. 2014) (false endorsements as verbal acts, not hearsay)
Commonwealth v. Irene, 462 Mass. 600 (2012) (limits where a specific records statute governs admissibility of hearsay)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)