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Commonwealth v. Perez

Appeals Court of Massachusetts, Essex

February 3, 2016

COMMONWEALTH
v.
GLORIA PEREZ.

Heard: December 10, 2015.

Larceny. Bank. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses. Evidence, Hearsay, Verbal conduct, Business record, Authentication of document. Indictments found and returned in the Superior Court Department on April 30, 2008.

The cases were tried before Leila R. Kern, J.

Andrew S. Crouch for the defendant.

Philip Anthony Mallard, Assistant District Attorney, for the Commonwealth.

Present: Kafker, C.J., Milkey, & Sullivan, JJ.

MILKEY, J.

"[W]here's Phyllis?" A bank teller posed that question to the defendant who was seeking to withdraw $300 from the checking account of an absent bank customer. The defendant, who worked as a customer service representative at the bank, had presented a withdrawal slip purportedly signed by Phyllis Wall, an elderly customer who relied on a walker and was well known to the employees at that particular branch. In response to the question, the defendant stated that Wall had signed the withdrawal slip earlier that day and that she planned to give the money to Wall later. The teller gave the defendant the money, but then notified the branch manager about the transaction.[1] An internal investigation ensued, and the defendant ultimately was indicted for twenty-six property offenses, all related to alleged theft from customer accounts. After trial, a Superior Court jury convicted the defendant of six of those offenses: two counts of larceny over $250, one of which was from a person sixty years or older (G. L. c. 266, § 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and two counts of uttering (G. L. c. 267, § 5). On appeal, she challenges the admission of various bank records, and she claims that the evidence for one of the larceny charges was insufficient in one respect. We affirm.

Background.

The Phyllis Wall withdrawals.

Five of the six convictions involved Wall. The defendant frequently assisted Wall with her transactions, such as obtaining money orders to pay all of her bills. The five convictions related to Wall involved two cash withdrawals, including the one described above, which took place on July 21, 2006. As noted, the withdrawal slip that the defendant presented during that transaction was purportedly signed by Wall. Wall was not available to testify as to whether the signature on the slip was her own, because she had died by the time of trial. However, the jury were able to compare that allegedly forged signature against genuine signatures from Wall on other documents entered in evidence.

The July 21, 2006, withdrawal slip purportedly signed by Wall also bore the initials of the defendant beside the words "ID only." That annotation signified that the teller could cash the withdrawal slip without checking Wall's identification, because the defendant had already done so. As documented by other bank records, thirteen minutes after receiving the $300 cash from Wall's account, the defendant deposited $200 cash into her own bank account through a different teller.

The other relevant transaction involving Wall was a withdrawal of $1, 000 from her checking account on June 5, 2006. Like the other transaction, the withdrawal slip bore a signature that did not appear to match Wall's, as well as the defendant's initials alongside an "ID only" annotation. A minute after the $1, 000 was withdrawn from Wall's account, the defendant deposited the same amount into the account of another customer, Judson Silva. The Commonwealth's theory was that the defendant used the $1, 000 from Wall to replace $1, 000 she previously had taken from Silva.[2]

For each of the two withdrawals from Wall's account, the defendant was convicted of forgery and uttering. She was also convicted of one count of larceny over ...


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