The defendant appeals from his conviction on an indictment charging murder in the second degree. 1. There was evidence that the victim and the defendant engaged in an argument at the doorway to the roof of the defendant's apartment building; that the victim and two girlfriends then walked downstairs and left the building; that the defendant went into his apartment, took a knife, and followed the victim and the girls downstairs; that the defendant and the victim engaged in further argument on the sidewalk just outside the door to the apartment house; that there was a brief exchange of blows; that both fell to the pavement, with the victim on the bottom and the defendant on top; that the defendant then stabbed the victim once in the chest; that the defendant rose, the victim ran away, and the defendant called after him, "Run, mother fucker, run. That's right. You don't mess with us Thomases because Thomases don't play." From this evidence the jury could infer that the deadly blow was struck intentionally; and they could infer malice not only from the intentional use of a deadly weapon, Gagne v. Commonwealth, 375 Mass. 417 , 422 (1978), but from the defendant's arming himself, his pursuit of the victim, and the words he called after the fleeing victim. There was no error in denying the various motions for directed verdicts. 2. There was no error in denying the motion for a new trial, which was based largely on a view of the evidence that the jury obviously rejected. 3. Because the indictment charged murder in the second degree, this was not a capital case within the meaning of G. L. c. 278, Section 33E, either before or after the amendment to that section appearing in St. 1979, c. 346, Section 2. See Commonwealth v. Davis, 380 Mass. 1 , 13-17 (1980).
1. The plaintiff was ordered by a judge of the Superior Court to produce three documents claimed by the plaintiff to be privileged as
patient-psychotherapist communications under G. L. c. 233, Section 20B. The plaintiff applied to a single justice of this court for relief from that order under G. L. c. 231, Section 118, first par. (as to which see Demoulas Super Mkts., Inc. v. Peter's Mkt. Basket, Inc., 5 Mass. App. Ct. 750 , 752 n.3 ). The single justice denied relief, and the plaintiff appealed from the order of denial. That appeal is interlocutory and is improperly before us. "[A]lthough G. L. c. 231, Section 118 [, first par.], authorizes appellate relief from interlocutory orders of the Superior Court, this statute does not entitle a litigant as matter of right to review of an appellate order denying relief under G. L. c. 231, Section 118 [, first par.], from such a Superior Court order." Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167 , 169 (1977). The second paragraph of Rule 2:01 of the Appeals Court, as amended, 3 Mass. App. Ct. 806 (1975), authorizes appellate review of orders of single justices only "in the same manner and to the same extent that the determination of a like matter by a single justice of the Supreme Judicial Court may be reviewed by the full court of the Supreme Judicial Court." 2. Following the claiming of the appeal discussed above, the plaintiff filed a petition in the Supreme Judicial Court under G. L. c. 211, Section 3, again seeking relief from the Superior Court's discovery order. That petition was denied by a single justice of that court "[t]o the extent that [it] seeks relief from this court under G. L. c. 211, Section 3" and was transferred to this court "[t]o the extent, if any, that it seeks other relief." A single justice thereafter entered an order denying all relief, and the plaintiff claimed an appeal from that order. There is no merit to the plaintiff's contention that the order of the single justice of the Supreme Judicial Court delegated to this court any question of relief under G. L. c. 211, Section 3, a course disapproved in Fadden v. Commonwealth, 376 Mass. 604 , 608 (1978). Consequently the appeal from the order by the single justice of this court presents no question as to the present appealability of orders in civil cases under G. L. c. 211, Section 3. Contrast Cappadona v. Riverside 400 Function Room, Inc., supra at 170, with Borman v. Borman, 378 Mass. 775 , 784 n.13 (1979). The instant appeal is therefore indistinguishable from the appeal considered in part 1 hereof and is similarly before us improperly.