COMMONWEALTH vs. RALPH A. PISA.

ABRAMS, J. A single justice of this court allowed the defendant to appeal the correctness of the order of the Superior Court judge denying the defendant's latest [Note 1] motion for a new trial. G. L. c. 278, Section 33E. In this motion, the defendant Ralph A. Pisa challenged the trial judge's instructions to

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the jury, claiming that the use of the word "presumption" in the malice instructions automatically required reversal of his criminal conviction. See Sandstrom v. Montana, 442 U.S. 510 (1979); DeJoinville v. Commonwealth, 381 Mass. 246 (1980); Commonwealth v. Callahan, 380 Mass. 821 (1980). Since no objection to the charge was lodged at trial, the question is whether the instructions read as a whole created a substantial likelihood of a miscarriage of justice. Commonwealth v. Roberts, 378 Mass. 116, 122-123 (1979). For essentially the same reasons as advanced in Commonwealth v. Lee, 383 Mass. 507, 512 (1981), we conclude that the over-all impact of the instructions did not create a risk of miscarriage of justice. Therefore, we affirm the order denying Pisa's latest motion for new trial.

The defendant asserts that the instructions had the effect of shifting the burden of proof to him on the element of malice. Commonwealth v. Callahan, 380 Mass. 821 (1980). Sandstrom v. Montana, 442 U.S. 510 (1979). See Hankerson v. North Carolina, 432 U.S. 233 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975); Ivan V. v. City of New York, 407 U.S. 203 (1972); In re Winship, 397 U.S. 358 (1970). See also DeJoinville v. Commonwealth, 381 Mass. 246 (1980); Commonwealth v. Smith, 381 Mass. 141 (1980); Commonwealth v. Rodriguez, 370 Mass. 684 (1976). However, Pisa's case "was tried and argued by both parties on the theory that a murder had been committed. The issue contested by the defendant was solely that of the identity of the murderer. In such circumstances, the failure to object to the charge as to malice cannot be attributed to inadvertence or lack of knowledge of evolving constitutional doctrine. Rather, the failure to object reflects a conscious choice of trial strategy by defense counsel." Commonwealth v. Lee, 383 Mass. 507, 512 (1981).

The record reveals "no issue of justification, mitigation, or lack of intent on the part of the perpetrator." Id. at 513. Compare Sandstrom v. Montana, supra at 521 (intent was "the lone element of the offense at issue in Sandstrom's trial"). We conclude that the use of the word "presumption"

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in the malice instructions had no bearing on Pisa's guilt, and that the instructions did not create a danger of grave prejudice or a substantial likelihood of a miscarriage of justice. [Note 2] Pisa's claim, therefore, must fail. See Commonwealth v. Hooks, 375 Mass. 284, 297 (1978). Cf. Commonwealth v. Wood, 380 Mass. 545, 547-550 (1980).

In this court Pisa also claims error in the instructions on alibi, on reasonable doubt, and in those instructions in which the judge informed the jury of the possibility of corrective action by an appellate court. He raised none of these issues below. Pisa may not argue these issues on appeal unless he can point to a determination by a single justice that these issues present "new and substantial question[s] which ought to be determined by the full court." G. L. c. 278, Section 33E. [Note 3] There is no such determination in this case with respect to these issues. Nevertheless, we comment briefly on Pisa's piecemeal attacks on his conviction.

Pursuant to G. L. c. 278, Section 33E, after the rescript in a particular case has issued, no appeal may be taken from the denial of a motion for a new trial "unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court." That language was added in 1939 by the Legislature, see St. 1939, c. 341, which was responding in part to criticism of repeated appeals of criminal convictions contained in the Third

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Report of the Judicial Council, Pub. Doc. No. 144 (1927). [Note 4] Although the Judicial Council's report was made in 1927, Section 33E was not amended to include its present last sentence until 1939. At that time, the Legislature also added language which transferred to the full court "the whole case for its consideration of the law and the evidence." See St. 1939, c. 341.

We have exercised our broad power under Section 33E with restraint. See Commonwealth v. Hooks, 375 Mass. 284, 298 (1978). Nevertheless, we have used it to ensure that the result in a given case is "consonant with justice." Commonwealth v. Seit, 373 Mass. 83, 94 (1977), quoting from Commonwealth v. Baker, 346 Mass. 107, 109 (1963). See, e.g., Commonwealth v. Gould, 380 Mass. 672 (1980); Commonwealth v. Cole, 380 Mass. 30 (1980). Pisa himself has been the beneficiary of our exercise of this power. See Commonwealth v. Pisa, 372 Mass. 590, 597-598, cert. denied, 434 U.S. 869 (1977).

The statute requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available

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at the time of trial or appeal, [Note 5] Commonwealth v. Chasson, 383 Mass. 183, 188-189 (1981). DeJoinville v. Commonwealth, 381 Mass. 246 (1980). Issues not raised at trial or pursued in available appellate proceedings are waived. Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). Gibson v. Commonwealth, 377 Mass. 539, 549 (1979). Commonwealth v. Grace, 376 Mass. 499, 500 (1978).

Underlying the requirement that claims be raised at the earliest possible time is a belief that such a practice will aid in the proper allocation of limited legal and judicial resources. Any other practice would unfairly consume public resources without any corresponding benefit to the administration of justice. Common sense counsels against such a result.

Pisa's attempt to raise claims belatedly in a motion for new trial also conflicts with our "unbroken practice" of not allowing a motion for new trial to be used as "a vehicle to compel a trial judge to review and reconsider questions of law . . . which could have been raised at trial and in appellate review after trial but which were not so raised." Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). "Order in the administration of criminal justice requires that if a defendant is aggrieved by what transpires during his trial," he must assert a timely objection or claim of error. Commonwealth v. Stout, 356 Mass. 237, 243 (1969). We do not believe that it is either unreasonable or unduly burdensome to require a defendant to "assert all known constitutional claims [and other claims of error] in a single proceeding." Murch v. Mottram, 409 U.S. 41, 45 (1972). See note 4, supra. "We cannot [and will not] retry every criminal appeal on the basis of what might have been." Commonwealth v. Stout, supra.

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Finally, the requirement that all claims of error be made prompty enhances public confidence in the administration of criminal justice. That system requires "that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view." Mackey v. United States, 401 U.S. 667, 690 (1971) (Harlan, J., concurring), and cases cited. "There must be a reasonable moment for a judgment to become final and a time beyond which further challenges must be barred." Reddick v. Commonwealth, 381 Mass. 398, 403 (1980). See generally Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963). The legal theories, constitutional or otherwise, underlying Pisa's three other claims were available at the time of Pisa's first or second appeal; therefore, these issues may not be raised on this, his third appeal. [Note 6]

Judgment affirmed.