COMMONWEALTH vs. ALVIN PITTS.

LIACOS, J. The defendant was convicted of murder in the first degree. [Note 1] On appeal, he contends that the judge erred in refusing to charge the jury on manslaughter and in her charge on transferred intent, and he urges this court to exercise its power under G. L. c. 278, Section 33E (1986 ed.). We affirm the judgment and decline to reduce the murder verdict under G. L. c. 278, Section 33E.

We summarize the relevant evidence before the jury. The defendant and his brother, Irving Pitts, rented out a number of rooms in their house on Hopesill Street in Dorchester. One

Page 666

of the defendant's tenants was Dwayne Moody. During July, 1982, Moody and the Pitts brothers had a dispute regarding Moody's failure to pay rent. During the late afternoon of July 17, Moody went to his room and found that his new television set, his lamp, and some of his clothes were missing. Moody argued briefly with the Pitts brothers and their half-brother Pete Broom about the missing items.

Moody left the house and went to a street block party, where a friend informed him that the Pitts brothers and Broom had taken Moody's television and lamp. Moody and his friends, Ernest Alston and Roger Woods, returned to the house on Hopesill Street. At the house, Alston, Woods, and Moody began fighting with the Pitts brothers and Broom. Alston held the defendant from behind, while Moody punched him repeatedly in the face. Woods hit Broom on the side of his head with his pistol and took all of the jewelry that he was wearing. Woods then struck the defendant on the head with his pistol. The defendant fell to the floor unconscious and bleeding.

Moody, Alston, and Woods returned to the block party, where they met the victim, Aaron Wyatt, and two women. Moody, Alston, Wyatt, and the two women left the block party in Wyatt's automobile to get some pizza. Later, the group headed to a "social club" on Geneva Avenue near the Jeremiah Burke School. They sat in the automobile outside the Burke School, talking and waiting for a friend to arrive. Wyatt sat in the driver's seat, Moody was in the front passenger's seat, and Alston and the two women were in the back seat.

A gray automobile pulled up in front of the victim's automobile. The defendant got out from the back seat of the automobile. He started running toward the victim's automobile. He had a gun in his hand. He fired a shot at the front windshield. The defendant then went to the driver's side of the victim's automobile and shot the victim twice through the open window. The victim died as a "result of [a] gunshot wound of [the] chest and abdomen, with perforations of lungs, aorta, and spleen."

Page 667

1. Voluntary manslaughter. The defendant claims that the judge erred in failing to instruct the jury on manslaughter. [Note 2] "[I]f any view of the evidence will permit a finding that the offense was manslaughter, the judge must charge on manslaughter." Commonwealth v. Garabedian, 399 Mass. 304, 313 (1987), quoting Commonwealth v. Martinez, 393 Mass. 612, 613-614 (1985).

"Voluntary `manslaughter . . . [is] a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.'" Commonwealth v. Walden, 380 Mass. 724, 727 (1980), quoting Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). "In order for a jury to find that a `defendant formed an intent to kill in a transport of passion or heat of blood, . . . [t]here must be evidence that would warrant a reasonable doubt that something happened which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant'" (emphasis supplied). Commonwealth v. Amaral, 389 Mass. 184, 188 (1983), quoting Commonwealth v. Walden, supra at 727-728.

Even if we assume the existence of reasonable provocation in an objective sense, there was no evidence which raised the issue whether, at the time of the shooting, the defendant had the requisite subjective state of mind to require a charge on manslaughter. The defendant did not testify to experiencing anything resembling a "transport of passion" during the killing

Page 668

at the Burke School. Indeed, the defendant expressly disclaimed any desire for revenge. [Note 3] See Commonwealth v. Leate, 352 Mass. 452, 458 (1967). None of the other witnesses gave "testimony that might warrant an inference that the defendant acted in the heat of passion." Commonwealth v. Walden, supra at 728. See Commonwealth v. Maskell, ante 111, 117 (1988). Also, nothing in evidence as to the circumstances of the homicide would warrant a jury's finding that the defendant acted in the heat of passion. The jury may not be permitted to speculate as to whether the defendant, at the time of the shooting, was "roused to the heat of passion." Commonwealth v. Garabedian, supra at 315, quoting Commonwealth v. Walden, supra. Commonwealth v. Wilborne, 382 Mass. 241, 246 (1981). [Note 4]

Viewing this evidence in a light most favorable to the defendant, Commonwealth v. Maskell, supra at 116, we hold that there was insufficient evidence presented to require a charge on manslaughter.

2. Transferred intent. The defendant claims that, because the Commonwealth failed to prove, beyond a reasonable doubt, the identity of the intended victim, the judge erred in instructing the jury on transferred intent. This contention is without merit. [Note 5]

Page 669

The instruction, which is reproduced in full in the margin, [Note 6] correctly stated the law of transferred intent in a form similar to that approved in Commonwealth v. Puleio, 394 Mass. 101, 109-110 (1985). The evidence presented was sufficient for a jury to find, beyond a reasonable doubt, that the defendant intended to kill either Moody or Alston. Moody had fought with the defendant earlier in the evening, had punched him repeatedly in the face, and was seated next to the victim when the defendant fired the fatal shot. Alston also had fought with the defendant and was seated in the back seat of the victim's automobile at the time of the shooting. The fact that the defendant may have intended to kill either Alston or Moody does not preclude a transferred intent instruction so long as there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant intended to kill one person and, in the course of an attempt to do so, killed another.

3. Relief pursuant to G. L. c. 278, Section 33E. The defendant requests this court to exercise its power under G. L. c. 278, Section 33E, to reduce the verdict from murder in the first degree to murder in the second degree. We decline to do so.

In this case, the defendant left the site of the original encounter, obtained a weapon, searched for his assailants, and

Page 670

killed one of their companions. In similar circumstances we have declined to exercise our Section 33E powers. See Commonwealth v. DeArmas, 397 Mass. 167, 172 (1986); Commonwealth v. Stillwell, 366 Mass. 1, 5-6 (1974), cert. denied sub nom. McAlister v. Massachusetts, 419 U.S. 1115 (1975), and cases cited. Cf. Commonwealth v. Garabedian, supra at 320 (Liacos, J., concurring in part and dissenting in part).

"The circumstances of the killing . . . do not support a conclusion that the verdict of guilt[y] on the charge of murder in the first degree is against either the law or the evidence in a large or nontechnical sense." Commonwealth v. Davis, ante 575, 585 (1988).

Judgments affirmed.