Thе defendant was indicted for the crimes of assault with intent to murder, assault by means of a dangerous weapon, and unlawfully carrying a firearm. He was tried in the Superior Court before a jury and convicted on the latter two indictments and, on the first indictment, of the lеsser included offense of assault with intent to kill. He appeals, contending principally that the admission of certain evidence on the issue of identity deprived him of a fair trial. 1 We agree with certain of those contentions and reverse the convictions.
The indictments were returned as a consequence of events that occurred during the evening of April 24, 1980, outside an entrance to the Squeeze Inn, a tavern in the city of Revere. Testimony at the trial indicated that the victim, who had been wrеstling with another man on the sidewalk outside the tavern, was shot in the lower abdomen by a man who had emerged from the tavern, ordered the combatants to “go around the comer,” and fired a shot from close range when the victim failed to heed his demand. The gunman, after commenting to a companion that “[the victim] didn’t listen,” entered an automobile, and with his companion, left the scene. There were numerous eyewitnesses to the incident.
The main issue at trial was the identity of the defendant as the gunman who had wounded the victim. The Commonwealth endeavored to prove identity through the testimony of the victim and some seven eyewitnesses, all but one of whom proved either unwilling or unable on the stand to identify the defendant as the gunman. 2
*647 In an effort to shore up its deteriorating proof on the issue of identity, the Commonwealth elicited testimony from one eyewitness that he had identified the defendant, by name, as the gunman during grand jury proceedings. The Commonwealth also called two police officers from Revere to offer testimony concerning various out-of-court identifications made by certain of the eyewitnesses. The judge specifically instructed the jury that it could consider that testimony as substantive evidence of the defendant’s identity as the gunman. It is uрon the admissibility of that evidence for substantive purposes that we are asked to rule.
1. Evidence of prior photographic identification, (a) Steven Ciambelli. The Commonwealth called as a witness Steven Ciambelli, who testified that he had been present outside the tavern when the victim was shot. He was never asked to make an in-court identification of the defendant as the gunman. The prosecutor did elicit from Ciambelli an answer that he had viewed photographs for the purpose of identifying “men that I [had] seen on the corner that night” and that he had selected оne or two photographs. Ciambelli, however, steadfastly denied that the photograph or photographs he had selected represented a positive identification of the gunman. Indeed, when asked if his purpose in viewing the photographs was to identify the gunman, Ciambelli responded, “No, I didn’t know what he looks like.”
Subsequently, and over defense counsel’s objection, the prosecutor obtained from William Gannon, a Revere police officer, testimony that on the day following the shooting, and in Gannon’s presence, Ciambelli had, from an array of twenty-five photographs, positively identified a photograph of the defendant as the gunman.
We conclude that it was error to admit the testimony of Officer Gannon, particularly in light of thе judge’s specific
*648
instruction that the jury could consider that testimony as substantive evidence of the defendant’s identity. See
Commonwealth
v.
Swenson,
The Commonwealth’s reliance on
Commonwealth
v.
Torres,
By contrast, in the instant case the witness Ciambelli, on the witness stand, denied having made a prior identification. It is illogicаl to suggest that the mere fact of his presence on the stand afforded the defendant a genuine opportunity to cross-examine Ciambelli concerning an out-of-court identification he so unequivocally disclaimed. Wall, Eyewitness Identificatiоn in Criminal Cases 161-162 (1965). Cf.
Commonwealth
v.
Swenson, supra
at 272 n.3. Further, while assessing the credibility of evidence is ordinarily the province of the jury,
Commonwealth
v.
Fitzgerald, supra
at 410, and authorities cited, there can be little probative weight attributed to evidence of an identification offered through a third-party observer to the identification which the identifying witness, under oath, has disclaimed. See
Gibbs
v.
State,
(b) James O’Connor. At trial, James O’Connor, another eyewitness to the shooting incident, testified that he was unable to identify the gunman from among those people present in the courtroom. In contrast to thе witness Ciambelli, however, O’Connor did testify that while viewing a photographic array at the Revere police station, he had selected a “couple of photographs” that he thought were photographs of the gunman. O’Connor’s subsequent testimоny, and that of Officer Gannon, clarified that the first photograph selected by O’Connor was of the defendant, whom O’Connor had unequivocally identified as the gunman at the time he viewed the photographic array. 3 The testimony of both witnesses was admitted as substantive evidence of prior identification by O’Connor. The defendant would have us rule that, according to the principles discussed with refer *650 ence to the witness Ciambelli, see part 1(a) supra, admission of that evidence for substantive purposes was error. 4
We disagree, and conclude that by his testimоny O’Con-nor sufficiently adopted his prior photographic identification so that evidence concerning the circumstances and substance of the identification were properly admitted on the issue of identity. See
Commonwealth
v.
Torres,
2. Grand jury testimony. Faced by the failure or refusal by the witness Ciambelli to acknowledge any prior photo *651 graphic identification of the defendant, see part 1(a), supra, the prosecutor interrogated Ciambelli concerning the substance of his testimony before the grand jury. From the outset, Ciambelli denied any degree of familiarity with his prior testimony, and it is evident from the record that the prosecutor did not confine his references to that testimony for the limited purpose of refreshing Ciambelli’s recollection. Specifically, at one point the prosecutor quoted the following question from the transcript of the grand jury proceedings: “Who did you [Ciambelli] identify as the man with the gun?” Ciambelli, who was also reading from the transcript, responded that he had identified the defendant as thе gunman before the grand jury. Ciambelli then hastened to discount his grand jury testimony as exaggerated, stating that it had no basis since he didn’t know the defendant and had never seen him.
We conclude that it was error to permit the jury, without limiting instructions, to consider Ciambelli’s grand jury testimоny. See
Commonwealth
v.
Bookman,
3. Disposition. On our review of the record, and particularly in light of the proseсutor’s closing argument and the judge’s instructions, which called special attention to evidence which should not have been admitted, we conclude that the errors committed were not harmless.
There was sufficient evidence, properly admitted, before the jury to withstand the defendant’s motions for required findings of not guilty on each of the three indictments. For the reasons indicated, however, there must be a new trial.
The judgments are reversed and the verdicts set aside.
So ordered.
Notes
In view of our disposition of this case, we need not address the defendant’s remaining contеntions of error, which involve issues that are unlikely to recur on retrial.
The only eyewitness who (in court) identified the defendant as the gunman admitted on cross-examination that he had identified the defendant’s companion as the gunman during a lineup several days after the shooting. The victim and his fellow combatant made no in-court identification, but both testified that they, too, had previously identified the defendant’s companion as the gunman. Three other witnesses who, with varying degrees of incertitude, testified to prior identifications of the defendant’s picture from among a photographic array, did not identify him
*647 in court. The remaining eyewitnesses called by the prosecution could make no identification implicating the defendant.
The uncertainty of the witnessеs at trial necessarily leads us to believe that there may have been intimidation of witnesses from some source. If so, tracing that source is a matter for the prosecution to pursue.
Officer Gannon’s testimony was that the second of the “couрle of photographs” selected by O’Connor was of the defendant’s companion, identified as such by O’Connor.
The defendant obliquely suggests that the identifications were also in some manner unreliable or made under unduly suggestive circumstances. We have treated those contentions as further argument that O’Connor’s identification evidence was admitted in error, but on examination of the record we find nothing to support the argument and conclude that it is wholly without merit.
Prior to undertaking the line of questioning at issuе here, the prosecutor expressly disclaimed any intention of employing the grand jury transcript to impeach Ciambelli’s credibility. The only other basis upon which Ciambelli’s grand jury testimony could be admissible was as past recollection recorded, see Bookman at 662 n.8, 665, and we conclude that defense counsel’s general objection to the questioning was sufficient to preserve the judge’s ruling under our ordinary standard of review.
We have reviewed the record and conclude that the defendant’s contention that a similar error was committed during the testimony of James O’Connor is without basis. No transcript was employed, and any references to O’Connor’s grand jury testimony were apparently undertaken with the purpose of refreshing the witness’ recollection, and his testimony was in the nature of present recollection refreshed. See Bookman at 662 n.8.