The defendant appeals
1
from the denial of his
*514
second motion for a new trial.*
2
See
Commonwealth
v.
Festa,
Festa argues that the instructions by the judge pertaining to malice were prejudicially erroneous in light of decisions of this court and the Supreme Court of the United States, issued after the defendant’s trial, direct appeal, or his first motion for a new trial. He claims that conflicting instructions on the effect to be given the use of a deadly weapon require reversal. Specifically, he asserts that in one portion of the supplemental instructions, the judge told the jurors that “[wjhen the killing is caused by the intentional use of a deadly weapоn there arises a presumption of malice, at least in a situation where it is plain that the defendant had the victim in sight.” However, in his main instruction, the judge had already told the jurors that they could “infer malice from the use of a deadly weapon, such as a revolver, at least in the situation where the victim is in the view of the person charged.”
4
The defendant asserts that the word
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“presumрtion” in the charge automatically requires reversal of his conviction. See
Sandstrom
v.
Montana,
On appeal, we “view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury.”
Commonwealth
v.
Sellon,
Further, Festa’s cаse was tried and argued by both parties solely on the issue of the identity of the perpetrator. In such circumstances a flaw in the malice instructions is less significant. “[T]he use of thе word ‘presumption’ in the malice instructions [has] no bearing on [Festa’s] guilt, and . . . the instructions [do] not create a danger of grave prejudice or a substantial likelihood of a miscarriage of justice.”
Commonwealth v. Pisa,
In this court Festa also claims error in the instructions because the judge failed to charge on provocation. Festa failed to raise this issuе at trial or on his first appeal. “Issues not raised at trial or pursued in available appellate proceedings are waived.”
Commonwealth
v.
Pisa,
In this apрeal, Festa further alleges he was denied the effective assistance of counsel since his counsel failed to move to suppress statements Festa made аt the scene of the homicide, on the ground that the statements were involuntary because Festa was intoxicated and in shock.
6
The defendant concedes that therе was no police coercion, and the defendant does not claim any physical or psychological coercion by civilians. Cf.
Commonwealth
v.
Mahnke,
*517 The defendant alleges that his counsel was ineffective because in his summation his counsel stated that “the defendant didn’t present much of a сase here.” That statement, however, must be viewed in context. Festa’s attorney went on to point out that Festa’s “statement was already in, what he told the police, so that covers that part of it.” He then went on to criticize the Commonwealth for not offering in evidence the victim’s statement exculpating the defendant. 8 Considered in the сontext of the closing argument, this sentence does not demonstrate that the defendant had ineffective assistance of counsel. Compare Commonwealth v. Street, ante 281 (1983); Commonwealth v. Westmoreland, ante 269 (1983).
*518
Consistent with our duty under § 33E, we reviewed the entire case on the law and the evidence and concluded that the interests of justice did not require a new trial or the entry of a verdict of a lesser dеgree of guilt than that found by the jury.
Commonwealth
v.
Festa,
Order denying motion for new trial affirmed.
Notes
The record contains the first motion for a new trial and the judge’s findings and rulings. No appeal from the denial of that motion was perfected. In this appeal, the issues raised by the first motion have not been briefed or argued. We deem Festа’s failure to brief these issues as a waiver. An “appellate court need not pass upon questions or issues not
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argued in the brief.” Mass. R. A. P. 16 (a) (4), as amended,
Since Festa was convicted of murder in the second degree, leave of the single justice is not required to appeal the denial of his motion.
Commonwealth
v.
Zezima,
Since Festa’s offense “resulting in a second degree murder conviction upon an indictment in the first degree was committed before July 1, 1979,” he was entitled to G. L. c. 278, § 33E, review.
Commonwealth
v.
Davis,
Festa does not challenge the general instructions on the Commonwealth’s burden of proof and the presumption of innocence.
Provocation as a mitigating circumstance was not adequately raised in the evidence, and the judge indicated he was submitting voluntary manslaughter to the jury out of an abundance of caution. Further, “[t]he repeated failures of counsel [at trial, on apрeal, and in the two motions for new trial] to raise the point suggest that it was not thought to be critical.”
Commonwealth
v.
Grace,
At the scene, the defendant placed a pillow under the victim’s head аnd said, “You’ll be all right. You’ll be all right. I’m sorry.” He also said, “I’m helping you, Al. .. . I’m sorry, Al. I’m sorry, Al.” Festa kept repeating, “I’m sorry, Al. I’m sorry, Al.”
The defendant neither briefs nor argues the issue “whether a judge is ever requirеd to determine the voluntariness of statements to civilians in circumstances that fall short of coercion.”
Commonwealth
v.
Vazquez,
The closing, in pertinent part, reads as follows: “Now, the defendant didn’t present much of a case here. His statement was already in, what he told the police, so thаt covers that part of it. But we were in a quandary originally regarding a statement made by the deceased. I didn’t know where it was coming in or how it was coming in. But in any event, the Commonwealth didn’t put that statement in, and I think that’s very important for you to decide. Very important; very, very important that that statement by the deceased, Mr. Abruzzese — who put it in? Did the Commonweаlth put it in or the defendant put it in as his case? The defendant put it in. The Commonwealth rested yesterday. I had to put the statement in. And I would be willing to bet you every buck in your pocket now if Mr. Abruzzese said ‘John did it,’ that would have been the first statement put in. A1 Abruzzese didn’t say ‘John did it.’ They didn’t want that statement any more than the Man in the Moon. We have to really analyze the statemеnt, because this is the statement of the deceased. He was one of the persons, the participants; he was there. He got shot. He observed what happenеd.
“What did the statement say? Your memory is probably better than mine, but he was asked a series of questions by Detective-Lieutenant Card at the hospital —• a dying declaration is what it’s known as. A dying declaration is something when someone is dying they have a tendency to tell the truth. That’s what this means. They asked Mr. Abruzzese on the couch or the stretcher, ‘What happеned? What happened? Did Festa shoot you? Did John shoot you?’ ‘No,’ is the first word he said, ‘No, John didn’t shoot me. He’s a friend of mine,’ he said. I believe the lieutenant said that sometimes he was coherent, sometimes he was incoherent. They know his condition. He was shot in the head. But he answered these questions. They wrote them down. And I think he ended up by saying how ‘John wouldn’t do it. Of course he wouldn’t do it. John is a good friend of mine. He wouldn’t shoot me. He didn’t shoot me.’”
The original appeal was reviewed pursuant to G. L. c. 278, §§ 33A-33G, including § 33E. See
Commonwealth
v.
Festa,