The defendant was convicted by a jury on June 8, 1981, of murder in the second degree. He was sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole. On June 10, 1981, he moved for a required finding of not guilty after discharge of jury, or for a new trial. The trial judge denied this motion after a hearing. On appeal from this denial and from his conviction, the Appeals Court concluded that the judge’s refusal, in the circumstances of the case, to give the instructions requested by the defendant on accident made a new trial necessary. Accordingly, it ordered that the judgment be reversed and the verdict set aside.
Commonwealth
v.
Lowe,
Both parties petitioned this court for further appellate review. We granted both petitions. We conclude that the evidence which was presented at trial was sufficient to support a verdict of guilty of murder in the second degree, and that there is no basis on which to reverse the conviction.
We note first a procedural question raised by the Commonwealth about the defendant’s motion for a required finding of not guilty after discharge of jury.
1
At the close of the Commonwealth’s evidence on June 5, 1981, the defendant moved for a required finding of not guilty. The offense charged in the indictment was murder. Under the indict
*99
ment the defendant could have been found guilty of the included offenses of murder in the second degree and manslaughter. See
Commonwealth
v.
Burke,
The Commonwealth fails, however, to cite any authority or give any reason in support of its contention. The Commonwealth has not complied with the requirements of Mass. R. A. P. 16 (a) (4), as amended,
*100 We summarize the evidence most favorable to the Commonwealth. Early on the morning of Saturday, October 25, 1980, the Quincy police, answering a call, found Mary Beth Graziano, age nineteen, lying dead on the floor of her bedroom at the front of her second floor Quincy apartment. She lay on her back with a single bullet hole in her chest. A single .22 caliber discharged cartridge casing was found on the bedroom rug, but the weapon which fired it was never discovered. There was no sign of a struggle. On the floor near Graziano was a woman’s purse with a wallet protruding from it. In a side pocket of the wallet was a $50 bill folded in quarters. No other money was found in the wallet.
An autopsy revealed that a .22 caliber bullet had entered Graziano’s left chest five centimeters to the left of her mid-breastbone line. Death was due to cardiovascular collapse and shock secondary to a gunshot wound of the great vessels of the heart. From the pattern of unburned gunpowder around the place where the bullet entered the body, it could be inferred that the gun was fired at a distance of between one and two feet away. In the opinion of the Commonwealth’s firearms and ballistics expert, if a woman of Grazi-ano’s height were holding a .22 caliber handgun in her right hand one to two feet from her body, she could not discharge it in such a way that the bullet would enter her left chest at a thirty degree angle going from her left to her right side. Graziano’s mother testified that her daughter was right-handed. 2 The Commonwealth’s expert in forensic science concluded, from the amount of antimony and barium found on Graziano’s left hand, that she either discharged a firearm with that hand or had that hand in close proximity to a discharging firearm. 3 The autopsy was performed on October *101 25, 1980, the day Graziano died. On October 26, 1980, a State trooper who took fingerprints from Graziano’s body observed a large black and blue area on the upper portion of her right cheek.
Shortly before Graziano’s body was discovered, a neighbor in an adjoining apartment heard a commotion and a loud argument in Graziano’s apartment. She could distinguish a male and a female voice in this argument but could not make out any words. She then heard a gunshot. After the gunshot the voices ceased. A neighbor who lived in the apartment directly beneath heard “a report” and within three minutes thereafter heard someone coming down the stairs with a great rush. He testified that he looked out the window and saw the defendant leap over three steps leading from the piazza of the apartment house and run down the walk to the street. There were two cars parked in front of the apartment house. The defendant ran between them around to the passenger side of one of them which was parked with its driver’s side to the curb. As he did so, he looked over his shoulder at the upstairs window. He then ran around to the driver’s side, got in the car, and drove off in a hurry.
Mary Beth Wasik, asleep in her bedroom at the back of the apartment she shared with Graziano, was awakened by a “big bang.” She jumped out of bed and went to her closed bedroom door. Standing there, she heard Graziano say, “Oh, my God,” in a very faint voice. She then ran out of her bedroom and out a back door located near her bedroom. As she ran out the back door, she heard Graziano say, “Oh, my God,” faintly again. She ran down the stairs. She then ran to a neighbor’s apartment and asked the neighbor to call the police.
Both Wasik and Natalie Morris, who was a bartender at the Narcissus, a Kenmore Square club frequented by the defendant and by Graziano, testified that the defendant and *102 Graziano had been boy friend and girl friend, but that the relationship had become less close. Wasik testified that both she and Graziano had moved to Quincy from Vermont in July, 1980. Graziano met the defendant that same month and fell “head over heels for him.” Wasik saw the defendant at the apartment five or six times between July and October, 1980, and the defendant stayed overnight with Graziano. About a month before Graziano died, the relationship changed. The defendant came over less often, Graziano did not talk about him much anymore, and she began seeing someone else. The last time Wasik saw the defendant was about a month before Graziano died.
The Thursday night prior to her death, Graziano went out with Wendy Brooks. They went first to the Narcissus. Wendy Brooks met the defendant briefly there. The defendant and Graziano had a conversation together for" about one-half hour out of Brooks’s hearing. Brooks, Morris, and Graziano then left the Narcissus together. The defendant did not accompany them, and Brooks did not see him again that night. Brooks last saw Graziano about 4 or 4:30 a.m. , Friday morning, when Graziano left the after-hours place to which she and Brooks had gone. Graziano left with a man whom Brooks did not know.
About 12 p.m. Friday or 12:30 a.m. Saturday, Natalie Morris and Graziano went to a birthday party at the Cache, a club in Boston. Mary Beth Wasik joined them there later. Neither Morris nor Wasik noticed anything unusual about Graziano’s face. Morris specifically stated that she did not remember seeing any marks or bruises on it. Both Morris and Wasik went home at about 2 a.m. when the club closed. When Morris last saw her, Graziano was standing outside the Cache club. Neither Morris nor Wasik saw the defendant that evening.
According to the testimony of the doorman at the Narcissus club, the defendant was at that club from about 11 p.m. Friday until shortly after 2 a.m. Saturday. About 2 a.m. Graziano, appearing distressed, knocked on the club’s locked door and asked for the defendant. The doorman let her in. *103 She and the defendant left the club, a moment apart, about 2:10 a.m.
About 6:50 a.m., two Quincy police officers in a cruiser noticed Graziano and the defendant in an automobile. The defendant was driving. Graziano was sitting very close to the defendant, kissing him. The police followed the automobile for about six blocks until it turned onto a road which led to Hamden Circle. About 7:40 a.m. these officers received a call to investigate a shooting at Graziano’s apartment at 110 Hamden Circle. There they found Graziano’s body.
The defendant was arrested about 10 p.m. Saturday, October 25, 1980, as he was leaving an apartment in Framing-ham where he lived with one Patricia Marsh. When he came out of the apartment building he was carrying a box containing .22 caliber ammunition and a .22 caliber revolver. 4 After the defendant had been informed of his rights and was being driven to the Quincy police station, Lt. Neil MacDonald of the Quincy police asked him if he had a driver’s license. The defendant replied, “No, and I probably won’t need one for about twenty-five years.” About 11 p.m. , while the defendant was being fingerprinted, he twice said, “This could all have been avoided.” About 8:30 the next morning, after one Quincy police officer told another that the police were going to conduct a skin-diving search for the murder weapon at Black’s Creek in Quincy, the defendant said, “You won’t find the gun there.”
The judge admitted, over the defendant’s objections, a great deal of testimony from witnesses as to statements Gra-ziano had made to them in the months and days preceding her death. The judge instructed the jury, however, that they were to consider testimony as to statements Graziano had made only as evidence of her state of mind, not as proof of the truth of anything asserted in those statements. He additionally instructed them that Graziano’s state of mind *104 might be relevant in that it might tend to show a motive for the defendant to shoot her, but that it could only be relevant if the jury found from either direct or circumstantial evidence that her state of mind had been communicated to the defendant.
1. The admissibility of Graziano’s statements. The evidence admitted included statements by Graziano to the witnesses that the defendant was a pimp; that he always carried a small gun because in his business he never knew what might happen; that he took Graziano to bars where he did business with “his ladies”; that Patricia Marsh, with whom the defendant lived, was his “head lady”; and that he had struck Graziano in August, 1980, and bruised her face in an argument over a comment she had made to Marsh. Wendy Brooks testified that on the Thursday night before Graziano died she had told Brooks that in August she had worked for herself on the side as a prostitute and also that the defendant “had set up tricks for her.” Leslie Prático, Graziano’s best friend, testified that on October 10, 1980, Graziano told her that Patricia Marsh had set her up with some “tricks”; that she had “chickened out” of one “trick”; and that she had once worked as a prostitute out of a hotel in Cambridge.
It was error to admit this testimony as to statements Graziano had made, even for the limited purpose for which the judge admitted them. An extrajudicial statement of a declarant is not ordinarily admissible if it is a statement of memory or belief to prove the fact remembered or believed. See
Shepard
v.
United States,
Other extrajudicial statements by Graziano were admitted properly. Leslie Pratico testified that on October 10 Graziano told her that she and the defendant had talked about prostitution, but that she told him that she would not prostitute herself; Graziano said to Pratico at the same time that she needed money for rent and for school and that if she had to work as a prostitute she intended to keep the money herself and not give it to the defendant. On the Wednesday before her death Graziano told Pratico, over the telephone, that she had made $588 by working a convention and that
*106
she planned to make about that much money the next day by going back to it. Pratico testified that Graziano was happy about the money she was making and that the defendant’s name was not mentioned in this conversation. Except for the part that Graziano had already worked a convention and made $588, which was a statement of memory as to past facts, these statements by Graziano were admissible as statements of intent or plan.
Commonwealth
v.
Weichell, supra. Commonwealth
v.
Borodine, supra.
See
Commonwealth
v.
Trefethen,
The latter statements, being properly treated as admissible under the state of mind exception to the hearsay rule, were probative as to the victim Graziano’s state of mind. Such statements were relevant as to motive, however, only if it could be shown that the defendant was aware of that state of mind prior to the homicide.
Commonwealth
v.
Van Liew,
As to the portions of hearsay improperly admitted, the same limiting instructions were given. Although some of Graziano’s statements were improperly admitted, they were cumulative in nature, and we see no reversible error in their admission.
Commonwealth
v.
Bongarzone,
*107
2.
Sufficiency of evidence of malice aforethought.
In reviewing the denial of a motion for a required finding of not guilty in a criminal case, the standard which we apply is whether the evidence, read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt.
Commonwealth
v.
Amado,
3.
Sufficiency of the charge: accident.
Patricia Marsh, with whom the defendant lived, testified that on the day that Graziano died, the defendant told Marsh that “he was out and that he had run into [Graziano] and there was an accident.” The evidence thus fairly raised the possibility of accident, and the defendant was entitled, if he so requested, to a jury instruction that the Commonwealth bore the burden of proving beyond a reasonable doubt that the shooting was not accidental.
Commonwealth
v.
Zezima,
In
Commonwealth
v.
Zezima, supra
at 756, we stated: “A defendant is also entitled, as a matter of due process, to have the judge instruct the jury that the Commonwealth
*110
has the burden of proving that a shooting was not accidental, when that issue is fairly raised.
Commonwealth
v.
Zac-cagnini,
In Zezima, however, the judge used language indicating that the jury had “to find” the defendant’s conduct to be unintentional. We concluded that “[sjince [the] instruction on the Commonwealth’s general burden of proof was limited to one brief portion of the charge, the judge’s failure to inform the jury that the Commonwealth bore the burden of disproving accident, his use of ‘finding’ language, and most significantly, his failure to establish the ‘nexus’ between proof of malice and disproof of accident, deprived the defendant of due process. The errors in the instructions on malice and the failure to instruct on accident could have led the jury to shift the burden of proof from the Commonwealth to the defendant.” Zezima, supra at 757.
Similarly, in
Commonwealth
v.
Robinson, supra,
involving a claimed defense of duress, the defendant claimed there was no explicit instruction that the Commonwealth bore the burden of negating duress beyond a reasonable doubt. We stated that the “‘critical’ part of a constitutionally sufficient charge [is] that a ‘nexus’ be established between the elements of the crime charged, and the absence of the particular defense.”
Id.
at 207. Thus, since the judge adequately charged the jury in that case as to the burden of the Commonwealth to establish the free will of the defendant to commit the crime alleged, without shifting the burden of proof, we concluded there was no error. “[A]ny questionable remarks were overcome by the charge as a whole which was sufficient to inform the jury about their true duty.”
Id.
at 208. Of similar import is our discussion in
Lannon
v.
Commonwealth, supra.
Thus, as we view
Zezima, Robinson,
and
Lannon,
the vice they address is the use of burden shifting language. These cases also stand for the time-honored proposition that, if a charge, viewed as a whole, adequately informs a jury of the burden of the Commonwealth
*111
to establish each element of the crime, including the disproof of a so called affirmative defense (e.g., self-defense, insanity, alibi, accident), there is no error.
Commonwealth
v.
Robinson, supra
at 203. See
Commonwealth
v.
Fitzgerald,
The judge’s charge in this case emphasized several times that the Commonwealth had the burden of proof to establish malice aforethought in order to find the defendant guilty of murder in the second degree. In further refining this instruction, the judge emphasized throughout the charge that malice could not be found unless the jury found the shooting to be intentional.
10
Considering the charge in its
*112
entirety,
Commonwealth
v.
Fluker,
Judgment affirmed. 12
Notes
The defendant’s written motion after the discharge of the jury was simply for a finding of not guilty or for a new trial. At the hearing on the postconviction motion the defendant’s counsel asked the judge also to consider entering a finding of guilty on so much of the indictment as charged manslaughter.
This evidence apparently was offered to foreclose the argument (which was not raised by the defendant) that the victim committed suicide.
Antimony and barium are two elements contained in the primer mixture of a firearm’s cartridge. When the firearm is discharged, gases containing these elements escape from the barrel and from the areas of the cylinder, hammer, and trigger. The Commonwealth’s expert in forensic chemistry testified that gunpowder primer residue would be found on a *101 person’s hand if she had recently fired a weapon or had been in close proximity to one being fired. He did not express an opinion as to which possibility was more likely to have caused the residue on Graziano’s hand.
This revolver was not the weapon which fired the bullet that killed Graziano.
The defendant argues only that the statements by Graziano that the defendant was a pimp should not have been admitted. His argument is on two grounds: that such statements are evidence of his prior criminal conduct, and that they are hearsay. Only the second of these grounds is a valid one, since the evidence that the defendant was a pimp was relevant to the establishment of a motive on his part to murder Graziano. See
Commonwealth
v.
Young,
The Commonwealth used Morris’s statement to the police that she knew the defendant to be a pimp to impeach her statement at trial that she did not know for a fact what the defendant did for a living. Since the statement to the police was apparently an assertion that Morris knew of her own personal knowledge that the defendant was a pimp, it was not a hearsay statement and was inconsistent with her testimony at trial. It was therefore admissible for impeachment purposes, a proper foundation having been made. See G. L. c. 233, § 23. Wasik’s testimony that she asked Graziano whether the defendant was a pimp, by the nature of its form as a question, was not offered to prove the truth of any matter. The question might have been excluded, however, as calling for incompetent hearsay evidence.
Although the evidence of consciousness of guilt — that the defendant did not call for help after Graziano was shot, that he ran away taking the death weapon with him and hid it, and that he made various incriminating statements to the police — is not enough by itself to warrant a finding of guilt, this evidence could be considered by the jury along with the other evidence in the case. See, e.g.,
Commonwealth
v.
Best,
We note that the judge also charged the jury that they could find the defendant guilty of the lesser included offenses of voluntary and involuntary manslaughter. The defendant raised no objection to this portion of the charge.
The instructions which the defendant requested were as follows:
“An act is ‘knowingly’ done if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.
“When a person commits an act through misfortune or by accident under circumstances that show no evil design, intention or culpable negligence, he does not thereby commit a crime.”
Robinson
and
Lannon
were decided before the trial of this case. The Appeals Court based its decision primarily on these cases.
For example, the judge stated: “Again, a very simple definition of murder: Any intentional killing of a human being without legal justification or excuse, with no extenuating circumstances sufficient in law to reduce the crime to manslaughter, is malicious within the meaning of that expression and is murder and not manslaughter. . . . Again, the killing must be intentional and you must keep in mind my previous definition of specific criminal intent. ... If a man intentionally and without legal justification, excuse or extenuation uses upon the body of another a force, for example, a bullet from a revolver, that as used will probably do grievous bodily harm to that other and will create a plain and strong likelihood that that other will die as a result, a jury may draw a permissible inference that that act is malicious within the meaning of the law even though the doer of that act was indifferent as to whether death would result or wished and hoped that death would not result. . . . And as I have said, malice may be proved from the intentional use of a deadly weapon such as a gun.” (Emphasis supplied.)
As to involuntary manslaughter, the judge stated: “Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct” (emphasis supplied).
In response to questions from the jury, the judge later stated: “You will remember earlier this afternoon I told you that murder was an intentional killing .... A homicide or murder is an unlawful killing, an intentional killing. It is often said to be a killing with malice aforethought, an unlawful killing, a killing with malice aforethought. . . . So, again, murder is the killing of a human being without legal justification or excuse and without such extenuation as may reduce the crime to manslaughter. . . . So, again, murder is a killing with malice aforethought. ... If the killing was intentional though the act followed the thought immediately, without time for deliberation or reflection, and there was no legal justification, excuse or extenuation, the killing was with malice aforethought within the meaning of that very technical and *112 somewhat misleading expression of law. . . . Any intentional killing of a human being without legal justification or excuse, with no extenuating circumstances sufficient in law to reduce the crime to manslaughter, is malicious within the meaning of that expression and is murder and not manslaughter. . . . And as I said this morning, if you can draw two inferences from the same evidence, you cannot draw the inference favorable to the government’s case because, as I said, the element of reasonable doubt has entered the picture. Suppose, for instance, a deadly weapon is used and someone is killed and a person is charged with a killing. If the jury from all the evidence can draw two inferences, one inference that the kilting was intentional and the other inference that it was not, the jury cannot then draw the inference that it was intentional because there are two different conclusions you could reach and where the defendant’s guilt or innocence hangs upon a conclusion that is drawn from circumstances, the jury must be convinced to a point beyond reasonable doubt that there is only one conclusion and not two conclusions. ... If one person kills another, even with a deadly weapon such as a gun, the jury can draw the inference that there was no intent to kill. This is voluntary manslaughter. . . . Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct.” (Emphasis supplied.)
The case of
Commonwealth
v.
Martin,
The defendant has claimed error arising from alleged improprieties in the prosecutor’s closing argument. We see no need to discuss the point beyond stating that we have reviewed the transcript and agree with the conclusion of the Appeals Court to the extent it concluded no reversible error to be shown on this ground.