The opinion
Brown, J.
(concurring in result). I concur in the result reached by the majority, as I must, because there was "evidence” from which the jury could find the defendant guilty of assault by means of a dangerous weapon. See Commonwealth v. Mangula, 2 Mass. App. Ct. 785, 786 (1975), and cases cited.
I cannot, however, go along with the majority’s reasoning with regard to the prosecutor’s remark. Although I do not believe the prosecutor’s remark was made in bad faith (compare Commonwealth v. DiRoma, 5 Mass. App. Ct. 853, 854 [1977], and cases cited), it was negligently made. The record does not show that the prosecutor ever spoke to the witness prior to trial (compare Commonwealth v. Martin, 372 Mass. 412, 419-420 [1977]); indeed, it suggests that he relied on the hearsay statements of others. Compare Commonwealth v. Cheek, 374 Mass 613, 617 (1978). This carelessness on the part of the prosecutor is particularly disturbing in this circumstance, as no gun (or shell casings) was introduced in evidence and the defendant claimed that the testimony by the police officers concerning the shots allegedly fired was either imagined or intentionally fabricated. However, as the majority point out, the issue was never presented squarely to the judge; 1 thus, on this record, I am compelled to concur, but in result only and without enthusiasm.
It does seem, however, quite reasonable that defense counsel might not have wished to redirect the jury’s attention to comments concerning the presence of a gun when none had been introduced in evidence.