(dissenting). I would reverse the convictions of armed robbery and armed assault in a dwelling house with intent to commit a felony. The evidence did not warrant those convictions. I would remand this case to the Superior Court for the entry of verdicts of guilty of unarmed robbery and assault in a dwelling house with intent to commit a felony and for the imposition of sentences for those offenses.
The court correctly says, ante at 723, that there was evidence that, when the victim “got up from the chair where the defendant had told him to sit . . . [t]he defendant put his hand in his ‘pocket and motioned it’ toward the victim and said, ‘I’ll blow you away.’ The victim said that the defendant carried himself as if he was armed with a gun. The victim said he was afraid he would be harmed. The victim did not see a gun.” There was no other evidence bearing on the question whether the defendant was armed when, as the indictments allege, he assaulted and robbed the victim.
In holding that the evidence was sufficient to warrant the jury’s guilty verdicts, the court concludes that Commonwealth v. Delgado, 367 Mass. 432 (1975), and not Commonwealth v. Howard, 386 Mass. 607 (1982), governs. Ante at 723. In both of those cases, by words and body language, the defendant told the victim that he had a gun and was prepared to use it. Delgado, supra at 434. Howard, supra at 607. In neither case was a gun seen or thereafter found. Delgado, supra at 436. Howard, supra at 609. In neither case was there evidence, other than the aforementioned communication, that the defendant was armed. Yet, in Delgado, decided in 1975, the court held that the evidence warranted a *735finding that the defendant was guilty of robbery “with a dangerous weapon, to wit: a gun,” id. at 437, and, in Howard, decided in 1982, the court held that the evidence did not warrant such a conclusion. Id. at 611. The court in Howard concluded that “where a robber had no instrumentality at all, although he said he had a gun, a conviction of armed robbery is not warranted.” Id. at 608.
As the court points out here, ante at 724, in Howard “[the court] said that ‘[i]t is the absence of any basis to infer that the defendant may have had a gun that distinguishes [Howard] from Commonwealth v. Delgado.'" The fair implication of that explanation is that, if there had been an evidentiary basis for the jury in Howard to find that the defendant “may have” had a gun, the evidence would have warranted the jury in finding beyond a reasonable doubt that the defendant actually had a gun when he robbed the victim.
The court’s rationale in Howard for distinguishing Delgado was that, in Delgado, the evidence showed that the defendant had an opportunity before he was apprehended to discard a gun {if he had one), which would have warranted the jury in finding that he “may have” had a gun, whereas, in Howard, the defendant did not have such an opportunity, so the jury would not have been warranted in finding that the defendant “may have” had a gun. Howard, supra at 610. As a result, the court reversed the conviction in Howard while implying, at least, that Delgado was still good law.
The court now repeats the distinction it made in Howard, saying:
“Unlike the defendant in Howard [and like the defendant in Delgado], Jackson was not apprehended in the course of the robbery. Thus, Jackson’s conduct and words with his hand in his jacket stating that ‘I’ll blow you away’ were designed to place the victim in fear and did in fact do so. In these circumstances, there is no reason not to take an assailant at his word.
“Because the defendant, like Delgado, had the opportunity to dispose of the gun before he was arrested, a *736distinguishing fact from Howard, it was proper to instruct the jurors [and, by implication, to submit the armed robbery and armed assault indictments to the jury] that it was up to them to determine whether the defendant was armed with a gun when he said, ‘I’ll blow you away’ during the crimes.” Ante at 723.
I wrote a concurring opinion in Howard. Id. at 611-618 (O’Connor, J., concurring). I agreed that the evidence in that case did not warrant a finding that the defendant was armed at the time of the alleged robbery, id. at 611, but I argued that the same result should have obtained in Delgado and that the Howard court should have expressly overruled Delgado. Id. at 618. I wrote in part that “[i]n light of common experience [see Commonwealth v. Latimore, 378 Mass. 671, 678 (1979)], a defendant’s statement during a robbery that he has a gun, threatening as such a statement is, does not warrant an inference beyond a reasonable doubt that in fact he has one. Common experience suggests that a robber who does not have a weapon may say he has one in order to facilitate the robbery. This is unlike a defendant’s statement, after the crime has been completed, that at the time of the crime he had a weapon. See Commonwealth v. Fiore, 364 Mass. 819, 822 (1974); Commonwealth v. Kimball, 321 Mass. 290 (1947). Common experience tells us that ordinarily such an admission is not made unless it is true.” Id. at 612-613. In my concurrence in Howard, I also stated: “Even if the defendant has moved from the crime scene before being apprehended by the police, so that if he had a gun he could have disposed of it, a jury would not be warranted in finding that he had a gun. This is because evidence of such a circumstance is irrelevant; it lacks probative worth.” Id. at 613. Evidence that a defendant may have disposed of a gun has no tendency whatsoever to show that he did dispose of a gun, and therefore it sheds no light on the critical question whether he ever had a gun. Evidence of the defendant’s words and body language at the time of the alleged crimes is insufficient, standing alone, to warrant a finding beyond a *737reasonable doubt that the defendant was armed. It is illogical and grossly unfair to a defendant to say that evidence that is inadequate to warrant a finding beyond a reasonable doubt that he was armed at the time of a robbery or assault is somehow elevated to that lofty plateau by additional evidence that he had time to dispose of a weapon if he had one that he may have (Howard, supra at 610) or may not have had a gun and disposed of it. For all that appears in this case, the “robber had no instrumentality at all, although he said he had a gun,” id. at 608, and therefore the “conviction [s] of armed robbery [and armed assault are] not warranted.” Id.