(concurring, with whom Kaplan and Wilkins, JJ., join. I concur in the denial of the motion for new trial, but on grounds that differ from those relied upon by the court. The court assumes, without deciding, that the defence of abandonment was available to the defendant as to the crime of murder. It then weighs the evidence and concludes that there is overwhelming evidence, independent of Johnson’s statement, that there was no abandonment by Graves. Therefore, it reasons, the admission of Johnson’s statement, although violative of Bruton v. United States, 391 U. S. 123, was harmless beyond a reasonable doubt.
Although there was substantial evidence that Graves had not submitted to arrest, I doubt that the weight of the independent evidence to that effect was overwhelming. Megna’s testimony is confused and is consistent with either version of the story. Taylor’s testimony is in some measure consistent with Graves’s version. She saw a man run, after O’Leary was shot, and then saw him stand in the center of Commonwealth Avenue for a minute. Against this we have the testimony of Shepard and Curran which supports the version that Graves did not submit to arrest. A portion of Johnson’s statement, which Graves contends was admitted in violation of the rule of the Bruton case, swpra, supports this version. Hence I hesitate to conclude that there was an overwhelming weight of evidence, independent of Johnson’s statement, to contradict Graves’s version of the facts.
In certain United States Supreme Court cases where violations of constitutional principles were held to be harmless beyond a reasonable doubt, it appears that the evidence aligned against the litigant’s position was more *874convincing and weighty than the evidence relied upon here. See Harrington v. California, 395 U. S. 250; Schneble v. Florida, 405 U. S. 427; Milton v. Wainwright, 407 U. S. 371; Brown v. United States, 411 U. S. 223. It is appropriate that high standards of quality and quantity of evidence should be required in such instances because appellate courts are totally reliant on printed records. Unlike the fact-finder (whether judge or juror), who has heard the witnesses and considers whether matters have been proved beyond a reasonable doubt, the appellate court has at best a very limited privilege of rejecting evidence as incredible.1 It is also crucial that the requirements for proof beyond a reasonable doubt should not be diluted at the appellate level, lest they eventually be diluted at the trial level.
Therefore, although I conclude that the admission of Johnson’s statement is harmless error, I prefer to follow different reasoning from that relied upon by the majority. I would decide the issue left undecided by the court, and hold that surrender as a result of arrest does not constitute the defence of abandonment, at least where the time interval between the arrest and subsequent crime is measured in seconds as in the case before us. See Commonwealth v. Green, 302 Mass. 547, 555; LeBlanc v. Commonwealth, ante, 171, 176-177; LaFave & Scott, Criminal Law 519. “To end an attempted robbery, where the robbers remain in freedom and possessed of a deadly weapon at the place of the attempted robbery until a fatal shooting takes place, there must be at least an appreciable interval between the alleged termination and the fatal shooting, a detachment from the enterprise before the shooting has become so probable that it cannot reasonably be stayed, and such notice or definite act of detachment that other principals in the attempted crime *875have opportunity also to abandon it.” Commonwealth v. Green, supra, at 555.
Taking the evidence in the light most favorable to the defendant, including his own in-court testimony, he submitted to arrest only seconds before the fatal shooting occurred. The evidence falls far short of warranting findings that the requisites of the Green case, supra, have been met, viz.: that there was “an appreciable interval of time between the alleged termination and the fatal shooting” and that there was “such notice or definite act of detachment that other principals in the attempted crime have opportunity also to abandon it.” Therefore, the judge was not required to submit the abandonment issue to the jury. Since the admission of Johnson’s statement could have only harmed the defendant on the issue of abandonment, and abandonment as a matter of law was not a defence in the case, the admission of the statement was harmless since it was not relevant to any issue in the case. The fact that the judge, perhaps in the interest of caution, chose to submit the issue of abandonment to the jury is no reason for us to give favorable consideration to an argument under the Bruton rule Avhich is necessarily based upon a non-issue. The interests of sound jurisprudence would be well served, also, by a clear statement that as matter of law a participant in an armed robbery does not create, by such scant and transitory evidence as appears here, a defence of abandonment for himself as to a murder charged against him under the felony murder rule.
Concededly, the difference between the reasoning relied on by the majority and the reasoning preferred in this concurring opinion is a subtle one. Nevertheless it is an important difference, because this concurrence, in a traditional appellate role, rules that evidence on an issue was insufficient for the jury’s consideration, while the majority opinion is based on an infrequently invoked appellate function of weighing and contrasting conflicting evidence as would a fact-finding judge or jury.
For example, the judge who rules on motions to suppress evidence frequently reaches conclusions “beyond a reasonable doubt” or (synonymously) “by clear and convincing evidence.” In such instances, he has seen and heard the witnesses. See cases collected in Commonwealth v. Murphy, 362 Mass. 524, 549-550.