In his petition for appeal, Cortez–Hernandez asserted that the trial court abused its discretion when it denied him the opportunity for re-cross-examination of a Commonwealth's witness concerning matters brought out for the first time on re-direct examination of the witness by the prosecutor. The panel majority, although assuming without deciding that the trial court had erred, did not further reach the merits of Cortez–Hernandez's assignment of error, finding that Cortez–Hernandez's failure to proffer the questions he would have asked prevented this Court from determining whether any error was harmless. However, in his petition for rehearing en banc, Cortez–Hernandez improperly recast his assignments of error. We do not address Cortez–Hernandez's modified assignments of error presented in his petition for rehearing en banc, inasmuch as counsel may not substantively alter his assignments of error en banc from those originally granted for appeal without leave of Court. See Rule 5A:12(c) ( “Only assignments of error assigned in the petition for appeal will be noticed by this Court.”); see also Dowdy v. Commonwealth, 278 Va. 577, 590 n. 14, 686 S.E.2d 710, 717 n. 14 (2009) (It is improper for an appellant to substantively alter an assignment of error from that stated in his petition for appeal.).
We also note Cortez–Hernandez has abandoned his assertion that the trial court erred in refusing to grant his proposed jury instruction on voluntary manslaughter, only asserting in his petition for rehearing en banc that the panel opinion “misconstrued the factual record in determining that the trial court properly refused an excusable self-defense instruction.” His assignment of error that the trial court erred in refusing to give a voluntary manslaughter instruction is, thus, not reviewable by this Court en banc and the trial court's decision to refuse a voluntary manslaughter instruction remains undisturbed for the reasons stated in the panel opinion. See Ferguson v. Commonwealth, 51 Va.App. 427, 433, 658 S.E.2d 692, 695 (2008) (“The grant of en banc review vacates the prior panel opinion in toto,” rendering the former judgment a nullity and “void[s] the decision of the panel as to the issues before this Court en banc.”). We are, thus, limited to the assignments of error originally granted for appeal that were also presented in Cortez–Hernandez's petition for rehearing en banc. Id. The issue of whether the trial court erred in refusing a jury instruction on voluntary manslaughter is, therefore, not before us, and we therefore reinstate the holding and judgment of the panel opinion on that particular issue as well. Id.