¶1concurring.
¶2I agree with the Court that the twice repeated assurances by the police to the defendant that, in effect, he would be immune from prosecution if he cooperated with the authorities served to undermine the validity of Peters’ purported waiver of his constitutional rights. In consequence, the Commonwealth has been unable to demonstrate that appellant knowingly, intelligently and voluntarily waived his Miranda rights prior to his second and third statements to the police. I also agree with the Court that appellant’s failure to raise his double jeopardy claim prior to his second trial precludes consideration of that claim in this appeal. To the extent, however, that today’s opinion reaffirms the validity of Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), I disagree, and adhere to my view that Bartolomucciwas incorrectly decided. See 468 Pa. at 353-356, 362 A.2d at 242-44 (Pomeroy, J., dissenting).
¶3concurring.
¶4I am in agreement with the majority view that appellant’s initial inculpatory statement (C-l) was admissible at trial. At the time this statement was made appellant was not a suspect and was not subjected to custodial interrogation. Under these circumstances it is clear that there was no necessity for Miranda warnings to be given. I also believe that C-2, the evidence of the reenactment, and C-3 should have been suppressed because the Commonwealth failed to establish a knowing, intelligent and voluntary waiver of appellant’s Miranda rights.
¶5With respect to appellant’s double jeopardy claim, I agree that the issue has not been properly preserved for appellate review. However, I do not accept the reasoning of the majority insofar as it reaffirms Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234*89(1976). The claim of double jeopardy is a special plea in bar and consequently “. . . must be specially pleaded in the trial court, and may not be raised under a plea of not guilty . . . entered prior to . . . (a) second trial.” See Commonwealth v. Bolden, 472 Pa. 602,-n. 5, 373 A.2d 90, 94 n. 5 (filed April 19, 1977) (Dissenting Opinion, Nix, J., joined by O’Brien, J.) citing Commonwealth ex rel. Wallace v. Burke, 169 Pa.Super. 633, 636, 84 A.2d 254 (1951). The waiver in this case results from appellant’s failure to raise the double jeopardy claim before the commencement of the second action. The reference to and reaffirmance of the majority view in Commonwealth v. Bartolomucci, supra,was both unnecessary and unwise. Id. 468 at 349, 362 A.2d at 240. (Dissenting Opinion, Nix, J.)