¶1dissenting.
¶2The majority concludes that, even if appellant’s in-custody statement was improperly admitted into evidence at trial, the error was harmless because appellant’s trial testimony repeated the substance of the in-custody statement. As I stated in my dissenting opinion in Commonwealth v. Hart, 471 Pa. 271, 274, 370 A.2d 298, 300 (1977) (dissenting opinion of Roberts, J., joined by Nix, J.), the majority’s harmless error analysis cannot be reconciled with the Supreme Court’s decision in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). The majority asserts that Harrisonis factually distinguishable. While the facts of Harrison may not be the same as those in this case, the applicable constitutional rule is the same. The facts today’s majority claims the Supreme Court relied upon in Harrisonwere, in the express words of the Supreme Court, unnecessary to the Supreme Court’s decision.
¶3In Harrison v. United States, the United States Supreme Court held that, if an unconstitutionally obtained confession is admitted into evidence at trial, the government cannot use the defendant’s subsequent trial testimony against him unless the government can prove that the confession did not induce the testimony:
*544“The remaining question is whether the petitioner’s trial testimony was in fact impelled by the prosecution’s wrongful use of his illegally obtained confessions. It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand . . But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. . . . Having ‘released the spring’ by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.”
¶4392 U.S. at 224-25, 88 S.Ct. at 2011. Thus, the majority’s effort to distinguish Harrisonreflects a complete misreading of the Supreme Court's opinion. The Supreme Court did not require that Harrison assert his fifth amendment privilege before trial to prevent the government from using his trial testimony against him; it was enough to prove that the illegally obtained confession was admitted into evidence before Harrison testified. Once it was shown that the confession was illegally obtained, the burden was on the government to prove that the confession did not “impel” the defendant’s testimony. By requiring appellant to show more than that his in-custody statement was unconstitutionally obtained and that it was admitted into evidence before appellant testified, the majority has shifted the burden of proof onto appellant, contrary to both Harrisonand Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
¶5Only when the Supreme Court addressed the issue whether the government had shown that admission of the confession did not impel Harrison’s testimony did the Supreme Court advert to counsel’s statement Harrison would not testify at trial. Even then the Court was careful to explain that it would have found Harrison’s testimony impelled by the confession, even if counsel had not made such a statement:
*545“No such showing [that the confessions did not induce defendant’s trial testimony] has been made here. In his opening statement to the jury, defense counsel announced that the petitioner would not testify in his own behalf. Only after his confessions had been admitted in evidence did he take the stand. . . . But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime
¶6392 U.S. at 225, 88 S.Ct. at 2011-12 (emphasis added).
¶7Moreover, the majority’s reliance on appellant’s failure to state at the start of trial his intention to invoke the privilege against self-incrimination overlooks that the trial at which Harrison testified took place before Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In this case, by contrast, appellant’s pre-trial application to suppress was denied almost three months before trial. Thus, appellant knew well before trial the contents of his in-custody statement, and that it would be admitted at trial. If anything, a statement by appellant at the beginning of trial that he would not testify would make it appear less likely that his trial testimony was impelled by admission of his in-custody statement. A defendant’s decision to change his tactics and testify at trial would appear to be the product of some unanticipated evidence, rather than an attempt to explain a statement he had known about for three months. To hold that a defendant must announce at the beginning of trial that he does not intend to testify is to require the defendant to perform a meaningless formality in order to preserve his suppression claim.
¶8My review of the record convinces me that the Commonwealth has failed to meet its burden of proving that appellant was impelled neither to testify, nor to testify in the manner he did, by the admission of the in-custody statement.
¶9. Indeed, the record adds additional support to the conclusion that use of appellant’s in-custody statement induced his trial testimony. *546The Commonwealth’s principal witness, James Gaddy, had given a prior inconsistent statement. In his trial testimony, Gaddy named appellant as one of five youths who attacked the victim. In a statement to the police, Gaddy had also named five youths, but did not include appellant among them. Three of the youths Gaddy named at trial were different from those Gaddy identified in his statement to the police. In ruling on appellant’s demurrer at the close of the prosecution’s case, the tried court made clear the importance of appellant’s in-custody statement:
“at this stage of the demurrer, Gaddy had testified in court specifically putting the defendant at the scene. Whether his testimony is — in view of the discrepancies and his situation [ — ] sufficient to carry for a conviction is another matter, but on the demurrer stage, he has certainly put the defendant as part of the conspiracy, and as part of the attackers of Flowers, and defendant’s own statement . . . puts the defendant in — at the scene and participating in the attack.” (emphasis added)
¶10As appellant had waived jury trial the trial court was also the finder-of-fact. Thus, the court’s statement, recognizing that Gaddy’s credibility was questionable and emphasizing the importance of appellant’s in-custody statement, highlights how the admission of appellant’s in-custody statement may have induced appellant to testify at trial, or to testify as he did. While the court’s recognition of the importance of appellant’s statement adds additional support for the conclusion that the Commonwealth has failed to meet its burden of proof, I would not require a defendant to point to such statements by the court. Harrisonholds that once it is shown the defendant’s statement was admitted into evidence the burden is on the Commonwealth to prove the statement did not induce the testimony.
¶11. Because post-verdict motions were filed before our decision in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), failure to raise this issue in written post-verdict motions does not bar appellant from raising this issue on appeal. See Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793 (1968).
¶12dissenting.
¶13The majority cites our recent decision in Commonwealth v. Hart, 471 Pa. 271, 370 A.2d 298 (1977) to support its opinion that even if admission of appellant’s confession were found to be error, it would be “harmless error beyond a reasonable doubt.” I dissent for the reasons stated in the *547dissents of Mr. Justice Roberts and Mr. Justice Nix and in my concurring opinion to that case. Hart, supra,471 Pa. at 275-77, 370 A.2d at 300-01.