Dissenting Opinion by
Me. Justice Roberts:Only recently this Court has held that while tacit admissions may not be introduced in future trials, the Commonwealth’s utilization of a tacit admission will not vitiate any trial which became final, that is where the defendant has exhausted all means of direct appel*378late review, before June 13, 1966. Commonwealth v. Dravecz, 424 Pa. 582, 592, 227 A. 2d 904, 909 (1967) (Eagen, J., concurring). I have already expressed my disagreement with the majority’s decision not to give full retroactive effect to the demise of the tacit admission rule. Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 91, 223 A. 2d 296, 301 (1966) (dissenting opinion); Commonwealth v. Dravecz, 424 Pa. 582, 595, 227 A. 2d 904, 911 (1967) (concurring opinion). See also United States ex rel. Smith v. Brierly, 267 F. Supp. 274 (E.D. Pa. 1967) (J.S. Lord, III, J.).
Petitioner’s conviction did become final before June 13, 1966; accordingly if this case involved a typical tacit admission I would simply note a dissent based upon my opinion in Shadd and Judge Hoffman’s excellent dissenting opinion in the instant case, 207 Pa. Superior Ct. 274, 278, 217 A. 2d 824, 825 (1966), with which I am in full accord. However, I believe it is incumbent upon me to explain why Drawees does not control this case.
Ralph Staino was arrested at 1:00 A.M. on Sunday, April 3, 1960 in Philadelphia, and was then taken to the Reading Police Barracks, located some sixty miles from the scene of his arrest. When Staino arrived in Reading, he was greeted by a police captain who told him of the reason for his arrest, informed him that he had a constitutional right to remain silent and warned him that anything he might say could be used against him at trial. Thereupon, the police read to Staino a confession by one Robert Poulson, later repudiated, implicating Staino in the burglary for which he stands convicted; Staino responded by either informing the police that “I have nothing to say”, or by remaining mute. Yet despite the warnings given him prior to the reading of Poulson’s confession, Staino’s decision not to deny the truth of the statement was admitted, over objection, at his trial as a tacit admission.
*379The theory upon which tacit admissions have, in the past, been held to be reliable evidence is that when a statement “made within the hearing and in the presence of a person (except in judicial proceedings) is incriminating in character and naturally cails for a denial, but is not challenged by the accused despite full opportunity and liberty to speak, the statement and the fact of his failure to deny are proper evidence of an implied admission of the truth of the accusatory statement.” Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A. 2d 296, 298 (1966). In my view Poulson’s statement did not naturally call for a denial from S taino. Staino’s so-called tacit admission was the result of police tactics which amounted to “an indefensible sort of entrapment,” Raley v. Ohio, 360 U.S. 423, 426, 438, 79 S. Ct. 1257, 1260, 1266 (1959); Cox v. Louisiana, 379 U.S. 559, 571, 85 S. Ct. 476, 484 (1965), incompatible with the fourteenth amendment.
In Raley v. Ohio, supra, the defendants were convicted of contempt for their failure to answer questions during their appearance before the Ohio Legislature’s Un-American Activities Commission. Ohio has a statute which grants witnesses who appear before legislative committees immunity from criminal prosecution based upon their testimony and declares that said testimony shall not be used as evidence in a criminal proceeding. Despite the existence of this statute, the chairman of the committee informed the defendants that they were entitled to rely upon their privilege against self-incrimination and need not answer questions which might tend to incriminate them. Nevertheless they were later tried and convicted of contempt, the Ohio Supreme Court sustained their convictions on the theory that the defendants knew or were presumed to know about the Ohio immunity statute. The Supreme Court of the United States, concluding that state officials had actively misled the defendants, *380reversed: “While there is no suggestion that the Commission had any intent to deceive the appellants, we repeat that to sustain the judgment of the Ohio Supreme Court on such a basis after the Commission had acted as it did would be to sanction the most indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State clearly had told him was available to him. Cf. Sorrells v. United States, 287 U.S. 435, 442 [53 S. Ct. 210, 212 (1932)].” 360 U.S. at 438, 79 S. Ct. at 1266.1
Admittedly Raley and the instant case are distinguishable on their facts; however, I can see no logical difference between them. In Raley, the defendants, relying upon the advice of state officials, were found guilty of contempt whereas Staino’s reliance resulted in a highly prejudicial “admission” which played an important part in his conviction. Accordingly I view Raley as controlling and would grant Staino a new trial.
The Commonwealth concedes that if Staino was relying upon the advice of the police, no presumption of guilt may be raised nor may any inference be drawn from his silence. However, it argues that it is for the jury to determine whether the accused is relying on his constitutional right and that the jury in the instant case was properly instructed to disregard the admission if they found that he was. The Commonwealth’s position finds support in our cases, see, e.g., Commonwealth v. Vallone, 347 Pa. 419, 422, 32 A. 2d 889, 891 (1943); Commonwealth v. Sindel, 205 Pa. Superior Ct. 355, 361, 208 A. 2d 894, 897 (1965); however, this position is not only inconsistent with Raley v. Ohio, supra,2 but also with Jackson v. Denno, 378 U.S. 368, 84 *381S. Ct. 1774 (1964), a decision which unquestionably has retroactive application. E.g., Commonwealth v. Senk, 423 Pa. 129, 223 A. 2d 97 (1966); Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A. 2d 283 (1965).
Prior to Jackson, confessions in this Commonwealth were also submitted to the jury with instructions to disregard them unless they were found to have been the product of the defendant’s free will. E.g., Commonwealth v. Coyle, 415 Pa. 379, 405-06, 203 A. 2d 782, 795-96 (1964); Commonwealth v. Graham, 408 Pa. 155, 162, 182 A. 2d 727, 730 (1962). In Jackson, this procedure was held unconstitutional because of the strong possibility that a jury, notwithstanding proper instructions, might not understand the policies behind excluding involuntary, but true, confessions and might thus utilize an involuntary confession in reaching its conclusion as to the defendant’s ultimate guilt. 378 U.S. at 386-89, 84 S. Ct. at 1786-87. The same danger, of course, is inherent in the tacit admission situation, especially since the third party statement is hearsay and the declarant is not subject to cross-examination.3
Staino therefore is entitled to the protection afforded by Jackson. United States ex rel. Gomino v. Maroney, 231 F. Supp. 154, 157 (W.D. Pa. 1964). In my view, however, there is no need to remand this case for a hearing because I believe that when a defendant has been warned of his right to remain silent any subsequent “tacit admission” is, as a matter of law, “involuntary.”
Even granting the validity of the majority’s tacit admission rule outlined in Commonwealth v. Dravecz, *382424 Pa. 582, 592, 227 A. 2d 904, 909 (1967) (Easen, J., concurring), Staino’s conviction violates the fourteenth amendment. I would grant a new trial.
Mr. Justice Musmanno joins in this dissenting opinion.See also Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476 (1965).
In Raley, the Supreme Court refused to condone the Ohio Supreme Court’s speculation that the defendants would have behaved the same way regardless of what the Commission told them. 360 U.S. at 439, 79 S. Ct. at 1267,
For a convincing argument that the tacit admission rule violates the defendant’s constitutional right to confrontation, see Judge Hootman’s dissenting opinion in the instant ease, 207 Pa. Superior Ct. 274, 290-92, 217 A. 2d 824, 832-33 (1966).