Dissenting Opinion by
Price, J.:I must dissent from the majority opinion. The trial judge questioned appellant, over objection by counsel, on his failure to file a complaint as to certain matters raised by appellant in his defense. I believe this line of questioning violated appellant’s Fifth Amendment right to remain silent.
Appellant contended by way of defense, that he was not involved in a robbery of the tavern, but was in fact an innocent victim of a vicious attack perpetrated upon him by several of the patrons of the bar. However, he did not file a complaint against his alleged attackers, did not notify the police or the District Attorney, did not discuss the attack at the preliminary hearing, and actually mentioned this point for the first time at the trial. The trial judge raised this issue by direct questioning as follows:
“BY THE COURT:
Q. Mr. Jennings, from the time the police came and took you to the hospital—
A. Yes, sir.
*81Q. —you were at Einstein Medical Center, Southern Division; is that right?
A. Yes, sir.
Q. And you stayed there how many days ?
A. I am really not sure. It must have been about two, three or four days.
Q. And then took you to where?
A. Philadelphia General.
Q. For further treatment; is that correct?
A. Yes, sir. They said I had to have a specialist.
Q. And then subsequently, on February 29th, 1972, there was a preliminary hearing held before the Honorable Benjamin Segal?
A. Yes, sir.
MR. HARRIS [Defense counsel]: Objection.
THE COURT: Overruled.
BY THE COURT:
Q. And you were represented by Harvey Booker at that time, a lawyer? Is that correct?
A. Yes, sir.
Q. From the time you were taken to the hospital, to the time of this hearing, did you ever make a complaint telling the police department, or the District Attorney’s Office, or your own lawyer, that this situation occurred as you related it?
MR. HARRIS: Objection.
THE COURT: Overruled.
BY THE COURT:
Q. Did you ever make a complaint to the police department?
A. No, sir.
Q. Did you ever make a complaint to the District Attorney’s Office?
A. I made a complaint, I asked the judge—
Q. Did you ever tell the District Attorney’s Office?
A. No, sir.
MR. HARRIS: Objection.
*82THE COURT: Overruled.
BY THE COURT:
Q. And you did not testify at the preliminary hearing, did you?
MR. HARRIS: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: They didn’t ask me. They didn’t ask me.
BY THE COURT:
Q. But you didn’t tell them this, did you?
A. I tried. He told me to shut up and to let my lawyer speak.
Q. Who told you?
MR. HARRIS: Objection, Your Honor.
May we have a sidebar, please, sir? With all due respect to the Court—
THE COURT: Overruled.
MR. HARRIS: May we have a sidebar, sir; please?
THE COURT: Before the question is answered?
MR. HARRIS: Yes, sir.
THE COURT: All right. Ladies and gentlemen of the jury, we will take a short recess. Please do not discuss this case with anyone, or allow anyone to discuss this case with you.” (NT 319-822)
The trial court contended that the questioning was not directed towards forcing the appellant to incriminate himself, nor was it intended to impute guilt. The questioning was intended solely to reflect on appellant’s credibility. Be that as it may, I cannot ignore the distinct possibility that the jury viewed this questioning as indicative of the judge’s belief that appellant’s testimony on this point was fabricated.
Appellant was under no duty to make a statement, either at the time of his arrest, Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973) ; Commonwealth v. Dulaney, 449 Pa. 45, 295 A.2d 328 (1972); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972); *83Commonwealth v. Greco, 227 Pa. Superior Ct. 19, 323 A.2d 132 (1974), or at the preliminary hearing, Commonwealth v. Zorambo, 205 Pa. 109, 54 A. 716 (1903) ; accord, Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967), and no adverse inference may be drawn from his failure to tell his side of the story before trial.
Although the factual situations and the circumstances under which this type of information was elicited in the above cases vary from that in the instant appeal, the rights to be protected remain constant. Even though the judge himself did the questioning and the jury was charged not to draw any adverse inferences, the possibility of prejudice to the appellant was still very real. The umbrella of protection should cover the present situation and this type of questioning should not be permitted.
For this reason, I would reverse the lower court convictions and grant appellant a new trial.
Cercone and Spaeth, JJ., join in this dissenting opinion.