concurring.
I do not share the confidence of the majority that this case does not involve an infringement of Oliver's fourteenth amendment rights. To the contrary, I think that there is a close and difficult question whether the closing argument of the prosecutor constituted prosecutorial overreaching in violation of Oliver's due process rights, or an infringement of his right to represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).1 However, I need not decide the *772constitutional question. Having reviewed the record, I am satisfied that even if there was a violation of Oliver’s fourteenth amendment rights, the evidence of his guilt is so overwhelming that the violation did not amount to prejudice under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Accordingly I concur in the judgment of the Court.
. I have difficulty in seeing how the defendant's questions, which are phrased just like questions that might have been asked by an attorney, can be characterized as~ admissions of guilt. Nor does it appear to be fair for the prosecutor to invite the jury to infer that Oliver was "talking about himself," as the majority puts it, when he referred to "the defendant" in questioning the police officers about the person they saw in the bank. The majority's position, if correct, might seriously undermine a defendant's Faretta rights.
Although there is no transcript of the closing arguments, the Commonwealth admits that it asked the jury to draw an inference that Oh-*772ver’s cross examination somehow demonstrated his guilt. A transcript was therefore not necessary to establish that the challenged jury argument was made. However, Oliver’s ability to argue that his cross-examination questions did not support the inference that the prosecutor asked the jury to draw would seem to depend upon his having a copy of the transcript, for I do not believe that anyone could be expected to brief and argue the import of the language and context of the many questions asked at a four-day trial from memory. If I am correct on this point, the failure to provide Oliver with a transcript may have prevented him from briefing and arguing his objection to the prosecutor’s summation in his post-trial motions. And, because the Pennsylvania Superior Court will only address issues that were briefed and argued on post-trial motion, the failure to provide a transcript before hearing post-trial motions may have effectively denied Oliver his right to appeal on those issues. Although Oliver had a transcript in time to brief his appeal to the Superior Court, there is no reason to believe that the Superior Court departed from its usual practice so as to consider Oliver’s argument concerning the prosecutor’s summation. The trial court’s decision was affirmed without opinion, and the Commonwealth’s brief did not address the substance of Oliver’s argument, but merely stated that the issue was “[n]ot briefed or argued below.”
One factor that militates against resolution of the constitutional issue in Oliver’s favor is the trial judge’s cautionary instruction in his charge that the jury “should be guided by the lawyer or the defendant’s arguments only to the extent that they are supported by the evidence and insofar as they aid you in applying your own reason and common sense.”