concurring.
I concur in the result reached by the majority, but I was unaware that there was any question that the “non-adverse inference” concept has been a part of the fundamental law of this Commonwealth. Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988); Commonwealth v. Young, 477 Pa. 212, 383 A.2d 899 (1978); Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325, cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1971).
*457First, its clear recognition as a right conferred under the federal constitution, U.S.C.A. Const. Amend. 5, Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), necessitates the conclusion that it must be considered fundamental law in this Commonwealth. Second, as a long-time exponent of the concept of “new federalism”, Nix, Federalism In The Twenty-First Century — Individual Liberties In Search Of A Guardian, In Federalism: The Shifting Balance 65 (J. Griffith Ed. 1989), I have never questioned that, independent of the federal constitutional provision, the right to a “non-adverse inference” charge was encompassed in the protections afforded under article 1, section 9 of our state constitution. See Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976); Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Commonwealth v. Thomas, 275 Pa. 137, 118 A. 667 (1922); Commonwealth v. Green, 233 Pa. 291, 82 A. 250 (1912); Commonwealth v. Brown, 274 Pa.Super. 609, 418 A.2d 573 (1980); Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977); Commonwealth v. Reichard, 211 Pa.Super. 55, 233 A.2d 603 (1967). Thus, I am totally in accord with the conclusion drawn by the majority and the result reached. My only concern is the need for a lengthy exposition of well-settled concepts which are certainly not questions of first impression. Here, appellant was unquestionably entitled to a "non-adverse inference” charge, and since it was not given to the jury, an award of a new trial must be granted.
FLAHERTY, J., in addition to the majority opinion joins in this concurring opinion, PAPADAKOS, J., joins in this concurring opinion.