concurring and dissenting:
I concur in the result only. I find neither error nor prejudice in the trial court’s decision to correctly- instruct the jury, over defense counsel’s objections, as to the jury’s obligation not to draw a negative inference from the defendant’s exercise of his right not to testify.
Defense counsel, and apparently the majority here, are of the opinion that citizens selected to serve on a jury and solemnly sworn to apply the law impartially, are nonetheless more likely to improperly infer guilt from a defendant’s exercise of the right to not to testify when they are specifically instructed not to, than when the question of a defendant’s silence is itself passed in silence, and the members of the jury are left to their own untutored instincts. If this were so, one could hardly understand how defense counsel or the majority could ever countenance such a pernicious instruction, or consider its use a matter of “tactics” for the defense to decide on a case by case basis.
*291I am of a contrary opinion. I believe firmly that a correctly instructed jury will at least attempt to place an appellant’s silence out of their deliberations, while an uninstructed jury is far more likely to consider a defendant’s silence, in the face of accusation following arrest, evidence of guilt.1 As the Commonwealth correctly notes, heretofore, the presumption has been that the jury will follow the instructions of the trial court, not that it will ignore them, and do the opposite. See Commonwealth v. Blount, 387 Pa.Super. 603, 618, 564 A.2d 952, 960 (1989); Commonwealth v. Nicholson, 308 Pa.Super. 370, 380 n. 5, 454 A.2d 581, 586 n. 5 (1982) (citing cases)
I find the suggestion that the instruction is prejudicial, because it draws attention to the defendant’s silence, thoroughly unpersuasive. While such reasoning may properly apply to passing improper remarks or to other minor or technical trial errors,2 we can hardly expect a jury of twelve reasonably intelligent citizens to overlook the fact that the defendant, whose fate they are to determine, sat silent throughout the proceedings. In a case like this involving a crime as serious as rape, an appellant’s silence might understandably be viewed as “deafening” by a juror untutored regarding the contrary mandate of our constitutional decisions explaining the need to prevent a defendant from being “compelled” by such an inference to incriminate himself in violation of his constitutional right against compelled self-incrimination.
More importantly, I reject the implicit assumption that defense counsel’s tactical decisions should control the formulation of the trial court’s jury instructions. The form and content of jury instructions are a matter left to the sound discretion of the trial court; while defense counsel may make requests or suggestions, the defendant has “no *292right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law.” Commonwealth v. Alvin, 357 Pa.Super. 509, 518, 516 A.2d 376, 381 (1986) (per Kelly, J.; Cirillo, P.J., Wickersham, Brosky, McEwen, Olszewski, Montemuro, Beck and Johnson, JJ., join).
In its brief to this Court, the Commonwealth cites State v. Rollins, 49 Ohio App.2d 330, 361 N.E.2d 555 (1976), wherein an Ohio court addressing this same issue opined:
The inherent power of the trial court and its statutory duty to instruct the jury fully and correctly on all the applicable law is not subject to the whims or strategic desires of any party. While instructions must always be precise and correct, we know of no decision that grants to any party the right to prevent full and adequate instructions on all the applicable law. Such a right, if granted, would undermine the jury system and the function of the trial judge.
* * * * * *
The tradition of justice in this country through a fair and impartial jury is based upon a complete submission by the trial judge of all applicable law and an honest consideration by the jury of the facts. Law and facts submitted to a jury present difficult problems and require fine judgment. In this delicate balance it is incomprehensible that any party be permitted to control the law or to require the court to withhold the law from the jury so as to force the jury to resolve a case in a vacuum.
361 N.E.2d at 557. I wholeheartedly agree with this position, and find it wholly consistent with the view expressed by this author for the unanimous en banc panel of this Court in Commonwealth v. Alvin, supra.
The majority in this case has decided to forge new chains with which to bind the trial court (and the public’s interest in justice) to counsel’s “tactical” decisions. I dissent to both the particular instance, and the general trend.
*293I believe that the proper role of the trial court is to exercise its supervisory authority over the conduct of the trial, including its authority to charge the jury on applicable principles of law, to keep the adversarial process directed toward the ultimate goal of discerning the truth and dispensing justice, rather than to permit prosecution or defense to cause or allow the proceedings to deteriorate into a contest of legal wits bearing no relation to fact or justice. While the trial court’s role is “umpireal” rather than “imperial,” the court nonetheless has the authority and sometimes the duty to intervene, with or against counsel’s objections, to ensure that truth and justice rather than tactics and theatrics remain the focus of the proceedings.3
To those ends, the trial court has been granted broad discretion over the conduct of criminal trials. Absent a manifest abuse of discretion the trial court has broad authority over the conduct of voir dire, order of proof, admission of evidence, and conduct of direct and cross-examination, as well as the form and content of jury instructions. See Commonwealth v. Slocum, 384 Pa.Super. 428, 432-436, 559 A.2d 50, 52-56 (1989); Commonwealth v. Grove, 363 Pa.Super. 328, 340 & 346, 526 A.2d 369, 376 & 379 (1987) (collecting cases), allocatur denied, 517 Pa. 630, 539 A.2d 810 (1987); Commonwealth v. Alvin, supra.
In Commonwealth v. King, 378 Pa.Super. 553, 549 A.2d 195 (1988), this author observed for a unanimous panel:
A trial judge has a right and sometimes a duty to question witnesses to clarify existing facts and to elicit new facts, though the questioning should not be done in a biased or protracted manner. It is a right which the trial judge must exercise with caution, and with due regard for the common law preference for clarification by adversarial cross-examination, rather than judicial interrogation. Particular care must be taken so that the questions do *294not usurp or unduly encroach upon the fact finding function of the jury by suggesting judicial disbelief of particular testimony or a judicial opinion on one or more issues for or against one side or the other.
Nonetheless, “[a] courtroom is a court of justice and not just a battleground for the tilting of attorneys or a testing of their wits and oratory, — to so limit it would often jeopardize or defeat justice.” It is the purpose of a criminal trial to ascertain the truth, and it is the business of the trial judge to see that that end is obtained. Thus, it is proper for the trial court to ask questions about facts which did not appear from either counsel’s examination of the witness. Indeed, the trial court may go so far as to recall a witness to. supply an omission of proof as to a material issue.
549 A.2d at 197 (collecting cases, citations omitted).4
The majority’s reliance upon Commonwealth v. Danzy, 225 Pa.Super. 234, 310 A.2d 291 (1973), to justify the new restrictions imposed, is misplaced. In Danzy, this Court correctly rejected a claim that reversible error was committed in instructing the jury on defendant’s right to remain silent in absence of a request for, or an objection to, the instruction challenged on appeal. The decision itself was expressly grounded upon the defendant’s waiver of any challenge by failing to preserve a timely objection to the *295jury charge in accordance with Pa.R.Crim.P. 1119(b). The statement in the opinion that “whether the charge given is the defendant’s choice,” was plainly dicta, and of no precedential authority. As the statement was unaccompanied by any analysis or authority explaining the origin, nature, or scope of this supposed right, I would accord the dicta no persuasive authority either.
The decision in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), made it clear that federal constitution provided no right to defendants to preclude the trial courts from issuing an instruction, over defendants’ objections, on the jury’s obligation not to draw a negative inference from defendant’s exercise of his right to not to testify. I agree that Lakeside v. Oregon, supra, expressly acknowledged that the states were free to adopt constitutional provisions, state statutes, or procedural rules which would bind the trial court to the defendants’ tactical choices in these circumstances. I cannot agree, however, that this Court may impose such a restriction on the trial courts’ discretion by the simple expedient of extending an inference from dicta contained in a prior decision, which itself suggested no legal basis to impose such a restriction.
The majority considers the restriction they impose “reasonable.” I do not. The instruction given by the trial court here correctly addressed an applicable point of law. I can see no public interest to be advanced by permitting defendants to speculate upon the tactical merit of passing the issue in silence, rather than addressing the issue directly by instructing the jury correctly regarding their duty. If a defendant bets wrongly and an uninstructed jury bases its verdict in whole or in part on the impermissible inference feared, the interests of public justice, as well as defendant’s personal interests, would be sacrificed. That is a sacrifice trial courts have every right to prevent.
My disagreement with the majority on policy grounds, however, is a secondary matter here. My primary ground for dissent is the absence of authority for this Court to impose the restriction imposed by the majority here, wheth*296er or not such restriction would be “reasonable” if properly enacted by the legislature, promulgated by our Supreme Court, or compelled by amendment to our Constitution.
What this Court thinks our legislature, our Supreme Court or the citizens of the Commonwealth ought to do, with their authority to enact statutes, promulgate procedural rules, and amend the constitution, is not law. As yet, the trial courts’ general authority over the content of its jury instructions in Pennsylvania is unrestricted in this respect. This Court cannot alter that fact without some explicit basis of authority to do so. Neither appellant, nor the majority, has identified any such authority. No statute or procedural rule is cited; nor do I read the majority opinion to suggest that the right conferred here, i.e. to elect whether or not an instruction is given on the jury’s duty not to draw a negative inference from the defendant’s exercise of his right not to testify, is mandated by the Pennsylvania Constitution. Had the majority indicated that it intends to “constitutionalize” this supposed right, and thereby render it immune from statutory or procedural abrogation or restriction, I would even more vigorously dissent. I find nothing in our Constitution which could be construed to provide such a “constitutional” right.
Appellant, like the majority, has based the bulk of his argument on the illusory authority of the dicta from Danzy. Appellant also cites, however, Commonwealth v. Fleck, 372 Pa.Super. 546, 539 A.2d 1331 (1988), and several cases from sister states in support of his contention that the trial court committed reversible error. I find these authorities wholly unpersuasive.
In Commonwealth v. Fleck, supra, a panel of this Court reversed a simple assault conviction because a trial court judge dared to intervene to prevent a jury from having to chose between the false dichotomy of an absolute acquittal or a conviction of simple assault by unprovoked attack, when the evidence presented at trial plainly suggested the alternative of a the lesser offense of simple assault by mutual assent. The panel found that the trial judge had *297usurped both defense and prosecution functions by instructing the jury, sua sponte, on the lesser crime. 539 A.2d at 1332.
Appellant argues that Fleck demonstrates that “uninvited interference with defense strategy” by the trial court “is not tolerated” in this Commonwealth. (Appellant’s Brief at 16). The Commonwealth responds by attempting to distinguish Fleck. The majority makes no reference to Fleck, or to the conflicting positions of appellant and the Commonwealth as to its applicability to this case.
I agree with appellant that Fleck involves precisely the same kind of restrictions upon a trial court’s authority as the appellant urges and the majority imposes here. While I also agree with the Commonwealth that the restrictions forged here are far more stringent than those involved in Fleck, I find that the difference is one of degree rather than kind. I am not inclined to merely distinguish Fleck. Rather, I would expressly and unequivocally disavow the sweeping language of the panel decision in Fleck, regarding the role of a trial court in instructing juries, in this en banc case.
The panel in Fleck cited Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977), Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979), Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987), and Commonwealth v. Donaldson, 339 Pa.Super. 237, 488 A.2d 639 (1985), in support of its “improper usurpation of defense tactics and prosecutorial authority” rationale for reversal. None of these cases actually supports the dramatic restrictions on the discretion of the trial court regarding jury instructions which the Fleck decision purported to impose.
In Hrivnak v. Perrone, supra, our Supreme Court opined that “a trial judge is charged with the responsibility of defining all pertinent questions of law and clarifying the issues to be resolved by the jury,” but “while [the trial judge] must crystalize the issues raised by the litigants and explain all the relevant principles of law, [the trial judge] may not assume the advocate’s function of introducing *298theories not raised by the parties.” 372 A.2d at 732-33. (Emphasis in original). I find the Fleck panel’s reliance on Hrivnak v. Perrone misplaced in that Hrivnak was a civil case wherein the absence of “public justice” interests, inherent in criminal cases like Fleck and the instant case, naturally resulted in greater systemic deference to the civil litigants’ tactical choices in presenting theories of liability or defense. Cf. Commonwealth v. Carson, 510 Pa. 568, 570, 510 A.2d 1233, 1234 (1986) (explaining the difference between civil and criminal proceedings in these general respects). Moreover, even assuming the general applicability of the reasoning in Hrivnak v. Perrone, supra, to criminal cases, it is far from clear that our Supreme Court would deem either a jury instruction on a lesser included offense arguably supported by the evidence presented, or instructions on the jury’s duty not to draw negative inferences from a defendant’s exercise of his right not testify, sufficiently analogous to the “different theory of civil liability” scenario involved in Hrivnak v. Perrone, to fall within the rule espoused in that case.5 Without clearer mandate, I *299would not extend Hrivnak v. Perrone in the manner suggested.
Both Commonwealth v. Musi, supra, and Commonwealth v. Wescott, supra, involved allegations of ineffective assistance of counsel based on counsel’s failure to seek lesser included offense instructions. In both cases, trial counsel’s decision not to seek the instruction was deemed to have had a reasonable tactical basis. That such a decision could be deemed to have been tactical, however, in no way establishes the existence of a concomitant right to compel the trial court to acquiesce in defense counsel’s tactical choice. If that was sufficient to establish such a right, then the trial court’s supervisory powers over the conduct of jury trials would soon be at an end. Counsel, for various tactical reasons, may elect not to raise objections to obvious hearsay or other plainly inadmissible evidence (as, for example, to permit a plaintiff to thereby “open-the-door” to other otherwise inadmissible defense evidence). Certainly such tactical decisions could not remove the trial court’s authority to act without objection to exclude inadmissible evidence. See Commonwealth v. King, supra; Commonwealth v. Grove, supra. The existence of a tactical basis for a decision does not establish the existence of a positive right to the advantage sought; the concepts are simply not necessarily mutually inclusive. Consequently, reliance on Musi and Westcott in Fleck was misplaced. Musi and Westcott decided only the existence of a tactical basis for counsel not to seek the jury charge in question, not the right to preclude the trial court from giving the charge, sua sponte.
*300Commonwealth v. Donaldson, supra, was cited in Fleck in support of the suggestion of an usurpation of the prosecution’s function. Donaldson involved an appeal from an order sua sponte amending criminal charges at a preliminary hearing, dismissing a greater charge, and substituting a similar lesser charge with different elements. 488 A.2d at 640-41. I agree that the prosecution has broad discretion in deciding which charges to pursue, and that the trial court may not circumvent the prosecutor’s authority to choose which charges to pursue with jury instructions on uncharged crimes, regardless of what the evidence actually presented might suggest regarding the existence of other uncharged offenses. Cf. Commonwealth v. Porrecca, 389 Pa.Super. 553, 568-569 & n. 8, 567 A.2d 1044, 1050-52 & n. 8 (1989); Commonwealth v. Schmuck, 385 Pa.Super. 617, 625 & n. 1, 561 A.2d 1263, 1267 & n. 1 (1989).
The decision in Donaldson is circumscribed, however, by well established precedent that an indictment or information implicitly contains all lesser included offenses to the charges set forth in the indictment or information. See Commonwealth v. Pemberth, 339 Pa.Super. 428, 429, 489 A.2d 235, 236 (1985). The signature requirement of Pa.R.Crim.P. 225, which was the cornerstone of the Donaldson decision, does not require that the prosecution separately set forth lesser included offenses, nor does it empower prosecutors to force false dichotomies on juries by preventing judges from instructing juries regarding arguably applicable lesser included offenses.
Whether or not the result reached in Fleck could be supported by Donaldson would then turn on whether 18 Pa.C.S.A. § 2701(b) was a lesser included offense of 18 Pa.C.S.A. § 2701(a). Resolution of that question is not necessary here. What is necessary here, is an acknowledgement of the very limited nature of the restriction which Donaldson and Pa.R.Crim.P. 225 impose.
Upon review of the authorities cited in Fleck, I find no legal basis for the imposition of the restrictions upon the trial court’s jury charging authority which the language of *301the Fleck opinion suggests. I would disavow the restrictions in Fleck which would bind the trial court to defense and prosecution tactical decisions, and would not extend them to reach the scenario involved in this case.
I note that the restrictions suggested in Fleck are inconsistent with prior decisions of this Court. For example, in Commonwealth v. Grove, supra, this Court found no error in the trial court’s decision to instruct the jury regarding the Slayer’s Act, sua sponte, over defense counsel’s objections. 526 A.2d at 376. Likewise, in Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984), this Court found no error in the trial court’s decision to instruct the jury regarding a lesser included offense, sua sponte. 480 A.2d at 1044 (there is no indication as to whether an objection was made; although, if one had not been made, the issue would necessarily have been waived — Commonwealth v. Danzy). Finally, in Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982), this Court found no error in the trial court’s decision to instruct the jury, sua sponte, on the law of theft as it pertained to the requirement of criminal intent to commit a crime as an element of a burglary offense. 452 A.2d at 800 (again, presumably over defense objection).
I cannot see how Grove, Davis, and Franklin could withstand the rationale of non-interference with defense tactics and prosecutorial charging authority espoused in Fleck, and again here by the majority. Either a trial court may instruct the jury sua sponte on applicable principles of law, or it may not. The majority has not set forth, and I cannot discern, any unifying principles which would permit a trial court to determine when it may act sua sponte as in Grove, Davis, and Franklin, and when it is bound by either defense or prosecution’s “tactical” decisions as in Fleck, and again in this case.
I would evade this morass by returning to solid ground. I would reaffirm that the trial court’s discretion in charging a jury sua sponte in criminal cases is limited only in the following respects:
*3021) the instruction must address a point of law applicable to the crime or crimes charged, Commonwealth v. Donaldson, supra, 488 A.2d at 641-42;
2) the instruction must address a point of law applicable to the actual facts presented at trial, Commonwealth v. Grove, supra, 526 A.2d at 378; and,
3) the form, content, and delivery of the instruction must fully, correctly, and impartially explain the point of law addressed. Commonwealth v. Alvin, supra, 516 A.2d at 381.
Beyond these restrictions, I find no authority for this Court to supplant its view as to how a jury ought be instructed for that of the trial court.
Finally, I note that I have carefully reviewed and am completely unpersuaded by the decisions of our sister states which appellant cites as persuasive authority. While appellant cited only cases which found reversible error, and the Commonwealth responded by citing only cases which did not, I note that there are numerous cases from jurisdictions across the country which have held variously that a jury instruction, over defense objection, on the jury’s duty not to draw a negative inference from a defendant’s exercise of the right not to testify is: 1) required; 2) proper, but not required; 3) proper, but not recommended; 4) improper, but not reversible error; 5) improper, but not reversible error given the facts of the particular case; 6) improper and reversible error given the facts of the particular case; 7) improper and reversible error. See generally Annotation, Propriety Under Griffen v. California And Prejudicial Effect of Unrequested Instruction That No Inferences Against Accused Should Be Drawn From His Failure To Testify, 18 ALR3d 1335, 1335-39 (1968 & 1989 Supp.) (collecting cases). There is no clear majority position. Id.6 Having surveyed the decisions in favor of the above alter*303nate positions, I remain of the opinion that only position 2, i.e. “proper, but not required,” expresses the degree of deference to a trial court’s sound discretion required of an intermediate appellate court in such matters.
In light of the fact that I would find no error, I of course concur in the determination that the challenged charge did not prejudice appellant in this case. Based on the foregoing, I Dissent to the majority’s opinion, and Concur In the Result only.
. Cf. Commonwealth v. Monahan, 378 Pa.Super. 623, 549 A.2d 231 (1988) (an inference of guilt is permitted regarding pre-arrest silence); see also Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (same).
. See e.g. Commonwealth v. Osborn, 364 Pa.Super. 505, 516 n. 6, 528 A.2d 623, 629 n. 6 (1987).
. That is not to say, however, that a trial court may restrain counsel from “breathing life” with all its emotions "into otherwise sterile words,” or from otherwise placing the proceedings in the true context of the lives involved. See Commonwealth v. Slocum, 384 Pa.Super. 428, 441, 559 A.2d 50, 56 (1989).
. In a similar vein the learned United States Supreme Court Justice Felix Frankfurter once opined:
While a court room is not a laboratory for the scientific pursuit of truth, a trial judge is surely not confined to an account, obviously fragmentary, of the circumstances of a happening [ ...] when he has at his command the means of exploring them fully, or at least more fully, before passing legal judgment. A trial is not a game of blind man’s bluff; and the trial judge — [...]—need not blindfold himself by failing to call an available vital witness simply because the parties, for the reasons of trial tactics, choose to withhold his testimony.
Federal judges are not referees at prizefights but functionaries of justice. As such they have a duty of initiative to see that the issues are determined within the scope of the pleadings, not left to counsel’s chosen argument.
Johnson v. United States, 333 U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468, 474-75 (1948). (Emphasis added).
. If civil cases properly may be relied upon in this context, then I would note the inconsistency between the Fleck panel’s analysis of Hrivnak v. Perrone, and the following analysis from Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981):
Appellant contends next that the lower court erred in sua sponte instructing the jury on the theory of wanton and reckless misconduct. Only issues which are relevant to the pleadings and proof may become the subject of a jury instruction. See e.g., Heymann v. Electric Service Manufacturing Co., 412 Pa. 338, 194 A.2d 429 (1963); Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963). "Although a certain burden rests on the litigants to submit written points for charge to the court requesting instructions on their theories of the case, it is the duty of the trial judge fully to instruct the jury as to the law applicable to the facts even in the absence of a request by the parties." T.S. Feldman, Pennsylvania Trial Guide § 13.1 (1973). See also Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963). Because wanton and reckless misconduct was properly raised by plaintiffs complaint and the proofs adduced at trial, the trial judge properly instructed on that theory even though it had not been argued by either counsel. Yorkshire Worsted Mills v. National Transit Co., 28 Del.Co.Rpts. 402, 411 (C.P.Delaware Co. 1939). Cf. Hrivnak v. Perrone, 472 Pa. 348, 354-56, 372 A.2d 730, 732-33 (1977) (trial judge erred in sua sponte instructing jury on a theory of recovery raised by the pleadings but refuted by plaintiffs evidence at trial). Thus, *299the lower court did not err in instructing the jury on the theory of wanton and reckless misconduct.
431 A.2d at 305-06. I note particularly the limited scope accorded the Hrivnak precedent in Perigo by this Court. Rather than construing Hrivnak as a bold affirmation of the supposed sanctity of counsel’s tactical decisions, Perigo construed Hrivnak to involve a type of estoppel restriction on introducing theories of liability arguably raised by plaintiffs pleadings and defense evidence, but plainly contradicted by the plaintiff’s evidence. Viewed in such a light, Hrivnak provides no support for the decision in Fleck, and is entirely inapposite here.
. I in no way suggest that the presence or absence of a “majority" position is dispositive. It is the persuasiveness of the reasoning in opinions of a sister states’ courts rather than simply the number of sister state decisions, which gives or denies such opinions persuasive authority.