CAPPY, Justice,
concurring and dissenting.
I am saddened by the misguided conclusion reached by the Majority on this day and therefore am constrained to dissent.
Today the Majority chooses to announce a per se rule requiring a finding of reversible error in every criminal jury trial where the court charges the jury that no adverse inference may be drawn from the decision of a defendant to remain silent, over the defendant’s objection. In one fell swoop, the trial judges of this Commonwealth have been stripped of their obligation to protect the rights of an accused where the circumstances of the trial demand such protection. By this ruling the Majority elevates the'thwarting of a decision of trial strategy to the level of a constitutional infraction.
The rationale offered to support this decision by the Majority is that “[a] per se rule will avoid time consuming appeals arguing about harmless error and will clearly instruct trial judges as to how to proceed on this question.” (Majority opinion at p. 261). I would respectfully remind my colleagues, however, that it is the nature of rules to beget exceptions, and *581thus, appeals. For example, in this very case where this rule is being announced, the Majority refuses to apply it because the evidence of the defendant’s guilt is so overwhelming that “we are convinced that giving the charge was harmless error beyond any reasonable doubt.” (Majority slip opinion at p. 261).
The illogic of this reasoning is simply mindboggling. Also, the very fact that the Majority refuses to apply its newly created rule to the very case within which it was announced, points out the fallacy in the argument that this rule will eliminate time consuming appeals.1
Additionally, I do not share the belief of the Majority that our trial judges are incapable of evaluating the circumstances in each specific case, and deciding when the no adverse inference charge needs to be given, including those situations where the defendant objects to the giving of the charge. This Court’s decision in Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991), adequately set forth for our trial judges the parameters of the no adverse inference charge. In reaching the decision in Lewis regarding the absolute right of a defendant to have the jury instructed pursuant to the no adverse inference charge, we made the following observation as to the protection afforded under our state constitution:
This Court has determined on numerous occasions that Article I, Section 9, in providing that a defendant “cannot be compelled to give evidence against himself ...,” protects the right of the defendant to stand mute protected by the presumption of innocence, without facing the oppressive *582task of having to explain his or her silence. See Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973); Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976); see also, Commonwealth v. Miller, 205 Pa.Super. 297, 208 A.2d 867 (1965).6
Lewis, 528 Pa. at 448, 598 A.2d at 979.
Our state constitution zealously safeguards the right to stand mute protected by the presumption of innocence. However, what is at issue in this case, is not that constitutional guarantee, but rather, a decision of trial strategy to forgo that constitutional safeguard. I cannot support the conclusion of the Majority to elevate the frustration of a strategical decision to the level of a constitutional violation.
It must be remembered that the ultimate constitutional right at stake, according to our opinion in Lewis, is the right to remain silent. It is one thing to conclude that as a corollary to that right a defendant is entitled to a no adverse inference charge. It is quite another thing to suggest that a defendant who wishes to waive that right, for purposes of trial strategy, is somehow clothed with a constitutional guarantee. On this point we concur with the sentiment expressed by Justice Stewart in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), where he stated: “It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” Id., 435 U.S. at 339, 98 S.Ct. at 1095.
However, even though I do not believe a constitutional violation occurs when the charge is given over a defendant’s *583objection, I do agree that the better practice is for the trial court to forgo the no adverse inference charge where the defendant specifically chooses to waive the protections embodied therein.
In Lewis, this Court, in dicta, acknowledged that in certain cases a defendant may choose to waive his right to have a no adverse inference instruction given:
We are mindful that, for strategical reasons, a defendant and his or her counsel may determine that defendant’s right to remain silent under Article 1, Section 9 is best served by requesting that a “no-adverse-inference” charge not be given to the jury, in order to avoid drawing attention to defendant’s failure to testify. The “fundamental” right at stake here is the right not to be “compelled to give evidence against [oneself]” from which the “no-adverse-inference” rule derives. Thus, if defendant and his or her counsel determine that the fundamental right to remain silent is best served by not drawing attention to defendant’s silence, the derivative right (i.e., the “no-adverse-inferenee” instruction), may be validly waived. In such cases, an explicit waiver by defendant is required.
528 Pa. at 455 n. 14, 598 A.2d at 983 n. 14.
I would emphasize that in the future, a decision to forgo the no adverse inference charge should be clearly and explicitly acknowledged by the defendant on the record. However, where a voluntary, knowing and intelligent waiver is made by the defendant on the record, the trial court’s overriding the decision of the defendant to forgo the charge would be considered to be error, subject to a harmless error analysis.
The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). A harmless error analysis is undertaken by the appellate courts to determine, in those situations where an error has admittedly occurred, whether that error contrib*584uted to the verdict. The proper analysis to be undertaken was thoroughly explained in Story:
This Court has stated that an error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Under this approach, a reviewing court first determines whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt. If “ ‘honest, fair minded jurors might very well have brought in not guilty verdicts,’ ” an error cannot be harmless on the basis of overwhelming evidence. Once the court determines that the evidence of guilt is overwhelming, it then decides if the error was so insignificant by comparison that it could not have contributed to the verdict.
We have cautioned that
“a conclusion that the properly admitted evidence is ‘so overwhelming’ and the prejudicial effect of the----error is ‘so insignificant’ by comparison, that it is clear beyond a reasonable doubt that the error is harmless, is not to be arrived at lightly.”
Accordingly, we have been reluctant to find an error harmless on the basis of overwhelming evidence.
Story, 476 Pa. at 412-413, 383 A.2d at 166 (footnote omitted; citations omitted).
This analysis has been applied by our Court when reviewing the effect of a jury instruction upon the verdict. See e.g. Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986); Commonwealth v. Pierce, 345 Pa.Super. 324, 335, 498 A.2d 423, 429, aff'd, 515 Pa. 153, 527 A.2d 973 (1985). In applying the harmless error analysis in a particular case, it is imperative that the burden of establishing that the error is harmless beyond a reasonable doubt rests upon the Commonwealth. Commonwealth v. Lewis 528 Pa. 440, 598 A.2d 975 *585(1991); Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990).
In fact, the Majority today applied this very standard to the case sub judice, and concluded that the giving of the charge was harmless beyond a reasonable doubt. For the reasons stated above, I concur in the decision to affirm the judgment of sentence; I emphatically dissent from the decision to adopt a per se rule of reversible error.2
FLAHERTY, J., joins in this concurring and dissenting opinion.. For instance, what effect will today's ruling have on multiple defendant situations where one defendant wishes to waive the no adverse inference charge, and another defendant maintains his constitutional right to have the charge given? Will this court then be facing time consuming appeals of a right to severance on this basis? Also, in cases where a witness refers inadvertently to the defendant’s silence, and the trial court has agreed not to charge on the no adverse inference instruction, will the trial court be required to refrain from giving a cautionary instruction that protects the defendant’s right to remain silent? In such circumstances would the trial court be forced to declare a mistrial in order to preserve the defendant’s intended trial strategy?
The reason the Pennsylvania Constitution safeguards this right so carefully is that there is a multitude of considerations which may lead a defendant to decline a seat at the witness chair. As Justice Musmanno explained in Commonwealth v. Dravecz, 424 Pa. 582, 587, 227 A.2d 904, 907 (1967): "It may be desirable and dramatic for the wrongly accused person to shout: T am innocent!’ but not everybody responds spontaneously to stimuli. The accusation may be so startling that the accused is benumbed into speechlessness. There are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.”
. Several of our sister states have addressed this particular issue. Three distinct approaches have been adopted. The following states hold that it is no error to give the no adverse inference charge over the objection of a defendant: State v. Wilson, 57 Ohio App.2d 11, 384 N.E.2d 1300 (1978); Woodard v. State, 234 Ga. 901, 218 S.E.2d 629 (1975); State v. Garcia, 84 N.M. 519, 505 P.2d 862 (1972); Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868 (1972); Harvey v. State, 187 So.2d 59 (Fla.App.1966); and State v. Goldstein, 65 Wash.2d 901, 400 P.2d 368 (1965).
A few jurisdictions have found that giving the charge over the defendant's objection is per se reversible error: Priest v. Indiana, 270 Ind. 449, 386 N.E.2d 686 (1979); People v. Hampton, 394 Mich. 437, 231 N.W.2d 654 (1975); and Tines v. Commonwealth, 77 S.W. 363 (Ky.1903).
Several jurisdictions have adopted the approach which I recommend herein: that although giving the charge over a defendant’s objection is not a constitutional violation, the better approach is to respect the wishes of the defendant; but when the instruction is given under those circumstances a harmless error analysis is undertaken: Hardaway v. State, 317 Md. 160, 562 A.2d 1234 (Md.1989); State v. Thompson, 430 N.W.2d 151 (Minn.1988); People v. Anderson, 153 Ill.App.3d 542, 106 Ill.Dec. 512, 505 N.E.2d 1303 (1 Dist.1987); Commonwealth v. Buiel, 391 Mass. 744, 463 N.E.2d 1172 (1984); State v. Rhoades, 380 A.2d 1023 (Me. 1977); State v. Kimball, 176 N.W.2d 864 (Iowa 1970).