dissenting:
The majority has chosen to directly address two issues raised by appellant, and in both instances they affirm the admissibility and legal import of evidence. Since I feel that in each instance the trial court erred, I dissent.
As to appellant’s first issue, I believe that the trial court committed error in charging the jury that it could consider the appellant’s silence in response to questioning by the police for the purpose of assessing the credibility of his testimony. In my view, the use of a criminal defendant’s silence for impeachment purposes under the circumstances presented by the facts in this case is a violation of that defendant’s rights under the Fifth Amendment of the United States Constitution and Article I § 9 of the Pennsylvania Constitution.
To begin with, I do not accept the majority’s characterization “that appellant’s silence occurred at a pre-arrest stage” of this police investigation. The appellant appeared at the Holidaysburg Barracks of the Pennsylvania State Police and told the officers that he wanted to report a dead body located in his automobile parked in front of the barracks. Two officers went out to the automobile to investigate while appellant remained inside with a third trooper.
Appellant Monahan would not offer any explanation when he was asked to tell what had happened by the trooper who remained in the barracks. The record shows that as soon as the two officers who had been checking appellant’s car returned Monahan was advised of his constitutional rights and searched. Thus the majority is focusing on the short time period it took to walk outside the barracks, check out appellant’s automobile parked in front of the barracks, and re-enter the building as the “pre-arrest stage”, during which Monahan’s decision to remain silent may be used in evaluating his credibility. The majority points out that during the time period in question “[t]he police had no corroborative information that there was a dead body in the car or any information that a murder might have occurred,” (Opinion, p. 629), and they also note that “[n]o physical or *637verbal restraints were placed on appellant” (Opinion, p. 629). However, in spite of the fact that each of these assertions may be true, given the grave implication of his report to the police, it is impossible for me to believe that Donald Monahan would have been free to leave the state police barracks had he attempted to do so during the time period in question. To suggest otherwise under the circumstances outlined would seem to be incredible. I believe that if the appellant had attempted to leave at this point, he certainly would have been stopped. Simply because Donald Monahan did not put the state police to the test by attempting to leave the barracks and requiring them to use physical or verbal restraints on him does not, in my view, make this situation any less custodial.
“The determination of when an arrest occurs depends on an evaluation of all the surrounding circumstances.” Commonwealth v. Romeri, 314 Pa.Super. 279, 288, 460 A.2d 1139, 1143 (1983), affirmed 504 Pa. 124, 470 A.2d 498, certiorari denied 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (quoting Commonwealth v. Crissy, 304 Pa.Super 38, 450 A.2d 89 (1982)). An arrest may be effectuated without the use of force or physical restraint and without a formal statement of arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Romeri, supra; Crissy, supra. An arrest occurred at the point when appellant could reasonably have believed that the state police intended to take him into custody, and at that point all constitutional protections must be observed.
Because I believe appellant was under arrest at the time in question, I view Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), as controlling. Turner held that a criminal defendant’s post-arrest, pre-Miranda silence may only be introduced at trial by the Commonwealth to impeach the defendant if his testimony gives an account of events which is factually inconsistent with his silence at the time of arrest. For instance, if the defendant testifies to a version of events and claims that he relayed the same information to the police at the time of his arrest, the defendant’s *638silence may be introduced to impeach his testimony. “Absent such an assertion, the reference by the prosecutor to previous silence is impermissible,” Turner, Id., 499 Pa. at 583, 454 A.2d at 540. In the case at bar, appellant did not testify that he told his version of the story to the police, which would have justified the use of appellant’s silence to impeach such an assertion. Rather, the testimony regarding appellant’s silence was offered by the Commonwealth’s first witness at trial before the appellant had given any testimony. This statement of the Commonwealth’s witness, compounded by the instructions given by the trial judge1 allowing consideration of this silence by the jury in connection with its assessment of the defendant’s credibility, is directly in violation of the rule in Turner and violates the appellant’s right against self-incrimination.
Furthermore, accepting arguendo the assertion of the majority that appellant’s silence in response to police questioning did occur at the pre-arrest stage in the investigation, I am still troubled by the trial court’s charge allowing the jurors to consider this silence as a factor bearing on the appellant’s credibility. Given that the appellant had no duty to speak or to respond in any way to police questioning, his failure to speak should not be used against him. To use even his pre-arrest silence for impeachment purposes in the manner presented by this case seems to me a violation of Donald Monahan’s right against self-incrimination.
The second issue directly addressed by the majority approves of the Commonwealth’s introduction of testimony *639that appellant refused to submit to a neutron activation test (done to determine if the test subject has recently discharged a firearm), together with testimony that the test is only effective if promptly administered, on the basis that such refusal was not of a testimonial nature so as to implicate appellant’s rights against self-incrimination, and that his refusal “raised a legitimate inference of his 'consciousness of guilt’ ” for the jurors’ consideration. I disagree with those conclusions and would rule that the trial court again committed error in allowing the introduction of this testimony.
A view of the record shows that the state police requested that Monahan submit to a neutron activation test between 2:30 A.M. and 3:00 A.M. on the morning he came to the police barracks with the dead body in his car. On advice of counsel that he did not have to submit to the testing, Monahan refused to comply with this request, thus forcing the officers to obtain a warrant from a magistrate in order to proceed. The test was conducted at approximately 4:00 A.M. and the results were negative, meaning that Monahan’s hands did not show evidence of his having fired a firearm.
At trial the Commonwealth offered the negative results of the neutron activation test, however, the state trooper who conducted the test went on to testify that such tests are only effective if conducted within two hours of the time the test subject last fired a gun. Reviewing the transcript of this testimony, which included hypothetical questions posed by the prosecutor concerning variations in the time frame of the victim’s death, appellant’s refusal to submit and the testing, leads me to conclude that the jurors were left with the distinct impression that the test results might not have been negative if the test had been conducted at the time appellant was initially requested to submit. Thus appellant’s refusal to be tested, on advice of counsel, is used to suggest his guilty conscience, and this in spite of the fact that the Commonwealth offered no evidence to prove the *640time of the victim’s death or the time that the shooting might have occurred.
The majority correctly points out that the gathering of evidence by conducting a physical test is not testimonial in nature and does not result in a criminal defendant being compelled to offer evidence against himself. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). However, if a jury is permitted to infer that appellant’s refusal to submit to such a test exhibits a consciousness of his own guilt, I suggest that the character of the evidence is now of a testimonial nature which does implicate his rights against self-incrimination.
Monahan’s refusal was used at trial to indicate that he must have known that the test results would prove he had fired a gun recently. As was noted in an opinion of this court dealing with the issue of admissibility of one’s refusal to submit to a breathalyzer test, “Admittedly, a person may refuse to take a test for reasons that have nothing whatever to do with his guilt or innocence.” Commonwealth v. Robinson, 229 Pa.Super. 131, 148, 324 A.2d 441, 450 (1974). In the case at bar, appellant’s refusal was on advice of his attorney. It seems meaningless to inform a criminal defendant that he has a right to counsel if the Commonwealth is permitted to then penalize that defendant if he should listen to advice of counsel by suggesting such behavior indicates a guilty conscience.
I would conclude that a criminal defendant’s refusal to cooperate in an evidence-gathering test may not be used against him, particularly to suggest that the delay caused by his refusal defeated the Commonwealth’s ability to effectively prove its case.
I would grant a new trial.
. "... [Y]ou have heard evidence in this case concerning the failure of the defendant to give an explanation to the police at the State Police barracks as to what had occurred and also evidence regarding asking for an attorney or asking to speak with his attorney. You are hereby directed that a defendant’s silence and/or his request for an attorney or to speak to an attorney is not any evidence of guilt whatsoever and should not be considered as such. A defendant’s silence prior to being advised of his constitutional rights and prior to being taken into custody, however, may be considered in connection with a jury’s assessment of defendant's credibility as a witness in this case in conjunction with all the other factors bearing on credibility but only for the purpose of credibility and only if you are satisfied that under all the circumstances then and there existing an explanation would naturally have been given by the defendant.”