Dissenting Opinion by
Me. Justice Pomeeoy :Being convinced that the trial court erred in the two grounds on which appellee was awarded a new trial, I must dissent from the affirmance of its order.
I.
The issue considered by the Court in its opinion is whether a statement given by the defendant at an uncounseled preliminary hearing in 1959 could be used *443against him by way of impeachment a,t his trial which took place in. 1962. The Court holds that this question is controlled by White v. Maryland, 373 U.S.. 59, 10 L. Ed. 2d 193 (1963), and states that the use of such a statement at trial “was prejudicial error which required a new trial.”1 I cannot agree with that conclusion.
White arose under a Maryland procedure which permitted (but did not require) the defendant at a preliminary hearing to enter a plea to the charges against him. In that case the defendant, uncounseled, entered a plea of guilty and later, counseled, withdrew the plea, entered a plea of not guilty, and proceeded to trial, only to he impeached by his uncounseled guilty plea at the preliminary hearing. The Supreme Court of the United States, citing Hamilton v. Alabama, 368 U.S. 52, 55, 7 L. Ed. 2d 114, 117 (1961), held that “only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.” Notwithstanding the White and Hamilton decisions, however, until Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387 (1970), it was the law that as a general proposition the presence of counsel at a preliming hearing (one at which pleas were not taken—White v. Maryland-, one at which defenses not then raised were not lost—Hamilton v. Alabama) was not constitutionally required. Coleman, of course, overruled that general proposition and held that (1) an Alabama preliminary hearing was a “critical stage” of a criminal prosecution at which the presence of counsel is constitutionally mandated; and that (2) the petitioner in Coleman was entitled to a remand to determine if the absence of counsel had in some manner prejudiced him, or whether, instead, it was constitutionally harmless error. As the *444majority indicates, Coleman was held, in Adams v. Illinois, 405 U.S. 278, 31 L. Ed. 2d 202 (1972), to apply prospectively only, that is to say, to preliminary bearings conducted after June 22, 1970.2
We are thus faced with two lines of authority. If in the instant case appellee’s claim to counsel falls within Hamilton v. Alabama, supra, or White v. Maryland, supra, then without a showing of prejudice he is entitled to a new trial;3 but if Hamilton or White are not applicable to appellee’s situation, then Coleman is the governing authority. If the latter is the case, then, as this preliminary hearing precedes the date of that decision, appellant’s claim to assistance of counsel will fail, Coleman not being retroactively applied.4 Clearly, as *445it seems to me, Horner’s position is not that in Hamilton, since under our practice no defenses could be waived by a failure to raise them at the preliminary bearing.5 Similarly, Horner’s claim is not that in White v. Maryland, Homer not having pleaded guilty at the preliminary hearing.
Indeed, what the appellee here did at the preliminary hearing runs in the opposite direction to what occurred in White or Hamilton. Rather than waive defenses, he selected one—self-defense—and testified to that effect only after having been first warned that he was not required to say anything and that what he did say might be held against him. Rather than confess guilt, Horner professed innocence by explaining that the killing was justifiable homicide, that is to say, not a crime at all. I therefore think that Homer’s claim to counsel is not that in either White or Hamilton and that the nonretroactivity of Coleman v. Alabama leads to the conclusion that at the date of this preliminary hearing (1959), Horner had no constitutional right to *446counsel. The rationale by which the majority reaches a contrary result, is, at least to me, most unclear.6
Immediately upon being arrested by the police (at a date pre-Escobedo and pre-Miranda), appellee gave and signed a statement admitting the killing, but asserting self-defense. At no point, either pre-trial, at trial, or post-trial, has any suggestion been made that this first statement was in some manner inadmissible. Indeed, it was introduced without objection at the trial during the Commonwealth’s case-in-chief. When at trial defendant Horner took the stand and denied having killed the deceased, justifiably or otherwise, it was open to the Commonwealth to impeach him, using either this first statement, already introduced into evidence, or using the transcripts from the preliminary hearing. The Commonwealth chose the latter, evidently because it was given under oath before a judicial officer and was quite understandably more effective a tool for the Commonwealth’s purpose.7 Unlike the majority, I see no “prejudice” in this procedure other than the common garden variety that comes from switching in mid-stream from a claim of self-defense to a claim of not having killed *447at all.8 Appellee, however, was not constitutionally entitled to counsel at the preliminary hearing under Coleman v. Alabama, was not entitled to counsel under the decisions in White v. Maryland and Hamilton v. Alabama, and therefore the damage to Ms defense was only that generally caused by the giving of inconsistent statements under oath.
II.
The lower court granted appellee a new trial on another ground, not considered in the opinion of the Court: the refusal of the trial judge to give the jury a requested instruction to the effect that the jury must first determine the voluntariness of Horner’s third statement and only if go determined should it be regarded as evidence.9 This statement was introduced as part of *448the Commonwealth’s case without defense objection. During Homer’s direct testimony, defense counsel touched upon the “voluntariness” of this ratified statement only to this extent: “[Defense Counsel] Q. Did you finally sign that statement? A. Yes, I finally signed it so he would quit asking me so many questions. As I started to say, I didn’t think it was any good and I hadn’t a chance to see an attorney. In fact, it was ten months before I had an attorney.” There was no evidence of physical coercion; there was no evidence of the use of impermissible interrogation techniques by the questioner, an attorney. There is only this assertion that “I finally signed it so he would quit asking me so many questions.”
While the right which appellee asserts to this instruction is not of constitutional dimension,10 there is no question but that such an instruction is part of our State’s law. See, e.g., Commonwealth v. Heckathorn, 429 Pa. 584, 241 A. 2d 97 (1968); Commonwealth ex rel. Gaito v. Maroney, 416 Pa. 199, 204 A. 2d 758 (1964); Commonwealth v. McLean, 213 Pa. Superior Ct. 297, 247 A. 2d 640 (1968). Although the trial court was in error in refusing the request, that error was in my opinion harmless and not cause for a new trial.
The jury here was properly instructed on its fact-finding role. It was told that the weight to be given to the evidence admitted in the case was for its determination and that in deciding what credit to give to certain statements, it should place the statement in the context in which it was given. The jury was confronted with three contradictory accounts of the killing: first, Horner’s account in his first statement and at the preliminary hearing (self-defense; no conspiracy); second, *449that of Mrs. Newman both in a signed statement (adopted by Horner) and restated at trial (conspiracy to murder; Horner the killer); and finally, that of Horner at trial (Mrs. Newman shot her husband; no conspiracy). Paced with these irreconcilable conflicts, the jury obviously had to resolve credibility problems, a task for which it wag adequately instructed. There is no reason to suppose that in go doing the jury would not have remembered Homer’s reason for adopting the account of Mrs. Newman (“I. . . signed it so he would quit asking me so many questions.”) or that the jury would not give proper weight to that assertion in resolving the credibility problem.11
I would reverse and remand with directions that the lower court pass on the four allegations of error not dealt with in the opinion and order granting the appellee a new trial.
Mr. Chief Justice Jones joins in this dissenting opinion.It is clear that the decision in White v. Maryland, supra, is to be retrospectively applied. Arsenault v. Massachusetts, 393 U.S. 5, 21 L. Ed. 2d 5 (1968).
The preliminary hearing in the ease at bar was held on December 19, 1959.
White v. Maryland, 373 U.S. at 60: “We repeat what we said in Hamilton v. Alabama . . . that we do not stop to determine whether prejudice resulted: ‘Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.’ ”
Appellee advances an intermediate position, said to be the established law of this Commonwealth. He argues that if it can be shown that the absence of counsel at the preliminary stage operated to his prejudice at a later stage, then a constitutional right to counsel has been denied, citing eases such as Commonwealth v. Stukes, 435 Pa. 535, 257 A. 2d 828 (1969); Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628, 246 A. 2d 371 (1968); Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, 228 A. 2d 640 (1967); Commonwealth ex rel. Knowles v. Rundle, 419 Pa. 300, 213 A. 2d 635 (1965); Commonwealth ex rel. James v. Russell, 416 Pa. 546, 207 A. 2d 792 (1965); Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A. 2d 283 (1965).
My examination of those cases discloses that they do no more •than recognize the authority of White v. Maryland and Hamilton v. Alabama, all the while reciting the then general rule that there is no constitutional right to counsel at a preliminary hearing.
The holding of Coleman v. Alabama, set forth in the text above, is that a preliminary hearing (Alabama’s is indistinguishable from Pennsylvania’s) is a “critical stage” in criminal prosecution and *445that defendants who were without counsel in preliminary hearings conducted after June 22, 1970 and who were prejudiced thereby (i.e., not harmless error) are entitled to new trials. The intermediate rule advanced by appellee and, it would seem, implicitly adopted by the majority is merely the holding of Ooleman retroactively applied, notwithstanding that such retroactive application is not required, see Adams v. Illinois, cited in text, supra.
It could be argued that by testifying to a version of the facts amounting- to a claim of self-defense, appellee precluded himself from later asserting a different defense. Hamilton, however, was a recognition that the indigent layman is in danger at a preliminary hearing of waiving defenses (under an Alabama law which at the time provided for such preclusion) by his failure to recognize that the facts as he knows them constitute a defense. Here, however, Horner recognized that his version of the facts did constitute a defense. He was not precluded hy Pennsylvania procedure from iater asserting a different defense at trial. The only penalty would be that which always arises when one decides to change one’s story.
The majority distinguishes Coleman v. Alabama from this case as follows: “Herein, unlike in. Coleman . . . , the preliminary hearing was a critical stage in the prosecution proceedings where the assistance of counsel was required.”
With all respect, Coleman cannot be distinguished on the ground that it did not involve a “critical stage”. Witness the following excerpt from the opinion of Mr. Justice Brennan, speaking for the Court: “The inability of the indigent accused on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preUmdnary hearing is a ‘witical stage’ of the State’s criminal process at which the accused is ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” 399 U.S. at 9-10 (emphasis added).
1 see no necessity for deciding or discussing the applicability of Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1 (1971), to this situation, assuming, of course, a denial of a constitutional right to counsel not present in this case.
One might ask whether an attorney would have altered the stance the defendant took at the preliminary hearing. Horner had already given a signed statement to Philadelphia police in which he asserted self-defense. Mrs. Newman’s story was consistent with that claim. It having been thus asserted in a signed statement, a competent attorney might well have advised Horner to continue his self-defense claim at the preliminary hearing.
The reason Horner was obliged to abandon self-defense at trial was that after the preliminary hearing, the wife (Mrs. Newman) changed her story to one of conspiracy to murder with Horner as the killer, and then pleaded guilty to murder. No jury would believe self-defense when the paramour had acknowledged guilt. The prejudice arises logically not from the absence of counsel, but rather from the refusal of the wife to remain constant in her earlier account of the killing. For the inconstancy of accomplices the law provides no remedy.
The third statement was actually that of the paramour-wife, who admitted participation in a conspiracy to murder her husband and stated that Horner had done the actual shooting. Horner, during an interview with the Assistant District Attorney after the date of the preliminary hearing, had agreed that this statement was the truth and had signed it. The Commonwealth introduced it as an adoptive admission.
in Lego v. Twomey, 404 U.S. 477, 30 L. Ed. 2d 618 (1972), the United States Supreme Court held that a criminal defendant was not entitled under the federal constitution to have a second determination of voluntariness made by the jury.
1 note that the notes of 'testimony from Ho-rner’s POHA petition (on which he was granted a direct appeal nunc pro tunc) have not been transcribed. The Assistant District Attorney who represented the Commonwealth at that POHA hearing stated in a brief filed below in opposition to post-trial motions that “[a]t defendant’s post-conviction hearing on May 20,1970, Charles L. Guerin, Esquire, testified that he and Judge Meade [who together were defense counsel at Horner’s trial] did not object to the admission of the statements because they concluded that defendant gave the statements voluntarily.” If that is so, I would be doubly certain that the voluntariness issue does not warrant a new trial.