Opinion by
Mr. Justice Eagen,
On February 13, 1965, the appellant, George Schmidt, while represented by court-appointed counsel, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Post trial motions were overruled and sentence imposed as the jury directed. Schmidt filed this appeal.
Two assignments of error are asserted: (1) Incriminating statements given by Schmidt to the police were obtained in violation of his constitutional rights and, therefore, evidence thereof was erroneously admitted at trial; (2) The trial court erred in its charge to the jury.
The case history, as disclosed by the evidence, is briefly this: Schmidt with one Ken Baurle broke into the Caecilia-Mannerchor Club, located in a building in the north side section of Pittsburgh, about four [435]*435o’clock a.xn. on June 10, 1964, pried open certain amusement devices therein and stole money therefrom. One Bill Thornton, with full knowledge of Schmidt’s and Baurle’s intent to burglarize the premises, accompanied them to the scene and waited outside in an automobile.
During the burglary, one Joseph Meier, a tenant in another portion of the building wherein the club was located, aroused by the noise, came to the club rooms to investigate. He was assaulted by Schmidt with a blunt instrument, suffered a broken jaw, a concussion of the brain and other injuries, which subsequently resulted in death.
An arrest warrant issued on June 15, 1964, charging Schmidt with suspicion of burglary and felony-murder. He was taken into police custody the same day. On Jxxne 19th, he made statements to the police, admitting his participation in the crime, one of which was tape recorded and another reduced to typewritten form.
After indictment and before trial, Schmidt filed a motion to suppress all evidence of his statements given to the police. A hearing was held thereon by the court, which it was agreed would also serve the purpose of an independent hearing to determine the voluntariness of the statements, as required by Jackson v. Denno, 378 U.S. 368 (1964). Extensive testimony was heard. Later the court filed a comprehensive opinion detailing its factual findings, and conclusion that the statements of Schmidt were freely and voluntarily given under circumstances devoid of any violation of constitutional rights. The motion to suppress was, therefore, denied. Subsequently, the evidence of Schmidt’s statements to the police was admitted against him over objection at trial. The question of voluntari[436]*436ness was left to the jury to resolve under careful instructions of the trial court.
It is admitted that Schmidt made the statements recorded on tape and those reduced to typewritten form, and that he signed the typewritten statement at the end thereof and initialed each page. It is also admitted that at the time Schmidt was without the assistance of counsel. However, other important facts as to the circumstances under which the statements were made and his treatment by the police during custody are in serious dispute. The Commonwealth’s testimony on this facet of the case may be summarized as follows:
Schmidt was questioned intermittently by various investigating officers each day from June 15th to June 19 th. No extensive periods of questioning occurred, and the interviews were conducted in a reasonable, if not friendly, manner, and without abuse, coercive or overbearing conduct. Before he was initially questioned, Schmidt was warned that he did not have to answer any questions and anything he said would be used against him in court. He was also informed that he had the right to be represented by an attorney of his own choice; to which he replied, he did not wish an attorney at that time.
■When first questioned, Schmidt admitted having committed five other burglaries in the north side section of Pittsburgh in recent months, but denied any participation in the Mannerchor burglary. He persisted in this denial until June 19th. About 8:45 p.m. o’clock on that date, he was taken into the presence of Baurle and Thornton, both of whom had previously given formal written statements to the police admitting their part in the Mannerchor burglary, and implicating Schmidt as a co-participant and the assailant of Meier. Upon request, they orally repeated these admissions and accusations in the presence of Schmidt, which [437]*437statements were recorded on tape. Schmidt was then asked if he had anything to say. He replied that, “it happened like Kenny says. I hit the guy.” Then, in answer to questions, he orally related the details of the crime, and his statements were likewise recorded on tape. At or near the end of this questioning he was advised that he didn’t have to make a statement, and unless he consented to the use of his taped statement, it would be destroyed and not used against him. He replied that he Avished the recording preserved.
Shortly thereafter he repeated in more complete fashion the occurrence involved. This statement was reduced to typewritten form and Avhen completed, the Avritiug Avas initialed on each page and signed at the end by Schmidt. Before this formal statement was taken, he was again warned of his right to remain silent and that anything he said Avould be used against him in court. At no time during the police custody or questioning did he request the assistance of counsel.
During the police custody period from June 15 th to June 19th, no one asked to or visited Schmidt, except the pastor of a nearby Catholic church. This visit, in private, on the night of June 18th lasted about one hour.
The evidence submitted by Schmidt conflicted in many Avays Avith that offered by the Commomvealth. In brief, it asserted in relevant part, that Schmidt was never advised of his right to the assistance of counsel during the police questioning; that such assistance Avas denied despite several requests for it; that he was constantly interrogated by the police during the entire custody period with only necessary interruptions consumed by sleeping and eating; that he was threatened and physically abused by several interrogating officers; and that his mother was denied the opportunity of seeing him during the custody period despite efforts to do so.
[438]*438At the time of his arrest, Schmidt was' seventeen years and two months old, having been born on April 2, 1947. He had a serious police history, and between the ages of ten and sixteen years spent most of his time in three separate juvenile correctional institutions.
After a careful consideration of all of the testimony in the record concerning the circumstances under which the incriminating statements of Schmidt were obtained, it is our studied conclusion that the question of the voluntariness thereof was for the jury to decide. Hence, the court below did not err in admitting the evidence thereof at trial or in refusing to suppress it. The evidence offered by Schmidt, indicating the statements resulted from abusive and overbearing police conduct, did not in itself render the evidence inadmissible. In view of the Commonwealth’s testimony, which amply supported the conclusion that the statements were the free and voluntary act of Schmidt and obtained in the absence of physical and psychological coercive circumstances, it was for the jury to assess all of the testimony and determine the true facts. The verdict clearly indicates its findings.
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Opinion by
Mr. Justice Eagen,
On February 13, 1965, the appellant, George Schmidt, while represented by court-appointed counsel, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Post trial motions were overruled and sentence imposed as the jury directed. Schmidt filed this appeal.
Two assignments of error are asserted: (1) Incriminating statements given by Schmidt to the police were obtained in violation of his constitutional rights and, therefore, evidence thereof was erroneously admitted at trial; (2) The trial court erred in its charge to the jury.
The case history, as disclosed by the evidence, is briefly this: Schmidt with one Ken Baurle broke into the Caecilia-Mannerchor Club, located in a building in the north side section of Pittsburgh, about four [435]*435o’clock a.xn. on June 10, 1964, pried open certain amusement devices therein and stole money therefrom. One Bill Thornton, with full knowledge of Schmidt’s and Baurle’s intent to burglarize the premises, accompanied them to the scene and waited outside in an automobile.
During the burglary, one Joseph Meier, a tenant in another portion of the building wherein the club was located, aroused by the noise, came to the club rooms to investigate. He was assaulted by Schmidt with a blunt instrument, suffered a broken jaw, a concussion of the brain and other injuries, which subsequently resulted in death.
An arrest warrant issued on June 15, 1964, charging Schmidt with suspicion of burglary and felony-murder. He was taken into police custody the same day. On Jxxne 19th, he made statements to the police, admitting his participation in the crime, one of which was tape recorded and another reduced to typewritten form.
After indictment and before trial, Schmidt filed a motion to suppress all evidence of his statements given to the police. A hearing was held thereon by the court, which it was agreed would also serve the purpose of an independent hearing to determine the voluntariness of the statements, as required by Jackson v. Denno, 378 U.S. 368 (1964). Extensive testimony was heard. Later the court filed a comprehensive opinion detailing its factual findings, and conclusion that the statements of Schmidt were freely and voluntarily given under circumstances devoid of any violation of constitutional rights. The motion to suppress was, therefore, denied. Subsequently, the evidence of Schmidt’s statements to the police was admitted against him over objection at trial. The question of voluntari[436]*436ness was left to the jury to resolve under careful instructions of the trial court.
It is admitted that Schmidt made the statements recorded on tape and those reduced to typewritten form, and that he signed the typewritten statement at the end thereof and initialed each page. It is also admitted that at the time Schmidt was without the assistance of counsel. However, other important facts as to the circumstances under which the statements were made and his treatment by the police during custody are in serious dispute. The Commonwealth’s testimony on this facet of the case may be summarized as follows:
Schmidt was questioned intermittently by various investigating officers each day from June 15th to June 19 th. No extensive periods of questioning occurred, and the interviews were conducted in a reasonable, if not friendly, manner, and without abuse, coercive or overbearing conduct. Before he was initially questioned, Schmidt was warned that he did not have to answer any questions and anything he said would be used against him in court. He was also informed that he had the right to be represented by an attorney of his own choice; to which he replied, he did not wish an attorney at that time.
■When first questioned, Schmidt admitted having committed five other burglaries in the north side section of Pittsburgh in recent months, but denied any participation in the Mannerchor burglary. He persisted in this denial until June 19th. About 8:45 p.m. o’clock on that date, he was taken into the presence of Baurle and Thornton, both of whom had previously given formal written statements to the police admitting their part in the Mannerchor burglary, and implicating Schmidt as a co-participant and the assailant of Meier. Upon request, they orally repeated these admissions and accusations in the presence of Schmidt, which [437]*437statements were recorded on tape. Schmidt was then asked if he had anything to say. He replied that, “it happened like Kenny says. I hit the guy.” Then, in answer to questions, he orally related the details of the crime, and his statements were likewise recorded on tape. At or near the end of this questioning he was advised that he didn’t have to make a statement, and unless he consented to the use of his taped statement, it would be destroyed and not used against him. He replied that he Avished the recording preserved.
Shortly thereafter he repeated in more complete fashion the occurrence involved. This statement was reduced to typewritten form and Avhen completed, the Avritiug Avas initialed on each page and signed at the end by Schmidt. Before this formal statement was taken, he was again warned of his right to remain silent and that anything he said Avould be used against him in court. At no time during the police custody or questioning did he request the assistance of counsel.
During the police custody period from June 15 th to June 19th, no one asked to or visited Schmidt, except the pastor of a nearby Catholic church. This visit, in private, on the night of June 18th lasted about one hour.
The evidence submitted by Schmidt conflicted in many Avays Avith that offered by the Commomvealth. In brief, it asserted in relevant part, that Schmidt was never advised of his right to the assistance of counsel during the police questioning; that such assistance Avas denied despite several requests for it; that he was constantly interrogated by the police during the entire custody period with only necessary interruptions consumed by sleeping and eating; that he was threatened and physically abused by several interrogating officers; and that his mother was denied the opportunity of seeing him during the custody period despite efforts to do so.
[438]*438At the time of his arrest, Schmidt was' seventeen years and two months old, having been born on April 2, 1947. He had a serious police history, and between the ages of ten and sixteen years spent most of his time in three separate juvenile correctional institutions.
After a careful consideration of all of the testimony in the record concerning the circumstances under which the incriminating statements of Schmidt were obtained, it is our studied conclusion that the question of the voluntariness thereof was for the jury to decide. Hence, the court below did not err in admitting the evidence thereof at trial or in refusing to suppress it. The evidence offered by Schmidt, indicating the statements resulted from abusive and overbearing police conduct, did not in itself render the evidence inadmissible. In view of the Commonwealth’s testimony, which amply supported the conclusion that the statements were the free and voluntary act of Schmidt and obtained in the absence of physical and psychological coercive circumstances, it was for the jury to assess all of the testimony and determine the true facts. The verdict clearly indicates its findings. Moreover, two judges below who, in separate occasions, heard all of the testimony concerning the circumstances under which the statements were elicited arrived at the same conclusion, namely, that the statements were freely and voluntarily made. Our conclusion is to the same effect.
Nor are we persuaded that the absence of counsel during police questioning constituted a denial of “the assistance of counsel” in violation of the Sixth Amendment to the United States Constitution, and thus rendered inadmissible at trial evidence of the incriminating statements.1
[439]*439This case was tried subsequent to the announcement of the decision of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478 (1964), but before the decision in Miranda v. Arizona, 384 U.S. 436 (1966). Hence, Escobedo controls, but the rules governing in-custody police interrogation announced in Miranda do not apply. See Johnson v. New Jersey, supra note 1.
Following the announcement of the decision in Escobedo, supra, the courts in many jurisdictions disagreed as to its full impact. See, Commonwealth v. Negri, 419 Pa. 117, 213 A. 2d 670 (1965), and cases cited therein. This Court, when first confronted with the problem, concluded that the Escobedo ruling was limited to its own facts, and, in particular, we decided that Escobedo controlled only “where a request for counsel is rejected and no warning is given of the right to remain silent.” See, Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 337, 206 A. 2d 288 (1965); Commonwealth v. Patrick, 416 Pa. 437, 206 A. 2d 295 (1965); Commonwealth v. Coyle, 415 Pa. 379, 203 A. 2d 782 (1964) ; and, Commonwealth ex rel: Storch v. Maroney, 416 Pa. 55, 204 A. 2d 263 (1964). In other words, we ruled that evidence of statements freely made by one accused of crime during police questioning in the absence of counsel was not constitutionally tainted and inadmissible at trial, unless the accused had requested and been refused the assistance of counsel during the questioning, and had not effectively been warned of his right to remain silent.
Subsequently, the United States Court of Appeals for the Third Circuit handed down decisions in the companion cases of United States ex rel. Russo v. New Jersey, and United States ex rel. Bisignano v. New Jersey, 351 F. 2d 429 (3d Cir. 1965). It was ruled therein, that no request by the accused is necessary [440]*440to impose upon the interrogating officer the duty to furnish the assistance of counsel' during police interrogation in the absence of a warning to remain silent, or an intelligent and understanding waiver. In Commonwealth v. Negri, supra, for persuasive reasons spelled out therein, we decided to abandon our prior rulings on the pertinent question in Linde, Patrick, Coyle and 8torch, supra, and follow the ruling of the Third Circuit in Russo and Bisignano, supra, “until some further word is spoken by the Supreme Court of the United States.” See, Commonwealth v. Negri, supra, at 122.2
Subsequently in June 1966, the United States Supreme Court spoke further on the question under discussion in its decisions in Miranda v. Arizona, supra, and Johnson v. Neto Jersey, supra. A close study of the opinions in these cases compels the conclusion that our original interpretation of Escobedo was correct. In other words, under Escobedo, supra, an individual is not unconstitutionally deprived of the assistance of counsel during police questioning, unless he requested such assistance and was not effectively warned of his right to remain silent.3 We now accept this final definitive ruling of the United States Supreme Court as controlling on the question.
In the present case, it was established by credible and competent evidence, which the lower court accepted as true, that Schmidt never requested the assistance of counsel during the period of police questioning. His testimony to the contrary was rejected below as unworthy of belief. Additionally, it was established that before any questioning commenced he was warned [441]*441that he did not have to answer any questions. Also, that this warning, in words of like import, was repeated on two additional occasions during the questioning period. In this connection, it is significant to note that even Schmidt admitted in his own testimony that such a warning was given before he signed the typewritten statement, and that in the forepart thereof was included the following question and answer: “Q.: Before going any further I am now going to advise you of your constitutional rights in which you either have the right to give or refuse to give this statement which will be used either for you or against you at the time of your trial, which do you wish to do? A. [By Schmidt] You mean what do I want to do, I want to give it.” Under the circumstances, the absence of counsel during the questioning did not per se render evidence of the incriminating statements constitutionally inadmissible.
In the final assignment of error, Schmidt contends that the trial court erred in its charge, because the jury was at least inferentially deprived of the opportunity of returning any verdict of guilty other than that of murder in the first degree. It is unquestionably true that “in a trial on a murder indictment the jury has the exclusive right to fix the degree of guilt and may not be deprived of this right, even though the only evidence in the case establishes that the killing was committed in the perpetration of a felony:” Commonwealth v. Meas, 415 Pa. 41, 45, 202 A. 2d 74 (1964). However, our reading of the charge in the instant case discloses no violation of this legal principle. In more than one instance, the trial court clearly and unequivocally told the jury that any one of four verdicts was possible under the evidence, namely, first degree murder, second degree murder, voluntary manslaughter, or not guilty; and, that it was for the jury to determine which verdict was proper.
Judgment affirmed.