Concurring and Dissenting Opinion by
Mr. Justice Roberts:While I fully agree with the majority’s decision to grant appellant his right to an appeal as though timely filed, I cannot agree that his confession was constitutionally obtained. I still retain the view, set out more .fully in my dissent in Commonwealth v. Dickerson, 428 Pa. 564, 565, 237 A. 2d 229, 230 (1968), that an interrogation occurring after a preliminary hearing, holding an accused for grand jury action, is a critical stage, and that counsel is accordingly required. While the Third Circuit has now apparently adopted this view, see United States ex rel. Dickerson v. Rundle, 430 F. 2d 462 (3d Cir. 1970), relief is now denied on the basis that Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964), is not retroactive. See United States ex *491rel. Allison v. New Jersey, 418 F. 2d 332 (3d Cir. 1969). I cannot agree.
Massiah is a Sixth Amendment case: “Here we deal . . . with a . . . conviction . . . where the specific guarantee of the Sixth Amendment directly applies. ... We hold that petitioner was denied the basic protections of that guarantee...” 377 U.S. at 205-206, 84 S. Ct. at 1202-1203 (citations omitted). It relied heavily on other Sixth Amendment cases, such as Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961); White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963), and Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), as well as the concurring opinion in Spano v. New York, 360 U.S. 315, 326, 79 S. Ct. 1202, 1209 (1959). See Massiah, 377 U.S. at 204-205, 84 S. Ct. at 1202. These right to counsel cases “have all been made retroactive, since the ‘denial of the right must almost invariably deny a fair trial.’ See Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199.” Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S. Ct. 35, 36 (1968) (holding White v. Maryland, supra, retroactive). Accord Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628, 631-32, 246 A. 2d 371, 373 (1968). See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S. Ct. 459, 465 (1966) (articulating difference between right to counsel, and Fifth and Fourth Amendment cases). Hence I believe that Massiah is likewise retroactive, and that appellant’s confession is consequently constitutionally infirm.
Additionally, I must note my agreement with Judge Adams’ dissenting opinion in United States ex rel. Dickerson v. Rundle, supra, in which he notes that the majority’s conclusion in Dickerson is inconsistent with the United States Supreme Court’s recent decision in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). There the Supreme Court held that an ac*492cused must have counsel “ ‘at any stage of the prosecution, formal or informal, m court or out.’ ” Id. at 7, 90 S. Ct. at 2002 (emphasis added). This again supports my view that once the accused is held for the grand jury, the prosecution has commenced, and the accused is consequently entitled to the assistance of counsel at every stage thereafter. In the instant case, as in Dickerson, the accused was prejudiced by the denial of counsel at a later stage, and under Coleman, relief must therefore be granted. See United States ex rel. Dickerson v. Rundle, 430 F. 2d 462, 472 (Adams, J., dissenting).
Accordingly, with all deference to a majority of the Third Circuit, it is my view that the above United States Supreme Court decisions require us to give appellant relief. Certainly, I might add, there is nothing in either federal or state law which compels us to follow Dickerson, a four-to-three decision of the Third Circuit, and, in my judgment, erroneously deny to appellant the relief to which he is entitled. Hence I would grant appellant a new degree of guilt hearing, free of the taint of the unconstitutionally obtained confession.