*21Concurring Opinion by
Mr. Justice Pomeroy :While I concur in the holding of the Court on the three issues presented (the right of the convicted parolee to a revocation hearing; the right of the convicted parolee to counsel at that hearing; and the right of the parolee to insist on the presence of the majority of the Parole Board), I deem it appropriate to add the following observations.
The Supreme Court of the United States in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484 (1972), a case involving a “technical” violation of parole, divided the requirements of due process in parole revocation proceedings into two hearings. The first, a “preliminary hearing”, is to be conducted before an impartial official prior to reimprisonment of the parolee and is to inquire only into whether there exists probable cause to believe that a condition of parole has been violated (i.e., in the cases now before us, whether the parolee has been convicted of another crime). The second hearing is to consider the consequences of the violation, i.e., whether the parolee should in the best interests of society be returned to prison.1
In one of the two cases presently on appeal, the appellant Itambeau was already incarcerated as a consequence of his second conviction when parole authorities took steps to revoke his parole from imprisonment following the first conviction. The opinion of the Court should not, I think, be read as requiring the parole authorities to perform the useless task of holding a “preliminary hearing” to determine if probable cause exists to believe that a parolee such as Itambeau has violated his parole.
The other appellant, Emanuel Collins, was not imprisoned following his second conviction, but instead *22was placed on probation. It would seem clear, under Morrissey, that in such a case a “preliminary hearing” will be required. Apparently, the Court’s present holding that even a convicted parole violator is entitled to free counsel if he is indigent would extend to this “preliminary hearing”. One might well ask what purpose the lawyer would serve in such a hearing. The only issue is the fact of the conviction itself, and as to that issue it can safely be said that there is little, if any, risk of injustice. Parole officials may be expected not to be in error as to the record fact of a subsequent conviction,2 and in that rare case in which somehow error occurs, I should suppose the parolee himself, even without a lawyer, would make vigorous protest that he had not in fact been convicted a second time.
This Court has held that technical parole violators, if indigent, have a right to free counsel. Commonwealth v. Tinson, 433 Pa. 328, 249 A. 2d 549 (1969).3 That decision relied heavily on Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336 (1967), a case holding that the indigent state criminal defendant is entitled to free counsel at proceedings to revoke his probation and to impose a sentence. The Supreme Court of the United States in Morrissey, however, has cast grave doubt on the validity of resting a right to counsel at parole revocation proceedings on the authority of Mempa. Said Chief Justice Burger, speaking for the Court: “We begin with the proposition that the revocation of parole is not *23part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceedings does not apply to parole revocations. Cf. Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967). Parole arises after the end of the criminal prosecution, including imposition of sentence.” Morrissey, 408 U.S. at 480, 33 L. Ed. 2d at 494. The Supreme Court went on to observe that “[o]nce it is determined that due process applies, the question remains what process is due.” Id. at 481. Thus, the holding of Morrissey that due process in parole revocation requires “an effective but informal hearing” is not to say that such a hearing must have the same requirements that attach to due process in other circumstances and in other proceedings. And, of course, the Court ended its opinion in Morrissey by observing that it was not called upon to decide whether the due process clause of the Fourteenth Amendment would require appointment of counsel to represent indigent parolees; the concurring opinion of Justice Brennan advocates only that counsel be permitted to be present, citing Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287 (1970), and leaves open the question “whether counsel must be furnished the parolee if he is indigent.” 408 U.S. at 491. Only Mr. Justice Douglas, dissenting in part, appeared to be of the blanket opinion that “the parolee should be entitled to counsel”, 408 U.S. at 498, and that observation was made in the context of “violation of a condition of parole” as distinguished from “commission of a new offense,” 408 U.S. at 497.
A reading of the Morrissey opinions together with the Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530 (1972) (decided approximately two weeks earlier) indicates to me that the right to counsel, including that of an indigent to assignment of state-provided counsel, may well terminate at the boundary of proceedings denominated “criminal”. *24It is doubtful, therefore, that this court’s decision in Tinson, supra, was required as a matter of federal constitutional law.4 Nevertheless, in view of the absence of controlling authority on the point, I do not quarrel with the Tinson holding that the technical violator is entitled to representation by counsel and, if indigent, to the appointment of free counsel.5
The basic issue before the Court in the instant cases is whether the holding of Tinson should be extended to the convicted parole violator. Given Tinson, I see little to be gained by not making that extension with respect to what Morrissey denominates as the second hearing to which a convicted violator is entitled.6
The primary and perhaps only value of counsel at a revocation hearing for the convicted violator will be the ability of a trained legal mind to muster facts and make arguments which might induce the Parole Board *25not to reimprison the violator. Counsel will serve the same function for the technical violator, but in that case will be of value as well in resolving the first question—the existence of a parole violation. Were we to draw a line between the right to counsel of a technical violator and that of a convicted violator, we would necessarily equip the former with counsel to argue mitigating circumstances to the Board, while at the same time denying counsel to fulfill the same role for the latter. If we think due process requires the first (Tinson), then I am of the opinion that it must require the same in the cases now before us.7
For a discussion of tlie holdings and implications of Morrissey v. Brewer, see The Supreme Court, 1971 Term, 86 Harv. L. Rev. 1, 95-103 (1972).
The distinction between a “convicted violator” and a “technical violator” may result in important differences in procedure and in due process requirements in the revocation process. As pointed out in the comprehensive Comment, The Parole System, 120 U. of Pa. L. Rev. 282, 342 n. 386 (1971), “[p]resumably the distinction is drawn because factual issues have already been determined in the ease of a convicted violator.” The same point is made in Mr. Justice Eagen’s concurring and dissenting opinion herein.
The writer was not a member of the Tinson court.
This is not to suggest, of course, that the holding would necessarily be erroneous as a matter of state constitutional law. See Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A. 2d 487 (1971).
I disagree, however, with the Court’s Sixth Amendment bases for this right. Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 336 (1967) [revocation of probation prior to sentencing] and Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387 (1970) [preliminary hearing], relied on by the court, are inapposite. The right to counsel has never been held to be applicable in a post-sentencing situation such as the ones at bar. Revocation of parole, as the U. S. Supreme Court said in Morrissey, “is not part of a criminal prosecution”, 408 U.S. at 480. I would bottom the right entirely on due process, to the end that the revocation hearing may provide a “meaningful opportunity to be heard”. See Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113 (1971). Cf. Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287 (1970).
The issue decided by this Court in Tinson is now awaiting decision in the Supreme Court of the United States. See Gagnon v. Scarpelli, 408 U.S. 921 (right to counsel on revocation of probation where sentence has been imposed previously). I would personally prefer to withhold our opinions in the instant case until the Supreme Court has spoken.
See The Parole System, 120 U. of Pa. L Rev., supra, at 352-356. The author of the comment properly points out that limits on counsel’s role and the extent of his activity may legitimately be imposed by parole boards. Id. at 354 n. 464.