dissenting.
Although I am in accord with Chief Judge Hastie’s opinion and concur with his conclusion that under the “totality of circumstances” Dickerson was denied the due process of law contemplated by the Fourteenth Amendment, I am constrained to file this separate opinion to point out that even if the approach of the majority is adopted— an approach which is in certain respects a mechanical one — the grant of the writ of habeas corpus should nonetheless be affirmed.
The majority concludes, that the interrogation following the bring-up order was the critical stage at which the right to counsel attached, but that the proceeding before the court when the bring-up order was issued was not a critical stage so as to require the presence of counsel. The majority then proceeds to decide that Dickerson’s confession, although obtained without the presence of counsel, was admissible because this Court has ruled that Mas-siah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), in which the crucial interrogation took place after indictment, is not retroactive. United States ex rel. Allison v. New Jersey, 418 F.2d 332 (3d Cir. 1969).
The majority’s conclusion ignores the fact that the interrogation of Dickerson was conducted pursuant to the judicial sanction of the bring-up proceeding. Were is not for the signing of the bring-up order by a judicial officer, the second crucial interrogation could not have occurred in police headquarters. The bring-up proceeding which gave the police the opportunity to question Dickerson at length without counsel was therefore a critical stage in the Commonwealth’s proceeding against Dickerson, and the defendant’s rights regarding such stage may appropriately be traced to White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), which is retroactive. Arensault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). The decisions in Massiah and Allison did not involve interrogations authorized by judicial proceedings, and do not therefore provide the applicable rule governing the case here.
In White, the Supreme Court said that counsel was required at a preliminary hearing because the hearing at which the defendant pleaded guilty, although not required to do so, was a critical stage in the criminal prosecution. Accord, Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628, 631, 246 A. 2d 371, 373 (1968).
To avoid the impact of the rulings of White and Hamilton v. Alabama, 368 U. S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the majority takes the position that these cases are “confined to those situations where substantial rights may be lost by defendant’s action or inaction at formal judicial proceedings.” But such a narrow interpretation rewards the state if it acts ex parte, and penalizes the state if it conducts a formal hearing at which the defendant is present. The majority would quite probably concede that if Dickerson were present at the bring-up proceeding, he would have been entitled to counsel. Since, however, the bring-up order was signed ex parte, he is not afforded that right.
In addition, the majority fails to recognize that the decisive element of a judicial proceeding which makes it a “critical stage” is the consequential effect of the proceeding on the defendant. The majority’s conclusion also appears to be *473inconsistent with the Supreme Court’s recent decision in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) which squarely holds that a defendant has a right to counsel1 at a preliminary hearing because such a hearing is a critical stage in the judicial proceeding.
In Coleman the Supreme Court recognized that a defendant may be prejudiced by lack of counsel at pretrial judicial proceedings although the defendant does not say or do anything at such proceeding which is subsequently used as evidence against him at trial. As Justice Brennan pointed out, the role of counsel is to protect the defendant “against erroneous or improper prosecution”. Counsel may be able to affect the proceeding for the defendant’s benefit or turn it toward a course which protects the defendant’s rights.
Dickerson did not have counsel at his preliminary hearing or at the bring-up proceeding. In Coleman the Supreme Court said that unless the absence of counsel is harmless error a new trial must be ordered. The case was remanded to the state court to determine, in the first instance, the question of harmless error.2 3
It is clear on the record here that Dickerson was prejudiced by lack of counsel at the bring-up proceeding. As a result of that proceeding, a statement was obtained which was undoubtedly the most damaging evidence against him.3 An attorney for Dickerson at the bring-up proceeding would have objected to the transfer of Dickerson to police custody for continuous police interrogation without counsel. Thus, Dickerson’s second statement was the “fruit” of his lack of representation at the bring-up proceeding, and therefore inadmissible. Cf. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).
I would affirm the District Court’s grant of the writ of habeas corpus so that Dickerson may be afforded a new trial for the reasons enunciated by Chief Judge Hastie as well as those set forth in this opinion.
. Although an amicus brief filed in Dickerson urged this Court to adopt the position taken by the Supreme Court in Coleman, the majority does not refer to the contention set forth in the amicus brief. Indeed, it mentions the Coleman decision only briefly.
. Although the retroactivity of Coleman has not yet been decided, it would appear to be retroactive since it is akin to the decisions guaranteeing a defendant the right to counsel at various in-court judicial proceedings in a criminal prosecution which have been held retroactive. Arsenault v. Massachusetts, holding White v. Maryland retroactive; Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L.Ed.2d 650 (1964), holding Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel at trial for serious crimes) retroactive ; Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964) holding Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to counsel on appeal) retroactive; McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968), holding Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (right to counsel at revocation of probation and imposition of deferred sentencing) retroactive. The major decisions denying retroactivity involve the right to counsel at critical stages outside the courtroom. E. g., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), denying retroactivity to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), denying retroactivity to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Because of reliance on White v. Maryland in this dissenting opinion it is not necessary to pass on the question of retroactivity.
. The statement given by Dickerson at the second interrogation — that he hit the guard, took the guard’s black jack and sold it the next day for $1.25 — was the only statement which supported Dickerson’s conviction for first degree “felony murder.” During the earlier interrogation Dickerson denied any involvement with the guard and always contended that he was not present when Broaddus killed the guard.