Concurring Opinion by
Spaeth, J.:I join in Judge Cercone’s opinion so far as it concerns the validity of the search of appellant’s room, and also as to the necessity to grant a new trial because of the Commonwealth’s failure to reproduce the photographic display. I do not agree, however, that United *13States v. Ash, 413 U.S. 300 (1973), “stands for the better rule.” For reasons to be stated, I believe that the requirement once imposed by Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738, cert. denied, 400 U.S. 919 (1970), is the law of Pennsylvania, not, however, by virtue of the Sixth Amendment of the United States Constitution but rather by virtue of Article I, §9, of the Pennsylvania Constitution. I nevertheless reach the same result as does Judge Cercone because in the present case the photographic display occurred before the prosecution had begun. Accordingly, the right to counsel had not yet attached.
In United States v. Wade, 388 U.S. 218 (1967), it was held that the Sixth Amendment guarantee of the assistance of counsel applies to “critical stages” of the prosecution of an accused. “Critical stages” were defined as those where “the presence of his counsel is necessary to preserve the defendant’s basic right to fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Id. at 227. The majority in Wade found that there is inherent in lineups a potential for improper and suggestive influences that may lead to misidentification. Moreover, challenging an identification is difficult because the witnesses rarely change their minds and trial counsel is handicapped in impeaching a misidentification since he is unable to reconstruct what occurred at the lineup. Thus the majority concluded: “Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution. . . .” Id. at 236-37.
*14In Commonwealth v. Whiting, supra, onr Supreme Court reviewed the reasoning of Wade and concluded that it required the presence of counsel at photographic identification displays. It stated that “Wade cannot be undercut simply by substituting pictures for people ____” Id. at 209, 266 A. 2d at 740.
Recently, however, the United States Supreme Court declined to extend Wade to photographic displays. United States v. Ash, supra. It expressly held that “the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.” Id. at 821. As Judge Cercone indicates in his opinion, it is clear from Ash that Whitmg will have to be re-examined.
In doing so, it must be acknowledged at the outset that the decision in Whiting, as much as the decision in Wade, is based on an interpretation of the Sixth Amendment. From this it follows that after Ash, Whiting “can no longer be considered to be an accurate statement of federal constitutional law.” Commonwealth v. Claitt, 454 Pa. 313, 319, 311 A. 2d 922, 925 (1973) (Pomeroy, J., concurring). This is so because when the United States Supreme Court states a rule based upon the Constitution of the United States, the statement is binding on us under the Supremacy Clause. Henry v. City of Rock Hill, 376 U.S. 776, 777 n.1 (1964). In deciding whether a defendant is entitled to counsel at photographic identification displays, we therefore can no longer rely upon the Sixth Amendment. We may, however, impose such a requirement if we have a non-federal basis for doing so. Cooper v. California, 386 U.S. 58, 62 (1967).
There are two provisions of the Pennsylvania Constitution either of which might serve as such a non-federal basis. The first provision is that “[i]n all criminal prosecutions the accused hath a right to be heard *15by himself and his counsel.” Pa. Const, art. I, §9. While it is true that the wording of this provision is similar to that of the Sixth Amendment, “[o]ur delineation of the state right is not necessarily circumscribed by interpretation [of the Sixth Amendment] . . . .” Commonwealth v. Ray, 455 Pa. 43, 49, n.4, 315 A. 2d 634, 636 (1974) (opinion by Pomeroy, J., announcing the holding of the Court). The second provision is that an accused may not be “deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.” Pa. Const, art. I, §9. “By the Taw of the land’, is meant. . . due process of law.” Palairet’s Appeal, 67 Pa. 479, 485 (1871).
In considering whether either of these provisions of the Pennsylvania Constitution should be held to require counsel at a photographic identification display it is helpful to consider the several opinions filed in United States v. Ash, supra. The opinion for the Court was filed by Mr. Justice Blackmun, expressing the view of five justices. Mr. Justice Stewart filed a concurring opinion. Mr. Justice Brennan, joined by Mr. Justice Douglas and Mr. Justice Marshall, filed a dissenting opinion. The only issue was whether the Sixth Amendment guaranteed the defendant the right to counsel at a post-indictment photographic identification display; the defendant had argued in the Court of Appeals that he had such a right as a matter of due process but as the Court of Appeals had found the record insufficient to permit decision of that issue, it was not considered on appeal to the Supreme Court.
Each of the opinions took as its point of departure the premise that the Sixth Amendment guarantees the defendant the right to counsel at all “critical stages” of the prosecution. They differed, however, in defining “critical stages.”
Mr. Justice Blackmun in his opinion for the Court approached the problem of defining “critical stages” *16from an historical perspective. Noting that initially the Sixth Amendment’s guarantee of counsel extended only to the trial, he concluded from the cases that it had evolved only so far as to include such other proceedings during the criminal prosecution as were characterized by “a trial-like confrontation.” United States v. Ash, supra at 314. A corporeal lineup, like that involved in Wade, was found to be such a confrontation, whereas a photographic identification display was found not to be such a confrontation.
Mr. Justice Stewart and Mr. Justice Brennan each approached the problem of identifying “critical stages” in terms that emphasized the role of counsel; they saw the right to counsel as extending to every stage of the prosecution where the presence of counsel is necessary to ensure that the trial is fair; if counsel is necessary, the stage is “critical.” The two justices differed, however, in their appraisal of the necessity of counsel’s presence at a photographic identification display.
After stating that “[p] retrial proceedings are ‘critical,’ then, if the presence of counsel is essential ‘to protect the fairness of the trial itself.’ Schneckloth v. Bus-tomonte, 412 U.S. 218, 239; cf. Coleman v. Alabama, 399 U.S. 1, 27-28 (Stewart, J., dissenting).” United States v. Ash, supra at 322, Mr. Justice Stewart concluded that a photographic display is not a “critical stage”: “It is true that the defendant’s photograph may be markedly different from the others displayed, but this unfairness can be demonstrated at trial from an actual comparison of the photographs used or from the witness’ description of the display. Similarly, it is possible that the photographs could be arranged in a suggestive manner or that by comment or gesture the prosecuting authorities might single out the defendant’s picture. But these are the kinds of overt influence that a witness can easily reconstruct and that would serve to impeach the identification testimony. In short, there *17are few possibilities for unfair suggestiveness and those rather blatant and easily reconstructed. Accordingly, an accused would not be foreclosed from an effective cross-examination of an identification witness simply because his counsel was not present at the display. For this reason, a photographic display cannot fairly be considered a ‘critical stage’ of the prosecution.” Id. at 324-25.
Mr. Justice Brennan differed with this appraisal. First of all he noted that photographic identifications have been found to be less accurate than corporeal identifications because of the limitations of photography. Id. at 332. He continued: “For although retention of the photographs may mitigate the dangers of misiden-tification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not ‘apt to be alert for conditions prejudicial to the suspect. . . .’ [United States v. Wade, supra] at 230.” Id. at 335.
Noting that “the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedure will ever come to light,” id. at 336, he concluded: “Thus, the difficulties of reconstructing at trial an uncounseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an un-counseled lineup. And as the Government argued in Wade, in terms of the need for counsel, ‘[tjhere is no meaningful difference between a witness’ pretrial identification from photographs and a similar identification made at a lineup.’ For in both situations, ‘the accused’s *18inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.’ United States v. Wade, supra, at 231-232. As a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification.” Id. at 336-338.
I add only one further consideration. The role of counsel at a corporeal lineup is not a passive one. By pointing out anything that could be suggestive and improper, counsel can avert prejudice to his client. Many trial judges have presided over cases in which the testimony disclosed that in response to counsel’s objection the police modified the initial lineup at the station house so that, for example, the persons in the lineup were more nearly all the same height or were dressed in similar clothing. Counsel can play such a role at photographic identification displays, and his presence to do so is at least as necessary at a photographic display as at a corporeal lineup.
In considering the several opinions in Ash, I have been persuaded by Mr. Justice Brennan’s. In my judgment his opinion catches the reality of the problems that confront counsel at trial to an extent that the other opinions do not. I have therefore concluded that the right to counsel in all criminal prosecutions guaranteed by Article I, §9, of the Pennsylvania Constitution should be held to include the right to have counsel present at a post-indictment photographic identification display.*
I therefore do not reach the question whether that right is guaranteed by the due process clause of Article I, §9.