Concurring Opinion by
Hoffman, J.:While I join with the Majority in the restrictive holding in the instant case, I must voice my disapproval in the broad dicta appearing in the Majority Opinion which seeks to vitiate our holding in Commonwealth v. Brabham, 225 Pa. Superior Ct. 331, 309 A. 2d 824 (1973).
Brabham, which was decided by a full Court by a 4-3 decision and in which allocatur was denied by our Supreme Court, established a right to a preliminary hearing in all but a select number of “recognized exceptions”.1 It is important to emphasize that the Majority Opinion in Brabham derived said right, not from constitutional sources, but from the mandatory and clear language of Pa. R. Crim. P. 119.
*364Since the appellant was a “fugitive”, the instant case, which arose prior to our decision in Brabham, is controlled by the “exception” enunciated in Commonwealth v. O’Brien, 181 Pa. Superior Ct. 382, 124 A. 2d 666 (1956). It may not be disputed that Brabham has prospective effect only. The Majority, however, goes further, and without analyzing the merits of the instant appeal under present law, states that “after an analysis of the whole record in the instant case, we can find no fundamental unfairness to the appellant in the denial of a preliminary hearing in this case.” In the limited context of this appeal, the above-quoted portion from the Majority Opinion is correct; however, as Brabham enunciates a procedural mandate tantamount to a per se rule that all defendants have a right to a preliminary hearing in this Commonwealth unless waived, a weighing process seeking to determine the “fairness” or “prejudice” associated with a denial of this right is expressly prohibited.
Spaeth, J., joins in this concurring opinion.See exceptions noted in Commonwealth v. McCloskey, 443 Pa. 117, 227 A. 2d 764 (1971).