Concurring and Dissenting Opinion by
Mr. Justice Roberts:I concur in much of what is said in the majority’s comprehensive opinion but find it necessary to disagree with certain very important propositions which are set forth therein.
I
The majority opinion convincingly demonstrates the practical reasons why our interpretation of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), in the “non-request situation” should be meshed with that of this federal circuit’s highest court. In this I fully concur. In terms of mere practicality and the promotion of respect for the law, the majority’s decision to follow the ruling of the United States Court of Appeals for the Third Circuit in United States ex rel. Russo v. New Jersey, 351 F. 2d 429 (1965), in the absence of a decision by the Supreme Court of the United States, *132is sound in every respect. Such cooperation speaks well for the ability of the federal-state system to operate harmoniously in assuring protection of constitutionally bestowed individual rights.
But even beyond considerations of practicality, I believe it wise for another reason to abandon our once-held distinction between “request” and “non-request” situations under Escobedo. On the merits of that distinction, abandoned today, the perceptive opinion of the Court of Appeals for the Third Circuit is, in my view, logically, legally and philosophically sound. Simply put, although I find the problem not completely untroublesome (see Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 338, 206 A. 2d 288, 292 (1965) (concurring opinion)), I am now convinced that the right to counsel at the accusatory stage can not be constitutionally, and should not be, conditioned upon a request.
II
On the issue presented by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), I agree with the majority’s disposition of that question. If, however, the confession is inadmissible for reasons other than involuntariness, i.e., under the decision in Escobedo, then a Jackson finding may not be required when the directed hearing is held.
Ill
Turning, then, to the right to counsel issue presented by this case, I must respectfully disagree with the majority’s determination that Escobedo is not entitled to retrospective1 application.2
*133In weighing the merits and demerits of applying the Escobedo rule retrospectively, the majority bases its decision on the premise that the rule was fashioned as a future deterrent to improper interrogation. Believing that the basic function of the ruling in Escobedo is “to provide adequate assurance of police adherence to the constitutional principles inherent in due process,”3 and analogizing this ease to Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965), a majority of this Court concludes that no useful purpose would be served by applying the Escobedo principle to cases other than non-final judgments.4
The Escobedo principle may indeed act as a protecting deterrent against excesses in interrogations. But that, in my view, is not the sole purpose of the rule. The rule seems to recognize — indeed seems to be partially premised upon — the possibility that in the absence of such a rule a coerced and unreliable confession may be secured and may result in the conviction of an innocent defendant. That possibility is not inherent in the Linkletter situation where the evidence is unquestionably credible. “There is no likelihood of unreliability or coercion present in a search and seizure case.” Linkletter v. Walker, 381 U.S. at 638, 85 S. Ct. at 1742. In Escobedo the Court was clearly concerned with the reliability or coerced nature of a confession. The Court noted that “a system of criminal law enforcement which comes to depend on the ‘confession’ *134will,, in the long run, be less reliable . . . than a system which depends on extrinsic evidence independently secured . . . .” (Emphasis supplied.) Escobedo v. Illinois, 378 TJ.S. at 488-89, 84 S. Ct. at 1764. Quoting Wigmore, the Court pointed’out that ultimately under a confession system which does not respect constitutional rights “the innocent are jeopardized . . . .” Escobedo v. Illinois, 378 U.S. at 489, 84 S. Ct. at 1764.
In Linkletter the Court felt compelled to distinguish its retrospective application of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) (right to counsel must be afforded at trial). While the retrospective application of Gideon may be distinguishable from Link-letter, I do not think it is distinguishable from the •present question of the retrospective application of pretrial right to. counsel at the critical accusatory stage. To distinguish the cases, the Supreme Court reasoned that- the Linkletter issue did not go to the fairness of the trial and the reliability of the evidence (see discussion- supra), but that the Gideon “principle . . . went to the- fairness of the trial — the very integrity of the fact-finding process.” Linkletter v. Walker, 381 U.S. at 639, 85 S. Ct. at 1743. The present case is not unlike the Gideon right to counsel principle which has been applied retrospectively. Very much like the situation in Gideon, the lack of counsel at interrogation during the accusatory stage “could certainly ‘affect the whole trial’. . . .” Escobedo v. Illinois, 378 U.S. at 486, 84 S. Ct. at 1762.
' Moreover, the considerations bearing upon the present question are in my view extremely analogous to those which led to the retrospective application accorded Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964). Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A. 2d 283 (1965); see Linkletter v. Walker, 381 U.S. at 639 n.20, 85 S. Ct, at 1743 n.20. In Jack*135son the Supreme Court of the United States held it unconstitutional to permit the same jury deciding guilt or innocence to pass upon the voluntariness of. a confession unless there had been a prior independent determination of voluntariness. The opinion in Jackson itself makes it quite clear that the Court was concerned with the possibility that the jury may have been unfairly influenced by an unconstitutional confession. See also Linkletter v. Walker, 381 U.S. at 639 n.20, 85 S. Ct. at 1743 n.20. The concern for the possibility that at trial the defendant may have been prejudiced by an unconstitutional confession led the Supreme Court to apply the holding of Jackson retrospectively. See Commonwealth ex rel. Butler v. Rundle, 416 Pa. at 329-30, 206 A. 2d at 287. In the case now before us, a majority of this Court relies on its conclusion that the function of "Escobedo is to prevent the possibility of prejudice which an accused might not be able to prove at trial.” (Emphasis in majority opinion.) Commonwealth v. Negri, 419 Pa. at 124, 213 A. 2d at 673. I am unable to find a satisfactory distinction between the. case now before us and Jackson. As in Jackson, the possibility of an unconstitutional confession, introduced at trial, exists.
. It must be concluded that we have no way of knowing how many uncounseled defendants may have been convicted on unreliable confessions unless we accord retrospective application to Escobedo. If objection was interposed to the use of those confessions during the prosecution, I cannot see how June 22, 1964, the date of the Escobedo decision, can be correctly held to be. a day which determines whether some unconstitutional, convictions must be re-examined and others not. - In Escobedo it was held that confessions falling within the rule of that case could not be used at trial without rendering the conviction fundamentally unfair) Oon*136victions so obtained before June 22, 1964 are just as fundamentally unfair as those after that date.5
I recognize and share the majority’s concern for the maintenance of the “ ‘administration of justice and the integrity of the judicial process.’ ” Commonwealth v. Negri, 419 Pa. at 126, 213 A. 2d at 674. I cannot agree, however, that such concern requires the majority result.
In the first place, it would be naive to believe that evenhanded application of the Escobedo principle would have the widely suggested effect of swinging open the prison doors to release large numbers of guilty criminals on the public. When it is realized that perhaps almost three-fourths of all convictions are based oh guilty pleas,6 one sees that retrials are possible in a far smaller number of cases than frequently asserted: Very significant also are the recent holdings of a majority of this Court in Commonwealth ex rel. Pomales v. Myers, 418 Pa. 369, 211 A. 2d 483 (1965), Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366, 211 A. 2d 481 (1965), and Commonwealth ex rel. Cue*137vas v. Rundle, 418 Pa. 373, 211 A. 2d 485 (1965).7 In those cases it was held that a defendant whose counsel had not at trial objected to the admission of the confession on lack of counsel grounds was precluded from later contesting the conviction, in habeas corpus proceedings, on the basis of Escobedo. The probability that such an objection was made before the decision in Escobedo is so small as to be practically nonexistent.
These holdings reduce the number of non-plea convictions still susceptible to attack to what I suspect is a very small group. Moreover, where Escobedo claims are now raised in those remaining cases not foreclosed by these holdings, there is always the very real possibility that the police did, in fact, warn the accused of his constitutional right to counsel8 or that the accusatory stage had not yet been reached. And even if a retrial is awarded, the state may well win another conviction.9 It seems to me, then, fears that wholesale disruption of convictions will attend the *138Escobedo rule, expressed with frequency in recent times, are grossly exaggerated.
In any event, whatever the volume of protest, we must make our judgments without yielding to pressures generated by voices in conflict with the Constitution. That is our task. The strength of a constitutionally bestowed right is in its insulation from negation by majority preference or expressed public opinion. And, as has so often been noted, the rights of “the public” are no safer than the rights of the individuals who, in fact, constitute the public. The judicial processes which we so jealously guard are not mere exercises in legal gymnastics. They embody procedures which experience, logic and shared feelings of fairness have taught us should attend the proceedings in which the state seeks to prove a man guilty of criminal conduct.
All of these considerations lead me to dissent from the proposition that a person unconstitutionally convicted before the fortuitous date of June 22, 1964=, must be denied a valid trial, while a man convicted after that magic date receives the constitutional rights denied to another. Accordingly, I would remand the record for a hearing to investigate the circumstances surrounding the confession. The primary purpose of this hearing would be to determine whether the defendant was denied his right to assistance of counsel at the time his' confession was given.10 If it were concluded that such a denial occurred, then a retrial should be ordered. Were it concluded that no such denial occurred, then the hearing judge should determine whether or not defendant’s confession was voluntary.11 If the confession is found to be involuntary then a retrial should be ordered.
Mr. Justice Musmanno joins in this opinion.The term “retrospective” is defined in Linkletter v. Walker, 381 U.S. 618, 621-22, 85 S. Ct. 1731, 1733-84 (1965).
For purposes of this dissent, I assume, as does the majority, that the accusatory stage had been reached, that the purpose of the *133interrogation was to elicit a confession, and that the accused was not advised of his rights. Compare Escobedo v. Illinois, 378 U.S. at 492, 84 S. Ct. at 1766.
Commonwealth v. Negri, 419 Pa. 117, 126, 213 A. 2d 670, 674 (1965).
As the Supreme Court itself noted, the decision to refuse retrospective application to the search and seizure exclusionary rule was a departure from the general rule of retrospective application of constitutional guarantees of fundamental rights. Linkletter v. Walker, 381 U.S. 618, 628, 643, 85 S. Ct. 1731, 1737, 1745 (1965).
While, like the majority, I am unwilling to rely on United States ex rel. Russo v. New Jersey, 351 F. 2d 429 (3d Cir. 1965), for the proposition that the Bscohedo principle must be applied retrospectively, I cannot totally ignore the implication of the circuit court’s sub silentio application of Bscohedo to a final conviction. Even though not raised by the state, it seems likely that the court recognized the issue. It is appropriate to point out that a petition for reargument is pending in the Russo case. The recent decision of the Court of Appeals for the Seventh Circuit in United States ex rel. Walden v. Pate, 350 F. 2d 240 (1965), is concededly explicit in holding that the Bscohedo rule is not to be applied retrospectively. However, I am no more .persuaded by the reasoning of that decision than I am by that of the majority in the instant case.
gee, e.g., Notes, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865 notes 3 and 4 (1964).
To the same effect, see Commonwealth ex rel. Blackshear v. Myers, 419 Pa. 151, 213 A. 2d 378 (1965), and Commonwealth ex rel. Johnson v. Myers, 419 Pa. 155, 213 A. 2d 359 (1965), filed today.
See, e.g., Commonwealth ex rel. Johnson v. Myers, 419 Pa. 155, 213 A. 2d 359 (1965).
I am not convinced by the majority’s statement that “if it could be found that the confession should not have been admitted, then many guilty persons would go free, because the police had felt that it was unnecessary to preserve the testimony of the other witnesses and/or the actual physical evidence which it possessed.” Commomvealth v. Negri, 419 Pa. at 126, 213 A. 2d at 674. The same could be said where an admittedly coerced confession had been introduced at trial, or even in the Gideon situation, as well as many others. Yet this fact has never been held to justify the continued detention of one unconstitutionally imprisoned. Moreover, we have recognized that “when liberty is denied without constitutional assurances of due process of law, the conviction may not be permitted to stand. We cannot sacrifice to mere expediency the wise restraints and constitutional safeguards which make men free. . . .” Oommonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 330, 206 A. 2d 283, 287-88 (1065).
Compare the procedure under Pa. R. Crim. P. 324.
The majority directs the court below to reach a conclusion on this question only.