concurring.
I concur in the result, although I do not agree with Justice Flaherty’s discussion of the effect of United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In that case the United States Supreme Court held that its ruling in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), invalidating warrantless arrests in the home, was to be applied “retroactively to all convictions that were not yet final at the time the decision was rendered.” Johnson, 457 U.S. at 562, 102 S.Ct. at 2594.
Although this Court had previously announced a rule identical in substance to the rule announced in Payton, Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 508 *404(1978), we had determined that our holding would be given prospective effect, Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980).
It is true that the federal Constitution neither prohibits nor requires that decisions be given retrospective effect. We are, therefore, free to resolve that question in the first instance, as we did in Miller, even where the rule whose application is questioned is based on our interpretation of the federal constitution, as was Williams. Nevertheless, the United States Supreme Court has reached a contrary conclusion with regard to the application of its rule in Payton, requiring that it be applied to all cases not yet final at the time Payton was decided. “Final”, the Court explained, means “ ‘where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed [or a petition for certiorari finally denied ...]....’” Johnson, 457 U.S. at 543, n. 8, 102 S.Ct. at 2583, n. 8, quoting Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct. 1731, 1734, n. 5, 14 L.Ed.2d 601 (1965). Because the time for certiorari has not elapsed, McFeely’s case is “not yet final” within the meaning of Johnson. Were we to follow Miller and deny application of the Williams rule, absent other defects in his case McFeely’s petition for certiorari to the United States Supreme Court would be governed by Johnson and application of Payton would be required.1
*405We need not reach the point of this potential conflict, however, to decide the present appeal. Retroactive application, even where required, is only appropriate in cases not yet final where the issue has properly been preserved. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); see also, Shea v. Louisiana, 470 U.S. 51, —, n. 4, 105 S.Ct. 1065, 1070, n. 4, 84 L.Ed.2d 38 (1985) (if case pending on direct review at time of Edwards, appellate court must retroactively apply Edwards, “subject, of course, to established principles of waiver, harmless error, and the like.”) The issue of the illegality of the Appellant’s arrest was not raised in the pretrial motions filed by Appellant’s first counsel, but was first presented in supplemental post-trial motions filed by Appellant’s third counsel following the second trial on these charges. Even then, it was acknowledged that the issue could not properly be considered except in the context of ineffective assistance of prior counsel for failure to raise it. Indeed, post-trial counsel apparently abandoned the argument that his predecessors had been ineffective, neither raising it in his brief nor arguing it to the court. Such action was, of course, eminently reasonable in light of the state of the law at the time of counsel’s representation. Because Williams had not been decided at the time the motion to suppress was filed, first counsel could not be deemed ineffective for failure to anticipate its effect, Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); and because Miller was the controlling precedent at the time of post-trial motions, second and third counsel cannot be faulted for not pursuing efforts to have Williams applied retroactively.
For the foregoing reasons, I do not believe this Appellant is entitled to the benefit of retroactive application of Pay-ton as required by Johnson. I express no view as to whether application of the rule on these facts would require suppression of his statements, were he entitled to have the rule applied to his case.
. It is recognized that Johnson was a federal case arising out of the Central District of California. It would be erroneous, however, to view that decision as simply an exercise of the Supreme Court’s supervisory power over federal courts not binding on us. By its terms, Johnson applies to “all cases.” Although hardly a paradigm of clarity, the Opinion in Johnson offers several indications that state as well as federal cases are contemplated. See, e.g., 457 U.S. at 557, n. 17, 102 S.Ct. at 2591, n. 17; 457 U.S. at 562, n. 20, 102 S.Ct. at 2594, n. 20. More to the point, in an analogous situation not involving the Fourth Amendment the Court recently reversed the Louisiana Supreme Court which had refused to give retroactive effect to a United States Supreme Court decision filed while the case was pending appeal in the state court. Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). ”[U]nder the rationale of our decision today, the question is whether the conviction became final before Edwards was decided. As we hold, if a case was pending on direct *405review at the time Edwards was decided, the appellate court must give retroactive effect to Edwards ...” Id. at -, n. 4, 105 S.Ct. at 1070, n. 4 (emphasis added).