concurring and dissenting:
I concur in the majority’s disposition of appellant’s Rule 1100 issue. I dissent, however, from the determination that the lower court properly applied the Williams standard in ruling on the admissibility of appellant’s confession. Accordingly, I would reverse the judgment of sentence and remand the case to the lower court for a new trial. Because I would remand the case for a new trial, I would find it unnecessary to address appellant’s remaining issues.
Appellant contends that the lower court erred in giving retroactive effect to the standard announced in Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). Appellant notes that Williams was announced after appellant’s case “was originally completed.” Appellant’s Brief at 13. Appellant argues that the trial court should have applied the “interested adult rule,” as this Court ordered when the case was last here. See Commonwealth v. Carr, 320 Pa. Superior Ct. 1, 9, 466 A.2d 1030, 1034-35 (1983) (Opinion by Cirillo, J.). In analyzing the propriety of retroactive application of a new decision, our courts have utilized two main approaches: the common law rule and the modified common law rule. See Commonwealth v. McCormick, 359 Pa. Superior Ct. 461, 470-73, 519 A.2d 442, *18447-50 (1986).1 For reasons that follow, I would find that under either test, the Williams standard was improperly applied.
The policy underlying the common law rule is that “ ‘it is unfair to litigants whose case is not yet final to subject them to a law that is now recognized as offensive. Evenhanded decisionmaking requires that similarly situated individuals on direct appeal be treated the same.’ ” Commonwealth v. Brown, 494 Pa. 380, 385, 431 A.2d 905, 908 (1981) (quoting Commonwealth v. Hill, 492 Pa. 100, 115, 422 A.2d 491, 499 (1980) (Opinion in Support of Reversal, Roberts, J.)). The common law approach thus requires that
where an appellate decision overrules' prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.
Commonwealth v. Melilli, 361 Pa.Superior Ct. 429, 435, 522 A.2d 1107, 1110 (1987) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)); accord Commonwealth v. Carr, 320 Pa. Superior Ct. 1, 9, 466 A.2d 1030, 1034 (1983) (Opinion by Cirillo, J., now P.J.). The main focus of the common law approach is the timing of the *19announcement of the new rule. Our courts consistently have held that the new rule will apply if it is announced at any time “up to and including and direct appeal” of the case sub judice. See, e.g., Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983); Commonwealth v. Brown, supra; Commonwealth v. Melilli, supra; cf. Commonwealth v. McCloud, 477 Pa. 207, 383 A.2d 896 (1978) (new rule applies to case on appeal nunc pro tunc). Conversely, “a new rule of law to which we give full retroactive effect, will not be applied to any case on collateral review unless that decision was handed down during the pendency of appellant’s direct appeal and the issue was properly preserved there.” Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986) (emphasis added); see also Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986) (per curiam); Commonwealth v. Green, 365 Pa.Superior Ct. 142, 146, 529 A.2d 13, 15 (1987).
In the present case, the result of the application of the common law rule is that the Williams standard should not have been given retroactive effect by the lower court. The decision in Commonwealth v. Williams was announced on April 17, 1984, while the present case was pending before our Supreme Court on a collateral appeal, under the Post-Conviction Hearing Act. See Commonwealth v. Green, supra. Because Williams was not decided during the period “up to and including” the direct appeal in the present case,2 it was improperly applied here.
The second approach, the modified common law rule, creates an exception to the common law rule and requires that “where the new rule is a ‘clear break with the past’ or where there are constitutional limitations,” the new rule does not have retroactive effect Commonwealth v. McCormick, supra, 359 Pa.Super.Ct. at 470, 519 A.2d at 447; see, e.g., Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (constitutional issue); Commonwealth v. Ges*20chwendt, 500 Pa. 120, 454 A.2d 991 (1982) (plurality) (clear break with the past). The United States Supreme Court has defined the phrase, “clear break with the past”, as a ruling that
caused ‘such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one.’ Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, or disapproves a practice this Court arguably has sanctioned in prior cases, or overturns, a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.
United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 2588, 73 L.Ed.2d 202 (1982) (citations omitted) (quoted in Commonwealth v. Geschwendt, 500 Pa. 120, 130 n. 5, 454 A.2d 991, 997 n. 5 (1982) (plurality)).
Here, the decision in Commonwealth v. Williams, does represent a “clear break with the past” in that our Supreme Court expressly disavowed a prior practice:
We now reject the application of a rebuttable presumption that a juvenile is incompetent to waive his constitutional rights without first having an opportunity to consult with an interested or informed adult. The presumption adopted in Christmas serves no useful analytical purpose. The so-called presumption is not a presumption at all since it merely verifies the Commonwealth’s established burden of proving a knowing, intelligent and voluntary waiver on the part of a juvenile.
Commonwealth v. Williams, supra, 504 Pa. at 521, 475 A.2d at 1287-88. Consequently, I would hold under the modified common law approach, Williams should not have been applied to the case at bar. See Commonwealth v. Geschwendt, supra.
Finally, the interested adult rule, as articulated in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975), requires that
*21an accused under 18 years of age may not effectively waive his constitutional rights against self incrimination and the right to counsel without an opportunity to consult with an attorney or an adult, interested in the welfare of the juvenile suspect.
Commonwealth v. Carr, 320 Superior Ct. 1, 7-8, 466 A.2d 1030, 1033-34 (1983) (Opinion by Cirillo, J., now P.J.). In this case, appellant was not permitted to consult with an interested adult, and therefore under this per se rule, his confession should have been suppressed.
For the foregoing reasons,3 I would hold that the confession should be suppressed, and I would remand the case for a new trial.
. In some cases in which the new rule would otherwise have been given retroactive effect, our courts have employed a second tier of analysis, known as “selective retroactivity” See Commonwealth v. McCormick, 359 Pa. Superior Ct. 461, 471, 519 A.2d 442, 447 (1986). See, e.g., Commonwealth v. McFeely, 509 Pa. 394, 502 A.2d 167 (1985) (court declined to apply retroactively new rule invalidating warrant-less searches in home, absent exigent circumstances, even though rule was announced after appellant was arrested and before he went to trial); Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980) (same). But see Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986) (Concurring Opinion by Papadakos, J.) (even though new rule was announced more than six years after appellant’s sentences were final, and was held to be non-retroactive, Justice Papadakos discussed selective retroactivity approach, and concluded that new rule also would not be retroactive under that approach). Because of my conclusion that Williams is not entitled to retroactive effect under the common law rule and the modified common law rule, I need not decide what the result would be under the selective retroactivity approach.
. Appellant filed his direct appeal on October 15, 1975, and our Supreme Court announced its decision in the case on February 28, 1977, or more than seven years before the decision was rendered in Commonwealth v. Williams.
. To reiterate, I believe that the order from this Court, see Commonwealth v. Carr, 320 Pa.Superior Ct. 1, 466 A.2d 1030 (1983) (Cirillo, J., now P.J.), granting a new trial to appellant and instructing the lower court to apply the McCutchen rule in this case, should have been followed.