(dissenting).
The principal thrust of appellant’s argument to this Court was that the use of a summary proceeding in the factual setting presented was a violation of due process of law. The majority in its opinion elected not to address this issue and thereby in my judgment fell into error. I believe that a mandatory right of counsel is incompatible with a summary proceeding. Thus, a finding that due process is not offended by summary disposition in cases of this type also resolves the issue as to the right of counsel in these situations.
The right to counsel necessarily embraces the right to elect counsel of one’s choice, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973); Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 533, 204 A.2d 446, 448 (1964), and requires a reasonable opportunity to make that selection, Powell v. Alabama, supra. Additionally, counsel, when retained or appointed, must be given a fair opportunity to become acquainted with the facts and must be provided with sufficient time to prepare a defense, Powell v. Alabama, supra; Commonwealth v. Ehly, 457 Pa. 225, 319 A.2d 167 (1974); Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 *281(1974). The right to use summary disposition is premised upon the need for an immediate response to the contumacious conduct. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1973); Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972); Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971). Thus, the appendage of a mandatory right to counsel would render it virtually impossible, in many situations, to have the immediate and authoritative response upon which the right to summary disposition is conditioned.1 The effect of the majority’s ruling today is to deprive the trial judge of the most effective weapon within his “arsenal of authority” to take immediate corrective steps when needed to restore order and maintain the dignity and authority of the court.
Appellant argues that summary proceedings in a direct criminal contempt action is “a solitary vestige of more primitive times” and thus should be found to be repugnant to present day concepts of fundamental fairness. This view was expressly rejected by the United States Supreme Court in its recent decision in United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186, 43 U.S.L.W. 4584 (1975). In Wilson, supra, the Court was presented with a factual situation quite similar to that before us here. Respondents had been charged along with one Anderson in separate indictments for separate bank robberies. Respondents, who pleaded guilty, were summoned as prosecution witnesses at Anderson’s trial but refused to testify on Fifth Amendment grounds and *282persisted in that refusal after being granted immunity.2 The District Court summarily held them in contempt under Fed.Rule Crim.Proc. 42(a). The Court of Appeals reversed, holding that the use of the summary contempt power under Rule 42(a) was improper, and remanded for proceedings under Rule 42(b), which calls for disposition of criminal contempt only after notice and hearing and “a reasonable time for the preparation of the defense.” In an opinion written by Chief Justice Burger and joined by Justices Stewart, White, Blackmun, Powell, and Rehnquist, the majority of the Court held that the District Court properly imposed summary contempt punishment under the circumstances.
Pertinent to our present inquiry, that Court found that although the refusals were not delivered disrespectfully, the conduct was nevertheless contemptuous since they were intentional obstruction of court proceedings. Rejecting the Court of Appeals’ view that only disorderly or obstreperous interference with court proceedings provides an occasion for use of the summary contempt power, the Court observed:
“The refusals were contemptuous of judicial authority because they were intentional obstructions of court proceedings that literally disrupted the progress of the trial and hence the orderly administration of justice. Yates v. United States, 227 F.2d 844 (C.A. 9 1955). Respondents’ contumacious silence, . , impeded the due course of Anderson’s trial perhaps more so then violent conduct in the courtroom. Violent disruptions can be cured swiftly by bodily removing the offender from the courtroom, or by physical restraints, Illinois v. Allen, supra [Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353]; see Ex *283parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), and the trial may proceed. But as this case demonstrates, a contumacious refusal to answer not only frustrates the inquiry but can destroy a prosecution. Here it was a prosecution; the same kind of contumacious conduct could, in another setting, destroy a defendant’s ability to establish a case.” United States v. Wilson, supra at 315, 95 S.Ct. at 1806. (Footnote omitted).
The fact that the Commonwealth had available, in this instance, the prior testimony of Geiger given during the first trial for Crawford was a purely fortuitous circumstance which in no way changes the nature of his refusal to testify at the second trial. Additionally, the jury was entitled to hear the evidence from the mouth of the witness and not be forced to rely upon testimony given at some earlier occasion. Here, as in Wilson, the refusal to testify might well have frustrated justice and the trial judge should have been empowered to take immediate remedial action. As noted in Wilson, the power of summary disposition for this type of contempt must be available to vindicate the court’s authority as well as to provide the recalcitrant witness with some incentive to testify. It is therefore eminently apparent that the United States Supreme Court not only recognizes the need for summary dispositions in cases such as the one before us, but also finds that such a procedure is not repugnant to the present day concept of due process.
Focusing upon the right of counsel, while it is true that the respondents in Wilson were represented at the time of the contumacious conduct, it is clear from the tenor of the opinion the power of summary disposition was not conditioned upon the fact of representation.3 Further, *284there is nothing in the language of Rule 42(a) which would suggest that the right to counsel is mandated.4
Undoubtedly, the majority’s result was precipitated by its reluctance to depart from its recent pronouncement in Commonwealth v. Abrams, 461 Pa. 327, 336 A.2d 308 (1975). The error in Abrams was occasioned by an incorrect interpretation of the United States Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). While there is an understandable hesitancy to disturb a recent decision, I believe that course of action to be preferable to the perpetuation of an error that threatens the very foundations of our legal system.
In Argersinger, supra, the Court was concerned with stressing that the Sixth Amendment right to counsel was not dependent, in criminal cases, upon whether the offense was classified as a serious or petty one. Subsequent decisions have made clear that the Argersinger principle, in spite of its admittedly broad language, was not intended to apply to all proceedings which could possibly result in the loss of an individual’s liberty. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L. Ed.2d 935 (1974); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1974).5 I believe that it is a reasonable interpretation of the opinion in Argersinger *285to conclude that it did not intend to encompass summary punishments for direct contempts.6
First, it is significant that although the opinion referred to specifically all conceivable categories of criminal cases, e. g., felonies, misdemeanors, petty offenses and even traffic violations, it did not mention direct criminal contempts which have always been treated as unique under our law. Secondly, since the United States Supreme Court in Wilson has recently reaffirmed the right to punish summarily for direct criminal contempt, and as stated, I believe the right to counsel is incompatible with summary disposition, I must conclude that the Court did not intend to mandate counsel in such proceedings. Thirdly, because the incidence of disruptive behavior in our courts has reached an unprecedented level, it is unlikely that the United States Supreme Court would select this moment to remove the trial judge’s most effective weapon against trial disruptions. Lastly, and most importantly, the role of counsel is of limited value in such proceedings and thus his absence does not offend our sense of justice.
The hallmark of direct contempt is that the conduct occurs in the presence of the court and thus the need for the adjudicative process is eliminated.
“The procedures which are used to deal with a criminal contempt differ depending upon whether or not the *286contempt was committed in the actual view or hearing of the judge. If the contempt was committed within the presence of the court, it is then punishable by the judge at once, summarily, on his own knowledge, without a formal written accusation, arraignment, plea, proof, or other trappings of an ordinary criminal prosecution.” LaFave & Scott, Criminal Law, § 7, at 43 (1972).
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“There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations. Moreover in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.” (Footnotes and citations omitted). Groppi v. Leslie, supra 404 U.S. at 504, 92 S.Ct. at 587.
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“If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires . that the accused be accorded notice and a fair hearing. . . .” Johnson v. Mississippi, 403 U.S. 212, 215, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (1971) quoting from In re Oliver, 333 U.S. 257, 275-76, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
At best counsel’s participation could only assist in attempting to formulate mitigating or extenuating circumstances for purposes of determining the appropriate penalty. In this jurisdiction the absolute right of appeal provides ample protection for this interest.
In my judgment, the judgment of sentence should be affirmed.
JONES, C. J., and POMEROY, J., join in this dissenting opinion.. While there was some argument to the contrary, the majority properly found that appellant was not represented at the time of the contumacious conduct. Nor was there any basis for concluding that counsel could have been immediately available. See footnote 4 of the majority opinion.
. Here Geiger did not attempt to invoke a Fifth Amendment privilege nor could he successfully have maintained such a position.
“(b) An acquittal conclusively negatives criminality; no privilege can therefore be based upon the charge of crime.” 8 Wigmore, Evidence § 2279 (McNaughton Rev.).
. The fact that the Supreme Court sustained the District Court’s decision to refuse a continuance for “a reasonable time for the preparation of the defense” strongly suggests that the Supreme Court did not consider representation by counsel as crucial in this type of proceeding.
. Rule 42(a) provides:
“Rule 42. Criminal Contempt.
(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”
. While Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed. 2d 935 (1974) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1974) are not binding precedent in that they relate to persons possessing less than the panoply of rights of the average citizen, they are pertinent in that they suggest that the Argersinger decision is not without limitations.
. The majority offers In re Di Bella, 518 F.2d 955, 17 Crim.L.Rep. 2334 (2d Cir. 1975); In re Kilgo, 484 F.2d 1215 (4th Cir. 1973); and United States v. Sun Kung Kang, 468 F.2d 1368 (9th Cir. 1972) in support of its position. I do not agree. In each of these cases, the courts were concerned with the failure of a witness to testify during a grand jury proceeding. Wilson clearly distinguished the grand jury proceeding from the on-going trial situation and determined that in the former situation, Rule 42(a) (summary disposition) was not applicable. See also Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). The majority’s reliance upon Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973) is also misplaced. The action therein was an attachment after the failure to comply with an order of support. This is clearly not within the area of cases where summary relief would be appropriate.