¶1concurring and dissenting:
¶2I agree with my eminent colleagues of the majority that the recorded conversations between appellee and Mrs. Swinehart must be suppressed. And, to be sure, the majority opinion provides a quite perceptive analysis of the principles that lead them to conclude that the tapes obtained by recording the conversations between appellee and his brother are admissible. However, I am of a mind that the learned Judge Horace A. Davenport correctly found that the conduct of the police required that the recorded conversations between appellee and his brother should be suppressed.
¶3There was at least a faint shadow upon appellee at the time of his first interview by the police soon after the murder, since the police questioned him only after they had advised him of his Miranda rights. On that occasion, after he denied any knowledge of the murder, he exercised his *82right to consult with counsel before any further interrogation and was, as a result, released. The shadow continued to hover, since, very shortly thereafter at the time of his second interview by police, Miranda warnings were again provided. In fact, the shadow loomed larger as, a few weeks after the crime, the police administered a polygraph test to him. Several months later, in April of 1982, appellant received a “target letter”, summoning him before the grand jury and advising him again of his right to counsel. Appellant did appear before the investigating grand jury and did so represented by counsel.
¶4Almost two years after the crime, the brother of appellee agreed to become an informer for the police and to wear electronic eavesdropping equipment to enable the police to record conversations between the brothers, in the hope, of course, that the informer brother would be able to elicit incriminating statements from the suspect brother. They achieved their objective since appellant’s brother did, in fact, utilize the electronic device to secretly record incriminating conversations with appellant between November of 1983 and March of 1984.
¶5As the majority quite correctly states, federal constitutional law provides that the Sixth Amendment right to assistance of counsel attaches not only at trial but at ‘critical stages’ of the prosecution which occur before trial. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
The arraignment signals ‘the initiation of adversary judicial proceedings’ and thus the attachment of the Sixth Amendment ...; thereafter, [law enforcement] efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.
¶6Michigan v. Jackson, — U.S. —, —, 106 S.Ct. 1404, 1407-1408, 89 L.Ed.2d 631, 638, (1986).
¶7However, the fact that the United States Supreme Court has refused to recognize a Sixth Amendment right to counsel in any pre-indictment situation does not foreclose this *83Court from finding that such a right exists under our state constitution in certain situations or under certain circumstances.
It is well settled that a state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts. PruneYard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). See also Commonwealth v. Ware, 405 U.S. 987, 92 S.Ct 1254, 31 L.Ed.2d 453, subsequently vacated and denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972) (“it appearing that the judgment below rests upon an adequate state ground”). See generally Brennan, State Constitutional & The Protection of Individual Rights, 90 Harv.L.Rev. 489, 503 (1977). This Court has on numerous occasions recognized the Pennsylvania Constitution to be an alternative and independent source of individual rights. See e.g. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Knowles, 459 Pa. 70, 73 n. 3, 327 A.2d 19, 20 n. 3 (1974); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Goldman Theatres Inc. v. Dana, 405 Pa. 83, 173 A.2d 59cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961).
¶8Commonwealth v. Tate, 495 Pa. 158, 167-171, 432 A.2d 1382, 1387-1388 (1981). See also: Commonwealth v. Sell, 504 Pa. 46, 63-65, 470 A.2d 457, 467 (1983); Commonwealth v. Bussey, 486 Pa. 221, 230-31, 404 A.2d 1309, 1314 (1979); Commonwealth v. DeJohn, 486 Pa. 32, 44-45, 403 A.2d 1283, 1289 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); In Re Gartley, 341 Pa.Super. 350, 372-73, 491 A.2d 851, 863 (1985); Commonwealth v. *84Heck, 341 Pa.Super. 183, 216-17, 491 A.2d 212, 229 (1985); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 499-500, 485 A.2d 1, 4 (1984); Commonwealth v. Beauford, 327 Pa.Super. 253, 262-65, 475 A.2d 783, 788-789 (1984); Commonwealth v. Walsh, 314 Pa.Super. 65, 73-75, 460 A.2d 767, 771 (1983).
¶9Thus, whether the United States Supreme Court would conclude that the conduct of the police in the instant case did not violate any right guaranteed to appellant by the United States Constitution does not preclude a finding by this Court or by the Pennsylvania Supreme Court that such conduct violated rights guaranteed by the Pennsylvania State Constitution.
¶10As the majority has observed, this Court in Commonwealth v. Brocco, 263 Pa.Super. 51, 68, 396 A.2d 1371, 1379 (1979), reaffirmed the position that Pennsylvania does not recognize the pre-arrest investigatory process as a ‘critical stage’. The Broceo Court concluded that the appellant’s Sixth Amendment rights had not been violated when his conversation was secretly taped by a co-worker. However, Broceo was not a prime suspect in the investigation and his co-worker’s purpose in acting as an agent of the police in eliciting admissions from Broceo was to obtain evidence to exculpate himself, not to incriminate Broceo. Id.,263 Pa. Superior Ct. at 68, 396 A.2d at 1379. The Broceo Court reasoned that if it were “to adopt appellant’s contention that the right to counsel attaches whenever a party retains counsel to render advice regarding potential legal problems, the use of informants or the means of investigation would be significantly curtailed. In essence, it would permit a suspect to hide behind a Sixth Amendment cloak by mere payment of a token retainer to a legal adviser.” Commonwealth v. Brocco, supra,263 Pa.Superior Ct. at 66-70, 396 A.2d at 1379-1380.
¶11The facts of the instant case and the conduct engaged in by law enforcement officials clearly distinguish this case *85from the situation in Broceo. Nor does this case present any of the dangers which the Court foresaw there.
¶12I would find that the introduction of the secretly recorded admissions elicited from appellant by his brother at the instigation of police, after appellant (1) had invoked his right not to be questioned in the absence of counsel, (2) had been targeted as the prime suspect in the investigation, and (3) had appeared with counsel before the investigating grand jury, violated rights guaranteed to appellant by the Pennsylvania Constitution. I, therefore, respectfully, dissent.