Robert Carver was found guilty of Criminal Attempt (Theft) 1 and Receiving Stolen Property 2 in a jury trial in Allegheny County. Post-trial motions were denied and the instant appeal is from the Judgment of Sentence.
In this appeal Appellant asks this Court to find error in the lower court’s failure to dismiss the indictment, or, in the alternative, to grant a new trial on the basis of an alleged violаtion of Appellant’s right to counsel during the preliminary hearing. We have carefully examined the record and, since we find no prejudicial error reflected therein, we affirm.
On October 22, 1979, a car was stolen from the Grant Building Parking Garage in Pittsburgh. One of the parking *179 lot attendants, Mr. Dunlаp, observed the thief as he drove the car out of the garage.
On October 31, 1979, a man entered the same garage and attempted to steal another car. This time, he was prevented by garage personnel, including Mr. Dunlap, from exiting the garage with the car. The mаn then fled on foot and was pursued by two other garage attendants, Messrs. Hollie and Phillips, who subsequently lost him during the chase. Appellant was arrested shortly thereafter, in connection with both incidents, after identification of him by Dunlap and Phillips. This identification took place within аn hour of ihe events of October 31, 1979.
The preliminary hearing was held on November 16, 1979, at which time Appellant was again identified by Messrs. Dunlap аnd Phillips. At this hearing, Appellant was not represented by counsel. Instantly, he contends that he did not make a knowing and intelligent waiver of his right to bе represented. Despite the fact that evidence of the identifications at the preliminary hearing was not introduced at trial, Aрpellant asserts that he suffered prejudice in that, had he been represented, any flaws or weaknesses in identification 3 could have been discovered by cross-examination at the preliminary hearing. We need not, and do not, decide whether Appellant knоwingly and intelligently waived his right to counsel at the preliminary hearing since our examination of the record indicates that the asserted еrror did not prejudice Appellant.
It is axiomatic that the preliminary hearing is a “critical stage” of a criminal proceeding, аt which Appellant is entitled to the assistance of effective counsel.
Coleman v. Alabama,
The record reveals little effort on the part of the magistrate at the preliminary hearing to follow the procedures delineated in Rulе 318, Pa.R.Crim.P.,
4
and we condemn such a disregard of these requirements. However, despite our extreme displeasure with, and condemnation оf, such bfatant indifference toward procedural safeguards, to say nothing of its potential for tainting an otherwise proper prоsecution, we note that the Rules of Criminal Procedure fail to provide for the granting of any specific relief merely on a showing of a Rule 318 violation. We conclude, therefore, that the Rule must be interpreted and applied in harmony with that line of cases, which rеquire, as a condition for relief, actual prejudice to a defendant who has been denied representation at a preliminary hearing.
See Rines,
In the factual context of this case, the critical question is whether the subsequent in-court identifications had an оri
*181
gin independent of the identifications offered at the preliminary hearing of the then unrepresented defendant.
Sawyer,
“the oppоrtunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”
Commonwealth v. Slaughter,
“(1) the manner in which the pre-trial identification was conducted; (2) the witness’s prior opportunity to observe the alleged criminal act; (3)the existence of any discrepancies between the defendant’s actual description and any description given by the witness . . .; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendаnt himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.”
Id.
Focusing on the facts of this case as elicited at trial, Mr. Dunlap testified that on October 22, 1979, he saw Appеllant drive out of the parking garage in a stolen car. At that time he observed Appellant full-face, in daylight, for five or six seconds, from a distance of three or four feet. He further testified that he recognized Appellant, at a distance of ten to fifteen feet on October 31, 1979, as the same individual involved in the prior theft.
*182 Mr. Phillips testified at trial that, at the time of the October 31 incident, the garage was well lit. He had an opportunity to observe Appellant from a position directly beside the driver’s window of the car which was the object of this attempted theft. Mr. Phillips further testified that he chased Appellant out of the garage, into the lobby of the Grant Building, and thus had the opportunity to observе Appellant a second time.
The identifications at trial were certain and unshakeable. No reference was made to thе uncounselled identification. Both witnesses identified Appellant within an hour of the attempted theft of October 31, 1979. These factors considered together with the length of time of their observations, the lighting conditions and the close range of observation, provide an indeрendent, untainted basis for the in-court identification. Thus Appellant suffered no prejudice as a result of the uncounselled identification and is not entitled to relief.
The judgment of sentence is affirmed.
Notes
. 18 Pa.Cons.Stat.Ann. § 901(a) (Purdon 1973).
. 18 Pa.Cons.Stat.Ann. § 3925 (Purdon 1973).
. Appellant does not state that, in fact, there were any such flaws or weaknesses, nor does our reаding of the record disclose any.
. Rule 318 provides in pertinent part:
(b) PROCEEDINGS BEFORE AN ISSUING AUTHORITY. When the defendant seeks to waive the right to counsel in a summary case or for a preliminary hearing in a court case, the issuing authority shall ascertain from the defendant whether this is a knowing, voluntary and intelligent waiver of counsel. In addition, thе waiver shall be in writing, signed by the defendant and the issuing authority, be made a part of the record and be in the following form ....
In addition, the Comment to thе Rule recommends that certain questions, designed to elicit information establishing a knowing and intelligent waiver of counsel, be posed to a defendant. See, Rule 318 and Comment, P.R.Crim.P.