dissenting:
I respectfully dissent and would affirm on the basis of the well reasoned opinion by Kosik, P.J. of the court below. I would also add that the scope of review in an appeal by the Commonwealth from an order of suppression is limited to determining whether the factual findings of the suppression court are supported by the record and whether the legal conclusions drawn therefrom are correct. Commonwealth v. Burgess, 319 Pa.Super. 501, 466 A.2d 656 (1983). See also Commonwealth v. Scaine, 337 Pa.Super. 72, 486 *128A.2d 486 (1984). The findings of fact were supported by the record and the majority does not dispute them.
I am particularly disturbed that before the polygraph examination was started the defendant’s counsel was requested to leave the room and was not permitted back until after the appellant made incriminating statements. The waiver signed by the defendant prior to the lie detector test was a broad form of waiver but also contained specific reference to voluntarily submitting to the lie detector test. The defendant waived his rights to have counsel present during the lie detector test. After reviewing the results of the test, the state police officer who conducted the examination told appellant that he did not believe he was telling the truth and then continued to interrogate the appellant without telling him that he had the right to have counsel present although defendant’s counsel was outside the room where he remained at the instructions of the police.
In my opinion, once the polygraph examination was over the defendant should have been asked if he wanted his counsel to come back into the room. As the majority points out at page 4 of its opinion, it was not until 2:00 P.M., some three hours after the polygraph examination had begun that the defendant’s attorney “was called back into the room.” It was during the 40 minute period before defendant’s counsel was asked to return, that he made the inculpatory statements.
With respect to the use of the polygraph examination, the court below succinctly stated the underlying reason why the defendant agreed to the examination: “The defendant was suspect, and the police offered him an opportunity to be exonerated.” (Majority Opinion, page 340.) Without waiving his rights to counsel at the examination, the state police would not have given the defendant the “opportunity” to have the lie detector test indicate that he had no guilty knowledge of the criminal events involved. We must remember that the state police officer conducting the exami*129nation told the defendant that he would not be allowed to take the test if his counsel were present.
A further factor that shows lack of voluntariness to the defendant’s statement is that defendant denied any complicity or knowledge pertaining to the crimes for over two and one half hours. It was only after the lie detector test ended and the police officer told defendant, in effect, that he failed the test did appellant inculpate himself. After the polygraph examination ended and the results were in the police officer shifted gears into an entirely new phase, as noted by the learned judge below, and this required a new warning.
The court’s findings of fact are supported by the evidence and I find no error in the legal conclusions based on the findings of fact. Accordingly I would affirm the order suppressing defendant’s statements.