(dissenting).
*303I agree with the views expressed in the dissenting opinion of Mr. Justice Nix. The procedure established by Pa.R.Crim.P. 323 is an eminently appropriate device for the expeditious disposition of evidentiary objections that do not depend on their trial context for decision, for example, challenges based on Pa.R.Crim.P. 130, see Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). While Rule 323 in terms provides only for objections on “constitutional” grounds, I see no reason why the suppression procedure need be restricted to “constitutional” claims. In my view, the Rule should be amended to make clear that appropriate challenges to admissibility, such as Futch claims, may be raised by a pre-trial motion to suppress.
However, as long as Rule 323 is in its present state, defendants who forego raising non-constitutional claims in pre-trial proceedings in reliance on the specific language of the Rule ought not to be deemed, under Rule 323(b), to have waived those claims. Manifestly, it would be unfair to apply the waiver principle against one who is not unambiguously notified that a pre-trial suppression hearing is an appropriate procedure for asserting his claims.
The question of mental capacity to make incriminating statements was clearly appropriate for disposition in a suppression hearing. Therefore, I dissent from the vacation of the suppression order.
JONES, C. J., and NIX, J., join in this Dissenting Opinion.