Dissenting.
¶ 1 The matter before us is an appeal by the Commonwealth from the trial court’s order granting in part and denying in part Javan McBurrows’s motion in limine to preclude his wife, Jane McBurrows, from testifying to her knowledge of events surrounding the tragic death of four year-old Michael Davis. Although the court’s order precludes Jane McBurrows (Wife) from testifying about various communications and observations, the narrow issue raised by the Commonwealth is whether “the observation by Mrs. McBurrows[,] of Mr. McBurrows’[s] disposal of the murder weapon[,][is] a privileged confidential spousal communication!)]” Brief for Appellant at 4. The Majority finds that Wife’s “observance of Appellee’s act of disposing of the mason’s level does not fall within the marital privilege.” Majority Opinion at 519. I disagree, and therefore, I respectfully dissent.
¶ 2 The narrow issue presented by the Commonwealth demands that we confine our analysis to whether the term “confidential communications” encompasses Wife’s observation of McBurrows throwing the mason’s levels into the abandoned church lot while stating that he was donating the levels. The privilege at issue is codified at 42 Pa.C.S. § 5914:
§ 5914. Confidential communications between spouses
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.
42 Pa.C.S. § 5914. The trial court concluded that McBurrows’s statement to Wife that he was donating the mason’s levels was a confidential communication under section 5914. The Commonwealth, however, claims that there was “no [confidential] verbal exchange” between McBur-rows and Wife, and that McBurrows’s conduct is not a privileged communication.
¶ 3 “Communications between husbands and wives are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption.” Commonwealth v. Hancharik, 534 Pa. 435, 633 A.2d 1074, 1078 (1993). “In order to come within the rule, it is essential that the communication has been made in confidence and with the intention that it not be divulged. Therefore, whether a particular communication is privileged depends upon its nature and character and the circumstances under which it was said.” Com*520monwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071, 1075 (1980), vacated on other grounds, 501 Pa. 15, 459 A.2d 727 (1983).
¶ 4 In this case, Wife gave the following statement to the police:
Q: What did Javan do with the two levels?
A: He pulled up in front of an aban-donad] church somewhere in German-town. He took the two levels and threw them over a fence.
A: ... As he threw the levels he said he was donating the levels ....
Statement of Jane McBurrows, 1/13/99, at 9 (Order, 7/20/99, Exhibit A). Wife’s prior testimony established that McBurrows used one of the levels to beat Davis and then, in an effort to escape subsequent detection, sought to dispose of it. McBur-rows’s statement that he was donating the levels incriminated him in Davis’s death. Clearly, McBurrows would not want Wife to divulge a statement that implicated him in the concealment of a possible murder weapon. See Darush, 420 A.2d at 1075. The Commonwealth’s bald claim that there was no confidential communication is insufficient to meet its burden in rebutting the presumption that this statement was confidential. Consequently, I conclude that statement was a “confidential communication” under 42 Pa.C.S. § 5914. The crux of my dissent lies with my disagreement with the Majority’s conclusion that Wife’s concomitant observation of McBurrows throwing the levels over the fence is not also within the privileged scope of section 5914.
¶ 5 As late as 1993, our Supreme Court in Hancharik stated that it had not “had occasion to actually decide ... whether the statutory rule, phrased solely in terms of ‘confidential communications,’ encompasses more than verbal exchanges.” Hancharik, 633 A.2d at 1078 n. 3 (emphasis in original) (quoting 42 Pa.C.S. § 5914). Hancharik is the Supreme Court’s last pronouncement on this issue.
¶ 6 Prior to Hancharik, this Court addressed the issue in Commonwealth v. Clark, 347 Pa.Super. 128, 500 A.2d 440 (1985). In Clark, we stated that “[wjhile there is no Pennsylvania case law regarding this issue, it would be anomalous to exclude acts done at the time the confidential oral communications were made from the protection of the privilege. The marital relationship gave rise to both the statements and the actions .... ” Clark, 500 A.2d at 443. In Hancharik, our Supreme Court quoted the foregoing statement, but then immediately stated that it did not “express [an] opinion as to the correctness of this decision.” Hancharik, 633 A.2d at 1079 n. 3. In concluding that Pennsylvania law does not extend the husband-wife privilege to one spouse’s observance of the act of another spouse under the circumstances of this case, the Majority now overrules Clark.
¶ 7 “At common law husband and wife [were] incompetent to testify against each other.” Canole v. Allen, 222 Pa. 156, 159, 70 A. 1053, 1055 (1908). Our legislature attenuated this rule through the enactment of laws that delineated the specific circumstances in which spouses would be competent to testify against each other. See Act of May 23, 1887, P.L. 158, § 2(b), (c) (then codified at 19 P.S. §§ 683, 684) (predecessors of 42 Pa.C.S. §§ 5913, 5914). While the substance of the marital privileges embodied in these statutes has undergone some tuning over the past century, the rationale justifying their existence remains unchanged.
This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of *521those domestic relations, that constitute the basis of civil society; and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.
Stein v. Bowman, 38 U.S. 209, 223, 13 Pet. 209, 10 L.Ed. 129 (1839). See also Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411, 413 (1964) (stating that “The prohibition against the giving of testimony by one married party against the other is based upon consideration for preserving domestic peace, harmony and the sanctity of the marriage.”).
¶ 8 Undoubtedly, it was this laudable social goal that propelled our esteemed colleague, Judge Cercone, to declare that it would be “anomalous” to protect oral confidential communications, yet exclude from the privilege testimony regarding knowledge of a spouse’s conduct obtained by reason of the marital relationship. See Clark, 500 A.2d at 443. I concur with Judge Cercone’s reasoning, and accordingly, I disagree with the Majority’s decision to overrule Clark. In explaining its rationale for abrogating the rule espoused in Clark, the Majority focuses on the lack of discussion in that opinion to establish the contemporaneous quality of the statement made and the action observed, and the absence of legal authority to support the rule. Majority Opinion at 516 (stating that it finds the rule to be “inconsistent with the facts set forth in Clark because there is nothing in the opinion which indicates the appellant made any confidential oral communications to Mrs. Clark at the time he broke the shotgun in half and disposed of the pieces.”) (emphasis added). Although the Court’s recitation of evidence in Clark does not indicate that a confidential communication was made at the time of the observed conduct, the absence of such a statement, in my opinion, creates a void rather than an inconsistency and therefore, it does not diminish the authority of Clark. Furthermore, the Majority does not address Judge Cercone’s reasoning that the observed conduct was privileged because it and the confidential communication both arose from the marital relationship. See Clark, 500 A.2d at 443. This factor is the linchpin of the rationale set forth in Clark and is at the heart of the issue now before us.
¶ 9 The issue of whether a statutory marital privilege covering “confidential communications” also encompasses knowledge acquired by one spouse’s observation of the other has been addressed in many jurisdictions. While the Majority finds persuasive the reasoning of those jurisdictions that find no privilege for such knowledge, I find convincing the rationale of those jurisdictions that do not constrain the definition of a “confidential communication” to audible communications or acts intended to convey a message.
The term communication, within the meaning of the privileged communication rule, as to husband and wife should be given a liberal construction and is not confined to mere audible communications or conversations between the spouses, but embraces all facts which have come to his or her knowledge or under his or her observation in consequence or by reason of the confidence of the marital relation, and which but for the confidence growing out of it would not have been known. It includes knowledge communicated by an act, which would not have been done by one spouse in the presence of, or within the sight of, the other, but for the confidence between them by reason of the marital relation.
*522State v. Robbins, 35 Wash.2d 389, 213 P.2d 310, 314 (1950). See also Hall v. State, 720 So.2d 1043, 1049 (Ala.Crim.App.1998); Shepherd v. State, 257 Ind. 229, 277 N.E.2d 165, 166 (1971); Todd v. Barbee, 271 Ky. 381, 111 S.W.2d 1041, 1043 (App.1938); People v. Camon, 110 Mich.App. 474, 313 N.W.2d 322, 325-26 (1981); Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 738-39 (1913); People v. Daghita, 299 N.Y. 194, 86 N.E.2d 172, 174 (1949); Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9, 15 (1949); State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606, 610-11 (1988). The foregoing jurisdictions all have marital privilege statutes substantially similar to Pennsylvania’s section 5914. The rule adopted by these jurisdictions is consistent with the principle underlying Judge Cer-cone’s statement in Clark; the privilege applies to knowledge of facts acquired by reason of the marital relation. The rationale for this rule was most eloquently stated as follows:
But it is not enough to throw protection over communications made in the spirit of confidence. The intimacy of the marriage union enables each to be daily and almost constantly witness of the conduct of the other; and thus in fact a confidence, reaching much farther than that of verbal communication, is forced upon each of the parties. What one may even desire to conceal from all human eyes and ears is thus almost unavoidably brought within the observation of the other.... The rule we deem a valuable one, and we view with apprehension any exception having a tendency, more or less direct, to promote cunning, or to generate distrust, where the best interests of society require that perfect frankness and confidence ought to prevail. If one exception be sanctioned, because, from the character of the criminal act imputed, the dissent of the witness from its commission must be presumed, others may follow, where the like presumption will be entertained, ... and there will be danger of our having no rule capable of general and steady application .... Moreover, the rule is not founded exclusively upon an actual voluntary confidence reposed by one of the married pair in the other, but also upon the unavoidable confidence which the intimacy of the marriage state necessarily produces.
Whitehead, 61 So. at 738-39 (omissions in the original) (quoting State v. Jolly, 20 N.C. 108 (1838)).
¶ 10 Although the aforementioned jurisdictions all have adopted a rule interpreting the term “confidential communication” to encompass knowledge of facts acquired by consequence of the marital relation, and but for the confidence arising therefrom, I find it unnecessary to consider the efficacy of such a broad rule. Rather, I would hold that when a spouse observes conduct that is wedded to a confidential utterance made by the other spouse, then the observation and the statement are not severable. McBurrows’s statement that he was donating the levels coupled with his act of throwing them over the fence constitute a union that is inseparable. Thus, I conclude that pursuant to 42 Pa.C.S. § 5914, Wife is not competent to testify that she observed McBurrows throw the levels over the church fence.
¶ 11 Clearly, the facts of this case evoke emotions that militate against the preclusion of the disputed evidence. We cannot, however, be overcome by the tragedy of the events in this case. The Majority views the issue as one of an extension of Pennsylvania law. They would restrict the privilege to oral or written words, and actions intended to convey a message. I disagree. The issue is whether section 5914 derogates the common law rule to an extent so as to permit the admission of *523Wife’s disputed testimony. See Canole, 222 Pa. at 159, 70 A. at 1055 (stating that at common law husband and wife were incompetent to testify against one another). Although the facts before us beg this Court to further erode the marital privilege at issue, I would decline to do so. In so doing, I am mindful that “[testimonial exclusionary rules and privileges contravene the fundamental principle that the public ... has a right to every man’s evidence.” Trammel v. U.S., 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (omission in original) (quotation marks omitted). Nonetheless, I am compelled to acknowledge as valid the time-honored presumption of the common law that society’s interest in protecting the privacy and intimacy of marital relations outweighs the evidentiary needs of the criminal justice system. Hence, I respectfully dissent.
¶ 12 McEWEN, P.J., DEL SOLE, J., MUSMANNO, J. join.