dissenting and concurring:
I would hold as follows:
The order of suppression in both cases is appealable. I do not so conclude by reason of any joinder with the majority that the substantial handicap to the prosecution is apparent on the record. Rather, I agree, subject to the exception hereinafter noted, with the majority expression of this court by our esteemed colleague Judge Gwilym A. Price in Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600, 602 (1975), that:
[W]hen the District Attorney from one of the counties of this Commonwealth directs an appeal from the suppression of evidence, we must accept such an appeal as the Commonwealth’s good faith certification that the case will be terminated or substantially prejudiced by such an order, and [we should] determine only if the suppression was proper.
*318I JOIN in that portion of the opinion of the distinguished Judge Edmund B. Spaeth, Jr. that affirms the order of suppression entered by the Common Pleas Court in Commonwealth v. Lapia.
I JOIN in the dissenting opinion of the learned Judge Donald E. Wieand that the strip search of Billy Dugger was lawful and would direct that the order entered by the Common Pleas Court in Commonwealth v. Dugger be reversed and the case remanded for further proceedings.
I propose to address but one issue, namely, the basis for my conclusion that we should accept any appeal undertaken by the Commonwealth from an order of suppression of evidence, subject to the exception we shall hereinafter discuss. While the careful, thoughtful majority expression by our eminent colleague, Judge Spaeth, provides a fine exposition of position upon this question, I must, nonetheless, very respectfully, dissent.
Any analysis of this issue must commence with a study of the decision of our Supreme Court in Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). It there became clear that an appeal will lie if the order of the suppression of evidence will result in termination of the prosecution or in a handicap to the Commonwealth. Id. 411 Pa. at 63, 190 A.2d at 308. It would seem that any appeal from an order of suppression by the Commonwealth must fall into one of the following categories:
The order of suppression will result in a termination and conclusion of the prosecution.
While the order of suppression will not result in a termination or conclusion of the prosecution, the Commonwealth will be substantially handicapped because it cannot present all of its available evidence and the nature of that handicap is apparent from the record.
While the order of suppression will not result in a termination or conclusion of the prosecution, the Commonwealth will be substantially handicapped because it can*319not present all of its available evidence and the nature of that handicap is not apparent from the record.
Our study here focuses upon the third category. The effect of the majority opinion upon such cases will be to uphold, without appellate review, the validity of an order of suppression and thereby force the Commonwealth to proceed to trial without all of its available evidence.
The Supreme Court in Bosurgi addressed as one class the aforementioned second and third categories which it referred to as “the second situation” and described the handicap resulting from the suppression order as “not so apparent [but] nevertheless present”. The sole focus of the attention of the court seemed to be the anomaly of forcing the Commonwealth to proceed to trial in any situation without the benefit of appellate evaluation of a trial court restriction upon the presentation of available evidence. We especially note that the court did not draw a distinction between an appeal where handicap is apparent of record and the appeal where the handicap is not apparent of record but, we reiterate, the Supreme Court treated this exception to the interlocutory appeal rule as applicable to the entire group. I am not satisfied that this court should subdivide a class of appeals which twenty years ago received such close scrutiny of the Supreme Court, when that court itself has not been willing, neither then nor since, to create the exception the majority here carves. As I contemplate the precise language of the opinion, and the procession of the majority to its conclusion, I am drawn from the march by the appeal of the practical and by the echo of the fervent remarks afforded by the Supreme Court to that portion of Bosurgi which addressed this class of appeal:
In the second situation, although the element of finality in the order is not so apparent, it is nevertheless present. Without a right of appeal in the Commonwealth in the second situation, the Commonwealth is completely deprived of any opportunity to secure an appellate court evaluation of the validity of the order of suppression which forces the Commonwealth to trial without all of its *320evidence. The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents. In our zeal to protect and preserve for the accused every constitutional right to which he is entitled we too often forget and neglect to preserve the rights of society which, too, are entitled to consideration. An appellate review of the validity of the order of suppression cannot harm the defendant whereas the denial of the right to such review does harm the Commonwealth. In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth in both situations. Id. 411 Pa. at 63, 190 A.2d at 308.
There can be no doubt that each notion and every phrase of this concerned view of the Supreme Court is just as applicable to the appeal where the handicap is not apparent of record as it is to the appeal where the handicap is so apparent.
The majority correctly notes that the Bosurgi decision “did not address the question of how an appellate court is to determine whether an order suppressing evidence terminates or substantially handicaps the prosecution”, (slip opinion at p. 4), However, I am not able to agree that we may proceed to such a task by pronouncing a distinction in á class of appeal when the Supreme Court itself failed to measure that class for any such distinction, even after it afforded the class not only careful study but also intense expression. While it may well be our role to implement an opinion of the Supreme Court by prescribing a course for the conduct of such appeals, such implementation should be consistent with the holding of Bosurgi. The Deren decision is, of course, certainly consistent with the distress ex*321pressed by the Supreme Court that any prosecution be conducted without appellate review of a trial court decision that narrows the evidence to be presented; on the other hand, the majority holding upon this issue, in my view, is not so consistent.
While the majority states the Supreme Court has always made its determination in such cases solely on the basis of the record, the majority concedes that in some cases the Supreme Court has not specifically acknowledged the record as the basis of the determination before concluding that nothing in those cases suggests that the court went outside the record. It is to be noted, however, that the cases cited by the majority were all appeals in which the initial determination of the Supreme Court was the existence of handicap. The fact is that there are no decisions by the Supreme Court that hold the appeal shall not be heard if the handicap is not apparent of record. Nor, in our view, does Commonwealth v. Hill, 497 Pa. 230, 439 A.2d 1153 (1982) so hold. The complete per curiam opinion of the court there reads:
PER CURIAM The appeal of the Commonwealth at No. 286 January Term, 1979, is quashed, as we do not believe the order suppressing the weapon substantially impairs the Commonwealth’s case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). Furthermore, despite the trial court’s certification, we refuse to accept the interlocutory appeal of the accused and we thus dismiss the appeal at No. 307 January Term, 1979.
A study of Hill does not enable us to determine whether the court there quashed the appeal because (1) the record made clear that the Commonwealth was not actually handicapped by the suppression order, or (2) because the handicap was not apparent of record. Suppose, for example, an accused petitions the court to suppress six of his own inculpatory statements; suppose, further, that the trial court suppresses one of those statements but refuses to *322suppress the remaining five and the Commonwealth appeals the order of suppression of the one statement; it is then quite possible for the appellate court to quash the appeal for the reason that it is clear from the record itself the Commonwealth is not handicapped. In such a situation, w;e see from the record that the handicap of the Commonwealth is not substantial and while the presentation may be somewhat impaired, the record reflects that the remaining evidence is such that the prosecution is not actually handicapped by the suppression order. The court should quash such an appeal and such a disposition is quite consistent with Bosurgi. However, it is quite another matter for an appellate court to quash an appeal when that court cannot know—because it is unable to determine from the record— the magnitude of the harm that the order of suppression inflicts upon the trial presentation of the Commonwealth. It is my view that the decision of the majority upon this issue is too significant and the result of that decision too awesome to be permitted to rest upon an inference from cases where the Supreme Court found handicap in the record or to rest upon the equivocal nature of the Hill decision.
If it is fairness we seek, unfairness can be avoided by reliance upon the Deren standard that would accept an appeal by the district attorney as a “good faith certification” that the order of suppression is a handicap to the prosecution, subject to the right of the court to quash the appeal where the record reveals the Commonwealth is not handicapped by the order of suppression. If, in such a situation, counsel for the accused is inclined to the view that the district attorney is not handicapped by the suppression order, counsel may utilize a motion to. quash and thereby force the Commonwealth in a responsive pleading to demonstrate the handicap—a procedure that adequately protects the Commonwealth when the handicap is actual, while enabling the dismissal of the appeal where the alleged handicap is specious.
*323The majority notes the clearly established principle that we will not consider, in determining if an appeal is interlocutory, any statement not supported by facts of record. I share the goal of consistency but hasten to note that the Deren standard can hardly be termed inconsistent since, in all of the situations cited by the majority, there was presumably a complete record available for appellate review, while in the classification we here study, as noted in the opinions of our distinguished colleagues, Judge James R. Cavanaugh and Judge Vincent A. Cirillo, the record available for our review can only be quite limited.
The majority opinion upon this issue concludes with the message that “we leave to the Supreme Court whether the law should be changed”, (at p. 279). While the majority here refers to a rule of appellate procedure, I would urge a similar hesitancy with regard to the change in the substantive law which, I very respectfully contend, is effected by the majority opinion.
And, finally, the majority recognizes that a forcible argument may be made that as a matter of policy the Commonwealth should be permitted to appeal a suppression order in a case where the handicap does not appear of record. The earlier quoted spirited statement of the Supreme Court is just such an argument:
The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents. In our zeal to protect and preserve for the accused every constitutional right to which he is entitled we too often forget and neglect to preserve the rights of society which, too, are entitled to consideration.
That argument is to my mind not only forcible, but is somewhat a plea, and is certainly quite convincing. I am, therefore, compelled to this dissent.