concurring and dissenting:
I concur in the result reached by the majority in Commonwealth v. Lapia, and I respectfully dissent from the majority holding in Commonwealth v. Dugger. Initially, I express my view that the holdings of this Court in Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977), and Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975) should remain extant.
The majority concludes that we must determine for ourselves, on the basis of the record alone, whether an order suppressing evidence is appealable. The record of a suppression hearing, though, contains only the evidence adduced at the hearing, which is limited to a determination of whether specific evidence was obtained in violation of the defendant’s rights or any statutory provision.1 The Commonwealth does not present its full case at a suppression hearing or make arguments for conviction. Thus, frequently it cannot be ascertained from the suppression record what other evidence, if any, is available to the Commonwealth. Therefore, in many cases, it would be impossible to *325determine from the record whether an order suppressing evidence does in fact terminate or substantially handicap the prosecution. See: 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).
Furthermore, in determining whether an order suppressing evidence is appealable, we must keep in mind the following:
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.
Commonwealth v. Bosurgi, 411 Pa. at 63, 190 A.2d at 308.
Unless the record affirmatively shows the availability of other evidence to the Commonwealth, which is sufficient to obtain a conviction, we must assume that the Commonwealth would be prejudiced by the suppression of evidence.2 Otherwise, we would have to remand to the lower court for a more complete record, consequently expending already overtaxed judicial time and resources as well as depriving the defendant of his constitutional right to a speedy trial.
By accepting such an appeal as the Commonwealth’s good faith certification that the case will be terminated or substantially prejudiced by a suppression order, we remain within the ambit of Bosurgi, we follow the precedent set by the Court in Deren and Trefry, and we provide a procedure for appeal which benefits all of society, not just the criminal defendant.
In Commonwealth v. Dugger, I join in the well-reasoned Dissent of Judge Wieand.
. Under the provisions of Pa.R.Crim.P. No. 323 (given below in pertinent part), the record of a suppression hearing is limited as follows:
(a) The defendant or his attorney may make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant's rights.
(g) A record shall be made of all evidence adduced at the hearing. The clerk of court shall impound the record and the nature and purpose of the hearing and the order disposing of the motion shall not be disclosed by anyone to anyone except to the defendant and counsel for the parties. The record shall remain thus impounded unless the interests of justice require its disclosure.
(h) The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. The defendant may testify at such hearing, and, if he does so, does not thereby waive his right to remain silent during trial.
(i) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.
. See: Commonwealth v. Thorne, 223 Pa.Super. 122, 130, 299 A.2d 370, 373-74 (1972) (Cercone, J., dissenting).