concurring and dissenting.
I concur with the majority’s decision to continue the custody of Mrs. Newman until she testifies as to what she learned from her husband’s confession to homicide. I dissent from the majority’s holding that the Appellant could refuse to testify to a confidence because of 42 Pa.C.S. § 5914.
In Commonwealth v. Hanchank, (J-74-1992), 534 Pa. 435, 633 A.2d 1074 (1993) decided today as a companion case, I wrote separately to concur in the result because I cannot accept the statutory interpretation advanced by the majority regarding §§ 5913 and 5914.
Section 5913 reads:
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
(1) in proceedings for desertion and maintenance;
*434(2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them;
(3) applicable to proof of the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other; or
(4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape.
This case is covered fully by subsection (4), as the trial court correctly decided.
For reasons which I detailed in Hancharik, I conclude that the four exceptions provided under § 5913 apply to § 5914. I am in dissent, therefore, as to the majority’s determination that Mrs. Newman could refuse to testify to her husband’s confidential admission because § 5914 would protect her silence from the exercise of judicial power. The trial court’s order that she divulge the information was proper under the law. The majority is incorrect in determining that, upon a finding that the interspousal communication was confidential, she would be rendered speechless.
I agree that Appellant should remain in contempt until she is prepared to loosen her tongue in conformity with § 5913(4).