Appeal from order of Court of Common Pleas, Criminal Division, of Chester County, March T., 1968, Nos. 184 and 184A, in case of Commonwealth v. Anthony I. Pomponi.
A. Thomas Parke, III, Assistant District Attorney, with him M. Joseph Melody, Assistant District Attorney, for Commonwealth, appellant.
Michael B. Kean, with him John J. Duffy, and Duffy & Kean, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this dissent.
Anthony J. Pomponi stands indicted on murder charges. At his arraignment, he entered pleas of not guilty. Upon motion of defense counsel, the court below authorized Pomponi's examination by psychiatrists. After several such examinations, defense counsel indicated to the court that Pomponi's defense would be that of insanity. The Commonwealth then sought permission from the court for the Commonwealth's psychiatrists to examine Pomponi. The court granted the requested permission, qualifying its order to allow defense counsel to be present at the examination, and further providing: ". . . . that in such examination the defendant shall not be required to impart or divulge any information either written, spoken, or otherwise which would in any way tend to incriminate him, but that the examination shall be limited to the observation of his personal characteristics and behavior as may be considered valid and appropriate by the examining physicians in the evaluation of his sanity and to any voluntary statements he may then make;". The order also stated, significantly, that: ". . . all of the above is done without prejudice to the right of the Commonwealth to move for additional or further examinations of the defendant should circumstances which may develop at or prior to trial warrant the making of such an application, . . ."
The Commonwealth is here appealing the order, because the Court did not direct in it that Pomponi cooperate with the examining physicians, on pain of being denied at trial the opportunity to introduce expert testimony on the issue of his insanity.*fn1
It is apparent that the instant appeal must be quashed. It has long been the rule that, absent a statute or rule permitting interlocutory appeals, an appeal will lie only from final orders. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), this Court discussed the availability of appeal to the Commonwealth after an adverse pretrial order. We held that the Commonwealth may appeal not only where the order will result in an absolute termination of the prosecution, but also where it will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence. Although we were there speaking specifically of an appeal from an order suppressing evidence found in an illegal search, the rule has been considered broad enough to cover any appeal from the suppression of evidence. Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968). We stated at page 63 in Bosurgi : "Without a right of appeal in the Commonwealth . . ., 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 evidence. 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." (Emphasis in original).
The Commonwealth is attempting to appeal from an order which carefully preserves the right of the prosecution "to move for additional or further examinations of the defendant should circumstances which may develop
at or prior to trial warrant the making of such an application." The Commonwealth states that the order was totally ineffectual under the conditions attached, and therefore seeks to appeal. However, the record itself does not reveal what occurred at the examination. Moreover, there is nothing final about the order and nothing in it which would indicate that the court below would not have issued some further order, if the examination was indeed totally ineffectual.
There is some language in the court's opinion revealing a reluctance to issue a further order. However, we must be governed by the order and not by extraneous language in the opinion. Harleysville M. I. Co. v. Phila. Trans. Co., ...