Appeal from order of Court of Common Pleas of Chester County, March T., 1968, Nos. 184 and 184A, in case of Commonwealth of Pennsylvania v. Anthony J. Pomponi.
M. Joseph Melody, Assistant District Attorney, with him A. Thomas Parke, III, First Assistant District Attorney, for Commonwealth, appellant.
John J. Duffy, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Dissenting Opinion by Mr. Chief Justice Bell.
Anthony J. Pomponi stands indicted for murder in the Court of Common Pleas of Chester County. After he had undergone several court-authorized psychiatric
examinations by his own doctors, his counsel indicated to the Court that Pomponi would raise a defense of insanity. On August 14, 1969, pursuant to an application by the Commonwealth, the lower Court granted permission for the Commonwealth's psychiatrists to examine Pomponi, provided that defense counsel be permitted to be present during 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."
Pomponi refused to cooperate with the Commonwealth's physicians at the examination. The Commonwealth then appealed, urging that it was error for the lower Court not to direct that Pomponi cooperate, on pain of being denied at trial the opportunity to introduce expert testimony on the issue of his insanity.
On January 30, 1970, we quashed that appeal, Commonwealth v. Pomponi, 436 Pa. 565, 259 A.2d 872 (1970), because it was not an appeal from a final order. Our reasoning was based on the language in that order preserving 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." We explained that there was no indication "that the court below would not have issued some further order, if the examination was indeed totally ineffectual." Id. at 569.
Subsequently, the Commonwealth again petitioned for psychiatric examination. On March 25, 1970, the lower Court again ordered that the Commonwealth's
experts might examine Pomponi, and again provided that Pomponi's attorney had a right to be present at such an examination and that Pomponi "shall not be required to impart or divulge any information either written, spoken, or otherwise which would in any way tend to incriminate him." Pursuant to the Court's order, Dr. Kenneth Kool, M.D., the Commonwealth's psychiatrist, again tried to examine Pomponi. Pomponi refused to ...