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filed: April 18, 1980.


No. 243 October Term, 1979 Appeal from Supplementary Order entered January 4, 1979 by the Court of Common Pleas of Northampton County, Criminal Division, at No. 1591 - 1978.


James J. Narlesky, Assistant District Attorney, Easton, for Commonwealth, appellant.

Bernard V. O'Hare, Bethlehem, for appellee.

Price, Van der Voort and Wieand,*fn* JJ.

Author: Wieand

[ 277 Pa. Super. Page 398]

Tony Peter Frisoli has been charged with attempted murder, aggravated assault, recklessly endangering another person and unlawful possession of a firearm. His counsel notified the Commonwealth that he intended to offer a defense of "temporary insanity or a mental infirmity of such nature as to render him of diminished capacity." The trial court, in response to a Commonwealth pre-trial motion, ordered Frisoli to submit to a psychiatric examination but denied a request to examine and copy the report prepared by a psychiatrist employed to make an examination of the defendant.*fn1 The Commonwealth appealed from the portion of the order which denied its request to discover the defense psychiatric report.

We conclude that the order of the trial court was interlocutory and, therefore, quash the appeal. It has been held that the Commonwealth may appeal from a pre-trial order (1) where the order will result in an absolute termination of the prosecution and (2) where the order will substantially

[ 277 Pa. Super. Page 399]

    handicap the Commonwealth by preventing it from using against an accused all its available evidence. Commonwealth v. Pomponi, 436 Pa. 565, 259 A.2d 872 (1970); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). In the instant case, the trial court's order has neither terminated the prosecution nor deprived the Commonwealth of the use of any evidence. It has merely denied the Commonwealth an opportunity to obtain pre-trial discovery of evidence gathered by the defense.

The Commonwealth argues that if it is not permitted to examine the report of defendant's psychiatrist it will be "substantially handicapped" in obtaining or presenting evidence of defendant's sanity. See: Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971). We reject this argument. The Commonwealth can prove an accused's sanity not only by psychiatric testimony but also by lay testimony which shows that he or she knew the nature and quality of the act committed and knew that what had been done was wrong. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). Moreover, the trial court directed Frisoli to submit to a psychiatric examination so that the Commonwealth might determine for itself appellant's mental condition and obtain expert testimony thereof.

Appellant's notice to the Commonwealth alleges temporary insanity or diminished responsibility. The notice did not contain a diagnosis or other specific information concerning the nature or extent of the mental disorder with which the defendant was alleged to be suffering. This information is required to be disclosed by Rule 305(C)(1)(b). If it is not disclosed prior to trial, a remedy is provided by Rule 305(C)(1)(d) and (E). For this additional reason, we are unable to conclude that the order appealed from instantly is either final or will substantially handicap the Commonwealth in its prosecution of charges against the appellee.

*fn* Judge DONALD E. WIEAND is sitting by special designation.

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