submitted: March 19, 1984.
COMMONWEALTH OF PENNSYLVANIA
DONALD E. REAGAN, APPELLANT
NO. 03084 PHILADELPHIA, 1982, Appeal from the Order dated September 28, 1982, in the Court of Common Pleas of Berks County, Criminal Division, at No. 76108401.
Charles B. Coleman, Assistant Public Defender, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
Spaeth, President Judge, and Rowley and Beck, JJ.
[ 330 Pa. Super. Page 418]
The question is whether an appeal from an interlocutory order adjudicating appellant competent to stand trial for homicide under the provisions of the Mental Health Procedures Act, 50 P.S. § 7101 et seq. (hereinafter "Act")*fn1 is appealable prior to trial. We hold that such an interlocutory order is not appealable.
Although neither party has raised the issue of the appealability of this order, we address the issue sua sponte. Commonwealth v. Hunter, 294 Pa. Super. 52, 54, 439 A.2d 745, 746 (1982).
Section 7403 of the Act provides that when a defendant previously found incompetent to stand trial has regained competence, "the [criminal] proceedings shall be resumed."
Generally, a criminal defendant may appeal only from a judgment of sentence. However, an appeal before final judgment may be permitted in "exceptional circumstances", such as
". . . (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great importance is involved." Id., 294 Pa. Superior Ct. at 56,
[ 330 Pa. Super. Page 419439]
A.2d at 747, quoting Commonwealth v. Bolden, 472 Pa. 602, 610-611, 373 A.2d 90, 93-4 (1977).
For example, in Bolden the Pennsylvania Supreme Court permitted pre-trial appeal of the refusal to dismiss an indictment based on double jeopardy grounds. The Court concluded that because the double jeopardy clause was designed to protect an individual from having to stand trial, not merely to bar a second conviction, appellate review after judgment would not adequately protect an accused's rights.
In contrast, determinations of mental competence to proceed to trial have not been found to present "exceptional circumstances" requiring immediate appeal. Thus, in Commonwealth v. Novak, 384 Pa. 237, 120 A.2d 543 (1956), a defendant awaiting trial petitioned for commitment to a hospital on the ground of mental illness under the Mental Health Act of 1951, the predecesor act of the one under consideration in this appeal. Novak's appeal from the trial court's denial of his petition and its order that he was competent to stand trial was quashed.
In so deciding, the Novak court acknowledged that an otherwise interlocutory appeal may be heard in "exceptional circumstances." No such circumstances were present, the Court decided, and appellant Novak was free to challenge the determination of competence following trial. See also Commonwealth v. Bruno, 424 Pa. 96, 225 A.2d 241 (1967) (no appeal from trial court's order for appointment of a sanity commission to determine defendant's competence, since "exceptional circumstances" did not exist).
In keeping with this traditional view of the absence of exceptional circumstances, our appellate courts have routinely reviewed on direct appeal the lower court's pre-trial determination of competency under the present Act. See, e.g., Commonwealth v. Smith, 322 Pa. Super. 504, 469 A.2d 1104 (1983); Commonwealth v. Pifer, 384 Pa. Super. 170, 425 A.2d 757 (1981); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Knight, 276 Pa. Super. 348,
[ 330 Pa. Super. Page 420419]
A.2d 492 (1980); Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824 (1978).
Since the order of the lower court is interlocutory, we quash this appeal without prejudice to the rights of the appellant to raise the issue of his competency to stand trial in a timely filed direct appeal.*fn2