(dissenting). If the prosecution’s burden in this Commonwealth to establish criminal responsibility in the face of an insanity defense is to have any meaning, it was not met in this case. “[T]he Commonwealth runs the very real risk of reversal and the granting of a new trial if it chooses to rely on the presumption and the circumstantial evidence of sanity such as that adduced at this trial, rather than to introduce medical *650evidence of sanity.” Commonwealth v. Kostka, 370 Mass. 516, 540 (1976) (Hennessey, C.J., dissenting in part). Commonwealth v. Guiliana, 390 Mass. 464, 470-471 (1983).
What are the facts of the case? Without provocation (except as may have been supplied by his own delusions), the defendant Cullen on February 5, 1983, attacked with a rock and then shot and wounded two Milton police officers. His defense is lack of criminal responsibility as defined in Commonwealth v. McHoul, 352 Mass. 544, 547 (1967), i.e., that “as a result of mental disease or defect he lack[ed] substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.”
Four Milton police officers described Cullen’s assault. While on patrol, Officer Paul Nolan was startled by a “loud bang” at the rear of his cruiser. Nolan stopped to investigate and discovered the defendant Cullen standing in the driveway of the house in which Cullen lived. Cullen made no reply when Nolan asked “what was going on.” When Nolan approached to within about twelve feet of Cullen, the latter suddenly and unexpectedly drew a Beretta automatic pistol and fired three shots, two of which wounded the police officer. The defendant then disappeared behind his house, but reappeared to shoot at Officer Paris, who had come to help Nolan. One shot wounded Paris in the shoulder, another hit Nolan’s radio. Paris returned the fire and Cullen fled. Where he fled is of some significance to the Commonwealth’s case; he fled a few houses up the street to the house of a lawyer he had previously employed.
A psychiatrist, Dr. Annaliese Alma Pontius, basing her testimony on an interview of the defendant, described the defendant as suffering from schizophrenia, paranoid type. So far as the cognitive prong of the McHoul test was concerned, Dr. Pontius gave it as her opinion that, on that February morning, the defendant lacked the capacity to appreciate the criminality of his conduct.
Dr. Pontius testified that Cullen thought he had been under twenty-four hour police surveillance every day for seven years; that wherever he went and whatever he did, the police would follow. Cullen would “test” this belief by leaving his house at *651all hours of the morning and walking in various directions; inevitably, he sensed a police tail. This surveillance extended from “the entire east coast and into East Canada.” Indeed, once when Cullen visited New York City, “15,000 police officers [had been placed] on call and alerted to his appearance there.” The police had long been conducting “mind games” with Cullen in an attempt to control his mind “to let him kill people.” They had placed bugs on his phone. They had even “turned the entire Boston female population against him [by] telling them he was a sex pervert so that he lost his many girl friends.”1
On the night of the shooting, Cullen heard a car coming and threw a rock at it because he “couldn’t take it any longer after seven years of constant surveillance.” He knew the police “were getting to” him because he had been stricken with recent attacks of “pins and needles” caused by the police “mind games.” He feared being killed by the police. These fears Dr. Pontius described as “incorrigibly delusional beliefs.”
The defense also introduced a report by Dr. Martin Kelly, who, at the request of the Commonwealth, had conducted a psychiatric evaluation of Cullen. Based on an “[e]xtended psychiatric interview” on July 15, 1983, a review of Bridgewater records and a review of police reports, Dr. Kelly was of opinion that Cullen suffered “a paranoid delusional system in which ... the Milton police were out to get him.” Because it “is probable [that] at the time of the shooting he believed that the police were going to shoot him,” Dr. Kelly concluded, along the volitional prong of the McHoul test, that Cullen “had a mental disease which resulted in the lack of substantial capacity to conform his conduct to the requirements of the law.” Dr. Kelly’s written report disclosed that Cullen had a history of “criminal and psychiatric difficulties,” extending back to age fifteen when he spent a year in a residential treatment program.
*652The Commonwealth offered no affirmative evidence of sanity. See Commonwealth v. Kostka, 370 Mass. at 539-540 (Hennessey, C.J., dissenting in part); Commonwealth v. Walker, 370 Mass. 548, 584-585, cert. denied, 429 U.S. 943 (1976) (Hennessey, C.J., dissenting in part); Blaisdell v. Commonwealth, 372 Mass. 753, 765-766 (1977); Commonwealth v. Brown, 387 Mass. 220, 222 n.3 (1982); Commonwealth v. Guiliana, 390 Mass. at 470-471. As did the defendants in Commonwealth v. Lunde, 390 Mass. 42, 46 (1983), and Commonwealth v. Werner, 16 Mass. App. Ct. 686, 689 (1983), Cullen here does not claim entitlement to a required finding of not guilty as of the close of the Commonwealth’s case-in-chief. Rather, the claim is that the Commonwealth’s case deteriorated between the time the Commonwealth rested and the close of all the evidence, see Commonwealth v. Kelley, 370 Mass. 147, 150 & n.1 (1976), and that, at the close of all the evidence, Cullen was entitled to a required finding of not guilty. Our inquiry, therefore, as in Lunde and Werner, is whether, on the basis of all the evidence, viewed in a light most favorable to the prosecution, any rational trier of fact could have found, beyond a reasonable doubt, that the defendant had substantial capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law.2
In Werner, the attack was similarly unprovoked and bizarre. Similarly, two psychiatrists testified to the defendant’s insanity. Relying on Lunde, we held that the jury could have rejected the opinions of the experts and could, on the basis of other circumstantial evidence, have found the defendant criminally responsible. The defendant in Werner (at 689 and 690) left the scene of the crime and hid himself and his knife. After arrest his demeanor at the police station was calm. He manifested comprehension of his rights and furnished the police with written confessions which displayed ability to differentiate relevant *653from irrelevant facts. Similarly, in Lunde (at 48), the defendant at the time of the crime was oriented as to time, place, and persons. He discriminated among victims. He hid the murder weapon and ammunition after the crime. He was coherent and calm at the police station.
In the instant case the Commonwealth’s evidence is palpably weaker. There was no evidence that Cullen had prepared for the crime. Compare Lunde. There was no economic motive. Compare Commonwealth v. Kostka, 370 Mass. at 518. There was no evidence of revenge and planning. Compare Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 595 (1982), in which the factors of discrimination among victims and calm after arrest were also present.
The majority detect three indicia of sanity: (1) Cullen did not try to kill Officer Nolan but only meant to “put him out of service.” From this the majority deduce that Cullen could distinguish between maiming and killing and also had the ability to refrain from killing. It is a nice distinction, but I am skeptical about it as a hallmark of sanity. I hesitate to bank on the sanity of a person who shoots only to wound rather than kill. The point is that the Commonwealth offered no evidence to suggest, much less prove beyond a reasonable doubt, that Cullen had substantial capacity to appreciate the obvious wrongfulness of putting police officers “out of service” by shooting at them. Nor did the Commonwealth offer any evidence to prove that Cullen had substantial capacity to refrain from trying to put police officers out of service. Cullen’s acts were perfectly consistent with his delusional scheme that he must protect himself from the police or be killed or beaten by them. It is quaint to descry evidence of sanity from the circumstance that Cullen’s delusional system did not necessarily require him to shoot to kill.
(2) The second indicator of sanity relied on by the majority is that when Officer Breen caught up with Cullen after the latter had fled and shouted, “Frankie, give it up,” Cullen momentarily surrendered and did not shoot Breen. I think this characterization of Cullen’s behavior stops short of the officer’s full account of the arrest. Officer Breen testified that moments *654after Cullen turned and put his hands on the house, as Officer Breen walked to within 10 feet of Cullen, the latter “started to back away from the wall.” A struggle ensued which ended with Officer Paris assisting Officer Breen in placing handcuffs on Cullen, who was struggling on the ground. Both Officers Breen and Rogers described the handcuffed Cullen as “thrashing” around. It is, for me, not possible in these circumstances to conclude, as does the majority, that Cullen gave himself up, thereby evidencing his substantial appreciation of the wrongfulness of his actions. Nor can I accept that Cullen’s momentary stance against the wall was sufficient to prove Cullen’s substantial capacity to conform his conduct to the requirements of the law. The majority discounts the import of Officer Breen’s having had his gun drawn when he ordered Cullen to “give it up.” When Officer Paris had previously pointed his gun at Cullen, the latter had responded not by surrendering, but by shooting Paris. Lest it be said this demonstrates ability to discriminate because Cullen later refrained from shooting Officer Breen, it is well to bear in mind that when Cullen shot Officer Paris, Cullen did so from the relative safety of the vicinity of his house, but that when Cullen “refrained” from shooting Officer Breen, the latter had the drop on him.
(3) The third circumstance relied upon by the majority as evidence of Cullen’s criminal responsibility is that when Cullen fled he ran to the porch of a nearby house which belonged to someone who was formerly his lawyer and that Cullen appeared to be trying to break into it. I recognize that a fact finder need not accept the contention of the defendant’s expert that his flight to that location was consistent with his delusional scheme that he needed to protect himself from the police and that they would be afraid to kill him in front of his former lawyer. Even if, however, Cullen’s flight to a lawyer’s house could be construed as evidence of his substantial capacity to appreciate the wrongfulness of his actions, it presents no evidence that he was substantially able to conform his conduct to the requirements of the law when he tried to put the officers “out of service.”
*655My difficulty with fitting the instant case into the Lunde-Wemer mold is the extreme thinness of evidence adduced by the Commonwealth bearing on Cullen’s criminal responsibility. Lay evidence by the police officers or others might have served, but the Commonwealth did not proffer any. Commonwealth v. Amaral, 389 Mass. 184, 192-193 (1983). I think the instant case is more like Commonwealth v. Guiliana, 390 Mass. at 469-471, in which the Supreme Judicial Court found the Commonwealth’s case on sanity at the close of all the evidence so weak that, acting under G. L. c. 278, § 33E, it reversed a jury verdict as against the weight of the evidence. The test in this court, as the majority observe, is more narrow. We do not weigh the evidence — even if found by a judge rather than a jury. As indicated, the question to answer is whether a rational trier of fact could, beyond a reasonable doubt, have found Cullen criminally responsible in the McHoul sense. I do not think that finding can be made. The case for the defendant in this case is stronger than Guiliana in that one of the psychiatric opinions concluding that the defendant was criminally insane was prepared for the Commonwealth. As in Guiliana, there is a passing effort to suggest ingestion of a drug — here alcohol — but no evidence as to how much the defendant imbibed or that alcohol affected the defendant’s conduct.
Cullen also told Dr. Pontius he had “batted” about 500 “girls” (a term Dr. Pontius understood to be a delusion that 500 women would be willing to go into a close relationship with Cullen). From this behavior, Dr. Pontius concluded that, in addition to the other mental illness, Cullen suffered “erotomania,” “a type of psychosis,” manifested by a delusion of grandeur that all women fall in love with him.
The McHoul test is phrased in the disjunctive, i.e., a person is not criminally responsible if he lacks substantial capacity as to either the cognitive or volitional component of the test. To establish that a person is criminally responsible, it is necessary to prove cognitive and volitional capacity.