(dissenting).
This appeal presents for review an extraordinarily complex mixture of factual and legal contentions, many of which are being advanced on appellant’s behalf by court assigned counsel over his objection strenuously expressed. At the same time contentions which appellant would like to have considered were not considered by the Pennsylvania courts or by the district court for reasons which I hope will become apparent in this opinion. Ordinarily in a dissenting opinion I would be content with the development of the facts and pleadings outlined by the majority, and would discuss only the ultimate factual or legal issues on which we disagree. Here, however, we seem to be in disagreement even over what happened in the state court. Thus a more detailed treatment of the record, as it appears to me, is in order. That record discloses this chronology:
On June 19, 1964, about 4:00 A.M. Judith Lopinson and Joseph Malito were shot to death in the basement office of Dante’s Restaurant in Philadelphia. That restaurant was owned by Malito and Jack Lopinson, Judith’s husband. When the police arrived they found Jack Lopinson, suffering from a gunshot wound in the leg, with the two bodies. On July 15, 1964, after an inquest by the Medical Examiner of Philadelphia, Jack Lopinson was charged with murder and held for action by the grand jury. On July 25th appellant was arrested in connection with another incident. While he was in custody the police learned from another source that appellant had bragged about committing the murders at Dante’s Restaurant. On July 26th appellant was charged with the murders and a hearing was held before a magistrate who committed him to Holmesburg prison on the murder charges pending action by the grand jury. At this time appellant made some statement to the police about disposing of the murder weapons, but did not admit participating in the murders. On July 27th appellant summoned the senior official at Holmesburg prison to his cell and told him “he wanted to confess who committed the murders down at the restaurant.” (S.R. 295).1 A prison official called the homicide detectives and the next morning appellant was taken to police headquarters for questioning. There he gave a detailed, signed written statement consisting of thirteen pages (S.R. 195). Before that statement was taken he was warned that he could remain silent, that the statement could be used against him, and that he had a right to counsel. (S.R. 198). During the course of the interrogation he was informed that an attorney named Simone, retained by appellant’s father, wished to see him. He was advised that Mr. Simone could be present but replied that he did not want to see Simone. (S.R. 209). Appellant’s statement was *88to the effect that Jack Lopinson had hired him to kill Judy Lopinson and Joseph Malito for pay, and to wound Jack Lopinson so as to create the appearance of a robbery or an underworld “hit.” The statement details weeks of planning, including a trip to Delaware to purchase the murder weapons, describes the execution of Mrs. Lopinson and Malito in graphic detail, tells how he wounded Lopinson, and how and where he disposed of the guns in the Delaware River. Preparation of this written statement on July 28, 1964, was interrupted so that appellant could testify for the Commonwealth in a habeas corpus proceeding brought by Jack Lopinson. (S.R. 211). In open court he was fully warned of his constitutional rights, and he testified in detail how Jack Lopinson and he planned and carried out the execution of the two victims, how he wounded Lopinson, and how and where he disposed of the murder weapons.
Appellant was then returned to Holmesburg, where on August 7, 1964, he was examined by Dr. J. G. Torney and Dr. Martin Hays of the Neuropsychiatric Department of the Quarter Sessions Court. (S.R. 398-405). Their report concluded:
“Therefore, while his personality structure appears to be highly neurotic in nature he is not legally insane and is competent to confer with counsel in the preparation of his defense.
DIAGNOSIS: Competent to confer with counsel in the preparation of his defense.”
On August 10, 1964 appellant was examined on behalf of the Commonwealth by a psychiatrist, Dr. Baldwin L. Keyes. His report (S.R. 382-393) is prefaced by this summary (S.R. 382):
“This man is mentally clear. He recognized the nature of his homicidal act. He had planned it carefully and thought he had escaped well after the execution of it. He knows the nature of the penalties likely and discussed them freely and without any apparent emotion.
“The question of responsibility here may be considered qualified on the basis that he does not have average normal control over his compulsive drives, and has a very considerable amount of psychopathology in the background.
“His scattered way of talking, his inappropriate emotional tone, his inadequacy in managing his compulsive drives, the possibility of occasional hal-lucinosis, are all in line with a pre-psychotic pattern.
DIAGNOSIS: Sociopathic Personality Disturbance. Dissocial Reaction.
Aggressive and Hostile Behavior.
Not a psychotic, but there is a lot of psychopathology, with a very low level of self-control.
PROGNOSIS: Very poor. Will be a problem even In prison.
If he becomes psychotic It will probably be in the direction of transient psychotic episodes occurring under gross stress situations such as long continued confinement, or threat of death, without the ability to combat any of It.
LEGAL OPINION: This man is responsible before the law for his behavior."
On August 11, 1964, appellant was indicted.
About that time appellant’s father retained John Patrick Walsh, Esq. to represent him and Mr. Walsh entered an appearance on August 14, 1964. On September 24 and 25, 1964, at the request of prison officials, Dr. Norman E. Anderson and Dr. D. H. Cole, psychiatrists, examined Phelan. Dr. Anderson’s report, after reviewing the fact that appellant was considered by the prison officials to be very dangerous, spoke of other murders he had committed, claimed to hear voices, and had a desire to kill people, said:
“RECOMMENDATION: It is felt by all custodial officers and psychiatrists who have seen Phelan lately that he is extremely dangerous to himself and to others. A definite diagnosis of functional psychosis at this time cannot be made since he is so belligerent, nega-tivistic and threatening. It is certain at least that he is only recently reeog-*89nizing the nature and seriousness of his crime and apparently was in a dissociated state when seen previously. He certainly needs further psychiatric evaluation because his mental picture is changing and he may eventually become more classically psychotic.” (S. R. 369).
Dr. Cole’s report mentions that some individuals, prison officials apparently, were concerned as to whether or not appellant was having an acute psychotic depression. The report states:
“Dr. Anderson and I agreed that this man was a chronic psychotic with a very poor impulse control in which there is an erotic urge to kill. There is evidence that practically no inhibiting force exists in this man’s personality to counteract the urge to kill. The only direct evidence of classical legal psychosis is the fact that he hears his own voices telling him to do this. The psychosis is manifested not so much in irregularity or thought disorder but in extremely emotional color blindness when it affects the lives of others.” (S.R. 372-373).
Between August 14, 1964, when he entered his appearance, and October 24, 1964, Mr. Walsh and his associate, John R. Carroll, Esq., interviewed appellant on a number of occasions. On October 24, 1964, Dr. Robert L. Leopold and Dr. M. Lawrence Spoont, retained by Mr. Walsh, examined appellant. They had the benefit of the background investigation made by a psychiatric social worker for the Neuropsychiatric Department of the Court of Quarter Sessions. Théy found appellant oriented as to time, place and personal identity. Among other things they reported:
“He is paranoid to virtually all who come in contact with him, including not only the authorities of the Court, and the physicians who have examined him, but also his own attorneys and family. (S.R. 353).
DIAGNOSIS:
“From the psychiatric standpoint, there is no question whatsoever in our minds that this man is suffering from severe, chronic, progressive schizophrenia. He is impulse-ridden, delusional, hallucinatory, and without insight. We desire to stress that he is a thoroughly dangerous human being who has no control whatsoever over his own aggression and who, because of his paranoia, can be expected to kill at any time that he is under what for him is sufficient emotional pressure. It is further to be stressed that his level of tolerance for any emotional pressure is minimal.
PROGNOSIS:
“The prognosis is extremely poor. This man has a lifelong pattern of psychosis, has no insight, and no desire to change.
RECOMMENDATIONS:
“From the medical standpoint, this man should be confined to a maximal security mental hospital for the indefinite future. If his behavior cannot be controlled by drugs, he should be considered a candidate for pre-frontal lobotomy since this may be the only way his violent anti-social impulses can be controlled.
“We are aware that the McNaughton formulation of criminal insanity includes only the concept of whether a man knows the difference between right and wrong. On an intellectual level, Frank Phelan can make this distinction. It is, however, meaningless to him because such an intellectual concept is overwhelmed totally by his psychotic needs.” (S.R. 354-355).
On October 26, 1964, appellant appeared with his attorney, Mr. Walsh, in the Court of Quarter Sessions for arraignment on the murder and conspiracy *90indictments. (S.R. 70 et seq.). He was interrogated by the court at length, and pleaded guilty. The court accepted these pleas, and granted the Commonwealth’s request that the cases be continued indefinitely.2
Appellant was examined on December 24, 1964, by Dr. Kenneth E. Appel, a psychiatrist, at the request of Mr. Walsh and Dr. Leopold. His report (S.R. 356-366) includes the following:
“He had delusions of grandeur that he could manage anything and everything, protect himself, rely on himself, even against the electric chair. * * * He is suspicious, distrustful and had delusions of persecution — even toward people who want to help him. * * *
“His memory is satisfactory, but interfered with by impulses to express his destructiveness, his compulsion to kill, his negative and destructive feelings toward other people and their destructive feelings toward him. (S.R. 363).
“ * * * The drive he has is almost a monomania which interferes with his thinking, judgment, conforming behavior. He is not free to think logically or perceive reality, especially reality as it is. Delusions and hallucinations interfere with the normal sequence of thought, ideas, relevancies and behavior * * *
“The diagnosis is mental disease — Severe Intense Paranoid Schizophrenia, in my opinion, — with delusions of grandeur, persecution and compulsion to kill.
“He is a very dangerous, uncontrolled person filled with destructiveness.
“The prognosis is poor under any form of treatment, even I believe with extensive and high dosage of drugs. “Maximum security is indicated.” (S. R. 364-365).
On January 29, 1965 appellant testified in the murder trial of Jack Lopinson. His testimony is reproduced at S.R. 252-294. His attorney, Mr. Walsh, was present throughout his testimony. At this trial he repeated the story of his conspiracy with Lopinson to kill Mrs. Lopin-son and Joseph Malito. That testimony in all its lurid detail is consistent with his July 28, 1964 statement and his July 28, 1964 testimony. Lopinson was convicted of first degree murder. Before and during that trial Lopinson moved to have appellant examined by a court appointed psychiatrist, but these motions were denied. See Commonwealth v. Lop-inson, 427 Pa. 284, 234 A.2d 552 (1967).
On July 14, 1965, appellant wrote a letter (Petitioner’s Exhibit 3, habeas corpus case) to Mr. Walsh advising that he wanted to withdraw his guilty plea and contest his guilt, that he wanted a court appointed attorney other than Walsh, and directing Walsh to destroy all psychiatric reports in his possession. On July 19, 1965, appellant addressed a handwritten petition (S.R. 10) to the Pennsylvania court judge who had accepted his guilty plea, advising that he had discharged Walsh and requesting the appointment of new counsel. On July 26, 1965, Mr. Walsh filed a petition to withdraw as counsel (S.R. 12) in which Mr. Walsh advised the court:
“7. Petitioner avers that for approximately one month prior to the filing of this petition, the professional relationship between petitioner and defendant has deteriorated to such an extent that petitioner is of the opinion that he can no longer give this defendant effective representation in this major criminal trial.
*918. Petitioner further avers that defendant will not lend his cooperation to the obtaining of witnesses whom petitioner deems material when his case is called before the Court for trial and with respect to said witnesses has told petitioner that he does not want them present in Court.”
Both petitions were heard on July 27, 1965, by the three judge panel which had apparently been scheduled to take testimony that day on the degree of guilt. By this time appellant had also filed a pro se motion for copies of the court records in the Jack Lopinson case. At this hearing Mr. Walsh was permitted to withdraw, and appellant with the assistance of the court filled out a form requesting court appointed counsel. Several times in this hearing he denied his guilt and demanded a jury trial. Typical of his testimony is this:
“I’ll tell you like this then — last year I was shanghaied off Locust Street and since that time I have been psychologically coerced and suppressed, you understand, and oppressed to say different things, you understand.
Now I said I would say these things provided certain people wasn’t bothered, you understand, bothered by the capitalistic cops. And I said if Jack Lopinson got the chair, I had to get the chair, you understand.
Now the point now is people said I kept tracking on District Attorney Sprague in the meantime to see what’s on their mind. And I told them either they give me the chair or nothing, you know.
Q. Well—
A. Wait a minute, wait a minute. I’m asking you a question. They said now the story’s supposed to be now I’m a nice guy and they want to pack me off nice and quiet for a life bit. I ain’t taking no life bit. You either snuff me out or cut me off.
Meantime, I can’t afford to pay John Walsh no money to fight no case. And I just want to say for the record with reference to any criminal acts alleged to have been perpetrated by me, I now confirm nothing and strenuously deny everything. Boom.” (S.R. 84-85).
At the end of the hearing this colloquy took place:
[Appellant]: “I’d like to ask you one question. Mr. Sprague said about this guilty plea and I just said I’m not guilty of nothing. If the lawyer that put that guilty plea in has withdrawn, that should also be withdrawn. Judge Alexander: That doesn’t automatically withdraw the plea.
[Appellant]: I’m still not guilty, understand ?
Judge Alexander: You want to change your plea from guilty to not guilty?
[Appellant]: I’m not claiming my plea was one by me.
A Woman: (Standing in the courtroom)
Your Honor, Your Honor, that man is sick. He is positively sick.” (S.R. 93-94).
The woman spectator probably was appellant’s mother.
On August 2, 1965, the court appointed Abraham J. Brem Levy, Esq. and John A. Papola, Esq. to represent the defendant. Obviously Mr. Levy and Mr. Papola were in for a hard time, for by now it was abundantly clear that appellant would not cooperate in preparing for a degree of guilt hearing, but was insisting on the withdrawal of his guilty plea and a jury trial. On September 23, 1965, these attorneys were- notified that the degree of guilt hearing would proceed on October 11th. Prior to October 11th they went to the Eastern States Correctional Institution, where appellant was confined, to discuss with him a petition to withdraw his guilty plea, and he refused to see them (S.R. 98). Such a petition was prepared, signed by counsel and filed on appellant’s behalf on October 8, 1965. On October 11, 1965, at the court’s direction in open court appellant also signed this petition (S.R. 98). Counsel indicated that they were not prepared to go forward with testimony in support of the petition because they *92needed additional time to locate witnesses who would testify on that issue. ' For reasons which do not appear but may well be imagined they did not put appellant on the stand in support of the petition. The court denied the petition to withdraw the guilty plea (S.R. 126). Counsel then occupied several hours in an unsuccessful attempt to take an interlocutory appeal to the Pennsylvania Supreme Court from this ruling. That appeal was promptly quashed on the state’s motion (S.R. 130). At the end of the day on October 11th, after that appeal had been quashed, Mr. Levy made a motion (S.R. 132a-l): “* * * for leave to file a petition to retain a psychiatrist so that the court and the defendant could have the benefit of the psychiatrist’s report as to whether he could comprehend or knew mentally what was happening at the particular time — ”, referring to the date of the guilty plea. He referred specifically to his desire to use the psychiatrist on the question of withdrawal' of the guilty plea. (S.R. 134). The court replied that they had already ruled on that (S.R. 134-135). An inquiry was made a few minutes later about use of the psychiatrist on the question of guilt if the plea stands and about his use to determine appellant’s present mental condition. One judge said:
“Now if you want it to determine the mental condition of the defendant now, that is another question and that seriously raises a question.”
Mr. Levy replied “No, at the time he pleaded.” (S.R. 140). The motion was denied. Two observations must be made about this reply. First, it came at the end of a long and often confusing day. Second, it was consistent with the appellant’s position that the only thing he was interested in was a jury trial following the withdrawal of his guilty plea. This is made clear in the record when on the next page appears:
“Mr. Papóla: Before the Court recesses, and with due respect to the Court, I have been requested to make a statement to the Court by Mr. Phelan himself. Therefore, I feel that it becomes my duty and my obligation to make his statement to the court.
He has advised me, Your Honor, that if the Court intends to proceed on a guilty plea on Wednesday, that he feels there is no necessity for his counsel to be present because he feels that it would be a useless gesture on the part of his counsel to be here and in any way to adequately and properly defend him because he feels that there is nothing to defend him from. He feels that he wishes to go on trial on a not guilty plea, that he is not guilty in fact.” (S.R. 141).
Counsel were in the difficult position of having serious reservations about appellant’s competency, while he had none. Competency in October but incompetency at the time of the plea was a position consistent with appellant’s wishes.
The court ordered that the degree of guilt hearing proceed on Wednesday, October 13, 1965.
On October 13th counsel presented to the court three petitions, two of which were signed by the appellant in court that morning during a recess. Mr. Levy explained the reason for the late filing: “ * * * because of the mental condition of this defendant we were unable to get through to him earlier than we actually did get through.” (S.R. 149). The petition signed by appellant presented a new motion to withdraw the guilty plea because appellant never knew until the evening of October 11, 1965, that as a result of his August guilty plea he would not have a jury trial and a defense. The petition was denied. Another petition, signed by counsel, sought:
“ * * * that the court authorize counsel to retain a psychiatrist or psychiatrists to examine the defendant in an effort to ascertain whether he was of sufficient mental capacity to understand the nature of the acts complained of; his alleged arrraignment; and the proceedings to assess the degree of guilt presently before the court, or to participate in the proceedings.” (S.R. 40).
*93Clearly this petition tendered three issues:
(1) appellant’s criminal responsibility;
(2) appellant’s competency at the time of his arraignment and guilty plea;
(3) appellant’s competency to participate in the degree of guilt hearing.
This colloquy took place:
“Judge Alexander: We passed upon two of those matters yesterday, that is, at the time the act was committed and at the time he entered his confession. And yesterday I asked you, ‘Do you want an examination for his condition now ?’ And you said, ‘No,’ to the Court.
Mr. Levy: I said yes.
Judge Alexander: You said no yesterday.
Mr. Levy: Then I was suffering from a mental aberration.” (S.R. 157-158).
We can appreciate that Mr. Levy was under considerable stress on the occasion to which Judge Alexander referred, since appellant still was pressing his demand to withdraw his guilty plea and go to trial before a jury, and counsel, over appellant’s objection, was pressing contentions respecting both criminal responsibility and competency. In any event it was made clear on October 13th that counsel wanted an examination to determine appellant’s then mental condition. See, e. g. (S.R. 164). The proceedings became quite confused about this point, because counsel, while pressing the point that they were concerned about appellant’s present competency, still were simultaneously pressing a legal argument that the court should adopt a test for criminal responsibility other than the M’Naghten Rules. Thus, simultaneously, the court had before it:
(1) appellant’s signed petition to withdraw his guilty plea and go to trial;
(2) counsel’s contention that appellant was not legally responsible under the test of Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954); United States v. Currens, 290 F.2d 751 (3 Cir. 1961); or the American Law Institute, Model Penal Code § 4.01 et seq. (Proposed Draft 1962); and
(3) counsel’s contention that appellant was not competent when he made his guilty plea and was not presently competent to stand trial.
The resulting confusion puts into focus these significant remarks of Judge Bar-bieri:
“This is the reaction I have. My reaction is that counsel have either disqualified the plea they are trying to present or qualified their client mentally, one or the other.” (S.R. 167).
If, in other words, appellant was competent enough to present a petition for the withdrawal of the guilty plea, then he must be competent to stand trial. The court ruled:
“Judge Alexander: We will make a decision on what is going on. The Court is going on with the case. That is what is going on! We are going to overrule your motions and give you exceptions. In the event that at any time this Court feels for its own information and for the information generally also of counsel that a psychiatrist should be called for the purpose of going into his ability, we will make such an order and have one appointed, and we will consult you about it.” (S.R. 169).
Thus the petition for a psychiatric examination was denied. The third petition, for leave to hire an investigator, was granted. At this point the following colloquy took place:
“The Defendant: Wait a minute, wait a minute. I want to make a little statement before it starts here.
“Judge Alexander: You are represented by counsel.
“The Defendant: I am not represented by counsel because they are ineffective.
*94“Judge Alexander: We say that your counsel have been very effective this morning.
“The Defendant: You think they were very, very, effective. What did they do for my behalf? Name one thing.
“Judge Alexander: We cannot get in an argument with the defendant.
“The Defendant: Look, I come down here and I'm not guilty, and you say I’m guilty on four indictments, two conspiracy bills and first degree murder. Before this guy goes on the stand, you already tell me I’m guilty, and I’m telling you I’m not.
“Judge Alexander: Take a seat.
“The Defendant: I’m telling you for that record that these lawyers here no longer represent me. I know you judges don’t railroad guys today because it’s the space age and you space them.
“A Woman: Your Honor, can’t I tell you he is a sick boy?
“The Defendant: Will you sit down.
“A Woman: He is sick.
“The Defendant: Will you sit the God damn hell down.
“Judge Alexander: Go ahead. Call your witness.
“A Woman: Get your hands off him.
“Judge Alexander: Mr. Phelan..
“The Defendant: I'll tell you I’m not on trial here. I got no lawyers and I’m not standing trial on no guilty pleas.
“A Woman: Mr. Sprague and Mr. Crumlish have done this. You can’t fight them both. You can lock me up for life. I don’t care.
“Judge Alexander: Officer over there, take care of Mrs. Phelan. Don’t let anything happen to her. Walk her out of the room and give her what she wants and see that she is protected.
“Let’s proceed.
“Mr. Levy; Can we have a recess to calm him down ?
“Judge Alexander: No We will go right on.”
(S.R. 173-175).
At that time the court, by virtue of some off-the-record arrangement between counsel, had examined most if not all of the psychological reports referred to hereinabove. (S.R. 158). While none of these reports might furnish a basis for finding appellant to be unresponsible under the M’Naghten Rules, taken together they certainly cast serious doubt on his competency to participate in the court proceedings on and after October 11, 1965.
It must be conceded that counsel’s petition raising the question of appellant’s competency was neither a model of draftsmanship nor, technically at least, addressed to the correct relief. The proper petition would have been for the appointment of a sanity commission under Section 344 of the Mental Health Act of 1951, P.L. 533, as amended, 50 P.S. § 1224.3 See, e. g., Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955). Nevertheless, throughout the proceedings counsel continued to press the contention that the appellant was not competent to go on with the trial. See, e. g., S.R. 251. Under the circumstances the court came under a serious obligation to consider that contention independently, especially where, as here, counsel were in the conflicting position of pressing that point against their client’s wishes while at the same time attempting to advance an inconsistent position which he wanted advanced.
Throughout the proceedings up to this point the Commonwealth opposed both any continuance and any additional psychiatric examination. Undoubtedly the interest of Jack Lopinson’s attorney in the proceedings (see, e. g., S.R. 182, 240) influenced the Commonwealth position.
The Commonwealth case went forward after appellant’s outburst. It proved the corpus delicti, the recovery of the murder weapons from the Delaware Riv*95er, ballistics tests connecting those weapons with the homicides, appellant’s statement of July 28, 1964, his July 28, 1964, testimony on Lopinson’s habeas corpus case, and his January 29, 1965, testimony at the Lopinson trial. The Commonwealth presented no psychiatric testimony. At the end of its case (S.R. 311) appellant’s counsel renewed his objection to the entire proceeding on the ground of appellant’s present incapacity to participate in the hearing. The court ruled:
“Judge Alexander: We take the position as far as the psychiatrist to examine him for his competency, we overrule your motion and grant you an exception.” (S.R. 313).
At that time there was pending in the Supreme Court of Pennsylvania the ease of Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), which presented the question whether Pennsylvania would abandon its adherence to the M’Naghten Rules for determining criminal responsibility in favor of a Durham, Currens or American Law Institute test. The Supreme Court continued to adhere to the M’Naghten Rules both in Ahearn and in the direct appeal in appellant’s case. Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967). At the degree of guilt hearing, however, counsel vigorously contended for the right to offer psychiatric testimony in support of appellant’s lack of responsibility under a rule of criminal responsibility other than M’Naghten. Counsel conceded that those psychiatrists who had examined appellant would not testify that appellant lacked criminal responsibility in the M’Naghten sense. Counsel made an offer of proof (S.R. 334) to introduce in evidence psychiatric testimony and psychiatric reports from all sources, Commonwealth and defense, to prove that appellant could not have formed the specific intent necessary for first degree murder, but stipulated (S.R. 337) that the offer was not for purposes of proving lack of responsibility in the M’Naghten sense. The court refused to hear any such testimony or to consider these reports on the degree of guilt, even on the issue of the premeditation required to elevate the murders from second to first degree (S.R. 337). The appellant was not put on the stand, no testimony was offered on his behalf, and the degree of guilt hearing concluded. (S. R. 340). Appellant was found guilty of first degree murder. (S.R. 343).
After this decision was announced the court proceeded to consider the penalty. (S.R. 344). The Commonwealth offered no testimony. The defense read into the record the contents of all the psychiatric reports to which it had referred in its unsuccessful offer of proof. (S.R. 345-406). Again appellant was not put on the stand, and no other witnesses, not even members of his family, were called. The court recessed for several days and reconvened on October 19, 1965, to announce the sentence. For the first time in the proceedings appellant was asked if he wanted to say anything, and he said:
“The Defendant: Well, when I came down here at the start of these proceedings, I told you that I was not guilty, and you told me that I was. Then I said that I didn’t want these lawyers here to represent me because I was getting what is known as a kangaroo court. Then by your order they had to stay here and try to represent me. Now I really don’t know what has happened here. I asked these lawyers here to get me a trial by jury.
Now beings as you told me that I got to stand on the guilty plea that I never even gave in the first place, before you even heard any prosecution at all, you already had your mind made up. Now, know what I mean?
And then Sprague, he says that I am supposed to testify at Lopinson’s trial. Right? But he didn’t say that I was shanghaied out of Holmesburg at five o’clock in the morning and held in this City Hall until twelve o’clock at night. And he didn’t say he went to the hospital and had my mother shanghaied out of the hospital if I don’t do what he wants. And then they keep *96me down here under this here threat. So I tell their lies at Lopinson’s trial. So far as those statements I am supposed to have made, I never made them, they are not my statements.
Now I told you that at the beginning of this, and all along you tell me I’m guilty. So now if you say I’m guilty, I’m going to maintain my innocence for the record, and what you can do now is give me the chair and get me out of here.” (S.R. 430-431).
The court then announced the imposition of the death sentence for each murder. (S.R. 432).
Counsel at no time abandoned the contention that appellant was presently incompetent. The court, prior to the conclusion of the degree of guilt hearing, had an off-the-record opportunity to examine the psychiatric reports. These eventually went into evidence on the issue of the sentence. The record makes it quite clear that throughout the case appellant was not cooperating with counsel, and in fact strenuously opposed the course they were pursuing. The psychiatric reports strongly suggest that appellant’s paranoia made him so suspicious even of those who were assigned to help him, that he was unable by reason of mental disease to cooperate in his defense. The record demonstrates objectively a lack of cooperation consistent with such a condition. Despite all this no hearing was held before the imposition of the death sentence to determine his competency. Such a hearing was, in the circumstances disclosed in this record, a due process requirement. “While [appellant’s] demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue.” Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966). The Supreme Court of Pennsylvania dealt with the issue of appellant’s competency as follows:
“Citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), it is argued that if a ‘bona fide doubt’ existed as to Phelan’s competency to stand trial, it was mandatory upon the court to order an independent determination of his sanity. The ruling in Robinson was based upon the requirements of a specific statute of the State of Illinois: Pate v. Robinson, supra, at 385, 86 S.Ct. 836. More importantly, the evidence in this record warrants no such doubt.” Commonwealth v. Phelan, supra at 278, 234 A.2d at 548.
With all deference, the quoted language misconceives both the holding in Pate v. Robinson and the contents of the record in this case. Moreover, the Pennsylvania statute applicable to determination of competency at the time of appellant’s plea and trial was quite similar, procedurally, to the Illinois statute referred to in Pate v. Robinson. Ill.Rev.Stat., c. 38, § 104-2 (1963); People v. Shrake, 25 Ill.2d 141, 182 N.E.2d 754 (1962). Mental Health Act of 1951, P.L. 533, as amended, 50 P.S. § 1224; Commonwealth ex rel. Mulligan v. Smith, 156 Pa.Super. 469, 40 A.2d 701, 703 (1945).
The district court held an evidentiary hearing on the habeas corpus petition filed on appellant’s behalf by counsel. (Appellant refused to sign the petition). That hearing was held “to determine whether [appellant] was competent when he entered the plea of guilty and when he stood trial on the degree of guilt.” 312 F.Supp. 350, 353 (E.D.Pa.1970). Obviously the district court concluded, as we do, that the state court record did not adequately resolve the doubt about appellant’s competency. 28 U.S.C. § 2254(d) (1964); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) . In the evidentiary hearing appellant, over his counsel’s objection, took the stand, insisted that he was competent but that his confessions, testimony, and guilty plea were all coerced, and that he had never authorized his original attorney to enter a guilty plea (H. 153-201). With this testimony in the record the district court ruled that appellant had waived the attorney-client privilege, and directed his original attorney, Mr. Walsh, *97to testify. On the basis of Walsh’s testimony (H. 216-232) as well as that of appellant, the district court concluded that appellant was at all times competent.4
The majority opinion, Part III, relies upon the finding of the district court that Phelan was competent to participate in the degree of guilt hearing. This reliance assumes that the district court properly held an evidentiary hearing. Such a hearing should have been held only if the state court record presented a question of competency and disclosed that there was no full, fair and adequate hearing on that question. 28 U.S.C. § 2254(d) (1964); Townsend v. Sain, supra. Thus it would seem to be common ground to the district court, the majority, and the dissent, that the state court record presented an unresolved question of competency. Yet the majority opinion, Part III, discusses at great length what it refers to as the obfuscation of defendant’s position on the issue of competency. If the state court record presents, as it does, a clear and unresolved issue as to the appellant’s competency, such obfuscation, and all the rest of the majority discussion of the state court record in support of its conclusion is simply irrelevant. An incompetent person by definition is incapable of taking a position or making a waiver. Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966); Taylor v. United States, 282 F.2d 16, 23 (8 Cir. 1960). Reliance on appellant’s obfuscation and confusion of the state court proceedings in support of a conclusion that he was competent to take a position is inconsistent with the majority’s apparent agreement that a habeas corpus evidentiary hearing was required.
Moreover the reference to the confusion caused by defense counsel simultaneously advancing a present competency contention, a criminal responsibility contention, and the contentions which appellant wanted advanced is hardly fair. That confusion was engendered by the repeated refusal of the state court to consider separately the issue of competency. Counsel were from dire necessity put in the position of advancing inconsistent positions. I dispute “the conclusion that Phelan and his counsel were embarked upon a course of action aimed at withdrawal of the guilty pleas, and would not have been content with an examination for any other purpose than to determine competency at the time of the arraignment.” 5 The specific references to the record set forth hereinabove must be excised before such a conclusion may be drawn.
Thus the case turns on the finding by the district court that appellant was competent to participate in the degree of guilt hearing. 312 F.Supp., at 358. The majority sustains that finding because “there is credible expert and lay testimony in the record to support the finding * " * that Phelan was competent at these critical times [and] such finding is not clearly erroneous * * * ” That testimony must, I submit, be analyzed more critically than in Part III of the majority opinion.
First, there was appellant’s own testimony. He took the stand over his counsel’s objection, because to this day he disputes their strongly held belief that he is incompetent. He testified that he wanted only to withdraw his guilty plea and obtain a jury trial. He criticised his original attorney, Mr. Walsh. Because of that criticism the district court reversed an earlier ruling recognizing the attorney-client privilege, and permitted Mr. Walsh to make extensive disclosures of information received from appellant in confidence. 312 F.Supp. at 354 n. 8. *98That testimony would not have been admissible unless appellant was competent to open the door by criticising Mr. Walsh. See Rules of Evidence for the United States District Courts and Magistrates rule 5-03(d) (3) and authorities cited in note (3) p. 84 (Preliminary Draft 1969); ABA Code of Professional Responsibility, Canon 4, Disciplinary Rule 4-101 (c) (4) (1969). He was found to be competent to open the door principally on the basis of Mr. Walsh’s testimony. This rather circular ruling is surprising to me. But assuming its correctness, as the majority apparently does, and assuming further that a habeas corpus evidentiary hearing on competency at a prior time is permitted by Pate v. Robinson, I would hold that the district court finding, based as it is chiefly on the testimony of Mr. Walsh, was clearly erroneous for these reasons:
1. Mr. Walsh had no opportunity to observe the appellant during the critical time when present counsel were attempting to prepare for and participate in the degree of guilt hearing. He had on July 26, 1965 advised the state court that a month previously his relationship with appellant had deteriorated to the extent that he could not give effective representation. (S.R. 12). Thus from at least the end of June he was out of contact with appellant. The degree of guilt hearing took place in October.
2. The district court does not disclose any reason for finding Mr. Walsh’s lay opinion credible while finding the lay opinion of Mr. Carroll, Walsh’s associate counsel “I thought he was hopelessly insane” apparently not credible. (H. 249-250). Both had substantially the same opportunity to observe appellant prior to the time Mr. Walsh was relieved as counsel and there is no finding that Mr. Carroll was a less qualified lay observer than Mr. Walsh. In fact the district court’s heavy reliance upon Mr. Walsh’s lay testimony was highly improper. Cf. Carroll v. Beto, 421 F.2d 1065, 1068 (5 Cir. 1970).
3. Mr. Walsh had in his file two reports of psychiatric examinations both of which indicated paranoid schizophrenia. (S.R. 353-355, 363-365). This diagnosis was entirely consistent with the mistrust of counsel which Mr. Walsh reported to the state court and to the district court.
4. The observation of appellant by the district court at the habeas corpus hearing was no competent indication of his condition at the degree of guilt hearing almost four years earlier. Carroll v. Beto, supra.
5. The only psychiatric testimony presented in the district court on behalf of the Commonwealth was that of Dr. Baldwin Keyes, whose examination of appellant took place over a year before the degree of guilt hearing and for the purpose of determining criminal responsibility under the M’Naghten Rules, not for the purpose of determining competency. (S.R. 382). Psychiatric examinations are not fungible without regard to purpose. Rhay v. White, 385 F.2d 883, 886 (9 Cir. 1967). Dr. Keyes’ examination was not even at a relevant time.
But my position is that we need not and should not consider whether the district court finding was clearly erroneous, since in the circumstances presented by the state court record no evidentiary hearing should have been held. Pate v. Robinson, supra.
A good place to begin a discussion of the effort by the majority to distinguish Pate v. Robinson is the testimony of Dr. Appel in the habeas corpus hearing. He had examined appellant in December of 1964, and he testified that appellant was in his opinion incompetent at the time of his arraignment in October of 1964. (H. 83-96). He testified, further, that he could not give an opinion with reasonable *99medical certainty as to appellant’s condition on the date of the degree of guilt hearing in October of 1965. (H. 86-89). That caution and candor on Dr. Appel’s part illuminates the reason for the underlying premise of Pate v. Robinson that a determination of competency depends upon concurrent observation. Writing for the majority Justice Clark wrote:
“It has been pressed upon us that it would be sufficient for the state court to hold a limited hearing as to Robinson’s mental competence at the time he was tried in 1959. If he were found competent, the judgment against him would stand. But we have previously emphasized the difficulty of retrospectively determining an accused’s competence to stand trial. Dusky v. United States, 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] (1960). The jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record. That Robinson’s hearing would be held six years after the fact aggravates these difficulties.”
The court ordered a new trial, and said:
“If the State elects to retry Robinson, it will of course be open to him to raise the question of his competence to stand trial at the time and to request a special hearing thereon. In the event sufficient doubt exists as to his present competence such a hearing must be held. If found competent to stand trial, Robinson would have the usual defenses available to an accused.” 383 U.S. at 387, 86 S.Ct. at 843.
Justice Harlan, who disagreed with the Court’s conclusion in Pate v. Robinson that the state court record raised a substantial issue of competency, wrote:
“The Court appears to hold that a defendant’s present incompetence may become sufficiently manifest during a trial that it denies him due process for the trial court to fail to conduct a hearing on that question on its own initiative. I do not dissent from this very general proposition, and I agree also that such an error is not ‘waived’ by failure to raise it and that it may entitle the defendant to a new trial without further proof. Waiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers. Since our further premise is that the trial judge should and could have avoided the error, a new trial seems not too drastic an exaction in view of the proof problems arising after a significant lapse of time.” 383 U.S. at 388, 86 S.Ct. at 843 (footnote omitted).
Thus the Supreme Court was unanimously of the view that if a substantial issue of competency appears in the state court record (and on that apparently we all agree in this case) the remedy is a new trial, not an untimely retrospective determination of competency. Just as in Robinson a retroactive determination of competency in a state court proceeding was no due process equivalent to a pretrial determination of competencey in the face of substantial doubt, so also a retrospective determination of competency in the habeas corpus case is no such equivalent. Where, as here, the state court record presents (1) evidence which raises substantial doubt as to a petitioner’s competency to participate in judicial proceedings, and (2) the absence of an evi-dentiary hearing on that issue, the appropriate remedy is to order that those proceedings be held anew, not to hold a retrospective hearing on competence. Rhay v. White, supra; Hansford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920, 925 (1966). But see Lee v. Alabama, 386 F.2d 97 (5 Cir. 1967).
The doubt as to appellant’s competency in my judgment tainted the entire proceedings on October 11, 1965 and thereafter. These proceedings included both the hearing on appellant’s motion to withdraw his guilty plea and the degree of guilt and penalty hearing.
I would reverse the order denying the petition for habeas corpus and remand the case to the district court with directions to issue a writ of habeas corpus *100unless the Commonwealth would within a reasonable time (1) afford to appellant an appropriate hearing as to his present competency to participate in judicial proceedings and, if appellant were found competent at such a hearing (2) hold a new hearing on appellant’s motion to withdraw his guilty plea and, if that motion were denied, (3) hold a new degree of guilt and penalty hearing.
. References to the record in the Pennsylvania proceedings (Exhibits P-1 and P-2 in the habeas corpus case) will be designated (S.R.-). References to the habeas corpus record are designated (H).
. The continuance after the guilty plea had significance beyond sentencing because in Pennsylvania when a defendant enters a plea of guilty to a charge of murder a panel of three judges ordinarily hears the Commonwealth’s evidence and determines if the case constitutes murder in the first degree. If a majority of the judges determines that the crime was first degree murder the sentence shall he either the death penalty or life imprisonment. 18 P.S. § 4701. Commonwealth v. Scoleri, 415 Pa. 218, 202 A.2d 521, 203 A.2d 319 (1964); Commonwealth v. Cole, 384 Pa. 40, 119 A.2d 253 (1956). See Rule 1115, Pa. Rules Crim.Pro., adopted 1968.
. Sanity commissions are presently convened under provisions of the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4408.
. Mr. Carroll, Mr. Walsh’s associate, also testified (H. 249-250):
“Q. What impression did you get of his mental condition at the conclusion of this statement he had given you?
A. I thought that he was hopelessly insane.”
. Phelan, of course, never wanted any competency hearing. If he was incompetent his wishes were irrelevant.