dissenting.
I agree with the majority that this Court must remand the record for further proceedings on appellant’s competency claim. But I disagree that appellant has waived his claim that trial counsel provided appellant constitutionally ineffective assistance. It is true that appellant did not raise his claim of ineffective assistance until the hearing on his petition for post-conviction relief. But the Commonwealth then took no objection to appellant’s presentation of this claim, and does not now. Indeed, the PCHA court decided appellant’s claim on the merits. There is no reason for this Court now sua sponte to raise what all interested parties have viewed as a non-prejudicial technical defect. See 4 Standard Pennsylvania Practice Ch. 17, § 13, pp. 494 — 95 (1955) (“[i]t is too late after a trial on the merits to raise the objection of variance, particularly after verdict and judgment”).
Turning to the merits, I am of the view that trial counsel did not provide appellant constitutionally effective assistance. Although trial counsel knew that appellant is emo*499tionally unstable with poor tolerance to stress and weak impulse control, counsel failed to challenge the admissibility of an inculpatory statement which the police obtained. Instead, counsel stipulated at trial to the voluntariness of both the statement and appellant’s waiver of rights under Miranda. Counsel thought it best to utilize appellant’s weak impulse control only to defend against a charge of murder of the first degree.1
The dispositive question on this appeal is whether counsel acted reasonably in choosing not to challenge the admissibility of appellant’s inculpatory statement. In view of appellant’s weak impulse control, the answer to this question is clear. Appellant’s weak impulse control renders the voluntariness of appellant’s statement highly suspect. As this Court has observed,
“Due process prohibits the evidentiary use of a criminal defendant’s incriminating statements unless it is first established that those statements were ‘the product of a rational intellect and a free will.’ Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 (1963). The determination of whether or not such evidence meets these required standards depends on a consideration of the ‘totality of the circumstances.’ Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 360 (1966); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274 (1960); Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208 (1944); and Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1966). And *500the accused’s physical and mental condition must be considered, for sickness or ill health may well influence his will to resist and make him prone to overbearing and improper questioning. Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541 (1961). For the inquiry as to the voluntariness of a defendant’s incriminating statements cannot be narrowed to a consideration of whether or not the police resorted to physical abuse in procuring them; equally relevant on the issue of voluntariness is the determination of whether or not the accused’s will was overborne at the time he made the statements. Reck v. Pate, supra.”
Commonwealth v. Holton, 432 Pa. 11, 17, 247 A.2d 228, 231 (1968). Given this established test, there was no reasonable basis for counsel’s failure to seek suppression of appellant’s statement. Appellant’s weak impulse control also casts the same degree of doubt on the voluntariness of appellant’s waiver of rights under Miranda. See e. g., Commonwealth v. O’Bryant, 479 Pa. 534, 388 A.2d 1059 (1978); see generally Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938).
This Court should, therefore, remand to permit these issues to be fully litigated.
. Pursuant to counsel’s selected line of defense, counsel without objection permitted a Commonwealth psychiatrist to examine appellant outside counsel’s presence. But had counsel utilized appellant’s weak impulse control first as a basis for challenging the voluntariness of appellant’s inculpatory statement or the voluntariness of appellant’s waiver of rights under Miranda, and prevailed, surely he could not, by any standard of effective assistance, still submit appellant to unilateral Commonwealth psychiatric examination. The only other Commonwealth evidence was circumstantial and the Commonwealth does not now claim that this evidence links appellant to the killing. To submit appellant to Commonwealth psychiatric examination in these circumstances would not have served to promote appellant’s best interests, but rather the Commonwealth’s case.