dissenting:
I cannot join in the Majority’s determination to vacate the judgment of sentence and remand for an evidentiary hearing on a claim of trial counsel’s alleged ineffectiveness. Also, I find it appropriate to address the appellant’s assertion attributing the trial court with the commission of reversible error with regard to a portion of the jury charge.
*534Because the appellant does not challenge the sufficiency of the evidence, I begin my inquiry by observing that the charges filed against the appellant stem from the strangulation and stabbing death of seventeen-year-old Karen Hurwitz.
At the commencement of the jury trial, counsel for the appellant stated in his opening remarks that his job was to defend the appellant for “an act ... he admitted] that he committed”, i.e., “one 17-year-old [the appellant] took the life of another 17-year-old. And nobody [wa]s disputing that.” It was defense counsel’s belief that the appellant “couldn’t control” himself in the early morning hours of October 27, 1989, when the crimes were committed. As counsel vocalized it: A “rage came over [the appellant] ... [and i]t just so happened that ... Karen Hurwitz was there and was the recipient of his rage.” This, argued defense counsel, negated the specific intent necessary to convict his client of first degree murder.
Once the Commonwealth’s case-in-chief had been presented, which depicted a brutal, senseless killing of Ms. Hurwitz, the defense produced the testimony of Frank Marshall, a youth worker at a detention center for juveniles (Shuman Center), who had spoken to the appellant the day after his arrest.
Marshall recalled that the appellant heard voices directing him to kill Ms. Hurwitz, which he carried out by means of strangulation and the repeated stabbing of the victim with a thirty-six-inch “Ninja” sword. When Marshall inquired why the appellant had killed the victim, he was told: “I don’t know”. Additionally, the appellant stated: “Whenever I fe[e]l[ ] that I am going to get into some kind of trouble, I w[ill] put on the Clockwork Orange T-shirt.” 1 The appellant was wearing such a T-shirt on the evening in question, and defense counsel argued that the wearing of the T-shirt and his client's viewing of the movie (which was played for *535the jury at trial) were indicia that the appellant was “out of control” when the killing was committed so as to negative the specific intent needed to convict for murder in the first degree.
Once the jury had been charged, it took less than two hours to find the appellant guilty. Following the denial of post-verdict motions, a life sentence was imposed for the first degree murder conviction, while a consecutive term of seven and one-half to fifteen years imprisonment was ordered on the theft charge.
Two issues are raised by counsel. The first avers that the trial court committed reversible error when it directed the jury that two elements of first degree murder had been established beyond a reasonable doubt. Specifically, with respect to murder of the first degree, the trial court instructed the jury that the prosecution was required to prove three distinct elements: first, the victim was dead; second, the defendant killed the victim; and, third, the defendant did so with a specific intent and with malice. The court went on to observe that:
Obviously, ladies and gentlemen, the first two have been proven beyond a reasonable doubt, I’m sure. There’s no question about those. The one that you really have to consider here is the third element, that the defendant did so, did this killing, with the specific intent to kill and with malice.
N.T. 5/18-21/90 at 224.
It is the appellant’s position that the instruction relieved the prosecution of having to prove every essential element of first degree murder; to-wit: “‘By placing a judicial imprimatur’ on the prosecution’s proof ‘with respect to an element of the offense, the faulty instruction directed a partial verdict for the prosecution, ensuring that the jury would not find every essential element beyond a reasonable doubt.’ ” In other words, the appellant argued that the “ ‘wrong entity judged the defendant guilty,’ thereby rendering the trial fundamentally unfair.” Appellant's Brief at 19. I disagree and take my direction from the United *536States Supreme Court ruling in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
Rose involved a double murder witnessed by the children of one of the victims. The police were told by the children that Stanley Clark had shot their mother and another man.
At trial, one of Clark’s defenses was that of diminished capacity. In its charge to the jury, the trial court instructed on the elements of first- and second-degree murder, the latter of which required proof of malice and was defined as “an intent to do any injury to another____” The trial court then charged the jury:
“All homicides are presumed to be malicious in the absence of evidence , which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable ... doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.”
478 U.S. at 574, 106 S.Ct. at 3104.
Clark was found guilty of first degree murder in the killing of the female and second degree murder for the killing of the male. The state court affirmed, but a federal district court reversed on the ground that the malice instruction violated Clark’s right to have his guilt established beyond a reasonable doubt under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (instruction creating presumption of malice, which shifted the burden of proof of “intent” to the defendant, violates due process).
The Court of Appeals for the Sixth Circuit affirmed, despite substantial evidence of Clark’s guilt, because the erroneous burden-shifting instruction was not harmless error.
On appeal the judgment of the Court of Appeals was vacated and the case was remanded. To justify its actions, the United States Supreme Court wrote:
*537... if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to insure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”
478 U.S. at 579, 106 S.Ct. at 3106 (Citations omitted). Placed in the preceding context, the Court found that the error — an instruction that impermissibly shifted the burden of proof on malice — was not “so basic to a fair trial” that it could never be harmless. Id. at 580.
Even where the defendant contested intent, and a presumption of malice instruction was given, the harmless error standard was appropriate as a tool to assess the claim. The reasoning for adhering to such a formula, in evaluating an instruction challenged as erroneous, was stated as follows:
... our harmless-error cases do not turn on whether the defendant conceded the factual issue on which the error bore. Rather, we have held that “Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.” The question is whether, “on the whole record ... the error ... [is] harmless beyond a reasonable doubt.” See also Chapman [v. State of California] 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705] (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”); Connecticut v. Johnson, 460 U.S. [73] at 97, n. 5, 103 S.Ct. [969] at 983, n. 5 [74 L.Ed.2d 823] (POWELL, J., dissenting) (in cases of Sandstrom error, “the inquiry is whether the evidence was so *538dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption").
478 U.S. at 583,106 S.Ct. at 3109 (Citations omitted; emphasis added).
In applying these principles to the case at bar, I would hold that the appellant received a full opportunity to place into evidence and make argument to support his claim of diminished capacity. Moreover, counsel for the appellant in his opening and closing remarks conceded that his client committed the murder; the prosecution produced the appellant’s written and taped confessions; and the appellant’s own witness (Frank Marshall) recounted how the accused told of the events surrounding the murder.
Apart from the challenged first degree murder charge, the jury in this case was instructed clearly that it had to find the appellant guilty beyond a reasonable doubt as to every element of first-, second- and third-degree murder. When placed in the proper perspective, the erroneous first degree murder instruction does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction. 478 U.S. at 579-580, 106 S.Ct. at 3106-07.
My inquiry has focused on whether the evidence was so dispositive of the first two elements of the three necessary to establish murder in the first degree (i.e., death of victim and the defendant’s admission to the killing) that it can be said beyond a reasonable doubt that the jury would have found it unnecessary to rely on the erroneous instruction. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Thus, the fact that the appellant “admitted” (through his counsel’s opening and closing remarks, written and taped confessions and a defense witness) to the first two elements necessary to establish the crime of murder in the first degree (death and complicity), disposition under the harmless error rule is proper and buttresses my conclusion that no error was committed by the trial court. Id.
*539The second issue, raised by counsel unassociated with prior counsel, claims that trial counsel was ineffective in failing to produce evidence to support a diminished capacity defense, e.g., two psychiatrists (Drs. Yallano and Wettstein) would have testified to his alleged manic-depressive condition.2 Although trial counsel sought a continuance to produce Dr. Vallano, the trial court denied the request on the ground that trial counsel “had plenty of time to prepare” the case, and his eleventh hour request for a postponement would not be granted.
It is undisputed that:
[P]sychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent.
Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344, 1347 (1982). As for whether trial counsel was ineffective in failing to produce psychiatric evidence to support the appellant’s diminished capacity defense, we are required first to determine whether the claim is of arguable merit. If so, we need to inquire whether trial counsel may have had some reasonable basis to forego the underlying claim. And, having satisfied the first two prongs, we are then required to determine if the ineffectiveness of counsel prejudiced the defendant. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
No one disputes that trial counsel’s failure to produce “available” psychiatric and psychological testimony, where the only issue at trial is of a defendant’s state of mind, has been held to have no reasonable basis designed to effectu*540ate a client’s best interest, and, consequently, warrants a new trial to remedy the nonfeasance. See Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979). However, I conclude that trial counsel’s failure to produce Dr. Robert Wettstein is not indicative of ineffectiveness.
Even the appellant’s counsel notes that Dr. Wettstein “has [only] now examined” the appellant and reviewed his psychiatric history to conclude that he suffers from manic-depressive illness, i.e., after the trial had concluded. This post hac presentment of Dr. Wettstein excludes him and his diagnosis from the sphere of “available” evidence accessible to counsel prior to trial. Therefore, trial counsel cannot be labelled ineffective. Id.
As for Dr. Vallano’s proffered diagnosis of the appellant’s bipolar disorder, I would note that this evaluation was made while the appellant was awaiting trial (on April 20, 1990) at the Shuman Center. I agree with the Commonwealth that the appellant’s offer of proof nowhere represents that Dr. Vallano would have testified that, “within a reasonable degree of medical certainty”, the appellant on the day and time of the criminal incident was suffering from a bipolar episode which impaired his ability to kill Karen Hurwitz. See Appendix C attached to the Appellant’s Brief; Commonwealth’s Brief at 16; cf. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).
For the reasons herein stated, I would affirm the judgment of sentence.
. "A Clockwork Orange” was a movie directed by Stanley Kubrick in which a group of teenagers, for no apparent reason, committed brutal crimes against people.
. All of the witnesses who had been in the appellant’s company immediately preceding or subsequent to the killing described him as appearing "normal’’ and exhibiting no signs reflective of a mental disorder. See N.T. 6/18-21/90 at 64 (Derek Eugene Scott, III); id. at 74 (Rajeev Duckett); id at 99 (Katherine A. Berlin); id. at 103, 106-107 (Marissa Rhodes); id at 155-156 (Detective Terrence P. O’Leary).