dissenting.
Jermyn’s trial judge stated on the record that “on the facts as I know them and on the evidence in the record, he cannot competently defend himself. I make that finding of fact. The motion is denied____” N.T. August 15, 1985, at 414. The *139ruling is simply too unequivocal to overlook. Thus I cannot join the majority opinion which states that the quotation is taken out of context; it is not an accurate reading of the record; it really means that, given the nature of the defense of insanity, Jermyn was not sophisticated enough to represent himself sufficiently; it is not really a ruling on Jermyn’s competence to be tried. With due respect to the majority’s interpretation, I read the trial judge’s statement as a clear, unequivocal finding that Jermyn was not competent to represent himself.
Jermyn argues correctly that if he was incompetent to represent himself, then he was not competent to stand trial. The standards of competency for self-representation and for standing trial are identical. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995).
I believe that trial counsel’s failure to request a mistrial on grounds of Jermyn’s incompetence to stand trial constitutes ineffective assistance. Although it was not certain that the trial court would have accepted the equivalence of competency for self-representation and for standing trial because Godinez and Starr had not then been decided, a motion for mistrial stood a reasonable probability of success. Certainly, if the issue of the equivalence of competency for self-representation and competency to stand trial had been raised prior to the decisions in Godinez and Starr, a trial court or an appellate court would very likely have found the standards to be identical. It is clear that the holdings in Godinez and Starr were not surprising or unanticipated changes in the law. In any event, a motion for mistrial would not have been a futile act; counsel’s failure to seek a mistrial appears to be an unjustifiable, erroneous oversight in trial tactics. There is no possible justification for the omission which would have been in Jermyn’s best interests. Thus the resulting prejudice is glaringly obvious. Jermyn was entitled to a termination of the trial due to his incompetence to stand trial, but instead, the trial proceeded to a sentence of death. I regard this as a miscarriage of justice sufficient to warrant PCRA relief under *140Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (1993)(proceedings resulting in conviction were so unfair that miscarriage of justice occurred which no civilized society can tolerate).
The voluminous record in this case is replete with evidence of Jermyn’s serious mental illness over a period of decades. Such evidence explains and supports the trial court’s finding that “on the evidence in the record, [Jermyn] cannot competently defend himself.”
I would therefore grant a new trial if indeed Jermyn can be found competent to stand trial.