United States of America Ex Rel. Frank Phelan v. Joseph R. Brierley, Warden, State Correctional Institution, Philadelphia, Pennsylvania

453 F.2d 73, 1971 U.S. App. LEXIS 7416

Opinions

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this ease, petitioner, a state prisoner attacks his convictions for first-degree murder and conspiracy to murder, principally on the ground that he was mentally incompetent¹ and thereby unable to assist counsel during the arraignment and the degree of guilt hearing which followed the entry of his plea of guilty to murder generally. In addition, Phelan alleges that the trial court denied him effective assistance of counsel when it rejected motions to hire investigators and experts, and to provide for a mental examination; that the trial court did not make an adequate inquiry as to the voluntariness of the guilty plea; and that the trial court erred in refusing to depart from the McNaughten test of criminal responsibility.

I

During the early morning hours of June 19, 1964, Judith Lopinson and Joseph Malito were shot to death in the basement of Dante’s Restaurant.² Petitioner was arrested for this crime on July 26, 1964. Two days later, he confessed, describing in gruesome detail how he and Jack Lopinson carefully planned for over a period of three weeks and then perpetrated the brutal and bloody murders.

Footnotes

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2a He then testified at a state habeas corpus proceeding brought by Lopinson, who had also been arrested and charged with murder.³ Two weeks later, Phelan retained an experienced member of the criminal bar, John Patrick Walsh, Esquire, to represent him.

Several eminent psychiatrists examined Phelan at various times. On August 7, 1964, he was examined by Drs. Torney and Hayes, of the Neuropsychiatric Department of the Quarter Sessions Court; on August 10, 1964, he was examined on behalf of the Commonwealth by Dr. Keyes; on September 24 and 25, 1964, Phelan was examined by Drs. Anderson and Cole, at the request of prison officials; and on October 24, 1964, only two days prior to the arraignment, an examination was conducted by Drs. Leopold and Spoont, who were retained by Mr. Walsh. Phelan was arraigned on indictments for murder and conspiracy to commit murder on October 26, 1964, and after an extensive inquiry into the voluntariness of his action, he entered guilty pleas to murder generally and to the conspiracy charge.

Following the guilty pleas, and in accordance with Pennsylvania law, a three-judge court was convened to determine Phelan’s degree of guilt. That court was composed of Judge Alexander, Judge Sloan, and Judge, now Justice, Barbieri. The three-judge court ruled on all of the pre-trial motions. On December 24, 1964, Phelan was again examined by a psychiatrist, Dr. Appel, at Mr. Walsh’s request. In July, 1965, Phelan prepared and submitted a request that his counsel be discharged and that new counsel be appointed.⁴ Shortly thereafter, attorney Walsh petitioned to withdraw as counsel on the ground that the relationship between himself and Phelan had deteriorated to the point where Walsh could no longer effectively represent Phelan. This petition was granted on July 27, 1965. On the same day, in the presence of the Court, Phelan personally filled out the appropriate forms for the appointment of new counsel. And on August 2nd, new counsel was appointed.⁵

Soon after appointment, Phelan’s counsel presented various motions to the trial court, including motions for authorization to hire an investigator, for the production of various records, and to withdraw the guilty pleas. The motions for the production of records were agreed to by the district attorney; the other motions were renewed on October 11, 1965, the date scheduled for the trial on the question of the degree of guilt. Although the trial court ruled that it would receive relevant testimony in regard to the withdrawal of Phelan’s guilty pleas, none was presented, and the motions were denied. An appeal was taken to the Pennsylvania Supreme Court, which quashed the appeal, per curiam. (No. 109, Oct. 11, 1965).⁶

On October 13, 1965, the day the degree of guilt hearing was held, counsel again moved to withdraw the guilty pleas, this time because of “newly discovered evidence” that Phelan finally learned that he would not be entitled to a jury trial and a defense. The motion was denied. At one point, Judge Alexander noted that “we think the various motions suggested undoubtedly by your client who is taking a very alert part in these proceedings, does attempt to play fast and loose with the Court.” Motions were also made for the authorization to retain a psychiatrist to determine Phelan’s criminal responsibility, his competency at the time of the arraignment, and his competency to participate in the degree of guilt hearing. The arguments then became quite confusing. It is significant that when Judge Alexander explicitly brought to Mr. Levy’s attention that the court had already decided the question of an examination to determine competency to stand trial, partially on the basis that Mr. Levy specifically declined to ask for such examination, Mr. Levy stated he meant that he did desire the examination for that purpose, and that if he said otherwise, then “I was suffering from a mental aberration.” The court indicated that it had been expecting receipt of the report of the psychiatric examination conducted by the defense, but counsel had failed to have it delivered. Judge Sloane particularly questioned the defense regarding Phelan’s ability to participate. Mr. Levy indicated his main concern was with the McNaughten Rule, and his efforts to withdraw the guilty pleas:

“Judge Sloane: That is No. 1. No. 2 is are you in this petition for a mental examination of Mr. Phelan asking that permission in order to determine whether or not your plea will be not guilty by reason of insanity?

“Mr. Levy: That is the second barrel. The first one is that he is not guilty at all, but I can’t use that, if the Court pleases, until we get rid of the plea of guilty. * * * ”

The court then considered Phelan’s competency to stand trial, as distinguished from Phelan’s criminal responsibility.

“Judge Sloane: Mr. Levy, I refrain from being a prophet and take the law as it is, and there are two elements of it, one is the Mental Health Act of 1951, as to Mr. Phelan’s ability to consult with counsel and prepare his defense, that is one thing. The other one is McNaughten.

“Mr. Levy: We will stand on McNaughten as far as his condition is today.

“Judge Alexander: May I categorically ask you, you take the position that he is in a position to stand this hearing and trial now?

“Mr. Levy: That he is not.

“Judge Alexander: On the ground that he did not know the difference between right and wrong ?

“Mr. Levy: Right now.

“Judge Alexander: He did not know then and he does not know now?

“Mr. Levy: No, we are not talking about then; we are talking about now.”

“Mr. Sprague: * * * The issue right now, if we are talking about this man’s competency, isn’t even Mc-Naughten. That has nothing to do with the tests that exist for a man’s mental condition for purposes of going on with the proceedings. * * * ”

The court overruled all of the petitions. Another petition for an investigator was then filed, discussed and granted. The trial court examined the psychiatric reports, heard the Commonwealth’s case,6a refused to hear psychiatric testimony or consider psychiatric reports going to criminal responsibility —counsel had conceded that all of the psychiatrists agreed Phelan was criminally responsible under the McNaughten test — and again overruled the defense motion for psychiatric examination for competency to participate in the proceedings.

On October 15, a further hearing was conducted to determine the degree of guilt, at which Phelan’s attorneys attempted to introduce medical reports and testimony on the issue of responsibility. Prior to the hearing, defense counsel read into the record his recollection of a conference between himself and the court in chambers. Counsel’s recitation was interrupted by Judge Sloane, who stated: “My accurate memory is that I would allow a psychiatrist if the question were McNaughten or if the question were the inability of the defendant to consult with counsel or to form the judgment that he usually can form in going ahead with his defense. * * * That is why I am ready this morning to hear what the offer of proof is as to a psychiatrist.” (emphasis added).

Following lengthy discussions, the following stipulation was introduced into the record:

“Mr. Levy: * * * It is stipulated and agreed by Abraham J. Brem Levy and John A. Papóla, attorneys for defendant Frank Phelan, and Richard A. Sprague, Assistant District Attorney, counsel for the Commonwealth that the defense will offer evidence from psychiatrists. Reports from all available sources at this time are attached to this stipulation, both from the prosecution and from the defense, to prove that the defendant Frank Phelan could not and was not capable of forming the specific intent necessary to commit murder in the first degree and that his mental condition would prohibit him from being able to form the necessary mens rea to commit murder in the first degree, that said psychiatrists would be asked to answer the following questions:

‘Are you aware of the fact that the defendant is charged with commission of the crimes of having feloniously, wilfully and with malice aforethought killed and murdered two people, which indicates that he indulged in certain acts with a certain contemporaneous frame of mind? Doctor, based on your examination’—

“Mr. Sprague: I take it what you are saying now, these are the questions you would propound to the psychiatrist in line with this offer of proof.

“Mr. Levy: Yes.

‘Doctor, based on your examination and report, what is your opinion as to whether the defendant Frank Phelan is psychotic?

‘Doctor, explain to the Court what you mean by “psychotic”.

‘Doctor, would you say from your examination and report that this defendant is suffering from a mental disease or defect or illness ?

‘Doctor, would you say from your examination and report that this mental defect, disease or illness was a causal connection or related to the act or crime for which the defendant stands accused?

‘Doctor, from your examination and report would you say that at the time of committing the prohibited act or acts the defendant as a result of mental disease or defect lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated?’

“Judge Sloane: The first one is Durham and this one is Curran [sic] ?

“Mr. Levy: Yes. We wrote it so it would exactly reflect Durham and Cur-ren, sir.”

When the district attorney’s objection was sustained because the purpose of the testimony was, in effect, to ask the court to overrule McNaughten and to adopt the Curren and Durham test, counsel declined to offer other evidence on the issue of intent bearing on the degree of guilt, although the court indicated that such evidence would be accepted for that purpose.⁷ Phelan was then pronounced guilty of two counts of first degree murder and one count of conspiracy to murder. Thereafter, all of the psychiatric reports were read into the record on the issue of mitigation of the sentence. Court was adjourned until October 19th, when the death sentence was imposed.

The judgment of the trial court was appealed to the Pennsylvania Supreme Court, which affirmed the convictions. Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967). Six major issues were considered by that court: (1) the right to an investigator, (2) the adequacy of the arraignment, (3) the withdrawal of the guilty pleas, (4) the requested psychiatric examinations, (5) inadmissibility of evidence as to responsibility, and (6) the refusal to grant a continuance.

The Supreme Court of Pennsylvania recognized the right of every indigent to the effective assistance of counsel and that for counsel to be effective adequate investigation is often necessary. However, the court held that the denial of the motion to provide an investigator did not in this case violate the United States Constitution. It based its holding on the following factors: the purpose of the investigation was to determine if improper means (including drugs) were used to elicit the confession; Phelan’s denial of the administration of any drugs; the complete access given counsel to all court files, statements, and medical records; and the lack of any claim of coercion or involuntariness.

The Supreme Court considered the arraignment procedure in detail. The primary objection by counsel was that the bills of indictment had not been read into the record, although the record did indicate that after an extensive colloquy with court and counsel,⁸ Phelan was arraigned. However, based on the record and the trial judge’s statement that he recalled the reading of the bills, the Supreme Court ruled that all of the proper procedures had been followed and that all of the basic requirements for a valid arraignment had been met.⁹

Following that discussion, the Supreme Court ruled on the denial of the motion to withdraw the pleas. It noted that the burden of proving that he did not understand the nature and effect of the guilty pleas is on the defendant, and held that he had not met that burden because he made no attempt to prove his allegations and because he never disclosed to the court the factual nature of his after-discovered evidence. Factors militating against a finding of abuse of discretion by the trial court were Phelan’s manifestations of comprehension at the time of the plea, the presence of competent counsel at the entry of the plea who never suggested that defendant did not understand the nature and effect of the pleas, the lapse of nearly a year before the claim of mental incompetence was raised, the spontaneous nature of the first confession, and the two voluntary appearances in court where Phelan admitted, under oath, that he committed the killings.

The denial of the motions for psychiatric examination was also affirmed. With regard to the examination to determine criminal responsibility and competency at the arraignment, the Supreme Court noted that defense counsel at the time of the arraignment had reports of examinations of a number of psychiatrists, some of whom had examined Phelan at the request of former counsel, that all the reports indicated that Phelan was responsible under the McNaughten rule, and that one of the reports was dated October 24, 1964, only two days prior to the entry of the pleas. The Supreme Court also took cognizance of defense counsel’s disavowal at trial of any challenge to Phelan’s competency to participate in the trial, and that the panel of judges expressed willingness to hear such evidence if it were deemed necessary.

Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815 (1966), was distinguished on two grounds: That the holding there was based on the requirement of an Illinois statute and “[m]ore importantly, the evidence in this record warrants no such [bona fide] doubt [as to competency].” 427 Pa. at 278, 234 A. 2d at 548.

The Pennsylvania Supreme Court next held, on the basis of Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), that the trial court did not commit error in refusing to admit evidence which, under the McNaughten rule, was not relevant to the issues of criminal responsibility or degree of guilt. Finally, the court ruled that the trial court had not abused its discretion in refusing a continuance of the hearings on October 11, 1965.

Phelan’s counsel petitioned for rehearing, and after the petition was denied in November, 1967, petitioned the United States Supreme Court for a writ of cer-tiorari. That petition was denied in May, 1968. Phelan v. Pennsylvania, 391 U.S. 920, 88 S.Ct. 1803, 20 L.Ed.2d 657.

Four months after the writ of certio-rari was denied, Phelan’s attorneys petitioned the district court for a writ of habeas corpus. Judge Luongo, out of an abundance of caution, scheduled hearings during September, 1969, and extensive testimony was taken. Phelan’s evidence included his own testimony, that of Drs. Leopold, Appel and Keyes, and that of Mr. Papóla. The Commonwealth produced Mr. Walsh and John Rogers Carroll, Esquire, Walsh’s associate at the time of the trial. In addition, the psychiatric report of Dr. Sadoff, who examined Phelan at his attorney’s request on September 29, 1969, was made a part of the record. Essentially, the same issues were litigated in the federal forum as in the state proceedings: Phelan’s competence, denial of effective assistance of counsel,¹⁰ arraignment and the McNaughten rule. In addition Phelan’s competence to participate in the habeas proceedings was severed.10a

In May, 1970, the district court filed its opinion denying the petition. United States ex rel. Phelan v. Brierley, 312 F.Supp. 350 (E.D.Pa.). Prior to discussing the legal issues, the district court reviewed the factual background of the case, and outlined the contentions asserted in the petition.

The first issue considered by the district court was Phelan’s competence to participate in the state proceedings. On this issue, the court considered the testimony of Phelan, one of his present attorneys, both of his previous attorneys, and three of the physicians who had examined and reported on defendant in 1964. On the basis of this evidence, much of which was available during the degree of guilt hearing, the district court found as a fact that Phelan was “competent to understand, on a rational and factual level, the nature of the proceedings [arraignment and trial] against him, and to consult with counsel.” 312 F.Supp. at 353.¹¹

The district court next discussed Phelan’s allegation that he was denied the effective assistance of counsel on the basis that the trial court refused to allow him to withdraw his pleas of guilty, thereby preventing counsel from defending on the merits. This claim was rejected on the ground that the right to withdraw a plea is not absolute, and since counsel did not produce the available evidence eventually produced at the habeas hearing, the action of the trial court was neither arbitrary nor capricious. Therefore, the restricted scope of the defense did not result in inadequate assistance of counsel. The court also ruled that the refusal to grant funds to hire an investigator and a psychiatrist, and to grant a continuance did not violate Phelan’s constitutional rights.¹²

Judge Luongo then considered Phelan’s contention that the lack of a verbatim transcript of the arraignment vitiated that proceeding by establishing that the indictment was not read and that Phelan did not plead guilty thereto.¹³ Counsel asserted that reviewing courts could not “impeach” the transcript by either assumptions of regularity or extrinsic evidence. The district court, being bound by the ruling of the Pennsylvania Supreme Court, found no merit to Phelan’s claim that his rights were violated by an invalid arraignment.¹⁴

The fourth point disposed of by the district court’s opinion was the argument that the MeNaughten test of criminal responsibility violates due process of law.¹⁵ The court reasoned that “[d]ue process does not require that Pennsylvania abandon the M’Naghten rules in favor of any particular federal standard of criminal responsibility” for several reasons: (1) the United States Supreme Court in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), refused to impose any other standards upon the states; (2) the Durham¹⁶ rule was still subject to criticism; (3) the majority of jurisdictions still retained Me-Naughten as the appropriate test; and (4) the present state of scientific knowledge did not dictate a new rule.

The final ruling of the district court, based on a psychiatric examination conducted shortly after the habeas hearing, held that Phelan was competent to participate in the habeas corpus proceedings. Significantly, that holding is not under attack here.

Following the decision of the district court, Phelan’s attorneys appealed the denial of the petition to this Court. On March 8, 1971, the panel which heard the argument reversed the order of the district court unless the Commonwealth would grant Phelan a hearing as to present competency, a new hearing on the withdrawal of the guilty plea, and if that motion be denied, a new degree of guilt and penalty hearing. The Commonwealth petitioned for rehearing, and on April 6, 1971, the opinion and order of March 8th were vacated. Subsequently, the case was re-argued to the Court en banc. We now affirm the order of the district court.

II

Appellant’s first contention here is that he was denied effective assistance of counsel and due process of law when the trial court denied his various petitions and motions for leave to hire special investigators, leave to hire psychiatric experts, for continuances, for mental examination, and for leave to change his plea from guilty to not guilty.

Most of these matters have been exhaustively considered on direct appeal by the Pennsylvania Supreme Court and by the district court in the habeas proceeding, and need not be expounded upon at length here. The Pennsylvania statute authorizing appointed counsel to petition for leave to hire an investigator or expert assistants, is addressed to the discretion of the court, which is to approve the request only if “counsel shall sustain their request by evidence satisfactory to the court * * * ” 19 P.S. § 784 (1964). In view of the information available to defense counsel at the time their motions were presented, including Phelan’s testimony in the Lopinson case where he was cross-examined as to his treatment by the police and prison officials, Phelan’s prison medical records, Phelan’s statements to the police, and the reports of Drs. Leopold and Appel who examined Phelan at the request of his prior defense counsel, we agree with the district court that Phelan’s rights were not violated by the trial court’s rulings on these requests for investigators, psychiatrists, and a continuance.

Phelan’s contention that the trial court abused its discretion in not allowing the withdrawal of the guilty pleas is similarly without merit. The basis for the withdrawal is that it was not until a year after the pleas were entered that Phelan learned he would not receive a jury trial. Rule 320 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix provides that “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” And, the Pennsylvania Supreme Court has held that a trial court had not abused its discretion in refusing to allow a murder defendant to withdraw his plea of guilty where the plea was entered voluntarily and intelligently and where the defendant had been represented by counsel. Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970). See also, Commonwealth v. Scoleri, 415 Pa. 218, 202 A.2d 521, 203 A.2d 319 (1964). Federal law, interpreting a similar rule of federal criminal procedure is not to the contrary. United States v. DeCavalcante, 449 F.2d 139 (3d Cir. 1971); United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966). At the time the pleas were entered, Phelan was represented by one of Philadelphia’s most competent defense attorneys. It was on his advice that Phelan decided to plead guilty. The trial court and the prosecutor examined Phelan at length on the issues of voluntariness, consequences, and knowledgeability of the pleas. The district court found as a fact that counsel explained to Phelan the “problems with a jury trial, the results and possible consequences of pleading guilty.” 312 F.Supp. at 354 (footnote omitted). There is no claim that the attorney who was counsel at the time of the guilty plea rendered incompetent advice, or performed his duties with less than normal competence. Consequently, we believe that Phelan has not met the burden of proving his pleas were invalid, United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970) and we cannot conclude that the state trial court abused its discretion in denying the motions to withdraw the pleas.

III

Phelan next argues that he was mentally incompetent when he pleaded guilty and when he participated in the degree of guilt hearing, and that as a result of mental illness he was not criminally responsible for the slayings. He contends, therefore, that the trial court was required to hold an evidentiary hearing as to his competence, and that his conviction violates due process.

If Phelan were incompetent at the times in question, then we would be bound to reverse the district court and order that the writ of habeas corpus issue unless a new trial be held. However, the district court found that Phelan was competent at the time of the pleas and at the time of the degree of guilt hearing, and this finding must be affirmed unless it is clearly erroneous or unless the district court erred in interpreting Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), when it declined to issue the writ and order a new hearing on competency.

In Pate v. Robinson, as in this case, there was a collateral attack on a state conviction for murder. Although Robinson denied killing the victim, his court-appointed counsel claimed that Robinson was not guilty because he was insane at the time of the shooting and was incompetent to stand trial. He was convicted, and the judgment was affirmed by the Supreme Court of Illinois, on the grounds that the evidence failed to raise a sufficient doubt as to competency to stand trial, thereby relieving the trial court of its obligation to conduct a hearing on its own motion, and that the evidence did not raise a reasonable doubt as to sanity at the time of the offense.¹⁷ The federal district court dismissed the ha-beas corpus petition, but the court of appeals reversed.

At Robinson’s trial, four witnesses testified as to his long history of “disturbed behavior” and that they were of the opinion he was insane. The evidence included medical records of state and county hospitals in which he had been a patient. The testimony related violent episodes of erratic behavior, and described outbursts at his mother’s house resulting in damage to furniture, an incident at an aunt’s house during which Robinson stated that someone was trying to kill him, fights with his wife during which he tried to incinerate her clothing, the shooting of his son, his subsequent attempted suicide, and the killing for which he was tried.17a In rebuttal, the state introduced only a stipulation that a physician would testify that Robinson knew the nature of the charges against him and could cooperate with counsel. The court refused to allow the state to introduce testimony by the doctor on the issue of insanity. The United States Supreme Court held that Robinson did not deliberately waive the defense of competency to stand trial by failing to demand a sanity hearing, that the evidence presented raised a bona fide doubt¹⁸ as to Robinson’s competency, and that under Illinois statutory and case law the trial judge was required under such circumstances to impanel a jury and hold a sanity hearing on his own motion.¹⁹

There is no doubt that a conviction of an accused person while he is mentally incompetent violates due process of law, and that state procedures must be adequate to protect against such violation. See Pate v. Robinson, supra. But Phelan’s case is distinguishable from Pate v. Robinson on a number of grounds other than the statutory distinction relied on by the Pennsylvania Supreme Court and referred to in footnote 19, supra.

In Pate v. Robinson, counsel merely neglected to demand a sanity hearing, although sanity was the central and indeed the sole issue in that case. Here, however, although counsel presented inarticulate requests for such hearing for various purposes, there was an obfuscation of defendant’s position when he constantly shifted his emphasis from ground to ground.¹⁹ It is clear from the record that defendant’s primary objective was to secure permission to withdraw the guilty pleas. At the time the requests were filed, the defense was already in possession of several psychiatric reports specifically exploring criminal responsibility and competency at the time of the arraignment. After the petition to withdraw the guilty pleas was denied and the appeal quashed, defendant moved again for permission to retain psychiatrists for inquiry into “[w]hy he is alleged to have pleaded guilty. * * * ” This intention was manifested several times, and even though Judge Alexander specifically asked if the examination would go to present mental condition, counsel replied: “No, at the time he pleaded.” On October 13, 1965, defense counsel again equivocated as to the purpose of the examinations requested. In overruling the motion, Judge Alexander noted that he would order the appointment of a psychiatrist if Phelan’s capacity to participate in the degree of guilt hearing became doubtful. Judge Sloane, in an off-the-record conference later read into the record, stated that he would allow the appointment of a psychiatrist for this purpose. Although counsel was allowed to place on the record an offer of proof with regard to psychiatric testimony, and such offer and proposed questions were stated for the record, neither the offer of proof nor the questions were directed toward the issue of capacity to participate in the degree of guilt hearings. Indeed, a reading of the entire record reinforces the conclusion that Phel-an 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. Phelan’s apparent conflict with his counsel reflected his personal approach toward achieving this common goal.

Pate v. Robinson required that a sanity hearing be conducted “[w]here the evidence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial * * * ” 383 U.S. at 385, 86 S.Ct. at 842. The evidence before the court there consisted of uncontradicted testimony of a number of lay witnesses, eight-year-old hospital records, and a stipulation as to part of the testimony of one psychiatrist. Here, however, there was no affirmative testimony as to Phel-an’s incompetence, before the state trial court, although that court indicated on several occasions it would receive such evidence.

More importantly, in addition to viewing Phelan’s participation in his own defense, the trial court had before it the reports of Drs. Leopold, Appel, Anderson, Cole, Tornay, Keyes, Torney and Hayes. These reports not only assessed Phelan’s medical, psychiatric and neurological conditions, but also discussed his intelligence, prior history, family back ground and societal orientation. At lea one of the reports unequivocally stated that Phelan is “competent to confer with counsel in the preparation of his defense”; and not one report stated that he was incompetent to proceed. No evidence which would indicate that Phelan’s mental condition had changed between the date of the examinations and the date of the trial was introduced. No real attempt was made to secure a hearing on the issue of capacity to proceed or to empanel a lunacy commission under the Mental Health Act of 1951. When the Commonwealth closed its case, Phelan’s counsel declined to produce any evidence going to his ability to stand trial. It is clear that the quantity and quality of the evidence presented here differed substantially from that introduced in Pate v. Robinson. It was not on the basis of just one report, but on the comprehensiveness of the evidence that the Pennsylvania Supreme Court concluded that no bona fide doubt was warranted. And certainly such conclusion is not unreasonable. See United States ex rel. Evans v. LaVallee, 446 F.2d 782 (2d Cir. 1971).

With regard to the district court’s order, Phelan argues that it erred when it found as a fact “that Phelan was fully competent to understand the nature of the proceedings against him and to consult with counsel both at the time of the arraignment in October, 1964, and at the time of the trial in October, 1965.” It is contended that the district court should have issued the writ unless the state should hold a competency hearing and retry Phelan, should he be found competent. Similar relief was granted in Pate v. Robinson, but there such a course was required, once it was determined that the issue of competency had not and could not be properly resolved, because of the barren state of the record in that case. It would have been difficult for psychiatrists in 1966, when the Supreme Court issued its mandate, to have evaluated Robinson’s mental condition in 1959, the date of the trial, despite the conclusory testimony of lay witnesses, because Robinson had not testified, and because no trained psychiatrist had observed Robinson during the period of alleged insanity. See Crail v. United States, 430 F.2d 459, 461 (10th Cir. 1970). In Phelan’s case, however, the record is replete with expert testimony based upon psychiatric examinations conducted contemporaneously with the events in question during the period of alleged incompetence. It was on the same testimony and evidence, not the lack thereof, that Phelan’s counsel grounded his prayer for federal relief. The district court had the benefit of observing Phelan throughout the entirety of the habeas proceeding, including the rendition of his testimony in his own behalf. In addition, Attorney Walsh testified as to his observations during the period of his representation of Phelan. And after Phelan waived the attorney-client privilege, by testifying as to what he had told Mr. Walsh, Mr. Walsh further testified that Phelan had admitted lying to at least one of the examining physicians about having hallucinations, causing that physician to diagnose Phelan’s mental condition erroneously as schizophrenia. These facts clearly distinguish this case from Pate v. Robinson, and there is nothing in that case which indicates that the relief which obtained there is compelled here. Therefore, it was not error for the district court to determine Phelan’s mental condition when the pleas were entered or when the degree of guilt hearing was held. Because there is credible expert and lay testimony in the record to support the factual finding of the district court that Phelan was competent at these critical times,19b such finding is not clearly erroneous and may not be disturbed.

In this regard, one other factor is worthy of mention. Shortly after the habeas hearing, a psychiatric examination of Phelan was conducted by Dr. Robert Sadoff at the request of Phelan’s counsel. The report of that examination was made a matter of record. On the basis of it, as well as Phelan’s performance during the habeas proceedings, the district court found as a fact that Phelan was competent to participate in such proceedings. That finding was not contested on appeal, and we therefore treat it as correct. In any event, it cannot be considered clearly erroneous because it is supported by sufficient evidence in the record. If Phelan was competent to participate in the habeas hearing, he would be competent to participate in any further state proceedings which might be held, unless he can demonstrate that his mental condition has changed significantly since the date of Dr. Sadoff’s examination.

IV

Phelan’s final arguments center around the issue of his criminal responsibility for the offenses for which he was prosecuted. In particular, he argues that he was denied due process when the trial court held that the McNaughten rule was the sole test for determining criminal responsibility in Pennsylvania, and refused to admit psychiatric testimony as to responsibility and mens rea not relevant to that standard, but relevant to some other standard. He further argues that the Supreme Court of Pennsylvania in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), has recognized that the Third Circuit Court of Appeals is “for all practical purposes, the ultimate forum in Pennsylvania,” and therefore, the Pennsylvania courts are obligated to follow the test of United States v. Currens, 290 F.2d 751 (1961), as the law of Pennsylvania on criminal responsibility.

The conduct of the trial court in refusing to admit the evidence in question was in conformity with Pennsylvania law. The Pennsylvania Supreme Court adopted the McNaughten rule shortly after it was promulgated. Commonwealth v. Mosler, 4 Pa. 264 (1846). The continued vitality of the rule was affirmed in 1960 by the comprehensive opinion in Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98. Again, in Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), the Pennsylvania Supreme Court adhered to its earlier decision, and in Phelan’s case, the specific rulings of the trial court on this issue were considered and validated: 427 Pa. 265, 234 A.2d 540. Although we are aware that the McNaughten rule has been much criticized and that many jurisdictions have adopted other rules,²⁰ the United States Supreme Court has refused to require the states to adopt any other standard. Leland v. Oregon, 343 U.S. 790, 800-801, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).²¹ Accordingly, it is not appropriate for us to impose our rule, or any other rule, upon the Commonwealth of Pennsylvania at this time.

Phelan’s argument that the Pennsylvania Supreme Court has, on its own initiative, adopted the Currens test as its own is without merit. No Pennsylvania case so holds, and Negri is clearly in-apposite.

Therefore, it was not a violation of due process for the original trial court to apply the McNaughten test of crimi nal responsibility, and to restrict the admission of evidence based on that test.²²

V

For all of the reasons stated above, we hold that the district court’s findings of fact were not clearly erroneous and that the district court did not err as a matter of law. Accordingly, its order dismissing Phelan’s petition for habeas corpus will be affirmed.

1

. This petition was presented by counsel after Phelan refused to sign it. Throughout the entire proceedings, Phelan has eschewed the insanity defense and has asserted his competence.

2

. The restaurant was owned jointly by Jack Lopinson, Judith’s husband, and Malito.

. The confession came about as a result of Phelan’s initiative, and was made after officials advised him of his rights. Counsel retained by Phelan’s family was available, but his services were declined by Phelan.

3

. Phelan also testified at length at Lopinson’s trial in January and February of 1965. Lopinson was convicted of murder in the first degree, and this conviction was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968).

4

. A copy of this hand printed petition appears in the record (10a). It demonstrates that immediately before the degree of guilt hearing, Phelan had an understanding of the nature of the proceedings pending against him.

5

. Abraham J. Brem Levy, Esquire, and John A. Papóla, Esquire, both very experienced lawyers at the criminal bar, were appointed by the trial court, and since then have continued to represent Phelan with vigor.

6

. On October 11, 1965, after the appeal had been quashed, while Phelan was present, defense counsel formally renewed his petition to retain psychiatrists to determine whether Phelan “could comprehend or know mentally what was happening at the particular time.”

“Judge Alexander: At which time?

“Mr. Levy: When he is alleged to have pleaded guilty on October 26, 1964. $ * * »

“Judge Barbieri: May I ask a question of Mr. Levy? Your request for psychiatrist, is that * * * in what connection?

“Mr. Levy: In connection with my petition to set aside the guilty plea.

“Judge Alexander: * * * 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: No, at the time he pleaded.

“Judge Barbieri: He is not trying to decide if the man can stand trial.

“Mr. Levy: That’s right.”

•

. Although the Commonwealth presented no psychiatric testimony at this point, it was ready to introduce medical reports to the effect that Phelan was responsible under McNaughten. In fact, the trial court had read these reports, and they were put into the record formally when the sentence was considered.

7

. According to Pennsylvania law, testimony of the nature proffered would have been inadmissible. See Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966); Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963).

8

. The colloquy is reprinted in 427 Pa. at 269-270, 234 A.2d at 543-544.

9

. The basic requirements were stated as ascertaining the identity of the accused, informing the defendant of the nature of the charges, and informing the court of defendant’s plea. 427 Pa. at 273, 234 A.2d at 545.

10

. Although the thrust of this argument in the Pennsylvania Supreme Court centered around the right to the services of a private investigator at public expense, in the habeas proceeding the emphasis shifted to the refusal of the trial court to permit the withdrawal of the guilty pleas.

•

. In view of the various grounds raised in Phelan’s petition, the fact that a habeas hearing was held at all does not imply that the state court record left doubt aá to Phelan’s competence.

11

. The following is an excerpt from the district court’s opinion on this issue:

“The most illuminating testimony on this issue was pressented by Phelan himself and his former counsel, John Patrick Walsh. Walsh testified that he interviewed Phelan a number of times before the arraignment proceedings took place. He had had Phelan examined psychiatrically and had available the psychiatric reports, and concluded that Phelan was competent to enter a plea and to stand trial. Walsh based his opinion on his own observations of Phelan, Phelan’s ability to communicate with him, and the statements which Phelan made to him. According to Walsh and his associate, John Rogers Carroll, Phelan never denied the hill-ings. Phelan also told them that if the district attorney wanted to convict Jack Lopinson, the district attorney would have to play ball with him (Phelan). Pie admitted to counsel that he had made up the stories about having hallucinations (which had led at least one psychiatrist to believe he was schizophrenic). Walsli testified that prior to arraignment, he consulted with Phelan in regard to the plea that would be entered. -After his own investigation into the crime, Walsh saw no- alternative but to attempt to save Phelan’s life by pleading guilty. He explained to Phel-an the charges pending against him, the problems with a jury trial, the results and possible consequences of pleading guilty. After the matter was thoroughly reviewed and discussed, and after Walsh’s recommendations were considered, Phelan decided to plead guilty.

“Phelan’s statements to Walsh also indicate that Phelan knew what he was doing. Further, in the letter which Phelan sent to Walsh advising that he was going to dismiss him as counsel, Phelan evidenced more than a rudimentary grasp of the law and of his rights. “Phelan’s performance at his hearing was even more enlightening. * * * In my view Phelan was not a truthful witness, but he did convince me, by the manner in which he responded to questions in the emotionally disturbing atmosphere of cross-examination, that he was not only competent, but shrewd and cunning as well.

“A review of the State record likewise reveals that in the instances where Phelan was called upon to answer questions, he did so in an intelligent and responsive manner, and in other instances he interjected statements into the court proceedings which indicated an awareness and comprehension of what was taking place.

“I find, therefore, that Phelan was fully competent to understand the nature of the proceedings against him and to consult with counsel both at the time of arraignment in October 1964, and at the trial in October 1965.” 312 F. Supp. at 354-355 (emphasis added; footnotes omitted).

12

. In this regard, the district court opinion adopted the reasons set forth by the Pennsylvania Supreme Court. 427 Pa. 265, 234 A.2d 540 (M 67).

13

. The colloquy preceding the arraignment is set forth in the transcript verbatim. The record then noted: “Defendant, arraigned at the bar of the court, pleads guilty to Bill No. 468, Murder, and to Bill No. 469, Murder.”

14

. The habeas court indicated that even were it not so bound, it would reach the same result via the same reasoning, because all the purposes of the arraignment had been fulfilled.

15

. This was the main thrust of counsel’s argument before the habeas court and the Pennsylvania Supreme Court.

16

. Durham v. United States, 94 U.S.App. D.C. 228, 214 F.2d 862 (1954).

17

. The Supreme Court denied certiorari, 368 U.S. 995, 82 S.Ct. 618, 7 L.Ed.2d 533 (1962).

•

. There was no evidence or indication that Robinson was attempting to “play fast and loose with the [c]ourt.”

18

. The Supreme Court noted that the stipulated testimony of the psychiatrist and Robinson’s demeanor at trial might be relevant to the issue of sanity, but were not dispositive on the issue of competence.

19

. Pennsylvania law required the trial judge to order a sanity hearing “only where a real doubt exists” in his mind, Commonwealth ex rel. Mulligan v. Smith, 156 Pa.Super. 469, 40 A.2d 701, 703 (1945), but unlike Illinois law, imposed no obligation to conduct a sanity hearing in the absence of a request. Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 71 A.2d 107 cert, denied, 340 U.S. 812, 71 S.Ct. 40, 95 L.Ed. 597 (1950). See also Commonwealth ex rel. Harris v. Banmiller, 10 Pa.Dist. & Co.R.2d 525, aff’d, 391 Pa. 132, 137 A.2d 452, cert, denied, 356 U.S. 947, 78 S.Ct. 794, 2 L.Ed.2d 822 (1958). The Court of Appeals for the second circuit recently held that Pate v. Robinson requires no more than that the state courts follow the applicable state law. (United States ex rel. Evans v. LaVallee, 446 F.2d 782 (2d Cir. 1971).

19

a. Judge Sloane, on one occasion, pointedly reminded counsel of the Mental Health Act of 1951, see supra, p. 77, but counsel never presented a proper petition.

•

. For example, the report of Dr. Baldwin Keyes stated that: Phelan “is responsible before the law for his behavior” and that some of his conduct' during the examination “was more of an ‘act’ than a true compulsive drive. It was as though he wanted this to fit in with his story.” Dr. Keyes testified at the habeas hearing that Phelan was competent at the arraignment. On cross-examination, Dr. Appel corroborated the opinion of Dr. Keyes.

20

. Indeed, this Court has adopted a modified version of the Durham, rule, see Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), as the applicable test of criminal responsibility in federal trials in this circuit. United States v. Currens, 290 F.2d 751 (1961).

21

. In part, the decision in Leland was based on the fact that “the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law.” 343 U.S. at 801, 72 S.Ct. at 1008. The district court found as a fact that science has yet to progress to that point.

22

. The parties did not raise, and we do not decide whether in the factual context of this case, the imposition of the death penalty constitutes a violation of the Eighth Amendment. We do note, however, that the Supreme Court recently has granted certiorari in four cases where the issue is whether, on the facts of each case, the death penalty constitutes cruel and unusual punishment. See Aikens v. California, 403 U.S. 952, 91 S.Ct. 2280, 29 L.Ed.2d 863, Furman v. Georgia, 403 U.S. 952, 91 S.Ct. 2282, 29 L.Ed.2d 863, Jackson v. Georgia, 403 U.S. 952, 91 S. Ct. 2287, 29 L.Ed.2d 863, Branch v. Texas, 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 864 (1971).