delusional, hallucinatory, and without insight. Both experts stated that relator could understand reality on an intellectual level, but they believed that such intellectual understanding was meaningless in light of his emotional drives. Both expressed the opinion that Phelan was incompetent at the time of the arraignment in October 1964, but Dr. Appel stated that he could not give an opinion with reasonable medical certainty as to Phelan's condition as of the date of trial in October 1965.
Dr. Baldwin Keyes, who examined relator in August 1964, stated in his report that Phelan was in a pre-psychotic stage; and that although Phelan had a very low level of self-control, he had the mental capacity to fully understand the nature of the proceedings against him in 1964 and 1965 and to consult with counsel.
The most illuminating testimony on this issue was presented 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 killings. 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). He 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). Walsh 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 Phelan 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.
John Patrick Walsh has been a member of the criminal bar in Philadelphia for over thirty years. He has handled over 200 homicide cases, many of them involving the death penalty. His opinion as to Phelan's competence, by reason of his experience and expertise in this area of the law, is entitled to great weight.
Berry v. United States, supra.
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 this hearing was even more enlightening. He, of course, denied that he had ever told Walsh he was guilty. He stated that he was dumbfounded when Walsh blurted out at the arraignment that a guilty plea was to be entered. On cross-examination, Phelan parried and sparred with the Commonwealth's attorney concerning the answers he had given and the statements he had made during the arraignment. Phelan was able to remember those statements which apparently aided his cause, but could not remember those which might be harmful. 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.
Since Phelan was competent at the time the plea was entered, and the state record indicates that the plea was otherwise voluntary [ United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968)], the plea of guilty was valid.
II. Denial of the Effective Assistance of Counsel.
Counsel has argued that the trial court's refusal to grant a continuance or permit Phelan to withdraw the plea of guilty on the ground of incompetence and the court's adverse rulings on other motions presented on Phelan's behalf violated his rights to effective assistance of counsel and a fair trial.
The right to withdraw a plea of guilty is not absolute under either Pennsylvania or federal law. United States v. Ptomey, supra ; Commonwealth v. Scoleri, 415 Pa. 218, 202 A. 2d 521, 203 A.2d 319 (1964); United States v. Stayton, 408 F.2d 559 (3d Cir. 1969). Rule 320, Pa. R. Crim. P. reads as follows:
"At 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." (Emphasis added)
Such a motion is directed to the sound discretion of the trial court, and will not be disturbed unless the decision is arbitrary or capricious. United States v. Ptomey, supra ; Hansen v. Mathews, 296 F. Supp. 1328 (E.D. Wis. 1969); Commonwealth v. Scoleri, supra ; United States v. Hughes, 325 F.2d 789 (2d Cir.), cert. denied, 377 U.S. 907, 84 S. Ct. 1167, 12 L. Ed. 2d 178, reh. denied, 377 U.S. 940, 84 S. Ct. 1332, 12 L. Ed. 2d 304 (1964); United States ex rel. Jackson v. Banmiller, 187 F. Supp. 513 (E.D. Pa. 1960).
Counsel has contended that Phelan should have been permitted to withdraw the plea because he was incompetent at the time the plea was entered, but no evidence was presented to the state court on this issue,
hence I cannot now say that the state court's refusal to permit withdrawal of the plea was such an abuse of discretion as to deny Phelan's rights to the effective assistance of counsel or a fair trial. See United States ex rel. Grays v. Rundle, 293 F. Supp. 643 (E.D. Pa. 1968); United States ex rel. Rivera v. Follette, 395 F.2d 450 (2d Cir. 1968); Papalia v. United States, 333 F.2d 620 (2d Cir.), cert. denied, 379 U.S. 838, 85 S. Ct. 74, 13 L. Ed. 2d 45 (1964). Moreover, had the evidence which was presented at this hearing been presented to the state trial court, it would not have established, as I have heretofore indicated, that Phelan was incompetent at the time he entered the plea. The failure of the state court to grant the continuance or to permit the withdrawal of the plea, therefore, could not have been prejudicial. See Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964); United States ex rel. Rivera v. Follette, supra.
The other rulings of which relator complains here (i.e., refusal to grant funds to hire an investigator and a psychiatrist) were adequately disposed of by the state court. For the reasons set forth in the opinion of the Pennsylvania Supreme Court on appeal from the convictions, Commonwealth v. Phelan, 427 Pa. 265, 234 A. 2d 540 (1967), I agree that Phelan's rights were not violated by the trial court's rulings on these matters.
It is contended that the transcript of the arraignment proceedings indicates that Phelan was not validly arraigned. The record of the arraignment contains the notation: "Defendant, arraigned at bar of the court, pleads guilty to Bill No. 468, Murder, and to Bill No. 469, Murder." It is argued that the lack of a verbatim transcript establishes that the indictment was not read to Phelan, and that he did not plead guilty.
The Supreme Court of Pennsylvania has ruled that this notation on the record clearly evidences that a proper arraignment was held. Commonwealth v. Phelan, supra. That ruling is binding on me insofar as it interprets the procedure the notation purports to reflect. Cf. United States ex rel. Speaks v. Brierley, 417 F.2d 597 (3d Cir. 1969). Further, were I not bound by the state court's interpretation, I would still conclude that the arraignment was valid. The purpose of an arraignment is to inform the accused of the nature of the charges against him, and give him an opportunity to plead thereto. Yodock v. United States, 97 F. Supp. 307 (M.D. Pa. 1951). As the Supreme Court of Pennsylvania stated: "[One] would have to completely distort his thinking to believe that Phelan was not fully aware of the nature of the charges lodged against him, or that he was denied ample opportunity of expressing his plea thereto." Commonwealth v. Phelan, supra, 427 Pa. at 273, 234 A. 2d at 545. Furthermore, in Johnson v. United States, 225 U.S. 405, 411, 32 S. Ct. 748, 750, 56 L. Ed. 1142 (1912), the Supreme Court, in interpreting a federal court record, stated that the word "arraignment" is "comprehensively descriptive" of the performance "of that which the law prescribes by it." In other words, it describes the reading of the indictment and the entering of a plea thereto.
There is no merit to the claim that Phelan's constitutional rights were violated by an invalid arraignment.
IV. The M'Naghten Rules.
The main thrust of counsel's argument here and in the state courts has been that the Commonwealth's reliance upon the M'Naghten rules as the sole test for determining criminal responsibility violates due process. In effect, Phelan's counsel seek to have me declare that aspect of Pennsylvania law unconstitutional and substitute or add what counsel consider a more modern rule of criminal responsibility.
The Supreme Court of the United States has consistently refused to impose upon the States a federal standard to determine criminal responsibility, or to require the States to add newer tests to the M'Naghten rules. As late as 1952, in Leland v. Oregon, 343 U.S. 790, 800-801, 72 S. Ct. 1002, 1008, 96 L. Ed. 1302 (1952), the Court stated:
"Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions. The science of psychiatry has made tremendous strides since that test was laid down in M'Naghten's Case, but 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. Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility."