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March 31, 1970

UNITED STATES of America ex rel. Frank PHELAN
Joseph R. BRIERLEY, Warden

Luongo, District Judge.

The opinion of the court was delivered by: LUONGO

In this petition for writ of habeas corpus, Frank Phelan, a state prisoner, attacks his convictions for first degree murder and conspiracy to murder on Indictment Nos. 468-71, August Sessions, 1964, Court of Quarter Sessions, County of Philadelphia.

 Briefly summarized, the facts are as follows:

 On July 26, 1964, Phelan was arrested on charges of murder and conspiracy to murder in the shooting deaths of Judith Lopinson and Joseph Malito in Dante's Restaurant in Philadelphia, Pennsylvania. A day or so after his arrest Phelan gave a statement to the police setting forth the gruesome details of the crime and, on the same day, he testified under oath at a state habeas corpus proceeding instituted by Jack Lopinson, *fn1" Judith's husband, who had also been arrested and accused of plotting the murders with relator.

 Phelan's statement and his testimony at the habeas corpus hearing were to the effect that Jack Lopinson had hired him, agreeing to pay him $10,000 to murder Malito and Judith; that he and Lopinson drove to Delaware to purchase the murder weapons; that on the night of the murders, Lopinson secreted Phelan in the basement of Dante's to await the victims; that Phelan shot both victims twice in the head and he then shot Jack Lopinson in the leg to make the murders look like the work of a burglar; that Phelan then proceeded to the Delaware River where he discarded the murder weapons. *fn2"

 On October 26, 1964, Phelan appeared with privately retained counsel, *fn3" John Patrick Walsh, Esquire, for arraignment. A plea of guilty was entered to the conspiracy charges and to murder generally. *fn4" The state record reveals that during these proceedings Phelan admitted, inter alia, that he shot Judith Lopinson and Joseph Malito; that he had consulted with counsel concerning possible defenses and the charges pending against him and that he had then agreed to plead guilty; that his plea was voluntary; that he understood that he could still be found guilty of first degree murder and sentenced to death.

  In July 1965, Phelan had a falling out with Walsh and requested that new counsel be appointed for him. Walsh was permitted to withdraw as counsel and, in August 1965, the state court appointed present counsel, Messrs. Levy and Papola, to represent Phelan. On October 11, 1965, the date scheduled for trial on the degree of guilt, and almost one year after entry of the plea, Phelan's new counsel presented a motion for leave to withdraw the guilty plea on the ground that Phelan was not competent to enter a valid plea when he was arraigned. *fn5" Counsel sought a continuance to enable them to make further inquiries to substantiate that claim. The continuance was refused and defense counsel were ordered to produce evidence bearing on the issue of Phelan's competence or incompetence at the time of arraignment. Defense counsel would not, or could not, do so and the trial court denied the motion to withdraw the plea and began hearing testimony to determine the degree of guilt.

 During the course of trial, the defense attempted to introduce psychiatric evidence to the effect that at the time the crime was committed, Phelan was suffering from a mental disease which prevented him from conforming his conduct to the requirements of the law. Since Pennsylvania follows the so-called "M'Naghten" *fn6" tests to determine criminal responsibility, the court refused to admit the psychiatric evidence offered by the defense, ruling that it could and would be considered only in determining the sentence.

 Defense counsel also moved to have Phelan examined by a psychiatrist to determine Phelan's competence to stand trial. *fn7" The court took the motion under advisement. At the conclusion of the trial, after having had an opportunity to observe Phelan during the proceedings, the court ruled that Phelan was competent to stand trial and denied counsel's motion for an examination.

 The trial court ultimately found Phelan guilty of murder in the first degree. The court imposed the sentence of death on each count of murder and a sentence of one to two years imprisonment on the bills charging Phelan with conspiracy. On appeal, the Supreme Court of Pennsylvania affirmed the decision of the trial court on all particulars. Commonwealth v. Phelan, 427 Pa. 265, 234 A. 2d 540 (1967).

 The instant petition, which Phelan refused to sign, was filed on his behalf by counsel. From what I can glean from counsel's voluminous and at times rambling brief, it is contended that Phelan's rights were violated in that: (1) the record does not indicate that the indictment was read to him at the arraignment and the failure to read the indictment denied him due process of law; (2) the trial court's refusal to permit him to withdraw the guilty plea made when he was allegedly not competent to enter a valid plea, and the trial court's denial of a continuance to enable counsel to make further investigations into the subject matter denied him the effective assistance of counsel, a fair trial and due process; (3) he was not competent at the time of the trial on degree of guilt and the court's proceeding under the circumstances was a denial of due process; and (4) the trial court's refusal to admit psychiatric evidence other than that prescribed by the M'Naghten rules on the issue of his sanity at the time the crime was committed was a denial of due process.

 On September 15 and 17, 1969, an evidentiary hearing was held in this court to determine whether Phelan was competent when he entered the plea of guilty and when he stood trial on the degree of guilt. See, e.g., Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); Noble v. Sigler, 351 F.2d 673 (8th Cir. 1965), cert. denied, 385 U.S. 853, 87 S. Ct. 98, 17 L. Ed. 2d 81 (1966); Gearhart v. United States, 106 U.S. App. D.C. 270, 272 F.2d 499 (1959).

 I. Phelan's Competence.

 Since the question of Phelan's mental competence is involved in a number of the constitutional issues raised by the petition for writ of habeas ...

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