*1 Pennsylvania COMMONWEALTH of KNIGHT, Appellant. Irvin Superior Pennsylvania.
Submitted Dec. 1975.
Decided Nov. 1976. *2 Terry Knox, W. Chester, appellant. West for Timothy Knauer, H. Assistant District Attorney, West appellee. Chester, for
Before Judge, WATKINS, President JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
WATKINS, Judge: President appeal
This is an from an order of the of Com- Court mon County dismissing Pleas of Chester а Petition under Hearing evidentiary Post Conviction Act after an hearing. appellant alleged The inadequacy of counsel be- improper representation. cause of proceedings The out arose of an which oc- incident apartment complex curred at April 19, 1970, an on in- volving appellant, Knight, Handy Irvin Herbert and appellant represented pro- John Mitchell. The was in all ceedings, except appeal, by Attorney Wil- instant McLaughlin represented liam Handy. who also Mitchell separate throughout counsel the trial. At the arrest, Handy gave time of his written state- ment to the officers which incriminated and himself other together All co-defendants. were tried and all appellant were convicted. The аnd Mitchell were convict- robbery ed of accomplice, battery, with an assault and larceny, rape conspiracy; Handy and was convicted charges plus aggravated all these battery. assault and Handy At the statement was introduced. appellant Handy The did not take the stand but the did. Handy appellant testimony in his incriminated Handy aggravated battery, alone assault of which and testimony appellant’s subsequently was convicted. beating Handy one of the to the effect that was seen with belt The defense both victims buckle. entry appellant’s consent to the on and the cases was premises to the intercourse. and consent post- entry denial of
After the of the verdicts and the motions, represent- Handy appеllant both were and sentencing. by Attorney McLaughlin the sen- ed At tencing, Attorney McLaughlin Handy: said age he and
“. . . And think because of his man seemed to be of that older under the instructions footing the same should not be dealt with on with them.” old; years appellant
At
wаs 19
the time of the offense
Both the
Handy was 21
Mitchell was 31.
and
received the same sentence.
convictions,
by this
Both
were sustained
appeal,
on
per
Handy, 225
curiam.
Pa.Su-
per. 721,
340, (1973)
and Commonwealth
306 A.2d
Knight,
Pa.Super.
306 A.2d
appeal
question presented
is whether
sole
in this
McLaughlin
representation by Attorney
the dual
denied
right
counsel.
his constitutional
effective
*4
light
Breaker,
In the
of
456 Pa.
(1974),
coun-
In the Su Commonwealth v. prеme outlining the four Court cited the cases various representation. (4) principles control dual page page 356: court at 318 A.2d at stated princi- representation “Our dual cases make several ples representation First, ‘[i]f, of more in the clear. defendant, than one arises, a conflict of interest mere proceed- existence of such conflict vitiates ings, though even poten- no actual harm results. The tiality may result, that some harm rather than that such result, apprоpriate harm did furnishes the criteri- on’ .. . . . Second, a de- [citations omitted] . fendant must demonstrate that conflict of interest actually trial, representation existed at because ‘dual alone does not amount to a conflict of interest’ . Third, [citations . . . make the omitted] [t]o representation conflict, rise to true need not show that actual harm resulted . . but . he must possibility at least show of . harm’ . . . Fourth, appellant [citations . . will omitted] satisfy requirement demonstrating possible of harm, show, if he alia, can inter ‘that he had a defense by inconsistent client, with that advanced the other or neglected give that counsel his case order to the oth- spirited er client a more defense’ . . . [citations .” . . omitted] clearly
The instant factually case is not as defined Breaker, supra, appellant being urged which involved the by plead guilty his counsel to while same counsel also represented the However, the informant-co-defendant. instant principles case falls within the four enumerated Breaker, supra. represented by co-defendants were same counsel and both relied on the defense of consent as entry and consent to intercourse with the victim. Be nominally cause the defenses are de identical as tо both they fendants does not mean were similar in effective ness for appellant, both defendants. The took stand his own defense and testified as to Handy, with reason, assault a belt for buckle. whatever although urged counsel, so do his did take the prior stand incriminating and his written statement possibility However, was not introduced. purposes its introduction for or cross-examination *5 342
impeachment, reality. if he testified, were to have is a charges Once the co-defendant such as are involved here person testified to violence to a the effectiveness of the defense of impact consent is weakened. The this had jury may on the mitigated have been had taken the Appellant’s stand and testified. defense was at least potentially by Handy’s testify. eroded failure to The de- fenses of together. both defendants rose fell and It was for such situations where the harm is incalculable that prophylactic the Whitling 45, Russell, rule of v. 406 Pa. (1962) 641 Breaker, 176 A.2d and supra, was devised. also, See Johnsоn, Pa.Super. 223 299 A.2d potentiality such may harm result result, rather than that such harm did appropriate furnishes the criterion. defense of both co-defendants, although nominally prac- consistent, were tically antagonistic.
Reference should also bе made to the comment of coun- sel sentencing at being astray by as to led the older man. In Breaker, supra, page 357, Pa. at page 357, A.2d at Supreme pointed the Court out: Indeed, “. . sentencing . the assistant district at- torney police the informed court communi- Mangold cated to him that ‘was instrumental breaking case, of the extremely cooperative that he was police with the police] wanted the court [that ” advised of that fact.’
In page footnote 5 on the same nоt stressing ed that one role co-defendant’s as the informer strategy fact upon by repre decided senting Although speculate counsel. we cannot as to motives, counsel’s sentencing attitude of counsel at favoring one client pоses over the ques other a serious tion about the during intention of counsel conduct the trial. supra. Clearly Commonwealth v. if Johnson, Supreme Court was concerned toas comments of the Commonwealth in Commonwealth Breaker, supra, we appellants’ should be concerned with the own counsel *6 commenting upon being astray his co-defendant’s led ab- any sent redeeming mitigating factors or comments appellant. the about Pa.Super.
As we Cullen, said in Commonwealth 216 23, 260 818, 820 (1970): sentencing, aрpellant’s
“At
trial counsel
under a
duty
put
to
possible light
of
each
his
in the
clients
best
before the
case,
court.
In the instant
felt
trial counsel
compelled
picture
to
guilty
the co-defendant as the less
party,
party
the
that had been
no
led. He could do
duty
less for the
But, by doing so,
co-defendant.
his
present appellant
to
possible light
in the best
was ne-
glected.
pictured
He
party
the appellant
the
wor-
as
thy of strict
treatment
and the co-defendant as the
party worthy of lеnient treatment.”
granted.
order is reversed and a new trial
SPAETH, J.,
concurring opinion.
files a
JACOBS, J.,
dissents on the basis
of
Handy,
Pa.Super.
(1976).
SPAETH, Judge, concurring: appellant I think it clear that was denied effective duty sentencing, counsel at for counsel not fulfill his did put aрpellant possible before the court in the best light. Cullen, Pa.Super. 23, Commonwealth v. appellant A.2d 818 Whether effec- was denied trial, however, tive counsel at seems to me more diffi- was, agree majority cult issue. I with While that he I arrive reasoning at that conclusion from different majority’s. majority gives two that reasons for its conclusion representation appellant trial counsel’s of both Handy possibility appellant. involved of harm to majority
First, appellant part his notes that of as testimony Handy with a said had assaulted victim agree testimony, “the
belt because of this buckle. that [appellant’s] defense consent [was] effectiveness however, Majority opinion That, weakened.” at 342. any appellant arising from the does show harm to not represented by Handy at- fact he and were the same that Handy argue might Why torney. it did: should that bring questioning appellant, attorney, by his that out differently: If Or, put had it assaulted victim? Handy separate, attorney, not own, had would his attorney apрellant testi- that have on his cross-examined mony Handy, how- ? had assaulted victim concerned, ever, far is is before us. So (and Handy’s) attorney only appears it asked his victim) (Handy assaulting about fact *7 may Handy. appellant show that and This hurt both attorney ineffective, it not show that the was but does representation of that from his his ineffectiveness arose Handy. appellant both and majority Handy’s not
Second, the notes that decision testify appellant’s de- potentially to “at least erоded” Majority p. Again, agree; the opinion I fense. 342. despite jury judge’s might thought, instruction have the contrary, Handy’s testify im- not to decision to that gone plied might guilt; jury have from this the his appel- Handy guilty, on to so was think that because was in- present every danger сase However, is lant. this volving one de- or where defendant two more defendants question here whether testify. is cides not to by testify Handy’s motivated advice decision not to was given by attorney. was, be If would him his reversal it appellant’s, Handy’s attorney also required, for since was help his to in order conflict of interest would arise: might client attorney to hurt his Handy, client have hearing the at- appellant. Here, however, PCHA at the he Handy that torney he had advised testified that accepted hearing judge testi- this testify, should and the mony. regard
Further testify, to decision not to majority Handy notes that had made an incriminat- ing statement, which, testified, might had he been have impeach used to helps him. I do not see how this fact appellant. only Handy The statement incriminated not appellant. but Therefore, testifying also if not Handy preclude was able to introduction of the state- ment, helped only appellant. himself but also
Despite difficulties, these I have concluded that a new appеllant be should awarded. fact that testi Handy fied that shows —or at victim assaulted strongly suggests least to was hostile —that Handy: trying persuade jury he was to that it was Handy not he criminally. but who had This acted shows —or strongly suggests at least Handy was in turn —that appellant. (It hostile сonceivable, admit, is that justified to himself said being him, unlikely.) hostile to ap but it seems it Thus pears attorney represented that one clients, “ two hos each other, tile to the is which a situation ‘at least show ” [ing] possibility of harm.’ Breaker, 456 Pa. 341, 345, 318 354, 356 (1974). appeаrance,
This gains moreover, from the substance shortly fact attorney before wished to because, withdraw. He did not quote withdraw *8 court, lower opinion “the writer of this to him indicated that he should in remain the case so as to avoid a further continuаnce of the required which would have been if permitted he had been Opinion to withdraw.” of low- regrettable er court at 2. It is that ex- the lower court pressure erted such attorney; attorney on the inwas position a better appraise pos- than was the court sibility arising representation. of harm from It is regrettable for another This matter reason. comes be- fore us Hearing as a Post proceeding. Conviction Act hearing judge proceeding in that was the same judge judge. ruling as had been the Thus, upon
346 a
appellant’s post-conviction been claim there had interest, judge position of of in the hav conflict already conflict. ing decided that there not a been short, Ordinarily, unless had, pre-judged He the case. findings appеars, of discretion we are bound abuse proceeding. rel. ex made PCHA Rundle, Johnson 440 A.2d Pa. here, I circumstances we are do think
Given left, I with two case, bound. Thus we are see the judgment ought attorney’s to with facts: hostility ; apparent between his clients. draw and enough require trial. think these are new Pennsylvania COMMONWEALTH FISHEL, Appellant. Clay Terry Pennsylvania. Superior 16, 1975. Dec. Submitted 22, 1976. Decided Nov.