217 Pa. Super. 421 | Pa. Super. Ct. | 1970
Opinion by
Appellant and a codefendant, his girl friend, pleaded guilty to felonious possession of drugs and conspiracy. Appellant was sentenced to one to two years on each of the two charges, the sentences to run consecutively. The codefendant was placed on probation. No appeals were taken. Subsequently, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. §1180-1 et seq. (Supp. 1970), alleging ineffective representation by counsel because of a conflict of interest. After hearing, the petition was denied and this appeal followed.
At sentencing, the notes of testimony reveal the following : “ [trial counsel]: I think the Court understands
The issue in this case is governed by the recent Supreme Court decision in Commonwealth v. Cox, 441 Pa. 64, 270 A. 2d 207 (1970), and by our decision in Commonwealth v. Cullen, 216 Pa. Superior Ct. 23, 260 A. 2d 818 (1969). In Cox, Mr. Justice Jonhs, speaking for the Court, stated that “[a] conflict may be established if a defendant can show either: (1) that he had a substantial defense, which was not raised, that was inconsistent with that of his codefendant; or (2) that counsel neglected the defendant’s case in order to concentrate on that of his codefendant.” 441 Pa. at 64, 270 A. 2d at 209.
Our decision in Cullen, though earlier in time, is consistent with Cox. In Cullen we found that the trial counsel “pictured appellant as the party worthy of strict treatment and the codefendant as the party worthy of lenient treatment.” 216 Pa. Superior Ct. at 25, 260 A. 2d at 820. We held that “[a]t sentencing, appellant’s trial counsel was under a duty to put each of his clients in the best possible light before the court.” Id.
In the instant case, the Commonwealth does not deny that Cullen is applicable. Rather, it suggests that there is no error here because a tactical decision was made to minimize appellant’s past history while noting the codefendant’s lack of criminal record. How
In Cox Mr. Justice Jones found that “[t]he record indicates that defense counsel was faced with a true conflict of interest which prevented him from adequately representing Cox at the time of sentencing. Accordingly, Cox is entitled to be resentenced with the assistance of counsel.” 441 Pa. at 64, 270 A. 2d at 209. This finding is equally applicable to the case at bar. Therefore, we reverse the order of the lower court, vacate the sentence and remand the record for resentencing.