Opinion
June 18, 1971.
September 21, 1971.
Criminal Law — Counsel for defendant — Conflict of interest — Mere existence of conflict vitiating proceedings — Sentencing of defendant.
1. If in the representation of more than one defendant, a conflict of interest arises, the mere existence of such a conflict vitiates the proceedings, even though no actual harm results.
2. The potentiality that such harm may result rather than that such harm did result furnishes the appropriate criterion.
3. A conflict may be established if it can be shown that counsel neglected defendant's cause in order to concentrate on that of the codefendant.
4. In this case, in which it appeared that defendant, after entering pleas of guilty to certain charges, at a later date testified for his codefendant at a trial on the same charges, attempting to exculpate the codefendant and accepting full responsibility himself for the crimes involved; that immediately upon completion of the trial of the codefendant defendant was sentenced by the trial judge; that he was represented by the same attorney who had represented him at the guilty plea hearing and who had moments earlier represented the codefendant; it was Held that the sentencing was improper and the case was remanded for resentencing, with defendant to be represented by counsel unburdened by a conflict of interest.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 871, Oct. T., 1971, from dismissal of post conviction hearing petition by Court of Common Pleas of Delaware County, June T., 1958, Nos. 501, etc., in case of Commonwealth of Pennsylvania v. Harry Shank. Remanded for resentencing.
Petition for post-conviction relief. Before SWENEY, P.J.
Order entered dismissing petition. Defendant appealed.
R. Barclay Surrick, Assistant Public Defender, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, District Attorney, for Commonwealth, appellee.
Submitted June 18, 1971.
On June 4, 1958, the appellant, Harry Shank, while represented by counsel, entered pleas of guilty to several charges of burglary, larceny, and conspiracy in Delaware County. On June 23 and 24, 1958, a codefendant, Joseph McGee, was tried in Delaware County before a different judge on some of the same charges to which appellant had pleaded guilty on June 4, 1958. McGee was represented by the same attorney who had earlier represented appellant at his trial. McGee elected to plead not guilty, and appellant was a witness for McGee at trial. The record shows that during the course of this trial, Shank incriminated himself, accepted full responsibility for the crimes involved and attempted to exculpate the codefendant, McGee.
At the conclusion of McGee's trial, appellant was immediately called before the bench for sentencing on the charges to which he had pleaded guilty on June 4, 1958. He was represented by the same attorney who represented him at the guilty plea and who had moments earlier represented McGee. The judge who presided at the McGee trial sentenced Shank to not less than ten nor more than twenty years imprisonment on one of the burglary charges. Sentence was suspended on the other charges.
Shank claims that this sentencing was improper and we must agree. The record discloses an obvious conflict of interest on the part of appellant's counsel at the time of sentencing. In Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641, 643 (1962) the Supreme Court held: "If, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such a conflict vitiates the proceedings, even though no actual harm results." (emphasis added) A conflict may be established if defendant can show that counsel neglected his cause in order to concentrate on that of the codefendant. Commonwealth v. Wilson, 429 Pa. 458, 239 A.2d 308 (1968).
However diligent and resourceful counsel may have been at appellant's sentencing, we cannot ignore his spirited defense of McGee only moments earlier, before the same judge. As McGee's counsel, the attorney had, quite properly, attempted to shift the total blame for the criminal activity to appellant's shoulders. Had Shank's sentencing occurred on a later date, or even on the same date, but before a different judge, this issue would probably not have arisen. However, as the court said in Commonwealth ex rel. Whitling v. Russell, supra: "The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion." 406 Pa. at 48, 176 A.2d at 643.
It seems evident that resentencing is required, with appellant being represented by counsel unburdened by a conflict.
Remand for resentencing.