Appeal, No. 112, Arril T., 1961, from order of Court of Common Pleas of Clarion County, Aug. T., 1960, No. 101, in case of Commonwealth ex rel. Richard Whitling v. Harry E. Russell, Superintendent. Order affirmed.
Armand R. Cingolani, Jr., with him Robert J. Stock, and Cingolani & Cingolani, for appellant.
Merle E. Wiser, District Attorney, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 195 Pa. Super. Page 279]
This is an appeal by Richard Whitling, the petitioner-appellant, from an order of the Court of Common Pleas of Clarion County denying, after hearing, his petition for a writ of habeas corpus.
The appellant and his twin brother, Ralph Whitling, were co-defendants, charged with sodomy and tried on February 23, 1960, in the Court of Quarter Sessions of Clarion County. They were both convicted and sentenced to a minimum term of five years and a maximum term of ten years; and to pay the costs and a fine of $500. He is now confined at the State Correctional Institute, Huntingdon, Pa.
No post-trial motions were made and no appeal taken. The general rule concerning the use of the extraordinary writ of habeas corpus has recently been much relaxed, especially by the Supreme Court of the United States and its scope expanded when lack of due process is contended and the interest of justice demands its use. Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 96 A.2d 122 (1953).
The questions raised in the petition for the writ are as follows: (1) Was the appointment by the court, at the opening of the trial, of the petitioner's retained counsel to also represent his brother, a co-defendant, such a conflict of interest as to prejudice the appellant's right "to be heard by himself and his counsel?" (2) Was it fundamental error when the court below sentenced him in the absence of his retained counsel? (3) Was his right to a fair trial violated by being forced to sit at counsel table in handcuffs?
The right to assistance of counsel can be waived. But the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and do not presume acquiescence in the loss of such a right. In the instant case the appellant retained counsel before trial so that there is no question of waiver.
[ 195 Pa. Super. Page 280]
The question is whether the appointment by the court of his counsel, to also represent his brother, was such a conflict of interest as to deprive him of being heard by his counsel. There is some doubt in the record as to whether the court did, in fact, appoint counsel for his brother or that the court assumed that appellant's counsel also represented his brother. The pretrial notes of testimony show the following colloquy: "By the Court: Are you representing both defendants Mr. McGill? Mr. McGill: I have no objection to it." However, the appellant contends that the court appointed McGill ...