Appeal, No. 39, March T., 1962, from order of Superior Court, April T., 1961, No. 112, affirming 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 reversed.
Robert J. Stock, with him Cingolani & Cingolani, for appellant.
No argument was made nor brief submitted for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Upon this appeal a very narrow issue is presented: two defendants, with antagonistic defenses, having been called for trial and the trial court having appointed as counsel for one defendant an attorney previously retained to represent the other defendant, was the latter prejudiced by the conflict of interest created by such appointment? Basically, this question evaluates the right of a defendant, even in a non-capital case, to be represented, if at all, by counsel without conflicting interests.
Richard Whitling [appellant] and his brother, Ralph Whitling, were indicted, tried and convicted in
the Court of Quarter Sessions of Clarion County upon the charge of sodomy. Prior to the trial, appellant retained as his counsel Attorney Gerald McGill, but Ralph Whitling has not retained any counsel. Prior to the trial when it became apparent to the trial judge that Ralph Whitling was not represented by counsel, the trial judge requested Attorney McGill, appellant's counsel, to also represent Richard Whitling. Both defendants were tried together. Appellant contends that he objected to this dual representation on the part of his counsel by protesting to Attorney McGill at that time at counsel table. Appellant's position was that he was innocent of the sodomy charge but that his co-defendant, Ralph Whitling, was guilty and, at trial, he testified against Ralph Whitling although Ralph Whitling testified in appellant's behalf. Both defendants were convicted and each was sentenced to a minimum term of five year and a maximum term of ten years, to pay a $500 fine together with the costs of prosecution. No appeal from such convictions was taken.
Appellant, now confined in the State Correctional Institution at Huntingdon, presented a petition for a writ of habeas corpus to the Court of Common Pleas of Clarion County which, after a hearing, denied such writ. An appeal was then taken to the Superior Court and that Court by a 4-2 decision (reported in 195 Pa. Superior Ct. 277, 171 A.2d 819), affirmed the action of the court below.*fn1 This Court granted an allocatur.
The Superior Court fully recognized that the representation of both defendants by Attorney McGill created a conflict of interest (p. 280): "There is no question that a conflict of interest existed in [Ralph Whitling's] counsel, also representing the ...