Appeal from order of Superior Court, March T., 1966, No. 74, affirming order of Court of Common Pleas of Dauphin County, June T., 1965, No. 719, in case of Commonwealth ex rel. Owen Leroy Gallagher v. Alfred T. Rundle, Superintendent.
Louis Lipschitz, with him Lipschitz and Chalfin, for appellant.
Henry W. Rhoads, Assistant District Attorney, with him LeRoy S. Zimmerman, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.
Following his conviction on a charge of burglary, appellant was sentenced to a term of two to four years. On appeal, the conviction was affirmed by the Superior
Court. Commonwealth v. Ghaul, 205 Pa. Superior Ct. 80, 207 A.2d 917 (1965).
Appellant filed a petition for a writ of habeas corpus, which was dismissed by the lower court. The Superior Court affirmed (Commonwealth ex rel. Gallagher v. Rundle, 207 Pa. Superior Ct. 759, 217 A.2d 821 (1966)), and we granted allocatur.
The burglary of which appellant was convicted occurred in Harrisburg. Both he and one Charles Ghaul were arrested five miles outside Harrisburg and charged with the crime. Under police questioning, Ghaul presented an alibi to the effect that on the evening of the burglary both he and appellant had met two women in Philadelphia with whom they travelled to Harrisburg in two automobiles; that the men left their vehicle in Harrisburg and continued with the women in the latter's car to Pittsburgh, where the women deserted them in a bar; and that they hitchhiked back to Harrisburg in a truck. Appellant related a similar story, but stated that all four had driven from New Jersey to Pittsburgh in the ladies' vehicle. In all other respects their alibis were identical. Neither defendant implicated the other in the crime, and each claimed that he was with the other throughout the evening that the crime was committed.
Both defendants were tried together and were represented by two self-retained attorneys, one of whom was a New Jersey practitioner and the other of whom was local counsel. Neither defendant testified in his own defense, but the Commonwealth admitted in evidence the statements each had given to the police.
Appellant argues that because mutually inconsistent statements by both co-defendants were introduced at their joint trial at which both were represented by the same counsel, a conflict of interests ...