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COMMONWEALTH v. BROWN (06/20/67)

decided: June 20, 1967.

COMMONWEALTH
v.
BROWN, APPELLANT



Appeal from order of Court of Quarter Sessions of Chester County, Feb. T., 1956, Nos. 42 and 43, in case of Commonwealth of Pennsylvania v. Edward Walter Brown.

COUNSEL

Edward Walter Brown, appellant, in propria persona.

Thomas A. Pitt, Jr., Assistant District Attorney, and A. Alfred Delduco, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 210 Pa. Super. Page 137]

This is an appeal from the dismissal without hearing, of a petition for post-conviction relief. Petitioner, Edward Walter Brown, received a sentence of five to ten years on his guilty pleas to the crimes of robbery and robbery with accomplice.

On appeal, petitioner argues that he should be granted a new trial because a conflict of interest arose for his defense counsel, who represented both the petitioner and Gray, a co-defendant.

The rule has been well stated: "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." Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641 (1962). Commonwealth v. Meehan, 409 Pa. 616, 617, 187 A.2d 579 (1963). Cf. Commonwealth ex rel. Bronzell v. Myers, 205 Pa. Superior Ct. 375,

[ 210 Pa. Super. Page 138208]

A.2d 871 (1965). Commonwealth ex rel. Gass v. Maroney, 208 Pa. Superior Ct. 172, 220 A.2d 405 (1966).

A careful review of the record reveals the following discussion among the court, the district attorney, and defense counsel:

"Mr. Halpren: [For the Commonwealth] May I say something, Your Honor, with regard to Gray, although he voluntarily admitted his guilt and signed a statement by reason of which we anticipated Gray would be a Commonwealth witness, we had reason to believe, we found out this morning after he entered his plea of guilty that he was not going to testify in accordance with the statement that he gave and was going to testify that it was not Brown who was with him but someone, else. . . .

"Mr. Perna: [For the defendant] In that respect I might add that earlier this morning I asked for a continuation of the matter and for leave to withdraw my appearance for Gray; we did not intend or plan to put Gray on the stand; he had told me the same thing, but we had not planned putting him on the stand because we did not ...


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