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COMMONWEALTH EX REL. LUCAS v. RUSSELL (06/13/68)

decided: June 13, 1968.

COMMONWEALTH EX REL. LUCAS, APPELLANT,
v.
RUSSELL



Appeal from order of Court of Common Pleas of Allegheny County, April T., 1966, No. 1597, in case of Commonwealth ex rel. Charles Lucas v. Harry E. Russell, Superintendent.

COUNSEL

James P. McKenna, Jr., with him Dickie, McCamey & Chilcote, for appellant.

Charles B. Watkins, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for appellee.

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

Author: Hannum

[ 212 Pa. Super. Page 479]

On February 4, 1966, the appellant filed a petition for a writ of habeas corpus following his conviction by Judge Legnard, without a jury, on November 19, 1964. He was tried together with Harry G. Owens and two other defendants on several bills of indictment charging burglary, larceny and receiving stolen goods.

Following a hearing, on appellant's petition before Ellenbogen, P. J., the court, by order dated December 7, 1967, dismissed it with prejudice.

The appellant cited several grounds in support of his petition, but only one question has been presented on the appeal. The appellant contends that he is entitled to a new trial because his counsel at the trial represented conflicting interests.

The record shows that when the appellant appeared for trial, he was without counsel, but John J. Cohen, Esq., who had been employed and paid by one of his co-defendants, Harry G. Owens, either volunteered, or was appointed by the court, to represent him, also. It also appeared in the record that Owens had made a prior statement admitting his guilt and implicating the appellant. This statement was read into the testimony.

The law with respect to a conflict in interest has been clarified in the case of Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). There the Court said: "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. The potentiality

[ 212 Pa. Super. Page 480]

    that such harm may result, rather than that such harm did result, furnishes the appropriate criterion. As pointed out by Judge Montgomery in his dissenting opinion, the Superior Court in Pile v. Thompson, 62 Pa. Superior Ct. 400, well stated: '. . . the rule is not intended to be remedial of actual wrong, but preventive of the possibility of it."

It was pointed out in Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966), that if, in fact, there was no conflict of interest and the interests of the defendants were identical, there could be ...


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