Appeal from order of Court of Oyer and Terminer of Venango County, Nov. T., 1960, No. 3, in case of Commonwealth v. Floyd A. Resinger.
Max P. Gabreski, for appellant.
Harry W. Gent, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissenting opinion.
The issue in this case is whether a conflict of interest is created when one attorney represents two defendants in a joint trial where each has confessed and testified to identical stories admitting their own participation while shifting the greatest blame to a third co-defendant.
Resinger along with his co-defendants, Keller and Riddle, were jointly tried in 1961 for the murder of Robert Mays. At that trial, Resinger's counsel was also one of Keller's attorneys. On this basis of one attorney representing two of the defendants, appellant asks for an arrest of judgment and a new trial. In that original jury trial Resinger was sentenced to 10-20 years for second degree murder on a first degree charge. Extra-judicial statements were admitted in evidence as well as both Resinger's and Keller's testimony
at trial. These statements were all identical to the effect that although they were all at the house of Mays on a burglary, the greatest blame should be placed on Riddle who did the actual beating which led to Mays' death and the murder indictment. Neither tried to exonerate himself at the expense of the other, but at the expense of the third.
In Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) this Court held that where two defendants' positions are at variance (one plead guilty and the other not guilty), they may not be represented by the same counsel. Counsel may not sacrifice the interests of one client for the benefit of the other. See Commonwealth ex rel. Gass v. Maroney, 208 Pa. Superior Ct. 172, 220 A.2d 405 (1966). However where no conflict exists there is no harm in dual representation, Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968). Counsel is effective (and thus no conflict) if there is a reasonable basis upon which counsel seeks to effectuate his client's interests, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The reasonable basis in the present case was the overwhelming evidence indicating guilt of a felony murder involving both of his clients. It appears that the strategy taken by counsel resulting in a second degree conviction and only a 10-20 year sentence was both reasonable and successful, Commonwealth v. Wilson, supra.
The case which most closely approximates the instant case is that of Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966). In that case the defendants had identical testimony of alibi. They were reinforcing each other's story instead of exonerating themselves at the expense of the other. Our Court unanimously found no conflict of interest. The only difference in the present case is that the statements were not exculpatory but were incriminatory.
However each was willing to take the stand and swear to the same exact thing. It was part of their strategy not to cross-examine and impeach each other's ...