Appeal from order of Superior Court, Oct. T., 1967, No. 891, affirming judgment of Court of Quarter Sessions of Philadelphia County, Sept. T., 1965, Nos. 592, 593, 594 and 596, in case of Commonwealth v. Robert Small.
Leonard Barkan, for appellant.
Roger F. Cox, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell in Support of Affirmance, May 9, 1969. Opinion by Mr. Justice Roberts in Opposition to the Order, May 9, 1969. Mr. Justice Eagen and Mr. Justice O'Brien join in this opinion.
The Court being equally divided, the judgment of sentence is affirmed.
Opinion by Mr. Chief Justice Bell in Support of Affirmance, May 9, 1969:
In support of the affirmance of the Judgment of Sentence, Mr. Chief Justice Bell files the following Opinion:
The prosecutrix in this case alleged that on two occasions the appellant and two co-defendants forced her to accompany them to a secluded spot on the outskirts of Philadelphia and there, without her consent and against her will, forced her by threats and actual violence (1) to have intercourse with them, and (2) to commit sodomy. One co-defendant was acquitted on all counts; the other co-defendant was found guilty on all counts; the appellant was found guilty of all charges except assault.
At the trial, all three defendants were represented by the same Court-appointed counsel. Appellant Small now alleges that this dual counsel representation involved a conflict of interest which violated his Constitutional right to a fair trial. In order to support this contention, namely, that this representation by one attorney of both the convicted defendants created a conflict of interest, appellant would have us far exceed the scope of the prior conflict-of-interest decisions of this Court, and extend the law in this area. Cf. Commonwealth v. ...