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COMMONWEALTH v. BUTLER (06/12/69)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 12, 1969.

COMMONWEALTH
v.
BUTLER, APPELLANT

Appeal from order of Criminal Courts of Centre County, June T., 1966, Nos. 176 and 181, in case of Commonwealth of Pennsylvania v. Thomas A. Butler.

COUNSEL

Charles J. Weyandt, for appellant.

Charles C. Brown, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 214 Pa. Super. Page 458]

Order affirmed.

Disposition

Order affirmed.

Concurring Opinion by Hoffman, J.:

Appellant maintains that he was improperly represented at his guilty plea hearing because his attorney also represented his co-defendant who likewise pleaded guilty.

Appellant fails, however, to maintain that a defense was available to him which was inconsistent with the position taken by his co-defendant.

The principles governing this case are supplied by Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) and Commonwealth v. Resinger, 432 Pa. 398, 248 A.2d 55 (1968).

In Whitling, the Court stated that "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." Throughout the cases following Whitling, and most recently in Resinger, this has been interpreted to mean that a defendant must show an actual conflict and only the potential of harm ensuing therefrom.

[ 214 Pa. Super. Page 459]

Here, appellant has failed to demonstrate that there was an actual conflict between his representation and that of his co-defendant, insofar as he does not allege that inconsistent defenses were available to either. Cf. Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498 (1968).

19690612

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