Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1968, Nos. 254 and 255, in case of Commonwealth of Pennsylvania v. Martin Werner.
John W. Packel, Assistant Defender, with him Thomas Watkins, and Melvin Dildine, Assistant Defenders, and Vincent Ziccardi, Acting Defender, for appellant.
James D. Crawford, Deputy District Attorney, with him J. Bruce McKissock, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.
[ 217 Pa. Super. Page 51]
Appellant was convicted by a jury of burglary and possession of burglary tools. Appellant's counsel also represented two others, both of whom were charged with the same offenses arising out of the same incident. They pleaded guilty before the time of appellant's trial.
Before appellant's trial began, the following appears of record:
"[The district attorney]: Your honor, [defense counsel] has indicated by his request for a bring down for the two co-defendants in this case that he is going to elicit their testimony in behalf of the defendant apparently to exonerate him of the charge. [Defense counsel] also indicated he represented those two defendants when they pleaded guilty on a prior occasion. That raises in my mind, in view of the cases of Commonwealth ex rel. Whitling versus Russell, 406 Pa. 45 [176 A.2d 641 (1962),] and also Commonwealth ex rel. Gass versus Maroney, 208 Pa. Superior Ct. 172, [220 A.2d 405 (1966),] a problem of a conflict of interest in the sense that the apparent situation would be, particularly in view of the guilty pleas, your Honor,
[ 217 Pa. Super. Page 52]
and perhaps also in regard to this case, that [defense counsel] had advised the two men to plead guilty and then to testify in behalf of this defendant, which in my mind, particularly in light of the Gass case would give rise to a colorable claim of conflict of interest, particularly with regard to the two persons who pleaded guilty. . . .
"[Defense counsel]: Your Honor, at that trial nothing was said concerning the third person, [appellant]. I am glad that the Assistant District Attorney has brought to the attention of the court this possibility of a conflict of interest. We reviewed this yesterday, and I do not see where there would be conflict. It would be a conflict if it were the reverse: If the witnesses were to try to implicate this third person. [The district attorney]: No, if they were called by me to implicate him, there would be no conflict. The question here is one of counsel's playing off two defendants in favor of the third. Particularly with regard to the guilty pleas, these men in a post conviction proceeding -- The Court: I think that you are on very thin ice, [defense counsel]. You represented two men who pleaded guilty and who have been sentenced to jail. There is a question of when they are to be released on probation. Now they come in and testify -- [The district attorney]: Exonerating apparently this man. It runs the risk of vitiating two valid guilty pleas. . . .
"[The district attorney]: They pleaded guilty on December 18, 1968. I have raised with [defense counsel] the problem that if those persons, co-defendants, were to testify in your behalf, it would seem to me that it would raise the problem of a conflict of interest among defendants as to defense counsel. [Defense counsel] has indicated that the problem will not arise because he does not plan to call those two persons as ...