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COMMONWEALTH v. DAWUD (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
DAWUD, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1966, Nos. 612, 613 and 614, and June T., 1966, Nos. 187, 323 and 324, in case of Commonwealth of Pennsylvania v. Hassan Dawud.

COUNSEL

Donald K. Stern, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Martin H. Belsky, and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy 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.

Author: Hoffman

[ 218 Pa. Super. Page 293]

On August 8, 1966 appellant entered a plea of guilty to two counts of larceny and receiving stolen goods (Bills Nos. 612 and 613, February Sessions 1966). Appellant also pleaded not guilty to a related charge of conspiracy, while two co-defendants pleaded not guilty to all charges. The three defendants were represented by the same attorney. On the day set for trial, the case of one co-defendant was severed because he failed to appear.*fn1 Appellant's guilty plea was accepted on the larceny and receiving stolen goods charges, and the trial judge accepted a demurrer on the conspiracy charge.

[ 218 Pa. Super. Page 294]

The other co-defendant was found not guilty on all Bills.

Immediately after this adjudication, appellant pleaded guilty before the same judge and with the same attorney to a totally unrelated larceny charge. After acceptance of this guilty plea, appellant waived a jury trial and pleaded not guilty to two additional, unrelated Bills charging him with larceny, receiving stolen goods and conspiracy.*fn2 The trial court sustained a demurrer to the larceny and receiving stolen goods charges and convicted appellant of conspiracy to commit larceny.

After hearing all the cases, the court sentenced appellant to two to five years on the Bills to which he had pleaded guilty and six to twelve months on the conspiracy to commit larceny charge, all sentences to run concurrently.

Thereafter appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180-1 et seq. (Supp. 1970). After hearing, this petition was denied, and the instant appeal followed.

Appellant contends that he was denied his constitutional right to effective assistance of counsel because his attorney had a conflict of interest. This claim must be measured against the standards articulated in a number of cases beginning with Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). "Whitling sets up a prophylactic rule to prevent possible injury to criminal co-defendants. If counsel has a conflict of interest in his representation of two co-defendants, we are required to ...


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