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COMMONWEALTH v. DAWUD (03/23/71)

SUPERIOR COURT OF PENNSYLVANIA


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 reverse the convictions of the injured parties without a detailed examination of the record. If there is a 'possibility of harm,'

[ 218 Pa. Super. Page 295]

    it is incumbent upon us to assure that the injured party is retried while represented by counsel whose service is not burdened by a conflict." Commonwealth v. Bostick, 215 Pa. Superior Ct. 488, 490, 258 A.2d 872, 873 (1969).

This Court has considered situations similar to the instant case and has concluded that, where a single attorney represents defendants with differing pleas, at least with regard to the defendant who pleads guilty, "a grave potential of harm" is created. Commonwealth v. Werner, 217 Pa. Superior Ct. 49, 54, 268 A.2d 195 (1970); Commonwealth v. White, 214 Pa. Superior Ct. 264, 252 A.2d 204 (1969). See Commonwealth v. Bostick, supra. In the instant case, appellant pleaded guilty to Bills Nos. 612 and 613. At the time of the entry of appellant's guilty plea, his attorney also represented co-defendants who pleaded not guilty to the same charges. That a potential for harm existed in this case, is illustrated by the fact that a statement by appellant was used by trial counsel to exonerate the co-defendant who was tried with appellant.

Since there is a "possibility of harm" presented as to Bills Nos. 612 and 613, appellant is entitled to a new trial on these charges. However, we find that the conflict of interest was confined solely to the bills upon which appellant was tried with the co-defendant. As to the other bills, there is no indication from the record that any "potentiality of harm" existed. The instant case differs significantly from Commonwealth v. Bostick, supra, in which we held that the "potentiality of harm" extended to bills other than those upon which the defendant was joined with a co-defendant. In the instant case, unlike Bostick, appellant himself proposed consolidating all of the charges against him. He did this in the hope that he would receive a more lenient sentence and that he would be found not guilty on two

[ 218 Pa. Super. Page 296]

    of the charges. In addition, as to those charges to which he pleaded not guilty, appellant did not want to come before the trial court as an "unknown defendant". To the contrary, his trial strategy was to consolidate all the charges in an effort to receive a lesser sentence. Finally, it should be noted that counsel represented only appellant at sentencing, and at that time made detailed arguments for his client in an attempt to secure a lenient sentence.

The order of the court below is thus reversed as to Bills Nos. 612 and 613, February Sessions 1966; and a new trial is granted on these Bills. The order is otherwise affirmed.

Disposition

Order reversed and new trial granted.


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