Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1969, No. 321, in case of Commonwealth of Pennsylvania v. William Booker.
Joseph M. Casey and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
[ 219 Pa. Super. Page 92]
Appellant and a co-defendant, Steve Miller, were charged with aggravated robbery. The charge arose from the alleged theft of a transistor radio on March 8, 1969. Each pleaded not guilty and waived a jury trial; they were to be tried jointly.
The joint trial started on October 1, 1969, with both defendants represented by the same counsel. The second Commonwealth witness was Officer Bailey, one of the arresting officers, who observed the incident leading to the arrest. In response to a question by the district attorney on direct examination, Officer Bailey stated: "At this particular time Miller threw the radio in Booker's direction and Booker stated, 'He took it, I didn't.'" Joint counsel for appellant and his co-defendant promptly objected and moved for a mistrial. The trial judge refused the motion for a mistrial, observing that this remark was not a cause for mistrial as to Booker. The judge did allow a severance as to
[ 219 Pa. Super. Page 93]
Miller and stated he would be tried immediately after the Booker trial was concluded. The trial as to Booker then continued.
Cross-examination of Officer Bailey disclosed that it was Miller, not Booker, who made the statement: "He took it, I didn't." An extensive examination by the court further confirmed that it was Miller who made the statement. Near the end of the trial, after Booker had testified in his own behalf, counsel requested that Miller be called to testify; a moment later he changed his mind and did not call Miller. At the conclusion of the trial, Booker was adjudged guilty of aggravated robbery and sentence was deferred.
Two days later, on October 3, 1969, Miller was brought to trial. Before the trial began, counsel attempted to withdraw as Miller's counsel because he believed that representing both Booker and Miller would constitute a conflict of interest in view of all the facts surrounding the cases; the judge refused this request. The judge did insist on a jury trial for Miller.
During Miller's trial, counsel called Booker to testify for the defense. The trial judge sent for another attorney to represent Booker and warned Booker of his constitutional right against self-incrimination; Booker, thereupon, decided not to testify. On October 7, 1969, the jury found Miller guilty of aggravated robbery.
Appellant filed post-trial motions which were denied.*fn1 One of the claims in the post-trial motions, and the only one raised in this appeal, was that he was denied effective representation of counsel because of a conflict of interest. The lower court held that the record did not indicate that counsel was involved in a conflict of interest between clients and at no time during Booker's ...