decided: June 22, 1971.
Appeal from order of Court of Common Pleas of Dauphin County, Jan. T., 1962, Nos. 18, 24, 25, and 26, in case of Commonwealth of Pennsylvania v. Ronald Gene Richwine.
William H. Saye, Assistant Public Defender, for appellant.
Jerome T. Foerster, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.
[ 219 Pa. Super. Page 333]
Appellant, Ronald Richwine pleaded guilty to four counts of robbery. At trial both appellant and his two co-defendants were represented by the same attorney. The co-defendants pleaded not guilty. Richwine was called to testify on behalf of one of the co-defendants and at that time repudiated an earlier implicating statement.
Appellant has now filed a petition pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1970). His sole allegation is that he was denied his constitutional
[ 219 Pa. Super. Page 334]
right to effective counsel. His petition states in support of this allegation:
"That petitioner and several co-defendants were represented by the same counsel at time of trial. There were pleas of guilty and not guilty entered which, in themselves, created a conflict of interests that petitioner claims resulted in the denial of his constitutional right to the effective assistance of counsel.
"Under the law, counsel could not represent both petitioner and the co-defendants at the same time."
On October 30, 1970, the Court of Oyer and Terminer of Dauphin County dismissed the Post Conviction Hearing Act petition without a hearing. This appeal followed.
If a petition alleges facts "that if proven would entitle the petitioner to relief the court shall grant a hearing." Post Conviction Hearing Act, supra, § 9; Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968). Appellant's allegation is sufficient to warrant a hearing on the conflict of interest claim. See Commonwealth v. Cullen, 216 Pa. Superior Ct. 23, 260 A.2d 818 (1969).
The order of the court below is vacated and the record remanded for a hearing.
Order vacated and record remanded.
© 1998 VersusLaw Inc.