Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1937, No. 834, in case of Commonwealth of Pennsylvania v. Edward Wheeler.
Alan M. Lerner, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellant.
Richard Max Bockol 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.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell dissents.
Appellant and a co-defendant were charged with murder in 1937; each pled not guilty at their arraignment and separate counsel were appointed. Subsequently both withdrew their pleas of not guilty and
entered guilty pleas to murder generally. A court en banc was convened to determine the degree of guilt and the penalty to be imposed. Each was found guilty of murder in the first degree and life sentences were imposed. That judgment of sentence was never attacked until appellant filed a petition under the provisions of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1971). Following an evidentiary hearing, the court below denied relief and this appeal followed.
Although appellant was represented by a different, court-appointed attorney than his co-defendant, appellant's principal contention is that the effective assistance of his actual counsel was precluded by an impermissible conflict of interest. Alternatively, appellant contends that the representation by his counsel of record was wholly inadequate.
Due to the presence of different counsel, appellant's situation appears, at first glance, to be an unlikely candidate for "dual representation" treatment. When we turn to the record, however, the basis for appellant's argument is obvious: appellant's court-appointed counsel did not utter one word during the degree-of-guilt and sentencing hearing. Indeed, appellant's counsel did not even conduct the direct examination of appellant; every shred of evidence was presented by the co-defendant's counsel. Moreover, not until the twenty-second page (the conclusion of the Commonwealth's case) of this thirty-two page record is there any indication that the evidence theretofore received was to be used against someone besides appellant even though co-defendant's counsel had single-handedly conducted all cross-examinations. Were it not for the presence of appellant's counsel's name on the cover of the transcript and counsel's petition for payment of counsel fees, there would be absolutely no evidence that appellant had separate counsel.
The explicit assumption of the court below that both counsel collaborated finds no support in the record before us. On these facts we have no recourse but to conclude that co-defendant's counsel represented both appellant and his co-defendant in a dual capacity. This finding, of course, does not answer the ultimate question whether there was a conflict of interest.
It is axiomatic constitutional law that the Sixth Amendment guarantee of effective assistance of counsel requires, inter alia, that an attorney representing multiple defendants not be faced with a conflict of interest. Glasser v. United States, 315 U.S. 60 (1942); Com. ex rel. Whitling v. Russell 406 Pa. 45, 176 A.2d 641 (1962). In Whitling, we reversed the Superior Court, which had placed the burden on the accused to demonstrate that ineffective representation was a consequence of the conflict of interest, and pertinently stated: "If, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such a conflict vitiates the proceedings, even though no actual harm results. The potentiality that such harm may result, rather than that such harm did ...