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decided: June 16, 1972.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1963, Nos. 1886 to 1890, inclusive, in case of Commonwealth of Pennsylvania v. Earl A. Henry.


Morris H. Wolff, for appellant.

James Garrett 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, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., and Cercone, J., would affirm on the opinion of Judge Doty.

Author: Hoffman

[ 222 Pa. Super. Page 199]

In this appeal from the denial of his Post Conviction Hearing Act petition, appellant contends that his 1963 guilty plea to aggravated robbery, conspiracy, and assault should be vacated because his counsel was subject to a conflict of interest.

Appellant's trial was held before the Honorable Raymond Pace Alexander without a jury. Appellant was tried together with two other co-defendants for his alleged participation in an armed robbery which occurred on January 12, 1963, in Philadelphia.

At the outset of the trial, counsel from the Defender Association of Philadelphia was appointed by the court for appellant and co-defendant Ezra T. Childs. Counsel for appellant thus represented both appellant and co-defendant Childs. Upon his appointment, appellant's counsel entered a general plea of guilty on behalf of appellant. A plea of not guilty was entered on behalf of co-defendant Childs.

During the course of the co-defendant's trial, counsel for appellant concluded that it would be beneficial to the co-defendant to have the appellant testify. Prior to the completion of the Commonwealth's case counsel realized the ramifications of his calling appellant to exonerate the co-defendant, and the following colloquy occurred: "Counsel: Your Honor, I find myself in a unique position. I am both counsel for a defendant who has pleaded guilty and counsel for a defendant who has pleaded not guilty. As counsel for the defendant who pleaded not guilty I desire to call Mr. Henry to the stand. As counsel for Mr. Henry I have advised him of the implications of coming to the stand. It has been his decision that he desires not to be called as a witness by myself on behalf of Childs or Robinson. He desires not to be called by me as counsel for Childs. [emphasis added.] The Court: He does not wish to appear

[ 222 Pa. Super. Page 200]

    as a witness on behalf of Childs? Counsel: Yes, Your Honor. He is in the position of having pleaded guilty. I think he has no privilege against self-incrimination; on the other hand, I don't think I can compel him to testify. The Court: Is it your desire that he testify for Childs? Counsel: As Childs' lawyer, yes; as Henry's lawyer there are problems and I have advised him of the problems. The Court: This has created a problem. You feel you need Henry for good and sufficient reason to assist Childs in his case? Counsel: Yes, sir. I would beg the court's advice on this matter, how I might proceed. And perhaps the court may advise the defendant Henry if he has an alternative. District Attorney: I appreciate [defense counsel's] position, but I must state to the court that the court acting more or less in the capacity as referee as to the defendants could understand that for the court to make the decision would be tantamount to acting as counsel and should there be any error it would be on the court's decision by stating, 'You shall or shall not testify.' And I would suggest that the court not make this decision. This is a burden that the Voluntary Defender has. Uneasy as it may be he still must make that decision. And I ask the court not to make that decision on his behalf. The Court: It is the court's responsibility though, and the court feels in the interest of justice that he should be called. The court could call him as the court's witness. That is an unenviable position and I don't appreciate it. I have no desire to know for what purpose you are calling Henry. It is a dangerous situation. Counsel: I am also bound by whatever my witness says. As Childs' lawyer I think I am required to make an attempt to bring every witness who may cast light on his defense."

After the Commonwealth had rested its case, defense counsel made a formal ...

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