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COMMONWEALTH v. ARMBRUSTER (11/16/73)

decided: November 16, 1973.

COMMONWEALTH
v.
ARMBRUSTER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, Nos. 1776 and 1785, in case of Commonwealth of Pennsylvania v. William Armbruster.

COUNSEL

Nino V. Tinari, for appellant.

Charles A. Haddad, James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 225 Pa. Super. Page 416]

Appellant and his co-defendant were tried together for blackmail and conspiracy and found guilty by a jury.

Appellant's first argument is that he was deprived of his constitutional right to effective assistance of counsel. He and his co-defendant each had separate counsel. However, counsel were apparently partners in the same firm,*fn* and appellant argues that "one law

[ 225 Pa. Super. Page 417]

    firm cannot effectively represent co-defendants with conflicts of interest."

The difficulty with appellant's argument is that he does not identify any conflict of interest as a result of which he might have been harmed, nor does any appear on the record. Indeed, appellant's brief states: "It is clear from the record that defense counsel exerted every effort in the defense of the co-defendants. Counsel strived to obtain not guilty verdicts for both defendants." (Emphasis in original.)

In Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968), two gang members had been represented by one attorney on a charge of murder. On advice of counsel, Wilson had pleaded guilty to murder, while his co-defendant had pleaded guilty to second-degree murder. The court held that dual representation by one attorney was not enough standing alone to create an inherent conflict of interest. "Admittedly [ Commonwealth ex rel. ] Whitling [ v. Russell, 406 Pa. 45, 176 A.2d 641 (1962)] announces the prophylatic rule that whenever a conflict of interest reveals itself to an appellate court the conviction below cannot stand, even though the appellant may have been unable to show that any specific harm befell him at trial. However, one never reaches this prophylactic rule unless and until the defendant can demonstrate that a conflict in fact existed at trial. Unfortunately for appellant, there is no prophylactic rule equating dual representation with conflict of interest. Quite the contrary, this court has held that dual representation alone does not amount to a conflict of interest. See Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A.2d 356 (1965), cert. denied, 386 U.S. 1013 . . . (1967). To make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, for that would vitiate Whitling but he must at least show the possibility of harm, e.g., that he had a defense inconsistent with that

[ 225 Pa. Super. Page 418]

    advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense. Cf. Commonwealth v. Meehan, 409 Pa. 616, 187 A.2d 579 (1963)." 429 Pa. at 463, 240 A.2d 498, 501 (1968) (emphasis in original). Accord, Commonwealth v. Wheeler, 444 Pa. 164, 281 A.2d 846 (1971); Commonwealth v. Williams, ...


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