Appeal from order of Superior Court, Oct. T., 1971, No. 752, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1959, No. 960, in case of Commonwealth of Pennsylvania v. William Breaker.
Francis S. Wright, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Robert Lawler, Michael J. Stiles and James T. Ranney, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this dissenting opinion.
Since at least Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), an essential element of the Sixth Amendment's right to counsel has been the right to "effective assistance of counsel." See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Inherent in the right to effective assistance of counsel is the correlative right to be represented by counsel unburdened by any conflict of interest. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457 (1942); Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). We hold that appellant has established a conflict of interest by demonstrating "the possibility of harm" arising from dual representation when his plea was entered. Commonwealth v. Wheeler, 444 Pa. 164, 281 A.2d 846 (1971); Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968). Therefore, appellant's conviction is reversed, Whitling, supra, and a new trial granted.
Appellant William Breaker on July 20, 1959, entered pleas of guilty to the crimes charged in several indictments. He was sentenced to serve five to twenty years in prison for the crimes charged in a single indictment, with sentences suspended on all other indictments. No direct appeal was taken. On July 28, 1970, appellant filed a petition pursuant to the Post Conviction Hearing Act. Act of January 25, 1966, P.L. (1965) 1580, §§ 1-14, 19 P.S. §§ 1180-1 to -14 (Supp. 1973). Evidentiary hearings were held in October
and November, 1970; on January 11, 1971, by opinion and order the PCHA court denied all relief requested. This order was appealed.
The Superior Court remanded the case to the trial court for resentencing because the record established that appellant's counsel was burdened by a conflict of interest at sentencing. The trial court reimposed the identical sentence of five to twenty years imprisonment. The Superior Court then affirmed by an opinionless per curiam order. Commonwealth v. Breaker, 220 Pa. Superior Ct. 736, 286 A.2d 413 (1971). We granted appellant's petition for allowance of appeal.*fn1 We reverse.
One Frank Mangold was the finger man in this case. While committing a burglary, he was apprehended by the police and upon interrogation confessed to several other burglaries. In hopes of receiving favorable treatment from the Commonwealth, Mangold incriminated other men. As the arresting detective testified in the 1959 trial, "Additional information was received about the other defendants from Mangold, and the arrests came as a result of the information." One of those implicated and arrested was appellant.
Several months later appellant, Mangold, and nine other defendants were called for trial. Although every other defendant was represented by counsel, and Mangold by a privately-retained attorney, when appellant entered the courtroom he was unrepresented. At that time Mangold's attorney volunteered to the court that he would act as appellant's counsel. Immediately thereafter, appellant pleaded guilty to the crimes charged in six indictments.
Our dual representation cases make several principles clear. First, "[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings,
even though no actual harm results. The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion." Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641, 643 (1962). Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because "dual representation alone does not amount to a conflict of interest." Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968); Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A.2d 356 (1965), cert. denied, 386 U.S. 1013, 87 S. Ct. 1361 (1967). Third, "[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, . . . but must at least show the possibility of harm . . . ." Commonwealth v. Wilson, supra at 463, 240 A.2d at 501. Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, "that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense." Id. Accord, Commonwealth v. Cox, 441 Pa. 64, 69, 270 A.2d 207, 209 (1970) (plurality opinion).*fn2
Appellant has amply demonstrated the possibility of harm resulting from being jointly represented by his accuser's counsel.*fn3 ...