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COMMONWEALTH v. SMITH (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1968, No. 546, in case of Commonwealth of Pennsylvania v. Carol Smith.

COUNSEL

John J. Dean and John H. Corbett, Jr., Trial Defenders, and George H. Ross, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 228 Pa. Super. Page 257]

The sole meritorious issue presented in this appeal is whether the representation of the appellant and his co-defendants by a single attorney was such a conflict of interest as to be a denial of due process of law and effective assistance of counsel.

The case is before this Court from an Order denying appellant's petition for post-conviction relief. Appellant was found guilty by the Honorable J. Frank McKenna, Jr., sitting without a jury, on charges of possession and use of narcotic drugs. A demurrer was sustained on the charge of dealing in narcotic drugs. Armed with an arrest warrant for David Pannill, officers from the Pittsburgh Police Department gained entrance into Pannill's apartment after they noticed Pannill flushing something down his toilet as the officers stood in the partially-opened doorway of his apartment. Police retrieved a syringe and a packet of narcotics. They then arrested and searched Pannill and the other occupants of the apartment, Claudia Pannill and the appellant. A body search of the appellant disclosed a packet of narcotics. At trial, all three defendants pleaded not guilty. Counsel for the defendants, however, placed the appellant on the stand and

[ 228 Pa. Super. Page 258]

    permitted him to testify that the syringe and drugs were his, and that he had brought them to the apartment.

Since Glasser v. United States, 315 U.S. 60 (1942), the Supreme Court of the United States has recognized that great care must be taken to ascertain whether an attorney representing multiple defendants does not face a conflict of interest in so doing, depriving the defendant-petitioner of due process of law and effective assistance of counsel.

Our Supreme Court held that dual representation does not in and of itself create a conflict of interest. Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968). Nevertheless, the Supreme Court held that "[i]f, 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 result, furnishes the appropriate criterion." Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641 (1962).

But, as the Pennsylvania Supreme Court pointed out, in Commonwealth v. Wheeler, 444 Pa. 164, 167, 281 A.2d 846 (1971): ". . . [T]o state that the existence of an apparent conflict of interest vitiates the proceedings does not answer the preliminary question whether a conflict of interest did in fact exist at the time of trial." Such a conflict must appear from the facts of the proceedings as they exist on the record.

In the instant case, all the defendants pleaded not guilty. In entering such pleas, counsel had a duty to put each of his clients in the best possible light before the trial court. Commonwealth v. Cullen, 216 Pa. Superior Ct. 23, 260 A.2d 818 (1969). By placing the appellant in a position where he ...


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