No. 1547 October Term, 1975 Appeal from Order of Court of Common Pleas of Chester County, Honorable John M. Kurtz, Jr., P.J., dismissing Petition under Post Conviction Hearing Act, 223J-223S March Term, 1970, 71-71A May Term, 1970, 137 September Term, 1970.
Terry W. Knox, West Chester, for appellant.
Timothy H. Knauer, Assistant District Attorney, West Chester, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Jacobs, J., dissents on the basis of Commonwealth v. Handy,
[ 245 Pa. Super. Page 339]
This is an appeal from an order of the Court of Common Pleas of Chester County dismissing a Petition under the Post Conviction Hearing Act after an evidentiary hearing. The appellant alleged inadequacy of counsel because of improper dual representation.
The proceedings arose out of an incident which occurred at an apartment complex on April 19, 1970, involving the appellant, Irvin Knight, Herbert Handy and John Mitchell. The appellant was represented in all proceedings, except in the instant appeal, by Attorney William McLaughlin who also represented Handy. Mitchell had separate counsel throughout the trial.
At the time of his arrest, Handy gave a written statement to the officers which incriminated himself and the other co-defendants. All were tried together and all were convicted. The appellant and Mitchell were convicted of robbery with an accomplice, assault and battery, larceny, rape and conspiracy; Handy was convicted of all these charges plus aggravated assault and battery.
[ 245 Pa. Super. Page 340]
At the trial, the Handy statement was not introduced. Handy did not take the stand but the appellant did. The appellant in his testimony incriminated Handy as to the aggravated assault and battery, of which Handy alone was subsequently convicted. The appellant's testimony was to the effect that Handy was seen beating one of the victims with a belt buckle. The defense in both Handy's and the appellant's cases was consent to the entry on the premises and consent to the intercourse.
After the entry of the verdicts and the denial of post-trial motions, both appellant and Handy were represented by Attorney McLaughlin at sentencing. At the sentencing, Attorney McLaughlin said of Handy:
". . . And I think because of his age and he seemed to be under the instructions of that older man that he should not be dealt with on the same footing with them."
At the time of the offense appellant was 19 years old; Handy was 21 and Mitchell was 31. Both the appellant and Handy received the same sentence.
Both convictions, on appeal, were sustained by this Court per curiam. Commonwealth v. Handy, 225 Pa. Super. 721, 306 A.2d 340, (1973) and Commonwealth v. Knight, ...