No. 90 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, denying post-conviction relief at No. 3060 April Term, 1972, Criminal Division
Nicholas Radoycis, Jr., McKees Rocks, Court-appointed, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Appellant was convicted of murder of the first degree and sentenced to life imprisonment. On direct appeal to this Court, the judgment of sentence was affirmed. Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974). Appellant was represented by a member of the Public Defender's Office of Allegheny County, Pennsylvania during both of those proceedings. A post-conviction petition was filed by appellant and a hearing was held. During this proceeding
appellant was represented by another member of the Public Defender's Office of Allegheny County. Among other allegations, appellant claimed in his post-conviction petition that he had been denied effective assistance of counsel at trial. Post-conviction relief was denied and an appeal nunc pro tunc was filed and granted by this Court. Thereafter post-conviction counsel was permitted to withdraw and an attorney independent of the Public Defender's Office was appointed to represent appellant in this appeal.*fn1
Appellant now alleges that he was improperly represented by the public defender at his post-conviction hearing because of that counsel's failure to advise appellant of the apparent conflict of interest and possibility of prejudice present when an associate of an office argues the issue of ineffective assistance of trial counsel who was a member of the same office. Specifically appellant is contending that he was entitled to the aid and advice of independent counsel in pursuing the allegation of ineffective assistance during the post-conviction proceeding below. We agree.
We recently stated in Commonwealth v. Fox, 476 Pa. 475, 477, 383 A.2d 199, 200 (1978):
"We have also held that a PCHA petitioner, represented by court-appointed counsel and alleging ineffective assistance of trial counsel, may not be represented by an attorney from the office with which the allegedly ineffective attorney was associated. Commonwealth v. Sherard, 477 Pa. 430, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 398, 374 A.2d 1273 (1977); Commonwealth v. Via, supra."
In Fox we also stated that despite the conflict of interest, we would entertain the claim of ineffective counsel if reversible error is apparent on the record. However, we stressed that we would not reject such a claim without a remand ...