No. 351 OCTOBER TERM, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, at No. 536 of 1975.
William R. Bernhart, Reading, for appellant.
Charles A. Haddad, District Attorney, Reading, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Spaeth, JJ., concur in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appeal is taken from judgment of sentence rendered following jury trial and conviction as to charges of aiding consummation of crime, receiving stolen property, and criminal conspiracy.*fn1 These charges stemmed from an incident in which two individuals, Michael Folk and Kevin Hogue, removed 23 rifles and handguns from a residence in Berks County. These two were witnesses at the trial of appellant, and they each testified to the effect that they were indebted for the payment of the balance of the premium for their bail bonds to appellant, who was insisting upon payment, and who instructed them that the way to satisfy the debt would be to steal the items involved in the theft. This was done on the night of June 15, 1974, and the two men delivered the stolen items to the home of appellant, whereupon they
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received a certain amount of cash for their work. Charges against Folk and Hogue, the two who committed the breaking, entering, and theft, were handled separately and apart from the charges against appellant.
Trial of appellant began on June 11, 1975, with Attorney Fred Noch serving as privately-retained counsel. Prior thereto Mr. Noch had served as counsel for the witness Folk in separate legal proceedings against him. Pertinent facts brought out at an evidentiary hearing on Biancone's motion for a new trial and in arrest of judgment, held December 30, 1975, are these: On November 14, 1974, Noch entered his appearance as counsel for Michael Folk in a number of criminal actions against Folk. The dockets of these cases show that on February 3, 1975, a fellow public defender with Noch, by the name of Attorney Rizzuto, entered his appearance for Folk. The record does not show Noch's withdrawal of appearance. However in May of 1975 Noch resigned from the public defender's office and turned over all cases to other staff members. Noch testified that his representation of Folk actually had terminated on the date in February when Rizzuto took over the Folk case and appeared before the court in Folk's behalf. Noch's representation of Biancone began on June 5, 1975, and continued until November of 1975.
In this connection, appellant now argues that he was denied effective counsel because his trial attorney had earlier represented one of the witnesses for the prosecution. The right to effective counsel is constitutional. "Inherent in the right to effective assistance of counsel is the correlative right to be represented by counsel unburdened by any conflict of interest." Commonwealth v. Breaker, 456 Pa. 341, 343, 318 A.2d 354, 355 (1974). Our Supreme Court has stated that the defendant must show that a conflict exists, inherent in which is the possibility of harm or prejudice. But the mere fact of dual representation does not of itself fulfill this requirement of proof. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).
Most of the discussion of the subject of counsel's conflict of interest has arisen when the attorney has represented
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co-defendant's at the same trial. Instantly appellant's counsel was representing only the appellant in his separate trial. A conflict of interest exists when trial counsel represents more than one defendant and is prevented from advancing the best defense for each defendant because the best defense for one is inconsistent with or interferes and conflicts with the best defense for another. As we said in Commonwealth v. Armbruster, 225 Pa. Super. 415, 311 A.2d 672 (1973) a party claiming a conflict of interest "must at least show the possibility of harm, e. g., 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." 225 Pa. Super. 417-418, 311 A.2d p. 673 (citations omitted). A party claiming a conflict of interest must show that in some way counsel neglected his defense in order to favor another. All during the time that Mr. Noch was defending appellant he was completely free to present whatever defense was best for his client. He owed no allegiance to Folk which would require him to neglect appellant or constrain or temper his efforts in behalf of him. Attorney Rizzuto had taken over the representation of Folk's post trial proceedings before appellant hired Noch.*fn2 The only claim which appellant makes of lack of effort on the part of his counsel is that Mr. Noch's cross examination covered only 10 pages in the transcript of testimony. Every ...