No. 234 March Term, 1977, Appeal from Opinion and Order of Court of Common Pleas of the 39th Judicial District of Pennsylvania, Franklin County Branch, Criminal Division, on October 8, 1976.
George E. Wenger, Jr., Chambersburg, for appellant.
John R. Walker, District Attorney, Chambersburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 184]
In connection with the felling of the Smokey Mountain Fire Tower, appellant and two co-defendants were charged and convicted of criminal mischief and criminal conspiracy under Sections 3304(a)(2) and 903(a)(1) of the Pennsylvania Crimes Code. Act of December 6, 1972, P.L. 1482, § 1, 18 P.S. §§ 903 and 3304 (1973). Each defendant was represented by court-appointed counsel from the Office of the Franklin County Public Defender. Appellant and co-defendant Edward T. Miller appealed their convictions to this court. We affirmed. Commonwealth v. Miller, 234 Pa. Super. 146, 339 A.2d 573 (1975). Appellant subsequently filed a post-conviction petition pursuant to the Post Conviction Hearing Act. Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1974). In his petition, appellant alleged: (1) that counsel's failure to advise him of the Superior Court's affirmance of his conviction and of his right to a timely appeal to the Supreme Court was a denial of effective assistance of counsel; (2) appellant and co-defendant's representation by the same public defender's office was a conflict of interest denying appellant his right to effective assistance of counsel.*fn1
The PCHA court found that appellant had been denied the right to petition for allocatur, but held that it was without
[ 258 Pa. Super. Page 185]
authority to grant the right to file a nunc pro tunc petition for allowance of appeal. We need not decide whether this conclusion was correct (but see Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977),) because appellant now disclaims any interest in seeking further review of the issues raised on his direct appeal, apparently because one of his co-defendants obtained Supreme Court review of the same issues, and affirmance resulted. Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976).
As to the claim of conflict of interest, we note that we agree with appellant that if it was improper for one public defender to represent more than one co-defendant, it was equally improper for two or more to do so. Disciplinary Rule 5-105(D) of the Code of Professional Responsibility states:
"If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, associate or any other lawyer affiliated with him or his firm may accept or continue such employment."
This language clearly includes members of the same defender office; compare Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).
However, we are unable to agree with appellant's contention that joint representation is constitutionally forbidden in the absence of an explicit waiver. In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, ...