No. 2386 October Term, 1977, No. 2481 October Term, 1977, Appeals from Judgments of Sentence in the Court of Common Pleas, Criminal Division, Lebanon County, Action Nos. 279 and 276, 1976, respectively.
Joel M. Breitstein, Lebanon, for appellant at No. 2386.
Keith L. Kilgore, Lebanon, for appellant at No. 2481.
Thomas S. Long, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion in which Price, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 191]
The instant separate appeals, taken on behalf of brothers Frank and Ralph Bracero, raise the question of whether they were denied effective assistance of counsel due to a conflict of interest during their joint trial for aggravated assaults they allegedly perpetrated on Angel and Geraldo Rolon. The relevant facts are as follows:
In April, 1976 an altercation between the Braceros and Rolons arose at a baseball field and resulted in the Rolons being bludgeoned by baseball bats. According to the Rolons the culprits were appellants Ralph and Frank Bracero, and their father Manolin. When appellants were arrested and charged with aggravated assault, they requested that counsel be appointed to defend them. Consequently, the court appointed Mr. Wiley Parker to represent them, and Mr. Parker satisfied himself that no conflict of interest would arise from dual representation of the brothers. The case proceeded to jury trial wherein the Rolons provided the aforementioned testimony concerning the assaults. Both Ralph and Frank Bracero testified on their own behalf and stated that their brother Alfredo and their father Manolin
[ 262 Pa. Super. Page 192]
were the assailants. The jury chose to believe the Rolons and appellants were convicted.*fn1 Post trial motions were filed and denied and it was approximately one year after appellant's trial, before Mr. Parker filed a petition for leave to withdraw as counsel for Ralph Bracero. As its basis the petition merely averred:
"A conflict has arisen between the two defendants which precludes your applicant from continuing to represent both of them at the time of sentencing and on appeal."
There was nothing further in the petition sufficient to indicate the nature of the conflict, nor any indication that it had existed, much less tainted proceedings, previously. However, since the request was simply for leave to withdraw as counsel, the court granted it without further inquiry into the nature and severity of the conflict.*fn2 New counsel was appointed and represented Ralph Bracero during sentencing and in this appeal.
On November 29, 1977 Mr. Parker filed another petition for leave to withdraw, this time as counsel for Frank Bracero, because Frank Bracero wished to challenge Mr. Parker's effectiveness at trial on ...