No. 1374 October Term, 1977, Appeal from Order of Court of the Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 732/734 October Term, 1966.
Irvin J. Kopf, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Jacobs, former President Judge, Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 263 Pa. Super. Page 167]
On January 25, 1967, appellant, Charles Dockins, and his co-defendant, Lawrence Ryan, were brought before the court on charges of aggravated robbery, conspiracy, and carrying a concealed weapon. The alleged incident occurred in Philadelphia, Pennsylvania. At the trial, both defendants were represented by the same attorney, Morris Passon. Both men pleaded not guilty to all charges and on the advice of counsel both waived the right to a jury trial. After the Commonwealth presented its case, the defendants indicated that they wished to change their pleas and enter guilty pleas to aggravated robbery and conspiracy. The trial court accepted the guilty pleas. The defendants demurred to the charge of carrying a concealed weapon and the court apparently sustained their demurrer. Ryan received a sentence of four to twenty-three months. Appellant's sentence was more severe, a one to three year term, because the trial
[ 263 Pa. Super. Page 168]
court found that appellant was the aggressor in the robbery and because appellant had appeared before the court on other charges.
Appellant did not file a direct appeal. However, after waiting seven years, appellant challenged the validity of his conviction under the Post Conviction Hearing Act. The lower court, after a hearing, denied appellant's petition and he now appeals to this court. We have reviewed all of appellant's arguments and found them to be lacking in merit. For this reason we affirm appellant's conviction.
Appellant makes numerous claims of error, of which we need only discuss the following. First, appellant contends that trial counsel did not represent him effectively because counsel also represented appellant's co-defendant at trial. Appellant claims that trial counsel labored under a conflict of interest and that as a result counsel did not give due consideration to appellant's interest. We disagree.
It is well established that dual representation, in and of itself, does not amount to a conflict of interest. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974); Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970). To succeed on this ground, an accused must prove both 1) that there was a dual representation, and 2) that as a result, a conflict of interest actually existed. Commonwealth v. Sullivan, 472 Pa. at 161, 371 A.2d 468. Commonwealth v. Breaker, 456 Pa. at 345, 318 A.2d 354. Furthermore, "[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, . . . but he must at least show the possibility of harm . . . ." Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968). See also Commonwealth v. Breaker, 456 Pa. at 345, 318 A.2d 354. An accused can demonstrate possible harm by showing that the defense advanced by appellant at trial was inconsistent with that of his co-defendant or by showing that counsel neglected appellant's case and instead concentrated on the co-defendant's case. Commonwealth v. Breaker, 456 Pa. at 345, 318 A.2d 354; Commonwealth v. Cox, 441 Pa. 64, 69,
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A.2d 207 (1970); Commonwealth v. Wilson, 429 Pa. at ...