No. 480 January Term, 1977, Appeal from the Order of the Superior Court, filed November 22, 1976, at No. 112 October Term, 1975, affirming the Judgment of Sentence imposed by by the Court of Common Pleas, Criminal, of Philadelphia, at No. 38 July Term, 1972
Richard R. Lunenfeld, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., James Garrett, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., concurs in the result. Roberts, J., filed a concurring opinion. Nix, J., files a dissenting opinion. Larsen, J., files a dissenting opinion.
Appellant, James Westbrook, was convicted in 1972 in a non-jury trial of aggravated robbery. Post-verdict motions were denied and appellant was sentenced to two and one-half to seven years' imprisonment. No direct appeal was taken from the judgment of sentence.
In 1974, appellant filed a petition under the Post-Conviction Hearing Act, alleging, inter alia, that he had been
denied the right to direct appeal. Following four hearings, the Court of Common Pleas of Philadelphia granted appellant the right to file an appeal nunc pro tunc in the Superior Court and denied appellant's PCHA petition in all other respects.*fn1 An appeal was filed with the Superior Court, which affirmed the judgment of sentence. Commonwealth v. Westbrook, 245 Pa. Super. 174, 369 A.2d 350 (1976). Appellant then filed a petition for allowance of appeal, which we granted, and this appeal followed.
Appellant argues that he was denied effective assistance of counsel because of a conflict of interest. The facts are as follows. On May 23, 1972, one Robert Really was beaten and robbed by four individuals in South Philadelphia. A week later, Really saw appellant standing in a parking lot. He found a patrolman who, on the basis of Really's identification, arrested appellant.
At trial, appellant attempted to show that his brother, Alphonso, who closely resembled appellant, had robbed Really. Appellant's mother testified that Alphonso had admitted to her that he had committed the crime for which appellant had been charged. Scott Wilson, a detention center social worker, testified that he had interviewed both appellant and Alphonso. At the interview, appellant accused Alphonso of the Really robbery and Alphonso offered no protest.
Detective Anthony Bonsera of the Philadelphia Police Department testified that he had been present after appellant's preliminary hearing when the court was informed that Alphonso was going to confess to the Really robbery. Detective Bonsera then questioned Alphonso, who refused to admit his alleged involvement. Following this discussion, Detective Bonsera allowed appellant, Alphonso and Mrs. Westbrook to confer in private. Following the trio's conference, Mrs. Westbrook told Detective Bonsera that Alphonso was willing to make a statement. Bonsera began to make arrangements to take Alphonso's statement, but before the statement could be taken, Bonsera was informed
that Alphonso, because of the advice of an unnamed public defender, was again unwilling to give any statement. Since appellant was represented by a public defender, he claims he was denied the effective assistance of counsel because of a conflict of interest when another public defender advised Alphonso not to make a statement. We agree and reverse.*fn2
As we stated in Commonwealth v. Breaker, 456 Pa. 341, 344-45, 318 A.2d 354, 356 (1974), when summarizing the law on conflicts of interest:
"Our dual representation cases make several principles clear. First, '[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion.' . . . Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because 'dual representation alone does not amount to a conflict of interest.' . . . Third, '[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, . . . but must at least show the possibility of harm . . . .' . . . Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, 'that he ...