No. 1439 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Columbia County, Criminal Division, Nos. 66, 82, 129, 205, 206, and 359 of 1977 Term.
Robert L. Marks, Public Defender, Danville, for appellant.
Gailey C. Keller, District Attorney, and with him William S. Kreisher, Assistant District Attorney, Bloomsburg, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.
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On June 14, 1977, appellant pleaded guilty to four counts of burglary,*fn1 and one count each of attempted burglary, criminal attempt,*fn2 escape,*fn3 and theft of movable property.*fn4 His plea was accepted, and he then was ordered to pay the costs of prosecution and make restitution to the victims; he was also sentenced to a term of imprisonment of from ten to twenty years on each of the four burglary counts and on the attempted burglary count, and from three and one-half to seven years each on the counts of criminal attempt, escape, and theft of movable property. The sentences were to run concurrently. No post-trial motions were filed, nor was any direct appeal taken from the judgment of sentence. Appellant filed a petition pursuant to the Post Conviction Hearing Act*fn5 (PCHA), alleging ineffectiveness of counsel with regard to his guilty plea. Counsel for appellant was appointed,*fn6 and a hearing date was set. During the hearing on the petition, appellant raised the issue of ineffectiveness of trial counsel due to a conflict of interest, to-wit, the law partner of appellant's counsel represented
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appellant's co-defendant.*fn7 This petition was denied per order dated April 3, 1978. It is from this order that appellant appeals.
On appeal, appellant again contends that a conflict of interest was created by the dual representation of appellant and his co-defendant by the same law firm, and that this conflict resulted in harm to appellant, thus denying him effective representation by competent counsel. Additionally, appellant contends that the sentence imposed on the charge of attempted burglary was illegal. We agree with appellant's latter contention, and therefore vacate the sentence imposed on the attempted burglary charge and remand to the court below for resentencing on that charge.
Initially, we note that representation of co-defendants by different attorneys of the same law firm constitutes dual or joint representation. Accordingly, if it would have constituted a conflict of interest for one attorney to represent both co-defendants, it is equally improper if one law firm represents both co-defendants. In the case of Commonwealth v. Kauffman, 258 Pa. Super. 183, 185, 392 A.2d 745, 746 (1978), this court held:
"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
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him or his firm may accept or continue ...