No. 2608 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lackawanna County, Criminal Division, No. 283, 1977
Todd J. O'Malley, Scranton, for appellant.
Robert J. Farrell, Assistant District Attorney, Scranton, for Commonwealth, appellee.
Price, Gates and Dowling,*fn* JJ. Gates, J., files a dissenting opinion.
[ 270 Pa. Super. Page 314]
Appellant was convicted in a bench trial of conspiracy to deliver a controlled substance under 18 Pa.C.S.A. § 903.*fn1 He asserts several grounds for relief one of which justifies reversal.
Yannariello was tried along with three co-defendants and at the conclusion of the Commonwealth's case, the trial judge, upon motion of counsel for two of the defendants, entered a severance so that these defendants could testify for the Commonwealth pursuant to a last minute plea bargain arrangement. The appellant and the remaining co-defendant, one James Matthews, were represented by the same attorney. When the severance was granted over his objection, he immediately requested a continuance of the proceedings "on the basis that there may be a conflict of interest with me representing Mr. Matthews and Mr. Yannariello at the same time" (245a). This request was denied and immediately thereafter one of the severed plea bargaining defendants testified against appellant who was subsequently convicted of criminal conspiracy.
At the time his counsel moved for a continuance there was no inquiry as to appellant's wishes. The record does not indicate that he was consulted in any way. Yet when the court ordered separate trials for two of appellant's co-defendants, a conflict arose between the interests of appellant and the remaining co-defendant, Matthews. Due to the fact
[ 270 Pa. Super. Page 315]
that both were represented by the same counsel, their ability to strike a plea bargain with the district attorney was severely hampered. At the very least there should have been a colloquy on the record ascertaining whether the appellant would acquiesce in the continued multiple representation.
This is somewhat analogous to not only preventing the manager from making a pitching change when a pinch hitter is suddenly announced, but even refusing to let him consult his pitcher to see if he wants to face a new batter. The trial court's reason for refusing the continuance was that while he recognized the possibility of a conflict of interest and would not be adverse to granting a continuance, "we must face the reality of what we are confronted with. We have today and one additional day in this term of criminal court . . . [i]t would frustrate, I think, the completion of this trial with any reasonable time period and that is the only person why I have difficulty in coping with that problem and will deny the continuance at this point." (245a-246a)
We acknowledge the magnitude of the dilemma confronting trial courts when the harsh realities of court administration collide with judicial ideals, such as happened here. However, as the United States Court of Appeals for the Third Circuit recently stated in a related context:
". . . no defendant should ever be deprived of a fair trial because it is easier or more economical for the government to try several defendants in one trial rather than have protracted multiple trials. The goal of the judicial process is not to decide cases as quickly and as inexpensively as possible." U. S. v. Boscia, 573 F.2d 827, 833 (3rd Cir. 1978) cert. denied 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411.
The controlling principle is stated in Commonwealth v. Breaker, 456 Pa. 341, 344, 345, 318 A.2d 354, 356 (1974):
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 ...