No. 1451 October Term, 1978, Appeal from Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1782-1787, November Term, 1977.
Marilyn J. Gelb, Philadelphia, for appellant.
Thomas J. McGarrigle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn*
[ 272 Pa. Super. Page 447]
Appellant contends that: 1) the evidence is insufficient to support the verdict; and 2) trial counsel was ineffective because he: a) was burdened by a conflict of interest caused by his representation of both appellant and a co-defendant; b) failed to object to a defective pretrial colloquy in which appellant waived the right to separate counsel; c) failed to object to a defective colloquy in which appellant waived his right to trial by jury; and d) failed to object that appellant was convicted and sentenced illegally for two inchoate crimes. We agree that counsel was ineffective for failing to object that appellant could not be convicted and sentenced for two inchoate crimes, remand for resentencing and otherwise affirm.
Appellant and his brother Harry jointly retained an attorney to defend against charges arising from their attack upon members of the Abrams family. Before trial, the court held a hearing to determine whether counsel could, without conflict of interest, represent both defendants and whether the defendants, when made aware of the risks of joint representation, desired to retain separate counsel. The court concluded that counsel could properly represent both defendants, and the defendants stated that they desired to proceed with jointly retained counsel. Appellant also waived the right to trial by jury. On March 8, 1978, the trial court convicted appellant of possession of an instrument of crime, conspiracy and four counts of simple assault. After denying post-verdict motions, the court sentenced appellant to concurrent terms of imprisonment of 2 to 5 years on two counts of assault and concurrent terms of 5 years probation on each
[ 272 Pa. Super. Page 448]
of the other charges. Appellant obtained new counsel and filed this appeal.
Appellant contends that the evidence is insufficient to support the verdict. The Abrams testified that appellant and two of his brothers one night chased several members of their family home, where they threatened to kill the Abrams. The three brothers eventually left, but appellant warned that they would return. About five minutes later, the brothers returned. The Abrams met them on their porch. Appellant pushed one of the Abrams and a fight broke out in which four of the members of the Abrams family were stabbed or cut. Two of the victims testified that they were wounded by appellant's brother Harry, who had held a shiny object. The other two victims did not see who injured them. This evidence is clearly sufficient to prove conspiracy. See Commonwealth v. Terebieniec, 268 Pa. Super. 511, 408 A.2d 1120 (1979). It is also sufficient to prove possession of an instrument of crime, see Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978) and simple assault, see Commonwealth v. Belgrave, 258 Pa. Super. 40, 391 A.2d 662 (1978), for both of which appellant is criminally liable as a conspirator. See Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979).
Appellant contends that trial counsel could not effectively represent him because his defense and that of his brother were inconsistent. See generally Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979) (plurality opinion). Harry's defense was that he acted in self-defense while appellant maintained that he had not struck anyone. These defenses are not antagonistic. Both brothers testified that they had been attacked by the Abrams and neither implicated the other. Thus, counsel was not laboring under a conflict of interest that would hamper effective representation. See Commonwealth v. Williams, 435 Pa. 550, 257 A.2d 544 (1969); Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966).
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Appellant argues that trial counsel was ineffective for not objecting that the pretrial colloquy, in which he waived the right to separate counsel, was defective.*fn1 We need determine the validity of such a colloquy only if a conflict of interest existed. See Commonwealth v. Werner, 217 Pa. Super. 49, 268 A.2d 195 (1970). Because we have concluded that there was no conflict of interest, appellant's claim is without merit. Consequently, trial counsel was not ...