No. 1080 October Term 1979, Appeal from the Order of the Court of Common Pleas of Northampton County at No. 126 January Term 1975.
Justin K. McCarthy, Bethlehem, for appellant.
Michael E. Riskin, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 277 Pa. Super. Page 382]
Appellant, George Grant (Grant), and his brother were charged with robbery and theft in January 1975 and jointly tried by a jury in Northampton County while represented by different members of the same public defender's office. Both were found guilty of the charges, and Grant was sentenced to a term of seven and one-half to fifteen years imprisonment. Represented by trial counsel, Grant unsuccessfully sought relief on direct appeal.*fn1 He then filed an
[ 277 Pa. Super. Page 383]
uncounselled petition under the Post Conviction Hearing Act*fn2 (PCHA). New counsel, unconnected with the public defender's office, was appointed to represent him, and, after an evidentiary hearing, the PCHA court entered an order denying relief. This is an appeal from that order.
Grant alleges his representation at trial by a member of the same public defender's office which represented his co-defendant resulted in an impermissible conflict of interest which entitles him to a new trial. While it is true that representation by members of the same public defender's office constitutes dual representation, the fact of dual representation alone does not establish a conflict of interest. Commonwealth v. Kauffman, 258 Pa. Super. 183, 392 A.2d 745 (1978); see also, Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979). In order for dual representation to rise to a conflict, a party must make a showing of possible harm. This may be done, inter alia, by showing that the party had a defense inconsistent with the other client or that counsel neglected the party's case in order to give the other client a more spirited defense. Commonwealth v. Knight, 245 Pa. Super. 337, 369 A.2d 431 (1976). Instantly, Grant and his co-defendant asserted separate, independent, alibi defenses, and Grant has made no showing of a possibility of harm resulting from the dual representation. Under the circumstances, denial of relief on this ground was proper.
Grant next complains of five instances of alleged ineffective assistance of trial counsel.*fn3 "[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests."
[ 277 Pa. Super. Page 384]
[Emphasis omitted.] Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).
Grant claims trial counsel was ineffective for failure to cross-examine the chief Commonwealth witness sufficiently on the issue of identification. Specifically, he asserts counsel should have inquired into the witness' sobriety at the time of the offense because the offense took place during the Christmas holiday season. At the PCHA hearing, trial counsel acknowledged he had not inquired into the witness' sobriety, but indicated he felt he had asked sufficient questions on the issue of identification. The record ...