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filed: May 2, 1980.


No. 2994 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Potter County, Criminal Division, No. 92 of 1977.


Robert L. Beggs, Coatesville, for appellant.

Charles P. Mackin, Assistant District Attorney, Coudersport, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a dissenting opinion.

Author: Cavanaugh

[ 277 Pa. Super. Page 506]

This is an appeal from a judgment of sentence. Appellant, John Chamberlain, and a co-defendant, Susan Davis, were convicted in a non-jury trial of possession of a controlled substance with intent to deliver. Following conviction post-trial motions were filed by trial counsel, asserting that the verdict is contrary to the evidence and demanding a new trial because of errors made by the suppression court. Defendant's counsel withdrew and new counsel filed supplemental motions raising the issue of ineffectiveness of counsel. The court below entered an order dismissing the motions and from this order Chamberlain appeals.

Specifically, the appellant, Chamberlain, claims: (1) his trial counsel was ineffective due to dual representation in light of a conflict of interest between defendants; (2) counsel was ineffective due to his failure to raise all available issues to challenge the legality of the search and seizure; and (3) the court below erred by inferring an intent to deliver a controlled substance from the quantity possessed.

The facts are as follows: Chamberlain and Davis resided in a combination hotel and store in Conrad Village, Potter County. The building is known locally as the "Conrad-Hilton" and consists of a store at the eastern corner of the structure, an unpartitioned living area on the remainder of the first floor, and approximately ten hotel-type rooms on the second floor. The structure sits on a large plot of land.

[ 277 Pa. Super. Page 507]

On August 23, 1977, Trooper Cogley of the Pennsylvania State Police received information from a resident of the Conrad area that there appeared to be a pot or plant of marijuana on the rear porch roof of Chamberlain's residence. Without entering the property Trooper Cogley observed the plants and identified them as marijuana. The trooper returned on August 27, 1977, to check the scene and again observed the pot of plants. Two days later a search warrant was issued but was not executed since Chamberlain was not at home. The suspected marijuana was still in view at this time. The following day four officers returned to the "Conrad-Hilton" with the warrant. Again no one was home. The officers entered the building and began to search. The entire living unit on the first floor was searched and the following items seized and catalogued:

1. Five roach clips.

2. Poppy seeds in a glass mustard jar.

3. A pound tin containing 1/2 lb. of marijuana.

4. Cigarette papers.

5. A bronze hashish pipe.

6. Seven marijuana plants (1 lb.) in a blue metal pot.

7. 32 cut marijuana plants (9 1/2 lbs.).

Chamberlain and Davis returned during the course of the search and were placed under arrest. They were charged with possession with intent to manufacture or deliver a controlled substance.

After hearing a motion to suppress evidence, the suppression court ruled that the evidence was properly seized. Chamberlain and Davis were represented by the same counsel in a non-jury trial.


Appellant Chamberlain argues that his counsel was ineffective in that counsel represented both Chamberlain and Davis despite the existence of a conflict of interest between the co-defendants. Although the issue of ineffectiveness of counsel was not raised below, it may be raised by

[ 277 Pa. Super. Page 508]

    substitute counsel on direct appeal. Com. v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

In reviewing a claim of ineffective assistance of counsel the standard to be applied is that set forth in Com. ex rel. Washington v. Maroney, 427 Pa. 599, 604-5, 235 A.2d 349, 352 (1967), as follows:

[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. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. (emphasis in original)

Ineffectiveness of counsel may be found where dual representation involves a conflict of interest. Com. v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 500 (1968). However, dual representation does not by itself amount to a conflict of interest. Com. v. Wilson, supra; Com. v. Myers, 419 Pa. 139, 213 A.2d 356 (1965), cert. denied, 386 U.S. 1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967). The defendant must at least show the possibility of harm in order to make the dual representation rise to a true conflict. Com. v. Wilson, supra. The mere existence of such a conflict vitiates the proceedings, even ...

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