No. 422 April Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7800044.
David O'Hanesian, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting statement.
[ 282 Pa. Super. Page 342]
Appellant was convicted, after a jury trial, of conspiracy*fn1 and promoting prostitution.*fn2 Two co-defendants, although named in separate informations, were tried with appellant in
[ 282 Pa. Super. Page 343]
the same proceeding. The co-defendants were convicted of prostitution.*fn3 All three were represented by the same defense attorney. Appellant claims, on this appeal by new counsel, that his interests in the matter conflicted with those of his co-defendants and that he was, for that reason, deprived of the effective assistance of counsel. We agree.
Appellant, who was the manager of the "Cavalier Health Spa," and the two female employees of that establishment were represented at all relevant stages of this case by Allen Brunwasser, Esquire. Although the manager and one of the women wanted to plead guilty as part of a bargain offered by the Allegheny County prosecutor, the other woman refused. Since the district attorney had offered the deal only on the condition that all three accept it, it was withdrawn. The defendants then pleaded not guilty and the case proceeded to trial.
The record indicates that discussion of the question of conflict of interest was initiated by the trial court, seemingly sua sponte, after the delivery of opening statements to the jury.*fn4 In response to the court's query whether a conflict was extant, Brunwasser said:
I think frankly, Your Honor, I think there is a conflict here. I have attempted to plea bargain this case, and two of the defendants are agreeable to the plea bargain.
The court then cautioned Brunwasser to avoid any disclosure, in connection with the issue, of "anything of a confidential nature that has gone on heretofore or between you and your clients or you and the prosecution . . . ." After counsel offered to withdraw his representation of the two women, the court attempted to question the defendants concerning their desire to continue the existing arrangement. The court quoted several Pennsylvania appellate opinions, and then said:
[ 282 Pa. Super. Page 344]
So I have difficulty with that myself, so I'm sure that the individual persons will have as much or more. I don't know whether that clears the air or makes it any cloudier, but I think of chief concern to the appellate courts of the Commonwealth are situations where in multiple defendant cases one person may have a defense that is inconsistent with that advanced by one of the other or where the single attorney may neglect one person, one or more of the defendants' cases in order to give the remaining clients a more spirited defense.
Now Mr. Pinhas, considering everything I have said so far and reminding you that you have a right to be reticent to imparting information of a certain type here, the Court would inquire of you your feelings with respect to your continued representation by Mr. Brunwasser as your counsel in the trial of this case before the jury presently selected. You wish to continue to have him as your counsel and represent you in the trial of this case?
Mr. Pinhas: Yeah, I'd like him.
The Court: Do you have any feeling of your own that there may be some defense on your part or involved in your case that might be inconsistent with that of any other persons on trial or there may be any possibility that your defense may be neglected in favor of other defendants on the trial?
Mr. Brunwasser: I respectfully object. I don't think Mr. Pinhas is capable of making that decision, and meaning he doesn't understand the conflict, nor do the other defendants, and I ...