No. 81-1-14, Appeal from the Order of the Superior Court at No. 422 April Term, 1979, reversing the Judgment of Sentence, Court of Common Pleas, Criminal Division of Allegheny County at No. CC7800044A
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellant.
David O'Hanesian, Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, J., joins in the majority opinion and files a concurring opinion. Nix, J., filed a concurring opinion. Larsen, J., dissents.
Appellee, the manager of the Cavalier Health Spa, was arrested and charged with conspiracy*fn1 and promoting prostitution*fn2 on September 30, 1977 by a detective assigned to the Allegheny County Vice Squad. The arrest was made following an incident in which one of the female employes of the spa attempted to perform an act of deviate sexual activity upon the detective during a one-half hour massage for which the detective had paid $20. Appellee was tried with two co-defendants, masseuses from the same spa, who had been charged with prostitution*fn3 as a result of the same incident. All were represented by the same attorney during the preliminary hearing and trial.*fn4
Appellee was convicted of the crimes charged following a jury trial in which one masseuse was the only defense witness called to testify.*fn5 Sentence was suspended on the condition that appellee pay costs of prosecution and serve a probationary period of one year. On direct appeal, the Superior Court reversed the judgment of sentence and remanded the cause for a new trial on the basis that the appellee had been denied his Sixth Amendment right to effective assistance of counsel by his attorney's representation of all three defendants.
The Commonwealth successfully petitioned for allowance of appeal. The Commonwealth contends that counsel's multiple representation of all defendants did not impair the appellee's right to effective assistance of counsel, and that this issue was raised in an untimely fashion, i. e., following the empaneling of the jury.
Judge Lipez's opinion for the Superior Court, 282 Pa. Super. 341, 422 A.2d 1147, ably discusses the law on this subject*fn6 and properly disposes of this case. We granted the petition for allowance of an appeal to consider the record in light of the Supreme Court of the United States' decision in Cyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1709, 64 L.Ed.2d 333 (1980) where it was held that defendant's constitutionally protected right to effective assistance of counsel was violated and a new trial dictated in a case of multiple representation only where the actual existence of a conflict is shown.
We have examined the record and find, as Judge Lipez found, that it will not support the trial court's finding of no conflict of interest. On the contrary, it establishes that a conflict of interest did exist. Indeed, it is conceded that a plea bargain was negotiated by the only counsel for the three defendants on condition it be accepted by all three. It was acceptable to two but not to the third. What could be more conclusive evidence of a conflict of interest and this was known to all parties and the court before the jury was picked. Further, on trial, only one defendant testified and her testimony was inconsistent with the innocent plea of one of the other defendants.
One other point need be discussed. The trial court, quite properly, sua sponte, raised the question of conflict of interest. Counsel for defendants agreed there was a conflict and requested a continuance while two of the defendants obtained other counsel. He expressed concern that in addition to the plea bargain conflict, ...