No. 1226 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Beaver County at No. 179 and 180 of 1980.
Richard L. Neff, Aliquippa, for appellant.
John L. Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.
Brosky, Cirillo and Popovich, JJ. Cirillo, J., files a dissenting opinion.
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Appellant, Richard Evans, was found guilty by a jury of Theft by Unlawful Taking (18 Pa.C.S.A. § 3921); Receiving Stolen Property (18 Pa.C.S.A. § 3925); and Criminal Conspiracy (18 Pa.C.S.A. § 903). Post-trial motions were filed and denied. Sentence as to the Theft charge consisted of 2 to 5 years imprisonment; a similar concurrent sentence was imposed for the conviction of Receiving Stolen Property and a 6 to 12-month term, to be served concurrently to the aforesaid confinement, was issued for the Conspiracy offense.
The appellant raises three issues, all of which are intertwined with the contention that the trial court erred when it denied his counsel's motion to withdraw, in light of the representation that a conflict of interest existed. We agree.
The facts are not in dispute and appear, upon a review of the record, as follows: On January 17, 1980, Allan's Jewelry store, located in Rochester, Pa., was robbed. Out of this incident, the appellant, Richard Ross and Luis Davis were all charged with theft, receiving stolen property and conspiracy. At the preliminary hearing, all three defendants were represented by different counsel from the Public Defender's Office of Beaver County. In the course of the testimony
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given therein, it became evident that co-defendant Ross would plead guilty and testify for the Commonwealth against the appellant and co-defendant Davis. In reaction thereto, appellant's counsel filed a Motion to Withdraw, in which he asserted, inter alia:
"5. That one of the three co-defendants, Richard Ross, has indicated that he will enter a Plea of Guilty to the aforesaid charges and further that he will testify on behalf of the Commonwealth against the other two defendants, Luis P. Davis, and Richard W. Evans.
6. That such testimony creates a conflict of interest between Ross and the other two co-defendants.
7. That such conflict of interest creates a possibility of harm to the defendant, Richard W. Evans, since there is dual representation of all the defendants herein."
Said Motion was denied by Order of court dated June 10, 1980, and was reaffirmed by the court en banc in its denial of appellant's post-trial motions. The rationale for the court en banc's decision was based upon its reading of the United States Supreme Court ruling in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which held, according to the post-trial court, that:
". . . [T]he possibility of conflict is insufficient to overturn a criminal conviction; and, that in order to demonstrate a violation of a defendant's Sixth Amendment rights, the defendant must establish that an actual conflict of interest existed and that the actual conflict of interest adversely affected his lawyer's performance. See ...