No. 1276 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Beaver County, Criminal Division, at No. 181 and 182 of 1980
Joseph M. Budicak, Beaver, for appellant.
Edward J. Tocci, District Attorney, Beaver, for Commonwealth, appellee.
Brosky, Cirillo and Popovich, JJ. Cirillo, J., files dissenting statement.
[ 309 Pa. Super. Page 298]
On June 20, 1980, appellant was convicted by a jury of theft by unlawful taking, receiving stolen property, criminal conspiracy and burglary. Post-trial motions were denied and this appeal followed. Appellant argues that the lower court erred in denying his trial attorney's motion to withdraw and in denying his motion for mistrial which was based on allegedly improper prosecutorial remarks. We agree that counsel should have been permitted to withdraw and, therefore, reverse and remand for new trial.*fn1
[ 309 Pa. Super. Page 299]
Appellant and two co-defendants were charged with having robbed Allan's Jewelry Store in Rochester, Pennsylvania, on January 17, 1980. Appellant and his co-defendants, who faced the same charges he did, were all represented by the Public Defender's Office. Each defendant was represented by a different attorney from that office.
One of the co-defendants, Richard Ross, entered a guilty plea to the conspiracy charge and it became evident at the preliminary hearing that he would testify for the Commonwealth against appellant and his co-defendant, Richard W. Evans. Appellant's counsel then filed a motion to withdraw alleging that a conflict of interest arose from the Public Defender's dual representation of defendant Ross and the other co-defendant. The motion was denied.
In an appeal brought by co-defendant Evans, in which the issue before us was also raised, we found that the lower court erred in denying the motion to withdraw. That decision is dispositive of the case before us. See Commonwealth v. Evans, 306 Pa. Super. 25, 451 A.2d 1373 (1982). As was the case with Evans, appellant in the present case clearly had a defense inconsistent with that of co-defendant Ross who testified in part, "[Davis] said it would only take thirty seconds to a minute, a minute to thirty seconds to rob it and get away." (N.T. 149) Ross also testified, "We drove back to Allen's Jewelry Store, stopped the car. Luis [Davis] got out. I let him out. We pulled up the street aways. Then that's when the place got robbed." (N.T. 147).
In Evans, id., we found that appellant had demonstrated actual harm in the representation by the Public Defender of Ross and the other defendants. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which held that to establish a violation of the Sixth Amendment rights, a defendant must show that an actual conflict existed
[ 309 Pa. Super. Page 300]
and that the conflict adversely affected the lawyer's performance.*fn2 See ...