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COMMONWEALTH PENNSYLVANIA v. MICHAEL J. SZEKERESH (05/27/86)

submitted: May 27, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL J. SZEKERESH, APPELLANT



Appeal from the PCHA Order entered September 20, 1985, Court of Common Pleas, Cambria County, Criminal Division at No. C-0568 (A)(B)(C)(D)(E)(F)-80.

COUNSEL

Leonard I. Sharon, Pittsburgh, for appellant.

James A. Nelson, Assistant District Attorney, Edensburg, for Commonwealth, appellee.

Wickersham, Johnson and Watkins, JJ.

Author: Johnson

[ 357 Pa. Super. Page 151]

We are asked to determine whether we should extend the rule of law promulgated in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which grants a defendant a new trial after he has shown that he has suffered actual harm and actual prejudice arising from a conflict of interest in his representation following a pre-trial colloquy and subsequent waiver of his Sixth Amendment rights. Appellant, Michael J. Szekeresh, asks us to extend

[ 357 Pa. Super. Page 152]

    this rule to include the situation where the pre-trial colloquy informs the defendant of the specific risk of forfeiture of waiving a right, and subsequently that the specific risk created a conflict of interest which resulted in actual harm and actual prejudice. We decline to do so.

Szekeresh, in appealing from the September 20, 1985 Order denying a hearing under the Post Conviction Hearing Act,*fn1 claims that his trial counsel rendered ineffective assistance. He argues that despite a pre-trial waiver of prospective conflicts, his ineffectiveness eminates from an actual conflict of interest which adversely affected trial counsel's performance. Szekeresh also contends that the PCHA Court erred in denying him the opportunity to present evidence in support of his recusal motion. We disagree and, accordingly, affirm the September 20, 1985 Order.

Appellant was tried before a jury along with six other defendants. Appellant was convicted of both conspiracy to commit aggravated assault and aggravated assault. At trial, Louis LaLumere, Esquire, undertook the defense of six of the seven defendants, including Appellant. A pre-trial colloquy was conducted by the Honorable Joseph O'Kicki in which each of the six defendants accepted LaLumere's joint representation. LaLumere sought generally to defend his clients on a theory that the police officers involved had instigated the incident. Each defendant claimed self defense or defense of a third person. In an effort to preclude expert medical testimony on the nature and extent of the injuries sustained by the police officers, LaLumere entered into a stipulation which admitted that the injuries received were serious bodily injuries as defined by 18 Pa.C.S. § 2702, Aggravated Assault.

First we will address Szekeresh's argument that a conflict of interest arose which adversely affected his trial counsel's performance. The conflict, he argues, was caused by LaLumere's general defense for all six defendants, coupled with the stipulation which prevented counsel from

[ 357 Pa. Super. Page 153]

    presenting an individualized defense on behalf of Szekeresh. Appellant contends that an individualized defense raised on his behalf would have ...


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