Commonwealth v. Knight

369 A.2d 431, 245 Pa. Super. 337, 1976 Pa. Super. LEXIS 2155

• Court: Superior Court of Pennsylvania
• Decided: November 22, 1976
• Docket: 1547
• Status: Published

Opinions

WATKINS, President Judge:

This is an appeal from an order of the Court of Common Pleas of Chester County dismissing a Petition under the Post Conviction Hearing Act after an evidentiary hearing. The appellant alleged inadequacy of counsel because of improper dual representation.

The proceedings arose out of an incident which occurred at an apartment complex on April 19, 1970, involving the appellant, Irvin Knight, Herbert Handy and John Mitchell. The appellant was represented in all proceedings, except in the instant appeal, by Attorney William McLaughlin who also represented Handy. Mitchell had separate counsel throughout the trial.

At the time of his arrest, Handy gave a written statement to the officers which incriminated himself and the other co-defendants. All were tried together and all were convicted. The appellant and Mitchell were convicted of robbery with an accomplice, assault and battery, larceny, rape and conspiracy; Handy was convicted of all these charges plus aggravated assault and battery.

At the trial, the Handy statement was not introduced. Handy did not take the stand but the appellant did. The appellant in his testimony incriminated Handy as to the aggravated assault and battery, of which Handy alone was subsequently convicted. The appellant’s testimony was to the effect that Handy was seen beating one of the victims with a belt buckle. The defense in both Handy’s and the appellant’s cases was consent to the entry on the premises and consent to the intercourse.

After the entry of the verdicts and the denial of post-trial motions, both appellant and Handy were represented by Attorney McLaughlin at sentencing. At the sentencing, Attorney McLaughlin said of Handy:

“. . . And I think because of his age and he seemed to be under the instructions of that older man that he should not be dealt with on the same footing with them.”

At the time of the offense appellant was 19 years old; Handy was 21 and Mitchell was 31. Both the appellant and Handy received the same sentence.

Both convictions, on appeal, were sustained by this Court per curiam. Commonwealth v. Handy, 225 Pa.Super. 721, 306 A.2d 340, (1973) and Commonwealth v. Knight, 225 Pa.Super. 729, 306 A.2d 340, (1973).

The sole question presented in this appeal is whether the dual representation by Attorney McLaughlin denied the appellant his constitutional right to effective counsel. In the light of Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974), a new trial is indicated with counsel unhampered by a conflict of interest, potential or actual.

In Commonwealth v. Breaker, supra, the Supreme Court cited the various cases outlining the four (4) principles that control dual representation. The court stated at page 356, 318 A.2d at page 356:

“Our dual representation cases make several principles clear. First, ‘[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that some harm may result, rather than that such harm did result, furnishes the appropriate criterion’ .. . [citations omitted] . . . Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because ‘dual representation alone does not amount to a conflict of interest’ . [citations omitted] . . . Third, [t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted . . . but he must at least show the possibility of harm’ . . . [citations omitted] . . . Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, ‘that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense’ . . . [citations omitted] . . .”

The instant case is not as clearly defined factually as Breaker, supra, which involved the appellant being urged by his counsel to plead guilty while same counsel also represented the informant-co-defendant. However, the instant case falls within the four principles enumerated in Breaker, supra.

The co-defendants were represented by the same counsel and both relied on the defense of consent as to entry and consent to intercourse with the victim. Because the defenses are nominally identical as to both defendants does not mean they were similar in effectiveness for both defendants. The appellant, at trial, took the stand in his own defense and testified as to Handy’s assault with a belt buckle. Handy, for whatever reason, although urged to do so by his counsel, did not take the stand and his prior written statement incriminating the appellant was not introduced. However, the possibility of its introduction for purposes of cross-examination or impeachment, if he were to have testified, is a reality. Once the co-defendant to charges such as are involved here testified to violence to a person the effectiveness of the defense of consent is weakened. The impact this had on the jury may have been mitigated had Handy taken the stand and testified. Appellant’s defense was at least potentially eroded by Handy’s failure to testify. The defenses of both defendants rose and fell together. It was for such situations where the harm is incalculable that the prophylactic rule of Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) and Breaker, supra, was devised. See also, Commonwealth v. Johnson, 223 Pa.Super. 307, 299 A.2d 367, 369 (1973). The potentiality that such harm may result rather than that such harm did result, furnishes the appropriate criterion. The defense of both co-defendants, although nominally consistent, were practically antagonistic.

Reference should also be made to the comment of counsel at sentencing as to Handy’s being led astray by the older man. In Breaker, supra, 456 Pa. at page 357, 318 A.2d at page 357, the Supreme Court pointed out:

“. . . Indeed, at sentencing the assistant district attorney informed the court that the police had communicated to him that Mangold ‘was instrumental in the breaking of the case, that he was extremely cooperative with the police and [that the police] wanted the court advised of that fact.’ ”

In footnote 5 on the same page the Court noted that stressing one co-defendant’s role as the informer was in fact the trial strategy decided upon by dual representing counsel. Although we cannot speculate as to counsel’s motives, the attitude of counsel at sentencing in favoring one client over the other poses a serious question about the intention of counsel during the conduct of the trial. Commonwealth v. Johnson, supra. Clearly if the Supreme Court was concerned as to comments of the Commonwealth in Commonwealth v. Breaker, supra, we should be concerned with the appellants’ own counsel commenting upon his co-defendant’s being led astray absent any redeeming factors or mitigating comments about the appellant.

As we said in Commonwealth v. Cullen, 216 Pa.Super. 23, 260 A.2d 818, 820 (1970):

“At sentencing, appellant’s trial counsel was under a duty to put each of his clients in the best possible light before the court. In the instant case, trial counsel felt compelled to picture the co-defendant as the less guilty party, the party that had been led. He could do no less for the co-defendant. But, by doing so, his duty to present appellant in the best possible light was neglected. He pictured the appellant as the party worthy of strict treatment and the co-defendant as the party worthy of lenient treatment.”

The order is reversed and a new trial granted.

SPAETH, J., files a concurring opinion. JACOBS, J., dissents on the basis of Commonwealth v. Handy, 240 Pa.Super. 743, 359 A.2d 895 (1976).