COMMONWEALTH v. MEEHAN, 409 Pa. 616 (1963)

187 A.2d 579

Commonwealth v. Meehan, Appellant.

Supreme Court of Pennsylvania.November 28, 1962.
January 21, 1963.

Criminal law — Practice — Counsel — Representation of defendants with antagonistic defenses — Conflict of interests — Reversible error.

1. On this allocatur to the Superior Court in which it appeared that that Court had affirmed a judgment of conviction and sentence for aggravated robbery and the appellant contended that the representation of him and his co-defendant by the same counsel created a conflict of interest which prejudiced his defense; and it appeared that the robbery was committed by two men, one of whom seized the victim’s brief case and the other of whom hit the victim on the head and that two days after the robbery the victim positively identified the co-defendant as the man who had seized his brief case and a year and a half later, at the trial of a

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third person alleged to be the driver of the get-away car, similarly identified the co-defendant and testified “The man on the left was in back of me, and as he ran up the street, of course, I only had a view of his back”; but at the trial on the indictment for robbery four years after the event, the victim identified appellant as the man who had grabbed his bag, it wa Held that there was a conflict of interest between the appellant and the co-defendant and the fact that both defendants were represented by the same counsel, who was an assistant voluntary defender, constituted reversible error.

2. If, in the representation of more than one defendant by counsel, a conflict of interest arises, the mere existence of such a conflict vitiates the proceedings, even though no actual harm results; the potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion.

3. Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, followed.

Mr. Chief Justice BELL filed a dissenting opinion, in which Mr. Justice COHEN concurred.

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O’BRIEN, JJ.

Appeal, No. 432, Jan. T., 1962, from order of Superior Court, Oct. T., 1962, Nos. 161 and 162, affirming judgment of sentence of Court of Oyer and Terminer and General Jail Delivery, June T., 1957, No. 776, and from order of Court of Quarter Sessions of the Peace of Philadelphia County, June T., 1957, No. 777, in case of Commonwealth of Pennsylvania v. John J. Meehan. Order reversed.

Same case in Superior Court: 198 Pa. Super. 558.

Indictment charging defendant with aggravated robbery and conspiracy. Before ULLMAN, J., without a jury.

Verdict of guilty and judgment of sentence entered thereon. Defendant appealed to Superior Court which affirmed judgment, opinion by MONTGOMERY, J., dissenting

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opinion by FLOOD, J. Appeal to Supreme Court allowed.

Mary Alice Duffy, for appellant.

Burton Satzberg, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

OPINION PER CURIAM, January 21, 1963:

The defendant was convicted of the crimes of aggravated robbery and conspiracy. He was sentenced to the penitentiary on the robbery conviction. Sentence on the conspiracy conviction was suspended. On appeal, the Superior Court affirmed the judgment: Commonwealth v. Meehan, 198 Pa. Super. 558, 182 A.2d 243 (1962). We granted allocatur.

Our study of the record and the unusual circumstances it discloses is convincing that a new trial is required for the reasons given in the minority opinion of Judge FLOOD of the Superior Court. See also, Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962).

Order affirming the judgment of conviction and sentence is reversed. A new trial is ordered.

DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:

I dissent. I believe the alleged conflict of interest is unrealistic and imaginary. I would affirm the judgment and sentence on the Opinion of Judge MONTGOMERY, speaking for the Superior Court.

Mr. Justice COHEN joins in this dissenting Opinion.

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