Commonwealth v. Yannariello , 270 Pa. Super. 312 ( 1979 )

DOWLING, Judge:

Appellant was convicted in a bench trial of conspiracy to deliver a controlled substance under 18 Pa.C.S.A. § 903.¹ He asserts several grounds for relief one of which justifies reversal.

Yannariello was tried along with three co-defendants and at the conclusion of the Commonwealth’s case, the trial judge, upon motion of counsel for two of the defendants, entered a severance so that these defendants could testify for the Commonwealth pursuant to a last minute plea bargain arrangement. The appellant and the remaining co-defendant, one James Matthews, were represented by the same attorney. When the severance was granted over his objection, he immediately requested a continuance of the proceedings “on the basis that there may be a conflict of interest with me representing Mr. Matthews and Mr. Yannariello at the same time” (245a). This request was denied and immediately thereafter one of the severed plea bargaining defendants testified against appellant who was subsequently convicted of criminal conspiracy.

At the time his counsel moved for a continuance there was no inquiry as to appellant’s wishes. The record does not indicate that he was consulted in any way. Yet when the court ordered separate trials for two of appellant’s co-defendants, a conflict arose between the interests of appellant and the remaining co-defendant, Matthews. Due to the fact that both were represented by the same counsel, their ability to strike a plea bargain with the district attorney was severely hampered. At the very least there should have been a colloquy on the record ascertaining whether the appellant would acquiesce in the continued multiple representation.

This is somewhat analogous to not only preventing the manager from making a pitching change when a pinch hitter is suddenly announced, but even refusing to let him consult his pitcher to see if he wants to face a new batter. The trial court’s reason for refusing the continuance was that while he recognized the possibility of a conflict of interest and would not be adverse to granting a continuance, “we must face the reality of what we are confronted with. We have today and one additional day in this term of criminal court . [i]t would frustrate, I think, the completion of this trial with any reasonable time period and that is the only person why I have difficulty in coping with that problem and will deny the continuance at this point.” (245a 246a) We acknowledge the magnitude of the dilemma confronting trial courts when the harsh realities of court administration collide with judicial ideals, such as happened here. However, as the United States Court of Appeals for the Third Circuit recently stated in a related context:

“ . . .no defendant should ever be deprived of a fair trial because it is easier or more economical for the government to try several defendants in one trial rather than have protracted multiple trials. The goal of the judicial process is not to decide cases as quickly and as inexpensively as possible.” U. S. v. Boscia, 573 F.2d 827, 833 (3rd Cir. 1978) cert. denied 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411.

The controlling principle is stated in Commonwealth v. Breaker, 456 Pa. 341, 344, 345, 318 A.2d 354, 356 (1974):

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 such harm may result, rather than that such harm did result, furnishes the appropriate criterion.” Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641, 643 (1962).

Accordingly, in Commonwealth v. Knight, 245 Pa.Super. 337, 369 A.2d 431 (1976), we reversed the lower court and awarded a new trial solely on the basis of a potential conflict of interest arising from the dual representation of both defendants by a single attorney. “The defenses of both defendants rose and fell together. It was for such situations where the harm is incalculable that the prophylactic rule of . Breaker, supra, was devised. . . . ” Id., 245 Pa.Super. at 342, 369 A.2d at 433. See, also Commonwealth v. Duffy, 483 Pa.Super. 170, 394 A.2d 965 (1978).

In the instant case, a totally new predicament was presented to the appellant when the severance was granted in that until that point there was very little reason to question the wisdom of dual representation. Thereafter, the trial judge discerned the risk of possible conflict, yet failed to inquire of the defendants or their counsel, whether in fact such conflict did in fact exist and further failed to advise them what a single counsel could do by way of representation. The only excuse the trial judge could offer was that it would be impractical to try the case later on in the criminal term. This scheduling difficulty certainly does not outweigh the defendant’s rights to be effectively assisted by counsel.

Accordingly, the judgment of sentence is reversed and the case is remanded for a new trial.

GATES, J., files a dissenting opinion.

1 . The Act of 1972, Dec. 6, P.L. 1482, 334, § 1, as amended.