Commonwealth v. Breaker

Dissenting Opinion by

Mr. Justice Nix:

I dissent. The duty of courts to assure full enjoyment of constitutional rights should not be confused with the conjuring of imaginary demons which serve only to impede law enforcement and frustrate justice. The majority opinion has engaged in speculation and fantasy to justify the overturning of a number of guilty pleas, to serious offenses, entered over fourteen and a half-years ago, and places upon the State the impossible duty of attempting at this late date to obtain convictions.

Every citizen of this nation is entitled to the effective assistance of counsel, and this Court has been scrupulous in its efforts to assure effective representation to all criminal defendants who appear before the courts of this Commonwealth. In a series of carefully considered opinions we have properly concluded that there was no necessity, in protecting the right to counsel, to embrace a prophylactic rule prohibiting dual representation. Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970); Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968) ; Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A.2d 356 (1965), cert. denied, 386 U.S. 1013 (1967). The increasing cost of legal representation; the limited availability of highly trained and experienced trial counsel in the field; and the numerous examples where the highest quality of representation has been provided by counsel representing co-defendants have forced the conclusion that such a rule would not only be unwise but also clearly unnecessary.¹

All defendants in this Commonwealth are entitled to relief if they can establish from the record that they have received ineffective assistance of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The defendant who was represented by counsel who also represented other clients in the same cause receives additional protection by being permitted to establish his right to relief by demonstrating the mere existence of conflict. Commonwealth ex rel. Whitting v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). He is relieved of any obligation to show actual harm, for the law reasons that the potentiality that harm may result is sufficient to grant relief. Commonwealth v. Cox, supra, Commonwealth v. Wilson, supra. It is nevertheless still the defendant’s obligation to establish the existence of conflict. Ignoring this requirement, as the majority has today, results in granting relief solely because of the dual representation.

There is not a scintilla of evidence upon this record that would justify a finding of the existence of conflict. We have held that a conflict may be established where it is shown that the accused had a defense inconsistent with that advanced by the other client or clients or where counsel has been shown to neglect the case of the accused in order to give another client more spirited representation. Commonwealth v. Cox, supra, Commonwealth v. Wilson, supra. The majority, while giving lip service to these requirements, attempts to dilute their thrust by suggesting that these are only examples of conflict (the use of “inter alia”) and further suggests that there are other bases upon which we can predicate a finding of conflict. A review of the factual situation presented and an analysis of the opinion fails to reveal an additional test. Further, it unquestionably establishes the failure of the defendant to meet the enumerated requirements. I can only conclude that the allusion to another basis for finding existence of conflict was simply the fact of dual representation.

The majority rests heavily upon the fact that Man-gold was the “finger man”, suggesting that this is the basis for finding that his position was antagonistic to that of the appellant and presumably all of the other co-defendants. The record is devoid of any indication that he in any way specifically implicated this appellant. It also reveals that a number of the defendants after being apprehended, including the appellant, admitted their complicity in the crimes charged. The majority is laboring under the unwarranted assumption that if in fact a conflict existed at the investigatory stage, it necessarily persisted and still existed at the time of the guilty plea hearing.

The majority makes much ado that this unrepresented defendant (appellant) entered a guilty plea but fails to note that in addition to Mangold and appellant, five of the other co-defendants also entered guilty pleas.² The majority assumes that where counsel is representing two defendants, each of whom are entering guilty pleas, that counsel’s advice to one must have necessarily been motivated by intent to aid the other. From this record, however, there is nothing to suggest this to be a fact. As a result of the entry of his plea, a number of the charges against appellant were dropped. This obviously was not a benefit to Mangold, but a benefit to appellant.³

The majority makes a bold assertion that counsel by his representation of Mangold compromised his ability to advise appellant disinterestedly, but offers no basis for this clairvoyant observation. The majority states as an uncontroverted fact that counsel by his representation of Mangold and appellant was in a position where it was virtually impossible “to avoid neglecting appellant’s case”. Again this is a conclusion completely devoid of support in the record.

The majority concludes that the case against the appellant was not “very strong”. There is absolutely no showing as to what evidence the Commonwealth at that time would have been in a position to present had appellant elected to force the Commonwealth to its proof. The attempt to equate the evidence produced by the Commonwealth during the guilty plea hearing of a number of defendants to what the Commonwealth could have amassed against a particular defendant in a trial is completely unwarranted.

The majority does not contend, nor is there any evidence to support a finding either that appellant had a defense inconsistent with that advanced by the other client, nor can they support in the record any indication that counsel neglected the case of the appellant to provide a more spirited defense for Mangold. While we will presume prejudice from the existence of a conflict, today’s decision has unfortunately fantasized prejudice solely from the fact of dual representation.

Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this dissenting opinion.

1 The general rule throughout most jurisdictions is that representation hy one attorney ior two defendants is not improper unless the interests of each are shown to be in conflict. See cases cited, 21 Am. Jur. 2d Criminal Law §319 (1965).

2 Additionally, on each of the bills of indictment to which appellant entered a guilty plea, the co-defendants on those bills also plead guilty.

3 It must be emphasized that we are not here concerned with conflict at the time of sentencing, but only at the entry of the plea.