Commonwealth v. Chamberlain

¶1dissenting:

¶2I believe that a conflict of interest existed in this case. Appellant’s and the co-defendant’s defenses were in some measure inconsistent, and I am persuaded that counsel, caught in the attempt to represent both of them, neglected appellant’s case in favor of the co-defendant’s.

¶3In Commonwealth v. Breaker, 456 Pa. 341, 344—345, 318 A.2d 354, 356 (1974), the Supreme Court stated:

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). 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.” 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, 87 S.Ct. 1361 [, 18 L.Ed.2d 445] (1967). Third, “[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, . . . but must at least show the possibility of harm . . ..” Commonwealth v. Wilson, supra [429 Pa.] at 463, 240 A.2d at 501. Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, *515“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.” Id. Accord, Commonwealth v. Cox, 441 Pa. 64, 69, 270 A.2d 207, 209 (1970) (plurality opinion).2

¶4In Commonwealth ex rel. Whitling v. Russell, supra,two brothers accused of the same crime were represented by the same counsel at trial. Finding a “highly prejudicial” conflict of interest, 406 Pa. at 49, 176 A.2d at 643, the Court stated:

One of the most important factors in a criminal trial is the attitude of the defendant’s counsel and often the strength of the defendant’s cause, unfortunately, is judged and gauged by the ability demonstrated by defendant’s counsel. We cannot say that counsel in the instant case was not effective. But could he not have been more effective and more able to utilize the evidence if he had not been burdened by the chore of defending two defendants whose positions were inconsistent and at variance? Of necessity, counsel in the instant case had to temper his strategy and tactics to a middle-of-the-road position. . . . The very purpose of the rule which prohibits an attorney from representing conflicting interests is to preclude such an attorney from putting himself in a position where he may be required to choose between conflicting duties or to be led to an attempt to reconcile conflicting interests rather than to enforce, to their full extent, the rights of the party whom he should alone represent: 7 C.J.S., Attorney and Client, § 47.

Id.

¶5The majority suggests that the principles evoked in Breakerand Russelldo not apply to this case because appellant did not deny the co-defendant’s testimony implicating him but rather confirmed it in his statement to the police after he was arrested. The majority notes that the co-defendant testified to the following:

1. Chamberlain [appellant] had sole use of the portion of the dwelling where the marijuana was discovered.

*5162. Chamberlain has almost exclusive control of the bedroom downstairs where marijuana and a pipe were found.

3. Chamberlain owned the marijuana discovered and seized.

4. No other occupants were in the dwelling at the time of the search and seizure.

5. Chamberlain was planning to sell roach clips in his store.

Slip op. at 1264.

¶6The majority also notes that in his statement, as testified to by one of the arresting officers, appellant said:

. [the officers] had gotten all [the marijuana] he had on the list. He also stated he does not sell marijuana. He smokes it himself. He does give it to friends. He does not sell it. He stated that the marijuana was all his and did not belong to the accused Davis.

Slip op. at 1264.

¶7Initially, it should be noted that the majority overstates the case. Contrary to what the majority says, the codefendant’s testimony was not “less damaging” to appellant than appellant’s statement. Slip op. at 1264. The co-defendant’s testimony that appellant was planning to sell roach clips in his store went well beyond appellant’s statement, for it at least implied, if it did not expressly say, that appellant was a dealer in marijuana, a charge that appellant denied. Although the Commonwealth need not prove that appellant had a pecuniary motive in transferring a controlled substance, in order to convict him under the Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30) (Purdon’s 1977), Commonwealth v. Metzger, 247 Pa.Super. 226, 372 A.2d 23 (1977), testimony that appellant was a dealer was necessarily damaging to appellant’s case.

¶8The majority’s more serious error, however, is in its application of the law. The majority states that “it [cannot] be said that counsel abandoned his representation of [appellant].” Slip op. at 1264. Whether there was “aban*517don[ment]” is not the point. The course of the trial indicates that “counsel neglected [appellant’s] case in order to give the other client a more spirited defense.” Commonwealth v. Wilson, supra, 429 Pa. at 463, 240 A.2d at 501. Counsel made no attempt either to suppress appellant’s statement to the police, or to impeach appellant’s co-defendant’s testimony. Since the co-defendant’s testimony exonerated her, one can understand why counsel, as her counsel, did not attempt to impeach her. It is not apparent, however, why counsel, as appellant’s counsel, did not attempt to impeach her. The majority rationalizes counsel’s inactivity on behalf of appellant by surmising that counsel’s trial strategy was to concede that appellant possessed the marijuana in order to rebut the more serious charge of possession with intent to deliver or manufacture. Slip op. at 1264. If that was counsel’s strategy, it was surely irrational, given the amount of marijuana found in appellant’s premises. A far more likely explanation of counsel’s conduct is that he had decided that there was not much he could do for appellant, and, while not quite “abandoning” appellant, nevertheless neglected him, devoting most of his efforts to achieving the exoneration of appellant’s co-defendant. In Commonwealth v. Johnson, 223 Pa.Super. 307, 299 A.2d 367 (1973), we stated: “Where it appears that counsel’s main objective is to exonerate one of his clients through the exculpatory testimony of another client, the rule of Whitling is clearly invoked and the proceedings vitiated because of the conflict.” This is just such a case.1

¶9I should grant appellant a new trial.