Commonwealth v. Westbrook , 245 Pa. Super. 174 ( 1976 )

PRICE, Judge:

This is an appeal nunc pro tunc from judgment of sentence. Appellant, James Westbrook, was arrested on May 30, 1972, and charged, inter alia, with aggravated robbery. An Assistant Defender from the Defender Association of Philadelphia represented appellant at the preliminary hearing on these charges. On November 15 and 16, 1972, appellant, having waived his right to a jury trial, was tried before a judge and found guilty of aggravated robbery. At this trial appellant was represented by a different Assistant Defender. On November 22, 1972, trial counsel filed post-trial motions for a new trial and in arrest of judgment. These motions contained only pro forma claims that the verdict was against the evidence, the verdict was against the weight of the evidence and the verdict was contrary to law. On June 26, 1973, post-trial motions were argued by a third Assistant Defender and denied.¹ Appellant was then sentenced to 21/2 to 7 years incarceration in the State Correctional Institution at Graterford. No direct appeal was taken to this court, although both appellant and his trial counsel testified at a subsequent PCHA hearing that appellant had indicated to the defender’s office his desire to appeal, and that he had received appellate forms which were subsequently completed and returned. No explanation of the lack of further action appears in the record.

[1] On April 16, 1974, appellant filed a pro se petition for relief under the Post Conviction Hearing Act.² In his petition, appellant claims numerous violations of his rights. Only two of these allegations, denial of the right to representation by effective counsel and denial of the right to appeal, are relevant here. An evidentiary hearing was held on June 5, 6, and 26, 1974, at which appellant was represented by private counsel. The hearing judge, finding that appellant had not waived his right to appeal, granted him the right to appeal to this court nunc pro tunc. All other claims in the petition were denied.³ This appeal followed.

Appellant raises three arguments in support of his prayer for a new trial: (1) that a mistrial should have been granted when the district attorney indirectly informed the trial judge that appellant had previously been convicted of a criminal offense; (2) that appellant was inadequately advised of his right to a jury trial; and (3) that trial, counsel was ineffective. Only the final issue is properly before us. The boiler plate post-trial motions filed by trial counsel are totally inadequate to preserve claims of pre-trial and trial error. Such issues, unless raised specifically in post-verdict motions, are waived. Commonwealth v. Blair, 460 Pa. 31, 33 n. 1, 331 A.2d 213, 214 n. 1 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974)⁴

In this case, because the PCHA hearing court granted leave to appeal to this court nunc pro tunc rather than leave to file proper post-trial motions nunc pro tunc, two of the claims in this appeal are not preserved and cannot be given consideration. Commonwealth v. Reid, supra; Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1971). However, since appellant raised the issue of ineffective assistance in his PCHA petition and at the subsequent PCHA hearing, and as appellant is represented by different (than trial) counsel on this appeal, this contention is properly before us. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

A short review of the factual history of this case is necessary to an analysis of appellant’s ineffective assistance claim. Appellant was charged with the robbery and beating of one Robert Really, which took place on May 23, 1972, in South Philadelphia. On May 30, 1972, Mr. Really was in the same area and observed appellant standing in a parking lot. Mr. Really sought a patrolman and, on the basis of his identification of appellant as his assailant, an arrest was effected.

At trial, appellant’s defense rested on a theory of misidentification. It was asserted that appellant’s brother, Alphonso Westbrook, rather than appellant, had robbed and beaten Mr. Really. Two witnesses, appellant’s mother, Barbara Lou Westbrook, and a prison social worker, Scott T. Wilson, gave testimony for the defense. Mrs. Westbrook asserted that Alphonso had acknowledged his guilt to her. Wilson, on the other hand, recounted a meeting between the two brothers and himself where appellant had maintained his own innocence and his brother’s guilt, while Alphonso had not protested. Detective Bonsera, who had been present at appellant’s preliminary hearing, testified that at some point in that proceeding appellant’s counsel suggested that Alphonso was going to admit that he had committed the crime with which appellant was charged.⁵ Detective Bonsera indicated further that before Alphonso could be approached regarding a statement, a second, unidentified (in the record before us) Assistant Defender advised Alphonso not to make any statement relating to the robbery of Mr. Really.⁶ During the period encompassing the pre-trial and trial stages of appellant’s case, Alphonso was represented by another Assistant Defender (not one of those who represented appellant) in regard to a different criminal charge. Alphonso, at all times prior to and subsequent to the recounted incident, has declined to make a statement regarding this robbery and has consistently denied any involvement therein.

Appellant first contends that his trial counsel was ineffective in that he was subject to a conflict of interest in presenting appellant’s defense. Our courts have typically found such conflicts where an attorney or a firm has represented different defendants, with actually or potentially antagonistic interests, in joint or separate trials.⁷

There was no such “dual representation” in the instant case. Appellant and his brother Alphonso were not co-defendants, nor were they tried either jointly or separately on the same offense. James and Alphonso were each represented by different members of the same defender office in regard to separate and distinct criminal charges based on factually discrete events.

Given that appellant and Alphonso were not co-defendants and Alphonso was never charged with or tried for the crime in question, the instant situation could not constitute a conflict of interest under traditional analysis. Further, no prejudice to appellant could have resulted at trial since appellant’s counsel was not aware, until near the end of the trial, that his office represented both James and Alphonso on different charges.⁸ Even following this discovery, trial counsel had neither legal responsibility toward nor other interest in Alphonso such as could have prejudiced his representation of appellant. Appellant’s counsel testified that he attempted to secure Alphonso’s testimony at trial, first by subpoena and later by requesting a continuance for the purpose of locating him when he apparently absented himself from the courtroom area. (N.T. PCH 8).⁹ Further, trial counsel vigorously argued appellant’s misidentification defense, introduced supporting testimony from appellant’s mother, a prison social worker who had known both appellant and Alphonso, and appellant himself, and introduced pictures of both brothers into evidence to demonstrate their similarity in appearance. Appellant has thus failed to show, in respect to his trial, either actual harm or “the possibility of harm,” Commonwealth v. Breaker, 456 Pa. 341, 345, 318 A.2d 354, 356 (1974), resulting from the alleged conflict.

The only substantive harm appellant claims as a product of the purported conflict of interest in this case is the advice of an unspecified public defender, given to Alphonso at the scene of appellant’s preliminary hearing, not to make a statement regarding his involvement in the crime with which appellant was charged. It is extremely doubtful, in view of Alphonso’s subsequent refusal in several instances, including the PCHA proceedings upon which this appeal is based, to admit guilt or involvement, that the advice given by the unidentified public defender reversed or otherwise altered Alphonso’s disposition to make a statement or testify. Alphonso did not come forward prior to the preliminary hearing, and appellant and his mother were the only parties who claimed that he had ever admitted being involved in the robbery of Mr. Really. Any supposed detriment which appellant may have suffered as a result of the public defender’s advice to Alphonso was not a compromise of one defendant’s interests in favor of those of another defendant. It was objective legal advice given to a person never charged with the crime involved.

In Commonwealth v. Breaker, supra at 343, 318 A.2d at 355, our Supreme Court stated that “ [i]nherent in the right to effective assistance of counsel is the correlative right to be represented by counsel unburdened by any conflict of interest.” Appellant’s trial counsel was in no way so burdened. Appellant was his only client at the trial, and appellant was given the benefit of his undivided loyalty and interest. Breaker, supra, also requires that “a defendant must demonstrate that a conflict of interest actually existed at trial . . . .” and that “ ‘ . . . appellant . . . must at least show the possibility of harm. . . . ’ ” 456 Pa. at 344, 318 A.2d at 356. (emphasis added) Appellant herein fails to meet either of these requirements. The only harm resulting from the alleged conflict took place long prior to appellant’s trial and on the facts, no conflict existed at trial and thus no possible threat to appellant’s interests was present. We perceive no reason to abrogate the established requisites to a finding of conflict of interest under the case law of this Commonwealth.

The second ground of ineffectiveness urged by appellant is his trial counsel’s failure to secure Alphonso’s presence at trial. Although trial counsel’s testimony at the PCHA hearing indicated that he requested a continuance for this purpose, no such request is evident in the record.

Assuming that trial counsel failed to seek the disputed continuance, we must determine whether this conduct constituted ineffective assistance. When asked to make a statement or questioned by the police about the robbery of Mr. Really, Alphonso had uniformly declined to cooperate and had denied any connection with the crime. If Alphonso had been called as a witness and had once again declared his innocence, appellant’s misidentification defense might have been seriously impaired, if not totally discredited. In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), the court stated that “ . . .a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” 427 Pa. at 605, n. 8, 235 A.2d at 353, n. 8. Considering the facts of this case and the PCHA hearing testimony of Alphonso, where he once more denied having committed the robbery (N.T. PCH 56), we cannot conclude that his trial testimony would have substantially strengthened the appellant’s defense or increased the likelihood of his acquittal.

The judgment of sentence of the lower court is affirmed.

SPAETH, J., files a dissenting opinion in which WATKINS, President Judge, and HOFFMAN, J., join.

1 . Issues in this case could possibly have been preserved by the oral argument of post-trial motions, which took place prior to Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). Here, however, the oral argument is not recorded; because no direct appeal was taken, we have no opinion of the trial court to reveal what post-trial arguments it considered; and appellant does not allege that any of the grounds for relief he advances in the instant appeal were raised in this manner.

2 . Act of January 25, 1966, P.L. (1965) 1580, § 1 (19 P.S. § 1180-1) et seq. (Supp.1976-77).

3 . Where a post-conviction court determines that a petitioner is entitled to a direct appeal, it should make no further decision as to other claims for post-conviction relief. Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1976). The court should then determine whether proper post-trial motions have been filed. In the absence of such motions, as in the instant case, leave should be granted to file post-trial motions nunc pro tunc. Such a procedure allows the trial court an opportunity to grant relief or answer allegations of error, thus possibly eliminating the necessity of an appeal, or, in the alternative, providing the appellate court with a complete record and issues ripe for review.

4 . Here, appellant alleged ineffectiveness of counsel in his PCHA petition and at the post-conviction hearing. However, at neither of the aforementioned stages, nor in the appeal before us, does appellant raise trial counsel’s filing of only pro forma post-trial motions as an instance of ineffectiveness. Thus, in order for this court to reach the two allegations which appellant raises for the first time in this appeal, we would have to interpose, sua sponte, trial counsel’s failure to file proper post-trial motions as a ground for a finding of ineffectiveness. This we will not do.

In Commonwealth v. Drummond, 238 Pa.Super. 311, 357 A.2d 600 (1976), this court (per Hoffman, J.) applied a parallel analysis to a similar procedural situation.

5 . No such suggestion or intimation, either by appellant’s counsel or Alphonso, appears in the record of appellant’s preliminary hearing.

6 . This incident is similarly unreflected in the record.

7 . See Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968) (co-defendants, separate trials); Commonwealth v. Meehan, 409 Pa. 616, 187 A.2d 579 (1963) (co-defendants, joint trial); Commonwealth ex rel. Whitling v, Russell, 406 Pa. 45, 176 A.2d 641 (1962) (co-defendants, joint trial); Commonwealth v. Booker, 219 Pa.Super. 91, 280 A.2d 561 (1971) (co-defendants, joint trial).

See also the ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, The Defense Function § 3.5 (“Conflict of Interest”) (Approved Draft, 1971): “(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another.” (emphasis added)

8 . At the PCHA hearing which preceded this appeal, appellant’s trial counsel testified that he was not aware, until the testimony of Detective Bonsera at trial, that another member of his office had represented or was representing Alphonso. (N.T. PCH 14, 15)

9 . The record does not, however, reflect a request for a continuance for this purpose, and there is some conflict as to whether or not Alphonso was, in fact, subpoenaed.