Com. v. Resinger

• Decision Date: 27 November 1968
• Citation: 432 Pa. 398,248 A.2d 55
• Parties: COMMONWEALTH of Pennsylvania v. Floyd A. RESINGER, Appellant.
• Court: Pennsylvania Supreme Court

Page 55

248 A.2d 55

432 Pa. 398

COMMONWEALTH of Pennsylvania v. Floyd A. RESINGER, Appellant.

Supreme Court of Pennsylvania.

Nov. 27, 1968.

[432 Pa. 399] Max P. Gabreski, Oil City, for appellant.

Harry W. Gent, Jr., Franklin, for appellee.

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

OPINION OF THE COURT

COHEN, Justice.

The issue in this case is whether a conflict of interest is created when one attorney represents two defendants in a joint trial where each has confessed and testified to identical stories admitting their own participation while shifting the greatest blame to a third co-defendant.

Resinger along with his co-defendants, Keller and Riddle, were jointly tried in 1961 for the murder of Robert Mays. At that trial, Resinger's counsel was also one of Keller's attorneys. On this basis of one attorney representing two of the defendants, appellant asks for an arrest of judgment and a new trial. In that original jury trial Resinger was sentenced to 10--20 years for second degree murder on a first degree charge. Extra-judicial statements were admitted in evidence as well as both Resinger's and Keller's testimony at trial. These statements were all identical to the effect that although they were all at the house of Mays on a burglary, the greatest blame should be placed on Riddle who did the actual beating which led to Mays' death and the murder indictment. Neither tried to exonerate himself at the expense of the other, but at the expense of the third.

In Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) this Court held that where two defendants' positions are at variance (one plead guilty and the other not guilty), they may not be represented by the same counsel. Counsel may not sacrifice the interests of one client for the benefit of the other. See Commonwealth ex rel. Gass v. Maroney, 208 Pa.Super. 172, 220 A.2d 405 (1966). However where no conflict exists there is no harm in dual representation, Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968). Counsel is effective (and thus no conflict) if there is a reasonable basis upon which counsel seeks to effectuate his client's interests, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1968). The reasonable basis in the present case was the overwhelming evidence indicating guilt of a felony murder involving both of his clients. It appears that the strategy taken by counsel resulting in a second degree conviction and only a 10--20 year sentence was both reasonable and successful, Commonwealth v. Wilson, supra.

The case which most closely approximates the instant case is that of Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966). In that case the defendants had identical testimony of alibi. They were reinforcing each other's story instead of exonerating themselves at the expense of the other. Our Court unanimously found no conflict of interest. The only difference in the present case is that the statements were not exculpatory but were incriminatory. However each was willing to take the stand and swear to the same exact thing. It was part of their strategy not to cross-examine and impeach each other's story, but to shift the blame to Riddle.

As further evidence that there was a strategy consistent with counsel's representation of both defendants, we have the attorney's testimony at the post conviction hearing. Counsel said that he did not feel his position to be antagonistic but enhanced in the use of the above-outlined strategy. In addition, Resinger made no complaint as to strategy or counsel at the trial or, as a matter of fact, until 6 years thereafter. And finally, at the time of trial, Resinger requested the appointment of counsel by name after hearing that he was representing Keller.

Thus, we hold that counsel was not encumbered with a conflict of interest and fairly represented appellant with a reasonable and effective defense. The order denying appellant a new trial is affirmed.

ROBERTS, J., files a dissenting opinion in which EAGEN, J., joins.

MUSMANNO, J., did not participate in the decision of this case.

ROBERTS, Justice (dissenting).

I believe that a conflict of interest existed when codefendants whose statements implicated each other were represented by the same counsel, and I would grant appellant a new trial.

Initially the majority opinion obviously has misstated the standard by which we judge conflict-of-interest claims. The majority states that 'counsel is effective (and thus no conflict) if there is a reasonable basis upon which counsel seeks to effectuate his client's interest, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1968).' Although the majority has correctly set out the effective counsel rule established in Washington, its statement that because Washington standards have been met there is 'thus no conflict' flies in the face of the conflict-of-interest rule this Court established in Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). Rather than looking to the attorney's conduct of the defense under a 'reasonable basis * * * to effectuate his client's interest' rule, Whitling commands a prophylactic rule under which, once a conflict is shown, '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.' Id. at 48, 176 A.2d at 643 (Emphasis in original).

Viewing this case under the proper standard of Whitling, I find that a conflict did exist, and thus believe a reversal is compelled. Here each codefendant incriminated the other. The majority blithely asserts that 'the only difference in the present case is that the statements were not exculpatory but were incriminatory,' and thus concludes that Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966), controls. I believe that that difference is crucial. In Gallagher, each defendant supported the other's statement that he was Innocent; here each said the other was Guilty. It matters not that each one told essentially the same story. Had appellant had his own counsel, he might have been advised to not testify at all, leaving counsel free to attack on cross-examination the testimony of codefendant which incriminated appellant.

It is clear to me that appellant's attorney, faced with the prospect of defending appellant and his codefendant, decided that his best strategy was to attempt to put the brunt of the blame on Riddle, hoping to get his...