Sullivan, Foley and Leonard. The opinion of the court was delivered by Sullivan, S.j.a.d.
Defendant Gerald Ebinger was convicted of participation in the armed robbery of the manager of a store in Camden. His sole ground of appeal is that he was denied adequate and effective representation by counsel at trial. The case has the following background.
A two-count indictment charging armed robbery was returned against Thomas J. Clifford, Harry J. Moore, Wayne Schweiger and defendant. Attorney X was retained to represent defendant. This same attorney was also retained by Wayne Schweiger. Clifford and Moore were represented by other counsel.
Originally, all four men pleaded not guilty. However, shortly prior to trial both Clifford and Moore retracted their pleas of not guilty and entered pleas of guilty to the indictment.
On the trial date Wayne Schweiger also retracted his plea of not guilty and entered a plea of guilty.
In an affidavit filed on this appeal defendant states that when he learned that Schweiger had changed his plea to guilty he asked his counsel "what it meant in regard to my trial," and "he said that it made no difference as far as my trial was concerned." Ebinger then went on trial as the sole defendant. Clifford, Moore and Schweiger testified as witnesses for the State and named defendant as one of the participants in the armed robbery. All of the State's witnesses, including Schweiger, were cross-examined by defendant's counsel. Defendant was the sole witness in his own behalf. He denied any part in the robbery and claimed he was home in bed when it took place.
In essence, defendant contends that he was denied adequate and effective representation at trial because his attorney was confronted with a clear conflict of interest. On the one hand, he represented defendant who denied participating in the robbery. This required him to use all legal means to discredit the State's witnesses whose testimony implicated defendant. On the other hand, counsel continued to represent Schweiger who had pleaded guilty to the robbery and testified as a witness for the State against defendant. Schweiger was awaiting sentence at the time, and the extent of his cooperation with the State in defendant's trial might well have been a factor in fixing his sentence.
We conclude that the circumstance which developed on Schweiger's plea of guilty and his subsequent testifying as a witness for the State, made counsel's continued representation of both defendant and Schweiger improper. These men, at the time of trial, had substantially conflicting interests, and counsel could not serve the best interests of both of them at the same time.
This issue was involved in United States ex. rel. Platts v. Myers, 253 F. Supp. 23 (E.D. Pa. 1966), where a voluntary defender was assigned to represent three men charged with robbery in the state court. Prior to trial two of the men
changed their pleas to guilty and testified as witnesses for the state against the third defendant. (They were not sentenced until after they had testified.) On a habeas corpus proceeding in the United States District Court it was held that defendant had been denied the effective assistance of counsel, the court saying:
"The testimony of the two confederates clearly implicated the relator, but the relator's plea of not guilty clearly indicated his contention that he was not involved in the robbery. The lawyer was thus in a very awkward position. On the one hand his job was to present the best possible case for the petitioner, and this involved the impeachment of his other two clients who were witnesses for the Commonwealth. On the other hand, he also had the task of protecting them. Since the Court had deferred their sentencing until after petitioner's trial, it seems obvious that the severity of their sentences depended in large measure on their testimony against the relator and their general cooperation with the prosecution. If the attorney had succeeded in impeaching these two witnesses for the relator's benefit, he would have destroyed the effectiveness ...