# Commonwealth v. Bracero > Superior Court of Pennsylvania · April 11, 1979 · 262 Pa. Super. 189 URL: https://www.frixlaw.com/law-library/cases/9750800 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Ralph BRACERO, Appellant; COMMONWEALTH of Pennsylvania v. Frank BRACERO, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** April 11, 1979 - **Citations:** 262 Pa. Super. 189; 396 A.2d 709 - **Precedential status:** Published - **Opinion:** Dissent by Spaeth - **Judges:** Cercone, Jacobs, Hoffman, Cer-Cone, Price, Van Voort, Spaeth, Hester - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750800 ## Opinion text SPAETH, Judge, dissenting: I disagree with the majority that the record shows “no evidence of a conflict of interest which created a potential for harm to appellants’ trial.” The record only shows that *197 trial counsel satisfied himself before trial that no conflict existed, and that he prepared a common defense for appellants at trial. I should like to know why trial counsel withdrew as counsel for one of appellants before sentencing, and as counsel for the other a few months later. The record gives no explanation for these withdrawals. I should also like to know whether appellants would have chosen a common defense had they had separate counsel. In this regard, it seems to me the majority has approached the question of conflict of interest from the wrong angle; instead of dwelling on what happened with only one attorney, we should try to envisage what might have happened with separate attorneys. To do that, we need more information. I also disagree with the majority’s refusal to require that in every criminal case where one attorney represents two or more defendants, the trial judge must conduct a colloquy to determine whether a conflict of interest exists. In Campbell v. United States, 122 U.S.App.D.C. 143 , 144, 352 F.2d 359, 360 (1965), the Court of Appeals for the District of Columbia Circuit said: When two or more defendants are represented by a single counsel, the District Court has a duty to ascertain whether each defendant has an awareness of the potential risks of that course and nevertheless has knowingly chosen it. . The judge’s responsibility is not necessarily discharged by simply accepting the co-defendants’ designation of a single attorney to represent them both. An individual defendant is rarely sophisticated enough to evaluate the potential conflicts, and when two defendants appear with a single attorney, it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. In Commonwealth v. Werner, 217 Pa.Super. 49 , 268 A.2d 195 (1970), we quoted this statement, and strongly endorsed a colloquy to determine possible conflict of interest and voluntary and intelligent waiver. *198 Unless a pre-trial colloquy is made mandatory, the trial judge cannot be certain that counsel has lived up to his professional obligation to “explain fully to each client the implications of common representation and [to] accept or continue employment only if the clients consent.” ABA Code of Professional Responsibility, EC 5-16 (1969). Not knowing whether or to what extent counsel has fulfilled this obligation, the judge cannot know whether the defendants have voluntarily and intelligently waived their Sixth Amendment rights. The record in the present case illustrates this statement. Had the majority felt it incumbent to consider waiver, appellants could have easily pointed to the record to show that they did not have sufficient information. Furthermore, to make a pre-trial colloquy mandatory would encourage judicial efficiency, for potential conflict of interest problems would be identified in time to take remedial measures without adversely affecting the trial. See generally, Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court’s Headache, 5 Hofstra.L.Rev. 315-344 (1977). In this regard, the Second Circuit approach discussed in footnote 6 of the majority opinion is inferior to the District of Columbia Circuit approach. Moreover, since the Second Circuit approach gives considerable discretion to the trial judge, who is required to have a colloquy only if a conflict has become apparent, it is likely that less colloquies will occur, with the result that remands will sometimes be necessary. In contrast, the District of Columbia approach ensures a careful inquiry into potential conflict at the outset with the result that the appellate court has a full record and should not have to remand. Finally, a mandatory colloquy would be in the interest of all parties. It is perhaps most obviously in the defendant’s interest to be aware of the ramifications of dual representation, but the Commonwealth also benefits. If no colloquy occurs, and the Commonwealth cannot prove that the defendants properly waived their Sixth Amendment rights, it may have a difficult time on appeal because of the relatively lenient standard for reversal embodied in Commonwealth v. *199 Breaker, 456 Pa. 341 , 318 A.2d 354 (1974). If a colloquy does occur, the appellate court is more likely to find waiver and will not need to reach the question of whether the Breaker standard was violated. This court must vigorously enforce defendants’ rights to pre-trial dual representation colloquies. The Supreme Court of this state has mandated that if lower court judges fail to conduct guilty plea colloquies, the appellate courts will grant new trials. See Commonwealth v. Dilbeck, 466 Pa. 543 , 353 A.2d 824 (1976); Commonwealth v. Schork, 467 Pa. 248 , 356 A.2d 355 (1976); Commonwealth v. Minor, 467 Pa. 230 , 356 A.2d 346 (1976). Since the values protected by dual representation colloquies are of the same stature as those guaranteed by guilty plea colloquies, the same sanction should be evoked in both cases. I should vacate the judgments of sentence and remand for new trial. PRICE, J., joins in this opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750800. Public record. Not legal advice.