dissenting.
It is my opinion that the majority is clearly wrong and that the case of Trulock v. Commonwealth, supra, should be affirmed in toto. I would adopt the selected language used in that opinion, to-wit:
... we cannot say that the language of the rule vests the trial court with any discretion in complying with it or permits us to determine whether a failure to comply was harmless error.... The Commonwealth argues that the issue of separate counsel was not preserved for review. Admittedly, neither appellant nor his attorney raised the issue until after his trial. However, they were not required to do so because the rule does not impose such a duty on the defendant. On the contrary, the duty to comply with the rule is imposed solely on the trial court. Therefore, a defendant cannot be found to have waived the trial court’s failure to comply with the rule.
*531The reliance by the majority upon Mish-ler v. Commonwealth, supra; Self v. Commonwealth, supra; and Ware v. Commonwealth, supra, is misplaced as each of those eases was decided before the adoption of RCr 8.30.
I would reverse the convictions of Terry Smith and Ronald Smith and remand for a new trial by a separate counsel unless written waiver is secured pursuant to RCr 8.30.
STEPHENSON, J., joins in this dissent.