dissenting:
I would affirm the conviction and judgment of sentence on the opinion of the Honorable James F. Clarke.
Defense counsel was employed to represent all three defendants some six months before the date of trial and represented all three at their preliminary hearing. Defense counsel did not raise the alleged issue of a conflict of interest until after the jury was sworn. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (Decided May 12, 1980). State trial courts are required to investigate timely objections to multiple representation. Defense counsel had an ethical obligation to advise the court promptly when a conflict of interest arose. As the Court said in Cuyler,
Holloway reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. See 435 U.S., at 482, 98 S.Ct. 1173, 55 L.Ed.2d. 426. Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel. Such a presumption would preclude multiple representation even in cases where “ ‘[a] common defense . . . gives strength against a common attack.’ ” Id., at 482-483, 98 S.Ct. [1173,] at 1178, 55 L.Ed.2d 426, quoting Glasser v. United States, 315 U.S. *35460, 92, 62 S.Ct. [457,] at 475, 86 L.Ed. 680 (1942) (Frankfurter, J., dissenting).
Id. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346.
Judge Clarke gave the defendant an opportunity to demonstrate a conflict and found none. Nor do I.