concurring:
I concur in the result. The record establishes that appellant might have been exculpated by proof that his brother Alphonso was guilty of the crime of which appellant was accused. An attorney effectively representing Alphonso might well be obliged to give Alphonso advice inconsistent with appellant’s best defense. It is thus clear that the interests of the brothers were directly opposed and that representation of both by the same counsel, the Philadelphia Public Defenders, constituted a conflict of interest raising the possibility of prejudice to appellant. Although it is immaterial whether appellant was actually harmed by advice to Alphonso, e. g., United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 519-520 (3d Cir. 1979),* the record supports the conclusion stated by the plurality that a Public Defender advised Alphonso not to confess to the crime despite his willingness to do so.
Notwithstanding the Commonwealth’s assertions, any conflict in the representation of appellant and his brother are not cured by the fact that Alphonso has never been prosecuted for this same crime. The Commonwealth never claimed that both brothers, rather than only one, were involved in the criminal activity with which appellant was charged. Thus it was clear from the outset that if one brother were found guilty, the other would be exculpated *544and not brought to trial. That any advice given to Alphonso might have been successful in protecting him does not negate, but ráther emphasizes, the existence of a conflict whose potential effects might have continued throughout appellant’s trial.
In accord with our prior decisions, appellant was unequivocally entitled to effective trial counsel unburdened by any conflict. E. g., Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974); see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The plurality correctly concludes that a Public Defender undertook to give advice to Alphonso. Thereafter, representation of appellant by a Public Defender was ineffective. Appellant’s conviction must be reversed and the case must be remanded for a new trial at which appellant may be represented by effective counsel unburdened by any conflict.
United States ex rel. Sullivan v. Cuyler involved the representation by two attorneys of three defendants accused of the murders at the Teamsters’ Local 107 in Philadelphia in 1966. See Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971) (affirming conviction on an equally divided court); id., 472 Pa. 129, 371 A.2d 468 (1977) (same case on collateral review). Sullivan was tried first and no defense was made. The other two defendants were subsequently acquitted in separate trials.
The court of appeals granted relator relief holding that both attorneys together represented Sullivan and the other defendants. The court of appeals rejected the theory that because one attorney primarily represented Sullivan and the other primarily represented the remaining defendants no dual representation took place.