dissenting:
I believe that Pennsylvania should adopt the holding of the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1709, 64 L.Ed. 333 (1980), which would require a defendant to demonstrate that dual representation and actual harm, as opposed to mere potential harm exists, in order to establish a conflict of interest, sufficient to constitute a denial of his sixth amendment right to effective assistance of counsel.1 Moreover, the present record fails to establish that the appellant suffered actual or potential harm as a result of dual representation. Therefore, I respectfully dissent.
While dual representation clearly exists since the public defender’s office represented co-defendants, I cannot agree ■with the majority’s finding that appellant had a defense inconsistent with that of his co-defendant, Ross, which resulted in actual harm to him. First, this Court has stated that a defendant’s asserted defense is not inconsistent with that of his co-defendant when the co-defendant offers no defense, but instead pleads guilty. Commonwealth v. Al-bertson, 269 Pa.Super. 505, 410 A.2d 815 (1979).
Secondly, Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970), reveals an additional factor which is not evident in the majority’s reference to Cox, which cites Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974). In Cox, the court stated:
*34A conflict may be established if a defendant can show either: (1) that he had a substantial defense, which was not raised, that was inconsistent with that of his co-defendant. . .
Cox, 441 Pa. at 69, 270 A.2d at 210. (emphasis added).
It seems obvious that the rationale for this rule is the belief that an attorney cannot provide effective assistance if he fails to assert a substantial defense of one client, in order to serve a conflicting interest of another. Commonwealth ex rel Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1968). Therefore, the holdings in Cox and Breaker2 are inapposite under the present facts since the co-defendant, Ross, pled guilty and appellant did raise and argue defense at trial.
Apart from appellant’s misplaced reliance upon Cox and Breaker, the courts have held that a conflict of interest might arise where an attorney represents a defendant as well as his accuser, as in the instant case. Commonwealth v. Small, 434 Pa. 497, 254 A.2d 509 (1969).
The majority in Small, however, held that the representation of a defendant and a co-defendant or accuser is nothing more than dual representation, which alone does not amount to a conflict of interest. Id., 434 Pa. 504, 254 A.2d at 501. The dissent reasoned that a conflict of interest must exist, couched in the following terms:
In order for joint counsel to ably represent his ‘implicating’ client, he cannot contemplate a strategy which would include vigorous cross-examination of this client to discredit his testimony or confession.
In the instant case, appellant's counsel vigorously cross-examined the co-defendant for an extended period of time, eliciting as much information as any private counsel could *35have. As such, there was no potential or actual harm sustained by appellant. Accordingly, I would affirm the judgment of sentence.
. I agree with Justice Nix’s concurring opinion in Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981), where he stated that a defendant is only denied his sixth amendment right to effective assistance of counsel where the actual existence of a conflict is shown, citing Cuyler. Further, the acceptance of a lesser standard would require this court to engage in speculation in an effort to assure effective representation and would result in the overturning of otherwise valid convictions, solely for dual representation.
. In Breaker, counsel for a co-defendant who had incriminated other persons charged, volunteered to represent the appellant who appeared at trial without counsel. Subsequently, the appellant pled guilty as per the advice of counsel. The Supreme Court, rightly so, stated that this dual representation created a potential for harm since counsel’s approach was to acquire as many guilty pleas as possible, to establish cooperation and a more lenient sentence for his original client.