to him. Petitioner also testified at the second trial in conformity with his testimony at the first trial. The jury found Kachinski guilty at the conclusion of this second trial.
Attorney Lenczycka had previously represented James Piazza in other matters before the Court of Quarter Sessions of Lackawanna County. This occurred when Piazza entered a plea of guilty on March 25, 1965, to three indictments returned against him by the Grand Jury in January, 1965, for drag racing and operating a motor vehicle without a license and while under suspension. On August 6, 1965, he was sentenced to a term of eighteen months in the Lackawanna County Prison, from which he was paroled in December, 1965, In April, 1967, his sentence having expired, Piazza was released from the terms of his parole.
Based on these facts, Kachinski submits that a conflict of interest existed on the part of his counsel and, consequently, that he was denied the effective assistance of counsel at his trial.
The general rule of law is that a defendant is denied his constitutional right to the assistance of counsel if his attorney represents conflicting interests without his knowledge and consent. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). The issue before me is whether or not a conflict of interest existed because defendant's trial counsel had on a former occasion represented a prosecution witness presented by the Commonwealth.
It appears that such a question has not yet been decided in the Third Circuit, although at least two other Circuit Courts of Appeals have taken a negative viewpoint on this issue. E.g., Harrison v. United States, 387 F.2d 614 (5th Cir. 1968); Olshen v. McMann, 378 F.2d 993 (2d Cir. 1967). Judge Waterman pointed out in the Olshen case that '* * * the primary, if not the only, factor which might deter counsel from staging an effective defense would be his reluctance to divulge or to make use of the knowledge derived from the confidential communications of his former client.' In that case, the witness had waived the attorney-client privilege by admitting his part in the crime prior to trial and thus no conflict of interest arose with respect to the Attorney's representation of his second client. So, too, in this case, Piazza waived any existing attorney-client privilege by making a statement to the police about what he knew of the crime Kachinski was accused of committing; thus, no barrier existed to prevent counsel from effectively questioning Piazza on behalf of petitioner. This is especially true in this case since Piazza was represented by Attorney Lenczycka for entirely unrelated offenses at a completely different term of Court.
See, Harrison v. United States, supra. In addition, there is nothing in the record to establish that the cross-examination of Piazza by petitioner's counsel was anything but adequate or that counsel's full legal talents were not used on behalf of Kachinski.
Accordingly, I conclude that no conflict of interest existed on the part of counsel for Kachinski at the time of his trial in June, 1966, and thus he was not denied the assistance of counsel. For this reason, the petition for a Writ of Habeas Corpus will be denied.
In my opinion, probable cause exists for appeal.