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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. KELLY (07/22/83)

filed: July 22, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WILLIAM J. KELLY



No. 814 Philadelphia, 1981, Appeal from the PCHA Order of March 11, 1981 In the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 7503-2381-2384.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Nicholas J. Nastasi, Philadelphia, for appellee.

Cercone, President Judge, and Brosky and Beck, JJ. Beck, J., concurs in the result.

Author: Cercone

[ 316 Pa. Super. Page 440]

Appellee, William J. Kelly, a former Philadelphia police officer, was found guilty by a jury of three counts of perjury,*fn1 one count of Obstruction of Justice,*fn2 and one count of Bribery.*fn3 He was sentenced to concurrent terms of three to twenty-three months imprisonment on each charge of Perjury. On direct appeal, this court affirmed appellee's judgment of sentence. Our Supreme Court granted a petition for allowance of appeal; it affirmed. Appellee then filed an appeal under 28 U.S.C.A. ยง 1257(2) in the United States Supreme Court. That court dismissed the appeal for want of jurisdiction and also denied certiorari, treating the pleading alternatively as a petition for a writ of certiorari.

[ 316 Pa. Super. Page 441]

At his trial and before this Court, appellee was represented by Anthony D. Pirillo, Esquire. Alfonso Tumini, Esquire, pleaded appellee's case before the Pennsylvania Supreme Court. Both attorneys were retained by the Philadelphia Fraternal Order of Police as part of its service for the defense of accused police officers, during the pendency of appellee's case. Appellee filed a petition and also an amended petition pursuant to the Post Conviction Hearing Act*fn4 in which he alleged that the contractual relationship between his attorneys and the Fraternal Order of Police denied him effective assistance of counsel. Appellee asserted that a conflict of interest tainted his attorneys' representation of him. In particular, he argued that Mr. Pirillo's representation of other officers prevented him from recommending that appellee cooperate and assist the Special Prosecutor because such a recommendation might implicate Pirillo's other clients. After a hearing on the allegations in the petition, the lower court granted appellee's requested relief of a new trial.

The Commonwealth appealed, urging that appellee has waived the conflict issue because of a colloquy in which appellee participated prior to his appearance before the grand jury. The Commonwealth also asserts that no conflict of interest existed in appellee's attorney's representation of him as well as other police officers, any more than it exists by appellee's current representation by an attorney who is also retained by the Fraternal Order of Police. Because we find that the lower court erred in vacating the judgment of sentence and in granting a new trial, we reverse the order of the lower court.

Our task in reviewing the decision of the lower court is limited to a determination of whether the findings of the court are supported by the record. Commonwealth v. May, 296 Pa. Superior Ct. 435, 442 A.2d 1129 (1982). We find no error in the lower court's conclusion that appellee has not waived the instant issues in failing to raise them at

[ 316 Pa. Super. Page 442]

    an earlier stage in the proceedings.*fn5 Rather, we find that, contrary to the lower court's conclusion, multiple representation was not present in this case such that it would give rise to a possibility of harm to appellee. Consequently, we decline to find that appellee was denied his right to effective assistance of counsel when he was defended by Mr. Pirillo.

The test for determining whether appellee was afforded effective assistance of counsel was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel must be shown to have had some reasonable basis designed to effectuate his client's interests by his representation. The United States Supreme Court dealt with allegations of ineffective assistance of counsel in the context of a purported conflict of

[ 316 Pa. Super. Page 443]

    interest in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 ...


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