No. 583 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division at No. 538, 539 July Term 1976.
Michael Alan Seidman, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Rowley, Wieand and Popovich, JJ. Wieand, J., files a concurring statement which is joined by Rowley, J.
[ 319 Pa. Super. Page 117]
This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant's, Adolfo Carrillo's Post-Conviction Hearing Act (PCHA) petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We affirm.
The salient facts are as follows: In a non-jury trial before the Honorable Alex Bonavitacola, appellant was adjudged guilty of the shooting death of Santiago Garcia and possession of an instrument of crime. Boiler-plate post-trial motions that questioned the sufficiency of the evidence were filed by trial counsel. Subsequently, in his brief, counsel raised issues concerning the suppressibility of a confession and the commission of error on the part of the trial judge in allowing certain hearsay testimony into evidence. In response to the allegations proffered by appellant's counsel, the trial judge ruled only upon the sufficiency of the evidence and held all other issues waived, despite the submission of a brief to supplement the motions. It did so on the basis of Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
On appeal, the same counsel who represented appellant throughout the criminal process raised, in addition to various matters categorized by the reviewing court as assailing the sufficiency of the evidence, three issues relating to the admissibility of an inculpatory statement, secured during an interrogation in which a police officer acted as the interpreter for the Spanish-speaking appellant.
Our Supreme Court sustained the trial court's ruling on all counts, including the waiver issue under Blair, and, thus, declined to decide the propriety of the circumstances under which the inculpatory statement was secured and its admissibility at trial. Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978) (Manderino, J., Dissenting).
On August 16, 1979, appellant filed a pro se PCHA petition claiming that, inter alia, prior counsel (David Weinstein) was incompetent because:
[ 319 Pa. Super. Page 118]
(a) Counsel Failed to protect Petitioner's Constitutionally secured Rights as set forth by the Constitution of the State of Pennsylvania.
(b) Counsel failed to preserve meritorous [sic] issues for Appellate Review.
(Appellant's pro se PCHA petition at 3)
The remaining errors alleged by the appellant concerned assertions that the Commonwealth encroached upon his right to appeal, its use of perjured testimony, inadmissible hearsay and an inculpatory statement in proving its case at trial. Id. Additionally, at appellant's request, (private) counsel was appointed and filed an amended PCHA petition, which represented in relevant part that:
9. Your petitioner is entitled and is eligible for relief in that:
(c) His convictions and sentence are as a result of the following:
(1) A confession was introduced at the trial of this case despite its being unlawfully and illegally secured from the petitioner in that he had never before been arrested and was unfamiliar with the criminal justice system. Further, he was born and raised in Puerto Rico and resided in Philadelphia, Pennsylvania for a short length of time and spoke absolutely no English and could not read or write English. Further, the interpreter used by the interrogating homicide detective at 8th and Ract [sic] Streets was an uneducated Philadelphia Policeman who was ineffective and was not a competent and professional interpreter and was neither learned nor an expert in interpreting. Further, professional, experienced and educated interpreters were readily available upon request of the Police Department. Further, considering the size of the Spanish community in Philadelphia, a professional, experienced and educated interpreter should be available at all times in situations analogous to the instant one. Consequently,
[ 319 Pa. Super. Page 119]
the confession obtained from your petition was done so in deregation [sic] of his due process and constitutional rights;
(2) Your petitioner did not knowingly and intelligently waive his right to a trial by jury;
(3) The "interpreter's" translation during the interrogation of petitioner to the interrogating detective who repeats same was hearsay;
(4) A mistrial should have been moved for by counsel and granted where the Assistant District Attorney accused petitioner of tampering with a witness and so informed the trial judge and a request was made for revocation of petitioner's bail; all of which prejudiced and biased the fact finder;
(5) The trial judge failed to comply with Rule 1123 of the Rules of Criminal Procedure; and
(6) Your petitioner was represented at the pre-trial, trial and post-trial proceedings in this matter by ineffective counsel in that:
(a) Said counsel failed to raise the specific issues that are stated above as well as others that occurred during all proceedings;
(b) Counsel neglected to effectively and competently advise petitioner as to what a waiver of a jury trial meant taking into account petitioner's background, intelligence, ethnic origin, lack of ability to communicate in an English speaking system and the nature of the charges; and
(c) Counsel failed to file specific issues in his post-verdict motions; inter alia, those as stated above as well as others that arose during the proceedings. This in spite of the law's requiring him to do so less his client be deemed to have waived them.
11. Present counsel will present testimony from petitioner, trial counsel, etc.
[ 319 Pa. Super. Page 12013]
. The matters alluded to above resulting in petitioner's conviction and sentence have neither been finally litigated nor waived.
Thereafter, appointed counsel submitted a supplemental PCHA petition amending paragraph (1), section (c) of Point 9, supra, to complain that the police interpreter "was not a neutral and impartial third party." (Record No. D-12)
Before the commencement of the PCHA hearing, presided over by the Honorable Edward J. Blake, an official court interpreter (Luisa Ramirez) employed by the Court of Common Pleas of Philadelphia County was sworn in to keep appellant apprised of what was occurring at the proceedings.*fn1
The first witness to take the stand was Frank Rivera, an official interpreter (Spanish to English) for the court. He stated that in his 4 1/2 years as an interpreter, he was aware of interpreters being present at the earliest stage of the judicial process, e.g., summary proceedings and preliminary hearings, up to and including the time set for sentencing. However, he had "never been asked" to be at an interrogation. (N.T. 2/23-24/81 at 9) He also opined that, based on his experience, if a person had a good knowledge of the Spanish and English languages there was no reason why such a person could not serve as an interpreter. He qualified the statement with the caveat that he "meant outside of Court." (N.T. 2/23-24/81 at 11) In the court, he felt, the person should have some knowledge of the legal terminology.
The next witness to testify was the 41-year-old appellant, and he did so through Ms. Ramirez. He stated he arrived in Philadelphia from Puerto Rico in 1967, returned to his homeland in 1973 and then came back here in 1975; yet ...