from the PCRA Order May 12, 2016 In the Court of Common Pleas
of Bucks County Criminal Division at No(s):
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
Commonwealth appeals from the May 12, 2016 Order entered in
the Bucks County Court of Common Pleas granting Appellee,
Miguel Diaz, a new trial based on numerous ineffective
assistance of counsel claims pursuant to the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S. §§
9541-9546. After careful review, we conclude that the PCRA
court properly granted Appellee a new trial because
Appellee's trial counsel was per se ineffective
in his handling of Appellee's need for a translator at
trial. We, therefore, affirm the PCRA court's grant of a
Honorable Robert O. Baldi, who presided over Appellee's
PCRA proceedings below, has authored two Opinions, which
include the relevant factual and procedural history as well
as 104 Findings of Fact ("FF"). See PCRA
Court Opinion (Opinion I), filed 5/12/16, at 1-26, 33-39;
PCRA Court Pa. R.A.P. 1925(a) Opinion (Opinion II), filed
7/22/16, at 1-8.
this summary of the facts upon Judge Baldi's findings of
facts. In May 2006, fourteen-year-old E.S. told a classmate
and later a school guidance counselor that Appellee, her
stepfather, had been sexually abusing her for four years with
her mother's knowledge and cooperation. The police
retained the services of Gregory Noonan, Esquire, and John
Walfish, Esquire, both of Walfish & Noonan LLC. Over the
course of their eight-month representation of Appellee,
Attorney Noonan met with Appellee for a total of less than
one hour. Attorneys Noonan and Walfish failed to consult with
one another at any point prior to trial, and each assumed
that the other would be responsible for critical components
of proper trial preparation. Opinion II at 14-15.
morning of the trial and fifteen minutes before the court
called the case, Attorney Walfish met his client for the
first time. Appellee informed Attorney Walfish that Appellee
needed a Spanish-English translator to help him understand
the trial proceedings.
Attorney Walfish had not consulted with Attorney Noonan about
Appellee and Attorney Walfish had spent only fifteen minutes
with Appellee, Attorney Walfish did not recognize the extent
to which Appellee needed a translator to understand the
Walfish requested a translator and the trial court said that
one was not available for the first day of trial. Attorney
Walfish then mistakenly informed the trial court that
Appellee only need a translator when Appellee testified. The
trial court judge then promised not to move forward into
testimony until the next day when the court would provide a
translator for Appellee. Op. I, FF #71-73.
the judge's promise, the trial court began the trial that
day. The lawyers selected a jury and made opening statements
to the jury. Most significantly, the Complainant, the focal
point and main witness of the Commonwealth's case,
testified fully. Attorney Walfish, not recognizing
Appellee's need for a translator, stayed silent, and did
not object, as the case proceeded without a translator.
Beginning the second day, the court provided a translator to
Appellee for the remainder of the trial. Op. I, FF #75-76.
jury convicted Appellee of Rape of a Child, Rape of a Person
Less than 13 years of Age, Statutory Sexual Assault,
Corruption of Minors, Endangering the Welfare of a Child, as
well as Conspiracy to commit each of those offenses.
Appellee returned to court for his hearing to determine if he
was a Sexually Violent Predator and subsequent sentencing,
the trial court noted the presence of a translator because
Appellee does "not understand the proceedings well
enough to participate in them without an interpreter."
Op. I, FF #77.
trial court ultimately sentenced Appellee to twenty to forty
years' incarceration in a state correctional facility.
filed a direct appeal to this Court, raising claims that,
inter alia, the trial court erred in failing to
provide a translator on the first day of trial. This Court,
however, found that Appellee waived his right to challenge
the trial court's decision to proceed without a
translator because Attorney Walfish failed to object during
trial to the trial court's decision. Commonwealth v.
Diaz, No. 3243 EDA 2012, unpublished memorandum at 5
(Pa. Super. filed October 1, 2012).
subsequently filed a PCRA Petition, alleging numerous claims
of ineffective assistance of counsel. Among the many errors
supporting Appellee's ineffectiveness allegations,
Appellee asserted that Attorney Walfish failed to represent
Appellee adequately due to, inter alia, his failure
to secure a Spanish-English interpreter and object to the
court's decision to hear testimony on the first day of
trial despite the trial court's pledge not to do so.
hearing testimony, the PCRA Court made thirty-four findings
of fact that are specific to Appellee's translator
claim. See Op. I, at 33-39. Most
significantly, the PCRA court concluded that Appellee
"did not understand what was occurring during the
pre-trial motion proceedings, jury selection or opening
arguments and did not understand about half of the
complainant's testimony." Op. I, FF #92.
PCRA court based this conclusion on, inter alia,
testimony about Appellant's language capabilities,
education, and use of language. Op. I, FF #78-87, 94-100.
PCRA Court also relied upon the testimony of Raymond
McConnie, an expert on Appellee's ability to comprehend
English. Mr. McConnie testified that Appellee's language
proficiency in English "was not adequate to follow what
was happening at trial without an interpreter." Op. I,
FF #102. Mr. McConnie also opined that "stress at trial
tends to dissipate a foreign language speaker's extant
ability to understand the language spoke at trial; and as a
result, [Appellee] had significant difficulty understanding
what happened at trial, and communicating with counsel at
trial, when he did not have an interpreter."
addition to the translator claim, the PCRA court identified a
"multitude of deficiencies [that] ranged from things
that might be characterized as inattentive or negligent to
things that were breathtakingly shocking." Opinion II at
11. Because of these findings and others, the PCRA court
granted Appellee's PCRA Petition and ordered a new trial.
Commonwealth filed a timely appeal.
appeal, the Commonwealth raises nine claims, each addressed
to one of the grounds for a new trial identified by the PCRA
court. Since we find that Attorney Walfish's handling of
the translator issue provided sufficient ineffectiveness to
entitle Appellee to a new trial, we need not address the
Commonwealth's other issues.
Commonwealth sets forth the translator issue as follow:
Did the PCRA court err in granting relief by finding prior
counsel was ineffective for failing to secure [a translator]
during attorney consultation with Appellee, at trial, and
during subsequent interviews with authorities, where Appellee
failed to meet his burden and the record reflects that
Appellee spoke, understood[, ] and comprehended English, and,
in fact, admittedly advised counsel that he spoke and
Brief at 5.
reviewing the propriety of an order pertaining to PCRA
relief, we consider the record "in the light most
favorable to the prevailing party at the PCRA level."
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa.
Super. 2015) (quoting Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc)). This Court
is limited to determining whether the evidence of record
supports the conclusions of the PCRA court and whether the
ruling is free of legal error. Commonwealth v.
Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant
great deference to the PCRA court's findings that are
supported in the record and will not disturb them unless they
have no support in the certified record. Commonwealth v.
Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014). However, we
afford no such deference to the post-conviction court's
legal conclusions. Id. We thus apply a de
novo standard of review to the PCRA Court's legal
conclusions. Commonwealth v. Spotz, 18 A.3d 244 (Pa.
2011). Further, an appellate court is not bound by the
rationale of the trial court and may affirm on any basis if
the record supports it. In re Jacobs, 15 A.3d 509
(Pa. Super. 2011).
our standard of review in mind, we turn to the
Commonwealth's challenge to the PCRA Court's finding
regarding the need for a translator. Although the
Commonwealth purports to raise a single issue, the challenge
is comprised of two distinct claims, which we will address in
the Commonwealth challenges the PCRA Court's conclusion
that Appellant needed a translator to participate in his own
defense. Although the Commonwealth argues that
there were sufficient facts for the PCRA Court to find that
Appellee understood the criminal proceedings and did not need
a translator, the argument ignores our standard of review on
case law is unwaveringly clear that "we
must defer to the PCRA court's findings
of fact and credibility determinations, which are supported
by the record." Commonwealth v. Spotz, 84 A.3d
294, 319 (Pa. 2014) (emphasis added). We will not disturb a
PCRA court's findings of fact "unless they have no
support in the record." Commonwealth v. Rykard,
supra at 1183. Therefore, the relevant question is not
whether the Commonwealth can point to additional evidence
that conflicts with the PCRA court's findings. Instead,
our focus is on whether there is any support
in the record for the PCRA court's findings.
discussed above, the PCRA court made extensive findings of
fact to support its conclusion that Appellee could not
comprehend the criminal proceedings without a translator. The
PCRA Court supports each of its findings with references to
relevant portions of the Notes of Testimony from the trial or
the PCRA hearings. After a review of the record, we conclude
that each of these findings are supported by one or more
portions of the record. Therefore, we will defer to these
findings and the conclusion that Appellee could not
comprehend the proceedings without the assistance of a
the PCRA court's findings of fact in mind, we turn next
to the Commonwealth's claim that Appellee was not
prejudiced by Attorney Walfish's failure to request a
translator before trial or to make timely objections to the
trial court's proceeding without a translator. We reject
this argument. Under the facts of this case, Attorney
Walfish's lack of comprehension about Appellee's need
for a translator leading to his failure to object to
proceeding at trial without a translator constitutes per
se ineffectiveness of counsel.
I, Section 9 of the Pennsylvania Constitution guarantees an
accused the right to counsel in criminal prosecutions. This
In all criminal prosecutions the accused hath a right to be
heard by himself and his counsel, to demand the nature and
cause of the accusation against him, to be confronted with
the witnesses against him, to have compulsory process for
obtaining witnesses in his favor, and, in prosecutions by
indictment or information, a speedy public trial by an
impartial jury of the vicinage ...
PA Const. Art. 1, § 9. The right to counsel includes the
right to the effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 686 (1984) (citing
McMann v. Richardson, 397 U.S. 759, 771, n. 14
are two types of ineffective assistance of counsel. The first
is ineffectiveness under Strickland, as adopted in
Pennsylvania by Commonwealth v. Pierce, 527 A.2d 973
(Pa. 1987), which requires the defendant to demonstrate that
he was prejudiced by an act or omission of his attorney.
second type of ineffectiveness of counsel is ineffectiveness
per se under United States v. Cronic, 466
U.S. 648 (1984), decided the same day as Strickland,
in which the United States Supreme Court categorized
circumstances where the court will presume prejudice and the
defendant need not prove it. The presumption is based on the
High Court's recognition that there are some
"circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a
particular case is unjustified." Id. at 658.
Commonwealth v. Britt, 83 A.3d 198 (Pa. Super.
2013), this Court summarized those cases in which the court
found ineffectiveness per se by noting that
"[i]n Pennsylvania, per se ineffectiveness
under Cronic occurs where there was an actual or
constructive denial of counsel, the state interfered with
counsel's assistance, or counsel had an actual conflict
of interest." Id. at 202-03 (quotation and
addition, prejudice is presumed where trial counsel's
ineffectiveness causes a defendant to be physically absent
from his own trial without cause or consent. Commonwealth
v. Tolbert, 369 A.2d 791, 792 (Pa. Super. 1977). In
Tolbert, trial counsel erroneously notified the
defendant that he would not need to be present on the day his
case was called to trial, and told him to appear the
following morning instead. Id. at 792. When the case
was called for trial without the defendant present, the trial
judge was "understandably irritated at the turn of
events." Id. Defense counsel agreed to proceed
through jury selection without the defendant present, and the
lawyers selected a jury in the defendant's absence.
Id. The defendant later appealed, averring that
trial counsel had rendered ineffective assistance when he
agreed to proceed with jury selection without the defendant
Court granted Tolbert a new trial because trial counsel had
no reasonable basis for advising the defendant not to appear
and concluded that trial counsel had been ineffective. This
Court did not evaluate whether the outcome of his jury trial
would have been different had he been present for jury
selection. Id. Instead, this Court focused on the
defendant's "absolute" right to be physically
present in court "during the selection of the jury,
along with his right to be present during every other phase
of the trial." Id. We emphasized that
"[t]he right of the accused to participate in the
selection of the jury panel is an essential ingredient of a
jury trial under the Pennsylvania Constitution."
significant to the instant appeal, the Pennsylvania Supreme
Court has addressed the issue of a defendant, although
physically present at trial, being constructively absent when
the defendant is deprived of a translator. See
Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976)
("A defendant's ability to use a translator
encompasses numerous fundamental rights. The failure to
understand the proceedings may deny him his right to confront
witnesses against him, his right to consult with his
attorney, or his right to be present at his
own trial." (emphasis added)); Commonwealth v.
Wallace, 641 A.2d 321, 325 (Pa. Super. 1994) ("The
[C]onfrontation [C]lause requires that a defendant be given
the opportunity to be physically present at trial, that the
defendant be competent to assist in his own defense, and that
the defendant understand the language of the forum."
(citation and quotation omitted)).
noted above, the PCRA Court's conclusion in the instant
case-that Appellee's inability to understand English was
such that he could not participate adequately in the
proceedings without a translator-is well supported. The
ability to understand the proceedings is fundamental to the
right to confront witnesses and be present at his own trial.
The importance of this right is magnified in a case such as
this, where the case rests solely on the testimony of the
alleged victim and the defendant. Accordingly, we conclude
that Appellee suffered prejudice per se as a result
of counsel's failure to ascertain that Appellee needed a
translator to understand the criminal proceedings, providing
incorrect information to the trial court about Appellee's
need for a translator, and failing to object when the trial
court proceeded without a translator.
in light of the PCRA court's findings of fact, it is
clear that such actions were not based on any reasonable
trial strategy, but rather stem from counsel's lack of
Attorney's Walfish's failure to ascertain
Appellee's need for a translator that led to Attorney
Walfish's failure to object when the trial court
proceeded without a translator resulted in a violation of
Appellee's Sixth Amendment rights and, thus, is per
se ineffectiveness. 
Walfish's failures are analogous to the attorney's
failure in Tolbert, supra, where he advised his
client not to appear at trial. Although Appellee here was
physically present in the courtroom during his first day of
trial, he was constructively absent because, as the PCRA
court found, Appellee needed a translator in order to
understand the proceedings and participate in his own
defense. In both cases, counsels' actions or inaction
caused the defendants to be "absent" from trial.
we extend the concept of ineffectiveness per se to
situations like this one in which counsel fails to ascertain
the defendant's need for a translator and as a result,
incorrectly informs the court about the need for a
translator. This results in the defendant not comprehending
the criminal proceedings and counsel not objecting to the
trial court's proceeding without a translator. We
conclude, therefore, that if one's Sixth Amendment rights
are to have any meaning, Appellee must be granted a new
Ford Elliott joins the opinion.
respectfully dissent, as I do not believe that the
presumptive prejudice doctrine announced in United States
v. Cronic, 466 U.S. 648 (1984), applies to these facts.
I would apply Strickland v. Washington, 466 U.S. 668
(1984), to this case, and reverse the PCRA court's grant
of a new trial as Appellee failed to establish prejudice
pursuant to those principles.
prejudice is not warranted
PCRA court determined that Appellee established prejudice
under Strickland. The learned Majority does not
discuss that analysis, as it affirms on the alternative legal
ground of presumptive prejudice flowing from one particular
circumstance: difficulties arising from the fact that
Appellee spoke English as a second language. By electing to
apply Cronic, the Majority has lifted from Appellee
the burden of explaining how the presence of an interpreter
would have made any difference at trial, and, as such,
Appellee did not have to establish a reasonable probability
that the ultimate outcome would have been any different.
Appellee would need to establish that probability under
Mickens v. Taylor, 535 U.S. 162 (2002), the United
States Supreme Court summarized the distinction between these
The Sixth Amendment provides that a criminal defendant shall
have the right to "the Assistance of Counsel for his
defence." This right has been accorded, we have said,
"not for its own sake, but because of the effect it has
on the ability of the accused to receive a fair trial."
United States v. Cronic, 466 U.S. 648, 658, 104
S.Ct. 2039, 80 L.Ed.2d 657 (1984). It follows from this that
assistance which is ineffective in preserving fairness does
not meet the constitutional mandate, see Strickland v.
Washington, 466 U.S. 668, 685-686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); and it also follows that defects in
assistance that have no probable effect upon the trial's
outcome do not establish a constitutional violation .....
There is an exception to this general rule. We have spared
the defendant the need of showing probable effect upon the
outcome, and have simply presumed such effect, where
assistance of counsel has been denied entirely or during a
critical stage of the proceeding. When that has
occurred, the likelihood that the verdict is unreliable is so
high that a case-by-case inquiry is unnecessary. But only in
"circumstances of that magnitude" do we forgo
individual inquiry into whether counsel's inadequate
performance undermined the reliability of the verdict.
Id. at 166 (some citations omitted, emphasis added).
As our Supreme Court observed in Commonwealth v.
Reaves, 923 A.3d 1119 (Pa. 2007), there is a common
thread in cases applying the Cronic presumption:
[T]he defining feature of all of these cases is that the acts
or omissions of counsel were of the type that are virtually
certain to undermine confidence that the defendant received a
fair trial or that the outcome of the proceedings is
reliable, primarily because they remove any pretension that
the accused had counsel's reasonable assistance during
the critical time frame. In this regard, it is worth noting
that the portion of the Cronic decision explaining
the theory underlying the concept of presumptive prejudice
begins by observing that effective assistance is
constitutionally guaranteed not for its own sake, but because
of its effect upon the accused's ability to receive a
Id. at 1128.
Appellee was neither denied counsel entirely nor denied
counsel at a critical stage, and therefore that defining
feature is absent. The United States Supreme Court has stated
that Cronic "is reserved for cases in which
counsel fails meaningfully to oppose the prosecution's
case." Florida v. Nixon, 543 U.S. 175, 179
(2004) (refusing to apply Cronic where counsel in
death penalty case conceded guilt and focused on sentencing,
as the defendant neither agreed nor disagreed with that
tactic). Even if Appellee were completely unable to speak
English, a circumstance that is not at issue, I do not see
how the language barrier hampered counsel in
his efforts to oppose the prosecution's case. A
defendant's inability to understand the proceedings would
not interfere with that fundamental task, except to the
extent that the language barrier precluded the defendant from
assisting counsel during the trial. A defense attorney can
still litigate a case and undercut the Commonwealth's
attempts to establish proof beyond a reasonable doubt even if
the defendant is not present in the courtroom. In other
words, it is not inherently illogical to conclude that an
attorney could render effective assistance even when the
defendant is completely absent.
esteemed colleagues in the Majority do not appear to dispute
the above point; instead, they find that counsel was
ineffective for failing to timely secure a translator. Next,
the Majority finds that Appellee could not understand the
proceedings against him, which implicates his own
constitutional rights, including the right to be present at
trial. The Majority links the violation of his constitutional
rights to counsel's ineffective failure to request the
interpreter. By dispensing with the need to establish
prejudice as it pertains to this ineffectiveness,
i.e., a showing that counsel's error undermines
confidence in the verdict, the Majority determines that the
error is structural. That label attaches to "a very
limited class of errors that trigger automatic reversal
because they undermine the fairness of a criminal proceeding
as a whole." United States v. Davila, 133 S.Ct.
2139 (2013) (citation omitted). I agree that a criminal
defendant's complete inability to understand the
proceedings against him would be a serious constitutional
error, but the Majority does not explain why the facts herein
rose to that level. The Majority reaches its conclusion by
citing Commonwealth v. Tolbert, 369 A.2d 791
(Pa.Super. 1977) and Commonwealth v. Pana, 364 A.2d
895 (Pa. 1976). At the outset, it must be noted that both of
these cases pre-date the seminal Strickland and
Cronic cases, and therefore do not control our
analysis of the prejudice inquiry. Nevertheless, I will
assume that the concepts are pertinent to this appeal.
Tolbert, trial counsel erroneously informed the
defendant that he was not required to be present on the day
his case was called to trial, and jury selection proceeded in
his absence. We reversed without inquiry into prejudice,
stating that the right to be present at all stages of the
trial is absolute. In Pana, our High Court held that
a trial judge's refusal to appoint an interpreter to
allow a defendant to testify in Spanish was a denial of the
right to testify. Pana observed in passing that the
"failure to understand the proceedings may deny him . .
. his right to be present at his own trial."
Id. However, Pena's holding was limited
to the right to testify. "[T]he court's refusal to
permit the use of the interpreter denied appellant his right
to testify effectively in his own behalf and was prejudicial
error." Pana, supra at 898.
case bears little resemblance to Pana, legally or
factually. Legally, Pana implicated the right of a
defendant to testify on his own behalf. Factually, the
prosecutor in that case joined in the request for an
interpreter, and the judge "implied before the jury that
appellant's language difficulty was a fabrication."
Id. at 897. That extreme level of dysfunction is not
present herein, and the record is clear that Appellee could
speak and understand English. Indeed, the PCRA court's
factual findings noted the same. For example, the PCRA court
issued this finding of fact:
Several telephone calls the Defendant made in prison were
introduced into the record and played at the post-sentence
hearings; the calls showed that when speaking to his
daughter, [M.D], he would speak mostly in English, with
[M.S.]'s son [M] in English and ...