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Commonwealth v. Diaz

Superior Court of Pennsylvania

March 23, 2018


          Appeal from the PCRA Order May 12, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006973-2007

          BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.


          DUBOW, J.

         The 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 new trial.

         The 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.

         We base 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 arrested Appellee.[1]

         Appellee 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.[2] Opinion II at 14-15.

         On the 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.

         Since 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 criminal proceedings.

         Attorney 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.

         Despite 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.

         The 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.

         When 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.

         The trial court ultimately sentenced Appellee to twenty to forty years' incarceration in a state correctional facility.

         Appellee 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).

         Appellee 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. [3]

         After hearing testimony, the PCRA Court made thirty-four findings of fact that are specific to Appellee's translator claim.[4] 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.

         The 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.

         The 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." Id.

         In 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.

         The Commonwealth filed a timely appeal.

         On 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.

         The 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 understood English?

         Commonwealth's Brief at 5.

         When 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).

         With 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 turn.

         First, the Commonwealth challenges the PCRA Court's conclusion that Appellant needed a translator to participate in his own defense.[5] 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 appeal.

         The 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.

         As 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 translator.

         With 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.

         Article I, Section 9 of the Pennsylvania Constitution guarantees an accused the right to counsel in criminal prosecutions. This section provides,

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 (1970)).

         There 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.

         The 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.

         In 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 citation omitted).

         In 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 present. Id.

         This 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." Id.

         Most 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)).

         As 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.

         Further, 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 preparation.

         Therefore, 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. [6]

         Attorney 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.

         Thus, 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 trial.

         Order affirmed.

          Judge Ford Elliott joins the opinion.

         Judgment Entered.


          BOWES, J.

         I 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.


         Presumptive prejudice is not warranted


         Cronic versus Strickland

         The 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 Strickland.

         In Mickens v. Taylor, 535 U.S. 162 (2002), the United States Supreme Court summarized the distinction between these two doctrines.

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 fair trial.

Id. at 1128.

         Herein, 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.


         Structural error

         My 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.[1] 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.

         In 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.

         This 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 ...

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