J. S15028/17
2018 PA Super 71
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPELLANT :
v. :
:
MIGUEL DIAZ :
:
:
: No. 1811 EDA 2016
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.
OPINION BY DUBOW, J.: FILED MARCH 23, 2018
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
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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.
1 Initially, the Commonwealth charged both Appellee and the Complainant’s
mother with various sex-related offenses, but later dropped all charges
against the Complainant’s mother because the Complainant refused to
testify against her mother.
2 The PCRA Court summarized their representation of Appellee as
“shockingly substandard” and “incompetent[,]” concluding that “only sloth,
mismanagement and incompetence” could explain their many failings. The
court also found that trial counsel failed to complete important tasks, such
as filing timely discovery motions, obtaining important evidence that could
exonerate their client, securing testimony from family members who could
establish Appellee’s innocence, and informing Appellee of when his trial was
scheduled to occur. The attorneys missed important court dates, including
Appellee’s arraignment hearing. When they did show up, they failed to meet
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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
basic responsibilities, such as recording testimony or taking notes during the
preliminary hearing. The PCRA court summarized its ruling by stating:
The decision to grant [Appellee] a new trial was not made
lightly. Quite frankly, the system failed both the Complainant,
E.S.[,] and [Appellee]. In 33 years of practice before the Bar,
and 6 years of experience as a Judge, I have never seen a case
as rife with ineffective assistance of counsel[] as this one.
Opinion II at 20.
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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.
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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.
3 As we conclude that Appellee is entitled to a new trial based on the
translator claim, we decline to discuss the remaining claims.
4 The Honorable David Heckler presided over the trial and sentencing, and
the Honorable Robert Baldi presided over the PCRA petition.
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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
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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.
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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.
5 We respectfully part ways with the Dissent in that we accept the conclusion
of the PCRA Court that Appellee could not comprehend the proceedings
without a translator. The Dissent, in contrast, concludes that Appellee “could
speak and understand English” based on the PCRA Court’s finding that
Appellee spoke both Spanish and English in phone conversations with family
members while incarcerated. Dissent at *6. Although the PCRA Court made
that finding, we believe that the findings discussed in the body of this
Opinion overwhelmingly support the PCRA’s Court’s conclusion that Appellee
could not understand the criminal proceedings.
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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 ...
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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).
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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
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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
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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
6 The dissent relies on Weaver v. Massachusetts, 137 S.Ct. 1899 (2017),
where the petitioner claimed that his counsel was ineffective for failing to
object when the trial court only permitted potential jurors, and not the
public, in the courtroom during voir dire. The U.S. Supreme Court held that
when a petitioner argues that his attorney was ineffective for failing to
object to alleged violations to petitioner’s right to a public trial, it is the
defendant’s burden to show that that structural error “render[ed the] trial
fundamentally unfair.” Id. at 1911. Underlying the Weaver analysis is the
premise that the effect of a violation of one’s constitutional rights—and such
a structural error’s impact on the fundamental fairness of a trial—is case-
specific, even when first raised in an ineffectiveness claim. See id., at 1911-
1912. Because the rights at issue in this case involve Appellee’s inability to
comprehend the criminal proceedings and not the right to keep the
courtroom open during voir dire, the rights at issue are wholly and strikingly
different from those in Weaver. Thus, the holding in Weaver does not
change our analysis and disposition of the instant case.
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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.
Judge Bowes files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/18
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