[J-57-2019] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 74 MAP 2018
:
Appellant : Appeal from the Order of the
: Superior Court at No. 1811 EDA
: 2016 dated March 23, 2018,
v. : reconsideration denied May 30,
: 2018, Affirming the PCRA Order of
: the Bucks County Court of Common
MIGUEL DIAZ, : Pleas, Criminal Division, at No. CP-
: XX-XXXXXXX-2007 dated May 12,
Appellee : 2016.
:
: SUBMITTED: March 26, 2019
DISSENTING OPINION
JUSTICE MUNDY DECIDED: March 26, 2020
I disagree with the majority’s affirmance of the Superior Court on the basis that it
“correctly concluded that [United States v.] Cronic[, 466 U.S. 648 (1984)], was applicable
and that no specific showing of prejudice was required because of the absence of an
interpreter on the first day of trial during critical stages of the proceeding.” Majority Op.
at 2. I disagree in the first instance because the Superior Court lacked jurisdiction to
adjudicate this issue. Indeed, the PCRA court did not grant Diaz relief on his claim that
counsel was ineffective for failing to procure an interpreter for trial. Thus, the issue was
not properly part of the Commonwealth’s appeal to the Superior Court. In addition to this
jurisdictional issue, I also dissent from the merits of the majority’s application of Cronic to
the circumstances in this matter.
I.
The PCRA court concluded Diaz was entitled to relief because “[t]he attorneys
hired by [Diaz], simply failed in their duties as attorneys to provide adequate
representation as mandated by both the United States Constitution and the Pennsylvania
Constitution.” PCRA Ct. Op. at 41. Accordingly, the PCRA court granted Diaz a new trial.
However, the PCRA court did not specifically grant relief based on counsel’s failure to
secure an interpreter on the first day of trial. The PCRA Court did note that under
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (applying Strickland), “there is
undoubtedly merit in Petitioner’s contention that trial counsel was ineffective for failing to
secure an interpreter[,]” and that trial counsel “provided no guidance and lacked a
reasonable basis for failing to secure an interpreter[.]” PCRA Ct. Op. at 40. Nevertheless,
the PCRA court stated, “we find that Petitioner is not entitled to relief on this claim alone;
however, we feel a discussion on it is necessary as it underscores the incompetence of
his trial counsel.” PCRA Ct. Op. at 40. Further noting, “[t]he failure to secure an
interpreter, . . . in and of itself does not merit a new trial in this case[.]” Id. Notably, any
discussion of prejudice is absent from the PCRA court’s analysis.
The Commonwealth appealed, raising eight issues pertaining to bases upon which
the PCRA court clearly determined counsel had been ineffective. Based on the ambiguity
of the trial court’s explanation, the Commonwealth, out of understandable caution,
included in its appeal the additional issue of counsel’s failure to secure an interpreter.
The Superior Court then decided the Commonwealth’s appeal solely on the issue of
counsel’s failure to secure an interpreter, in light of which it determined further review of
the remaining eight issues was unnecessary. The Superior Court effectively reviewed
the Commonwealth’s appeal as though Diaz was the appellant, and held Diaz was entitled
to relief under Cronic. The majority now affirms the Superior Court’s opinion. In my view,
the appellate trajectory of this case has led to this Court applying Cronic for the first time,
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notwithstanding the issue was not adverse to the Commonwealth as the appellant and
was never challenged by Diaz because he prevailed in the PCRA court on independent
bases.
Instead, the Superior Court should have limited its review to the Commonwealth’s
remaining eight issues, several of which did not invoke constitutional grounds. See
Commonwealth v. Foster, 214 A.3d 1240, 1247 (Pa. 2019) (noting “this Court will not
address questions of a constitutional dimension if the case can be resolved on a non-
constitutional ground”). Diaz prevailed before the PCRA court on the bases that counsel
failed to meet with Diaz until the day of trial, failed to prepare for trial, failed to investigate
witnesses and evidence, and failed to adopt a viable trial strategy. PCRA Ct. Op. at 27.
In no uncertain terms the PCRA court held, “counsel’s representation in this case leads
inexorably to the conclusion that trial counsel was constitutionally ineffective and that
[Diaz] must be granted a new trial.” Id. Given these were the PCRA court’s bases for
granting relief from which the Commonwealth appealed, the Superior Court should have
limited its review to those claims. For these reasons, I would remand the matter to the
Superior Court to review the properly preserved issues raised by the Commonwealth.1
II.
Because the majority affirms the Superior Court’s reasoning, I also dissent from
the merits of the majority’s application of Cronic to the circumstances of this case. The
majority and the Superior Court majority place a great deal of weight on what is perceived
as a misrepresentation made by Attorney Walfish to the trial court at the time the defense
requested an interpreter be supplied by the court. The majority notes that when Attorney
1 Judge Bowes, in dissent, discussed the Superior Court majority’s decision to ignore the
remaining issues despite the fact that “[t]he PCRA court determined that [Diaz]
established prejudice.” Super. Ct. Op., (Bowes, J. dissenting) at 1-2. Judge Bowes
discussed each of the issues in turn, ultimately finding a failure to prove prejudice and
recommending the court reverse the grant of a new trial.
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Walfish requested an interpreter, the trial court informed him that one was not available
for the first day of trial. The majority recognizes “Attorney Walfish then changed the
request, informing the trial court that Diaz only needed an interpreter for his own
testimony[.]” Majority Op. at 4. Nevertheless, the majority indicates this was inaccurate
based on Diaz’ subsequent testimony at his PCRA hearing. The Superior Court first
advanced this notion when it held “Attorney Walfish then mistakenly informed the trial
court that [Diaz] only needed 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.” Super. Ct. Op. at 3 (citing Op. I. FF # 71-73). However,
a review of the PCRA court’s findings of fact is inconsistent with these statements as
there is no mention of the trial court being misinformed. The referenced PCRA court
findings of fact state the following:
71. On the first day of trial, defense counsel informed the trial court - Judge
Heckler - that he had only met with his client that morning and his client
required a Spanish interpreter. (N.T., 2/19/08, p. 3)
72. Judge Heckler expressed surprise at the last minute request, and said
that in any event “this case needs to be tried and it’s going to be tried right
now.” (N.T., 2/19/08, p. 6)
73. Defense counsel then spoke to his client, and told Judge Heckler that
his client only needed the interpreter for when he testified, whereupon
Judge Heckler stated that there would not be any testimony that day, and
expressed reticence at delaying the proceedings further to obtain an
interpreter. (N.T., 2/19/08, p. 7)
PCRA Ct. Op. at 34. Notably, the PCRA court did not make a finding that defense counsel
mistakenly or inaccurately informed the trial court that Diaz had stated he only needed an
interpreter for his testimony, and thus the majority does not cite to a finding of fact that
[J-57-2019] [MO: Donohue, J.] - 4
supports this notion.2 This fact, upon which the majority and Superior Court majority rely,
is simply not in the record. The PCRA court cites to the notes of testimony upon which it
made its findings of fact which support the PCRA court’s findings. The notes of testimony
of the exchange between the trial court and Attorney Walfish that led to these findings of
fact reveal the following exchange:
The Court: Now, here we are after all these listings, which
is an unusual number for this county, and you
inform my staff this morning that your client
perceives that he needs an interpreter?
Mr. Walfish: This is correct, Your Honor.
The Court: Have you been communicating or has your
office been communicating with Mr. Diaz up ‘til
now?
Mr. Walfish: Mr. Noonan, my partner, has been
communicating with Mr. Diaz up ‘til now.
The Court: In English[?]
Mr. Walfish: In English, Your Honor.
The Court: Well, I will give you a moment or two to speak
with Mr. Diaz and explain to me or have him
explain why we’re getting this request now, and
why he’s been able to evidently participate in
these proceedings up ‘til this point. Was there
an interpreter at the preliminary hearing?
[A.D.A.]: No.
The Court: I mean, I’ll give you a minute to be heard on this.
I can certainly understand some reticence on
the part of anybody who’s dealing with English
as a second language, but this case needs to be
2As the majority notes, “[w]hen reviewing PCRA decisions, we are bound by the findings
of fact and credibility determinations made by the PCRA court that have record support;
we review its legal decisions de novo.” Majority Op. at 2 (citing Commonwealth v.
Montalvo, 205 A.3d 274, 286 (Pa. 2019)).
[J-57-2019] [MO: Donohue, J.] - 5
tried and it’s going to be tried right now, and I’m
not sure that we’re ready to, I don’t believe any
arrangements have been made for an
interpreter. So I will hear you.
Mr. Walfish: Thank you, Your Honor. If I might.
***
(Counsel conferred with the defendant.)
***
Mr. Walfish: Your Honor, Mr. Diaz explains to me that the
reason why he would request an interpreter is
that up until this point in time he has never been
required to testify himself in a court of law, and
that is why he would feel more comfortable in
addressing the Court and the jury with an
interpreter present.
The Court: So generally speaking he has felt he’s
understood what’s been taking place. What I’m
thinking about frankly is certainly we’re not
going to get, at the rate we’re going we[‘]re not
going to get to any testimony today. We’re
certainly not going to get to his. I’m sure we can
have a Spanish interpreter for tomorrow, but
whether we can today or not without delaying
these proceedings --
Mr. Walfish: If I might, Your Honor.
***
(Counsel conferred with the defendant.)
***
Mr. Walfish: Your Honor, we would be comfortable in
proceeding without an interpreter until such time
as Mr. Diaz is prepared to testify, at which time
we would need an interpreter.
The Court: We can do better than that. I gather this is
expected to be a relatively short trial?
[J-57-2019] [MO: Donohue, J.] - 6
[A.D.A.]: Yes, Your Honor.
The Court: And I gather that, and I’ve experienced this
before, frankly, if I were in a position of being
tried in a court speaking in a language - any
language is foreign to me beside English - I’d at
least want somebody handy. We’ll get
somebody here by tomorrow, and he or she can
sit with Mr. Diaz if he requires some clarification.
Hopefully she won’t have to do a full-bore
simultaneous translation, but certainly if he
requires some clarification of a point she can
assist him and he or she will be available to fully
translate.
N.T., 2/19/08, at 3-10.3
As Judge Bowes’ noted in dissent, this Court opined on the application of Cronic
in Commonwealth v. Reaves, 923 A.3d 1119 (Pa. 2007):
[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
3Diaz’ consent to this arrangement was confirmed on cross-examination by the A.D.A.
questioning Diaz through the interpreter.
Q. Mr. Diaz, obviously you have an interpreter today?
A. Yes.
Q. And at a prior court proceeding we had you didn’t have a translator
there either?
A. Correct.
Q. You have a translator here today because you’re testifying to make
sure that everything you say is conveyed to the jury, correct?
A. Correct.
N.T., 2/20/08, at 86-87.
[J-57-2019] [MO: Donohue, J.] - 7
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. The dissent then concluded, Diaz “was neither denied counsel entirely nor
denied counsel at a critical stage, and therefore that defining feature is absent.” Super.
Ct. Op. (Bowes, J dissenting) at 3. I am inclined to agree. The record evidence is far
from supportive of the majority’s conclusion that “[t]he PCRA court found that in the
absence of an interpreter, Diaz could not understand anything that occurred during voir
dire or opening statements or much of the potentially outcome determinative testimony of
the complaining witness.” Majority Op. at 26.
Finally, on May 1, 2010, the General Assembly adopted the following regulation
that prospectively eliminated the possibility of a similar factual scenario repeating itself,
and further obviates the need for the extension of Cronic.
(a) Waiver by a party.--A party with limited English proficiency
or party who is deaf or hard of hearing may waive the right to
an interpreter provided the waiver is conducted in the
presence of the presiding judicial officer and the party seeking
to waive is represented by counsel or has knowingly waived
the right to counsel. The presiding judicial officer shall
ascertain from the party with limited English proficiency or
party who is deaf or hard of hearing whether the waiver is
knowing, voluntary and intelligent. If the judicial proceeding is
conducted in a court of record, the foregoing determination
shall be made on the record. The party with limited English
proficiency or party who is deaf or hard of hearing must be
provided with an interpreter during the waiver process. In
addition, the waiver shall be in writing signed by the party with
limited English proficiency or party who is deaf or hard of
hearing, with a representation that the party was told of the
right to an interpreter and that the party chose not to have an
[J-57-2019] [MO: Donohue, J.] - 8
interpreter at the judicial proceeding. The written waiver shall
be on the form provided by the Court Administrator for this
purpose and shall be made part of the record of the judicial
proceeding.
204 Pa. Code § 105.
For all the reasons set forth above, I dissent.
[J-57-2019] [MO: Donohue, J.] - 9