Post-Conviction Relief and Ineffectiveness of Counsel for Failure to Obtain an Interpreter

Commonwealth v. Diaz, 183 A.3d 417 (Pa. Super. 2018), allocatur granted Dec. 19, 2018, appeal docket 74 MAP 2018.

Miguel Diaz was convicted for 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, and conspiracy to commit each offense and sentenced to 20 to 40 years’ incarceration. In a Post Conviction Relief Act (PCRA) petition, Diaz alleged ineffective assistance of counsel based on his trial counsel’s failure to obtain an interpreter for the first day of trial. The PCRA court concluded that Diaz “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” and held that trial counsel was per se ineffective in his handling of Diaz’s need for a translator at trial. Slip Op. at 5.

The Commonwealth appealed to Superior Court, arguing that Diaz was not prejudiced by his counsel’s handling of his need for a translator as Diaz, by his own admission, spoke and understood English as a second language, which was confirmed on the first day of trial, and Diaz requested an interpreter only for his own testimony. Superior Court majority affirmed, over a vigorous dissent by Judge Bowes. Explaining that it “must defer to the PCRA court’s findings of fact and credibility determinations, which are supported by the record,” Superior Court noted that “the PCRA court made extensive findings of fact to support its conclusion that Appellee could not comprehend the criminal proceedings without a translator.” Slip Op. at 9. Specifically, Superior Court noted:

The PCRA Court summarized [trial counsel’s] 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 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.

Slip Op. at 3 (internal citation omitted). Based on these facts, Superior Court agreed with the PCRA court that Diaz’s counsel was per se ineffective pursuant to United States v. Cronic, 466 U.S. 648 (1984), reasoning:

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.

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.

Slip Op. at 13-14. Thus, having determined that the concept of ineffectiveness per se extends “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,” Superior Court affirmed the PCRA court’s grant of a new trial. Slip Op. at 14.

In a 20-page dissent, Judge Bowes disagreed with the majority’s application of Cronic, opining that whether Diaz’s language comprehension difficulties were equivalent to not being present at trial to warrant a presumption of prejudice was a legal conclusion requiring de novo review that the majority did not undertake. As such, Judge Bowes would apply the ineffectiveness standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), thereby requiring Diaz to establish a reasonable probability that the ultimate outcome of trial would have been different if not for his trial counsel’s failure to secure a translator for the first day of trial. Applying the Strickland standard, Judge Bowes would reverse the PCRA’s grant of a new trial, concluding:

Appellee does not claim that counsel’s performance at the actual trial, despite the numerous allegations of poor pretrial preparation, prejudiced him in any way. The PCRA court unjustifiably assumed that better efforts may have turned up something favorable, without requiring Appellee to establish what those things may have been. Empty allegations and discomfort with the level of preparation do not establish Strickland prejudice

Slip Op. at 42.

The Pennsylvania Supreme Court granted allocatur on the following issues:

1) As a matter of first impression, did the Superior Court err as a matter of law in holding that counsel’s failure to obtain, object to the lack of, or ascertain the need for an interpreter on the first day of trial constitutes per se prejudice under United States v. Cronic, 466 U.S. 648 (1984), rather than applying the Strickland v. Washington, 466 U.S. 668 (1984) / Commonwealth v. Pierce, 527 A.2d 973 (1987) ineffectiveness standard?

2) Did the Superior Court err in applying Cronic, instead of the Strickland/Pierce ineffectiveness standard, on the claim of counsel’s ineffectiveness for failing to obtain or object to the lack of an interpreter on the first day of trial under the circumstances of the instant case, where the record clearly reflected that [Diaz], including by his own admissions, spoke and understood English as a second language, and, where, [Diaz] himself confirmed that on the first day of trial[,] he requested an interpreter only for his own testimony and his request was granted?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.