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.

DISSENTING OPINION BY BOWES, J.:                      FILED MARCH 23, 2018

      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.

                                       I

                   Presumptive prejudice is not warranted

                                       A

                           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
J-S15028-17



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.




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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


                                     -3-
J-S15028-17



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.

                                               B

                                    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


____________________________________________


1More specifically, the actual error is trial counsel’s failure to object. Counsel’s
request for an interpreter was granted, but the judge stated that one could
not be immediately provided due to the timing of the request. He agreed to
provide an interpreter and stated that the case would proceed with jury
selection and opening statements, but not testimony. The complainant
nevertheless testified before a translator was present, and counsel failed to
object. A translator was then provided after the first day.

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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.

                                      -5-
J-S15028-17



        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 Spanish, and with his eldest daughter, [MA.D.],
        mostly in Spanish.

PCRA Court Opinion I, 5/13/16, at 37.

        The Majority’s attempt to align Appellee’s circumstances with those

cases rests on its deference to other findings by the PCRA court. Specifically,

the Majority finds that this case is analogous to Tolbert, which dealt with an

actually absent defendant. The Majority states that the language barrier in

this case meant that Appellee was constructively absent, and, pursuant to

Tolbert, there is no need to establish prejudice.

         I disagree. As quoted, the PCRA court recognized that Appellee could

speak      English,   which   places   this   case   within   Strickland.    See

Commonwealth v. Walls, 993 A.2d 289 (Pa.Super. 2010) (remanding for



                                        -6-
J-S15028-17



evidentiary hearing where defendant suffered from a significant hearing

impairment and counsel failed to secure an interpreter; citing Strickland

prejudice prong). Nevertheless, the Majority transforms a factual finding into

a legal conclusion, by emphasizing this additional finding: Appellee “did not

understand what was occurring during the pre-trial motions proceedings, jury

selection, or opening arguments, and did not understand about half of the

complainant’s testimony.” PCRA Opinion I, 5/12/16, at 36-37. The Majority

treats this finding as equivalent to its legal conclusion that structural error

occurred. “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.” Majority Opinion at 12.

       I hasten to agree that we are bound by the PCRA court’s factual

determinations, and there is little doubt that an interpreter was helpful; the

fact that one was used for most of the trial is itself evidence of its utility.2

However, the fact that Appellee had some difficulty understanding the




____________________________________________


2 Simultaneously, the fact that a translator was present for large portions of
the trial undermines the Majority’s finding that structural error occurred.
Furthermore, the judge who presided over the PCRA proceedings was not the
original trial judge. In this respect, deference to a finding that Appellee
experienced difficulties at trial, as opposed to at the PCRA hearing, is arguably
unwarranted. Nevertheless, I will accept that finding as it makes no difference
to my analysis.

                                           -7-
J-S15028-17



proceedings when the interpreter was not present is not the same as a finding

that the absence of the interpreter amounted to structural error.

      In concluding Appellee is entitled to a new trial, the Majority finds that

Appellee’s language comprehension difficulties were the same as not being

present at all. I submit that is a legal conclusion, not a factual one, which we

must analyze de novo. The Majority does not engage in a de novo analysis,

and dispenses with the need to do so by asserting that the incontrovertible

fact that Appellee spoke and understood English does not undercut its legal

conclusion. “[W]e . . . believe that the findings discussed in the body of this

Opinion overwhelmingly support the PCRA Court’s conclusion that Appellee

could not understand the criminal proceedings.” Majority Opinion at 8, n.5.

      I fail to see how this Court can conclude that Appellee was completely

unable to speak or understand English, even though Appellee spoke and

understood English. The latter finding necessarily negates the former, and by

definition any contrary finding is not supported by the record. However, even

if those two points were somehow not in direct conflict, I must note that the

PCRA court declined to find that which the Majority attributes to it. The PCRA

court’s opinion states that Appellee cited Tolbert for the proposition that “a

defendant deemed not to be present at trial need not show prejudice[.]” PCRA

Court Opinion I, 5/13/16, at 40. That is identical to the Majority’s holding.

See Majority Opinion at 14 (“Attorney Walfish’s failures are analogous to the

attorney’s failure in Tolbert[.]”). However, despite an invitation to make the

                                     -8-
J-S15028-17



same conclusion made by the Majority, the PCRA court declined to go so far.

“The failure to secure an interpreter, while in and of itself does not merit a

new trial in this case, corroborates what Defendant testified to and what this

court already knows- that trial counsel was completely unprepared for trial.”

PCRA Court Opinion I, 5/13/16, at 40. Accordingly, I cannot accept that this

alternative basis for relief is supported by the record.

       Perhaps the PCRA court did not make that finding because it could not

do so. After all, Appellee could plainly speak and understand English, and the

PCRA court recognized the same.                For example, Appellee testified at the

original post-sentence motions hearings.3             An interpreter was present for

those proceedings, but the official transcription shows that Appellee

occasionally answered prior to interpretation:

       Q. This is Commonwealth-1. Take a look at it.

       A. Why do I need to look at it first?

       Q. Did you write that?

       A. (Answering before interpreted: ) Yes.




____________________________________________


3 These hearings discussed whether the trial court erred by failing to provide
an interpreter, as opposed to the issue of whether counsel was ineffective for
failing to object. The testimony from these hearings was incorporated at the
later PCRA hearings.

                                           -9-
J-S15028-17



N.T., 11/13/12, at 99. Appellee also agreed that he could speak English, an

unsurprising admission given the fact the Commonwealth possessed audio

recordings of Appellee speaking English.

      Q. Mr. Diaz, you do agree that you speak English, correct?

      A. (Responding in English: ) Yes.

      Q. Do you agree you understand English when it’s spoke to you?

      A. Not everything exactly, but I do understand a lot.

      Q. Do you understand my questions to you in English now?

      A. (Responding in English: ) Yes, I do.

Id. at 139-40. Appellee also agreed that his supervisor at work communicated

with Appellee only in English, and he further agreed that his language skills

were such that he could translate to assist other workers.

      Q. Isn’t it true that you helped to interpret between English and
      Spanish these other Spanish speaking workers?

      A. Yes.

Id. at 144.

      Despite the ample evidence of Appellee’s ability to speak, write, and

even translate into English, to say nothing of Appellee’s admission that he

“understand[s] a lot” of English, the Majority inexplicably holds that he does

not. The legal viability of its finding of a structural error, i.e., the constructive

absence from trial due to a language barrier, rests entirely on the

completeness of that inability to understand. Therefore, the Majority’s legal



                                       - 10 -
J-S15028-17



conclusion is incorrect. Accordingly, I cannot hold as a matter of law that the

failure to request an interpreter constituted a structural error on these facts.

                                        C

            Cronic presumptive prejudice versus structural error

      Even if we grant that a structural error did occur, we must address

whether Appellee would be automatically entitled to relief without a showing

that the error affected the outcome. There is a significant distinction between

addressing structural errors on direct review, where the error would result in

a new trial without any showing of prejudice whatsoever, and addressing the

identical error in a collateral proceeding. In the latter situation, the error must

be analyzed through the ineffective assistance of counsel framework, which

typically requires that the petitioner establish prejudice.

      This is not a minor distinction, and courts have struggled with how to

address structural errors on collateral review as an ineffective assistance of

counsel claim. This question was recently addressed by the United States

Supreme Court in Weaver v. Massachusetts, 137 S.Ct. 1899 (2017).

Weaver stated that “The two doctrines are intertwined; for the reasons an

error is deemed structural may influence the proper standard used to evaluate

an ineffective-assistance claim premised on the failure to object to that error.”

Id. at 1907. Since in my view Weaver sheds light on the prejudice inquiry

to be applied herein, I will examine the case in some detail.




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J-S15028-17



    Weaver involved a structural error: the trial court barred members of

the public from the courtroom during jury selection, including Weaver’s

mother and her minister. Trial counsel failed to object, and the issue was not

presented on direct review. The Court assumed that the failure to object was

ineffectiveness, which resulted in the exact dilemma we face here:

      In the direct review context, the underlying constitutional
      violation—the courtroom closure—has been treated by this Court
      as a structural error, i.e., an error entitling the defendant to
      automatic reversal without any inquiry into prejudice. The
      question is whether invalidation of the conviction is required here
      as well, or if the prejudice inquiry is altered when the structural
      error is raised in the context of an ineffective-assistance-of-
      counsel claim.

Id. at 1905.

      Assuming arguendo that the failure to provide a translator for some

portions of the trial actually amounted to a structural error, we face the same

inquiry. Must we invalidate the conviction simply because the error would

have resulted in a new trial on direct review?     The Majority says yes, but

Weaver suggests that the answer may be no.

      Weaver concluded that Strickland applied, but limited its holding “[to]

the context of trial counsel’s failure to object to the closure of the courtroom

during jury selection.” Id. at 1907. Nevertheless, the analysis employed to

reach that conclusion offers guidance as to whether we should extend

presumptive prejudice to the structural error alleged herein.




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      First, the High Court offered a helpful review of why many constitutional

errors are subject to harmless error analysis, but some are not.

      The concept of structural error can be discussed first. In
      Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
      705 (1967), this Court “adopted the general rule that a
      constitutional error does not automatically require reversal of a
      conviction.” Arizona v. Fulminante, 499 U.S. 279, 306, 111
      S.Ct. 1246, 113 L.Ed.2d 302 (1991) (citing Chapman, supra). If
      the government can show “beyond a reasonable doubt that the
      error complained of did not contribute to the verdict obtained,”
      the Court held, then the error is deemed harmless and the
      defendant is not entitled to reversal. Id., at 24, 87 S.Ct. 824.

      The Court recognized, however, that some errors should not be
      deemed harmless beyond a reasonable doubt. These errors came
      to be known as structural errors. The purpose of the structural
      error doctrine is to ensure insistence on certain basic,
      constitutional guarantees that should define the framework of any
      criminal trial. Thus, the defining feature of a structural error is
      that it “affect[s] the framework within which the trial proceeds,”
      rather than being “simply an error in the trial process itself.” Id.,
      at 310, 111 S.Ct. 1246. For the same reason, a structural error
      “def[ies] analysis by harmless error standards.” Id., at 309, 111
      S.Ct. 1246 (internal quotation marks omitted).

      The precise reason why a particular error is not amenable
      to that kind of analysis—and thus the precise reason why
      the Court has deemed it structural—varies in a significant
      way from error to error. There appear to be at least three broad
      rationales.

Id. at 1907–08 (emphasis added, some citations omitted).

      The Court then proceeded to examine the three rationales for classifying

a particular constitutional error as structural. The first was that some errors

involve a right “not designed to protect the defendant from erroneous

conviction but instead protects some other interest.”       Id. at 1908.      As it



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pertains to this case, there is a Sixth Amendment right to be present at one’s

own trial.    “One of the most basic of the rights guaranteed by the

Confrontation Clause is the accused's right to be present in the courtroom at

every stage of his trial.”    Illinois v. Allen, 397 U.S. 337, 338 (1970)

(rejecting theory that this right is absolute; right to be present can be waived

or forfeited). The second rationale was that some errors are “simply too hard

to measure” and the efficiency costs of litigating the effect of those errors is

unwarranted. This rationale overlaps with one of the reasons for the Cronic

presumptive prejudice doctrine, “circumstances that are so likely to prejudice

the accused that the cost of litigating their effect in a particular case is

unjustified.” Cronic, supra at 658. The third rationale was that some errors

“always result . . . in fundamental unfairness.” Weaver, supra at 1908. The

Court cited the failure to provide an attorney or the failure to give a reasonable

doubt instruction as examples of this type. Id. Finally, the Court recognized

that “more than one of these rationales may be part of the explanation for

why an error is deemed to be structural.”        Id.   The Court reiterated the

principle that an error may be structural even if it does not always lead to

fundamental unfairness. Id.

      Having set forth those three rationales, the Court discussed why the

deprivation of the right to a public trial constituted structural error. Id. at

1910. The Weaver Court then explained that, while that right was structural,




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it did not necessarily follow that a violation of that right rendered the trial

fundamentally unfair.

      Indeed, the Court has not said that a public-trial violation renders
      a trial fundamentally unfair in every case. In the two cases in
      which the Court has discussed the reasons for classifying a public-
      trial violation as structural error, the Court has said that a public-
      trial violation is structural for a different reason: because of the
      difficulty of assessing the effect of the error.

      The public-trial right also protects some interests that do not
      belong to the defendant. After all, the right to an open courtroom
      protects the rights of the public at large, and the press, as well as
      the rights of the accused. So one other factor leading to the
      classification of structural error is that the public-trial right
      furthers interests other than protecting the defendant against
      unjust conviction. These precepts confirm the conclusion the Court
      now reaches that, while the public-trial right is important for
      fundamental reasons, in some cases an unlawful closure
      might take place and yet the trial still will be fundamentally
      fair from the defendant's standpoint.

Id. at 1910 (emphasis added, quotation marks and citations omitted).

      Having concluded the structural error in question did not mean that that

the trial should automatically be deemed fundamentally unfair, the Court

reached the important question of prejudice.         While acknowledging that

Weaver would have been automatically entitled to a new trial on direct review,

the Court determined that the same result was not warranted on collateral

review.

      The prejudice showing is in most cases a necessary part of a
      Strickland claim. . . . That said, the concept of prejudice is
      defined in different ways depending on the context in which it
      appears. In the ordinary Strickland case, prejudice means a
      reasonable probability that, but for counsel's unprofessional
      errors, the result of the proceeding would have been different.

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       But the Strickland Court cautioned that the prejudice inquiry is
       not meant to be applied in a mechanical fashion. For when a court
       is evaluating an ineffective-assistance claim, the ultimate inquiry
       must concentrate on the fundamental fairness of the proceeding.
       Petitioner therefore argues that under a proper interpretation of
       Strickland, even if there is no showing of a reasonable probability
       of a different outcome, relief still must be granted if the convicted
       person shows that attorney errors rendered the trial
       fundamentally unfair. For the analytical purposes of this case, the
       Court will assume that petitioner's interpretation of
       Strickland is the correct one. In light of the Court's ultimate
       holding, however, the Court need not decide that question here.

Id. at 1910–11 (cleaned up).4

       As emphasized, the Court did not clearly set forth how prejudice was to

be applied when reviewing a claim of structural error in the collateral context.

The first possibility was the standard Strickland analysis: the defendant must

show “a reasonable probability of a different outcome in his or her case[.]”

Id. The second possibility, which the Court assumed without deciding was

valid, was that Weaver could have shown “that the particular public-trial

violation was so serious as to render his or her trial fundamentally unfair.”

Id. Whether the latter showing is viable is therefore unclear. See id. at 1916

(“Weaver's theory conflicts with Strickland because it implies that an


____________________________________________


4 “Cleaned up” is a new parenthetical designed to “tell readers that they have
removed extraneous material for readability and guarantee that nothing
removed was important.” See Metzler, Jack, Cleaning Up Quotations (March
17, 2017). Journal of Appellate Practice and Process, 2018, Forthcoming.
Available at http://dx.doi.org/10.2139/ssrn.2935374.         The superfluous
material encompassed by the parenthetical includes brackets, ellipses,
quotation marks, internal citations, and footnote references. Herein, the
omitted material is quotation marks and citations to Strickland.

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attorney's error can be prejudicial even if it ‘had no effect,’ or only ‘some

conceivable effect,’ on the outcome of his trial.      That is precisely what

Strickland rules out.”) (Alito, J., joined by Gorsuch, J., concurring) (citation

omitted).

      The Majority’s belief that a structural error occurred at Appellee’s trial

would undoubtedly be correct if Appellee was completely unable to understand

the proceedings.    While I am unaware of any case directly stating that

conclusion, I would agree that a trial is fundamentally unfair as described in

Weaver when the criminal defendant cannot comprehend the proceedings

against him due to a language barrier. Furthermore, the effect of such an

error on the trial would be almost impossible to measure.

      However, as I explained supra, there is simply no indication here that

Appellee’s ability to participate in and understand the proceedings against him

was impaired to that extreme. Thus, affirming on this basis is doubly wrong:

first, because it is unclear if the error actually was structural given the fact

that Appellee understands English, and second, because Weaver suggests

that the error would not automatically entitle him to a new trial on collateral

review even if it would have on direct review.




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       At the very least, Weaver casts doubt on the Majority’s conclusion.5

Given that uncertainty, we should not affirm the PCRA court’s grant of a new

trial on this alternative basis, especially when the PCRA court declined to find

that Appellee was presumptively prejudiced despite being asked to do so.

Hence, I would not apply the presumptive prejudice doctrine.

                                               II

       What remains is whether Appellee did, in fact, establish prejudice under

Strickland. My distinguished colleagues do not reach that question, and I

therefore turn my attention to the Strickland framework.

                                               A

                      Appellee’s allegations of ineffectiveness

       The salient facts are simple. The victim, E.S., alleged that Appellee, her

stepfather, raped her over the course of four years while she lived with

Appellee and her mother. E.S. also testified that her mother, M.S., knew of

the rapes and required E.S. to satisfy Appellee’s demands; however, the

Commonwealth nolle prossed all charges against M.S. after E.S. expressed a

reluctance to testify against her mother.           Appellee was represented by



____________________________________________


5 The Majority claims that Weaver is inapplicable because this case involves
Appellee’s inability to comprehend the proceedings while Weaver involves
keeping a courtroom open during voir dire. That distinction is justified only
by its mistaken conclusion that Appellee could not comprehend the
proceedings in total. The Majority never asserts that a less than total inability
justifies a finding of structural error.

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Attorneys Noonan and Walfish, with Attorney Walfish representing Appellee at

the actual trial while Attorney Noonan largely handled pre-trial preparation.

      The PCRA petition at issue raised numerous claims, which the PCRA

court summarized as follows:

      The claims raised by Appellee in the PCRA action were as follows:
      (1) was prior counsel ineffective for being unprepared for trial, for
      failing to investigate witnesses and evidence and for lacking a
      viable trial strategy; (2) was counsel ineffective for failing to
      secure an interpreter for the first day of trial, for sentencing, for
      pre-sentence investigation and for his consultation with Appellee;
      (3) was trial counsel ineffective for failing to prepare Appellee for
      sentencing; and (4) was trial counsel ineffective for failing to meet
      with Appellee prior to the date of trial.

PCRA Opinion I, 5/12/16, at 5. As reflected, Appellee’s overarching theory

was that his two trial attorneys were unprepared to try the case. The following

argument is representative:

      Walfish, the lawyer who was going to and did try the case, testified
      that his trial strategy was:

            . . . [M.D.] from Florida had the diary and she was
            going to come and produce the diary that would
            essentially win the case because of what was in the
            diary of the child. There was supposedly nothing about
            her being abused but that she was being pushed
            around and Miguel Diaz was too authoritative
            and she couldn't go see her boyfriend and she couldn't
            do what she wanted to do and she was going to use
            any means possible to get herself to New York to be
            with her boyfriend, and that's what the diary was
            going to say. That's what I fully expected [M.D.] was
            going to do, and I believe [V.D] was going to testify
            that she was there when some of the abuse allegedly
            took place and to her recollection, it never took place
            that she was aware of and that she also was aware



                                     - 19 -
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            that the child wanted to go to New York and that she
            would corroborate what was in the diary.

      That was their strategy at least from before the preliminary
      hearing. Whether or not this was viable—and the Commonwealth
      argues that for a multitude of reasons it was not—they did nothing
      to put it into effect. Between the preliminary hearing and the trial
      nothing was done to contact the Appellee's daughters until literally
      the eve of trial, even though they knew both were hundreds of
      miles outside of Pennsylvania.

Appellee’s brief at 29-30 (citations to reproduced record omitted).

                                        B

                        PCRA court’s conclusions of law

      The PCRA court issued two opinions in this matter.                 The first

accompanied the order granting relief. The second opinion supplemented that

writing to respond to the Commonwealth’s concise statement of errors

complained of on appeal.          These opinions, while nominally applying

Strickland, in truth grant a new trial based on a theory of presumptive

prejudice owing to lapses in pre-trial preparation. In its first opinion, the court

reasoned:

      Applying [Strickland] to counsel's representation in this case
      leads inexorably to the conclusion that trial counsel was
      constitutionally ineffective and that Petitioner must be granted a
      new trial. There is no question that Petitioner's underlying
      allegations of ineffectiveness—Walfish's failure to see Defendant
      until the day of trial, failure to prepare for trial, failure to
      investigate witnesses and evidence, and failure to adopt a viable
      trial strategy—have merit.        Counsel's failure to interview
      witnesses was ineffective, arguably per se.

      The second prong of establishing ineffectiveness of counsel—
      whether counsel had a reasonable basis for his performance—

                                      - 20 -
J-S15028-17



      requires little reflection and scant discussion. It is not even
      arguable that counsel's failure to utilize his investigator for four
      months until the eve of trial could have had any reasonable basis
      designed to effectuate his client's interest. The other allegations
      of ineffectiveness, fitting broadly under the rubric of failure to
      prepare for trial, are not even arguably reasonable tactics serving
      some broad strategic plan for the defense. "Failure to prepare is
      not an example of forgoing one possible avenue to pursue another
      approach; it is simply an abdication of the minimum performance
      required of defense counsel." Commonwealth v. Perry, 644
      A.2d 705 (Pa. 1994). It is not possible to provide a reasonable
      justification for appearing in front of a jury without thorough
      preparation in a case of this magnitude.

      [Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)] requires
      that Petitioner demonstrate prejudice flowing from counsel's
      ineffective representation. Again, we do not think extensive
      analysis necessary to perceive the prejudice to Petitioner's
      defense. There is a reasonable probability that counsels' failure to
      meet with Petitioner; failure to investigate potential witnesses and
      evidence, and failure to prepare for the penalty phase of trial, in
      combination, affected the outcome of the trial. This was a case of
      oath against oath and the defense attorney could have brought in
      other witnesses to bring out perhaps small points, but the
      presence of other witnesses would demonstrate that there were
      people standing behind the defendant that were willing to be on
      his side. Except for lack of effort, and attention to detail, there
      was no reason to not present witnesses, which could have been
      family and/or fellow employees.

PCRA Opinion I, 5/12/16, at 27-28 (some citations omitted).

      The Commonwealth’s 110 page brief tiresomely parses out credibility

findings as contradicted by other portions of the record.       Since Appellee

prevailed before the PCRA court, we are bound by its credibility findings. The

prejudice inquiry, however, is a question of law that is reviewed de novo. As

emphasized in the foregoing passage, the PCRA court declined to link the pre-

trial failures to counsel’s performance at trial, stating, “we do not think

                                     - 21 -
J-S15028-17



extensive analysis necessary to perceive the prejudice to Petitioner's defense.”

I respectfully disagree with the learned PCRA judge. Establishing prejudice is

not some collateral matter that can be easily swept aside based on discomfort

with a counsel’s pre-trial preparation.

       Thus, the PCRA court determined that Appellee established prejudice by

virtue of defective trial preparation, with no reference to performance at trial

or the evidence presented at the PCRA hearing, all of which is to say the PCRA

court implicitly applied Cronic to these facts.      I do not agree that the

deficiencies in preparation amounted to a constructive denial of counsel, as is

required under the Cronic doctrine. Notably, Cronic, which established the

concept of presumptive prejudice, did not actually apply that framework.

Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per curiam) (“In Cronic

itself, we rejected the defendant's claim that his counsel's lack of experience

and short time for preparation warranted a presumption of prejudice[.]”).6

____________________________________________


6   Nor do I find persuasive reliance by the PCRA court and Appellee upon
Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003). Brooks, a capital
case, established that, at bare minimum, capital counsel must meet with his
client in person before trial in order to establish a relationship. Brooks found
that the failure to do so constitutes prejudice under Strickland, because an
in-person meeting is necessary to prepare a defense to a charge of murder.
Then-Chief Justice Castille authored a concurring opinion, faulting the majority
for its prejudice analysis. “The Majority does not conclude that under the
circumstances of this case there is a reasonable probability that, but for
counsel’s failure to meet appellant in person prior to trial, the outcome of the
guilt phase of this trial would have been different.” Id. at 252 (Castille, C.J.,
concurring). Chief Justice Castille opined, “The Majority’s failure to come to



                                          - 22 -
J-S15028-17



       My review of the PCRA court’s reasoning demonstrates that the court

found that inadequate pre-trial preparation failures resulted in prejudice per

se, a presumption that I do not find was warranted in this particular case.

See Chadwick v. Green, 740 F.2d 897, 901 (11th Cir. 1984) (“[A]ny failure

of counsel in this case to investigate and pursue all avenues of defense is best

characterized as a failure by counsel in the performance of his investigatory

____________________________________________


terms with the Sixth Amendment complexity posed by the issue sub judice
has led it to articulate a rule that cannot be squared with existing and
controlling jurisprudence.” Id. at 252. The Chief Justice concurred in the
result, however, finding that prejudice was established per se under Cronic,
because the case was “one of those rare ‘circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case
is unjustified.’” Id. at 255 (quoting Cronic).

Thus, Brooks lends some support to Appellee’s position herein, in that
Brooks did not connect the pre-trial deficiencies to any specific errors at trial.
However, even if Brooks is inconsistent with Strickland, as posited by Chief
Justice Castille, the case is nonetheless distinguishable because the pre-trial
failures here are not analogous to Brooks, and this was not a capital case.
The record establishes that Attorney Noonan met with Appellee several times
in the months leading up to trial, and Attorney Walfish, who handled the actual
trial, worked with Attorney Noonan.

Moreover, subsequent law from this Court has interpreted Brooks narrowly.
See Commonwealth v. Johnson, 51 A.3d 237 (Pa.Super. 2012) (en banc)
(declining “to read Brooks so rigidly that we are precluded from evaluating
the substantive impact of the consultations [counsel] did perform.”). See id.
at 247 (Wecht, J., joined by Bowes, J., concurring) (interpreting Brooks to
require an in-person meeting as a necessary but not sufficient component of
representation, yet finding no prejudice at trial despite counsel’s “dubious
methods and paltry efforts at communication.”). Herein, assuming that the
Brooks per se rule extends to non-capital cases, I would find the in-person
meeting requirement met by the numerous meetings between Appellee and
Attorney Noonan, plus the short visit with Attorney Walfish prior to trial.



                                          - 23 -
J-S15028-17



duties, which is to be analyzed under [Strickland], rather than as a

fundamental breakdown of the adversarial process such that prejudice is

presumed under Cronic.”).

                                               C

                             Commonwealth’s argument

       The Commonwealth raises nine points in support of reversal, all of which

may broadly be described as asserting that Appellee’s individual claims lacked

arguable merit. I agree. Appellee expended significant effort at the PCRA

evidentiary hearings attacking trial counsels’ pre-trial failures, while largely

ignoring whether those failures prejudiced him. I now examine the particular

points.7

(i)    Failure to procure the victim’s diary

       Appellee faulted trial counsel for failing to obtain a diary purportedly

written by the victim, which was found by Appellee’s daughter M.D. after E.S.

was removed from the home. Appellee concedes that the diary would not be

an issue at retrial as it cannot be found. The Commonwealth states that this

claim lacks arguable merit, since Appellee is required to establish that this

evidence actually existed.         Appellee responds by claiming the failure to



____________________________________________


7 One of the subsidiary points pertains to the failure to secure an interpreter,
an issue I have discussed at length supra. Since Appellee failed to explain
how he was prejudiced by that error with respect to the actual trial, I do not
discuss that issue further.

                                          - 24 -
J-S15028-17



produce the diary at the PCRA hearing is chargeable to trial counsels’ deficient

pre-trial efforts.   Echoing the PCRA court’s analysis, he maintains that he

established prejudice because trial counsel failed to implement his chosen

strategy, which heavily relied upon the diary.

      Appellee has never argued that the diary would undermine confidence

in the verdict. In fact, he explicitly declined to do so, asserting “Whether or

not this [strategy] was viable . . . they did nothing to put it into effect.”

Appellee’s brief at 30.     Thus, Appellee asserts that the diary’s value is

irrelevant, which would be true only if prejudice is presumed. For Strickland

purposes, it matters a great deal whether the diary strategy was viable, which

in turn depends upon what the diary says. Since we do not know, this claim

lacks arguable merit.

      Furthermore, I would hold that Appellee failed to demonstrate prejudice

even if we were to assume that the diary said exactly what he says it did. The

probative value of this evidence, Appellee tells us, is that the “diary of the

complainant . . .      said nothing about abuse[.]”    Appellee’s brief at 33.

However, a child rape victim’s failure to catalogue sexual abuse is

unsurprising. To be sure, Appellee could have argued that the victim’s failure

to record these allegations undermined her credibility. But the fact that a

victim of rape at the hands of her mother and step-father would not

meticulously describe or even mention the incidents in a diary, hardly dictates

a finding of innocence, especially when someone else could find and read the

                                     - 25 -
J-S15028-17



diary, as happened in this case. As a result, Appellee has failed to establish a

reasonable probability that the introduction of this diary would have changed

the outcome, even charitably setting aside the fact there is nothing to

substantiate what the diary said.8

(ii)   Failure to call Appellee’s daughter, V.D.

       This claim sounds in ineffectiveness for failing to call a witness, which

involves several components. See Commonwealth v. Sneed, 45 A.3d 1096,

1108–09 (Pa. 2012). Of particular import here, the petitioner must establish

that “the absence of the testimony of the witness was so prejudicial as to have

denied the defendant a fair trial.” Commonwealth v. Johnson, 966 A.2d

523, 536 (Pa. 2009).        “To demonstrate Strickland prejudice, a petitioner

‘must show how the uncalled witnesses' testimony would have been beneficial

under the circumstances of the case.’”             Sneed, supra at 1109 (quoting

Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008)).

       The Commonwealth contends that Appellee failed to establish arguable

merit because V.D.’s testimony at the PCRA hearing was not specific. I agree

that Appellee did not establish arguable merit, as the testimony offered was



____________________________________________


8  Appellee argues that we are bound by the PCRA court’s credibility
determinations regarding M.D.’s testimony that she recovered the diary and
sent it by Federal Express to counsel. True, but that testimony simply
established that the item existed, not its contents. Additionally, as the
Commonwealth notes, there are authentication issues with respect to any
attempt to introduce the diary.

                                          - 26 -
J-S15028-17



of little value. V.D. related at the evidentiary hearing that she did not notice

anything amiss between Appellee and E.S. on the occasions that she observed

them together, stating the two “got along great, like me and him would have

got along.” N.T., 3/31/15, at 267. This testimony was of such limited quality

and value that I cannot find that its absence from trial prejudiced Appellee.

        Additionally, E.S. was asked on direct examination at trial why she did

not inform V.D. of the abuse.

        Q. During this four-year period did you have other visitors?

        A. Yeah. Well, I call her my sister, his daughter [V.D.]. She was
        staying with us for a while.

        Q. Would these rapes happen when she was there?

        A. Well, she was living with us but she was either working or a
        lot of times she wasn’t home, so whenever she wasn’t home it will
        happen.

        Q. Why didn’t you tell her?

        A. Well, I didn’t know how she was going to act either, because
        that’s her father and he was always there for her, and I call her
        my sister, but she was the type of person that, you know, she
        doesn’t care what the situation is, she’ll just act crazy, and I was
        afraid of what she would do.

N.T., 2/19/08, at 68-69.      On cross-examination, E.S. stated that she was

scared V.D. would confront Appellee, leading Appellee to hit V.D., as he had

done on a prior occasion. Id. at 87. Therefore, the jury was aware that the

victim could have, but did not, reveal the rapes to other family members.

(iii)   Failure to call character witnesses



                                       - 27 -
J-S15028-17



      The presumptive prejudice theme again rears its head, as the PCRA

court simply assumed that character witnesses existed, a competent attorney

would have found them, and Appellee was therefore prejudiced.

      The Commonwealth contends that counsel's failure to investigate,
      interview or call character witnesses to corroborate the
      Defendant's credibility, as well as evidence of Defendant's habits
      was not sufficiently proven as evidence of ineffectiveness
      assistance of counsel. Counsel conducted no meaningful
      interviews with persons who could testify on the Defendant's
      behalf or had useful knowledge of the facts. Counsel's failure to
      contact potential witnesses is important in the context of a rape
      case where the battle of credibility before the jury comes down to
      the credibility between the Defendant and the victim. Evidence of
      good character is substantive, not mere makeweight evidence,
      and may, in and of itself, create a reasonable doubt of guilt and,
      thus, require a verdict of not guilty. The appearance of people
      willing to come to court sends a signal to the jury that
      someone believes in the Defendant.

PCRA Opinion II, 7/22/16, at 16 (emphasis added, citation omitted).

      The PCRA court was referring to Appellee’s daughters V.D., and M.D.,

both of whom testified at the PCRA hearing. However, they did not offer any

character testimony whatsoever. Appellee’s children’s willingness to attend

the PCRA hearing is not the same thing as offering testimony about his

character, and generic testimony about a person’s character is inadmissible.

What is required is testimony about relevant traits, and no such testimony

was offered at the PCRA hearing.      Therefore, this particular claim lacked

arguable merit, as determining whether the absence of the testimony was

prejudicial requires an analysis of actual testimony given at the PCRA hearing.

See Johnson, supra at 537 (noting that the testimony of three witnesses

                                    - 28 -
J-S15028-17



“would have been consistent with and beneficial to appellee's defense, and

would have contradicted the Commonwealth's theory of the case”).

      I also note that the PCRA court’s conviction that Appellee’s children

would have offered helpful character testimony is severely undermined by the

fact that neither witness lived in Appellee’s community at the relevant times.

During post-trial motions, V.D., then twenty-six, testified that she moved from

Pennsylvania to Kentucky when she was thirteen or fourteen. N.T., 11/13/12,

at 26. She visited Appellee every summer. M.D., then thirty-five, stated that

she moved to Florida to live with her mother when she about fourteen. She

lived with Appellee, M.S., and E.S. for three months in 1999 when V.D.’s

daughter was an infant. Id. at 61. She also lived there for about eight months

in 2000, when V.D. was having trouble with her daughter’s father in Florida.

Id. at 62. Thus, given that the witnesses did not live in the community, their

character testimony would be of limited value.      See Commonwealth v.

duPont, 860 A.2d 525, 536 (Pa.Super. 2004) (“[W]e fail to see how the

generic testimony as to duPont's reputation in his community at the time of

the shooting-especially in light of the fact that two of the four witnesses in

question hail from Florida and Texas, respectively-so plainly would have

undermined the jury's verdict.”).



(iv) Failure to investigate an alibi defense




                                     - 29 -
J-S15028-17



      Appellee faulted trial counsel for failing to prepare an alibi defense,

which the PCRA court likewise credited, yet again based on a presumptive

prejudice theory. Appellee did not establish this supposed alibi defense at the

PCRA hearing, and the court wrongly assumed that proper investigation would

have corroborated it.

      I find that there is no arguable merit to this claim. The alibi claim in

this case centers on E.S.’s trial testimony that the rapes always occurred

around 6:00 p.m., while Appellee testified at trial that he worked six days a

week until at least 9 p.m. N.T., 2/20/08, at 78-80. Appellee admits that he

presented no evidence to corroborate this purported alibi and instead offered

it as an example of deficient preparation.

      The evidence was not offered at the PCRA hearings to prove that
      the Defendant now has an alibi defense he can present at a new
      trial, but as further evidence of Walfish’s lack of preparation for
      trial. . . . Had they learned of the Defendant’s alibi when they
      should have, they could have sought out the evidence and
      witnesses they needed to prove it. In the process, they also have
      may have discovered witnesses who would have attested to the
      Defendant’s character for honesty and law abiding behavior, even
      if the alibi did not pan out.

Appellee’s brief at 42. “Absent some unexpected development, there will be

no other alibi evidence at a new trial—the passage of time and succession of

counsel has resulted in its loss.” Id. at 45.

      At the risk of sounding like a broken record, this analysis sounds in

presumptive prejudice. How has the passage of time resulted in a loss of the

defense? Appellee testified at trial that he worked for Delta Paper Company.

                                     - 30 -
J-S15028-17



Appellee failed to produce employees who worked with him that could testify

to his work schedule, to say nothing of employment records from the company

that might show the same, as Appellee did not establish the company no

longer exists. Hence, there is no arguable merit to this ineffectiveness claim.

(v)   Failure to impeach the victim with statements made by her mother

      This claim involved the fact that the Commonwealth charged Appellee

as a conspirator. E.S. testified that her mother, M.S., participated in these

acts by requiring E.S. to have sex with Appellee.                Originally, the

Commonwealth intended to proceed against both M.S. and Appellee.            The

Commonwealth nolle prossed the charges after E.S. expressed a reluctance to

testify against her mother.

      During the investigation, the Commonwealth arranged for a recorded

phone call between E.S. and M.S., in which M.S. repeatedly denied the

accusations.    Appellee vigorously argues that trial counsel could have

impeached E.S. by introducing M.S.’s denials. The PCRA court, disturbed by

the Commonwealth’s decision to terminate the prosecution of mother, agreed,

and faulted trial counsel for not raising this issue at trial.

      E.S. accused her mother of active participation in the rapes that
      occurred. She averred that her mother had struck her for refusing
      to consent to sexual intercourse with Petitioner and that on
      occasions when E.S. claimed to be menstruating, her mother
      would check to see if she actually was. If E.S.'s mother engaged
      in such conduct she deserves the same sentence for which the
      Defendant is serving. Such conduct is despicable if it occurred. In
      the phone conversations between mother and daughter overheard
      by police, [M.S.] repeatedly denies the conduct. Had she been

                                       - 31 -
J-S15028-17



       prosecuted she undoubtedly would have testified before the jury
       that the Defendant did not engage in the conduct charged. 9 As
       noted previously, she was interviewed by the police beforehand,
       a fact never disclosed to the jury. The effect of the nolle pros was
       to effectively deny Petitioner a witness's testimony crucial to his
       defense.     Trial counsel should have spent long hours
       developing a strategy to cross-examine E.S. to bring out
       the statements of her mother and/or should have
       presented a formal request to allow the admission of the
       tapes for reasons argued by Petitioner's current counsel.

PCRA Opinion I, 5/12/16, at 29 (footnote and emphasis added).

     The PCRA court’s analysis is problematic, as it did not bother to analyze

the reasonable strategic basis of any such decision.10 Furthermore, the PCRA


____________________________________________


9This statement is unfounded. Simply put, we do not know anything about
what M.S. may or may not have testified to at trial, whether or not the co-
defendants would have been jointly prosecuted, and whether M.S. would
assert a Fifth Amendment privilege.

10 The trial court granted the Commonwealth’s motion in limine to preclude
mention of the fact that the charges against M.S. were nolle prossed. Attorney
Walfish then stated: “Clearly I understand that I cannot bring to the jury’s
attention the nolle pros of the charges against her mother, but I would hope
that this would in no way limit my ability to ask the witness the role that the
mother played in the events.” N.T., 2/19/08, at 26-27. Thus, the actual trial
transcript shows that Attorney Walfish was considering the topic of M.S.’s
statements. Furthermore, at the PCRA hearing, counsel explained that he
anticipated a hearsay objection from the Commonwealth if he attempted to
elicit M.S.’s statements. N.T., 3/31/15, at 224.

Finally, with respect to this issue, Attorney Walfish stated that E.S.’s testimony
that M.S. was an active participant helped his case, because it supported the
notion that the victim’s story was absurd. Indeed, he confirmed on cross-
examination of the reporting detective that E.S. implicated M.S., which
demonstrates that counsel did not wish to undercut that point. N.T., 2/20/08,
at 35. That is a perfectly acceptable strategy, which the PCRA court did not



                                          - 32 -
J-S15028-17



court declined to address whether the actual ineffectiveness claim—that

Attorney Walfish should have impeached the victim at trial—was legally viable,

a fact the court candidly admits.

       The mother's recorded statements to her daughter, the alleged
       victim, was a potentially powerful piece of evidence, favorable to
       the Defendant, ignored and whimsically dismissed by the
       Defendant's trial counsel. It is unclear whether those
       statements were un-categorically inadmissible. The
       undersigned has ordered a new trial. The undersigned does
       not want to assist the defense in constructing a way to use
       this piece of evidence. Different Judges and different attorneys
       may have varying opinions on how this evidence could have been
       used. In point of fact, this evidence was ignored by defense
       counsel.

PCRA Opinion II, 7/22/16, at 17 (emphasis added).

     The PCRA court’s unwillingness to provide a roadmap for Appellee to

introduce this evidence at his new trial, or assess whether the evidence would

have made any difference whatsoever, would be laudable but for the fact

Appellee was required to establish those very points under Strickland in order

to receive a retrial in the first place.

     Since the PCRA court failed to analyze the admissibility of this evidence,

I would hold that Appellee’s claim lacked arguable merit for several reasons.

First, the declarant in question is M.S., the alleged co-conspirator, whose


____________________________________________


analyze. We could dispose of the hearsay statement issues on this basis as
well.




                                          - 33 -
J-S15028-17



statements were introduced through the victim E.S. Therefore, it is inaccurate

to refer to M.S.’s denials as impeaching E.S.                  M.S.’s denial of criminal

culpability when confronted by E.S. does not discredit E.S.11

      Furthermore, the out-of-court statements of M.S. were admissible

pursuant to a codified exception to the prohibition against hearsay. Appellee

argued to the PCRA court that the same exception applied to him; however,

the   exception    does    not    permit       Appellee   to   introduce   co-conspirator

statements. Pennsylvania Rule of Evidence 803 states in relevant part:

       (25) An Opposing Party's Statement. The statement is offered
       against an opposing party and:
       ...

       (E) was made by the party's coconspirator during and in
       furtherance of the conspiracy.

Pa.R.E. 803(25)(E) (emphasis added).                The emphasized language plainly

indicates that a limitation of the co-conspirator hearsay exception is that it

applies only if the evidence is offered against the accused. It does not apply

when a co-conspirator is seeking to use a participant’s statement to his

benefit. Finally, Appellee fails to explain how a statement denying culpability

is in furtherance of a conspiracy. Therefore, this ineffectiveness claim lacked

arguable merit.



____________________________________________


11The recorded statements would impeach E.S. had E.S. denied confronting
her mother, but in that situation it would be her statements to M.S. on the
tape that impeach E.S., not the denials by M.S.

                                           - 34 -
J-S15028-17



(vi)   Failure to record the preliminary hearing testimony

       This claim is much like the others, as the PCRA court finds prejudice due

to poor pre-trial planning.

       Counsel's discredited testimony on the reason why he did not have
       a stenographer record the victim's testimony or take any notes of
       testimony himself was that he "already had his theory of the
       case." Assuming Counsel's theory to the case was actually his
       theory of the case Counsel's stated reason for not recording the
       testimony is preposterous. A record of a victim's testimony before
       trial is essential evidence. The victim's testimony was exactly the
       focal item that Counsel's "theory" was meant to rebut. The failure
       to record the testimony to study and dissect it for trial preparation
       was illogical and did not have a reasonable basis.

PCRA Opinion II, 7/22/16, at 18.

       I take no issue with the criticism of the failure to have a reporter present

for the preliminary hearing. However, that failure simply means that we must

proceed to examine whether Appellee was prejudiced by that failure.            The

PCRA court again erroneously assumed that deficient pre-trial preparation

prejudiced Appellee, which is a Cronic analysis.

                                        D

                      Cumulative prejudice does not apply

       The PCRA court ultimately concluded that a new trial was warranted on

the grounds of cumulative prejudice, due to the aggregation of the multiple

pre-trial failures to investigate.   “When the failure of individual claims is

grounded in lack of prejudice, then the cumulative prejudice from those

individual claims may properly be assessed.” PCRA Opinion II, 7/22/16,



                                      - 35 -
J-S15028-17



at 13 (citations omitted, emphasis in original). However, the PCRA court found

prejudice due to pre-trial failures not grounded in actual prejudice. See e.g.

id. at 16, n.7 (“It is reasonable to conclude that if coworkers would have been

contacted early on they might well have been ready and willing to provide

testimony that Defendant regularly worked long hours and was generally at

work at the time of the alleged rapes.”). These sorts of hypotheticals, liberally

strewn throughout the PCRA court’s rulings, are incompatible with Strickland.

The cumulative prejudice doctrine requires actual prejudice; the doctrine is

designed to permit a new trial where any single instance of prejudice does not

undermine confidence in the verdict. Hence, claims that lack arguable merit

cannot establish cumulative prejudice.

      Finally, the PCRA court extensively quoted Commonwealth v. Perry,

644 A.2d 705 (Pa. 1994), in reaching its conclusion. Perry was a capital case,

and the defense attorney testified that he was unaware the Commonwealth

was seeking the death penalty until four days before jury selection. Id. at

708. The Court applied Strickland as follows.

      Applying this standard to counsel's representation in this case
      leads inexorably to the conclusion that trial counsel was
      constitutionally ineffective and that appellant must be granted a
      new trial. There is no question that appellant's underlying
      allegations of ineffectiveness-failure to interview appellant prior to
      trial, failure to prepare for trial, failure to use his investigator,
      unawareness that he was defending a capital case, and failure to
      prepare for the death penalty hearing-have merit. Counsel's
      failure to interview witnesses was ineffective, arguably per se.




                                     - 36 -
J-S15028-17



       The second prong of establishing ineffectiveness of counsel-
       whether counsel had a reasonable basis for his performance-
       requires little reflection and scant discussion. It is not even
       arguable that counsel's failure to utilize his investigator for nine
       months until the eve of trial could have had any reasonable basis
       designed to effectuate his client's interest. The other allegations
       of ineffectiveness, fitting broadly under the rubric of failure to
       prepare for trial, are not even arguably reasonable tactics serving
       some broad strategic plan for the defense. Failure to prepare is
       not an example of forgoing one possible avenue to pursue another
       approach; it is simply an abdication of the minimum performance
       required of defense counsel. It is not possible to provide a
       reasonable justification for appearing in front of a death penalty
       jury without thorough preparation.

Id. at 709 (citations omitted). Perry thus granted a new trial, although it did

not detail how the pre-trial failures undermined confidence in the reliability of

the verdict.    However, the Court did discuss prejudice, albeit in a limited

fashion:

       This is a case in which the evidence might have supported a lesser
       degree of homicide than first degree murder; it is also a case in
       which a death penalty jury might have rendered a verdict of life
       imprisonment if appellant's counsel had presented character
       witnesses and other mitigating factors such as appellant's National
       Guard service, adult educational endeavors, and employment
       history. It therefore seems quite clear that the result of the trial
       might have been different were it not for counsel's errors.

Id. at 709.

       I find that Perry is distinguishable.12 Appellee’s attempts to establish

prejudice were based solely on sheer speculation; he points to nothing specific


____________________________________________


12Perry did not cite Cronic nor discuss presumptive prejudice. Perry, while
purporting to find prejudice under Strickland, is perhaps better understood



                                          - 37 -
J-S15028-17



____________________________________________


as applying Cronic on the grounds that counsel therein failed to meaningfully
subject the prosecution’s case to adversarial testing. The fact that an attorney
was unaware that his client was facing the death penalty is a remarkably
egregious failure, leading the Court to conclude without belaboring the point
that the attorney was utterly unprepared to probe the Commonwealth’s case.
Therefore, I submit that Perry actually found presumptive prejudice, not
Strickland prejudice, due to that failure. See Phillips v. White, 851 F.3d
567, 581 (6th Cir. 2017) (finding Cronic prejudice attached to performance
at death penalty hearing because attorney’s “performance amounted to
nonperformance;      he    essentially  ceded      the   sentencing     to   the
Commonwealth”).

Nevertheless, in light of language in Perry and Brooks suggesting that a
petitioner need not particularly reference the actual trial to establish
Strickland prejudice, this case may represent an appropriate vehicle for our
Supreme Court to take up the difficult issue of whether, and when, a court
may find presumptive prejudice due to pre-trial failures to investigate and
prepare, and whether such presumptions attach only to the reasonable
strategic basis prong as opposed to the prejudice prong.                      See
Commonwealth v. Williams, 141 A.3d 440, 460, n.18 (Pa. 2016) (assessing
prejudice in light of expert testimony presented at PCRA hearing but not
foreclosing possibility that, in circumstances of the particular case, a pre-trial
failure to consult with experts in field of forensic pathology and blood flow may
be deficient). Compare Harrington v. Richter, 562 U.S. 86 (2011) (finding
that state court did not unreasonably apply Strickland in holding that defense
counsel’s failure to consult with expert witnesses prior to trial was not itself
deficient under circumstances of the particular case); Id. at 113 (Ginsburg,
J., concurring in judgment) (concluding that counsel “was not functioning” as
counsel for purposes of the Sixth Amendment due to failure to consult blood
expert in preparation of murder trial, yet finding no prejudice under
Strickland with respect to reliability of verdict); Weaver, supra at 1916
(“Weaver's theory conflicts with Strickland because it implies that an
attorney's error can be prejudicial even if it ‘had no effect,’ or only ‘some
conceivable effect,’ on the outcome of his trial. That is precisely what
Strickland rules out.”) (Alito, J., joined by Gorsuch, J., concurring) (citation
omitted).

For my part, I am highly skeptical that a new trial may be granted solely on a
theory of presumptive prejudice flowing from pre-trial deficiencies without
reference to the actual trial. Cronic prejudice is warranted, if at all, only in



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such rare, egregious situations where counsel failed to fulfill the basic
adversarial role contemplated by the Sixth Amendment. Such failures,
however, must be complete, and would be obvious from an examination of
the trial record. Perry, supra at 708 (describing counsel’s performance at
the penalty hearing as “present[ing] a travesty of a case at the death penalty
hearing”). The completeness of that failure is required. See Bell v. Cone,
535 U.S. 685, 696–97 (2002) (“When we spoke in Cronic of the possibility of
presuming prejudice based on an attorney's failure to test the prosecutor's
case, we indicated that the attorney's failure must be complete.”). This case
simply does not meet that high standard.

As demonstrated by Bell, the United States Supreme Court has consistently
indicated that presumptive prejudice is reserved for a narrow class of cases,
and Weaver, supra, which refused to automatically find prejudice even in
cases of structural error when that issue was not pursued on direct appeal,
further underscores that point. We apply federal precedent to the prejudice
inquiry. Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999). I believe the
Court of Appeals for the Seventh Circuit correctly sets forth the law regarding
failures to prepare:

       Patrasso argues that the magnitude of Muldowney's multiple
       failures indicate that this case is more appropriately evaluated
       under Cronic and that therefore he does not have to show
       prejudice. We have held, however, that where ineffectiveness is
       due to the attorney's lack of preparation or skill—the type of
       allegations involved in this case—Strickland rather than Cronic
       applies. Patrasso had an attorney and the attorney did take some
       action on his behalf (at least during the guilt phase—the
       sentencing phase will be discussed separately below). Thus,
       Patrasso must meet the dual-pronged Strickland standard to
       establish he was denied the effective assistance of counsel during
       his trial.

Patrasso v. Nelson, 121 F.3d 297, 302 (7th Cir. 1997) (citation omitted).
In the absence of a complete failure to subject the prosecution’s case to
meaningful testing, I view failure to investigate claims as confined to the
reasonable strategic basis prong. If an attorney unreasonably failed to pursue
a particular avenue under the circumstances of a case, then a court must turn
to the prejudice inquiry. Harrington, supra.

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that would have changed the outcome at trial, whereas Perry does. Thus,

Perry does not hold that the mere failure to prepare alone, without a

consequent showing of how those failures undermine confidence in the

verdict, constitutes Strickland prejudice. Indeed, such a holding would seem

to conflict with the United States Supreme Court. See Brooks, supra at 252,

n.6 (“[I]f Perry stood for the proposition that the Strickland/Pierce rubric

permits a conclusion of ineffectiveness without a showing of actual prejudice,

i.e., that the outcome of the proceeding would have been different but for

counsel's ineffectiveness, it would be mistaken.”) (Castille, C.J., concurring).

      In contrast to Perry, this case was a factually straightforward sexual

abuse case, which boiled down to a jury’s assessment of the credibility of E.S.,

who claimed that Appellee raped her over a period of years, versus the

credibility of Appellee, who testified in his defense and denied the allegations.

This was not a case involving complex scientific matters or other witnesses to

the crimes in question, where one might reasonably expect defense counsel

to investigate multiple avenues of defense. Allegations of sexual abuse by a

family member occurring over a long period are, by their nature, conducted

at home away from prying eyes and difficult to disprove.

      Unlike the attorney in Perry, trial counsel herein performed the core

task demanded by the Sixth Amendment: he subjected the prosecution’s case

to adversarial testing. He cross-examined the victim regarding inconsistencies

between her testimony and what she told the police when the rapes were first

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J-S15028-17



reported. He suggested that she was angry with Appellee because he was too

strict, giving her a motivation to lie. He cross-examined her about V.D.’s visits

to their residence and why she did not reveal the allegations to her step-sister,

and cross-examined the Commonwealth’s other witnesses.

      Additionally, counsel delivered a lengthy closing argument, which

occupies thirty-five single-spaced pages of transcript, attacking the victim’s

story. He estimated that, by E.S.’s account, she was raped approximately 450

times and did not tell anyone for years, suggesting that her entire story was

wholly unbelievable. He further attacked her testimony that the rapes simply

started one day without any type of grooming behavior. “You’re being told

that [the rapes] happened out of the blue. No provocation, no justification,

no enticement, no explanation. Boom. It happened. And you have to ask

yourself does this make sense[?]” N.T., 2/20/08, at 114. He argued that a

fight with her parents prompted E.S.’s complaint at school, and argued that

E.S.’s statements regarding her own mother’s involvement were absurd. “This

is her flesh and blood and she was smirking about her child, her daughter,

who is living in the house, being raped.” Id. at 117. He continued:

      Now this is getting into fiction. I mean, really. Ladies and
      gentlemen, you need to just step back, take a deep breath and
      say does that work for me? Does that fit the facts? Can it possibly
      be what these people were doing? Can it? And nobody ever found
      out?

Id. at 123.




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      I find that trial counsel meaningfully opposed the prosecution’s case and

fulfilled the Sixth Amendment guarantee of effective representation. Indeed,

the PCRA court apparently thought that counsel performed adequately at trial.

“[E.S.] was cross-examined by a seasoned skilled defense attorney, who

despite his lack of proper preparation and planning, as far as a total defense,

undoubtedly made her trial experience very unpleasant.”       PCRA Opinion I,

5/12/16, at 42. Therefore, I cannot find that the pre-trial lapses rose to the

extreme level of a breakdown in the adversarial process resulting in conclusive

prejudice, even assuming such a theory is viable in the absence of a complete

failure to test the prosecution’s case.

      The jury found that E.S.’s story was credible despite the points argued

by Appellee’s counsel.     Tellingly, Appellee does not claim that counsel’s

performance at the actual trial, despite the numerous allegations of poor pre-

trial 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. I would therefore reverse the grant of a new trial.




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