                                [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 DOUGHERTY                                         DECIDED: March 26, 2020
       I respectfully dissent as I would apply Strickland v. Washington, 466 U.S. 668

(1984), to the circumstances presented in this case rather than United States v. Cronic,

466 U.S. 648 (1984), and I would remand to the Superior Court for consideration of

appellee’s ineffective assistance of counsel claim under the Strickland rubric. I write

separately to emphasize a fundamental flaw underlying the learned Majority’s conclusion

that “where the absence of a needed interpreter at a critical stage of trial obstructs his

ability to communicate with counsel, Cronic applies such that the defendant need not

prove that he or she was prejudiced by a Sixth Amendment violation.” Majority Opinion,

slip op. at 1-2.

       Initially, although unlike Justice Mundy, I do not find it to be a barrier to our review,

I nevertheless share her observation regarding the rather unusual “appellate trajectory”

of this case. See Dissenting Opinion, slip op. at 2. At each turn, the reviewing court
produced a different theory explaining why counsel’s conduct rose to the level of

ineffective assistance. First, the PCRA court applied a Strickland analysis and concluded

counsel’s errors — unpreparedness and failure to secure an interpreter — cumulatively

rendered counsel’s conduct ineffective. See also PCRA Court Opinion, 5/12/16 at 40

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

case, corroborates what [Diaz] testified to and what this court already knows — that trial

counsel was completely unprepared for trial.”).          The Superior Court then decided

counsel’s failure to obtain an interpreter was itself dispositive, applying Cronic to the

theory that Diaz was constructively absent from trial based on the PCRA court’s finding

that Diaz did not understand a majority of the proceedings on the first day.

Commonwealth v. Diaz, 183 A.3d 417, 422-23 (Pa. Super. 2018); see PCRA Court

Opinion, 5/12/16 at 36-37 (Diaz “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”). Now the Majority, unsatisfied with either

theory, reaches yet another alternative conclusion: that counsel’s failure to secure an

interpreter constitutes per se ineffectiveness because it constructively denied Diaz his

right to counsel under the Sixth Amendment.

       I recognize the Majority’s legal theory is not without some force. However, upon

closer examination, I conclude the foundation upon which the Majority’s conclusion rests

is compromised by its inaccurate recitation of the record, particularly the PCRA court’s

findings. Indeed, the unspoken premise of the Majority’s entire analysis is that Attorney

Walfish misled the trial court when he stated that Diaz needed an interpreter only for his

own testimony. See Majority Opinion, slip op. at 5 n.8 (asserting Diaz “effectively denied”

at the PCRA hearing that he had advised his counsel that he required an interpreter only

during his testimony). But, in fact, the record does not support the notion that Attorney




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Walfish misled the trial court at all. Rather, the relevant findings by the PCRA court

indicate only that counsel spoke with Diaz and, after their conversation, counsel informed

the trial court that Diaz required an interpreter solely for his testimony. See PCRA Court

Opinion, 5/12/16 at 34; see also N.T., 2/19/08 at 3-10 (indicating counsel and Diaz

conferred about the request for an interpreter and after that discussion counsel informed

the court Diaz wanted an interpreter only for his testimony).

       Thus, instead of re-pouring the foundation the Majority spackles its fissures,

apparently crediting Diaz’s PCRA testimony that the only portion of the relevant

conversation with Attorney Walfish that he understood was counsel’s alleged statement

“‘that it wasn’t up to him to stop the court, that he couldn’t do that.’” See Majority Opinion,

slip op. at 5 n.8, quoting N.T., 11/13/12 at 126. From this isolated and largely inapposite

testimony, the Majority makes an unjustifiable leap to conclude that Diaz “effectively

denied advising his counsel that he only required an interpreter during his own testimony,

or otherwise agreeing that he did not require an interpreter on the first day of trial.” Id. It

seems obvious to me that the Majority has ascribed far more significance to Diaz’s limited

PCRA testimony on this point than the record can possibly bear.

       Moreover, the Majority all but concedes that the PCRA court itself did not make a

factual finding crediting that same testimony, and also seems to acknowledge the PCRA

court did not make a factual finding crediting Diaz’s so-called “effective denial.” Id.

Indeed, the best the Majority can muster to support its interpretation of Diaz’s testimony,

as well as its decision to credit that expansive interpretation in the first instance, is the

following statement: “The PCRA Court made no finding of fact inconsistent with Diaz’[s]

testimony[.]” Id. This explanation is circular, unconvincing, and incompatible with basic

principles of appellate review. See, e.g., Commonwealth v. Koehler, 36 A.3d 121, 131

(Pa. 2012) (“The scope of review is limited to the findings of the PCRA court and the




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evidence of record[.]”); Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006) (“The

findings of a post-conviction court, which hears evidence and passes on the credibility of

witnesses, should be given great deference.”); see also Commonwealth v. Gibson, 951

A.2d 1110, 1122 (Pa. 2008) (“[A] developed post-conviction record accompanied by

specific factual findings and legal conclusions is an essential tool necessary to sharpen

the issues so that differences at the appellate level can be mitigated.”). Here, no such

“specific factual finding[ ],” see Gibson, supra, exists and the Majority’s suggestion to the

contrary is nothing more than an attempt to expand the record to suit its revisionist

narrative.

       All we know, based on the record before us, is after Diaz’s initial request was

withdrawn, counsel conferred with him and presented a new, more limited request for an

interpreter to the trial court.1 Contrary to the Majority’s belief, there is absolutely no

evidentiary basis upon which to conclude counsel’s representation to the trial court was

anything other than a direct conveyance of Diaz’s express wishes; nor is there any finding

by the PCRA court which suggests otherwise.2 In the absence of any such finding, the

Majority is reduced to relying on the PCRA court’s inapt statement that Diaz “did not

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

1 In fact, the PCRA Court found Diaz not only understood some English, but was
conversant in it. See PCRA Court Opinion, 5/12/16 at 34-38. This evidence buttresses
a conclusion Diaz was able to communicate with counsel regarding his need for an
interpreter. Cf. Majority Opinion, slip op. at 26, quoting Gannett Co., Inc. v. DePasquale,
443 U.S. 368, 382 n.10 (1979) (“the [Sixth] Amendment speaks of the ‘assistance’ of
counsel, thus contemplating a norm in which the accused, and not the lawyer, is master
of his own defense”).
2 Critically, as the proponent of this claim, Diaz was required to present evidence to
overcome the presumption counsel provided effective assistance. See Commonwealth
v. Griffin, 644 A.2d 1167, 1172 (Pa. 1994) (law presumes counsel was effective and
defendant has the burden of proving otherwise); Commonwealth v. Miller, 431 A.2d 233,
235 (Pa. 1981) (same). On this record, it is clear Diaz failed to meet that burden.




                            [J-57-2019] [MO: Donohue, J.] - 4
or opening arguments, and did not understand about half of the complainant’s testimony.”

PCRA Court Opinion, 5/12/16 at 36-37. Critically, this finding says nothing about the

specific conversation counsel and Diaz had concerning Diaz’s limited request for an

interpreter.3 Absent some finding by the PCRA court that counsel did not convey Diaz’s

request, or that Diaz did not understand his conversation with his counsel on this point, I

fail entirely to see how counsel’s actions were deficient. Indeed, as far as the record

indicates, counsel ostensibly carried out Diaz’s wishes precisely as requested.4 That is

the opposite of ineffectiveness.

       From a practical standpoint, the Majority’s holding here will have far-reaching

implications for trial lawyers who represent multi-lingual clients. As a result of today’s

decision, even an attorney who properly acts at the behest of his or her client with respect

to the client’s request for an interpreter may later be found to have been per se ineffective,

based on nothing more than the client’s post-conviction assertion that he did not

understand some portion of the trial. After all, that’s precisely what happened here:

counsel successfully secured an interpreter for the only portion of the trial that Diaz felt

was necessary, i.e., his own testimony. And yet now, more than a decade later, the

Majority suddenly declares counsel was not only ineffective, but per se ineffective, for

doing exactly what his client asked of him. This conclusion, which again is built on nothing

more than unsupported assumptions, puts future trial counsel in the untenable position of




3I agree with Justice Mundy that, because the General Assembly passed 204 Pa. Code
§105, the likelihood of a similar factual scenario repeating is marginal. See Dissenting
Opinion, slip op. at 8-9. This removes any perceived urgency to extend Cronic on a
suboptimal record.
4 The Majority suggests I advance a waiver theory on this point, see Majority Opinion, slip
op. at 5 n.8, but in actuality, I emphasize only that the PCRA court record does not support
the conclusion Attorney Walfish was per se ineffective.


                             [J-57-2019] [MO: Donohue, J.] - 5
being subject to an ineffectiveness per se finding years later for doing exactly as

instructed by the client.

       Accordingly, I would reverse the Superior Court’s decision to apply Cronic and

remand for consideration pursuant to a Strickland analysis.




                            [J-57-2019] [MO: Donohue, J.] - 6
