J. S15028/17
                              2018 PA Super 71



COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                        APPELLANT         :
                  v.                      :
                                          :
MIGUEL DIAZ                               :
                                          :
                                          :
                                          :      No. 1811 EDA 2016

                  Appeal from the PCRA Order May 12, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0006973-2007

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                               FILED MARCH 23, 2018

        The Commonwealth appeals from the May 12, 2016 Order entered in

the Bucks County Court of Common Pleas granting Appellee, Miguel Diaz, a

new trial based on numerous ineffective assistance of counsel claims

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546.     After careful review, we conclude that the PCRA court properly

granted Appellee a new trial because Appellee’s trial counsel was per se

ineffective in his handling of Appellee’s need for a translator at trial.   We,

therefore, affirm the PCRA court’s grant of a new trial.

        The Honorable Robert O. Baldi, who presided over Appellee’s PCRA

proceedings below, has authored two Opinions, which include the relevant

factual and procedural history as well as 104 Findings of Fact (“FF”). See
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PCRA Court Opinion (Opinion I), filed 5/12/16, at 1-26, 33-39; PCRA Court

Pa. R.A.P. 1925(a) Opinion (Opinion II), filed 7/22/16, at 1-8.

      We base this summary of the facts upon Judge Baldi’s findings of facts.

In May 2006, fourteen-year-old E.S. told a classmate and later a school

guidance counselor that Appellee, her stepfather, had been sexually abusing

her for four years with her mother’s knowledge and cooperation. The police

arrested Appellee.1

      Appellee retained the services of Gregory Noonan, Esquire, and John

Walfish, Esquire, both of Walfish & Noonan LLC.     Over the course of their

eight-month representation of Appellee, Attorney Noonan met with Appellee

for a total of less than one hour.   Attorneys Noonan and Walfish failed to

consult with one another at any point prior to trial, and each assumed that

the other would be responsible for critical components of proper trial

preparation.2 Opinion II at 14-15.


1 Initially, the Commonwealth charged both Appellee and the Complainant’s
mother with various sex-related offenses, but later dropped all charges
against the Complainant’s mother because the Complainant refused to
testify against her mother.

2  The PCRA Court summarized their representation of Appellee as
“shockingly substandard” and “incompetent[,]” concluding that “only sloth,
mismanagement and incompetence” could explain their many failings. The
court also found that trial counsel failed to complete important tasks, such
as filing timely discovery motions, obtaining important evidence that could
exonerate their client, securing testimony from family members who could
establish Appellee’s innocence, and informing Appellee of when his trial was
scheduled to occur. The attorneys missed important court dates, including
Appellee’s arraignment hearing. When they did show up, they failed to meet



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      On the morning of the trial and fifteen minutes before the court called

the case, Attorney Walfish met his client for the first time. Appellee informed

Attorney Walfish that Appellee needed a Spanish-English translator to help

him understand the trial proceedings.

      Since Attorney Walfish had not consulted with Attorney Noonan about

Appellee and Attorney Walfish had spent only fifteen minutes with Appellee,

Attorney Walfish did not recognize the extent to which Appellee needed a

translator to understand the criminal proceedings.

      Attorney Walfish requested a translator and the trial court said that

one was not available for the first day of trial. Attorney Walfish then

mistakenly informed the trial court that Appellee only need a translator when

Appellee testified. The trial court judge then promised not to move forward

into testimony until the next day when the court would provide a translator

for Appellee. Op. I, FF #71-73.

      Despite the judge’s promise, the trial court began the trial that day.

The lawyers selected a jury and made opening statements to the jury. Most


basic responsibilities, such as recording testimony or taking notes during the
preliminary hearing. The PCRA court summarized its ruling by stating:

      The decision to grant [Appellee] a new trial was not made
      lightly. Quite frankly, the system failed both the Complainant,
      E.S.[,] and [Appellee]. In 33 years of practice before the Bar,
      and 6 years of experience as a Judge, I have never seen a case
      as rife with ineffective assistance of counsel[] as this one.

Opinion II at 20.




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significantly, the Complainant, the focal point and main witness of the

Commonwealth’s case, testified fully.              Attorney Walfish, not recognizing

Appellee’s need for a translator, stayed silent, and did not object, as the

case proceeded without a translator. Beginning the second day, the court

provided a translator to Appellee for the remainder of the trial.                Op. I, FF

#75-76.

      The jury convicted Appellee of Rape of a Child, Rape of a Person Less

than 13 years of Age, Statutory Sexual Assault, Corruption of Minors,

Endangering the Welfare of a Child, as well as Conspiracy to commit each of

those offenses.

      When Appellee returned to court for his hearing to determine if he was

a Sexually Violent Predator and subsequent sentencing, the trial court noted

the presence of a translator because Appellee does “not understand the

proceedings well enough to participate in them without an interpreter.” Op.

I, FF #77.

      The trial court ultimately sentenced Appellee to twenty to forty years’

incarceration in a state correctional facility.

      Appellee filed a direct appeal to this Court, raising claims that, inter

alia, the trial court erred in failing to provide a translator on the first day of

trial. This Court, however, found that Appellee waived his right to challenge

the trial court’s decision to proceed without a translator because Attorney

Walfish   failed   to   object   during    trial    to   the   trial   court’s   decision.



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Commonwealth v. Diaz, No. 3243 EDA 2012, unpublished memorandum

at 5 (Pa. Super. filed October 1, 2012).

      Appellee subsequently filed a PCRA Petition, alleging numerous claims

of ineffective assistance of counsel.      Among the many errors supporting

Appellee’s ineffectiveness allegations, Appellee asserted that         Attorney

Walfish failed to represent Appellee adequately due to, inter alia, his failure

to secure a Spanish-English interpreter and object to the court’s decision to

hear testimony on the first day of trial despite the trial court’s pledge not to

do so. 3

      After hearing testimony, the PCRA Court made thirty-four findings of

fact that are specific to Appellee’s translator claim.4   See Op. I, at 33-39.

Most significantly, the PCRA court concluded that Appellee “did not

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

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

complainant’s testimony.” Op. I, FF #92.

      The PCRA court based this conclusion on, inter alia, testimony about

Appellant’s language capabilities, education, and use of language. Op. I, FF

#78-87, 94-100.




3 As we conclude that Appellee is entitled to a new trial based on the
translator claim, we decline to discuss the remaining claims.

4 The Honorable David Heckler presided over the trial and sentencing, and
the Honorable Robert Baldi presided over the PCRA petition.



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      The PCRA Court also relied upon the testimony of Raymond McConnie,

an expert on Appellee’s ability to comprehend English.           Mr. McConnie

testified that Appellee’s language proficiency in English “was not adequate to

follow what was happening at trial without an interpreter.” Op. I, FF #102.

Mr. McConnie also opined that “stress at trial tends to dissipate a foreign

language speaker’s extant ability to understand the language spoke at trial;

and as a result, [Appellee] had significant difficulty understanding what

happened at trial, and communicating with counsel at trial, when he did not

have an interpreter.” Id.

      In addition to the translator claim, the PCRA court identified a

“multitude   of deficiencies [that] ranged from things         that   might be

characterized as inattentive or negligent to things that were breathtakingly

shocking.” Opinion II at 11. Because of these findings and others, the PCRA

court granted Appellee’s PCRA Petition and ordered a new trial.

      The Commonwealth filed a timely appeal.

      On appeal, the Commonwealth raises nine claims, each addressed to

one of the grounds for a new trial identified by the PCRA court. Since we

find that Attorney Walfish’s handling of the translator issue provided

sufficient ineffectiveness to entitle Appellee to a new trial, we need not

address the Commonwealth’s other issues.

      The Commonwealth sets forth the translator issue as follow:

      Did the PCRA court err in granting relief by finding prior counsel
      was ineffective for failing to secure [a translator] during attorney


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      consultation with Appellee, at trial, and during subsequent
      interviews with authorities, where Appellee failed to meet his
      burden and the record reflects that Appellee spoke,
      understood[,] and comprehended English, and, in fact,
      admittedly advised counsel that he spoke and understood
      English?

Commonwealth’s Brief at 5.

      When reviewing the propriety of an order pertaining to PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014). However, we afford no such deference to the post-

conviction court’s legal conclusions. Id. We thus apply a de novo standard

of review to the PCRA Court’s legal conclusions. Commonwealth v. Spotz,

18 A.3d 244 (Pa. 2011).      Further, an appellate court is not bound by the

rationale of the trial court and may affirm on any basis if the record supports

it. In re Jacobs, 15 A.3d 509 (Pa. Super. 2011).

      With our standard of review in mind, we turn to the Commonwealth’s

challenge to the PCRA Court’s finding regarding the need for a translator.


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Although the Commonwealth purports to raise a single issue, the challenge

is comprised of two distinct claims, which we will address in turn.

      First, the Commonwealth challenges the PCRA Court’s conclusion that

Appellant needed a translator to participate in his own defense.5 Although

the Commonwealth argues that there were sufficient facts for the PCRA

Court to find that Appellee understood the criminal proceedings and did not

need a translator, the argument ignores our standard of review on appeal.

      The case law is unwaveringly clear that “we must defer to the PCRA

court's findings of fact and credibility determinations, which are supported

by the record.”   Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014)

(emphasis added).     We will not disturb a PCRA court’s findings of fact

“unless they have no support in the record.” Commonwealth v. Rykard,

supra at 1183.      Therefore, the relevant question is not whether the

Commonwealth can point to additional evidence that conflicts with the PCRA

court’s findings. Instead, our focus is on whether there is any support in the

record for the PCRA court’s findings.




5 We respectfully part ways with the Dissent in that we accept the conclusion
of the PCRA Court that Appellee could not comprehend the proceedings
without a translator. The Dissent, in contrast, concludes that Appellee “could
speak and understand English” based on the PCRA Court’s finding that
Appellee spoke both Spanish and English in phone conversations with family
members while incarcerated. Dissent at *6. Although the PCRA Court made
that finding, we believe that the findings discussed in the body of this
Opinion overwhelmingly support the PCRA’s Court’s conclusion that Appellee
could not understand the criminal proceedings.



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      As discussed above, the PCRA court made extensive findings of fact to

support its conclusion that Appellee could not comprehend the criminal

proceedings without a translator.     The PCRA Court supports each of its

findings with references to relevant portions of the Notes of Testimony from

the trial or the PCRA hearings.   After a review of the record, we conclude

that each of these findings are supported by one or more portions of the

record.   Therefore, we will defer to these findings and the conclusion that

Appellee could not comprehend the proceedings without the assistance of a

translator.

      With the PCRA court’s findings of fact in mind, we turn next to the

Commonwealth’s claim that Appellee was not prejudiced by Attorney

Walfish’s failure to request a translator before trial or to make timely

objections to the trial court’s proceeding without a translator. We reject this

argument.      Under the facts of this case, Attorney Walfish’s lack of

comprehension about Appellee’s need for a translator leading to his failure to

object to proceeding at trial without a translator constitutes per se

ineffectiveness of counsel.

      Article I, Section 9 of the Pennsylvania Constitution guarantees an

accused the right to counsel in criminal prosecutions. This section provides,

      In all criminal prosecutions the accused hath a right to be heard
      by himself and his counsel, to demand the nature and cause of
      the accusation against him, to be confronted with the witnesses
      against him, to have compulsory process for obtaining witnesses
      in his favor, and, in prosecutions by indictment or information, a
      speedy public trial by an impartial jury of the vicinage ...


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PA Const. Art. 1, § 9. The right to counsel includes the right to the effective

assistance of counsel.      Strickland v. Washington, 466 U.S. 668, 686

(1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)).

      There are two types of ineffective assistance of counsel. The first is

ineffectiveness   under     Strickland,   as   adopted   in   Pennsylvania   by

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), which requires the

defendant to demonstrate that he was prejudiced by an act or omission of

his attorney.

      The second type of ineffectiveness of counsel is ineffectiveness per se

under United States v. Cronic, 466 U.S. 648 (1984), decided the same

day as Strickland, in which the United States Supreme Court categorized

circumstances where the court will presume prejudice and the defendant

need not prove it. The presumption is based on the High Court’s recognition

that there are some “circumstances that are so likely to prejudice the

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

unjustified.” Id. at 658.

      In Commonwealth v. Britt, 83 A.3d 198 (Pa. Super. 2013), this

Court summarized those cases in which the court found ineffectiveness per

se by noting that “[i]n Pennsylvania, per se ineffectiveness under Cronic

occurs where there was an actual or constructive denial of counsel, the state

interfered with counsel's assistance, or counsel had an actual conflict of

interest.” Id. at 202-03 (quotation and citation omitted).



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        In addition, prejudice is presumed where trial counsel’s ineffectiveness

causes a defendant to be physically absent from his own trial without cause

or consent.    Commonwealth v. Tolbert, 369 A.2d 791, 792 (Pa. Super.

1977). In Tolbert, trial counsel erroneously notified the defendant that he

would not need to be present on the day his case was called to trial, and told

him to appear the following morning instead. Id. at 792. When the case

was called for trial without the defendant present, the trial judge was

“understandably irritated at the turn of events.”               Id.   Defense counsel

agreed to proceed through jury selection without the defendant present, and

the lawyers selected a jury in the defendant’s absence. Id. The defendant

later    appealed,   averring    that   trial   counsel   had    rendered   ineffective

assistance when he agreed to proceed with jury selection without the

defendant present. Id.

        This Court granted Tolbert a new trial because trial counsel had no

reasonable basis for advising the defendant not to appear and concluded

that trial counsel had been ineffective. This Court did not evaluate whether

the outcome of his jury trial would have been different had he been present

for jury selection.    Id.      Instead, this Court focused on the defendant’s

“absolute” right to be physically present in court “during the selection of the

jury, along with his right to be present during every other phase of the trial.”

Id.     We emphasized that “[t]he right of the accused to participate in the




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selection of the jury panel is an essential ingredient of a jury trial under the

Pennsylvania Constitution.” Id.

      Most significant to the instant appeal, the Pennsylvania Supreme Court

has addressed the issue of a defendant, although physically present at trial,

being constructively absent when the defendant is deprived of a translator.

See Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976) (“A

defendant’s ability to use a translator encompasses numerous fundamental

rights. The failure to understand the proceedings may deny him his right to

confront witnesses against him, his right to consult with his attorney, or his

right to be present at his own trial.” (emphasis added)); Commonwealth

v. Wallace, 641 A.2d 321, 325 (Pa. Super. 1994) (“The [C]onfrontation

[C]lause requires that a defendant be given the opportunity to be physically

present at trial, that the defendant be competent to assist in his own

defense, and that the defendant understand the language of the forum.”

(citation and quotation omitted)).

      As noted above, the PCRA Court’s conclusion in the instant case—that

Appellee’s inability to understand English was such that he could not

participate adequately in the proceedings without a translator—is well

supported. The ability to understand the proceedings is fundamental to the

right to confront witnesses and be present at his own trial. The importance

of this right is magnified in a case such as this, where the case rests solely

on the testimony of the alleged victim and the defendant. Accordingly, we



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conclude that Appellee suffered prejudice per se as a result of counsel’s

failure to ascertain that Appellee needed a translator to understand the

criminal proceedings, providing incorrect information to the trial court about

Appellee’s need for a translator, and failing to object when the trial court

proceeded without a translator.

      Further, in light of the PCRA court’s findings of fact, it is clear that

such actions were not based on any reasonable trial strategy, but rather

stem from counsel’s lack of preparation.

      Therefore, Attorney’s Walfish’s failure to ascertain Appellee’s need for

a translator that led to Attorney Walfish’s failure to object when the trial

court proceeded without a translator resulted in a violation of Appellee’s

Sixth Amendment rights and, thus, is per se ineffectiveness. 6




6 The dissent relies on Weaver v. Massachusetts, 137 S.Ct. 1899 (2017),
where the petitioner claimed that his counsel was ineffective for failing to
object when the trial court only permitted potential jurors, and not the
public, in the courtroom during voir dire. The U.S. Supreme Court held that
when a petitioner argues that his attorney was ineffective for failing to
object to alleged violations to petitioner’s right to a public trial, it is the
defendant’s burden to show that that structural error “render[ed the] trial
fundamentally unfair.” Id. at 1911. Underlying the Weaver analysis is the
premise that the effect of a violation of one’s constitutional rights—and such
a structural error’s impact on the fundamental fairness of a trial—is case-
specific, even when first raised in an ineffectiveness claim. See id., at 1911-
1912. Because the rights at issue in this case involve Appellee’s inability to
comprehend the criminal proceedings and not the right to keep the
courtroom open during voir dire, the rights at issue are wholly and strikingly
different from those in Weaver. Thus, the holding in Weaver does not
change our analysis and disposition of the instant case.



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      Attorney Walfish’s failures are analogous to the attorney’s failure in

Tolbert, supra, where he advised his client not to appear at trial. Although

Appellee here was physically present in the courtroom during his first day of

trial, he was constructively absent because, as the PCRA court found,

Appellee needed a translator in order to understand the proceedings and

participate in his own defense. In both cases, counsels’ actions or inaction

caused the defendants to be “absent” from trial.

      Thus, we extend the concept of ineffectiveness per se to situations like

this one in which counsel fails to ascertain the defendant’s need for a

translator and as a result, incorrectly informs the court about the need for a

translator.   This results in the defendant not comprehending the criminal

proceedings and counsel not objecting to the trial court’s proceeding without

a translator. We conclude, therefore, that if one’s Sixth Amendment rights

are to have any meaning, Appellee must be granted a new trial.

      Order affirmed.

      Judge Ford Elliott joins the opinion.

      Judge Bowes files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18


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