Commonwealth v. Diaz

226 A.3d 995

COMMONWEALTH of Pennsylvania, Appellant

v.Miguel DIAZ, Appellee

No. 74 MAP 2018

Supreme Court of Pennsylvania.

Submitted: March 26, 2019

Decided: March 26, 2020

OPINION

JUSTICE DONOHUE

In this discretionary appeal, the Commonwealth challenges the Superior Court’s application of United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), to find that trial counsel’s failure to secure a Spanish language interpreter for Miguel Diaz ("Diaz") on the first day of his criminal trial constituted per se prejudice as Diaz was not a native English speaker and could not fully understand the proceedings.¹ We conclude 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. Based on the record and the standard by which we review this case, we find that the Superior Court correctly concluded that Cronic was applicable and that no specific showing of prejudice was required because of the absence of an interpreter on the first day of trial during critical stages of the proceeding.

This case arises from the grant of collateral relief by the common pleas court pursuant to Pennsylvania’s Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 ("PCRA"). The pertinent facts, as found by the PCRA court and viewed in the light most favorable to Diaz, are as follows.² Diaz is a native of Guatemala who had only a single year of formal education (first grade). He left Guatemala in 1974 and came to the United States by way of Mexico, ultimately obtaining a green card. He worked first in a bakery alongside exclusively Spanish-speaking workers for fourteen years, and then at a paper company, where he continued to work at the time of his arrest. He learned to speak English well enough to communicate with his English-speaking children and stepchildren, to help translate for his Spanish-speaking coworkers at the paper company, and to understand basic orders at work. While at the paper company, he was able to file a written grievance in English using a dictionary to help him.

The Commonwealth charged Diaz in 2007 with rape, rape of a child, endangering the welfare of children, statutory sexual assault, indecent assault, corruption of minors, and conspiracy.³ The charges stemmed from allegations by the daughter of Diaz’ live-in paramour⁴ that he forced her to have sex with him on multiple occasions from 2002 through 2006, when the child was between the ages of ten and fourteen years old.⁵ Diaz retained then-Attorney Gregory Noonan of the former law firm Walfish & Noonan LLC to represent him.⁶ Noonan represented Diaz at the preliminary hearing and conducted the pretrial investigation, but his law partner, Attorney John Walfish, represented Diaz at trial and through the first round of post-trial motions.⁷

Noonan met with Diaz on a handful of occasions in the eight months between Diaz’ arrest and trial, spending less than an hour with him in total, and never prepared him for trial. He spoke Spanish with Diaz during their first and longest visit, and then communicated with him in English thereafter. Attorney Walfish met Diaz for the first time at the courthouse on February 19, 2008, the first day of trial. The case had been continued several times, including most recently on January 14, 2008, at which listing Attorney Walfish failed to appear, and February 19 was listed as a "must try" date. N.T., 3/31/2016, at 6. During their meeting, Diaz asked Attorney Walfish to request a Spanish language interpreter. Diaz made this request based on his experience at the preliminary hearing, which occurred without the aid of an interpreter, which he testified made him realize that he needed one for trial. N.T., 11/13/2012, at 114.

Attorney Walfish conveyed Diaz’ request to the trial court immediately prior to argument on pretrial motions. The trial court judge advised Attorney Walfish that no interpreter was available and queried why this issue was arising on the day of trial. Attorney Walfish consulted with Diaz, informing him "that it wasn’t up to him to stop the court, that he couldn’t do that." Id. at 126. Attorney Walfish then changed the request, informing the trial court that Diaz only needed an interpreter for his own testimony: "Your honor, Mr. Diaz explains to me that the reason he would request an interpreter is that up until this point in time, he has never been required to testify himself in a court of law, and that is why he would feel more comfortable in addressing the [c]ourt and the jury with an interpreter present." N.T., 2/19/2008 (Volume I), at 7. Presuming, on that basis, that Diaz "generally speaking ... has felt he’s understood what’s been taking place," and believing that no testimony would be taken that day, the trial court allowed the proceeding to begin, stating that a Spanish language interpreter would be available the following day if Diaz needed one. Id. Attorney Walfish responded: "Your Honor, we would be comfortable in proceeding without an interpreter until such time as Mr. Diaz is prepared to testify, at which time we would need an interpreter."⁸

Id. at 8. Despite Attorney Walfish’s assurances to the court that Diaz only needed an interpreter for his own testimony, he reported to Noonan that day, "we got a PCRA looking at us in the face, let’s get an interpreter." N.T., 3/30/2015, at 285.

The first day of trial, during which Diaz did not have an interpreter, included argument on pretrial motions, jury selection, opening statements and, contrary to the trial court’s prediction, direct and cross-examination of the child victim. Prior to the commencement of the second day of the proceedings, Attorney Walfish informed the trial court that Diaz had been "uncomfortable with his understanding how the proceedings were transpiring" and that Diaz required simultaneous interpretation for the rest of the trial. N.T., 2/20/2008, at 3-4. The trial court provided Diaz with an interpreter for the remainder of the proceedings before it.

The jury convicted Diaz of all charges on February 21, 2008. The trial court convened a hearing on May 23, 2008 for sentencing and for the determination of whether Diaz was a sexually violent predator ("SVP"). An interpreter was present at the SVP and sentencing hearing to assist Diaz, and the trial court made a finding that Diaz could not participate in the proceedings without the aid of an interpreter. N.T., 5/23/2008, at 3. Following the hearing, the court found that Diaz was an SVP.

It sentenced him to an aggregate term of twenty to forty years of incarceration and ordered him to comply with the restrictions of the then-applicable law pertaining to sex offenders and SVPs.

On May 30, 2008, Attorney Walfish filed post-sentence motions as well as a motion to withdraw as counsel. While both motions were pending, Diaz filed a pro se notice of appeal on June 18, 2008, along with motions for transcripts. Although the trial court on June 19, 2008 ordered the Commonwealth to respond to counsel’s motions, it subsequently found that Diaz’ pro se appeal precluded it from ruling upon the post-sentence motions and instead ordered Attorney Walfish to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Thereafter, at Attorney Walfish’s urging, the trial court appointed new counsel to represent Diaz on direct appeal and granted Attorney Walfish’s request to withdraw. New counsel raised one issue on appeal claiming ineffective assistance of trial counsel. On July 29, 2009, the Superior Court dismissed the appeal without prejudice, finding that the claim was not properly before it on direct appeal.

On October 22, 2009, Diaz filed a pro se PCRA petition. The PCRA court ultimately appointed current counsel, Attorney Stuart Wilder. Attorney Wilder filed an amended PCRA petition raising numerous claims of ineffective assistance of counsel. On June 18, 2012, by agreement of the parties, the trial court granted Diaz’ request for PCRA relief and reinstated his post-sentence motions and direct appeal rights nunc pro tunc.

Attorney Wilder filed post-sentence motions on June 22, 2012 seeking reconsideration of Diaz’ sentence and a new trial. He based the latter request on the failure of the trial court to provide an interpreter for Diaz on the first day of trial. The court held a hearing on the motion that spanned several days, but denied relief on November 16, 2012. Of relevance to the pending matter, the court found – based on the exchange that took place between the trial court judge and Attorney Walfish – that Attorney Walfish did not in fact request the presence of an interpreter on the first day of trial, and thus the trial court did not err by failing to provide one. Instead, the post-sentence motions court found that Attorney Walfish had asked for an interpreter only for Diaz’ testimony.

Diaz appealed to the Superior Court, which affirmed in a non-precedential decision on October 1, 2013, finding that because Attorney Walfish failed to object to the trial court’s failure to provide an interpreter on the first day of trial, Diaz had waived the claim. Judge Shogan authored a concurring statement, joining the majority in full and emphasizing that the decision did not prejudice Diaz’ right to raise a claim of trial counsel’s ineffectiveness on collateral review. This Court denied allowance of appeal on March 11, 2014.

Attorney Wilder filed the PCRA petition at issue in this appeal on September 30, 2014 raising, inter alia, ten claims of ineffective assistance of trial counsel, including:

• failing to obtain an interpreter for Diaz prior to trial, which constituted a violation of his right to the assistance of counsel and to understand the proceedings so that he could consult with counsel about the substance of the proceedings;

• allowing the first day of trial to proceed without an

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