[J
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MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

MIGUEL DIAZ, Appellee : : : : : : : : : : : : : No. 74 MAP 2018 Appeal from the Order of the Superior Court at No. 1811 EDA 2016 dated March 23, 2018, reconsideration denied May 30, 2018, Affirming the PCRA Order of the Bucks County Court of Common Pleas, Criminal Division, at No. CP

09

- 0006973

- 20 07 dated May 12, 2016. SUBMITTED: March 26, 2019

DISSENTING O PINION
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 Strickla nd 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 observ ation regarding the rather unusual “appellate trajectory” of this case. See Dissenting Opinion, slip op. at 2. At each turn, the reviewing court[J

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produced a different theory explaining why counsel’s conduct rose to the level of ineffective assistance. Fi rst, 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 secur e an interpreter, while in and of itself does not merit a new trial in this case, corroborates what [Diaz] testified to and what t his 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. Commonwe alth 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 rig ht 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 cour t’s findings. Indeed, t he 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 hi s counsel that he required an interpreter only during his testimony). But, in fact, the record does not support the notion that Attorney[J

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Walfish misled the trial court at all. Rather, th e 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 Majorit y spackles its fissures, apparently crediting Diaz’s PCRA testimony that the only portion of the relevant conversation with Attorney Walfish that he understood wa s counsel’s alleged statement

“‘ that it wasn’t up to him to stop the court, that he couldn’t d o 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 re quired 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 t his 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 credi ting Diaz’s so

- called “effective denial.” Id

. Indeed, t he 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[J

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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
witness es, 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 issu es 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 a n attempt to expand the record to suit its revisi onist 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, t h ere 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 ab sence 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, b ut 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. M ajority 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

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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 carr ied 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

3 I agree with Justice Mundy that, because the General Assembly passed 204 Pa. Code § 105, the likel ihood 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

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being subject to an ineffectiveness per se finding years later for doing exactly as instructed by the client. Accordingly, I would reverse the Superior Co urt’s decision to apply Cronic and remand for consideration pursuant to a Strickland analysis.