Philadelphia Criminal Defense Blog
PA Supreme Court: Failure to Provide Interpreter for Jury Selection Requires New Trial
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Diaz, upholding the Superior Court’s ruling that a defendant who needed but was not provided with a Spanish interpreter during the first day of jury selection should receive a new trial. The Court ruled that the failure to provide a defendant with an interpreter during a critical stage of trial results in a Sixth Amendment violation and automatically requires a new trial even if the defendant cannot prove prejudice (that the lack of an interpreter actually affected the proceedings).
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Facts of Diaz
In Diaz, the defendant was charged with rape of a child, endangering the welfare of a child, statutory sexual assault, indecent assault, corruption of minors, and conspiracy. Bucks County prosecutors alleged that the defendant sexually assaulted his girlfriend’s minor daughter multiple times when she was between the ages of ten and fourteen years old.
The defendant spoke some English, but he was not totally fluent. He retained private counsel for the preliminary hearing, and the Magisterial District Justice held the hearing in English without an interpreter. After the preliminary hearing, the defendant requested that his attorney obtain a Spanish interpreter for further proceedings because he felt that he had trouble understanding what happened at the preliminary hearing.
Prior to the argument on pre-trial motions, the defense attorney requested a Spanish interpreter for the defendant. There was no interpreter available that day, and the trial judge seems to have been upset that the defense attorney made the request at the last minute. After the judge asked why the request had not been made earlier, the defense attorney withdrew the request and informed the court that the defendant would only need an interpreter for his own testimony.
The trial court decided to move forward with the hearing on the pretrial motions and the first day of jury selection without the interpreter, but the judge agreed that an interpreter would be provided on the subsequent days of trial. Despite the defendant repeatedly saying that he did not really understand what was going on, the defense attorney agreed that that would work. The trial judge even mentioned that they should definitely get an interpreter for the second day of trial because “we got a PCRA looking at us in the face.” Nonetheless, the court proceeded with jury selection without an interpreter. In fact, the first day of trial, which took place without the interpreter, included pretrial motions, jury selection, opening statements, and direct and cross examination of the complainant. The defendant received an interpreter for the rest of the trial.
The jury found the defendant guilty of all charges. He was sentenced to 20-40 years’ incarceration and required to register as a sexually violent predator. The defendant appealed, new counsel was appointed, and the new attorney tried to raise the ineffective assistance of counsel on appeal. Because a criminal defendant generally cannot do that in Pennsylvania, the Superior Court dismissed the appeal.
The PCRA Petition
The defendant then filed a PCRA petition alleging the ineffective assistance of counsel, and the trial court appointed counsel for the PCRA. PCRA counsel amended the petition to raise numerous claims of ineffective assistance. This led to the reinstatement of the defendant’s appellate rights. The direct appeal was denied, and counsel then filed a second PCRA petition alleging that the defendant should receive a new trial because trial counsel provided the ineffective assistance of counsel in failing to properly request an interpreter for the whole trial.
The trial court held an evidentiary hearing in which it heard from various witnesses as to whether the defendant could understand and speak English. The court eventually concluded that the defendant did not speak English well enough to have his trial without an interpreter. Therefore, the trial court granted the PCRA petition and awarded a new trial for the defendant, finding that counsel was ineffective in failing to insist on an interpreter.
The Appeal
The Commonwealth appealed the granting of the PCRA Petition, and the Superior Court affirmed. The Commonwealth appealed again to the Pennsylvania Supreme Court, and the Supreme Court accepted the appeal.
The Supreme Court’s Decision
The Supreme Court upheld the decision of the trial court, finding that the defendant should have received an interpreter for the entire trial. In general, there are two standards for a PCRA Petition when dealing with the ineffective assistance of counsel. First, there is the general Strickland standard in which a defendant must show 1) a claim of arguable merit, 2) that counsel had no reasonably strategic basis for acting or failing to act, and 3) that the defendant actually suffered prejudice. This standard applies to most situations – for example, the failure to litigate a motion, the failure to object to certain evidence, and the failure to present witnesses or investigate potential defenses. This standard is more difficult to meet because a defendant not only has to show that the defense attorney should have done something differently, but also that it really could have made a difference in the proceedings.
Second,, there are some errors that are so fundamental to the right to a trial that they constitute structural errors and do not require a showing of prejudice. This standard applies in circumstances including: 1) the actual or constructive denial of counsel at a critical stage of trial; 2) when counsel fails entirely to provide meaningful adversarial testing of the prosecution’s case, and 3) circumstances wherein no lawyer, regardless of general competency, could have provided effective assistance of counsel. This also includes situations in which a defendant is prevented from conferring with counsel.
Here, the Pennsylvania Supreme Court found that the failure to provide an interpreter constituted a structural error in the proceedings because the defendant had no ability to communicate with his lawyer regarding the case during the trial. Therefore, defense counsel failed to provide the effective assistance of counsel by failing to object to the court proceeding through the first day of trial without an interpreter. The defendant will receive a new trial.
If you need a criminal defense lawyer in Philadelphia, PA, we can help.
Philadelphia Criminal Defense Lawyers
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Philadelphia Courts Shut Down But Still Hearing Bail Motions and Detainer Motions During Coronavirus Pandemic
Are the Philadelphia Criminal Courts open for business?
Philadelphia Criminal Lawyer Zak Goldstein
Although some courts announced that they would be closing last week, the Philadelphia criminal courts remained open until Monday March 16, 2020. At that point, the courts announced that they would be shutting down all non-essential operations and delaying court dates for all types of criminal cases, including preliminary hearings, arraignments, bench trials, and jury trials.
Initially, the Court of Common Pleas announced that it planned to re-open on April 1, 2020. However, the Pennsylvania Supreme Court subsequently declared a statewide judicial emergency and ordered that courts remain closed until at least April 3, 2020. The Supreme Court, however, directed that courts remain at least partially open for essential functions such as bail hearings, detainer hearings, bench warrant hearings, preliminary arraignments, and potentially preliminary hearings for defendants who are incarcerated. At the moment, the Philadelphia courts have not been conducting preliminary hearings. It is still possible to file motions to reduce bail, lift detainers, and to lift bench warrants.
Are courts open in the rest of Pennsylvania during the Coronavirus pandemic?
No. Although the courts initially responded by letting each President Judge determine what should happen in each Pennsylvania district, the Pennsylvania Supreme Court issued an order generally closing all courts with the exception of certain essential hearings as mentioned above. The counties are still sorting out how they will proceed with essential hearings during the shut down, but jury and bench trials are currently not occurring anywhere in Pennsylvania. New Jersey has also suspended most court operations.
Is it possible to get bail reduced due to the disease?
Yes, Philadelphia and the surrounding counties are still processing and ruling on bail motions, and it is possible that the lack of adequate health care in the prison system could be a reason why a prosecutor and/or judge may look more favorably on a bail motion than they normally would. Even with the general shut down of the courts, it is possible to file an emergency bail motion. In Philadelphia, it appears that the judges may rule on bail motions on the paperwork without holding actual hearings, but the District Attorney’s Office and the courts are hoping to reduce the prison population to the extent possible in the hopes of avoiding the spread of the Coronavirus. Therefore, if your loved one is being held on high bail for a case which has been postponed due to the shut down, contact us immediately to discuss the prospects of getting that bail reduced.
Can I get a probation detainer lifted while the courts are closed?
Yes, like bail motions, the Philadelphia courts continue to accept emergency motions to lift probation detainers. All probation detainer motions and bail motions are being heard by the President Judge or a designee for either the Court of Common Pleas or the Municipal Court. This means that it remains possible to file a motion to lift a probation detainer despite the general shut down caused by the virus. Further, if you or your loved one has been detained due to a technical violation or an arrest for a relatively less serious crime, the odds may be good for getting a probation detainer lifted.
What happens to criminal cases while the courts are closed?
Philadelphia Criminal Defense Lawyers
That is a good question. At the moment, everything except emergency petitions for bail motions, detainer motions, and bench warrant hearings are currently on hold. Defendants who have been arrested on new charges are still entitled to a prompt preliminary arraignment at which bail will be set, and the Supreme Court has allowed the Municipal Court to proceed with preliminary hearings for incarcerated defendants. However, the Municipal Court has not yet been holding preliminary hearings in those cases as the judges are still working through what the procedures will be and evaluating how long the shut down is likely to be in effect. It is clear that trials will not happen for some time, and that fact may be helpful in getting a detainer lifted or bail reduced. The courts have also suspended the function of Rule 600, which is the speedy trial rule for trials.
The bottom line is that if you or your loved one have recently been arrested or are being held on high bail or a probation detainer, we may be able to help. Call 267-225-2545 to speak with a Philadelphia Criminal Defense attorney today. Our award-winning criminal lawyers stand ready to help you navigate this difficult time.
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Philadelphia Criminal Defense Attorney Zak Goldstein Appears on Ask the Expert Radio Show
Philadelphia criminal defense attorney Zak T. Goldstein, Esquire answers questions regarding Pennsylvania criminal procedure and what to do during a police encounter. The show will broadcast on Tuesday, March 3 at 10:30 am on Talk 860 AM.
Can a judge give a worse sentence if you file a motion to reconsider the sentence?
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Coleman, holding that a trial court may not sua sponte increase a defendant’s sentence after he or she files a post-sentence motion. This decision is significant because there is an all-too-common misconception among defense attorneys that if they file a post-sentence motion for a new trial or a reduced sentence, there is the possibility that the judge could retaliate by increasing the defendant’s sentence. As such, some attorneys are hesitant to file these motions for that incorrect reason. Hopefully, as a result of Coleman, this misconception will be put to rest.
Commonwealth v. Coleman
On August 7, 2017, the complainant was granted a temporary protection from abuse (“PFA”) order against her boyfriend, the defendant. When the PFA was issued, the defendant and the complainant were living together. Notably, the defendant was not on the lease of their shared residence nor did he ever possess a key.
Despite the PFA being issued, the defendant evaded attempts at being officially served with the PFA. Additionally, the defendant continued to go to their shared residence which resulted in the complainant staying at her grandmother’s home until the defendant could be officially served. On August 21, 2017, the defendant was finally served with the PFA order and an eviction notice. When he was served, he was hiding in the complainant’s daughter’s bedroom closet. The complainant was present when an officer offered to have him remove all of his property from the residence which the defendant declined. Because of the defendant’s actions, the complainant made a point to keep all of her windows and doors locked.
On August 25, 2017 at around 9:30 AM, the complainant was returning home when she noticed the defendant coming out of her house holding a bag. She would later testify that she did not observe any exterior sign of forced entry. However, she did testify that a few months prior to this she observed the defendant attempting to climb through her window. The complainant assumed that this is how the defendant entered her residence. She also would testify that she observed the internet box, which was in the defendant’s name, was missing from the house. At the time of this incident, the PFA was still active and thus the defendant did not have permission to be inside the home. The defendant would later testify that he and the complainant had a conversation where she gave him permission to enter the residence.
On August 30, 2017, the complainant went to the defendant’s new residence at his request. When she arrived, she noticed that the defendant’s new girlfriend was living at this residence. The complainant was not let in, but for unknown reasons the police were subsequently called. As a result, the defendant was subsequently arrested and charged with burglary, criminal trespass, criminal mischief, and contempt for violating the PFA order for his actions on August 25, 2017. The defendant elected to have a bench trial where the above testimony was presented and he was found guilty of burglary, criminal trespass, and contempt.
The trial court then conducted a subsequent sentencing hearing on August 23, 2018. At that hearing, it was determined that the defendant had a prior record score of zero and an offense gravity score of seven, which set the sentencing guidelines to 6 to 14 months’ incarceration, plus or minus 6 months. The trial court stated that it had reviewed the pre-sentence investigation report and the text messages that were provided to the court. The defendant’s attorney informed the trial court that the defendant was employed and no longer involved with the complainant. The defendant’s new girlfriend also testified on the defendant’s behalf.
The Commonwealth requested that the defendant receive a sentence of 6 ½ to 23 months’ incarceration for his actions. After arguments, the trial court elected to sentence the defendant to 12 to 24 months of incarceration which was to be followed by two years of probation. In its rationale, the trial court stated that the defendant “tortured” the complainant based on its review of the text messages.
The defendant then filed a post-sentence motion arguing that the court should not have sentenced him to a sentence greater than what was requested by the Commonwealth. In his motion, the defendant specifically referenced the trial court’s comment that the defendant “tortured” the complainant. A hearing was held on August 30, 2018. At that hearing, the defendant rested on his motion and requested that the trial court impose a county sentence.
The trial court then stated that it had reviewed the defendant’s motion and that even though it mentioned the word “torture” during the defendant’s sentencing, it was not a factor in the defendant’s sentence. Also during this hearing, it became known that the defendant had re-violated the PFA. In response to questioning by the trial court, the defendant stated that “[he] didn’t mean to violate the PFA.” It is worth noting that at this hearing, the Commonwealth did not request a modification of the defendant’s sentence nor did it file its own post-sentence motion. Nonetheless, the trial court re-sentenced the defendant to an increased sentence of 14 to 18 months of incarceration, followed by four years of probation. The defendant then filed another post-sentence motion which was denied and then he subsequently filed a timely appeal.
What is a Post-Sentence Motion?
Post-Sentence motions are an incredibly important, and often forgotten, part of criminal defense practice. A post-sentence motion is a request to do any of the following: modify one’s sentence, request a new trial (for a variety of reasons including: the acquisition of newly discovered evidence, prosecutor’s comments during closing argument, challenging the weight of the evidence, etc.), request a motion for judgment of acquittal, and challenge one’s guilty plea. As one can see, post-sentence motions gives the trial court an opportunity to correct a past wrong by either the jury or the trial court itself.
It is worth noting that these motions are frequently denied. However, that does not take away from their importance. They are incredibly important because if you do not file them on time, you can inadvertently waive certain issues for appeal. For example, if you do not file a post-sentence motion, you are not able to challenge the weight of the evidence or the discretionary aspects of an appeal. Therefore, it is imperative that your attorney files a post-sentence motion after your sentencing if you believe that you received an unduly harsh sentence or if you believe that there were serious issues with the evidence that was presented at your trial.
The Superior Court’s Decision
The Superior Court granted the defendant’s appeal. In its decision, the Superior Court relied on prior case law that stated that in order for a defendant’s sentence to be increased after a post-sentence motion is filed, the Commonwealth must also have filed a post-sentence motion. In other words, a trial court is not permitted to increase a defendant’s sentence unless the Commonwealth has filed a post-sentence motion specifically requesting a harsher sentence. Therefore, a defendant cannot be punished simply because he files a post-sentence motion requesting a more lenient sentence. Because the Commonwealth did not file a post-sentence motion in this case, the defendant’s current sentence will be vacated and he will receive his original sentence.
Facing Criminal Charges? We Can Help.
Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.