Com. v. Wallace

• Citation: 433 Pa.Super. 518,641 A.2d 321
• Parties: COMMONWEALTH of Pennsylvania v. Tyrone WALLACE, Appellant.
• Decision Date: 05 May 1994
• Court: Pennsylvania Superior Court

Page 321

641 A.2d 321

433 Pa.Super. 518

COMMONWEALTH of Pennsylvania v. Tyrone WALLACE, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 19, 1994.

Filed May 5, 1994.

Wayne Sachs, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

WIEAND, Judge.

Tyrone Wallace was tried by jury and was found guilty of two counts of aggravated assault and single counts of burglary and possession of an instrument of crime. Post-trial and supplemental post-trial motions were denied, and Wallace was sentenced to serve an aggregate term of imprisonment for not less than eleven (11) years nor more than thirty-two (32) years, to be followed consecutively by a five (5) year period of probation. A direct appeal was taken to the Superior Court, but this was subsequently dismissed for failure to file an appellate brief. Wallace then filed a petition under the Post Conviction Relief Act, and, pursuant thereto, was granted the right to file a direct appeal nunc pro tunc. In his nunc pro tunc appeal, Wallace, who represents that he is legally deaf, argues that the trial court erred by failing to appoint a sign language interpreter under 42 Pa.C.S. § 8701(b). He contends also that his trial counsel was ineffective for failing to request the appointment of an interpreter. His post-verdict counsel was also ineffective, he argues, for failing to raise and preserve this issue for appellate review.

The factual scenario underlying appellant's convictions was briefly summarized in the opinion of the trial court as follows:

[O]n the evening of July 12, 1988, at about 7:30 P.M., Jose Diaz and his live-in girlfriend Carmen Delgado were in the dining room of their home--he on the telephone, she seated nearby--when defendant kicked in the front storm door. Distracted by the noise, Mr. Diaz faced the intruder. The defendant was four feet away when he opened fire [with a handgun]; the victims took cover behind the refrigerator. Ms. Delgado's daughter was outside the home on a neighbor's stoop when she saw the defendant kick in the storm door and enter the house. She ran to the house, coming face to face with the defendant as he left the house and got into a car. Mr. Diaz and Ms. Delgado testified that as soon as defendant entered, they recognized him as being the same person they had jousted with a half-hour before when they found him urinating in their back yard. All three of the above named identified defendant as the intruder. The defense was one of alibi.

On appeal, appellant contends that, because he is deaf, the trial court was required under 42 Pa.C.S. § 8701(b) to appoint an interpreter to assist him in understanding the proceedings. He argues that the trial court's failure to appoint an interpreter resulted in the denial of his constitutional rights to due process and to confront his accusers. According to appellant, he is totally deaf in one ear, has limited hearing in his other ear and can read lips only when the pace of the conversation is slow. At his trial, he argues, the pace of conversation was increased so that he could not follow what was being said without the aid of a sign language interpreter. The Commonwealth maintains that, because appellant admits to having some hearing and being able to read lips, he does not meet the requirements for appointment of an interpreter under 42 Pa.C.S. § 8701. The Commonwealth argues further that appellant never made a request for an interpreter during his trial and did not otherwise attempt to apprise the trial court that he was having difficulty understanding the proceedings. Finally, the Commonwealth contends, the record discloses that appellant was able to communicate with counsel and the court during trial. Therefore, the Commonwealth argues, the trial court did not abuse its discretion by failing sua sponte to appoint an interpreter to assist appellant at trial.

The provisions of 42 Pa.C.S. § 8701, in pertinent part, are as follows:

§ 8701. Interpreters for the deaf

....

(b) Criminal proceedings.--In any criminal proceeding in which a defendant is deaf the court shall appoint an interpreter to assist the defendant throughout the proceeding.

....

(d) Definitions.--As used in this section the following words shall have the meanings given to them in this subsection:

"Deaf." Persons who are deaf or whose hearing is so impaired that they are unable to understand or communicate the spoken English language.

"Interpreter." A person qualified and trained to translate for or communicate with deaf persons. Any person certified by the National or Local Registry of Interpreters for the Deaf or similar registry shall be considered qualified for the purposes of this section.

42 Pa.C.S. § 8701(b) and (d).

Webster's Third New International Dictionary (1965) defines "deaf" as "lacking or deprived of the sense of hearing either wholly or in part: unable to perceive sounds: having a sense of hearing that is inadequate for the purposes of daily living." Id. at 580. Similarly, Black's Law Dictionary (5th ed. 1979) defines a "deaf person" as "[a]ny person whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone." Id. at 359. Therefore, we reject the Commonwealth's initial suggestion that a person who has a limited ability to hear, or who has some ability to read lips, is automatically excluded from the purview of section 8701. The basic inquiry must focus upon whether a defendant with a hearing impairment requires an interpreter in order to receive a trial which is fundamentally fair. See: United States v. Gallegos-Torres, 841 F.2d 240, 242 (8th Cir.1988); State v. Hernandez, 120 Idaho 785, 788, 820 P.2d 380, 383 (1991).

As a general rule, "the determination of whether an interpreter is warranted in a particular case is within the sound discretion of the [trial] court." 23A C.J.S., Criminal Law, § 1152, at p. 12. See: Commonwealth v. Riley, 354 Pa.Super. 422, 424, 512 A.2d 22, 23 (1986); Commonwealth v. Carillo, 319 Pa.Super. 115, 127, 465 A.2d 1256, 1262 (1983). See also: United States v. Markarian, 967 F.2d 1098, 1104 (6th Cir.1992), cert. denied, 507 U.S. 942, 113 S.Ct. 1344, 122 L.Ed.2d 726 (1993); Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.1989); United States v. Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir.1985), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985); United States v. Martinez, 616 F.2d 185, 188 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981). The discretion of the trial court, however, "is to determine the factual question of whether an interpreter is needed; a trial court does not have discretion to decide whether a defendant who needs an interpreter has a legal entitlement to one." State v. Neave, 117 Wis.2d 359, 364, 344 N.W.2d 181, 183 (1984). Thus,

where the court is put on notice that a defendant has difficulty understanding or speaking the English language, it must "make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be." Where, on the other hand, no request for an interpreter has been made and the defendant appears to comprehend the nature of the proceedings and the charges against him, the trial court does not abuse its discretion by proceeding without appointing an interpreter.

People v. Navarro, 134 A.D.2d 460, 461, 521 N.Y.S.2d 82, 83 (1987) (citations omitted). See also: Luna v. Black, 772 F.2d 448, 451 (8th Cir.1985); United States v. Carrion, 488 F.2d 12, 14-15 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974); United States ex rel. Negron v. State of New York, 434 F.2d 386, 390-391 (2d Cir.1970); Chao v. State, 604 A.2d 1351, 1362 (Del.1992); State v. Neave, supra at 373-77, 344 N.W.2d at 188-189; People v. Atsilis, 60 Mich.App. 738, 739, 231 N.W.2d 534, 535 (1975). "[A] defendant does not necessarily lose his right to an interpreter by not asserting it. It depends on the facts in each case as to whether the trial court was effectively alerted to the need for an interpreter." State v. Neave, supra at 368, 344 N.W.2d at 185. Compare: State v. Natividad, 111 Ariz. 191, 194, 526 [433 Pa.Super. 525] P.2d 730, 733 (1974) and People v. Sepulveda, 412 Mich. 889, 313 N.W.2d 283 (1981) with People v. Ramos, 26 N.Y.2d 272, 309 N.Y.S.2d 906, 258 N.E.2d 197 (1970) and State v. Woo Won Choi, 55 Wash.App. 895, 900-04, 781 P.2d 505, 508-509 (1989).

Although we have found no Pennsylvania appellate court decisions which have examined the right of a deaf person to an interpreter under section 8701(b), the Pennsylvania Supreme Court, in Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976), addressed the analogous situation of a defendant's right to an interpreter because of difficulty in understanding or speaking the English language. There, the Supreme Court spoke as follows:

A defendant's ability to use an interpreter 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. See United States ex rel. Negron v. State of New York, 434 F.2d 386 (2d Cir.1970); United States ex rel. Navarro v. Johnson, 365 F.Supp. 676, 681 n. 3 (E.D.Pa.1973); see generally Annotation, Right of Accused to Have Evidence or Court Proceedings Interpreted (hereinafter "Annotation"), 36 A.L.R.3d 276 (1971). The use of an interpreter may also be necessary to protect appellant's right to testify in his own behalf. See United States v. Carrion, 488 F.2d 12 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974). As the Court of Appeals stated in Carrion:

"If the defendant takes the stand in his own behalf, but has an imperfect command of English, there...