Com. v. Lemo, E. ( 2017 )

J-S16003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ESAD LEMO
Appellant No. 1437 WDA 2015
Appeal from the PCRA Order April 13, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013042-2006
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED AUGUST 11, 2017
Esad Lemo appeals from the April 13, 2015 order entered in the
Allegheny County Court of Common Pleas dismissing as untimely his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-46. Because we conclude that issues of material fact exist as to
whether Lemo’s untimely filed petition meets a time-bar exception, we
vacate the order and remand for an evidentiary hearing.
While this case has a long and complicated procedural history, the
facts of the underlying offense are straightforward.
Succinctly, [Lemo] engaged in a pattern of physical and
sexual abuse of his wife during their marriage. After she
left him and filed for divorce, [Lemo] drove to her
residence, observed her on the street, made a U-turn, and
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S16003-17
then deliberately drove his car into his wife and propelled
her against a wall, instantly killing her.
Commonwealth v. Lemo, 1076 WDA 2009, unpublished mem. at 1
(Pa.Super. filed Oct. 6, 2011) (affirming Lemo’s conviction on direct appeal).
After taking him to a local hospital for medical evaluation, police
questioned Lemo. N.T., 1/21-1/22/09, at 9 (“N.T. Supp.”). Lemo is a
Bosnian immigrant who apparently neither reads nor writes the English
language and whose spoken English is less than rudimentary; accordingly,
police arranged for a local Serbo-Croatian immigrant to translate the reading
of Lemo’s Miranda1 rights and the subsequent interrogation. Id. at 7, 10.
After waiving his rights, Lemo told police that he had blacked out at the time
of the incident. Id. at 51. When confronted with another prior statement
that the car’s brakes had failed, Lemo admitted to striking his wife with the
car. Id. at 52-53.
Before his preliminary hearing, Lemo filed a motion seeking
involuntary commitment to a mental health facility. On August 31, 2006, a
judge of the Court of Common Pleas denied the petition. The next day, the
magisterial district court held Lemo’s preliminary hearing and bound Lemo’s
case over on the single charge of criminal homicide.
On December 7, 2006, Lemo filed a second petition for involuntary
commitment to a mental health facility. On December 14, 2006, the trial
____________________________________________
1
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J-S16003-17
court granted this petition, committing Lemo to the care of Mayview State
Hospital for 90 days. Throughout pre-trial discovery and motions practice, a
number of physicians and psychologists evaluated Lemo, using interpreters
to ensure that Lemo could effectively participate in these evaluations. Both
the Commonwealth and Lemo amassed a large amount of information on his
mental state in anticipation of a diminished-capacity defense, which
indicated that, at a minimum, Lemo had borderline mental retardation.
On January 8, 2009, Lemo filed an omnibus pre-trial motion, which
included a notice of mental infirmity defense and a motion to suppress
statements police elicited from Lemo through the interpreted interrogation.
With respect to the motion to suppress, Lemo asserted that he did not
knowingly, intelligently, and voluntarily waive his Miranda rights. On
January 21 and January 22, 2009, the trial court held a suppression
hearing,2 after which it denied the motion. While it recognized that Lemo fell
____________________________________________
2
Lemo was provided a Serbo-Croatian interpreter for both days of the
suppression hearing. During the hearing, the prosecutor observed that the
interpreter was not always giving a word-for-word translation. N.T. Supp. at
21-22. We note, however, that the courtroom interpretation standard does
not require interpreters to give a word-for-word translation, but rather “a
complete and accurate interpretation, without altering, omitting, or adding
anything to what is stated or written, and without embellishment or
explanation.” Rule 2, Pennsylvania Rules of Professional Conduct for
Judiciary Interpreters, 204 Pa.Code Schedule F. The comment to Rule 2
provides further guidance:
The interpreter has a twofold duty: (1) to ensure that
the proceedings in English reflect precisely what was said
by the limited English proficient (LEP) person . . .; and (2)
(Footnote Continued Next Page)
-3-
J-S16003-17
“within the purview of mental retardation,” the trial court concluded that this
condition “does not mean that he cannot understand what his rights are . . .
[or] that he is prohibited from waiving those particular rights.” N.T. Supp.
at 176-77.
_______________________
(Footnote Continued)
to place the LEP . . . on an equal footing with those who
understand English. This creates an obligation to conserve
every element of information contained in a source
language communication when it is rendered in the target
language.
Therefore, interpreters are obligated to apply their best
skills and judgment to preserve faithfully the meaning of
what is said in court, including the style and register of
speech. Verbatim or literal oral interpretations are not
appropriate when they distort the meaning of the source
language, but every spoken statement, even if it appears
non-responsive, obscene, rambling or incoherent should be
interpreted. This includes apparent misstatements.
Id. at cmt.
At the hearing, the Commonwealth played the tape recording of
Lemo’s police interrogation. N.T. Supp. at 40-56. On cross-examination,
the translator the police had secured for the interrogation stated that she
summarized some of Lemo’s statements, rather than translating them word-
for-word. Id. at 61-63. Likewise, she agreed that her translations of the
Miranda warnings were not all word-for-word. Id. at 64-66. The
Commonwealth presented its own translator, who testified that Lemo
received an accurate translation of his rights, the questions asked, and
Lemo’s own statements. Id. at 68-75. The Commonwealth also called a
licensed psychologist and a physician, who concluded that while Lemo had
mild mental retardation, Lemo understood his Miranda rights. Lemo also
presented evidence from a psychologist, who in contrast concluded that
Lemo “was not capable of providing a knowing, intelligent, and voluntary
waiver of his rights at the time of his interrogation.” Id. at 146.
-4-
J-S16003-17
At the end of the suppression hearing, Lemo’s counsel told the trial
court that Lemo was willing to waive his right to a jury trial and proceed
non-jury. Id. at 181. Lemo’s counsel explained that he went “through the
entire waiver with [Lemo] over in the jail in which [he] explained everything
in great detail with [his] translator.” Id. at 184. Counsel further explained
that he “spent . . . at least an hour just on the waiver for the non[-]jury trial
. . . [and he was] prepared to do the waiver again.” Id.
Lemo’s trial commenced on March 12, 2009.3 At trial, Lemo presented
a diminished-capacity defense, arguing that he was incapable of forming the
____________________________________________
3
Before taking any testimony, Lemo’s counsel and the trial court
discussed Lemo’s waiver of his right to a jury trial:
[LEMO’S COUNSEL]: Thank you, Your Honor. I have
discussed going jury and non-jury with my client and we
had a very long session with him over in the Allegheny
County jail. As the Court is aware, we have demonstrated
that he has been classified as mentally retarded,
borderline, and we have gone through in great detail,
spent a lot of time on it, and we’re prepared to do the
waiver at the present time.
THE COURT: Do we have the colloquy?
[LEMO’S COUNSEL]: Yes, we do. Your Honor, my client
does not read English and his ability to read is very
limited. I mean, I can ask him to initial that particular
form, but it is not like he is reading it and initialing what
he has read. He is answering my questions. If you want
me to have him initial the form --
THE COURT: Initial the form.
(Footnote Continued Next Page)
-5-
J-S16003-17
intent required for murder, let alone premeditation. On March 16, 2009, the
trial court found Lemo guilty of first-degree murder. On March 20, 2009, the
trial court sentenced Lemo to life in prison without the possibility of parole.
On March 27, 2009, Lemo filed a post-sentence motion, challenging
the weight of the evidence with respect to his intent to kill. Following a
hearing, on May 27, 2009, the trial court denied the motion. Lemo was
appointed new appellate counsel and timely appealed to this Court. On
October 6, 2011, we affirmed Lemo’s judgment of sentence. On November
_______________________
(Footnote Continued)
[LEMO’S COUNSEL]: All right. So what I will do if we’re
going to do it that way then I will read it word for word
and a translator will translate it word for word.
THE COURT: Okay. Take a seat.
N.T. Trial, 3/12/09, at 4-5. After a brief recess, the following exchange
occurred:
[LEMO’S COUNSEL]: Your Honor, I do not believe that my
client understands every little word that is in this waiver
form. The only way that my client understands his right to
a jury trial and can do an effective waiver is if I take each
paragraph and explain it to him, simplify it for him, go
over it, over and over with him to the point where I believe
that he understands that is how he understands this. For
me to present this to the Court and say that he
understands every word that is actually in this waiver form
is not really what I am representing.
THE COURT: I understand.
Id. The trial court then, through Lemo’s interpreter, colloquied Lemo on his
right to a jury trial. Lemo stated on the record that he “want[ed] to go
before the judge, not a jury.” Id. at 8.
-6-
J-S16003-17
9, 2011, Lemo filed a petition for allowance of appeal, which the
Pennsylvania Supreme Court denied on June 1, 2012. Notably, the record
does not indicate whether appellate counsel notified Lemo that his judgment
of sentence was affirmed or when his petition for allowance of appeal was
denied.
On August 1, 2014, Lemo filed a pro se PCRA petition with the
assistance of Alex Pakalinsky, a fellow inmate at the State Correctional
Institute-Rockview (“SCI-Rockview”).4 On January 27, 2015, Lemo sought
leave to supplement his PCRA petition. On March 4, 2015, the PCRA court
issued an order appointing Charles R. Pass III, Esquire, to represent Lemo
for the PCRA proceedings and granting Lemo until May 4, 2015 to amend his
PCRA petition. On April 9, 2015, PCRA counsel filed a motion for leave to
withdraw and enclosed a Turner/Finley5 letter.6 Attorney Pass served
____________________________________________
4
As a part of his brief to this Court, Lemo attached an affidavit given
by Pakalinsky on January 6, 2017. Pakalinsky’s affidavit explains how he
met and became involved in Lemo’s case, how Lemo’s linguistic barriers
severely hampered Pakalinsky’s interactions with Lemo, and the lack of
communication between Lemo and his PCRA counsel. We cannot consider
the averments in Pakalinsky’s affidavit, as it is not contained in the certified
record. See Commonwealth v. Ross, 57 A.3d 85, 96 n.11 (Pa.Super.
2012) (“[D]ocuments [that] were never authenticated or admitted into
evidence . . . may not be considered [on] appeal.”). Our decision, however,
does not prevent Lemo from presenting the affidavit or Pakalinsky’s
testimony at his evidentiary hearing.
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-7-
J-S16003-17
these documents on both Lemo and the Commonwealth, providing Lemo
with transcripts of his pre-trial, trial, sentencing, and post-sentencing
proceedings.7 On April 13, 2015, the PCRA court issued a notice of intent to
dismiss the PCRA petition without a hearing under Pennsylvania Rule of
Criminal Procedure 907. On August 17, 2015, the PCRA court dismissed the
PCRA petition. On August 27, 2015, Lemo filed a timely notice of appeal. 8
On July 14, 2015, before the PCRA court dismissed the petition, Lemo
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Western District of Pennsylvania. On
August 10, 2015, the district court appointed the Federal Public Defender’s
Office to represent Lemo in his habeas corpus action. On November 9,
2015, the superintendent of SCI-Rockview and the Attorney General of the
Commonwealth of Pennsylvania (together, “respondents”) filed a motion to
stay Lemo’s petition pending resolution of his state court litigation. The
district court granted respondents’ motion on November 16, 2015, staying
_______________________
(Footnote Continued)
6
The bulk of Lemo’s brief centers on Attorney Pass’s failure to
communicate with Lemo regarding his PCRA petition and the relative
quickness with which Attorney Pass filed a petition to withdraw and
Turner/Finley letter following his appointment. See Lemo’s Br. at 20-36.
7
All of the materials Attorney Pass provided to Lemo were in English.
8
Lemo’s notice of appeal was docketed despite the absence of a
certificate of service. The clerk of courts notified Lemo of this error on
September 3, 2015, and Lemo corrected the error by filing the certificate on
September 11, 2015.
-8-
J-S16003-17
the habeas corpus proceeding. On February 18, 2016, Lemo filed a motion
to expand the appointment of Federal Public Defender to the instant appeal.
On February 22, 2016, the district court granted Lemo’s motion, and
Assistant Federal Public Defender Candice Cain, Esquire, entered her
appearance before this Court on March 7, 2016.
Before Attorney Cain entered her appearance, on October 16, 2015,
the trial court ordered Lemo to file and serve a Rule 1925(b) statement
within 21 days. Lemo failed to do so and, on January 20, 2016, the trial
court issued a Rule 1925(a) opinion suggesting that this Court find Lemo’s
issues waived for his failure to file a Rule 1925(b) statement. On March 7,
2016, the same day Attorney Cain entered her appearance, Lemo filed a
petition to remand the matter to the trial court so Lemo could file a Rule
1925(b) statement. On March 18, 2016, we remanded this matter, allowing
Lemo to file and serve a Rule 1925(b) statement within 45 days of our order
and directing the trial court to prepare a new Rule 1925(a) opinion within 30
days of receiving Lemo’s statement. On May 2, 2016, Lemo filed his Rule
1925(b) statement. On August 26, 2016, the trial court filed its Rule
1925(a) opinion.
Lemo raises six issues on appeal:
I. Did PCRA counsel comply with Finley when he filed a
no-merit brief nineteen business days after
appointment and two days after being informed that
[Lemo] had no transcripts and, on account of his
language deficits and illiteracy, did not participate in
the identification of claims in the pro se petition and
-9-
J-S16003-17
could not understand counsel’s correspondence
because it was in English?
II. Did PCRA counsel comply with Finley when he only
informed [Lemo] of his post-withdrawal rights in
written English after being expressly informed that
[Lemo] could not understand English in any form and
after counsel averred that he “thoroughly” reviewed
a record replete with references to [Lemo]’s mental
retardation, language deficits, and illiteracy?
III. Did PCRA counsel comply with Finley when he
declared meritless a claim for ineffective assistance
of trial counsel for conducting an inadequate
investigation where PCRA counsel did not consult
with [Lemo] or attempt to investigate anything?
IV. Did the PCRA court comply with Finley when it
dismissed counsel two days after he filed the Finley
letter and when it dismissed the petition “for all the
reasons” in the Finley letter and did not reference
any independent review of the record?
V. Did the PCRA court adequately inform [Lemo,] a pro
se defendant[,] of its intent to dismiss his petition
where the court sent the order in English despite
having known for years that [Lemo] was mentally
retarded, illiterate, and required an interpreter at
every stage of his prosecution?
VI. Did the pro se PCRA petition qualify for any of the
statutory timeliness exceptions where [Lemo] was
never notified that his conviction was final, where
neither his attorneys, courts nor the prison provided
interpreter or translation services and where [Lemo]
was diligent in pursuing his rights to the extent he is
even capable of doing so?
Lemo’s Br. at 3-4.
“Our standard of review from the grant or denial of post-conviction
relief is limited to examining whether the PCRA court’s determination is
- 10 -
J-S16003-17
supported by the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
Preliminary, we must address Lemo’s sixth issue, where he asserts
that that he “can make a showing that his petition is timely filed.” Lemo’s
Br. at 40. While acknowledging that his petition is facially untimely, Lemo
asserts that his petition meets an enumerated exception to the PCRA time
bar.
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition,
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking [] review.” 42 Pa.C.S.
§ 9545(b)(3).
Lemo’s judgment of sentence became final on August 30, 2012, when
the time to seek review in the United States Supreme Court expired. 9 He
had one year from that date, or until August 30, 2013, to file a timely PCRA
____________________________________________
9
Lemo had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the United States Supreme Court. See U.S. S. Ct. R. 13.
- 11 -
J-S16003-17
petition. Therefore, as Lemo admits, his current petition, filed on August 1,
2014, is facially untimely.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges and proves
one of the following three statutory exceptions:
(i) the failure to raise the claim previously was the result
of interference by government officials with the
presentation of the claim in violation of the Constitution or
laws of this Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175-76.
It is well-settled that “a PCRA petition is not subject to the doctrine of
equitable tolling,” Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999),
and the time for filing a PCRA petition “can be extended only to the extent
that the PCRA permits it to be extended, i.e., by operation of one of the
statutorily enumerated exceptions to the PCRA time-bar,” Commonwealth
v. Cruz, 852 A.2d 287, 292 (Pa. 2004). “[T]he PCRA confers no authority
upon [any Pennsylvania court] to fashion ad hoc equitable exceptions to the
PCRA time-bar in addition to those exceptions expressly delineated in the
Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)
- 12 -
J-S16003-17
(quotation omitted). In addition, when invoking an exception to the PCRA
time bar, the petition must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Lemo argues that two of the time-bar exceptions apply to his petition.
First, Lemo asserts that his petition meets the new-facts exception of section
9545(b)(1)(ii). According to Lemo, his inability to understand written
English and general illiteracy prevented him from understanding any written
communications “from the time of his sentencing in 2009 until the time that
[the Federal Public Defender] was appointed to . . . Lemo’s federal habeas
matter in 2015 [because] no attorney communicated with . . . Lemo in
Bosnian, and no legal letters or documents were provided to him in his
native language.” Lemo’s Br. at 43. Thus, Lemo asserts that neither direct
appeal counsel nor the courts provided him notice “that his appeal had been
finalized in any form that was comprehensible to him.” Id. at 44. Further,
Lemo argues that he acted with diligence once Pakalinsky determined that
Lemo had not filed a PCRA petition. Lemo argues that because he
did not know that his direct appeal had been finalized, he
could not have ascertained this fact by the exercise of due
diligence previously, and he filed his PCRA petition within
60 days [of] learning (to the extent he could given his
limited ability to communicate with Mr. Pakalinsky) the
basis for his claims, the “unknown facts” exception in 42
Pa.C.S. § 9545(b)(1)(ii) applies.
Id. at 45.
In addition, Lemo asserts that he meets the government-interference
exception to the time bar. Lemo argues that
- 13 -
J-S16003-17
despite knowing that . . . Lemo had limited ability to speak
or understand English, and despite providing an interpreter
to him during all of the proceedings in the trial court, the
court failed to provide that same assistance during the
direct appeal and post-conviction proceedings. This Court,
too, despite its access to and review of the complete trial
record did not provide interpreter services during direct
appeal proceedings. This failure interfered with . . .
Lemo’s ability to timely file his PCRA petition because he
was simply unaware of the status of those proceedings and
had no way of knowing without an interpreter that his
direct appeal proceedings had been finalized.
Id. at 46.
In response, the Commonwealth states that while the PCRA does not
allow for equitable tolling, Lemo’s case may present a situation “where it is
appropriate to find that the ‘governmental interference’ statutory exception
is applicable, conferring jurisdiction on the court below and [this] Court.”
Cmwlth.’s Br. at 16. Further, the Commonwealth suggests that
the primary difficulty in going forward with [Lemo’s] case
as it currently stands grows from the matter raised in the
final claim in [Lemo’s b]rief . . .: that [Lemo’s] limited
ability to speak or understand English, and the fact that,
once the trial had ended, there were no further efforts to
communicate with him in his native language, may have
prevented him from timely exercising his post-conviction
rights. Case law suggests that this set of circumstances
may, in addition, have resulted in a violation of [Lemo’s]
due process rights.
Id. at 17.
In addition, the Commonwealth notes that on prior occasions, we
have, in accordance with Pennsylvania Supreme Court precedent, “allowed
PCRA petitioners some leeway in the preservation of claims in their petitions
when [the Court] determined that the circumstances demanded it.” Id. at
- 14 -
J-S16003-17
23 (quoting Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa.Super.
2009)). The Commonwealth notes that in Wiley, where we found that
Wiley’s competency was in question and that he was “chronically
unrepresented by appointed counsel,” Wiley, 966 A.2d at 1158, “the
appropriate remedy was to remand to the PCRA court to give counsel the
opportunity to ‘plead and prove’ that Wiley could satisfy one of the
exceptions to the PCRA’s timeliness requirements,” Cmwlth.’s Br. at 23
(citing Wiley, 966 A.2d at 1159). The Commonwealth, while noting that
Lemo’s “situation does not squarely fit this precedent, . . . believes it may
present ‘circumstances’ meriting further review below.” Cmwlth.’s Br. at 23.
In its Rule 1925(a) opinion, the trial court summarily concluded that
Lemo’s PCRA petition was untimely and did not meet a time-bar exception:
It is . . . abundantly clear that the PCRA petition was not
filed within the one-year limitation set forth by our
legislature in 42 Pa.C.S.A. §[ ]9545. Lemo’s PCRA petition
was required to be filed by August 30, 2013 – one year
after the expiration of the ninety-day period for any timely
filing of a petition for writ of certiorari with the United
States Supreme Court. The petition was not filed until
August 1, 2014, and is clearly untimely.
It is equally clear that Lemo does not fall within the
three exceptions to the PCRA statute of limitations.
Accordingly, as PCRA counsel observed, Lemo’s petition
was untimely. A review of the record fully supports that
conclusion. Lemo’s first three issues, which are pled in a
boilerplate fashion, provide no basis to challenge this
Court’s dismissal of his PCRA petition and granting of
counsel’s motion to withdraw.
Opinion, 8/26/16, at 5-6 (“1925(a) Op.”).
- 15 -
J-S16003-17
Based on the unique circumstances of this case, we conclude that the
trial court erred in summarily concluding, without a hearing, that Lemo’s
petition did not meet one of the PCRA time-bar exceptions. While we do not
address the merits of Lemo’s time-bar arguments, we recognize that
extraordinary circumstances exist that, in the interests of justice, require us
to provide Lemo the opportunity to plead and prove that his petition meets
either the government-interference or new-facts exception.
The record shows that Lemo’s virtually complete inability to read or
understand English, along with his limited mental capacity, undoubtedly
hampered his interactions with the justice system. While our Supreme Court
has heavily scrutinized PCRA petitioners’ claims of mental infirmity as a
means to circumvent the time bar, see generally Commonwealth v.
Cruz, 852 A.2d 287 (Pa. 2004), no Pennsylvania court has considered the
effect of anything like the interplay between Lemo’s mental retardation and
his limited linguistic capabilities. Accordingly we conclude that Lemo must
be given an opportunity to present evidence and complete the record in
support of his claim that he meets an exception to the PCRA time bar.
Given the unique facts described above, along with the procedural
history of Lemo’s case, we conclude that the PCRA court erred in dismissing
Lemo’s PCRA petition without a hearing. We agree with the Commonwealth
that, much like Wiley, the circumstances of Lemo’s case demand “leeway in
the preservation of claims in [his] petition[].” Wiley, 966 A.2d at 1158
(quoting Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super.
- 16 -
J-S16003-17
2007)). Dismissal of PCRA petitions pursuant to Rule 907 should be limited
to situations where “there is no genuine issue concerning any material fact,
the petitioner is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings.” Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007). Here, our review of the
record reveals several genuine issues of material fact, including: (1)
whether Lemo knew that his judgment of sentence was finalized after the
Pennsylvania Supreme Court denied his petition for allowance of appeal; (2)
if so, when Lemo learned of the denial; (3) whether Lemo could have
ascertained this information earlier through the exercise of due diligence,
and (4) whether Lemo filed his pro se PCRA petition within 60 days of
learning that his judgment of sentence was final.
Accordingly, we vacate the PCRA court’s order and remand this matter
for an evidentiary hearing, where Lemo will have the opportunity to plead
and prove that his petition meets an exception to the PCRA time bar.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
- 17 -
J-S16003-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2017
- 18 -