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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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Commonwealth v. Lemo, 1076 WDA 2009, unpublished mem.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).



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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)


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“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.




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       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)


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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.




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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).




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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.



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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


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               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




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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.



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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)

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(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

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         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


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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.”).



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      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.

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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.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2017




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