Com. v. Lemo, E.
Com. v. Lemo, E. No. 1437 WDA 2015
| Pa. Super. Ct. | Aug 11, 2017Background
- Defendant Esad Lemo, a Bosnian immigrant with limited spoken English and who is essentially illiterate in English, was convicted of first-degree murder for intentionally driving his car into his estranged wife and sentenced to life without parole in 2009.
- During pretrial and trial proceedings translators were used; record evidence showed psychologists diagnosed borderline/mild intellectual disability and disagreed about his capacity to knowingly waive Miranda rights.
- Direct appeal affirmed the conviction in 2011 and the Pennsylvania Supreme Court denied allowance of appeal in 2012; the judgment became final on August 30, 2012 (expiration of certiorari period).
- Lemo filed a pro se PCRA petition on August 1, 2014 (facially untimely under the one-year rule), assisted informally by a fellow inmate; appointed PCRA counsel filed a Turner/Finley letter and sought to withdraw; the PCRA court issued a Rule 907 notice and dismissed the petition without an evidentiary hearing.
- Lemo argued his filing met PCRA timeliness exceptions based on (1) new facts (lack of notice of finality because of language/illiteracy) and (2) governmental interference (failure to provide interpreter/services during appellate/post-conviction processes); the Commonwealth acknowledged the factual issues might merit further review.
- The Superior Court vacated the PCRA dismissal and remanded for an evidentiary hearing, concluding genuine issues of material fact exist regarding whether Lemo timely invoked a statutory exception to the PCRA time bar.
Issues
| Issue | Lemo's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether appointed PCRA counsel complied with Turner/Finley obligations (adequate review and client communication) | Counsel failed to consult Lemo, filed no-merit letter quickly, and communicated only in English despite Lemo's language/illiteracy | Did not dispute need for review but argued circumstances warrant further factfinding | Court did not decide merits; remanded for hearing so Lemo can plead/prove claims and adequacy of counsel can be evaluated in context |
| Whether court provided adequate notice/communication of dismissal and post-withdrawal rights given Lemo's language limitations | Court sent orders in English; no interpreter or translation provided, impeding Lemo's ability to pursue relief | Commonwealth acknowledged factual concerns and supported further review | Court found factual disputes about notice and communications and ordered evidentiary hearing |
| Whether Lemo meets the "new facts" exception (42 Pa.C.S. §9545(b)(1)(ii)) to overcome PCRA one-year time bar | Lemo lacked comprehension of appellate/post-conviction status due to illiteracy and no translations; therefore he could not know judgment was final and filed within 60 days after learning relevant facts | Commonwealth conceded the situation may warrant inquiry and remand for proof | Court held there are genuine issues of material fact on whether the new-facts exception applies; remanded for evidentiary hearing |
| Whether governmental interference exception (42 Pa.C.S. §9545(b)(1)(i)) applies because officials failed to provide interpreter/notice post-trial | Failure to provide interpreter or translated notices during appellate/post-conviction stages prevented timely filing | Commonwealth agreed factual development is appropriate and did not firmly oppose remand | Court found sufficient factual dispute about possible governmental interference to require a hearing |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda waiver standards)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (standards for counsel filing no-merit letter and withdrawal)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures for no-merit/withdrawal filings)
- Commonwealth v. Wiley, 966 A.2d 1153 (Pa. Super. 2009) (remand for pleading/proof where competency and representation issues warrant leeway)
- Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004) (limits on equitable tolling and PCRA time-bar principles)
- Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. 2015) (PCRA timeliness is jurisdictional)
- Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999) (PCRA does not permit equitable tolling)
- Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003) (courts cannot create ad hoc equitable exceptions to PCRA time bar)
- Commonwealth v. Taylor, 933 A.2d 1035 (Pa. Super. 2007) (Rule 907 dismissal standard: no genuine issue of material fact)