J-E03006-18
2019 PA Super 265
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSTY LEE BRENSINGER :
:
Appellant : No. 212 EDA 2017
Appeal from the PCRA Order December 23, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003251-1997
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.
OPINION BY PANELLA, J.: FILED AUGUST 30, 2019
Appellant, Rusty Lee Brensinger, appeals from the order of the Lehigh
County Court of Common Pleas denying his second petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely.
Brensinger argues that his facially untimely PCRA petition was entitled to
review under the newly discovered fact exception to the PCRA’s time-bar, 42
Pa.C.S.A. § 9545(b)(1)(ii), due to the pro se prisoner exception set forth by
our Supreme Court in Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017).
After our review of the parties’ arguments, as well as the amicus brief filed in
support of Brensinger’s position, we conclude that Brensinger is entitled to the
pro se prisoner exception under Burton because he was unrepresented from
2008 until 2015. However, because the PCRA court did not explicitly determine
when the relevant facts became part of the public record, we cannot determine
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whether Brensinger’s petition is entitled to review under the newly discovered
facts exception. Accordingly, we are constrained to reverse and remand for a
new hearing on the timeliness of Brensinger’s petition.
On September 30, 1997, Brensinger was arrested and charged with the
April 29, 1997 death of 16-month old Brittany Samuels. The case proceeded
to a jury trial, wherein the following evidence was presented. Brittany’s
mother, Michelle Samuels, testified that on April 26, 1997, Brittany fell from
a kitchen chair and hit her head on the floor. See Notes of Testimony (“N.T.”),
Jury Trial, 4/20/98, at 697-700. Two days later, Samuels and Brittany were
staying at Brensinger’s house, Samuel’s then-boyfriend, when Samuels
decided to take a shower. See id., at 745-746. Samuels placed Brittany in a
portable crib in Brensinger’s bedroom and proceeded downstairs to the
bathroom. See
id., at 740-741, 745-746. A few minutes into her shower,
Brensinger began “banging on the door telling [her] to come out because there
was something wrong with Brittany.”
Id., at 747.
Brensinger testified that he was watching television while Samuels was
showering until he heard a thump come from his bedroom. See N.T., Jury
Trial, 4/27/98, at 1804-1806, 1809. When he went to investigate, he
discovered Brittany lying motionless on the bedroom floor next to the portable
crib. See id., at 1810, 1816. After alerting Samuels, he began CPR on Brittany
and instructed Samuels to call 911. See id., at 1812-1813.
Brittany was taken by ambulance to Lehigh Valley Hospital. See id., at
1818. The pediatrician on duty, Dr. Michael Barone, examined Brittany
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approximately 15-20 minutes after her arrival and observed she had unequal
pupils and retinal hemorrhaging. See N.T., Jury Trial, 4/17/98, at 429-430,
439, 441-442. Believing the severity of Brittany’s injuries to be inconsistent
with falls from the kitchen chair and the portable crib, Dr. Barone contacted
Child Protective Services with his suspicion that her injuries were caused by
another person. See id., at 455, 508-509. Brittany was transferred to the
Children’s Hospital of Philadelphia, and she ultimately died on April 29, 1997.
See id., at 475-76.
At trial, the Commonwealth presented three experts who opined that
Brittany’s death was a result of “shaken baby syndrome.”1 See N.T., Jury
Trial, 4/21/98, at 987; 4/22/98, at 1392, 1545-46. All of these experts argued
that Brittany’s death was very unlikely to have been caused by the two short
falls Brittany had taken in the days before her death. See N.T., Jury Trial,
4/21/98, at 974; 4/22/98, at 1392; 1545-46. The defense did not present any
expert testimony to rebut the experts’ opinions about Brittany’s cause of
____________________________________________
1 “Shaken baby syndrome,” also known as “shaken-impact syndrome” or
“abusive head trauma,” refers to a series of brain injuries “that result from
violent shaking of a small child whose weak neck muscles permit tremendous
acceleration and deceleration movement of the brain within the skull.”
Commonwealth v. Passarelli, 789 A.2d 708, 715 (Pa. Super. 2001)
abrogated on other grounds by Commonwealth v. Spruill,
80 A.3d 453 (Pa.
2013). The series of injuries commonly identified as markers of shaken baby
syndrome include subdural hemorrhage, retinal hemorrhage, and brain
dysfunction. See N.T., PCRA Hearing, 5/2/16, at 172 (Dr. Hua’s description of
the triad of symptoms once considered dispositive of a shaken baby syndrome
diagnosis). “A diagnosis of ‘shaken-impact syndrome’ simply indicated that a
child found with the type of injuries described above has not suffered those
injuries by accidental means.” Passarelli,
789 A.2d at 715.
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death, but instead argued there was no proof Brensinger caused her death.
Following the close of evidence, the jury convicted Brensinger of third-degree
murder.
On May 29, 1998, the trial court sentenced Brensinger to 20 to 40 years’
imprisonment. A panel of this Court upheld Brensinger’s conviction, and our
Supreme Court subsequently denied allocatur on May 30, 2000. See
Commonwealth v. Brensinger, 3640 PHL 1998 (filed Dec. 1, 1998)
(unpublished memorandum), appeal denied 1259 MAL 1999 (May 30, 2000).
Brensinger did not seek review with the United States Supreme Court.
Brensinger was represented throughout trial and the direct appeal by the same
attorney, hereinafter referred to as “trial counsel.”
In 2001, Brensinger filed his first counseled PCRA petition asserting
various claims of ineffective assistance of trial counsel.2 Following an
evidentiary hearing, the PCRA court denied the petition, and a panel of this
Court affirmed. See Commonwealth v. Brensinger, 989 EDA 2002 (Pa.
____________________________________________
2 Through his claims of ineffective assistance, Brensinger raised arguments
related to the shaken baby syndrome diagnosis. See PCRA Petition, 7/18/01,
at 2 ¶¶ 7-9. The PCRA precludes relief on issues that have been previously
litigated. See 42 Pa.C.S.A. § 9543(a)(3). However, we do not consider an
issue previously litigated for PCRA purposes if it relies upon different theories
and allegations than the discrete legal ground already raised and decided. See
Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005). Brensinger’s
initial claims related to trial counsel’s failure to question the Commonwealth’s
medical expert about the timing of the shaking, not the validity of the
conclusion that Brittany died from being shaken. See
id. As Brensinger’s prior
claim involving shaken baby syndrome involved markedly different theories
and allegations, we decline to find his issue previously litigated.
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Super. filed May 13, 2003) (unpublished memorandum), appeal denied, 413
MAL 2003 (Nov. 13, 2003). Attorney Louis Natali represented Brensinger for
the course of this PCRA petition. See Criminal Docket, CP-39-CR-0003251-
1997, PCRA Petition filed by Attorney Natali, 7/18/01.
On September 28, 2004, Brensinger filed a federal habeas corpus
petition in the United States District Court for the Eastern District of
Pennsylvania. The district judge denied Brensinger’s petition as untimely, and
the United States Court of Appeals for the Third Circuit denied his certificate
of appealability on February 13, 2007. Attorneys Louis Natali, Willie Pollins,
and Norris Gelman represented Brensinger for the course of this federal
petition. See Docket for the United States District Court for the Eastern
District of Pennsylvania, 2:04-cv-04570-BWK, Withdrawal of Appearance by
Attorneys Natali and Pollins, 8/26/05; Entry of Appearance by Attorney
Gelman, 8/26/05.
After the denial of his habeas corpus petition, Brensinger, with the
support of his family members, continued to seek relief. In 2008, Brensinger’s
stepfather, Anthony Tarantino, hired Attorney Burton Rose to review
Brensinger’s case. Attorney Rose advised “he didn’t think there was anything
he could do for [Brensinger].” N.T., PCRA Hearing, 7/15/16, at 12, 14, 30.
In 2009, Brensinger heard “gossip” in prison that there were
developments relating to shaken baby syndrome. See N.T., PCRA Hearing,
7/15/16, at 44. Tarantino contacted Attorney Mark Freeman who agreed to
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review Brensinger’s case. See id., at 12. Subsequently, in 2011, Brensinger
contacted the Pennsylvania Innocence Project (“PIP”).
PIP did not immediately agree to represent Brensinger, but agreed to
review his case. See id., at 33. In 2015, after obtaining Brittany’s medical
records and hiring experts to review these records, Attorney Freeman and PIP
agreed to represent Brensinger. See id., at 34. See Criminal Docket, CP-39-
CR-0003251-1997, Entries of Appearance for Attorney Freeman, Nilam Ajit
Sanghvi, Esq., Howard D. Scher, Esq., and John James Powell, Esq., 4/24/15.
In early April of 2015, Brensinger received reports from three medical
experts who concluded that any scientific evidence linking Brittany’s death to
shaken baby syndrome was invalid. Based upon these reports, Brensinger filed
his second PCRA petition on April 24, 2015.3 Through his filing, Brensinger
specifically recognized that the petition was facially untimely, but asserted his
claim met the newly discovered fact exception, 42 Pa.C.S.A. § 9545(b)(1)(ii),
to the PCRA’s time-bar and therefore met the criteria for a hearing on the
merits.4
____________________________________________
3 Brensinger amended his petition on September 11, 2015 after receiving an
additional expert opinion from Dr. Chris Van Ee, a biomedical engineer. See
Amended PCRA petition, 9/11/15 at ¶ 15 (expert concluding he could not rule
out short falls as the cause of Brittany’s death).
4 Appellant’s petition was filed by “his newly-retained pro bono attorneys,
Nilam A. Sanghvi, Mark D. Freeman, Howard D. Scher, and John J. Powell.”
PCRA Petition, 4/24/15, at 1. Sanghvi is an attorney with PIP in Philadelphia;
Freeman is an attorney with an office in Media; and Scher and Powell are
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The PCRA court held hearings centered around this timeliness exception
on May 2, 2016 and July 15, 2016. Brensinger presented testimony from his
four experts5 regarding the scientific developments surrounding shaken baby
syndrome since Brittany’s death in 1997, as well as fact witnesses who
testified about Brensinger’s diligence in obtaining representation and these
expert opinions.
Ultimately, the court determined Brensinger failed to overcome the
PCRA’s time-bar. See PCRA Court Opinion, 12/23/16, at 7. The court found
that while the expert opinions were new, the science behind the opinions was
part of the public record well before 2015. See id., at 5-7. Further, the PCRA
court concluded that because Brensinger had been represented since at least
2009, scientific developments relating to shaken baby syndrome could not be
deemed unknown to him for the purposes of meeting the newly discovered
fact exception to the PCRA’s time-bar. See id. Therefore, because Brensinger
did not prove the timeliness exception, the PCRA court denied his second
petition as untimely on December 23, 2016.
On appeal, Brensinger presented four issues for consideration:
1. Whether the PCRA court erred in determining that it did not
have jurisdiction over [] Brensinger’s PCRA petition?
____________________________________________
attorneys with Buchanan, Ingersoll & Rooney PC in Philadelphia. All counsel
represent Brensinger in the instant appeal as well.
5 At the hearing, the PCRA Court certified Dr. Chris Van Ee as an expert in
biomechanics, Dr. Julie Mack as an expert in pediatric radiology, Dr. Zhongxue
Hua as an expert in forensic pathology, and Dr. John Galaznik as an expert in
pediatrics. See N.T., PCRA Hearing, 5/2/16, at 71, 115, 167, 205.
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2. Whether jurisdiction exists because the PCRA’s timing
provisions are unconstitutionally void-for-vagueness in the
context of claims like [] Brensinger’s that are predicated upon
expert opinions applying evolving scientific principles to the
facts of the case?
3. Whether Commonwealth v. Peterkin, 722 A.2d 638 (Pa.
1998), was wrongly decided?
4. Whether Commonwealth v. Edmiston, 65 A.3d 339 (Pa.
2013), was wrongly decided?
Appellant’s Opening Brief, at 6.
A divided panel of this Court affirmed the trial court order denying relief.
However, on May 15, 2018, this Court granted Brensinger’s petition for
reargument en banc to address whether Brensinger was entitled to the pro se
prisoner exception pursuant to Commonwealth v. Burton, 158 A.3d 618
(Pa. 2017).
Our standard of review is well settled. “When reviewing the denial of a
PCRA petition, we must determine whether the PCRA court’s order is
supported by the record and free of legal error.” Commonwealth v. Smith,
181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). While we are
generally bound by a PCRA court’s credibility determinations, we apply a de
novo standard to our review of the court’s legal conclusions. See
id.
All PCRA petitions “including a second or subsequent petition, shall be
filed within one year of the date the judgment [of sentence] becomes final”
unless an exception applies. 42 Pa.C.S.A. § 9545(b)(1). The PCRA’s time
limitations are jurisdictional in nature and, as such, may not be altered or
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disregarded in order to address the merits of a petition. See Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). As the timeliness of a petition
is separate from the merits of Brensinger’s underlying claim, we must first
determine whether the PCRA petition is timely filed. See Commonwealth v.
Stokes,
959 A.2d 306, 310 (Pa. 2008).
Brensinger does not dispute that his petition, filed almost fifteen years
after his judgment of sentence became final, is facially untimely.6 See
Appellant’s Opening Brief, at 7. However, Brensinger asserts his claim merits
review because he pled, and proved, an exception to the PCRA’s one-year
time-bar in his PCRA petition. These exceptions provide:
(b) Time for filing petition. --
(1) any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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 law of the United
States;
____________________________________________
6 All parties agree that Brensinger’s judgment of sentence became final on
August 28, 2000, 90 days after our Supreme Court denied allowance of
appeal. See 42 Pa.C.S.A. § 9545(b)(3)(“[A] judgment [of sentence] becomes
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 the review.”); see also
U.S.Sup.Ct.R.13 (petition for writ of certiorari must be filed within 90 days).
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(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.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition will
be considered if it is “filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b)(2).7
Brensinger asserts he meets the requirements of 42 Pa.C.S.A. §
9545(b)(1)(ii), i.e., the newly discovered fact exception to the PCRA’s time-
bar. Specifically, Brensinger contends the expert opinions concerning
Brittany’s cause of death constitute newly discovered facts for the purposes
of section 9545(b)(1)(ii). Moreover, because Brensinger filed his petition
within 60 days of the date his experts proffered their opinions, Brensinger
asserts it was error for the trial court to conclude he did not meet the newly
discovered fact exception.
____________________________________________
7 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from 60 days to one
year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018. The
amendment applies only to claims arising one year before the effective date
of this section, i.e. December 24, 2017, or thereafter. Instantly, Brensinger’s
petition was filed in 2015. Therefore, the amendment is inapplicable to
Brensinger’s claim.
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The newly discovered fact exception “has two components, which must
be alleged and proved. The petitioner must establish that: 1) the facts upon
which the claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. See Bennett, 930 A.2d at 1272
(Pa. 2007). Due diligence requires the petitioner “take reasonable steps to
protect his own interests.” Commonwealth v. Monaco,
996 A.2d 1076, 1080
(Pa. Super. 2010) (citations omitted).
However, it does not require “perfect vigilance nor punctilious care, but
rather it requires reasonable efforts by a petitioner, based on the particular
circumstances to uncover facts that may support a claim for collateral relief.”
Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (citation
omitted). As such, “the due diligence inquiry is fact-sensitive and dependent
upon the circumstances presented.”
Id. (citation omitted). “A petitioner must
explain why he could not have obtained the new fact(s) earlier with the
exercise of due diligence.” Monaco,
996 A.2d at 1080.
In most cases, petitioners cannot claim that information of public record
is unknown in order to establish the first prong of the test. See
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006). However, our
Supreme Court recently determined that the public record presumption does
not apply to pro se prisoners. See Burton,
158 A.3d at 638 (Pa. 2017),
(“[T]he application of the public record presumption to pro se prisoners is
contrary to the plain language of subsection 9545(b)(1)(ii) and was imposed
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without any apparent consideration of a pro se prisoner’s actual access to
information of public record”). The Court clarified that “[a] pro se incarcerated
petitioner is still required to prove that the facts upon which his claim of a
timeliness exception under subsection 9545(b)(1)(ii) is based were unknown
to him and not ascertainable by the exercise of due diligence. Our decision
merely eliminates what we conclude is an unjustifiable presumption.” Id., at
638 n. 23 (emphasis in original).
Accordingly, consistent with the statutory language, in
determining whether a petitioner qualifies for the exception to the
PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii),
the PCRA court must first determine whether the facts upon which
the claim is predicated were unknown to the petitioner. In some
cases, this may require a hearing. After the PCRA court makes a
determination as to the petitioner’s knowledge, it should then
proceed to consider whether, if the facts were unknown to the
petitioner, the facts could have been ascertained by the exercise
of due diligence, including an assessment of the petitioner’s
access to public records.
Id., at 638 (internal quotation marks and footnote omitted).8
____________________________________________
8 While the controlling case law currently mandates the application of the
public record presumption in cases where a PCRA petitioner is represented by
counsel, we note that the presumption’s days appear to be numbered.
The majority opinion in Burton narrowly defined the issue before it as whether
it should apply the presumption to incarcerated pro se petitioners. See
158
A.3d at 635 n.20. Nevertheless, it began its discussion of the issue by
observing the presumption was created in a decision that cited no authority
for it. See
id., at 633. Furthermore, the presumption has no connection to the
statutory language of Section 9545(b)(1)(ii). See
id. In recognizing the
incarcerated, pro se petitioner exception, the majority concluded “however
reasonable the public record presumption may be with regard to PCRA
petitioners generally, the presumption cannot reasonably be applied to pro se
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The PCRA court, in rejecting Brensinger’s proffer of the newly discovered
fact exception, stated:
… I find [Brensinger] has failed to establish that he could not have
discovered these “unknown facts” by the exercise of due diligence.
[Brensinger] claims the expert opinions themselves are the new
facts supporting his claim. However, it is the underlying scientific
principles supporting these opinions that are the “facts” for the
purposes of Section 9545(b)(1)(ii). Commonwealth v.
Edmi[]ston, 65 A.3d [339,] 352 [(Pa. 2013)]. [Brensinger]
emphasizes that his experts’ opinions must be considered the
unknown facts because it was the first time new scientific
principles were applied specifically to the facts of this case.[]
Unfortunately, those scientific principles were in the public domain
before February 2015, and [Brensinger] does not offer a
reasonable explanation as to why he could not have secured
experts sooner to apply those principles to the facts of his case.
“[D]ue diligence requires neither perfect vigilance nor punctilious
care, but rather it requires reasonable efforts by a petitioner,
based on the particular circumstances to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Burton,
121 A.3d 1063, 1071 (Pa. Super. 2015), appeal granted,
158 A.3d
618 (Pa. 2016) (emphasis added). While is it true that
[Brensinger] has been incarcerated since his conviction and his
family has limited resources, he has been represented by counsel
____________________________________________
PCRA petitioners who are incarcerated.” Id., at 635 (emphasis added). As a
result, the majority opinion can be read as criticizing the presumption without
reaching the issue of its validity.
Similarly, the dissent acknowledged, “the presumption may be in tension with
the statutory language which governs the newly-discovered-facts exception.”
Id., at 640 (Baer, J., dissenting). “Perhaps this Court should examine the
whole of this presumption at some point in a future case when the issue is
before us[.]”
Id. Furthermore, the dissent opined, “it may be advisable for
this Court to abandon what the [m]ajority has articulated as the public record
presumption, in favor of an evidence[]-based criteria which reflects the plain
language of the newly-discovered-facts exception.”
Id., at 643 n.6 (citation
omitted). Consequently, the dissent posits that the continuing validity of the
presumption is an open question.
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since at least 2009, and has had the Pennsylvania Innocence
Project working on his case since 2011. When a petitioner is
represented by counsel, public records should be presumptively
knowable. Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.
Super. 2015), appeal granted, 158 A.3d 618 (Pa. 2016).
The reports offered by [Brensinger] cite to studies and research
published from 2004 to 2012. More notably, [Brensinger’s] own
experts from the PCRA hearing indicated the turning point in
scientific research in the area of shaken baby syndrome began to
occur as early as 2001. Finally, there is some question as to
whether the studies and research relied on by [Brensinger]
actually presents “new science.” Accordingly, the information
relied on by [Brensinger] could have been discovered with the
exercise of due diligence prior to the filing of [Brensinger’s]
petition in 2015. Similarly, [Brensinger] has failed to prove that
he filed his petition within 60 days of when it first could have been
raised.
[Brensinger] has failed to meet his burden of proving an exception
to the PCRA’s time limit, and this court is without jurisdiction to
hear the merits of the petition.
PCRA Court Opinion, 12/23/16, at 5-7.
Notably, in reaching this conclusion, the PCRA court determined
Brensinger was subject to the public records presumption because he was
represented by Attorney Freeman since at least 2009 and by PIP since 2011.
However, our review of this matter reveals that this finding is unsupported by
evidence of record.
In many situations, determining if a criminal defendant is represented
by counsel can be resolved by referring to the docket sheet. Pennsylvania law
requires counsel to “file an entry of appearance with the clerk of courts
promptly after being retained, and serve a copy of the entry of appearance on
the attorney for the Commonwealth.” Pa.R.Crim.P. 120(A)(1); see also
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Pa.R.Crim.P. 904(A) (requiring attorney retained in post-conviction
proceedings to promptly file a written entry of appearance). Once counsel
enters his appearance, he “is responsible to diligently and competently
represent the client until his or her appearance is withdrawn.”
Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002) (citing
Pa.R.P.C. 1.1 (Competence) and 1.3 (Diligence)). Counsel may not withdraw
his representation until granted leave by the court. See Pa.R.Crim.P.
120(B)(1).
Neither Attorney Freeman nor PIP entered their appearance on behalf
of Brensinger before April 24, 2015. This, then, is prima facie evidence that
neither Attorney Freeman nor PIP represented Brensinger before that date.
This prima facie evidence can only be overcome by the presentation of
some evidence that an attorney-client relationship existed before that date.
An attorney-client relationship can arise through either an express or an
implied agreement. See Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super.
1993) (citation omitted).
Absent an express contract, an implied attorney/client relationship
will be found if[:] 1) the purported client sought advice or
assistance from the attorney; 2) the advice sought was within the
attorney’s professional competence; 3) the attorney expressly or
impliedly agreed to render such assistance; and 4) it is reasonable
for the putative client to believe the attorney was representing
him.
Cost v. Cost, 677 A.2d 1250, 1254 (Pa. Super. 1996) (citation omitted).
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Furthermore, while our Rules of Criminal Procedure require counsel to
promptly file an entry of appearance after officially being retained, our Rules
of Professional Conduct recognize that there is often a lapse between the time
when a client initially contacts an attorney and when representation officially
commences. During this time period, the client is a “prospective client.” See
Pa.R.P.C. 1.18(a). “Prospective clients, like clients, may disclose information
to a lawyer, place documents or other property in the lawyer’s custody, or rely
on the lawyer’s advice.” Id., at cmt. 1. However, prospective clients do not
receive all of the protection afforded clients, and the attorney is not required
to undertake representation following review of the case. See
id., at cmt. 1,
4.
Here, while it is clear that Brensinger sought advice from both Attorney
Freeman and PIP and the advice sought was within their professional
competence, there is no evidence that either Attorney Freeman or PIP
expressly or impliedly agreed to render assistance until 2015. Further, there
is no evidence that Brensinger reasonably believed that Attorney Freeman or
PIP represented him until they filed their entries of appearance.
At the PCRA hearing, Attorney Freeman testified he represents
Brensinger for the current petition. See N.T., PCRA Hearing, 5/2/16, at 26.
During cross-examination, the Commonwealth asked if he had agreed to take
the case in 2009. He answered, “No.” Id., at 30. The Commonwealth then
asked if PIP “became involved” in 2011. Attorney Freeman responded, “I really
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don’t remember.” Id., at 31. Thus, from Attorney Freeman’s testimony, the
record is clear that Attorney Freeman did not represent Brensinger in 2009.
Marissa Bluestine, Esquire, testified she is the legal director for PIP and
confirmed PIP also represents Brensinger for the current petition. See id., at
33. After Brensinger contacted PIP, she confirmed that PIP attempted to
obtain Brittany Samuels’s medical record for review in 2011. See id., at 34.
“When we first started looking at Mr. Brensinger’s case, we knew that a key
to really deciding whether or not we could even get involved would be looking
at the medical records themselves because that was such a key part of the
conviction.” Id., at 35 (emphasis supplied). Therefore, in 2011, PIP was still
determining whether it would get involved with Brensinger’s case. The record
cannot support a finding that PIP actually represented Brensinger in 2011.
Hoping to bolster the chances of receiving the necessary records to
determine if it would represent Brensinger, PIP narrowed its request to brain
and tissue slides. See id., at 38-39. As of the date of the PCRA hearing, PIP
had never successfully obtained the requested records. See id., at 41-42.
Attorney Bluestine testified she delayed obtaining expert reports until she
could present a full medical record to the experts. See id., at 47. However, in
2015, cognizant of a potential timeliness issue, Attorney Bluestine prudently
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submitted the medical records she had received to experts for review.9
Attorneys for the PIP officially entered their appearance on behalf of
Brensinger once they received the expert reports and submitted them to the
trial court as part of a PCRA petition. As a result, the record is also clear that
PIP had not agreed to represent Brensinger until 2015 at the earliest.
The most explicit evidence on the issue of representation came from
Brensinger. He testified PIP’s initial review of the case was a “long process,”
that involved multiple months’ long stages. See N.T., PCRA Hearing, 7/15/16,
at 33. PIP did not agree to represent him until 2015. See id., at 34. This
constitutes the only evidence of record regarding when Attorney Freeman and
PIP agreed to represent Brensinger as attorneys-at-law. Therefore, the record
is also clear that Brensinger did not believe, reasonably or otherwise, that he
was represented until 2015.
Arrayed against this testimony is the PCRA court’s finding that
Brensinger was represented by Attorney Freeman in 2009, and by PIP since
2011. In support of this finding, the PCRA court references, but does not cite
to, the testimony of Brensinger’s step-father, Anthony Tarantino. After
reviewing the totality of Tarantino’s short testimony, we find no testimony
____________________________________________
9 Our review of the record reveals that Attorney Bluestine expertly balanced
Brensinger’s need to diligently pursue his claim under the PCRA with her duty
to not assert frivolous claims under Pa.R.P.C. 3.1.
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that supports this finding. The only arguable support comes during the
Commonwealth’s cross-examination:
Q: And you retained [Attorney] Freeman in 2009?
A: He reviewed the case for the first time in 2009, yes.
N.T. PCRA Hearing, 7/15/16, at 15. Placed in the context of Attorney
Freeman’s and Brensinger’s testimony, this statement only confirms that
Attorney Freeman agreed to look at this case in 2009. It cannot establish that
he had agreed to represent Brensinger at that time.
It is clear from all the testimony that Brensinger was at most a
prospective client, as defined in Pa.R.P.C. 1.18(a), of both Attorney Freeman
and PIP until 2015. Prior to that time, there is no indication that either
Attorney Freeman or PIP expressly or impliedly agreed to render professional
legal assistance to Brensinger or that it would have been reasonable for
Brensinger to believe either PIP or Attorney Freeman was representing him.
Therefore, because Brensinger was unrepresented from at least 2009 to 2015,
we conclude he was not subject to the public records presumption during that
time period, but instead was entitled to the benefit of the pro se prisoner
exception pursuant to Burton.
However, while we conclude Brensinger was entitled to this exception
from 2009 to 2015 because he was unrepresented, our review of the docket
reveals Brensinger was represented by counsel from 1997 until the denial of
his habeas corpus petition in federal court in 2007. See Criminal Docket, CP-
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39-CR-0003251-1997, Praecipe for Appearance by Attorney Collins,
11/20/97, PCRA Petition filed by Attorney Natali, 7/18/01; Docket for the
United States District Court for the Eastern District of Pennsylvania, 2:04-cv-
04570-BWK, Withdrawal of Appearance by Attorneys Natali and Pollins,
8/26/05; Entry of Appearance by Attorney Gelman, 8/26/05; see also
Appellant’s Supplemental Brief, at 17-18 (admitting Brensinger engaged legal
counsel on direct appeal, in his first PCRA petition, and in his federal habeas
petition). Additionally, both Brensinger and his step-father testified that they
expressly hired Attorney Rose to review his case in 2008. See N.T., PCRA
Hearing, 7/15/16, at 12, 14, 30 (identifying Attorney Rose as the last private
attorney they retained). Pursuant to our interpretation of Burton, a petitioner
must be unrepresented at the time the underlying facts in his petition enter
the public record in order to benefit from the pro se prisoner exception to the
public record presumption.10 Therefore, if the newly discovered facts in
____________________________________________
10 In footnote to the Minority’s dissent in Burton, Justice Baer questions when
a petitioner benefits from the newly outlined exception to the public record
presumption.
It is unclear to me from the Majority Opinion at what stage an
incarcerated PCRA petitioner must be pro se to qualify for the
exception to the public record presumption. For example, to
benefit from this exception, does the incarcerated petitioner have
to be pro se when the “unknown fact” occurred, when it became
publicly accessible, or when he files his PCRA petition?... In this
case, we have no idea when exactly [Burton] had or did not have
counsel.
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Brensinger’s petition entered the public record between 1997 and 2008, the
time period in which Brensinger admits he was represented, his petition is
subject to the public records presumption, and his attempt to prove an
exception to the PCRA’s time-bar fails. See Commonwealth v. Chester, 895
A.2d 520, 523 (Pa. 2006).11
Brensinger contends the “newly discovered facts” underlying his petition
were the expert opinions themselves. See Appellant’s Supplemental Brief, at
3. In making this assertion, Brensinger relies upon our Supreme Court’s recent
decision in Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017),12 for the
proposition that “there is a qualitative difference between suspecting the
forensic science used at trial may have been unreliable and actually knowing
that it was.” Appellant’s Supplemental Brief, at 10 (emphasis in original).
Therefore, Brensinger urges us to find that for purposes of proving the newly
discovered fact exception, the 60-day filing deadline is triggered by the
____________________________________________
Burton,
158 A.3d at 639 n.3 (Baer, J. dissenting). In the absence of clear
precedent on this issue, we conclude that the operative time in this analysis
is when the relevant fact became publicly accessible.
11 Through his appellate brief, Brensinger also argues that he is not subject to
the public records presumption because the scientific principles that his expert
relied on to compile their expert reports have never been in the public domain.
See Appellant’s Opening Brief, at 43-47. However, as we ultimately remand
this case for a determination of which scientific principles constitute the crux
of Brensinger’s petition and when these principles entered into the public
domain, this issue is not ripe for our review.
12 Chmiel was decided by the Pennsylvania Supreme Court almost a year after
the PCRA court issued its opinion in this matter.
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application of the new scientific principles to an appellant’s case, rather than
the mere discovery of the scientific principles. See id., at 9–15. Despite the
compelling logic of this argument, neither Chmiel or any other existing case
law permits us to interpret “newly discovered facts” in this manner.
Our Supreme Court in Edmiston, 65 A.3d 339, specifically addressed
the meaning of “facts” within the context of the “newly discovered facts”
exception to the PCRA’s time-bar. In Edmiston, the defendant argued that a
National Academy of Sciences report concerning the imprecision of
microscopic hair analysis constituted his “newly discovered fact” for the
purposes of this exception. As Edmiston filed his petition within 60 days of the
publication of this report, he asserted he proved this exception to the PCRA’s
time-bar. However, the Court found Edmiston was unable to prove this
exception because the scientific principles on which the report relied had been
in the public domain for years prior to the publication of the report. See
id.,
at 352. In reaching this conclusion, the Court held that:
to constitute such “facts,” the information may not be part of the
public record. Similarly, we have held that a petitioner must allege
and prove previously unknown “facts,” not merely a “newly
discovered or newly willing source for previously known facts.”
These principles have been applied when a petitioner has relied
on a study to satisfy the time-bar exception of Section
9545(b)(1)(ii). See [Commonwealth v.] Lark, [] 846 A.2d
[585,] 588 n.4 [(Pa. 2000)] (concluding that because a particular
study of the Philadelphia criminal justice system consisted of
statistics which were of public record, it could not be said that the
statistics were known to the petitioner).
Id. at 352 (some citations omitted).
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A few years later, in Chmiel, the Supreme Court was confronted with
another case involving the inaccuracy of microscopic hair analysis. Chmiel
argued he met the newly discovered evidence exception to the PCRA’s time-
bar because he filed his PCRA petition within 60 days of an FBI press release
and a Washington Post article about the inaccuracy of this type of science.
See Chmiel, 173 A.3d at 621. The PCRA court, analogizing Chmiel’s case to
Edmiston, determined that the FBI press release merely referred to facts that
had been within the public domain since 1974 and as such, could not be
considered new evidence for the purposes of meeting the exception. See
id.,
at 623. The Supreme Court reversed the PCRA court’s decision, finding the
PCRA court’s reliance on Edmiston misplaced. Instead, they found Chmiel’s
petition relied upon two facts in the FBI Press Release that were not previously
part of the public domain - the FBI’s public admission that testimony provided
by its analysts relating to microscopic hair comparison analysis was largely
erroneous and its admission that it trained many state and local analysts with
the same scientifically flawed techniques. See
id., at 625. Despite
Brensinger’s contention, this holding does not alter Edmiston’s proclamation
ruling that a petitioner cannot rely on newly willing sources, including expert
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opinions, for previously known scientific principles in order to satisfy the 60-
day filing requirement.13
Here, the PCRA court determined that “it is the underlying scientific
principles supporting [Brensinger’s expert opinions] that are the ‘facts’ for
purposes of Section 9545(b)(1)(ii).” PCRA Opinion, 12/23/16, at 5 (quoting
Edmiston, 65 A.3d at 352). However, as highlighted in Chmiel, this
statement only holds true if the scientific principles supporting Brensinger’s
expert opinions had existed in the public domain prior to their inclusion in
Brensinger’s expert reports.
In denying Brensinger PCRA relief, the PCRA court neglected to analyze
which scientific principles constitute the “facts” for the purposes of Section
9545(b)(1)(ii). Furthermore, it failed to determine if these “facts” existed in
the public domain prior to the experts’ use of the principles in forming their
opinions, and, if so, when these principles entered into the public domain.
Each of Brensinger’s four experts relied upon multiple scientific
principles from various studies, papers and statements published between
1934 and 2013 to form their expert opinion. See N.T., PCRA Hearing, 5/2/16,
at 73–82 (Dr. Chris Van Eee briefly describing the principles derived from five
____________________________________________
13 In fact, the Court in Chmiel reaffirmed this statement. See 173 A.3d at
625 (“As this Court explained in Edmiston, to fall within this exception, the
factual predicate of the claim ‘must not be of public record and must not be
facts that were previously known but are now presented through a newly
discovered source”). Our review of Chmiel leads us to conclude that Chmiel
distinguished Edmiston, but did not overrule it.
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scientific studies, published between 2001 and 2009, that he utilized to reach
his expert opinion), 118-141 (Dr. Julie Mack describing the evolution of five
scientific principles, which she learned about between 2007 and 2013, that
changed her view on shaken baby syndrome diagnoses), 173–182 (Dr.
Zhongxue Hua testifying to two scientific developments between 2001 and
2011 that changed the way he looked at brain injuries), 207–237 (Dr. John C.
Galaznik testifying as to the changes in the American Academy of Pediatrics’
view on shaken baby syndrome between 2001 and 2009 and to scientific
discoveries from studies performed in 2010 and 2012); see also Defendant’s
Exhibit 1B, PCRA Hearing, 5/2/16 (report of Dr. Galanznik, expert in the field
of pediatrics, referencing 11 scientific articles relied upon in reaching his
expert opinion); Defendant’s Exhibit 2, PCRA Hearing, 5/2/16 (report of Dr.
Hua, expert in the field of forensic pathology, referencing articles published in
2011 and 2012 in support of his expert opinion); Defendant’s Exhibit 3, PCRA
Hearing, 5/2/16 (report of Dr. Mack, expert in the field of pediatric radiology,
referencing articles and studies spanning from 1934 to 2013 which contain a
total of 10 scientific principles she relied upon in reaching her conclusion);
Defendant’s Exhibit D-2, PCRA Hearing, 5/2/16 (report of Dr. Chris Van Ee,
expert in the field of biomedical engineering, that relied upon 23 articles and
scientific studies published between 1984 and 2012 to reach expert opinion).
Resolution of these questions requires further fact-finding. The PCRA
court, sitting as fact-finder, is the proper forum to resolve these questions and
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to ultimately determine whether Brensinger met the proof requirement under
Section 9545(b)(1)(ii). See Commonwealth v. Bennett, 930 A.2d 1264,
(Pa. 2007) (remanding to PCRA court to resolve question of due diligence);
see also Commonwealth v. Burton,
158 A.3d 618, 633-34 (Pa. 2017).
Therefore, we remand this matter for an evidentiary hearing.
In his second issue on appeal, Brensinger argues that jurisdiction exists
because the PCRA’s timing provisions, as applied to claims based on evolving
scientific principles, are unconstitutionally void-for-vagueness.14 See
____________________________________________
14 While not in the context of a “void-for-vagueness” constitutional analysis,
our Supreme Court has ruled the PCRA’s time-bar exceptions are
constitutional. See Commonwealth v. Peterkin, 722 A.2d 638, 642-643
(Pa. 1998). In coming to this conclusion, the Court noted:
[b]ecause the one-year period within which petitions normally
must be filed is sufficiently generous to prepare even the most
difficult case, and because the exceptions to this filing period
encompass government misconduct, after-discovered evidence,
and constitutional changes, we have no difficulty in concluding
that the PCRA’s time limitation upon the filing of PCRA petitions
does not unreasonably or unconstitutionally limit Peterkin’s
constitutional right to habeas corpus relief. At some point litigation
must come to an end. The purpose of the law is not to provide
convicted criminals with the means to escape well-deserved
sanctions, but to provide a reasonable opportunity for those who
have been wrongly convicted to demonstrate the injustice of their
conviction. The current PCRA places time limitations on such
claims of error, and in so doing, strikes a reasonable balance
between society’s need for finality in criminal cases and the
convicted person’s need to demonstrate that there has been an
error in the proceeding that resulted in his conviction.
Id.
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Appellant’s Opening Brief, at 6, 59-60. “As a threshold matter, a statute is
presumed to be constitutional and will only be invalidated as unconstitutional
if it clearly, palpably, and plainly violates constitutional rights.”
Commonwealth v. Ludwig, 874 A.2d 623, 628 (Pa. 2005) (citation and
internal quotation marks omitted). Analysis of the constitutionality of a statute
is a question of law; therefore, our standard of review is de novo, and our
scope of review is plenary. See
id., at 628 n. 5.
Our Supreme Court has stated the concept of unconstitutional
vagueness arises from due process concerns. See Commonwealth v.
Herman, 161 A.3d 194, 204 (Pa. 2017). The void-for-vagueness doctrine, as
it is known, provides that “[a] statute may be deemed to be unconstitutionally
vague if it fails in its definiteness or adequacy of statutory expression.”
Ludwig,
874 A.2d at 628. However, under the void-for-vagueness standard,
a statute will only be found unconstitutional “if the statute is so vague that
persons of common intelligence must necessarily guess at its meaning and
differ as to its application.” Commonwealth v. McCoy,
69 A.3d 658, 662
(Pa. Super. 2013) (citation and internal quotation marks omitted).
“Vagueness challenges to statutes which do not involve First
Amendment freedoms must be examined in light of the facts of the case at
hand.” Commonwealth v. Kakhankham, 132 A.3d 986, 990 (Pa. Super.
2015) (citation omitted). Therefore, we will address the alleged vagueness of
the statutory provision as it applies to this case.
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Instantly, Brensinger contends the timing provisions are vague when
applied to petitions such as his, where the PCRA challenge is based upon
science that has evolved since the time of trial. See Appellant’s Opening Brief,
at 59. However, Brensinger bases the bulk of his vagueness argument upon
the PCRA court’s failure to identify the scientific principles underlying his
petition that would trigger his obligation to file a petition. See id., at 60
(“These vague statements highlight that it would not be clear to a person of
ordinary intelligence what even would trigger the obligation to file a petition
within 60 days”). As noted above, we conclude the PCRA court erred in failing
to identify the specific scientific principles that triggered Brensinger’s filing
obligation and remand for an evidentiary hearing. Thus, Brensinger’s void-for-
vagueness argument is not ripe for review.
In his final two issues on appeal, Brensinger asks whether our Supreme
Court wrongly decided Commonwealth v. Peterkin, 722 A.2d 638 (Pa.
1998), and Commonwealth v. Edmiston,
65 A.3d 339 (Pa. 2013). See
Appellant’s Opening Brief, at 6 ¶¶ 3-4. Brensinger contends the Supreme
Court erred in Peterkin by holding that the PCRA’s timing requirements are
jurisdictional in contravention of the statute’s legislative history and its plain
language. See
722 A.2d at 641; Appellant’s Opening Brief, at 61-62.
Additionally, Brensinger attacks the Supreme Court’s use of the public record
presumption to bar relief in Edmiston as he contends the presumption itself
is highly flawed. See
65 A.3d at 352; Appellant’s Opening Brief, at 62.
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However, this Court has no authority to overrule either of these cases.
As an intermediate appellate court, we “generally lack[] the authority to
determine that [the Supreme] Court’s decisions are no longer controlling.”
Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d
468, 480 (Pa. 2011) (citing Commonwealth v. Jones,
554 A.2d 50, 51-51
(Pa. 1989)). Instead, we “are duty-bound to effectuate [the Supreme] Court’s
decisional law.”
Id. Therefore, we note that Brensinger has preserved these
issues by raising them in this Court, but that we have no power to grant
relief.15
Based upon the foregoing, we vacate the PCRA court’s order dismissing
Brensinger’s petition and remand this matter to the PCRA court for an
evidentiary hearing to determine which scientific principles constitute the facts
upon which Brensinger’s petition was based and if, or when, these facts
entered the public domain. In determining when these principles entered the
public domain, the PCRA court’s focus should be on the date this information
became publically available to Brensinger and his experts.
If the PCRA properly concludes this information was publically available
prior to 2009, the public record presumption applies, and Brensinger cannot
prove that these facts were unknown to him for purposes of meeting the
____________________________________________
15 Brensinger acknowledged in his brief that he raised issues three and four
solely “to preserve them for any further appeal to the Pennsylvania Supreme
Court.” Appellant’s Opening Brief, at 6.
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newly-discovered evidence exception to the PCRA’s time-bar. See Chester,
895 A.2d at 523. Alternatively, if the PCRA court determines this information
entered the public record after 2009, Brensinger is entitled to the benefit of
the pro se prisoner exception to the public record presumption.
Commonwealth v. Burton,
158 A.3d 618, 638 (Pa. 2017). This finding does
not automatically entitle Brensinger to relief, as he must still prove that “that
the facts upon which his claim of a timeliness exception under subsection
9545(b)(1)(ii) is based were unknown to him and not ascertainable by the
exercise of due diligence.”
Id., at 638 n. 23 (emphasis in original).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judges Lazarus, Ott, Stabile, Dubow, and Murray join the opinion.
Judge Bowes files a dissenting opinion in which President Judge
Gantman and President Judge Emeritus Bender join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/19
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