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
J-E03006-18



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

____________________________________________


3Brensinger 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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J-E03006-18


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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J-E03006-18


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

____________________________________________


10In 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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J-E03006-18


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.

12Chmiel was decided by the Pennsylvania Supreme Court almost a year after
the PCRA court issued its opinion in this matter.

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J-E03006-18


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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J-E03006-18


      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




                                     - 23 -
J-E03006-18


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.

                                          - 24 -
J-E03006-18


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


                                     - 25 -
J-E03006-18


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



____________________________________________


14While 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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J-E03006-18


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.


                                          - 27 -
J-E03006-18


      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.


                                      - 28 -
J-E03006-18


       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.

                                          - 29 -
J-E03006-18


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




                                         - 30 -
