from the PCRA Order December 23, 2016 In the Court of Common
Pleas of Lehigh County Criminal Division at No(s):
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA,
J., LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY,
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 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.
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.
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.
was taken by ambulance to Lehigh Valley Hospital. See
id., at 1818. The pediatrician on duty, Dr. Michael
Barone, examined Brittany 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.
trial, the Commonwealth presented three experts who opined
that Brittany's death was a result of "shaken baby
syndrome." 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 death, but instead argued there was
no proof Brensinger caused her death. Following the close of
evidence, the jury convicted Brensinger of third-degree
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
2001, Brensinger filed his first counseled PCRA petition
asserting various claims of ineffective assistance of trial
counsel. 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. 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
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.
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,
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 review
Brensinger's case. See id., at 12. Subsequently,
in 2011, Brensinger contacted the Pennsylvania Innocence
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.
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. 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.
PCRA court held hearings centered around this timeliness
exception on May 2, 2016 and July 15, 2016. Brensinger
presented testimony from his four experts 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.
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.
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?
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');">65 A.3d 339
(Pa. 2013), was wrongly decided?
Appellant's Opening Brief, at 6.
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).
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.
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 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).
does not dispute that his petition, filed almost fifteen
years after his judgment of sentence became final, is
facially untimely. 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
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;
(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
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. §
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.
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
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.
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 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