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Commonwealth v. Brensinger

Superior Court of Pennsylvania

August 30, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
RUSTY LEE BRENSINGER Appellant

          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

          PANELLA, J.

         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 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 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 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. 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 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]

         The PCRA court held hearings centered around this timeliness exception on May 2, 2016 and July 15, 2016. Brensinger presented testimony from his four experts[5] 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?
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.

         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 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;
(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.

         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 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 u ...


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