J-E03006-18

2019 PA Super 265

COMMONWEALTH OF PENNSYLVANIA

v.

RUSTY LEE BRENSINGER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 experts5regarding 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 timebar. 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-cv04570-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 timebar 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-forvagueness 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