J

- E03006

- 18 2019 PA Super 265

COMMONWEALTH OF PENNSYLVANIA

v.

RUSTY LEE BRENSINGER

Appellant : : : : : : : : : 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. Brensin ger 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 p risoner 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 Bre n singer is entitled to the
pro se prisoner exception under Burton because he was unrepresented from 200 8 until 2015. However, because the PCRA court did not explicitly determine when the relevant facts became part of the public record, we cannot determineJ

- E03006

- 18

- 2

-

whether Brensinger’s petition is entitled to review under the newly discov ered 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 Sa muels. The case proceeded to a jury trial, wherein the following evidence was prese nted. Brittany’s mother, Michel le 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.”), J ury Trial, 4/20/98, at 697

- 700. Two days later , Sam uels 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 portab le 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 f loor 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 1 818. The pediatrician on duty, Dr. Michael Barone, examined BrittanyJ

- E03006

- 18

- 3

-

approximately 15

- 20 minutes after her arrival and observed she had unequal
p upils 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 in consistent 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, t he Commonwealth presented three experts who opined that Brittany’s death was a result of “shaken baby s yndrome.” 1 See N.T., Jury Trial, 4/21/98, at 987; 4/22/98, at 1392, 1545

- 46. A ll 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 s yndrome , ” 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.J

- E03006

- 18

- 4

-

death, but instead argued there was no proof Brensinger caused her death. F ollowing 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 throu ghout trial and the direct appeal by the same attorney, hereinafter referred to as “trial counsel.” In 2001, Brensinger filed his f irst 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, Brensinge r raise d arguments relat ed to the shaken baby s yndrome diagnosis

. See PCRA P etition, 7/18/01 , at 2 ¶¶ 7

- 9. Th e 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 g round 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 medi c al expert about the timing of the shaking, not the validity of t he conclusion that Brittany died from being shaken. See id

. As Brensinger’s prior claim involving shaken baby syndrome involve d markedly different theories and allegations, we decline to find his issue previously litigated.J

- E03006

- 18

- 5

-

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 Distric t 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. Attorney s 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 an d 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 me mbers, 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 devel opments relating to shaken baby syndrome

. See N.T., PCRA Hearing, 7/15/16, at 44. Tarantino contacted Attorney Mark Freeman who agreed toJ

- E03006

- 18

- 6

-

review Brensinger’s case. See id ., at 12. Subsequently, in 2011, Brensinger contacted the Pennsylvania Innocence Proje ct (“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 conclud ed 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 speci fically recognize d that the petition was facially untimely, but a sserted 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 o f 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; Freem an is an attorney with an office in Media; and Scher and Powell areJ

- E03006

- 18

- 7

-

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 a s fact witne sses 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, s cientific developments rel ating to shaken baby syndrome could not be deemed unknown to him for the purposes of me eting 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.J

- E03006

- 18

- 8

-

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 Cour t affirmed the trial court order denying relief

. However, on May 15, 2018 , this Court granted Bre n singer’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) (citat ion 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 wi thin one year of the date the judgment [of sentence] becomes final” unless an e xception 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 orJ

- E03006

- 18

- 9

-

disregarded in order to address the mer its 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 Commonwealt h 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 petiti on, 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 presentati on of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or law of the United States;

_________________ __________ ______ ____ _______ 6 A ll 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)

.J

- E03006

- 18

- 10

- (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exer cise 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 me ets 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 pu rposes 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 con clude he did not meet the newly discovered fact exc eption.

_________________ __________ ______ ____ _______ 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 2 015. Therefore, the amendment is inapplicable to Brensinger’s claim.J

- E03006

- 18

- 11

-

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 un known and 2) could not have been ascertained by the exercise o f 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 (P a. 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

ex ercise 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)

. Howeve r, 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 langua ge of subsection 9545(b)(1)(ii) and was imposedJ

- E03006

- 18

- 12

-

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 elimi nate s 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 petiti oner, 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 presump tion’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 i ssue 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 seJ

- E03006

- 18

- 13

-

T he PCRA court, in rejecting Br ensinger’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 Febru ary 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 (em phasis 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). Conseq uently , the dissent posit s that the continuing validity of the presumption is an open question.J

- E03006

- 18

- 14

-

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 relie d on by [Brensinger] actually presents “new science.” Accordingly, the information relied on by [Brensinger] could have been discovered w ith 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 b urden 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, 12/2 3/16, at 5

- 7

. Notably, in reaching this conclusion, the PCRA court determined Brensinger was su bject 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, determ ining 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 entr y of appearance on the attorney for the Commonwealth.” Pa.R.Crim.P. 120(A)(1) ; see alsoJ

- E03006

- 18

- 15

-

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 hi s 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 puta tive client to believe the attorney was representing him. Cost v. Cost , 677 A.2d 1250, 1254 (Pa. Super. 1996) (citation omitted).J

- E03006

- 18

- 16

-

Furthermore , w hile our Rules of Criminal Procedure require counsel to promptly file an entry of appearance after officiall y 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 clie nt.” 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 a ll 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 advi ce 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 belie ved that Attorney Free man or PIP represented him until they filed their entr ies 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 real lyJ

- E03006

- 18

- 17

-

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 an d confirmed PIP also repres ents 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 ca se, 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 de termining 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 Bren singer, 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 repo rts 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 prudentlyJ

- E03006

- 18

- 18

-

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 Brensing er 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 Brensi nger 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.J

- E03006

- 18

- 19

-

that supports this finding. The only arguable support comes dur ing 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.
I t is cle ar 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 Brensi n ger or that it would have been reasonable for
Brensi n ger 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 fro m 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 200 7

. See Criminal Docket, CP

-J

- E03006

- 18

- 20

-

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 Bre nsinger 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 th e 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 f act” 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.J

- E03006

- 18

- 21

-

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 excepti on 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 exce ption, 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 Openi ng Brief, at 43

- 47

. However, as we ultimately remand this case for a determination of which scientific principles constitute th e 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.J

- E03006

- 18

- 22

-

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” exceptio n 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 b een 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 t hat the statistics were known to the petitioner). Id

. at 352 (some citations omitted)

.J

- E03006

- 18

- 23

-

A few year s 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, an alogizing 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 evide nce for the purposes of meeting the exception

. See id ., at 6 23. The Supreme Court revers ed the PCRA court’s decision , f i nd ing 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, t his holding does not alter Edmiston ’s proclamation ruling that a petitioner cannot rely on newly willing sources, including expertJ

- E03006

- 18

- 24

-

opinion s , 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 support ing [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 pu blic domain prior to the expert s ’ use of the principle s in forming their opinion s , 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 publis hed 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 Edmi

ston , but did not overrule it.J

- E03006

- 18

- 25

-

scientific studies, published between 2001 and 2009, that he utilized to reach his exper t 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 deve lopments 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 discove ries from studies performed in 2010 and 2012); see also Defendant’s Exhibit 1 B , 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 Ex hibit 2, PCRA H earing, 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 Exhibi t 3, PCRA Hearing, 5/2/16 (report of Dr. Mack, expert in the f ield 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 Exh ibit D

- 2, PCRA Hearing, 5/2/16 (report of Dr. Chris Van E e, 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 andJ

- E03006

- 18

- 26

-

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 appea l, Brensinger argue s 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 c oming 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 h abeas 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 convic ted 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 d emonstrate that there has been an error in the proceeding that resulted in his conviction. Id

.J

- E03006

- 18

- 27

-

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 t he concept of unconstitutional
vagueness a rises 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, u nder 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 vag ueness of the statutory provision as it applies to this case.J

- E03006

- 18

- 28

-

Instantly, Brensinger contends the timing provisions are vague when applied to petition s such as his, where the PCRA challenge is based upon science that has evolved since the time of trial. S ee 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 s pecific 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 Supr eme 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.J

- E03006

- 18

- 29

-

However, this Court has no authority to overrule either of these cases . As an inter mediate 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 wh ich scientific principles constitute the facts upon which Brensinger’s petition w as 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 th e 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.J

- E03006

- 18

- 30

-

newly

- discovered evidence exception to th e 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 relie f, 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. Judge s 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