Vol. LVII Allentown, PA Friday, March 3, 2017 No. 36

68 Pages·2017·7.28 MB·English

Vol. LVII Allentown, PA Friday, March 3, 2017 No. 36
1
THE COURT
The Hon. Edward D. Reibman, President Judge
The Hon. Carol K. McGinley, Judge
The Hon. Robert L. Steinberg, Judge
The Hon. J. Brian Johnson, Judge
The Hon. Kelly L. Banach, Judge
The Hon. James T. Anthony, Judge
The Hon. Maria L. Dantos, Judge
The Hon. Michele A. Varricchio, Judge
The Hon. Douglas G. Reichley, Judge
The Hon. Daniel K. McCarthy, Judge
LEHIGH LAW JOURNAL
(USPS 309560)
Owned and Published by
THE BAR ASSOCIATION OF LEHIGH COUNTY
1114 Walnut Street, Allentown, PA 18102
www.lehighbar.org
MICHELLE M. FORSELL, President
SARAH M. MURRAY, President-Elect
JAMES J. KOZUCH, Vice President
ROBERT P. DADAY, Secretary
BUDDY M. LESAVOY, Treasurer
SUSAN G. MAURER, Historian
THOMAS F. TRAUD, JR., Law Journal Committee
RAY BRIDGEMAN, Executive Director
GRAIG M. SCHULTZ, Case Editor
Copyright © 2017 Bar Association of Lehigh County
The Lehigh Law Journal is published every Friday. All legal notices must be
submitted in typewritten form and are published exactly as submitted by the
advertiser. Neither the Law Journal nor the printer will assume any respon-
sibility to edit, make spelling corrections, eliminate errors in grammar or make
any changes in content.
The Law Journal makes no representation as to the quality of services offered by
any advertiser in this publication.
Legal notices must be received at 1114 W. Walnut St., Allentown, PA 18102,
before 4 p.m. the preceding Monday. Telephone [phone]. Advance
issues $100.00 per year. Single copies $2.00. Payment of annual dues to the
Bar As sociation of Lehigh County includes year’s subscription to Lehigh Law
Journal.
Printed at 206 S. Keystone Ave., Sayre PA 18840
Periodical postage paid at Allentown, PA 18102 and
at additional mailing offices.
POSTMASTER: Send address changes to The Lehigh Law
Journal, 1114 W. Walnut St., Allentown, PA 18102.
2
3
4
ATTORNEY DISCIPLINARY / ETHICS MATTERS
Representation, consultation and expert testimony in disciplinary
matters and matters involving ethical issues, bar admissions
and the Rules of Professional Conduct
James C. Schwartzman, Esq.
Vice Chairman, Judicial Conduct Board of Pennsylvania • Former Chairman,
Disciplinary Board of the Supreme Court of PA • Former Chairman, Continuing
Legal Education Board of the Supreme Court of PA • Former Chairman,
Supreme Court of PA Interest on Lawyers Trust Account Board • Former
Federal Prosecutor • Named by his peers as Best Lawyers in America 2015
Philadelphia Ethics and Professional Responsibility Law “Lawyer of the Year”
1818 Market Street, 29th Floor, Philadelphia, PA 19103
[phone]
5
Attorney—BilinguAl (SpAniSh)
Domestic Violence Service Center, Wilkes-Barre, PA,
$40,000 / year, full-time.
Provide legal information, consultation, and representation
to victims of domestic violence who are program participants
of Domestic Violence Service Center (DVSC). Job duties will
include legal representation/emergency justice-related as-
sistance of program participants related to actions directly
connected to family violence cases that are taken to ensure
the health and safety of the domestic violence victim, includ-
ing petitioning/filing Emergency Protection From Abuse
orders, injunctions, elder abuse petitions, child abuse peti-
tions, other petitions/protective orders, and emergency cus-
tody/visitation. Local travel required. Must have Act 33/34
Clearances and have current PA Attorney License. Candidate
must be bilingual in Spanish. DVSC offers an excellent com-
pensation and benefits package. Equal Opportunity Em-
ployer. Contact: Amy Belcher, Human Resources, abelcher@
dvsclc.org or [phone].
2-17, 24; 3-3, 10
——————
legAl ASSiStAnt/pArAlegAl
Bethlehem-based law firm is seeking a full-time or part-
time estate planning and estate administration assistant/
paralegal with a minimum of 5 years’ experience in the
preparation of Wills and Trusts, accounting, bookkeeping,
word processing and real estate. Familiarity with the Lackner
software package is preferred. Resumes with a cover letter
should be sent by regular mail to Littner, Deschler & Littner,
512 N. New Street, Bethlehem, PA 18018, by fax to (610)
865-6433 or electronically to [email protected].
2-17, 24; 3-3
6
BoArd MeMBer/Attorney needed
Pro bono attorney to help me start a nonprofit community
center in Nazareth. Possibly stay on with a board position to
help manage organization.
The mission is to provide a healthy, active, studious place
for kids to go after school, and to be open until late at night.
Draft business plan available upon request. Dee Mond-
schein: [email protected].
3-3
The BALC Facebook page is
updated regularly with meeting reminders and event
notices, and includes photo albums, discussion
boards, links, and much more. “Like” us at
www.facebook.com/BarAssociationLehighCounty
7
Commonwealth vs. Brensinger 375
COMMONWEALTH OF PENNSYLVANIA vs.
RUSTY BRENSINGER, DEFENDANT
Post Conviction Relief Act Petition—Timeliness—Exceptions—
Newly-Discovered Facts—Expert Opinion—Due Diligence.
The court dismissed the defendant’s Post Conviction Relief Act petition as un-
timely. Although the defendant argued that the “newly discovered facts” exception to the
time requirements of the Act applied, the court found that the defendant could have un-
covered the facts underlying his petition through the exercise of due diligence.
In the Court of Common Pleas of Lehigh County, Pennsyl-
vania—Criminal Division. No. 3251-1997. Commonwealth of
Pennsylvania vs. Rusty Brensinger, Defendant.
HeatHer F. GallaGHer, esquire, CHieF Deputy DistriCt
attorney; JeFFrey D. BurD, esquire, senior Deputy DistriCt
attorney; and anna-Kristie MarKs, esquire, senior Deputy
DistriCt attorney, on behalf of the Commonwealth.
nilaM a. sanGHvi, esquire; MarK D. FreeMan, esquire; and
HowarD D. sCHer, esquire, on behalf of the Defendant.
antHony, J., December 23, 2016. On April 29, 1998, the
defendant was found guilty by a jury of third-degree murder in
relation to the death of 16-month-old Brittany Samuels, the daugh-
ter of the defendant’s then-girlfriend, Michelle Samuels. The
defendant was subsequently sentenced to serve 20 to 40 years in
prison. Following the denial of post-sentence motions, the defen-
dant filed a timely appeal, and the Pennsylvania Superior Court,
affirmed the judgment of sentence on December 1, 1999. The
Pennsylvania Supreme Court denied allocatur on May 30, 2000.
The defendant did not seek a writ of certiorari in the U.S. Supreme
Court.
On July 18, 2001, the defendant filed his first timely PCRA
petition. Following a hearing, the PCRA court denied the petition.
The defendant appealed, and the Superior Court affirmed the
PCRA court on May 13, 2003. On April 24, 2015, the defendant
filed the instant petition, his second under the PCRA. The petition
appears untimely on its face. Hearings relating to the timeliness of
the petition were held on May 2, 2016 and July 15, 2016. Follow-
ing the last hearing, I took the issue under advisement, and this
opinion follows.
8
Lehigh 7-17 op
376 Commonwealth vs. Brensinger
RELEVANT FACTS
On April 26, 1997, 16-month-old Brittany Samuels fell from
a kitchen chair and hit her head on the floor. Brittany’s mom,
Michelle Samuels, was on the phone with her mother, Kathleen
Paxton, at the time of the fall. Brittany cried for a couple of minutes
and had a red bump on her head. Brittany then spoke with Kathleen
on the phone.1
The following day, April 27, 1997, Michelle and Brittany spent
the day with Michelle’s then-boyfriend, the defendant Rusty
Brensinger. Michelle testified at trial that Brittany was “cranky”
that day, and believed it was because Brittany was teething, was
getting over a cold, and did not have a good nap that day. Michelle
and Brittany spent that night at the defendant’s residence.2
The next morning, April 28, 1997, Brittany was a bit cranky
again, and around 10:30 a.m., Michelle put her down for a nap in
a portable crib which the defendant set up in his room. Michelle
then went downstairs to take a shower. After a short time, Michelle
heard the defendant banging on the door and yelling, “Get out
here. There’s something wrong with your kid.” Michelle ran out
of the bathroom, and found Brittany on the floor. The defendant
appeared to be doing CPR on Brittany, and told Michelle to call
911.3
According to the defendant, when Michelle went to take a
shower, he was in the living room watching TV. He was having a
cigarette near the front door when he heard a cry, but did not think
anything of it. He then heard a thump, and went to check on Brit-
tany. The defendant found Brittany on the floor between the crib
and his bed. The defendant picked Brittany up and ran downstairs
to get Michelle out of the shower. He did not believe Brittany was
breathing, so he tried to revive her. Paramedics subsequently ar-
rived and found Brittany unresponsive.4
1 Notes of Testimony (N.T.) 4/20/98, 697-99, 867-68.
2 Id. at 710-25.
3 Id. at 735-48.
4 Id. at 74-101, 1798-1816; N.T. 4/16/98, 74-101.
9
Lehigh 7-17 op
Commonwealth vs. Brensinger 377
Brittany was taken to Lehigh Valley Hospital and examined by
Dr. Michael Barone approximately 15-20 minutes after she arrived.
Dr. Barone noted retinal hemorrhages and unequal pupils—a sign
of elevated pressure inside a closed space of the skull and impending
brain hemorrhage. He also observed some bruising on Brittany’s
body. In Dr. Barone’s opinion, the information relayed to him from
Michelle regarding how the injuries occurred was not consistent
with the severity of those injuries. Dr. Barone suspected child abuse
and contacted Lehigh County Children and Youth Services. Brit-
tany was subsequently transported to Children’s Hospital of Phila-
delphia, and succumbed to her injuries on April 29, 1997.5
At the defendant’s trial, the Commonwealth presented three
expert witnesses—Dr. Cynthia Christian, a board-certified pedia-
trician; Dr. Samuel Land, a medical examiner; and Dr. Daniel
Davis, a board-certified forensic pathologist—who all testified to
a reasonable degree of medical certainty that Brittany died due to
blunt force trauma due to shaking, i.e., shaken impact syndrome,
and that her injuries were not consistent from a fall from a kitchen
chair or from a portable crib. Additionally, Dr. Land testified that
bruises on Brittany’s body were consistent with grasp marks made
during shaking.6
DISCUSSION
Timeliness
This court cannot address the merits of the defendant’s peti-
tion before determining if the petition is timely, as it implicates
this court’s jurisdiction to hear the merits. Commonwealth v. Fahy,
558 Pa. 313, 330, 737 A.2d 214, 223 (1999). The PCRA requires
that all petitions be filed within one year of the date a judgment of
sentence becomes final unless the petitioner pleads and proves
one of the exceptions to the statutory time bar. 42 Pa. C.S.A.
§9545(b)(1). The exceptions are as follows:
(i) the failure to raise the claim previously was the result
of interference by government officials with the presentation
5 N.T. 4/17/98, 429-510.
6 N.T. 4/21/98, 933-87; N.T. 4/22/98, 1328-84; N.T. 4/23/98, 1390-1432, 1542-70.
10
Lehigh 7-17 op