United States District Court, W.D. Pennsylvania
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS
CORPUS (ECF NO. 5)
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
the Court is a petition for a writ of habeas corpus filed by
state prisoner Robert Lee Wegemer (Wegemer) pursuant to 28
U.S.C. § 2254. ECF No. 5. He is challenging the judgment
of sentence imposed upon him on November 20, 2012, by the
Court of Common Pleas of Erie County, Pennsylvania at its
criminal docket number CP-25-CR-002267-2011. Respondents
argue that Wegemer's petition is barred by the applicable
statute of limitations. This opinion will address that
Court takes the following factual background from the
Pennsylvania Superior Court's opinion addressing
Wegemer's direct appeal from his conviction and sentence:
M.H. [aged nine at the time of offenses] is the minor
daughter of [G.H.] and [S.C.]. Her parents divorced in
September, 2004, but had an amicable custodial/visitation
arrangement whereby M.H. lived with her mother and [G.H.] was
with M.H. on most weekends, in addition to other occasions
requested by [S.C.]. In June of 2008, [G.H.] moved to 6667
Pinar Road in Harborcreek Township, Erie County Pennsylvania.
[GH.'s] new neighbor was his long-time friend, Robert Lee
Wegemer ("Appellant"), who lived at 6675 Pinar
Road. Appellant has known M.H. since the time she was born.
At approximately the same time [G.H.] moved to Pinar Road, he
began living with his girlfriend, [M.C.]. In March 2010, they
were forced to move. Appellant permitted the couple to reside
with him in his modest two bedroom "bungalow",
otherwise described as a trailer by M.H. During that time,
M.H. sometimes stayed with her father and [M.C.] at the
Appellant's home. After nearly two months of this
arrangement, Appellant had an argument with [G.H.] and asked
him and [M. C] to move out. Appellant attributed the argument
to the tension of a cramped living arrangement. In early
April 2010, [G.H.] and [M.C.] temporarily moved to the
Greentree Motel in Harborcreek, Pennsylvania before obtaining
a permanent residence in Waterford, Pennsylvania on or about
June 19, 2010.
Appellant babysat M.H., at times with others present and at
times when he and M.H. were alone. Appellant's
babysitting routine on these days was often the same. Prior
to going to work, [G.H.] would take M. H. to Appellant's
home at roughly 4:30 A.M. Appellant would leave the door
unlocked and M.H. would let herself in and immediately
proceed to his bedroom to inform him M.H. was there. After
"tapping him on the shoulder" M.H. would then go to
the couch and watch television or fall asleep. She would
remain with Appellant until [M.C.] picked her up in the
afternoon. On or about June 13, 2010, Appellant babysat M.H.
for the last time. As usual, [G. H] dropped M.H. off early in
the morning. After failing to get comfortable on the couch,
M.H. went to Appellant's bedroom to watch television. She
soon fell asleep. Sometime later, M.H. awoke to Appellant
removing her jeans and underwear. Appellant, clothed only in
boxer briefs, was positioned to her side. He completely
removed her jeans, placing them on the floor at end of bed.
He then pulled her underwear to her feet. Then as M.H.
testified, "like he gets on top of me and he, like,
takes his private area out of his boxers and then he starts
moving back and forth ... by my private area." After
"a couple minutes", M.H. felt "the top of his
private into mine". She stated that it felt
"weird". M.H. testified that Appellant never said
anything to her, nor did she say anything to him. Appellant
was on top with his arms on either side of her. This
prevented her from leaving. When Appellant finished, he
rolled "back over". M.H. pulled her underwear up
and fell asleep.
When M.H. awoke, she noticed that Appellant had gone to the
kitchen to make breakfast. Although M.H. did not feel hurt,
she stated she felt "shocked" by the incident. She
immediately went to the bathroom and noticed that there was
"a gooey doing in my underwear". As she said,
"It didn't look like it was a color at all."
Appellant then took M.H. to Dairy Queen and McDonalds. When
they returned to Appellant's residence, Appellant
disappeared into his garage and M.H. watched television until
[M.C.] picked her up in the afternoon. M. H. did not tell [M.
C] or her father about the event.
Several weeks after [G.H.] and [M.C.] moved into their
residence in Waterford (approximately mid-August 2010), M.H.
asked [M.C.] if she could ask her something. M.H. then
retrieved a piece of paper and wrote down everything that
Appellant had done. Making hand gestures around her stomach,
M.H. asked [M.C.] if she "could be pregnant". M.H.
insisted that she "not tell my daddy." [M.C.]
immediately took the note to [G.H.]. He informed M.H.'s
mother the next morning. [S.C.] assured him that she would
handle the matter.
Soon thereafter, M.H.'s parents filed a report with The
Erie County Office of Children and Youth ("OCY").
On September 16, 2010, Corporal Mark Van Horn, a member of
the Pennsylvania State Police Criminal Investigation
Division, was officially assigned the case. Based upon the
allegations received from the OCY, his discussions with
[G.H.], [S.C.] and [M.C.], and after reviewing M.H.'s
handwritten note, Trooper Van Horn went to Appellant's
home to interview him. Appellant cooperated. Specifically,
Appellant confirmed that he babysat M.H. on multiple
occasions, including during the time frame of the incident.
Appellant also informed Trooper Van Horn that "she
would-she would sleep on the couch and even in his bed."
(Appellant testified he did not recall making that
On September 21, 2010, M.H. participated in a video recorded
interview with Michelle Peterson, a forensic interviewer with
the Children's Advocacy Center. Trooper Van Horn,
representatives from OCY and the Erie County District
Attorney's office observed the interview from outside the
room. Subsequently, M.H. participated in a forensic medical
examination at the Saint Vincent Medical Center on December
2, 2012. Dr. Stephanie F. Russo and Ms. Tammy Bimber
conducted the interview and examination. Trooper Van Horn did
not file charges until July 2011. He explained that the
reasons for this delay were: (1) he was unable to obtain any
physical evidence due to M.H.'s delay in reporting the
incident; (2) his promotion that occurred around the same
time he was assigned this case required that he complete
investigatory reports related to a five county cold homicide
investigation. Trooper Van Horn stated that the delay in
filing charges was not M.H.'s or her parents' fault.
At trial, Appellant denied that the incident occurred.
Commonwealth v. Wegemer, 2013 WL 11253466, *1-3 (Pa.
Super. Ct. Oct. 8, 2013).
Relevant Procedural History
was charged by criminal information in the Erie County Court
of Common Pleas with rape of a child, a violation of 28 Pa.
C.S.A. § 3121, sexual assault, a violation of 18 Pa.
C.S.A., 3124.1, indecent assault, a violation of 18 Pa. C.SA.
§ 3126, endangering the welfare of children, a violation
of 18 Pa. C.S.A. § 4304, and corruption of minors, a
violation of 18 Pa. C.S.A. § 6301. SCR No.
On July 24, 2012, following a two-day jury trial, Wegemer was
found guilty on all counts. SCR No. 21. On November 20, 2012,
Wegemer was sentenced to an aggregate term of ten years and
nine months to twenty-two years of incarceration. SCR No. 25.
Wegemer did not file a post-trial motion. Wegemer's
conviction and sentence were affirmed by the Pennsylvania
Superior Court on October 8, 2013. Commonwealth v.
Wegemer, 2013 WL 11253466 (Pa. Super. Ct. Oct. 8, 2013).
Wegemer did not file a petition for an allowance of appeal
with the Supreme Court of Pennsylvania.
October 6, 2014, Wegemer filed a petition pursuant to the
Pennsylvania Post Conviction Relief Act, 42 Pa. C. S. A.
§ 9545, et seq. The Court of Common Pleas for Erie
County dismissed his petition for post-conviction relief on
April 13, 2015. Wegemer appealed and the Pennsylvania
Superior Court affirmed the Common Pleas Court's
dismissal on October 6, 2016. See Commonwealth v.
Wegemer, 2016 WL 7745068 (Pa. Super. Ct. Oct. 6, 2016).
Wegemer's petition for allowance of appeal to the Supreme
Court of Pennsylvania was denied on May 25, 2017. See
Commonwealth v. Wegemer, 169 A.3d 548 (Pa.
filed the instant petition for a writ of habeas corpus-with
this Court on August 1, 2017. ECF No. 5. Wegemer then filed
another petition for post-conviction relief in state court on
December 27, 2017. The Erie County Court of Common Pleas
dismissed that petition on March 8, 2018. Wegemer did not
appeal that dismissal.
September 11, 2017, Wegemer filed a motion to stay these
proceedings, which this Court granted on September 29, 2017.
ECF No. 8, ECF No. 10. This stay was lifted on May 8, 2018.
ECF No. 14. That same day, this Court entered an order
directing the Office of the District Attorney of Erie County
to enter an appearance and to file an answer to Wegemer's
petition. ECF No. 15. On May 18, 2018, Assistant District
Attorney Michael E. Burns entered an appearance. ECF No. 19.
Wegemer filed a motion to amend his Petition, which this
Court granted on May 22, 2018. Respondents were ordered to
address the claims of prosecutorial misconduct which Wegemer
raised in his amended petition. ECF No. 22. On June 18, 2018,
the District Attorney's office filed a Response to
Wegemer's petition. ECF No. 24. A copy of the state court
record was filed on June 21, 2018. ECF No. 26.
petition, as originally filed, raised twenty-five grounds for
relief. See generally ECF No. 5. By order dated
August 16, 2018, this Court granted Petitioner's request
to withdraw all grounds for relief except his claim of actual
innocence and two claims of ineffective assistance of trial
counsel relating to trial counsel's failure to interview
Dr. Stephanie F. Russo or call ...