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Wegemer v. Gilmore

United States District Court, W.D. Pennsylvania

December 2, 2019

ROBERT LEE WEGEMER, Petitioner,
v.
SUPERINTENDENT ROBERT GILMORE; ATTORNEY GENERA OF PENNSYLVANIA; DISTRICT ATTORNEY OF ERIE COUNTY, PENNSYLVANIA, Respondents

          OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 5)

          RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE

         Before 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 contention.

         I. Factual Background

         The 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 statement.)
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).

         II. Relevant Procedural History

         Wegemer 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. 3.[1] 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.

         On 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. 2017).[2]

         Wegemer 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.

         On 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.

         III. Petitioner's Claims

         Wegemer's 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 ...


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