Com. v. Vogt, S.

J-A18010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
STEVEN DAVID VOGT
Appellant No. 1186 WDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Butler County
Criminal Division at No.: CP-10-CR-0030816-1990
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED: MAY 31, 2023
Appellant Steven David Vogt appeals from the September 29, 2021
order of the Court of Common Pleas of Butler County (“PCRA court”), which
denied his fifth petition under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
summarized by a prior panel of this Court:
On May 13, 1990, two persons who were scuba diving in a strip
mine quarry that had been filled with water, discovered a body in
the lake. In the pocket of a fatigue jacket that the deceased was
wearing was a wallet that contained an operator’s license
belonging to Mr. Francis Landry (“Mr. Landry”), and a registration
card for his 1985 Nissan Stanza. Dr. Carl Williams, M.D. testified
as a forensic pathologist that the victim, Mr. Landry, suffered a
blunt force trauma to the skin surface, to the head, trunk, and the
extremities and that death occurred as a result of asphyxiation
due to drowning.
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On May 12, 1990, Mr. Landry picked up [Michael] Sopo (“Sopo”),
[Margaret] Zawodniak (“Zawodniak”), and [Appellant] in his blue
Nissan in order to take them to his residence in Export. They
drank beer there although Mr. Landry did not. Mr. [Walter
Sherman] Cowfer (“Cowfer” or “Sherman”) arrived later. The
parties left Mr. Landry’s home and went down the road to
Mr. Arthur McClearn’s (“Arthur”) apartment where they continued
to drink and discussed the murder of Francis Landry. The parties
returned to Mr. Landry’s residence and drank for a while. Cowfer
went to Mr. Landry’s car in which he was sleeping and asked to
use the car to go to Cupec’s Lake. Although Mr. Landry did not
want to go, Cowfer ordered Landry to get in the back seat or
threatened that he would put him in the back seat. Mr. Landry
got out and moved into the back seat. Testimony revealed that
Mr. Landry was being elbowed and hit in the chest area while
seated between two people in the back seat. Testimony revealed
that [Appellant and Cowfer] got out of the car at the lake and
began walking down the path to the lake with Mr. Landry.
Mr. Landry was complaining about his chest hurting and
protesting to go any further [sic]. Mr. Landry was heard yelling
and was seen going down over the hill to the lake which was about
a 35 to 40 foot drop. Evidence revealed that Mr. Landry was in
the lake treading water and yelling that he would give them
$10,000.00 if ‘they didn’t do him.’ Additional testimony revealed
that rocks were being thrown at Mr. Landry. A huge rock which
was set up on the bank, was rolled over the hill and appeared to
hit Mr. Landry.
Commonwealth v. Vogt, No. 1291 PGH 1991, unpublished memorandum,
at *2-3 (Pa. Super. filed October 21, 1992).
Appellant, Cowfer, and Arthur were apprehended in Florida several days
after the murder. The Commonwealth prosecuted Appellant, Zawodniak,
Cowfer, Sopo, and Arthur for their roles in Mr. Landry’s murder. Sopo pled
guilty to conspiracy and Arthur pled guilty to third-degree murder. Both
men—Sopo and Arthur—testified on behalf of the Commonwealth at trial.
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Sopo testified that he was 18 years old at the time of the murder. See
N.T., Trial, 1/29/91, 85. He did not provide any eyewitness testimony to the
murder. He testified about the events leading up to the trip to Cupec’s strip
mine. When asked what he recalled next after the group got into Mr. Landry’s
car, he replied that he remembered finishing up his beer and waking up in the
car. Id. at 97. He advised that Cowfer was driving and when he asked about
the whereabouts of Mr. Landry, he was told that Mr. Landry was swimming.
Id. at 98. He advised that after that statement was made, the group went to
Export. Id. At that point, “Mrs. Zawodniak got out of the vehicle. [Arthur]
gathered some things up and we left.” Id. at 99. There was no mention of a
stop at the residence of Carrie Deiseroth (“Deiseroth”) and Leonard Mayhugh
(“Mayhugh”). He then detailed the group’s travel to other states and the
cashing of Mr. Landry’s checks. Id. at 99-102. On cross-examination, the
following exchange occurred:
Q: Now, when you got down to Export, isn’t it a fact that you went
and bought some marijuana?
A: Not that I could recall, no, sir. I don’t remember buying any
marijuana.
Q: You don’t remember that. You don’t remember all of you going
in a car to somebody’s house for the expressed purpose of getting
marijuana before you started your trip to New Mexico or Mexico
or Kentucky or wherever you were going? You don’t have a
recollection of that?
A: No, sir. Not that I could remember, no.
Q: The next thing you know you were I-279 and you were headed
south?
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A: Yes, sir.
Q: You had no idea where you were going?
A: No, sir.
Id. at 136.
Deiseroth appeared before the jury and testified that at 9:00 a.m. on
May 13, 1990, Cowfer arrived and entered her Lower Burrell residence with
“some other kid.”1 N.T., Trial, 1/30/91, at 4. She had not seen him for one
year prior to that date. Id. Cowfer asked to see Mayhugh and she then
observed Cowfer “kneeling down talking to [Mayhugh] down beside the
couch.” Id. at 5. She advised that while Cowfer was speaking with Mayhugh,
she overheard the following:
Well, Sherman said, I never thought I could do it. [Mayhugh]
says, what are talking about. I never thought I could do it. I
killed somebody. Come on, Sherman, you didn’t do nothing like
that, he said. Yes, I did. He said, we pushed him over the quarry
and blub, blub, blub, to the bottom of the quarry he went.
Id. When asked how Cowfer arrived at her home, Deiseroth advised that he
arrived in “a little, blue car” and that there were two other people in the car
besides the individual that came into her home with Cowfer. Id. Deiseroth
recalled that she smelled alcohol on Cowfer’s breath. Id. at 11. After Cowfer
finished speaking with Mayhugh, he “and the other kid got up and left.” Id.
at 5-6. During cross-examination by Cowfer’s attorney, Deiseroth stated that
she did not speak with the police until one week prior to trial and did not know
____________________________________________
1 Appellant was nineteen years old at the time of Mr. Landry’s murder.
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the individual who accompanied Cowfer. Id. at 9-10. This individual did not
speak while at her home. Id. at 10. Deiseroth was not cross-examined by
counsel for [Appellant].
The Commonwealth next offered the testimony of Mayhugh, who
testified that on May 13, 1990, Cowfer and “a friend” showed up at his house.
Mayhugh recalled:
And he come in and he kneeled down and he was talking to me.
And he says to me, he says, “I don’t believe I did it. He goes,
never thought I could do something like that, but I killed someone.
And I really didn’t know if he was telling the truth like joking
around or serious, but the more I looked at him, I knew that he
must have. . . . . He said he had been out partying and that he
says that someone was giving him trouble or something like that.
And he told him to come over here and he was showing somebody
to look over this hill. And he said, I run and I push him over the
hill. He said, we did - - he said we went over the hill and they
drownt (sic) this guy. I mean, I didn’t know who it was and that.
And I listened to the news and that and I heard about a guy found
in the pond. But - - and Sherman said that he drownt somebody
in the quarry.
Id. at 15-16.
During cross-examination by Cowfer’s counsel, Mayhugh testified that
“the only thing that was on my mind was whether he did it or he didn’t do it.
I was upset because I never thought Sherman would do something like that.”
Id. at 18.
Q: He came to your home with somebody else. Did you recognize
that individual?
A: Yes, I did. But I didn’t know him. I don’t know the guy.
Q: You didn’t know him.
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A: Right. He says he was just a friend of his.
Q: This guy had never been to your house before?
A: No.
Q: But you recognized him?
A: Right.
Id. at 19-20. Counsel for [Appellant] did not mention Deiseroth and Mayhugh
during his closing argument.
Next, Arthur testified at trial that during the evening of May 12, 1990,
Zawodniak, Sopo and he were drinking beer when Appellant and Cowfer
advised that they were leaving. Id. at 37. The group went out to Mr. Landry’s
car where Mr. Landry was sleeping in the front seat. Id. Cowfer proceeded
to knock on the window. Id. Mr. Landry then asked what Cowfer wanted.
Id. Cowfer advised that they were going to Cupec’s Lake and Mr. Landry
indicated that he did not want to go. Id. After asking a few more times,
Cowfer stated “get in the back seat or I’m going to put you in the back seat.”
Id. at 38. Mr. Landry complied. Id. The group then got into Mr. Landry’s
car. Id. Arthur testified that he fell asleep and when he awoke, they were at
Cupec’s Lake. Id. at 39. Arthur told the jury that he, Appellant, Cowfer and
Mr. Landry got out of the car and walked into the woods. Id. Appellant and
Cowfer instructed Arthur to just follow the path as it led to the lake. Id.
Arthur testified:
Mr. Landry was complaining about his chest hurting. So we
stopped for a few seconds. He stated that he didn’t want to go
any more. [Appellant] said, ‘I’ll help him.’ He took him by his
arm and his elbow and was helping him walk. He stopped again.
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He said his chest was hurting bad, he didn’t want to go any
further. We stopped. I turned around. [Cowfer] said, ‘here’ he
threw me a wallet and he told me to see if there was any money
in it.
Id. at 39-40. Arthur stated that he opened Mr. Landry’s wallet, determined
it was empty, and threw it back to Cowfer. Id. at 40. Arthur further testified
that as he turned around to walk away, he heard Mr. Landry yell. Id. When
he turned around, he saw Mr. Landry going over the hill into the lake. Id.
According to Arthur, Mr. Landry was yelling, “Don’t do me, I’ll give you
$10,000.00.” Id. 40-41. Arthur recalled that he could hear rocks hitting the
water. Id. at 41. Arthur testified that he stayed there for an hour or longer
and heard Mr. Landry yell a few times. Id. Arthur stated that “[e]very once
in a while you could see his feet, you could see ripples come out into the
water.” Id. Arthur also testified that Appellant asked him to help him get a
rock. Id. Arthur then proceeded to help Appellant set up a rock on the top
of the bank. Id. He advised that the rock eventually went down over the hill.
Id. When Arthur started to leave, Cowfer asked him to get a rope. Id.
Appellant then went down over the hill and Arthur testified that he “saw
Mr. Landry pushed out from the shore.” Id. Arthur observed that Mr. Landry
tried to tread water. Id. Arthur testified that he eventually went back to the
car and that Mr. Landry “went under.” Id. He stated that once he returned
to the car, [Appellant] and Cowfer emerged from the woods. Id. at 42. The
group thereafter left the area. When asked where they went, Arthur testified:
Someplace around New Kensington or Tarentum, first. We
dropped [Zawodniak] off. From there we went a little farther. I’m
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not sure how far it was. We stopped at another guy’s house,
bought $10.00 worth of marijuana. . . . . We left the man’s house.
We went back to Export. We got to my house, first, went in and
got clothes. From my house we went to [Cowfer’s]. [Cowfer]
went in his house and got a jacket, clothes, shoes. I don’t know
what else he got.
Id. The four men then proceeded to a “Shop and Save” where Arthur cashed
one of Mr. Landry’s checks. Id. at 43. Then they drove to Ames Department
store to buy clothes and then stopped at another Shop and Save where Arthur
cashed yet another check. Id. After that, they took the car through a carwash
and vacuumed it out because it was covered in mud. Id. at 44. They
eventually entered the turnpike. Id. When Arthur awoke, they were at a
Knights Inn in Kentucky. Id. He testified that they ultimately arrived in Key
West a week after leaving Pennsylvania. Id. at 46. Arthur ultimately turned
himself into the Key West Police after his group abandoned him at a gas
station. Id. at 47-48.
During cross-examination by Appellant’s counsel that spanned over
eighty pages of the trial transcript, Arthur agreed that he pled guilty to
criminal charges even though he was not guilty of committing them because
he wanted to obtain a good deal for himself. Id. at 50. Arthur remarked that
he was guilty “just for being there.” Id. at 51.
Q: Can you tell me whether or not at the time that you entered
into this plea agreement if you were told by the District Attorney’s
Office or by your attorney that in fact you might be facing the
death penalty?
A: They told me I might be facing the death penalty.
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Q: Was that one of the reasons you agreed to pled guilty to these
things that you now say you didn’t do?
A: Yes, it was.
Id. at 52.
Appellant’s counsel then reviewed all of the maximum sentences
associated with the crimes to which Arthur pleaded guilty, pointing out that
Arthur only received a sentence of four to eight years in light of the plea
agreement. Id. at 52-53. Arthur was then questioned about all of the alcohol
he consumed on May 12, 1990, as well as his ingestion of Percocet and
marijuana. Id. at 54-58, 65.
With respect to his relationship with Cowfer, Arthur testified that he had
known Cowfer approximately one and one-half months prior to murder and
agreed that their acquaintance basically centered around drinking. Id. at 59.
With respect to Appellant, Arthur stated that he had never met Appellant
prior to the evening in question. Id. at 60. During cross-examination,
Arthur also was questioned about inconsistencies between his statements to
police, his preliminary hearing testimony and his trial testimony. Id. at 80-
82, 89-92, 103-105, 109-112.
Q: Then is it also the truth that you in fact did commit murder?
A: No, it’s not.
Q: That you did in fact kidnap somebody?
A: No.
Q: You made a deal to help yourself, right?
A: Yes.
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Id. at 133. Tellingly, Arthur was not questioned about making a stop at the
home of Deiseroth and Mayhugh. During closing arguments, Appellant’s
counsel vigorously challenged Arthur’s credibility. N.T., Trial, 1/31/91, at 49-
56.
At the conclusion of trial, a jury found Appellant and Cowfer guilty of
first-degree murder, robbery, theft by unlawful taking or disposition,
kidnapping, and conspiracy.2 The jury acquitted Zawodniak. On June 17,
1991, the trial court sentenced Appellant to life in prison without parole. On
October 21, 1992, this Court affirmed the judgment of sentence. On June 25,
1993, our Supreme Court denied his petition for allowance of appeal.
Appellant’s judgment of sentence became final on September 23, 1993, ninety
days after our Supreme Court denied allowance of appeal. See 42 Pa.C.S.A.
§ 9545(b)(3); United States Supreme Court Rule 13.
Almost four years later, Appellant filed his first PCRA petition, asserting
that he was entitled to relief due to newly discovered evidence in the form of
letters written by Cowfer in 1991 and 1997 and addressed to Appellant’s trial
counsel wherein Cowfer alleged that Appellant was innocent. Oral argument
was scheduled in connection with the amended petition for December 7, 1998.
However, on that date, Appellant voluntarily withdrew his petition. The lower
court specifically noted that Cowfer had been transported to the Butler County
Prison and was available for the hearing. PCRA Order, 12/9/98.
____________________________________________
2 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 3921(a), 2901(a)(3), 903(a),
respectively.
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Several years later, Appellant pro se filed a second PCRA petition on July
2, 2004, which counsel amended on July 26, 2004. In the amended petition,
Appellant once again referenced the 1991 and 1997 letters from Cowfer.
Counsel once again amended the second PCRA petition on November 17,
2004, including a new “affidavit” from Cowfer dated September 23, 2004. In
the affidavit, Cowfer stated that he and Arthur were the individuals who went
into the residence of Mayhew a few hours after the death of Mr. Landry.
According to Cowfer’s affidavit, Zawodniak, Sopo and Appellant remained in
the car. A hearing on the timeliness of the petition was subsequently held on
January 27, 2006. Following the submission of post-hearing briefs by the
parties, the PCRA court denied Appellant’s second PCRA petition on July 12,
2006. On appeal to this Court, Appellant argued, inter alia, that the Cowfer
affidavit satisfied the timeliness exception in the Act. This Court summarized
and disposed of this claim as follows:
At trial, Commonwealth witnesses Leonard Mayhugh and Carrie
Deiseroth testified that Cowfer arrived at their residence on the
morning after the murder and confessed to his participation in the
crime. They further testified that another young man, who was
never identified at trial, accompanied Cowfer, and that Cowfer’s
statements implicated that person in the crime as well. Appellant
asserts that, since he was the only male co-defendant on trial with
Cowfer, “[t]he implications drawn from this testimony [were] that
it was [Appellant] who was present at the time of Cowfer’s
meeting with Mayhugh and Deiseroth.” However, Appellant
received an affidavit from Cowfer, dated September 23, 2004,
which identified co-conspirator Arthur McClearn as the person who
accompanied Cowfer that morning. Indeed, the affidavit also
stated that Appellant, Sopo, and co-defendant Zawodniak, waited
for Cowfer and [Arthur] in a car outside of the residence.
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Appellant baldly asserts that the prosecutor deliberately withheld
the name of the “unidentified” man, in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215, (1963)
and led the jury to believe that Appellant was the person that
accompanied Cowfer and silently agreed to complicity in the
crime.
....
Here, Appellant has failed to demonstrate that he could not have
uncovered this information earlier through the exercise of due
diligence. Appellant filed a previous PCRA petition in September
of 1997, based on information Cowfer provided to him in a letter,
which contradicted the Commonwealth’s version of the crime. The
trial court scheduled a December 7, 1998 evidentiary hearing on
Appellant’s petition, and Cowfer was transferred to the trial court
for the purpose of testifying on Appellant’s behalf. However,
Appellant voluntarily withdrew his petition prior to the evidentiary
hearing. Although the information in the present affidavit is
somewhat distinct from that provided in Cowfer’s previous letter,
Appellant had the opportunity to question Cowfer at the hearing
regarding all of the events surrounding the murder of Landry, but
he declined to do so. Therefore, Appellant has not proven that he
could not have discovered this information earlier.
Commonwealth v. Vogt, No. 1376 WDA 2006, unpublished memorandum,
at *9-10 (Pa. Super. filed October 24, 2007) (footnote omitted). We affirmed
the denial of relief. Discretionary review in the Supreme Court of Pennsylvania
was thereafter denied on April 8, 2008.
On April 14, 2008, Vogt filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in the United States District Court for the
Western District of Pennsylvania wherein he challenged his state court
convictions. On January 8, 2010, the petition was denied as untimely. Vogt
v. Coleman, 2010 WL 126144 (W.D. Pa. 2010). Since that time, however,
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he has filed multiple motions for relief from judgment pursuant to Fed.R.Civ.P.
60(b), with his latest filing being submitted on April 8, 2021.
On October 22, 2010, Appellant pro se filed his third PCRA petition,
asserting that he was in possession of newly discovered evidence.
Specifically, he alleged that on August 27, 2010, he was informed that
Zawodniak had provided an affidavit proclaiming his innocence. See PCRA
Petition, 10/22/10, ¶¶ 5-6. Appellant asserted:
This affidavit was provided after a volunteer assistant used a
paid service on the internet to locate Zawodniak and found her
grudgingly willing to discuss the case. Prior to that I’d been unable
to locate [Zawodniak], as I had no idea where she was. In fact,
for more than ten years I believed she had passed away, as that
was represented to me by a trusted source. . . . My assistant
also found Michael Sopo who represented to her that he knew I
had nothing to do with the crime and that he was coerced into
testifying against me, but he has failed to provide an affidavit.
Id. at ¶ 6 (emphasis added). The assistant later was identified as Tricia
Holfelder (“Holfelder”). The purported handwritten Zawodniak affidavit
provided that: (1) Appellant was intoxicated on the night of Mr. Landry’s
death; (2) Appellant sprained his ankle and could barely walk on it; (3)
Cowfer, Arthur and Mr. Landry went to look at the fishing hole; (4) Appellant
got sick in the car and Zawodniak shoved him outside; (5) Appellant laid on
the ground outside of the car; (6) Zawodniak fell asleep and woke up to the
sound of something being slammed against the roof of the car; (7) Appellant
crawled back into the car at that time and he was still drunk; and (8) Appellant
was in and out of consciousness until the group dropped off Zawodniak. See
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Zawodniak Affidavit, 8/25/10, attached as Exhibit A to Appellant’s Third PCRA
Petition. Curiously, the Zawodniak affidavit was notarized by Holfelder,
Appellant’s assistant. Also attached to the petition as an exhibit was
Holfelder’s typewritten statement dated September 14, 2010:
Approximately August of 2009, I started assisting
[Appellant] with some of the clerical and other paperwork
regarding his habeas petition after seeing the clear
constitutional violation that occurred in his trial. I took it
upon myself to look for the parties involved in the case. I
did try finding the parties through regular methods and
utilized search engines such as google.com. I was never
been able to locate the parties until on or about, Saturday August
8, 2010. I found a service called Intelius which is a pay service
that is used to locate people. After paying the fees I found an
address and phone number for Margaret Zawodniak [sic].
I called the number and Ms. Zawodniak was quite difficult
and said she has not talked about the case to anyone over
the years, not even her family. She said that she always
refused to talk to anyone when contacted. After further
conversation with Ms. Zawodniak she stated that [Appellant] did
not have any problems with Mr. Frank Landry and that on the
night of Mr. Landry’s death [Appellant] was extremely intoxicated
and was passed out most of the time. Ms. Zawodniak said that
[Appellant] had hurt his ankle quite badly to the point she thought
it was broken. She also stated to me that when the parties went
to the mine Mr. Cowfer, [Arthur] and Mr. Landry went off together
while [Appellant] stayed in the car with her until she pushed him
outside when he started to vomit. She finally agreed to make
a written statement and did so on August 25, 2010.
Holfelder Statement, 9/14/10, attached as Exhibit B to Appellant’s Third PCRA
Petition (emphasis added).
Moreover, Holfelder also stated that she located Sopo on an internet site
and contacted him. She stated that “he was reluctant to talk to me about the
topic. He stated to me that his testimony at trial was coerced and he was told
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that he would go to jail forever whether he committed the crime of not if he
did not testify the way he was instructed.” Id. According to Holfelder’s
statement, Sopo confirmed that Appellant was intoxicated, hurt his ankle and
was having trouble walking. She then wrote that “Mr. Sopo also stated to me
that he was 100% sure that [Appellant] did not go into the home of Carrie
Dieseroth and Leonard Mayhugh with Walter Cowfer on the night of
Mr. Landry’s death.” Id. According to Holfelder, Sopo stated that he “knew
that Cowfer and [Arthur] were involved in the death of Mr. Frank Landry and
not [Appellant].” Id. She wrote that Sopo stated that he would be willing to
make a written statement but had failed to do so. In this written statement
Holfelder further averred that she sent letters to Mayhugh and Deiseroth but
they had not responded. Significantly, there was no mention of any attempt
to contact Arthur, even though she had taken it upon herself to locate the
parties involved. The PCRA court dismissed Appellant’s third petition as
untimely on November 16, 2010. On appeal, we affirmed the denial of relief.
See Commonwealth v. Vogt, 37 A.3d 1238 (Pa. Super. filed October 19,
2011) (unpublished memorandum).
On August 22, 2012, Appellant pro se filed a fourth PCRA petition,
raising a claim under Miller v. Alabama, 132 S. Ct. 2455 (U.S. 2012). On
January 3, 2013, the lower court dismissed the petition without a hearing
because Miller did not apply as Appellant was not a minor at the time of Mr.
Landry’s murder and Appellant could not satisfy the PCRA’s timeliness
exceptions. On October 4, 2013, this Court affirmed the denial of post-
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conviction relief. See Commonwealth v. Vogt, No. 188 WDA 2013, 2013
WL 11253321 (Pa. Super. filed October 4, 2013) (unpublished memorandum).
Several years later, on January 23, 2017, just nine days after Arthur
died,3 [Appellant] filed a Rule 60(b) motion in the District Court wherein he
argued that he was entitled to relief pursuant to the decision in Dennis v.
Secretary Pennsylvania Department of Corrections, 834 F.3d 263 (3d
Cir. 2016). He requested that his case be reopened and that his claim that
the prosecution withheld Brady evidence—the identity of the unidentified
male who accompanied Cowfer into the residence of Deiseroth and Mayhugh—
be re-examined. This motion was denied on May 25, 2017 and reconsideration
was denied on June 8, 2017.
Four days later, on June 12, 2017, Appellant pro se filed the instant, his
fifth, PCRA petition, asserting that he came into receipt of new evidence in the
form of an entirely typewritten letter dated October 23, 2016 purportedly
authored by Arthur. In the letter—addressed to “Mr. Vogt”—Arthur
purportedly recanted his testimony at trial, stating, inter alia, that: (1) “They
made me [Arthur] help convict you”; (2) Appellant did not go to the quarry
when he [Arthur] and Cowfer killed “Frank”; (3) Appellant was passed out in
the car; (4) when he [Arthur] and Cowfer returned to the car, Appellant was
laying on the ground; (5) he [Arthur] helped Appellant back into the car; and
(6) he [Arthur] lied when he said that Appellant had anything to do with killing
____________________________________________
3 Arthur died on January 14, 2017. R.R. 270.
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“Frank.” Arthur’s Statement, 10/23/16, Reproduced Record (R.R.) at 222.
The name “Art” was typed at the bottom of the page. Id. Interestingly, the
letter did not state that Arthur was the one who accompanied Cowfer into the
residence of Deiseroth and Mayhugh. On June 23, 2017, the PCRA court
dismissed the petition. Appellant appealed to this Court. We vacated the
PCRA court’s order and remanded the case to the lower court for consideration
of the timeliness of Appellant’s petition. See Commonwealth v. Vogt, 188
A.3d 583 (Pa. Super. filed March 28, 2018) (unpublished memorandum).
While his appeal from the dismissal of this fifth PCRA petition was
pending in this Court, Appellant filed a civil action in the District Court against
the Secretary of the Department of Corrections and the mailroom employees
at SCI-Fayette wherein he alleged that his due process rights under the
Fourteenth Amendment, Due Process rights under the Fifth Amendment, his
right to access the courts under the First and Fourteenth Amendments and his
First Amendment rights were violated when his alleged letter from Arthur was
rejected by the prison officials without notice to him in October 2016. See
Vogt v. Wetzel, No. CV 17-1407 (W.D. Pa 2017). The District Court
ultimately dismissed the petition for failure to state a claim. Vogt v. Wetzel,
No. CV 17-1407, 2018 WL 3388484, at *1 (W.D. Pa. July 12, 2018).
On appeal, the United States Court of Appeals for the Third Circuit
vacated the order dismissing Appellant’s Fourteenth Amendment procedural
due process claim and directing the District Court to address it at summary
judgment or trial, as appropriate. The court also vacated the order dismissing
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the access to the courts claim as unripe with instructions to stay that claim
while this PCRA litigation proceeded. See Vogt v. Wetzel, 8 F.4th 182, 187
(3d. Cir. 2021).4 The District Court was also instructed to resolve the free
speech claim.
On January 7, 2019, Appellant’s counsel filed an amended Fifth PCRA
petition. In the Amended petition, Appellant’s prior filings were incorporated,
including the October 23, 2016 typewritten letter purportedly authored by
Arthur. Also incorporated was a July 24, 2017 handwritten letter from Heidru
Maureschat (“Maureschat”) which stated that she sent a letter to Appellant in
November 2016 that contained photographs. Maureschat Letter, 7/24/17,
attached as Exhibit C to Appellant’s Amended Fifth PCRA Petition. “Thinking
about it later,” she realized that she may have forgotten to put her return
address on the envelope. Id. She then wrote that in January 2017, she
asked Appellant if he ever received the photographs and he responded that
he did not. Although he was supposedly notified by Maureschat in January
2017 that there was a problem with his mail, Appellant did not make inquiry
about the status of his mail with the prison until April 17, 2017. See Exhibit
D attached to Appellant’s Amended Fifth PCRA Petition.
____________________________________________
4 The authenticity of Arthur’s recantation letter mailed to Appellant was not at
issue on appeal before the Third Circuit.
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As the amended PCRA petition also incorporated Appellant’s brief on the
timeliness of his petition, an April 2, 2018 statement from Phyllis Vogt,
Appellant’s mother, was included, providing as follows:
I cannot recall an exact date, but sometime around 2005 my son
[(Appellant)] requested that I try to find Arthur McClearn.
[Appellant] wanted some information concerning an appeal he
was planning to file. It was something that would not have
negatively impacted [Arthur] or his credibility. I found the
address on the internet and went to visit [Arthur]. He came to
the door and, on learning my identity, was totally uncooperative
and indicated by word and demeanor that he wanted nothing to
do with me or [Appellant]. So I left. [Appellant] asked me at a
later time if I could try to contact [Arthur] again. But I couldn’t
find his address then and felt it would be useless anyway based
on his earlier responses.
Mrs. Vogt’s Letter, 4/2/18. Appellant’s father, William Vogt, also submitted a
statement, indicating that he drove his wife [(Appellant’s mother)] to Arthur’s
residence and waited in the vehicle. Mr. Vogt’s Letter, 4/2/18. Mr. Vogt stated
that “I saw [Arthur] come to the door. He and [Mrs. Vogt] exchanged words
very briefly and then he went inside and closed the door. When she came
back to the car, [Mrs. Vogt] was disappointed that [Arthur] refused to talk to
her.” Id.On August 26, 2019, the PCRA court conducted a hearing on Appellant’s
Amended Fifth PCRA Petition, following which it determined the petition to be
timely filed.5 On March 8, 2021, the PCRA court held a hearing on the merits
of the petition. Although Appellant’s parents were present, Appellant did not
____________________________________________
5During the pendency of the instant petition, Zawodniak passed away on
March 8, 2020. R.R. at 273.
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call them to the stand to testify on his behalf. See N.T., Hearing, 3/8/21, at
3.
Appellant called to the stand Holfelder (now “Meade”) to testify on his
behalf.6 Meade testified to the making of the August 25, 2010 Zawodniak
affidavit. According to Meade, Zawodniak wanted to reach out to Appellant’s
family years prior but that she (Meade) did not “really know the details of
that.” Id. at 14. Meade further testified that she did not charge Zawodniak
a fee for the notarization. Id. at 18-19. She testified that this was her first
time meeting Zawodniak and that she never saw her after that day. Id. at
19. Meade stated that she “kind of felt for the Vogt family” and “was trying
to help them.” Id. On cross-examination, Meade stated:
Q: So the only way that Miss Zawodniak knew that you were a
notary was because you’re familiar with the Vogt family?
A: Right. She reached out to somebody. I’m not sure who.
Wanted to make a statement. So I went - - I don’t even remember
what the statement says. I didn’t - - you know, she wrote it. I
notarized it, and I left.
Q: Did you let the Vogt family know that you had done this?
A: I believe - - I don’t want to make anything up. I believe that
everybody knew. I believe. I didn’t do this on my own. I
didn’t reach out to go do this.
I don’t remember exactly how the details went because it was a
long time ago, but - - like I wouldn’t have known her if - - she
didn’t randomly - - like I just went, and she wrote it down. I
notarized the statement. That is it. That is all that happened.
____________________________________________
6Appellant failed to list Meade on the certification of witness as required by
42 Pa.C.S.A. § 9545(d)(1).
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Q: All right. And after that statement was notarized, do you recall
any conversations with Mr. and Mrs. Vogt - -
A: No, I just said, here’s the statement. That’s it.
Q: And when you said . . . here’s the statement, you gave them a
copy?
A: No, I - - well, they - - I gave the document so they could do
what they needed to do with the - - I don’t remember the details.
This was so long ago. All I know is I went, she wrote that down,
and I notarized the statement.
Q: And then what did you do with the statement?
A: I handed it over - - I - - I don’t even remember. Like I could
make something up, but I don’t remember the details. It’s so long
ago. I got it in the hands of the Vogt family so they can do the
paperwork.
Q: And was it the same day that she signed it?
A: I honestly do not know. . . . Like all I did was I went. She
wrote it down. I notarized it, and that was it.
....
Q: And you didn’t make a copy for your records? Correct?
A: I probably - - yeah. I had copies of it. Do I have copies of it
now? No.
Q: All right. So what was the purpose of you making a copy of
the document?
A: I don’t know. They needed copies. I don’t know. You’re asking
me questions that I really don’t remember. I don’t know if I made
a copy. I don’t remember if I don’t. know I don’t have a copy.
....
Q: Did the Vogts tell you why this statement was important?
A: I don’t remember. This was a long time ago. I don’t
remember. I think there was a PCRA hearing or something or a
paperwork filed. I don’t know. I’m not part of the case. I literally
just notarized the paper.
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Id. at 21-25 (emphasis added). According to Commonwealth Exhibit 1
introduced at the hearing, the Pennsylvania Department of Corrections “Visit
History by Inmate” revealed that Meade, then Holfelder, visited Appellant on
the following dates: October 13, 2008, January 1, 2009, March 29, 2009, July
19, 2009, January 1, 2010, April 22, 2010, September 24, 2010 and October
14, 2010. Id. at 3 (Commonwealth Exhibit 1).
Appellant next presented the testimony of Judson McClearn, Jr.
(“J. McClearn”), the first cousin of Arthur. Through introduction of Arthur’s
death certificate, it was established that Arthur died on January 14, 2017.
According to J. McClearn, while Arthur was incarcerated for the murder, he
would send J. McClearn typewritten letters. N.T., Hearing, 3/8/21, at 29.
J. McClearn was quick to add that Arthur would always write just “Art” on the
bottom. Id.
Q: Okay. Did he actually sign it in like a pen, or was it just a typed
signature?
A: I believe it was pen.
Q: You think he wrote to you in pen?
A: No. No. He typed it, but it seemed to me like it looked bigger
from what I can remember.
Q: Are you actually - - are you certain that that’s how it was?
A: I’m actually not certain, to tell you the truth. I - - you know,
it -- I do believe it was typed actually now - - now that I’m
recollecting it. It was many years ago, I believe it was just typed,
all typed.
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Id. at 29-30. J. McClearn characterized his relationship with Arthur as
estranged following Arthur’s release from prison. Id. at 30.
Q: Okay. When he we was released from prison, did you still have
communications with him in that format [typed]?
A: Yeah - - writing?
Q: Uh-huh.
A: No, I actually spoke with him a couple times, but not face
to face.
Q: Okay. Would you say your relationship to Art was close or
estranged? How would you describe it?
A: I would say estranged. But we also - - I mean we wrote
because - - my family really just kind of disowned him, but he’s
still my cousin no matter what happened.
Q: Okay. And how often would you say that you received letters
from Art in the typed fashion?
A: Two, three times a month.
Id. (emphasis added).
J. McClearn, however, could not locate any of these letters for purposes
of the hearing. Id. According to J. McClearn, a woman reached out to him
and asked if he had any knowledge of Arthur sending a letter to a prison. Id.
at 31. J. McClearn testified that “Art[hur] did tell me that, that he had - - he
wanted to get reprieve and tell the truth about [Appellant].” Id. When asked
when he was made aware of this letter, J. McClearn stated he “really can’t
remember” and “believe(d) it was after Art[hur] passed.” Id. at 31-32.
J. McClearn testified that he stopped receiving letters from Arthur in 2013 or
2014 “because he had moved closer to us and stuff like that. So we started
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talking on the phone more.” Id. at 35. J. McClearn, however, testified that
he did not know the town where Arthur lived. Id. He stated that he only saw
Arthur twice after Arthur was released from prison. Id.
When asked where Arthur was living in 2016, J. McClearn initially did
not recall but then stated that Arthur was in a nursing home at that time. Id.
However, J. McClearn did not know the location of the nursing home. Id. at
36. Although he previously testified that he stopped receiving letters from
Arthur in 2013 or 2014, he later testified that Arthur told him about the letter
to Appellant in a letter that he (Arthur) sent to J. McClearn in 2015. Id. at
38. He also told the court that he “believed” that Arthur sent him letters from
the nursing home. Id. at 36. Although he claimed to have received these
letters, he stated that he never saw Arthur’s signature. Id. at 37. J. McClearn
neither attended Arthur’s funeral, nor did he receive any of his belongings.
Id. at 36. The following exchange then occurred with respect to whether
J. McClearn ever provided any written statements.
Q: There was a certification that was filed in this matter by
[Appellant’s] attorney wherein she indicated that she had
attempted to contact you on several occasions to obtain a
certification from you, but the efforts were unsuccessful. How did
anyone reach out to you with respect to [Appellant’s] defense?
A: The only person that’s ever reached out to me was the Mary
lady and her.
Q: And how did [Appellant’s counsel] reach out to you?
A: Via phone. Or Facebook I do believe.
Q: All right. Did you write out a statement?
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A: I believe I did.
Q: Who did you give that statement to?
A: I - - maybe I - - maybe I didn’t write out a statement. I thought
I wrote something down or something with [Appellant’s counsel],
but maybe I didn’t write down a statement.
Id. at 40-41.
Finally, Appellant testified on his own behalf. He stated that he
discovered Arthur’s letter on May 17, 2017 when an inter-department mail
envelope was placed in his cell. Id. at 48. Appellant testified that he had
written to mail recovery centers looking for lost mail after he failed to receive
a letter and photographs sent to him by his friend, Maureschat. Id. at 48-49.
He claimed that the envelope that contained Arthur’s letter was confiscated
during a search of his cell. Id. at 52.
Appellant identified Exhibit “H” as his sworn affidavit dated April 3, 2018
wherein he stated, in relevant part, that he had tried to contact Arthur “many
times over more than two decades through various family members and
friends” and that “occasionally people declined to help, but when he was
actually contacted he refused to speak on the matter, and typically quite
rudely.” Id. at 53-54. He further averred in his affidavit that “prior to
receiving the recantation letter I did not know [Arthur’s] whereabouts and had
no reason to believe he had a change of heart since my last attempts
pertaining his willingness to speak with me or anyone else on the matter.” Id.
When asked if he recalled the events leading up to the murder, Appellant
responded “[u]m, not very much reliable.” Id. at 58. This exchange followed.
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Q: Okay. And you’ve had a chance to review both the affidavit
that was offered and admitted from Miss Zawodniak as well as
Arthur’s recantation letter? Is that right?
A: Yes.
Q: Okay. And from what you do remember from that night, are
those events or are those recitations accurate?
A: Yes they are.
Id. Appellant subsequently testified:
I would like to point out that the affidavit and the letter match
each other in content for the events of that night, and they are
certainly more accurate with my recollection of what happened
compared to what was testified to at trial.
Id. at 67. When asked whether anything in Arthur’s letter stood out to him
to cause him to believe that Arthur had personal knowledge of the information
contained within the letter, Appellant responded, “Yes. One of the things I
noticed was that the author knew that [Arthur] did not know me prior to that.
I don’t think that is public knowledge anywhere. I’m not sure of that.” Id. at
58. Appellant then added: “Another thing is [Arthur] had referred to Walter
Cowfer as Sherm. Only close friends of him referred to him as that.” Id.
Appellant thereafter identified a photocopy of an envelope with his name,
address and the words “Legal mail” handwritten on the front of it that he
claimed contained Arthur’s letter. Id. at 65-66. The envelope contained no
return address.
Near the conclusion of his testimony on direct examination, Appellant
stated that with respect to Arthur’s trial testimony, “I suspected [Arthur] was
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lying, which is why I kept trying to contact him, but he would never respond
to it.” Id. at 68.
On cross-examination, Appellant acknowledged that he typed the letter
to the Mail Recovery Center and his April 3, 2018 affidavit on a word processor
located in the library at the prison. Id. at 69. He stated that all inmates can
utilize the word processor. Id. at 70. When asked about the averments in
the affidavit with respect to attempts made to contact Arthur, Vogt testified
that “nobody ever gave me his address.” Id. He acknowledged that his
mother had visited Arthur on one occasion to speak with him and that he
believed Holfelder (Meade) might have contacted him. Id. He noted that
“just a bunch of people over the years” had tried to reach Arthur. Id.
Q: Those individuals that did make contact with [Arthur], how did
they contact him? Was it in person? Was it by telephone?
A: I believe my mother visited him. Other people, I don’t know.
Q: They didn’t explain to you how they located him?
A: No. A lot of them never even said they got with him at all.
They tried to find his address and couldn’t.
Q: But your mother found it? She found his address?
A: Yes.
Q: How did she find his address?
A: She did not tell me that.
Q: You didn’t ask her?
A: No.
....
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Q: Why were you attempting to contact him for two decades?
A: Because I believe he was lying at my trial.
Q: And what happened when your mother actually spoke with
him?
A: I’m not sure, but he was not cooperative.
Q: Well, you’ve been trying to reach him for two decades. Didn’t
you ask her some follow-up questions such as where is he living?
Who is he living with? What did he say about my case?
A: I did not. I did not. If he doesn’t want to talk or - - if he
doesn’t want to talk about it, I can’t make him, you know. I wasn’t
trying to force myself on him. If he wanted to talk, I wanted to
hear it, but - -
Q: So you weren’t interested in knowing where he lived?
A: No.
Id. at 71-72. Appellant stated that his mother visits him at the prison “once
every couple months or so.” Id. at 72. He was then asked whether he recalled
a visit to the prison that she made on July 10, 2017 shortly after the discovery
of Arthur’s letter and the filing of his fifth PCRA petition. Id. He stated that
he did not recall that visit specially and did not know whether he told her about
the letter. Id.
Q: You didn’t tell her that you’re pursuing a new appeal based on
this letter that you received from Arthur?
A: I don’t believe I did. No.
....
Q: Did you ask your mother if [Arthur] was living in Pittsburgh?
A: I don’t believe so.
Id. at 72-73.
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Additionally, Appellant testified that his friend Dawn Bruner (“Bruner”)
sent him an e-mail on April 19, 2017 wherein she advised him that Arthur had
passed away. Id. at 74. Although he claimed that Bruner had been trying to
find Arthur, he did not recall if he told her that his mother had actually located
and met with Arthur. Id. at 74-75. Appellant could not explain how or where
his friends and family searched for Arthur. Id. at 76.
Although he testified that the Zawodniak affidavit and Arthur’s letter
were “certainly more accurate with my recollection of what happened
compared to what was testified to at trial,” Appellant stated on cross-
examination that he did not remember anything “beyond leaving Arthur
McClearn’s residence” and that the next thing he remembered was “being in
a motel in Kentucky.” Id. at 76-77.
Q: [S]o it’s your testimony that you have no recollection of what
happened at the quarry?
A: Yes.
Q: And you indicated that you always thought [Arthur] was lying?
Correct?
A: Yes.
Q: But you have no recollection of what actually happened?
Correct?
A: Correct.
Q: So why would you believe he would be lying?
A: Because it’s just not in my nature to do what he was saying I
did. But beyond that, earlier that night I hurt my ankle like really
bad. My foot was swollen and I couldn’t get a shoe on because I
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couldn’t walk due to intoxication. It didn’t seem likely that after
that I would be doing what he testified to at trial.
Q: But that - - it doesn’t seem likely? Correct?
A: Yeah.
Q: But you don’t know because you don’t remember?
A: That’s true.
Id. at 77.
Following the conclusion of the hearing, both parties submitted post-
hearing briefs for the PCRA court’s consideration. Thereafter, on July 14,
2021, the PCRA court admitted into the record for the court’s consideration
Appellant’s pro se “Motion for Judicial Notice That Arthur McClearn was Most
Recently in a State Correctional Facility in September 2010, and Mail Policy
DCADM 803 was Changed to Disallow Mail Without a Return Address in
October 2015.” Ultimately, on September 29, 2021, the PCRA court dismissed
Appellant’s instant—his fifth—PCRA petition. Appellant pro se appealed. Both
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.7
On appeal,8 Appellant presents six issues for our review, reproduced
verbatim below.
____________________________________________
7During the pendency of this appeal, Appellant’s federal litigation continued
unabated. See, e.g., Vogt v. Coleman, No. CV 08-530, 2021 WL 5040424(W.D. Pa. Oct. 29, 2021).
8“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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[I.] The Appellant respectfully submits that the Trial Court
committed an error of Law when it denied and dismissed the
Appellant’s Second Amended Petition for Post-Conviction Relief
Pursuant to the Post Conviction Relief Act and determined that the
evidence presented was not credible.
[II.] The Appellant respectfully submits that the Trial Court
committed an error of Law when it denied and dismissed the
Appellant’s Second Amended Petition for Post-Conviction Relief
Pursuant to the Post Conviction Relief Act and determined that the
Zawodniak affidavit was inadmissible as to hearsay.
[III.] The Appellant respectfully submits that the Trial Court
committed an error of Law when it denied and dismissed the
Appellant’s Second Amended Petition for Post-Conviction Relief
Pursuant to the Post Conviction Relief Act and determined that
[Arthur’s] letter was not able to be authenticated and therefore
inadmissible as to hearsay.
[IV.] The Appellant respectfully submits that the Trial Court
committed an error of Law when it denied and dismissed the
Appellant’s Second Amended Petition for Post-Conviction Relief
Pursuant to the Post Conviction Relief Act and failed to take
judicial notice and thus, failed to take into consideration the
United States Court of Appeals for the Third Circuit’s precedential
decision filed on August 9, 2021 at case number 18-2622.
[V.] The Appellant respectfully submits that the Trial Court
committed an error of Law when it denied and dismissed the
Appellant’s Second Amended Petition for Post-Conviction Relief
Pursuant to the Post Conviction Relief Act and determined that
there was no evidence presented that the Zawodniak affidavit was
a statement against interest or that it was unsupported by
corroborating circumstances that clearly indicate its
trustworthiness.
[VI.] The Appellant respectfully submits that the Trial Court
committed an error of Law when it denied and dismissed the
Appellant’s Second Amended Petition for Post-Conviction Relief
Pursuant to the Post Conviction Relief Act and determined that the
circumstantial evidence presented was not sufficient to
authenticate [Arthur’s] letter.
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Appellant’s Brief at 7-8. For ease of discussion, we distill his claims into two
distinct issues.9 First, Appellant challenges the PCRA court’s evidentiary
rulings relating to the admissibility of Arthur’s typewritten recantation letter
and the Zawodniak affidavit that Appellant seeks to introduce into evidence in
support of his after-discovered evidence claim on collateral appeal. Second,
Appellant claims that the PCRA court erred when it failed to sua sponte take
judicial notice and consider the Third Circuit decision filed on August 9, 2021
in connection with his civil action against the Secretary of the Department of
Corrections and the mailroom employees at SCI-Fayette. We address them
in turn.
Preliminarily, we note that the parties and the PCRA court agree that
Appellant’s instant PCRA petition is timely because Appellant alleged and
proved that the facts upon which his claim is predicated were unknown to him
and could not have been ascertained by the exercise of due diligence.10 See
42 Pa.C.S.A. § 9545(b)(1)(ii). Separately, it is undisputed that Appellant filed
the instant petition within sixty days of the date the claim could have been
____________________________________________
9 Appellant himself combined issues one, two, three, five and six in the
argument section of his brief.
10The “new facts” exception at Section 9545(b)(1)(ii) does not require any
merits analysis of an underlying after-discovered-evidence claim.
Commonwealth v. Bennett, 930, A.2d 1264, 1271-72 (Pa. 2007).
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presented. See 42 Pa.C.S.A. § 9545(b)(2).11 Accordingly, the PCRA court
properly exercised jurisdiction over Appellant’s PCRA petition sub judice.
It is settled that, once jurisdiction is established, a substantive claim
alleging after-discovered evidence pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi)
may be presented. Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.
Super. 2015), appeal denied, 125 A.3d 1197 (Pa. 2015); see 42 Pa.C.S.A.
9543(a)(2)(iv) (explaining that to be eligible for relief under the PCRA,
petitioner must plead and prove by preponderance of the evidence that
conviction or sentence resulted from, inter alia, unavailability at time of trial
of exculpatory evidence that has subsequently become available and would
have changed outcome of trial if it had been introduced).
As we have stated repeatedly:
To obtain relief based on after-discovered evidence, [an] appellant
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
The test is conjunctive; the appellant must show by a
preponderance of the evidence that each of these factors has been
met in order for a new trial to be warranted. Further, when
reviewing the decision to grant or deny a new trial on the basis of
after-discovered evidence, an appellate court is to determine
____________________________________________
11 Section 9545(b)(2) was amended, effective December 24, 2018, to extend
the time for filing from sixty days of the date the claim could have been
presented to one year. The amendment applies only to claims arising on or
after December 24, 2017. Thus, this amendment does not apply to Appellant’s
PCRA petition because it was filed prior to the amendment’s effective date.
- 33 -
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whether the PCRA court committed an abuse of discretion or error
of law that controlled the outcome of the case.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (quotation
marks, brackets, and citations omitted).
With the foregoing principles in mind, Appellant claims that on May 17,
2017, he received an envelope, postmarked October 25, 2016, containing a
typewritten letter, dated October 23, 2016, from Arthur. According to
Appellant, his May 17 receipt of the letter occurred approximately four months
after the purported author of the letter, Arthur, had passed away on January
14, 2017. The letter provided:
October 23, 2017
Mr. Vogt,
They say I gotta go back and make amends for past wrongs
before I can put the past completely behind me. Hope they are
right and this helps ease my conscience. I checked online and
found you. Saw your appeal or something. I wish that would
have worked for you so I didn’t have to do this. It’s me Art
McClearn! Please keep reading this, because if I can help I will.
You will never know how sorry I am that things worked out the
way they did. I don’ know what you did to piss those people off
but they made me testify the way I did. I did tell them the truth
but they wouldn’t accept it and kept at me until they liked what I
said. I didn’t know you, so it was easier to go through with it, but
you have to understand! It was to save my life! They made me
help convict you. It was the only way to avoid the death penalty.
It says online that you don’t remember much. I’m not surprised
you were really wasted. The fact is you did not go to the quarry
where me and Sherm killed Frank. You were passed out in the
car. Then when we came back you were laying on the ground
outside the car. Sherm wanted to leave you there, said he wasn’t
babysitting. I helped you get up and put you back in the car.
Can’t believe Sherm did that. Do you know he talked about going
to the police and telling them you killed Frank right away? He
didn’t think they’d believe it then. I think he may have called
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them from his friend’s or somewhere. Maybe that’s why they were
so focused on you to blame. I don’t know. I lied when I said you
had anything to do with killing Frank. You did not. I’m ready to
tell the truth. I need to tell the truth. I know you may be mad
and I wouldn’t blame you, but I’m really trying to make it right,
now. I’m sorry it has taken so long. I don’t feel comfortable
giving you my house address there so you’ll have to have your
lawyer contact me on Facebook if you think I could help with an
appeal. I’m willing to testify to the truth now. I really am sorry,
Steve!
Art
Letter, 10/23/17 (emphasis in original). Referencing the purported letter from
Arthur, Appellant points out that Arthur recanted his trial testimony and
Appellant, therefore, is entitled to a new trial. The PCRA court denied relief,
concluding that the alleged recantation was inadmissible because Appellant
failed to authenticate the letter properly. It is that ruling that Appellant
challenges on appeal. In so doing, he asserts that the letter was authenticated
and is admissible under hearsay exception for statements against interest,
Pa.R.E. 804(b)(3).12
____________________________________________
12 Rule 804 provides in pertinent part:
(b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness:
....
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would
have made only if the person believed it to be true because,
when made, it was so contrary to the declarant's proprietary
or pecuniary interest or had so great a tendency to
(Footnote Continued Next Page)
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When we review a PCRA court’s ruling on admission of evidence,
decisions on admissibility are within the sound discretion of the
[PCRA] court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a ruling on
evidence to constitute reversible error, it must have been harmful
or prejudicial to the complaining party. An abuse of discretion is
not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias[,] or ill-will, as shown by the evidence or the record,
discretion is abused.
Commonwealth v. Talley, 236 A.3d 42, 55 (Pa. Super. 2020), aff’d but
criticized, 265 A.3d 485 (Pa. 2021). With respect to authentication, it is
codified in Pennsylvania Rule of Evidence 901, which provides in pertinent part
that “[t]he requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” Pa.R.E.
901(a). That rule also provides that the testimony of a witness with personal
knowledge that a matter is what it is claimed to be may be sufficient to
authenticate or identify the evidence. Pa.R.E. 901(b)(1); id. at cmt. (citing
Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980)); Commonwealth
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invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case
as one that tends to expose the declarant to criminal
liability.
Pa.R.E. 804(b)(3).
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v. Koch, 39 A.3d 996 (Pa. Super. 2011) aff’d by an equally divided
Supreme Court, 106 A.3d 705 (Pa. 2014); In the Interest of F.P., 878
A.2d 91, 93-94 (Pa. Super. 2005).
A document may be authenticated by direct proof and/or by
circumstantial evidence. Commonwealth v. Brooks, 508 A.2d 316, 318 (Pa.
Super. 1986). “Proof of any circumstances which will support a finding that
the writing is genuine will suffice to authenticate the writing.” Id. at 319(quoting, inter alia, McCormick, Evidence § 222). Where there is a question
as to any writing, “the opinion of any person acquainted with the handwriting
of the supposed writer” is relevant for that purpose. 42 Pa.C.S.A. § 6111(1).
Rule 901(b) provides that “[a] non[-]expert’s opinion that handwriting is
genuine, based on a familiarity with it that was not acquired for the current
litigation,” is competent evidence. Furthermore, circumstantial evidence may
be sufficient to authenticate a document. See McCormick, Evidence, supra
at §§ 219-21 (discussing circumstantial evidence and cases cited therein);
see e.g., Commonwealth v. Nolly, 138 A. 836 (Pa. 1927) (letters
authenticated by contents known only to sender and recipient);
Commonwealth v. Bassi, 130 A. 311 (Pa. 1925) (finding unsigned letter
authenticated by defendant’s nickname written on it, along with contents
indicating knowledge of matters familiar to both defendant-sender and
witness-recipient).
Here, based upon our review of the entire record, as detailed above, we
cannot agree with Appellant’s argument that the PCRA court abused its
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discretion in disallowing the recantation letter purportedly authored by Arthur.
As a result, we agree with the PCRA court that Appellant is not entitled to
relief on his after-discovered evidence claim based on the recantation letter.13
As the Commonwealth astutely observes, because the letter at issue
was entirely typewritten, no one could testify to its authorship based upon
handwriting. Nonetheless, Appellant presented testimony to establish the
letter’s authenticity. The PCRA court explained:
There is not any direct proof to authenticate that the document at
issue actually was written by Arthur []. First, the one-page letter
[Appellant] alleges he received is typewritten, including the
signature. Second, there is not a return address on the envelope
the letter allegedly was in to indicate where it was sent from.
Moreover, the original envelope is not available for inspection, and
only a photocopy was produced.
The [c]ourt further finds the circumstantial evidence presented is
not sufficient to authenticate the typewritten letter. [McClearn’s]
testimony regarding the format of the signature on the letters he
received from Arthur [] was conflicting, as he initially stated the
signature was in pen, and then stated it was typed, and then said
he was not certain, before settling on that it was typed as his
answer. Further, [McClearn] stated he received a letter in 2015
from Arthur [] that referenced Arthur [] had sent a letter to a
prison. However, the envelope from the letter [Appellant]
allegedly received was postmarked October 25, 2016. Moreover,
[McClearn] testified he had stopped receiving letters from Arthur
[] in 2013 or 2014. For these reasons, the [c]ourt finds that the
testimony of [McClearn] is too indeterminate to support
authentication of the document at issue. Additionally,
[Appellant’s] testimony about statements in the letter that he did
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13 While recantation evidence is often highly unreliable, a PCRA court must, as
it did here, assess the credibility of the recantation and its significance in light
of the evidence as a whole before it can deny PCRA relief on the ground that
the claim lacks merit. Commonwealth v. D’Amato, 856 A.2d 806, 825 (Pa.
2004); Commonwealth v. Williams, 732 A.2d 1167, 1180-81 (Pa. 1999).
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not believe were public knowledge are inadequate to indicate the
trustworthiness of the letter.
PCRA Court Opinion, 9/29/21, at 10 (record citations omitted).
We agree with the PCRA court’s foregoing findings, which fully are
supported by the record. Instantly, as outlined earlier, J. McClearn’s
testimony in support of Appellant’s effort to authenticate the letter was
insufficient as it was inconsistent and incredible. J. McClearn described his
relationship with Arthur as estranged, speaking with Arthur a couple of times,
never face-to-face, after Arthur’s release from prison. J. McClearn then
seemingly contradicted himself on cross-examination, stating that he saw
Arthur twice upon Arthur’s release from prison. J. McClearn did not know
where Arthur resided. He believed Arthur was in a nursing home in 2016, but
did not know where or for how long. Additionally, J. McClearn did not attend
Arthur’s funeral or receive any of his possessions. Yet, despite their limited
contact, J. McClearn claimed that Arthur would send him typewritten letters
two to three times per month until 2013 or 2014, following his release from
prison. J. McClearn further claimed that the letters stopped because Arthur
had moved closer to family, but their communication resumed
telephonically. Once again contradicting himself, J. McClearn claimed that
he specifically remembered that Arthur told him about the October 23, 2016
letter to Appellant in a letter that Arthur had sent to J. McClearn in 2015. The
contradiction continued, when J. McClearn stated that he believed Arthur sent
him letters from the nursing home.
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Despite J. McClearn’s claim that he received letters from Arthur, he
never observed Arthur’s signature. According to J. McClearn, Arthur only sent
typewritten, and unsigned, letters until 2016 when he was in a nursing home.
Tellingly, even though J. McClearn specifically and clearly recalled certain
dates and years in question, he was unable to recall whether he himself had
provided a written statement prior to the 2021 evidentiary hearing.14
Next, Appellant’s own testimony to authenticate the letter did not fare
any better. When asked whether anything in Arthur’s letter stood out to him
to cause him to believe that Arthur had personal knowledge of the information
contained within the letter, Appellant responded, “Yes. One of the things I
noticed was that the author knew that [Arthur] did not know me prior to that.
I don’t think that is public knowledge anywhere. I’m not sure of that.”
Appellant continued stating, “[a]nother thing is he had referred to Walter
Cowfer as Sherm. Only close friends of him referred to him as that.” Appellant
completely ignored the fact that Arthur testified at trial that he had known
Cowfer for one and one-half months prior to the murder and that their
acquaintance centered around drinking. Thus, Cowfer could hardly be
considered a stranger. He also ignored the fact that Arthur testified at trial
that he only met Appellant on the evening in question.
Appellant intimated that Arthur eluded him, and all of his friends and
family actively working on his behalf over the past two decades. When
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14The Commonwealth posits that the recantation letter was fraudulent.
Commonwealth’s Brief at 42, n.12.
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pressed for details on how attempts to contact Arthur were made, he could
not provide the details. As mentioned, Appellant’s mother actually located
Arthur according to her statement and his father drove her to Arthur’s house
around 2005, on the heels of the 2004 Cowfer affidavit.15 Yet, despite finding
Arthur, Appellant stated that he never asked his mother any questions about
him or where he lived. When his mother visited him in prison on July 10,
2017, he failed to inform her of this miraculous recantation letter or his latest
appeal.16
Given the insufficiency of the evidence presented by Appellant to
support the authentication of the recantation letter, purportedly written by
Arthur, we conclude that the PCRA court did not abuse its discretion in
declining to admit it into evidence.
Nonetheless, determined to prove the letter’s authenticity, Appellant
sought to bootstrap the affidavit allegedly made by Zawodniak in 2010,17
years prior to her death on March 8, 2020. Appellant sought to introduce and
admit the affidavit into evidence under hearsay exception for statements
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15Appellant’s parents were present for the March 8, 2021 hearing. Appellant,
however, did not call them to the stand.
16 Although we cannot make factual findings, we note with interest that, on
June 12, 2017, Appellant filed the instant—his fifth—PCRA petition with the
recantation letter after the federal district court denied his motion for
reconsideration on June 8, 2017. Commonwealth’s Brief at 46-47. The filing
occurred a mere four days after the denial of reconsideration.
17 As noted, the Zawodniak affidavit first emerged in connection with
Appellant’s third petition, which the PCRA court dismissed as untimely on
November 16, 2010. We affirmed the dismissal on appeal.
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against interest, Pa.R.E. 804(b)(3). However, as with the recantation letter,
the PCRA court determined that Appellant simply failed to authenticate the
affidavit and that, even if he had done so, he failed to satisfy any hearsay
exceptions for purposes of admitting the affidavit into evidence. Appellant
now claims that the PCRA court abused its discretion. We disagree.
In support of his contention, Appellant points out that the affidavit was
authenticated and reliable because it was made in the presence of a duly
licensed notary, Ms. Meade, formerly Holfelder. To buttress this point,
Appellant relies upon Commonwealth v. Thomas, 908 A.2d 351 (Pa. Super.
2006). The reliance, however, is misplaced as the instant case is
distinguishable. In Thomas, the defendant sought collateral relief and, in
support, attached an affidavit/declaration from an eyewitness. During the
evidentiary hearing, counsel for the defendant advised that the declarant had
died, requested a continuance of the hearing, and asked to submit a
memorandum requesting the court to admit the declaration as substantive
evidence. The PCRA court denied this request and dismissed the petition on
the ground that the declaration constituted inadmissible hearsay.
On appeal, the defendant argued, among other things, that the
declaration should have been admitted into evidence. He conceded that the
declaration did not fit within a firmly-rooted exception to the hearsay rule, but
argued that it was “admissible as substantive evidence because it evinces
overwhelming indicia of reliability and trustworthiness.” Id. at 354 (internal
citation omitted). In rejecting this argument, we determined that, although
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signed subject to the penalty of perjury, the declaration did not meet the
requirements of an affidavit because the declarant did not swear to her
statements before an officer authorized to administer oaths. Thus, we
concluded that the accuracy and circumstances surrounding the execution of
the declaration were at issue. We also concluded that, because the declarant
could not testify, her credibility and demeanor could not be assessed by the
trier of fact. Finally, we determined that if the declaration was admitted as
substantive evidence, the Commonwealth would not have the opportunity to
test the declarant’s account of the incident and her identification of a different
man as the murderer. See id. at 354-55.
Appellant attempts to differentiate this case from Thomas, highlighting
that the Zawodniak affidavit was sworn before a licensed notary and that
“[t]his distinguishing factor creates an indicium of reliability and
trustworthiness.” Appellant’s Brief at 23. The record, however, does not lend
support to Appellant’s assertions. As the PCRA court noted, the circumstances
surrounding the creation of the affidavit were wholly unreliable. See PCRA
Court Opinion, 9/29/21, at 9. The court reasoned:
The notarization of the affidavit was performed by an individual
who was familiar with, and sympathetic to [Appellant’s] family,
and had visited [Appellant] in prison on numerous occasions in the
time period of 2008 through 2010. Additionally, the
Commonwealth did not have the opportunity for cross-
examination, and Zawodniak’s credibility and demeanor were not
able to be assessed by the trier of fact.
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Id. Moreover, the record reveals that Meade, formerly Holfelder, offered
inconsistent testimony. Although Appellant previously identified her as his
“assistant” for the purpose of speaking with his co-defendants in support of
his 2010 PCRA petition, Meade tried to portray herself as simply performing
an innocent official notary function with no understanding of the significance
to Appellant’s appeal and with no interest in the outcome of Appellant’s case.
Meade testified: “I’m not part of the case. I literally just notarized the paper.”
N.T., Hearing, 3/8/21, at 21-25. Meade’s testimony was undercut by the
record. Meade visited Appellant in prison on the following dates: October 13,
2008, January 1, 2009, March 29, 2009, July 19, 2009, January 1, 2010, April
22, 2010, September 24, 2010 and October 14, 2010. Additionally, Meade
also wrote a statement in support of Appellant’s 2010 PCRA petition. In the
statement, Meade stated in relevant part:
Approximately August of 2009, I started assisting Steven Vogt
with some of the clerical and other paperwork regarding his
habeas petition after seeing the clear constitutional violation that
occurred in his trial. I took it upon myself to look for the parties
involved in the case. I did try finding the parties through regular
methods and utilized search engines such as google.com. . . .
After paying the fees I found an address and phone number for
Margaret Zawadniak [sic]. I called the number and Ms. Zawadniak
was quite difficult and said she has not talked about the case to
anyone over the years, not even her family. . . . She finally
agreed to make a written statement and did so on August 25,
2010.
Meade (Holfelder) Statement, 9/14/10, attached as Exhibit B to Appellant’s
Third PCRA Petition. Accordingly, based on the foregoing, we cannot conclude
that the PCRA court abused its discretion in finding the affidavit unreliable and
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determining that Appellant failed to offer sufficient evidence to authenticate
it.18
In sum, in light of the foregoing, the PCRA court did not abuse its
discretion in declining to admit into evidence the purported recantation letter
and affidavit and therefore, denying Appellant’s after-discovered evidence
claim.
Lastly, we address Appellant’s claim that the PCRA court erred when it
failed to sua sponte take judicial notice and consider the Third Circuit decision
filed on August 9, 2021 in connection with his civil action against the Secretary
of the Department of Corrections and the mailroom employees at SCI-
Fayette.19 Appellant, however, does not explain how or why the Third Circuit
decision is relevant or material to the claims asserted in the instant—his fifth—
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18 Even if Appellant somehow was able to authenticate the affidavit, it still
would not have been admitted into evidence because it does not fall into any
hearsay exceptions. Specifically, there simply is no evidence of record to
explain how the Zawodniak affidavit could possibly be construed as a former
testimony or statement against interest under Pa.R.E. 804(b).
19 This Court has explained the proper exercise of judicial notice:
Pa.R.E. 201(b) governs judicial notice of adjudicative facts. The
rule provides: “A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Pa.R.E. 201(b). “A
court may take judicial notice of an indisputable adjudicative fact.”
Interest of D.S., 622 A.2d 954, 957 (PA. Super. 1993). A fact is
indisputable if it is so well established as to be a matter of common
knowledge. Id. Judicial notice is intended to avoid the formal
(Footnote Continued Next Page)
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PCRA petition. Indeed, as noted earlier, the Third Circuit decision was
inapplicable to the instant dispute and it did not terminate Appellant’s federal
litigation, because the court simply vacated the District Court’s order
dismissing Appellant’s Fourteenth Amendment procedural due process claim
and directing the District Court to address it at summary judgment or trial, as
appropriate. See Vogt, 8 F.4th at 187. Because the Third Circuit decision
pertained solely to Appellant’s constitutional claims, and therefore had no
bearing on the outcome of Appellant’s PCRA petition, we discern no error,
regardless of whether the PCRA court took judicial notice or considered the
circuit court decision. Appellant obtains no relief.
Order affirmed.
Judge Murray joins the memorandum.
Judge McLaughlin concurs in the result.
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introduction of evidence in limited circumstances where the fact
sought to be proved is so well known that evidence in support
thereof is unnecessary. 220 Partnership v. Philadelphia Elec.
Co., 650 A.2d 1094, 1096 (Pa. Super. 1994).
Judicial notice allows the trial court to accept into evidence
indisputable facts to avoid the formality of introducing evidence to
prove an incontestable issue. D.S., 622 A.2d at 957. However,
the facts must be of a matter of common knowledge and derived
from reliable sources “whose accuracy cannot reasonably be
questioned.” Pa.R.E. 201(b)(2).
Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super. 2003). Here,
Appellant does not claim that the Third Circuit decision determined any
adjudicative facts material to this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
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