A post-conviction appeal by a former Kittaning man now serving life in prison for pelting a Muddy Creek Township man with rocks until he drowned in a strip mine pond in 1990 will return to Butler County Court, after the state Superior Court ruled that the county court erred in dismissing the appeal as untimely.

The Superior Court ruled Wednesday that the appeal filed by Steven D. Vogt, 47, from his cell at the state prison in Fayette County, would return to Butler County to be heard again, after concluding that its dismissal by the county court after being deemed untimely was made in error, “conflating the merits and timeliness analyses.”

In his fifth appeal, filed June 12, 2017, Vogt alleges that co-defendant Arthur McClearn sent him a letter dated May 17, 2017, in which McClearn recants his trial testimony implicating Vogt in the crime.

“The PCRA (Post-Conviction Relief Act) court dismissed the petition as untimely, concluding, without elaboration, that ... (Vogt) failed to demonstrate that the new evidence would have compelled a different verdict,” the Superior Court's decision states.

The timeliness exception for newly-discovered facts focuses on the facts themselves, not the source of the facts, the decision states, and the PCRA court dismissed Vogt's petition as untimely because he failed to demonstrate that the new evidence would have compelled a different outcome. However, the possibility of a different outcome at trial is not relevant to the timeliness of a petition, the document states, and the argument that McClearn's recantation letter “is simply a new source of previously known facts ... are the same as those asserted in a 2010 affidavit from (co-defendant Margaret) Zawodniak.”

“The flaw in the Commonwealth's argument is that it ignores the fact of McClearn's alleged recantation of his trial testimony,” the decision states.

The Superior Court decision states that the petition will return to the county for the court to “determine whether Appellant has alleged newly discovered facts, whether he exercised diligence in discovering those facts, and whether he filed his petition within 60 days of the first date on which it could have been filed.”

According to previous reporting, Vogt and Walter Cowfer, now 52, of Export, were found guilty of first-degree murder, kidnapping and robbery by a jury on Jan. 31, 1991.

They were implicated with three other people in the death of 60-year-old Francis Landry. Authorities believe the group in May 1990 conspired to rob Landry, who had recently moved from his Portersville-area home to Cowfer's place. Vogt and Cowfer reportedly pelted him with rocks for hours as he begged for his life, until he drowned in a strip mine pond in Clay Township.

An autopsy said Landry suffered broken ribs, bruises and scrapes before he died of asphyxiation due to drowning. Landry's body was discovered hours after his death by divers who had been using the pond for training.

The four male defendants reportedly used Landry's car and checkbook to pay for a trip to Florida before their arrest.

Vogt and Cowfer were sentenced by then-Butler County Judge Martin O'Brien to serve life in prison, plus 3 to 6 years.

Co-defendant Margaret Zawodniak, then a 32-year-old mother of three, was acquitted by the same jury.

McClearn, then 27, pleaded guilty to third-degree murder, and Michael Sopo, then 20, pleaded guilty to conspiring to kill Landry.

Both testified in Vogt and Cowfer's three-day trial. Sopo told the jury the killing was initiated by Vogt because he was angry with Landry for giving him heart medication that he had claimed was a narcotic sedative.

Court records say McClearn was sentenced to 4 to 8 years, and Sopo 1½ to 3 months in state prison.