76 F.3d 508 (3rd Cir. 1996), 95-1412, Yohn v. Love

Docket Nº:95-1412.
Citation:76 F.3d 508
Party Name:David Lee YOHN v. William J. LOVE; The Attorney General of the State of Pennsylvania; The District Attorney of Lehigh County, Pennsylvania, District Attorney of Lehigh County, Appellant.
Case Date:February 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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76 F.3d 508 (3rd Cir. 1996)

David Lee YOHN


William J. LOVE; The Attorney General of the State of

Pennsylvania; The District Attorney of Lehigh

County, Pennsylvania, District Attorney

of Lehigh County, Appellant.

No. 95-1412.

United States Court of Appeals, Third Circuit

February 9, 1996

Argued Nov. 28, 1995.

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[Copyrighted Material Omitted]

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Richard J. Makoul (Argued), Allentown, PA, for Appellee.

Michael P. McIntyre (Argued), First Assistant District Attorney, Office of District Attorney, Allentown, PA, for Appellant.

Before MANSMANN, COWEN and SEITZ, Circuit Judges.


MANSMANN, Circuit Judge.

The Commonwealth of Pennsylvania brings this appeal from an order of the district court granting a Petition for Writ of Habeas Corpus, filed by David Lee Yohn, a state prisoner currently incarcerated at the State Correctional Institution at Huntington, Pennsylvania. The Commonwealth contends that Yohn is not entitled to habeas relief because no constitutional error occurred when the Chief Justice of the Supreme Court of Pennsylvania became involved in a trial court ruling on the admissibility of evidence.

We find that the district court did not err in holding that the ex parte involvement of the Chief Justice in the criminal trial violated Yohn's right to procedural due process under the fourteenth amendment, and his right to a fair trial under the sixth amendment. We further find that this violation did not constitute harmless error under the standard set forth in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

Therefore, we will affirm the order of the district court granting the writ of habeas corpus. We do not, however, find any authority for the federal district court to order the exclusion of the wiretap evidence upon retrial. Therefore, we will vacate the order of the district court to the extent that it directs that the wiretap evidence be excluded and leave that ruling to the state court upon retrial.


The relevant facts are not disputed. On January 23, 1985, Andrew Kollar was shot and killed by a single shotgun blast outside his home in Old Zionsville, Lehigh County, Pennsylvania. During its investigation of the incident, the Pennsylvania State Police questioned Gerald Southerland, an individual who reputedly had prior drug dealings with Kollar. Southerland initially denied any knowledge or involvement in Kollar's murder.

Later, accompanied by his attorney, Southerland implicated David Lee Yohn and Donald Lynn as accomplices in an unsuccessful robbery scheme. According to Southerland, since Kollar did not know Lynn, Lynn was recruited to gain entry into Kollar's house under the guise of car trouble. Lynn was to restrain Kollar at gunpoint while Southerland and Yohn entered the house and searched for money. Although Lynn successfully gained entry into Kollar's home, the plan went awry and Kollar, attempting to escape, was shot in the back. Southerland identified Yohn as the shooter.

In exchange for this information and his later cooperation as a prosecution witness, state authorities agreed to charge Southerland only with burglary and permitted him to remain free on his own recognizance. In addition, the deal was conditioned upon the accuracy of Southerland's role in the incident as the "wheelman" and his continued cooperation to assist the prosecution in obtaining evidence which implicated his co-conspirators. To accomplish this, Southerland agreed to wear a body wire and to meet with Yohn.

On March 15, 1985, Southerland was wired with a reel-to-reel tape recorder and transmitter in anticipation of meeting with Yohn. 1 Later that day, when Southerland met with Yohn, state police attempted to record their

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conversation as they travelled to various locations in and around Lehigh County. State police monitored these conversations from a van outfitted with receiving and recording equipment. 2 Yohn and Lynn were subsequently arrested and charged with murder, robbery, burglary, criminal trespass, crimes committed with firearms, and criminal conspiracy. 3

Yohn filed a pre-trial motion to suppress the tape of the wiretap conversation on constitutional and other procedural grounds. This motion was denied by a common pleas judge in an order and opinion filed on September 10, 1985.

Immediately preceding the commencement of voir dire on October 21, 1985, the defense made an oral motion in limine requesting a ruling from the trial court concerning the admissibility of the tape recording of the wiretap or, in the alternative, a ruling which precluded the prosecution from referring to the tape during voir dire and opening statement until the trial court had ruled on its admissibility. The court then held an in camera hearing during which the judge sat in the jury box and listened to the tape while reading a transcript of the recorded conversation prepared by a secretary in the District Attorney's office. 4 The court deferred any ruling until the next morning to enable the court stenographer to submit his rendition of the taped conversation as another means of evaluating the tape's clarity and comprehension.

The next morning, on October 22, 1985, the judge heard arguments in chambers and overruled the defense objection to the statements obtained through the use of the wiretap, but indicated that a satisfactory transcript still needed to be derived. Jury selection then commenced, and during voir dire, counsel for the Commonwealth, as well as for Yohn, questioned potential jurors regarding how they felt about the police obtaining and using wiretap evidence. Counsel for Yohn inquired as to whether they would have any objection to wiretap evidence "if it was garbled, full of problems, inaudible, and very difficult to hear."

Before jury selection continued on the next day, defense counsel asked the court for a clarification of its ruling regarding the admissibility of the tape. Yohn acknowledged that the court's ruling permitted the prosecution to question potential jurors about wiretap evidence; he was uncertain whether the court ruled that the tape would be admissible at trial. Yohn further argued that if the court had ruled the tape admissible, it was obligated to make findings of fact on the record as required by Commonwealth v. Leveille, 289 Pa.Super. 248, 433 A.2d 50 (1981). Yohn also raised the issue of the court's previous dissatisfaction with the transcript.

In response, the trial judge stated that he agreed "that there is more to be resolved in respect to the tape". The court held that the prosecutor would be permitted to continue referring to the tape during voir dire, and that the admissibility issue would be addressed after jury selection.

Trial commenced without any further discussions of, or rulings on, the admissibility of the tape recording. In his opening statement,

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the prosecutor explained the tape of the wiretap, how it was made and what it would be used to prove. The prosecutor gave his own interpretation of the contents of the tape, telling the jury that the tape would show that Yohn incriminated himself as to the crimes charged.

Defense counsel also devoted a portion of his opening statement to the tape recording, advising the jurors that, if permitted to hear the tape, they would discover that nearly all of the recorded conversation was inaudible. Defense counsel explained that the entire wiretap conversation was not sufficiently audible to permit the jury to know what was said or what was intended to be said by the entire conversation. Of the minute or so of barely audible conversation, there were gaps in the sentences so words were left dangling and the jury would not hear the entire sentences. Defense counsel opined that it was the jurors' responsibility to determine what was said on the tape, not what the prosecutor asserted was on the tape. Further, he told them Yohn had an explanation for the words consistent with his innocence.

On October 30, 1985, the Commonwealth called Trooper Robert Gerkin to the stand to testify to his observations of the wiretap conversation. At that point, the judge decided to take up the issue of the admissibility of the tape, retired the jury, 5 and ordered another in camera hearing so a final ruling could be made. The prosecutor expressed his belief that a ruling on admissibility had already been made, and that the only outstanding issue was the preparation of a transcript. To this, the judge replied:

the transcript bothers me very much and initially, given the question to decide, I agree I may have made a preliminary ruling. But it has always bothered me and I think I should give it a more thorough consideration. I have real problems with it to be honest with you as to whether this new transcription is going to help.

Using more sophisticated audio equipment than during the hearing on the initial motion in limine, the Commonwealth again played the tape while the judge sat in the jury box with a court stenographer. The thirty minute tape was played in its entirety and the judge did not have a transcript. The two minute segment that the prosecutor proposed to introduce was then replayed while the judge read the transcript prepared by the prosecutor. After hearing argument, the judge stated on the record that he found the tape to be inaudible when hearing it without the transcript, and was of such poor quality that it would lead to jury speculation as to its contents. Further, the trial judge referred to the tape as an "absolute absurdity" and as "absolutely prejudicial". The judge granted Yohn's motion to exclude the tape recording.

When the trial reconvened the next day, the Commonwealth recalled Trooper Gerken to the...

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