Yohn v. Love

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

2-9-1996

Yohn v. Love
Precedential or Non-Precedential:

Docket 95-1412

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 95-1412
___________

DAVID LEE YOHN

vs.

WILLIAM J. LOVE; THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA; THE DISTRICT ATTORNEY OF LEHIGH
COUNTY, PENNSYLVANIA

District Attorney of Lehigh County,

Appellant

___________

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 94-cv-00524)
___________

Argued
November 28, 1995
Before: MANSMANN, COWEN and SEITZ, Circuit Judges.

(Filed February 9, 1996)
___________

Richard J. Makoul, Esquire (Argued)
461 Linden Street
Allentown, PA 18102

Counsel for Appellee

Michael P. McIntyre, Esquire (Argued)
First Assistant District Attorney
Office of District Attorney
P.O. Box 1548
Lehigh County Courthouse
Allentown, PA 18102

Counsel for Appellant

1
 ___________

OPINION OF THE COURT
__________

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 (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.

2
 I.

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

3
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.0 Later that day, when Southerland met with Yohn,

state police attempted to record their 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.0 Yohn and Lynn were

subsequently arrested and charged with murder, robbery, burglary,

criminal trespass, crimes committed with firearms, and criminal

conspiracy.0

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

0
The reel-to-reel recorder was the primary device relied
upon by the state police to record any statements made by Yohn.
The transmitter allowed the police to overhear the conversation
in addition to serving as a back up for the reel-to-reel
recorder.
0
The reel-to-reel recorder failed to record any of the
conversation and only fragments of their conversation were
received and recorded from the transmitter.
0
Lynn provided a written statement on March 15, 1985
implicating himself, Yohn and Southerland. Three days later,
Lynn issued a subsequent statement to the police from prison in
which he claimed to have seen Yohn holding the shotgun
immediately after Kollar was shot. In return for his cooperation
and trial testimony, the Commonwealth agreed to accept his pleas
of guilty to third degree murder and attempted burglary.

4
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.0 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

0
The tape was approximately thirty minutes long with
less than two minutes questionably audible. Certain words and
parts of sentences were audible, but there were numerous gaps
between words and sentences. Defense counsel argued that these
gaps made the fragmented audible portion virtually
incomprehensible and unintelligible, resulting in the entire tape
being untrustworthy and inadmissible as evidence.

The prosecution conceded that large portions of the
tape were inaudible, but contended that one or two minutes of
conversation were sufficiently clear so that the jury could
understand. The prosecutor argued that in order to facilitate
understanding and permit the jury to follow the tape with a
minimum of difficulty, the court, prosecution and defense should
collectively derive a transcript to be provided to the jury.

5
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, 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.

6
 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,0

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.

0
Before retiring the jurors, the judge told them that
the court had a very important issue to resolve and that it was
going to take some time.

7
 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 stand. Trooper

Gerken was the Pennsylvania state police officer who was

listening to the wiretap conversation and taking notes as it was

being recorded. On offer of proof, the Commonwealth stated that

Trooper Gerken would testify to what he heard and the notes he

recorded while listening to this conversation. Defense counsel

objected to such testimony, arguing that Trooper Gerken's

testimony could not be more reliable that the tape recording

8
because he had listened to the conversation through the recording

equipment. The judge sustained the objection, ruling that the

testimony would have "the same prejudicial effect" as the tape.

This argument and ruling took place at a sidebar conference.

Still at sidebar, the prosecutor requested a

continuance, stating that he would seek a writ of prohibition

from the Pennsylvania Supreme Court. The court denied the

request for a continuance and instructed the parties to proceed.

In open court, the prosecutor then requested a fifteen minute

recess. The judge called counsel back to sidebar, where the

prosecutor further strongly expressed his disagreement, prompting

the judge to grant the requested recess.0
0
MR. MAKOUL: Your Honor --

THE COURT: This is the trial ruling and let's go.

MR. McINTYRE: We are asking for a recess.

THE COURT: So you are.

MR. McINTYRE: You have to hold me in contempt because
I will get a Writ of Prohibition filed
right now.

THE COURT: I'm not going to hold you in contempt.

MR. McINTYRE: You have to. I'm getting a Writ of
Prohibition.

THE COURT: Don't get so excited. We have a trial
ruling.

MR. McINTYRE: You lose most.

THE COURT: What?

MR. McINTYRE: You heard me.

THE COURT: What?

9
MR. McINTYRE: I said you lose them most.

THE COURT: I stand on my trial ruling on this, Mr.
McIntyre.

MR. McINTYRE: I'm asking for a recess. I think we
should be allowed the opportunity to
have a recess. I want to talk to Bill
Platt and decide what we are going to
do.

Sometimes you just can't take what you
have done to us in this case.

THE COURT: Mr. McIntyre, don't talk so silly. That
tape was an absolute absurdity.

MR. McINTYRE: A witness can't testify to what he
heard?

THE COURT: It has the same prejudicial effect in
coming across in bits and pieces in the
tape. I saw his transcript. It didn't
convince me anymore than that. He would
have the same prejudicial effect of
taking parts of sentences which were
inaudible and had gaps in them and
everything else. That has the same
prejudicial effect.

MR. McINTYRE: I see in every case where a witness
testifies as to a conversation he
overhears. He has to overhear every
word; is that your opinion?

MR. MAKOUL: Your Honor --

MR. McINTYRE: Can we research this issue, Judge?

THE COURT: That's not my opinion.

MR. MAKOUL: The Court has made a ruling. This is
clearly improper.

MR. McINTYRE: And the Court made lots of rulings which
it changed its mind on. I'm asking for
a recess to get research to you, Judge.

10
MR. MAKOUL: Your Honor, I'm sorry to hear him carry
on like this.

MR. McINTYRE: I'm sorry to hear you carry on too.

MR. MAKOUL: Let's proceed with the trial. I think
that's my client's right.

MR. McINTYRE: That's what I asked when you asked to
have him reverse himself, let's proceed
with the trial. Now I'm asking for a
recess to either do that or get research
to you because, Judge, it's outlandish
to say this man can't testify to what he
heard.

MR. MAKOUL: I object to that kind of bullying and
intimidation to the Court. That's
outrageous.

THE COURT: All right. We will give you a recess.

MR. McINTYRE: Thank you, Judge.

MR. MAKOUL: May I ask what for, the purpose or
reason?

MR. McINTYRE: I don't think I have to tell you. I
stated it on the record.

MR. MAKOUL: I would like to know.

MR. McINTYRE: I'm not stating anything to you.

THE COURT: I don't think he has to let me know. He
wants the Court to extend him that
privilege and I am. I'll extend it.

I think you are overreacting, Mr.
McIntyre. You have a coconspirator that
testified. You got your tape. The tape
was absolutely prejudicial.

MR. McINTYRE: Later on I'll tell you what I think of
you in this case.

MR. MAKOUL: I don't believe this.

THE COURT: I don't either.

11
 After the recess, the prosecutor informed the court at

sidebar that he had placed a call to the chambers of Pennsylvania

Supreme Court Chief Justice Robert N.C. Nix and had reached a law

clerk. The law clerk advised the prosecutor that the Chief

Justice was in conference, but would attempt to contact the trial

judge when the conference was concluded. The prosecutor

requested a continuance until he was able to speak with the Chief

Justice. The request was denied.

The court then granted the Commonwealth's request for

an instruction to the jury regarding the exclusion of the tape,

informing the jury that he had ordered the tape excluded after

originally ruling that it was admissible, and that the jurors

were not to believe that the Commonwealth intended to mislead

them by referring to the tape in opening statement.0 Upon

request of defense counsel, the court also instructed the jurors

that they were not to draw any adverse inferences against Yohn

from the fact that they knew a wiretap had occurred. After

questioning one additional witness, the Commonwealth rested.

Defense counsel was in the process of questioning his

first witness when the court announced, "Something has come up"

and the court recessed until after lunch. The judge had been

0
The judge told the jury that when he recessed the court
early the previous day, he did so in order to consider the
admissibility of the tape of the wiretap conversation between
Southerland and Yohn. He told them that defense counsel objected
to admitting the tape because it was inaudible and difficult to
understand. The court told the jury that before the trial
started he had ruled the tape admissible, but after listening to
it again on more sophisticated equipment, both with and without a
transcript, he determined that the tape was not admissible.

12
notified that the Chief Justice was calling his chambers in

response to the telephone call placed earlier by the prosecutor.

The trial judge, the prosecutor and defense counsel

proceeded to the trial judge's chambers.0 The judge and the

prosecutor spoke with the Chief Justice on the only two available

telephones. Defense counsel did not participate in the

conversation.0 He was standing next to the prosecutor, but was

not able to hear any of the Chief Justice's remarks.

The Chief Justice asked the prosecutor to relate what

had prompted the call placed to his chambers. The prosecutor

explained the background regarding the exclusion of the tape, and

the trial judge agreed that the facts as set forth by the

prosecutor were essentially correct. The tape was not played for

the Chief Justice. At this point, the Chief Justice began

speaking to the trial judge. After this conversation concluded,

the trial judge told counsel for both parties that he was going

to allow the tape to be played for the jury.0

0
The proceedings in chambers were not made part of the
record.
0
Defense counsel asserts in his brief and at oral
argument that he believed that the topic of the conversation was
the Commonwealth's request for a stay to file a writ of
prohibition, and therefore, did not feel it was necessary to
participate at this point. At oral argument before us, defense
counsel stated that he could not have participated in the
telephone call had he so desired because the prosecutor was so
engrossed in his conversation with the Chief Justice that defense
counsel would literally have had to wrestle him to the floor to
get the phone.
0
Defense counsel alleges in his brief that, over the
noon recess, he unsuccessfully attempted to contact the Chief
Justice for an explanation of the Chief Justice's authority to
intervene in a discretionary ruling of the trial court. Defense
counsel further asserts that on November 1, 1985, he was able to

13
 When court resumed, the judge stated on the record at a

sidebar conference "that [at] approximately 20 of 12:00 I

received a call from the Chief Justice relative to this case who

said to me that regardless of my ruling in respect to the tape

that I should defer that ruling and frame the issue and allow the

tape to be played. This I'm sure was a directive from him which

the court will abide by." Defense counsel objected, arguing that

he had never been apprised of what had transpired with regard to

the Chief Justice's intervention. The prosecutor related his

actions for the record: "I gave [the law clerk] my version of

the fact that we had a pre-trial ruling which permitted me to use

the tape and transcript, that I relied on that in giving an

opening statement. After my opening statement the judge changed

his mind, the way I look at it." The prosecutor stated that he

informed the law clerk that he wanted the Chief Justice to issue

a stay of the proceedings so that he could file a writ of

prohibition.

Still at sidebar, the trial judge stated that he did

not change his ruling regarding the tape, but that he had "been

directed by the Chief Justice to let it in." Discussion of the

talk to the Chief Justice during the noon recess, at which time
the Chief Justice allegedly relayed what he was told by the
prosecutor and why he responded the way he did. When defense
counsel asked him how he could do so without defense counsel's
participation, the Chief Justice allegedly replied, "That was
wrong." The conversation then came to an end.

These alleged facts are not material to the issue of
the violation of Yohn's rights. In addition, apparently they
were not proffered to the district court. Thus, we have no
occasion to consider them.

14
telephone call was completed with defense counsel stating that he

understood the trial judge to be "in disagreement with the

admissibility of the tape but feels [he] is under a directive of

the Chief Justice," to which the judge replied, "Correct."

Defense counsel then requested a stay for purposes of seeking

review of the Chief Justice's order by the full supreme court;

the request was denied.

The jurors were then brought into the courtroom. The

court told them that it had now been decided that they were going

to hear the tape of the wiretap. The jurors were also told that

the tape was thirty minutes long, and that their attention was

going to be directed to approximately two minutes of the

conversation. They were informed that the prosecutor had

prepared a transcript covering the two minutes of conversation at

issue. The jurors were instructed not to regard the transcript

as evidence, but to consider it as an aid to assist them in

following the taped conversation. They were told that the

transcript would be collected immediately after the tape

concluded. The prosecutor then reopened his case, and the tape

was admitted.

On November 5, 1985, the jury found Yohn guilty of

felony murder, robbery, conspiracy and related charges. Timely

motions for a new trial and in arrest of judgment were filed and

heard before an en banc panel of the Court of Common Pleas of

Lehigh County on November 3, 1986. In his motions, Yohn alleged

that his constitutional rights of due process of law and equal

protection of the law were violated when the Chief Justice

15
intervened in the case. The motions were denied and on June 13,

1988, Yohn was sentenced to life imprisonment and a consecutive

term aggregating five to ten years for the non-merged offenses.

Yohn appealed to the Superior Court of Pennsylvania,

which affirmed the judgment of the court of common pleas on June

22, 1989. Commonwealth v. Yohn, No. 01907 Philadelphia 1988.

Yohn then filed a petition for allowance of appeal to the Supreme

Court of Pennsylvania on July 14, 1989, Commonwealth v. Yohn, No.

656 E.D. Allocator Docket 1989, with a motion for recusal of the

Chief Justice. His main claim, once again, concerned the

intervention of the Chief Justice during the jury trial. Three

and one-half years later, on February 19, 1993, the Supreme Court

of Pennsylvania issued a per curiam order denying the petition

for allowance of appeal. Neither Pennsylvania appellate court

addressed Yohn's claims that the Chief Justice's interference

with the trial resulted in violations of his constitutional

rights.

Yohn filed a Petition for Writ of Habeas Corpus in the

United States District Court for the Eastern District of

Pennsylvania, alleging that the Chief Justice interfered without

jurisdiction in Yohn's ongoing jury trial by conducting an ex

parte telephone conversation with the trial judge, in which the

Chief Justice ordered the trial judge to reverse a discretionary

ruling to exclude wiretap evidence. As a direct result of the

Chief Justice's interference, Yohn claimed, he was denied a fair

16
and impartial trial in violation of the fifth, sixth, and

fourteenth amendments to the United States Constitution.0

Yohn's petition was assigned to a magistrate judge for

consideration. In his Report and Recommendation, the magistrate

judge recommended that the district court grant the petition and

order Yohn released from prison unless the Commonwealth affords

him a new trial within one hundred twenty days. The Commonwealth

filed timely objections to the Report and Recommendation.

The district court issued an order approving the Report

and Recommendation of the magistrate judge. In granting Yohn's

petition, the district court directed that Yohn be released from

custody unless a new trial was commenced within one hundred

twenty days from the date of the order. The court also ordered

that the new trial be conducted without admission of the tape

recorded evidence.

The Commonwealth appeals to us from the district

court's order granting the writ.

In a habeas corpus proceeding, the district court's

legal conclusions are subject to plenary review, but factual

conclusions are subject to review for clear error only. United

0
Yohn also alleged in his habeas petition that he was
denied due process and equal protection under the Constitution as
a result of the Chief Justice's wrongful intervention in his
appeal to the Pennsylvania Supreme Court. Yohn contends that the
Chief Justice originally recused himself from participating in
Yohn's Petition for Allocatur and then withdrew his recusal,
intervening to influence other justices to deny allocatur. This
claim was raised for the first time in the habeas petition.

We need not address the merits of this allegation as
our disposition of the first claim moots this issue.

17
States v. Luther, 954 F.2d 910, 911 (3d Cir. 1992). When,

however, the district court does not hold an evidentiary hearing

and engage in independent factfinding and the habeas evidence is

limited to that contained in the state court record, our review

of the district court's decision to grant the habeas petition is

plenary. McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir.),

cert. denied, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993). Because

here the district court did not conduct an evidentiary hearing,0

we will exercise plenary review of the district court's decision

granting the writ.

II.

Criminal defendants in a state court proceeding are

entitled to federal habeas corpus relief if they show that their

0
The Commonwealth argued that it was entitled to an
evidentiary hearing to uncover the true facts. Our review of the
entire state court record, including the trial transcripts, shows
that there are no relevant facts in dispute. In federal habeas
corpus proceedings, federal courts are required to hold
evidentiary hearings only if the state court, after a full
hearing, has not found the relevant facts through reliable
evidence. Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989).

In cases where an evidentiary hearing is not mandatory,
such as the one before us, the holding of a hearing is left to
the discretion of the district court. See, e.g., deVyver v.
Warden, U.S. Penitentiary, 388 F. Supp. 1213, 1215-16 (M.D. Pa.
1974) (even though extensive pleadings in the habeas corpus
proceeding raised some issues of fact, no hearing was necessary
where such factual issues were not material to the determinative
questions of law to be decided, and were not relevant to the
resolution of the case); Tijerina v. Thornburgh, 884 F.2d 861,
866 (5th Cir. 1989) (hearing is not required where only questions
of law are involved). In addition, the Commonwealth made no
proffer of the anticipated testimony, by way of affidavit or
pleading. Thus, we find that the district court did not abuse
its discretion in failing to hold an evidentiary hearing.

18
detention violates the fundamental liberties of the person

guaranteed by the U.S. Constitution. Frank v. Mangum, 237 U.S.

309, 325-26 (1915). The fundamental liberty at issue here is the

right to a fair and impartial trial under the due process clause

of the fourteenth amendment, and the several provisions of the

sixth amendment. "The Constitution guarantees a fair trial

through the Due process Clauses, but it defines the basic

elements of a fair trial largely through the several provisions

of the Sixth Amendment, including the Counsel Clause . . . ."0

Strickland v. Washington, 466 U.S. 668, 684-85 (1984). The

essentials of a fair trial were set forth by the Supreme Court in

In re Oliver, 333 U.S. 257, 273 (1948):
A person's right to reasonable notice of a
charge against him, and an opportunity to be
heard in his defense--a right to his day in
court--are basic in our system of
jurisprudence; and these rights include, as a
minimum, a right to examine the witnesses
against him, to offer testimony, and to be
represented by counsel. [footnote omitted]

Our ultimate question is whether the Chief Justice's

involvement in an ongoing jury trial, by conducting an ex parte

0
The sixth amendment reads as follows:

In all criminal prosecutions, the
accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the
State and district wherein the crime shall
have been committed, which district shall
have been previously ascertained by law, and
to be informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
defence.

19
telephone conversation with the trial judge and the prosecutor

which resulted in the trial judge reversing an earlier

discretionary ruling made by the state court to exclude wiretap

evidence, violated Yohn's right to a fair trial.

A.

A state criminal trial comports with the due process

requirements of the fourteenth amendment "so long as it includes

notice, and a hearing, or an opportunity to be heard, before a

court of competent jurisdiction. . . ." Moore v. Dempsey, 261

U.S. 86, 94 (1923) (citing Frank v. Mangum, 237 U.S. at 326). We

turn initially to these three requirements of procedural due

process to determine if they were met in this case.

With respect to the first requirement, adequate notice

requires disclosure of all the issues to be discussed and

sufficient time to prepare. In re Gault, 387 U.S. 1, 33 (1967).

Yohn was certainly aware that the Commonwealth had contacted the

Chief Justice to request a stay for the purpose of filing a writ

of prohibition with the Pennsylvania Supreme Court. The first

time Yohn had notice that the Commonwealth addressed the merits

of the admissibility of the tape, however, was after the

telephone conversation between the Chief Justice, the trial

judge, and the prosecutor had ended. Yohn thus had no advance

notice that the merits of the tape's admissibility would be

discussed with the Chief Justice. As a result, he had no time to

prepare a response to the Commonwealth's de facto "appeal."

20
 Because of the ex parte0 nature of the discussion with

the Chief Justice, Yohn was denied a hearing or an opportunity to

be heard. The trial judge and the prosecutor talked to the Chief

Justice on the only two available telephones. Thus, Yohn's

attorney was denied the opportunity to participate in the

conversation because of the physical constraints of the equipment

in the judge's chambers. Moreover, Yohn's counsel was not

informed that the conversation had turned from the prosecutor's

request for a stay to a discussion on the merits of admitting the

tape. Consequently, Yohn was denied the chance to present an

argument to support his position that the trial judge's ruling to

exclude the wiretap evidence should stand.

The Commonwealth further contends that since it was not

error to admit the tape,0 and the conversation with the Chief

0
Black's Law Dictionary defines "ex parte" proceeding as
any "judicial or quasi judicial hearing in which only one party
is heard . . . ." Black's Law Dictionary 576 (6th ed. 1990).

Here, only one party, the Commonwealth, had the
opportunity to participate in the telephone conversation, and the
subject matter of the phone call went beyond what Yohn's counsel
expected would be discussed. In our view, this was clearly an ex
parte proceeding.
0
The Commonwealth points out that both an en banc panel
of the court of common pleas and the superior court affirmed the
admission of the tape. As noted by the district court, however,
the issue of the tape's admissibility is left to the sound
discretion of the trial judge, who is in the best position to
"determine the audibility of the tape and its trustworthiness as
evidence." Commonwealth v. Leveille, 289 Pa.Super. at 253-54,
433 A.2d at 52.

Because the trial judge in this case, prior to the
Chief Justice's phone call, exercised his discretion in ruling
the tape inadmissible, an appellate court would have been
unlikely to reverse it, especially in light of his findings that
the tape was inaudible, "an absolute absurdity", and "absolutely

21
Justice merely caused the trial judge to return to his original

ruling on the admission of the tape, there was no

constitutional violation. This argument, however, ignores the

basic tenets of procedural due process--notice and a meaningful

opportunity to be heard. Due process is not so much concerned

with the result, but with the procedure followed in reaching that

result. Here, Yohn was entitled to have notice that the merits

of the tape's admissibility were going to be discussed and to

have an opportunity to present his side of the issue. The denial

of these essential elements of procedural due process constitute

the violation. The fact that the tape was ultimately admitted

into evidence does not negate the procedural violations which

occurred.

We turn now to the third element of due process -- that

the opportunity to be heard occur before a court of competent

jurisdiction. This requires an examination of the authority of

the Chief Justice's involvement to the extent the material facts

of the telephone conversation are not disputed by the parties.0

The jurisdiction of the Pennsylvania Supreme Court

originates from Article 5, § 2 of the Pennsylvania Constitution

(1968). The general powers of the supreme court are codified at

42 Pa. Cons. Stat. Ann. § 502 (1978). This section states:
The Supreme Court shall have and exercise the
powers vested in it by the Constitution of

prejudicial." But for the intervention of the Chief Justice, the
tape would have been excluded from evidence, and this ruling
would most likely have been upheld on appeal.
0
We gleaned the relevant, undisputed facts from the
notes of testimony recorded at Yohn's criminal trial and from
both counsels' briefs and oral argument before us.

22
 Pennsylvania, including the power generally
to minister justice to all persons and to
exercise the powers of the court, as fully
and amply, to all intents and purposes, as
the justices of the Court of King's Bench,
Common Pleas and Exchequer, at Westminster,
or any of them, could or might do on May 22,
1722. The Supreme Court shall also have and
exercise the following powers:

(1) All powers necessary
or appropriate in aid of its
original and appellate jurisdiction
which are agreeable to the usages
and principles of law.

(2) The powers vested in
it by statute, including the
provisions of this title.

The "powers" of the supreme court "on May 22, 1722" referred to

in section 502 are set forth in the historical note to 17 P.S.

§41 (now repealed). The Act of 1722 refers to "the said judges,

or any two of them . . ." in describing the powers of the supreme

court. This language is clear that a single justice would not be

vested with the powers set forth in the Act of 1722 and thus

could not act alone in exercising the powers conferred to the

supreme court in section 502. Section 502 was the law in effect

at the time of Yohn's trial and subsequent appeals.

Our conclusion is reenforced by the language in section

726, 42 Pa. Cons. Stat. Ann. (1978), describing the supreme

court's jurisdiction in King's Bench matters. Section 726

confers to "the Supreme Court" plenary jurisdiction over issues

of immediate public importance. Rule 3309 of the Pennsylvania

Rules of Appellate Procedure, 42 Pa. Cons. Stat. Ann., describes

the procedure to be followed when one applies for extraordinary

23
relief under 42 Pa. Cons. Stat. Ann. § 726. Again, the rule

specifically refers to "the Supreme Court" in stating that it may

grant or deny an application or set it down for argument.

Pa.R.A.P. 3309(c). The note to Rule 3309 indicates that the rule

is derived from 42 Pa. Cons. Stat. Ann. §§ 502 and 726, and the

first sentence of Section 1, Article 5 of the Pennsylvania

Constitution. Rule 3309 also sets forth the specific procedures

to be followed in applying for relief under the supreme court's

King's Bench authority, none of which were followed here. (We

detail these procedural infirmities involving Rule 3309 infra at

p. _____.)

Section 721 of Title 42, Pa. Cons. Stat. Ann., sets

forth the original jurisdiction of "the supreme court." The

statute refers to the collective body of the court in stating

that it has original but not exclusive jurisdiction over habeas

corpus actions, writs of mandamus or prohibition, and quo

warranto petitions.

Another area over which "the supreme court," as a

collective body, has jurisdiction is appeals from final orders of

the common pleas courts. 42 Pa. Cons. Stat. Ann. § 722 (1980).

Under section 722, the supreme court has exclusive jurisdiction

in eight types of cases.

The remaining sections which address the jurisdiction

of the supreme court, sections 723, 724 and 725 of Title 42, Pa.

24
Cons. Stat. Ann., refer to the collective body of "the Supreme

Court." None of these sections would apply to this case.0

The only instances where the Chief Justice of the

supreme court is authorized to act singly are specifically

enumerated in the Pennsylvania Constitution, the statutes, and

various Rules of Judicial Administration. The constitutional and

the statutory duties were thoroughly reviewed in the case of In

Re: Subpoena Served by the Pennsylvania Crime Commission on the

Judicial Inquiry and Review Board, Dated June 7, 1983, Number

83194, and In Re: Petition for Enforcement of a Subpoena to the

Pennsylvania Judicial Inquiry and Review Board, 79 Pa. Commw.

375, 396-98, 470 A.2d 1048 (1983), aff'd, 512 Pa. 496, 517 A.2d

949 (1986) (hereinafter "In Re: Subpoena"). The Chief Justice,

as distinct from the supreme court as a body, is authorized to

(1) "preside over the trial of any contested election of the

Governor, Lieutenant Governor or Attorney General;" (2) "accept a

request from a common pleas court president judge for the

designation of a judge from another judicial district to act as

the election return board when no one within the district is

eligible;" (3) "select four judges to serve on the Pennsylvania

Commission on Sentencing;" (4) "appoint a non-judiciary member of

the Capitol (sic) Preservation Committee;" and, (5) "review and

approve decisions of the Department of General Services regarding

the size, character, quantity and method of distribution of

0
Section 723 involves appeals from the Commonwealth
Court; section 724 involves the allowance of appeals from the
superior and the commonwealth courts; and, section 725 involves
direct appeals from constitutional and judicial agencies.

25
various publications to be printed for use by the `judicial

department.'" Id. at 397-98. In addition to these duties

described in In Re: Subpoena, supra, there are other references

to the Chief Justice in the Pennsylvania Rules of Judicial

Administration, 42 Pa. Cons. Stat. Ann., none of which are

pertinent here.0

Recently, the Pennsylvania Supreme Court adopted formal

written internal operating procedures (IOPs). The IOPs were

written to implement Article 5 of the Pennsylvania Constitution,

Pennsylvania statutes and Rules of Appellate Procedure, and the

customs and traditions of the court. I.O.P., Article I. See

also Marks and Kaplan, Down the Right Road, 17 Jan. Pa. Law. 21

(1995).0 Article II, Section D of the IOPs reinforces the duty

of the collective body of the supreme court to adjudicate matters

0
For example, Rule 506, authorizes the Chief Justice to
order a hearing and the attendance of personnel at such hearing
held to determine compliance with the directives of the
Administrative Office. Rule 701 authorizes the Chief Justice to
assign any consenting retired or former judge and any active
judge to temporary judicial service on any court upon request by
the president judge. Rule 706 sets forth the selection process
for the Chief Justice, and assignment of the duties of Chief
Justice in the event that the Chief Justice resigns or is
temporarily unable to perform his duties. This rule was
promulgated pursuant to Article 5, § 10(d) of the Pennsylvania
Constitution and 42 Pa. Cons. Stat. Ann. § 325. Title 20, Pa.
Cons. Stat. Ann. § 5511 gives the Chief Justice the power to
appoint or authorize a special master in guardianship proceedings
when so requested by the presiding judge of the common pleas
court where the action is pending.
0
Although the IOPs of the Pennsylvania Supreme Court did
not become effective until October 1, 1994, they codified, to
some extent, the practices and procedures of the court to date.
Moreover, the written IOPs validate our previous conclusion that
the collective body of the supreme court is vested with the power
to adjudicate matters before it, as distinct from a single
justice.

26
before it. Section D states in relevant part: "The assignment

of a given matter to a single justice is solely for the

efficiency of the Court, and neither enhances the power of the

assigned justice nor diminishes the duty of the remaining

justices as to its proper disposition."

According to the IOPs, the Chief Justice performs the

following duties: (1) presides at case conferences following

oral argument, leads the court's discussion, and calls for a

tentative vote on the decision in each case; (2) has discretion

to alter the assignment order in civil and criminal cases to

achieve equal distribution; (3) assigns the case to an individual

justice for preparation of a draft opinion (in order of

seniority); and (4) conducts various activities relative to the

voting on cases. I.O.P, Article III, sections B(1) and B(3),

Article IV, Section A(3).

Of particular relevance is Article VI, I.O.P.,

entitled, "Motions, Miscellaneous Petitions and Applications for

Relief." This article covers the procedures for handling

emergency motions, writs of prohibition and motions invoking the

court's King's Bench powers. Under this article, the Chief

Justice is authorized to "prepare memoranda setting forth the

positions of the parties, and a recommended disposition." I.O.P.,

Art. VI, Section B. Section B further states that a "vote of the

majority of those participating is required to implement the

proposed imposition." The Chief Justice is also required to

assign two justices on a monthly rotating basis to review

emergency petitions, and to publish a calendar of duty

27
assignments. I.O.P., Art. VI, Section C. Thus, there are six

situations in which the Chief Justice may act alone under the

IOPs.

Article VI also sets forth the circumstances under

which a single justice may rule on a motion. Section D states:

"A duty justice may entertain and may grant or deny any request

for relief which may, under Pa.R.A.P. 123, or 3315 properly be

sought by motion, except that a single justice may not dismiss or

otherwise determine an appeal or other proceeding." I.O.P., Art.

VI, Section D.0 (Emphasis added.) We note initially that the

justice granting or denying relief must be the duty justice.

There is no indication in this case that the Chief Justice was

the duty justice on October 31, 1985, or that the prosecutor even

contacted the prothonotary to determine the name of the duty

justice on that particular day.

Second, an application for relief under Rule 123 of the

Pennsylvania Rules of Appellate Procedure must be made in writing

with proof of service on all parties. It must set forth the

basis for the request and the relief sought. Any other party has

fourteen days to file an answer to the application. Subsection

(e) allows a single judge of an appellate court to entertain and

to grant or deny any request for relief so long as the appellate

court does not require that such applications be acted upon by

the entire court. In this case, the Commonwealth's emergency

motion could have been heard by a single justice if it had been

0
Pa.R.A.P. 3315 is not applicable here as it involves
the review of stay orders of the superior or commonwealth courts.

28
(1) made in writing and contained the substantive and procedural

elements for notice; (2) submitted to the prothonotary for

docketing and assignment to a duty justice, and (3) contained a

request for a stay of the proceedings. Here, the Commonwealth

did not comply with the requirements of Rule 123. The prosecutor

did not contact the prothonotary of the supreme court to notify

him of the emergency motion. Critically, the telephone

conversation exceeded a request for a stay and resulted in an

"interlocutory appeal." Such an appeal is not properly sought

under Rule 123, but should have been made under Rule 1311.

Article IV, Section D of the IOPs specifically prohibits a single

justice from dismissing or otherwise determining an appeal.

We turn now to the Pennsylvania requirements for the

filing of an appeal, which here would be viewed as an

interlocutory appeal. The Commonwealth concedes that it did not

comply with the procedural requirements under Pennsylvania law

for filing an appeal. Interlocutory appeals by permission are

governed by 42 Pa. Cons. Stat. Ann. § 702(b) and Pa.R.A.P., Rule

1311, 42 Pa. Cons. Stat. Ann. In order for the Commonwealth to

appeal an interlocutory order under Rule 1311, the trial court

must state that its "order involves a controlling question of law

as to which there is substantial ground for difference of

opinion, and that an immediate appeal from the order may

materially advance the ultimate termination of the matter. . . ."

The trial judge did not issue the required statement in this

case. Therefore, the Commonwealth could not pursue an appeal of

the trial judge's order under Rule 1311.

29
 Rule 301 of the Pennsylvania Rules of Appellate

Procedure sets forth the requirements for an appealable order.

Generally, an order of court is not appealable until after it has

been docketed in the trial court. Subsection (e) sets forth a

special procedure for emergency appeals. Rule 301(e) provides:
Where the exigency of the case is such as to
impel an immediate appeal and the party
intending to appeal an adverse action is
unable to secure the formal entry of an
appealable order pursuant to the usual
procedures, the party may file in the lower
court and serve a praecipe for entry of an
adverse order, which action shall constitute
entry of an appealable order for the purposes
of these rules. The interlocutory or final
nature of the action shall not be affected by
this subdivision.

Title 42, Pa.R.A.P., Rule 301(e), Pa. Cons. Stat. Ann.. The

Commonwealth could have filed a praecipe for entry of an adverse

order with the Court of Common Pleas of Lehigh County. Had it

done so, the Commonwealth would then have possessed an appealable

order from which an appeal may have been taken as of right under

Pa.R.A.P., Rule 311(a)(7), 42 Pa. Cons. Stat. Ann. (1985).0

0
The 1992 amendments to Rule 311, Interlocutory Appeals
as of Right, added the following paragraph:

(d) Commonwealth Appeals in Criminal Cases.
In a criminal case, under the circumstances
provided by law, the Commonwealth may take an
appeal as of right from an order that does
not end the entire case but where the
Commonwealth asserts that the order will
terminate or substantially handicap the
prosecution.

The 1992 amendment merely codified the decisional law of the
time. See, e.g., Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d
522 (1978) (Pennsylvania Supreme Court would entertain the

30
 As we stated earlier, Rule 3309 sets forth the

procedures to be followed in applying for extraordinary relief

under 42 Pa. Cons. Stat. Ann. § 726 (King's Bench powers). Rule

3309(a) requires that a written application shall be served on

the affected persons and on the clerk of court having subject

matter jurisdiction over the application. The adverse party has

fourteen days to file an answer. Rule 3309(b). The application

and answer, if any, are distributed to the supreme court for its

consideration, which may subsequently grant or deny the

application or schedule it for oral argument. Rule 3309(c). In

this case, there was no written application for relief filed by

the Commonwealth. In addition, both the district court and the

magistrate judge, relying on Philadelphia Newspapers, Inc. v.

Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443

U.S. 913 (1979), found that the extraordinary relief available to

the Pennsylvania Supreme Court under King's Bench jurisdiction

was not appropriate for exercise in this case. In Philadelphia

Newspapers, Inc., the Pennsylvania Supreme Court held that King's

Bench jurisdiction is to be invoked sparingly, in matters of

public importance, and where the petitioner's rights are clearly

demonstrated by the record. 487 Pa. at 494-95. We agree with

the magistrate judge and the district court that the facts of

this case do not rise to the level of importance needed to invoke

King's Bench jurisdiction.

Commonwealth's appeal from an interlocutory order where the order
effectively caused the termination of the prosecution's case or
substantially impaired the presentation of its case.)

31
 The remaining vehicle for the Commonwealth's appeal was

the writ of prohibition, over which the Pennsylvania Supreme

Court is vested with original, but not exclusive, jurisdiction.0

42 Pa. Cons. Stat. Ann. § 721. The writ of prohibition involves

a proceeding between an inferior court and a superior court, as a

result of which the superior court exercises control to prevent

the inferior court from exceeding the limits of its powers and

jurisdiction. Glen Mills School v. Court of Common Pleas of

Philadelphia County, 513 Pa. 310, 314-15, 520 A.2d 1379, 1381

(1987) (citing Carpentertown Coal & Coke Co. v. Laird, 360 Pa.

94, 61 A.2d 426 (1948)); Capital Cities Media, Inc. v. Toole, 506

Pa. 12, 19, 483 A.2d 1339, 1342 (1984). In Capital Cities Media,

Chief Justice Nix, writing for the court, stressed that "the writ

of prohibition is limited in scope to questions of jurisdiction;

the writ will not lie to correct errors of law." 506 Pa. at 18,

483 A.2d at 1342. In the earlier Pennsylvania case on writs of

prohibition, Carpentertown Coal & Coke Co., supra, the supreme

0
At trial, the Commonwealth stated that it intended to
petition the supreme court for a writ of prohibition. The record
reveals, however, that the Commonwealth did not do so.

The appropriate procedure for filing a writ of
prohibition is contained in Pa.R.A.P., Rule 3307, 42 Pa. Cons.
Stat. Ann. Rule 3307 essentially contains the same requirements
as Rule 3309 regarding extraordinary relief. In addition,
Article VI, Section A of the supreme court's IOP, which governs
applications requesting the original jurisdiction of the supreme
court, states that "[n]o motions, petitions or applications will
be considered which were not first filed in the office of the
prothonotary and thence assigned unless a Rule of Appellate
Procedure specifies otherwise." Rule 3307 does not state
otherwise. Therefore, the Commonwealth would have to have filed
a Petition for Writ of Prohibition with the prothonotary first.

32
court stated that a writ of prohibition "will never be granted

where there is a complete and effective remedy by appeal,

certiorari, writ of error, injunction, or otherwise." 360 Pa. at

102, 61 A.2d at 430 (citations omitted).

The requirements for granting a writ of prohibition are

met by satisfying the two-pronged test set forth in Capital

Cities Media. 506 Pa. at 19-20, 483 A.2d at 1339, 1342-43. A

petitioner must show that (1) there is no adequate remedy at law

which would afford relief, and (2) there is an "extreme necessity

for the relief requested to secure order and regularity in

judicial proceedings." Id. Under the facts of this case, the

Commonwealth had another remedy available to it. As mentioned

previously, the Commonwealth could have filed a praecipe with the

Court of Common Pleas of Lehigh County for entry of an adverse

order under Rule 301(e) and a subsequent interlocutory appeal

under Rule 311(a)(7). It is unlikely, therefore, that the

supreme court would have issued a writ of prohibition given the

availability of this avenue of appeal.0

Since there is no authority empowering a single justice

of the supreme court to intervene in a discretionary ruling of a
0
Furthermore, the magistrate judge and the district
court predicted that because the trial court acted within its
discretion in ruling on the admissibility of the tape, the
supreme court would not have granted a writ of prohibition. See
Philadelphia Newspapers, Inc., 478 Pa. at 494 n.11, 387 A.2d at
430 n.11 ("[p]rohibition is an extraordinary writ designed to
assume regularity in judicial proceedings by preventing unlawful
exercise or abuse of discretion"). The function of the writ "is
to restrain or prohibit an offending court from continuing its
unwarranted conduct when continuation threatens imminent harm to
the individual on whose behalf the writ is issued." Id.
(Citations omitted.)

33
trial judge and none of the appropriate appeal mechanisms were

followed, the Commonwealth's "appeal" was not held before a court

of competent jurisdiction. We, therefore, hold that the district

court did not err in finding that Yohn's constitutional rights to

procedural due process were violated.

We feel constrained to address a contention by the

Commonwealth that the Chief Justice was merely giving advice to

the trial judge -- perhaps an expression of collegiality from an

experienced judge to assist at a difficult moment. It is

irrelevant to our decision whether the Chief Justice's remarks

were intended or received as advice or as a directive. What is

relevant is that as a result of the Chief Justice's remarks, the

trial judge changed his ruling, without according Yohn due

process of law. The Constitution does not permit such

transgressions, irrespective of well-meaning intention.

B.

We further conclude that the ex parte conversation

effectively denied Yohn his sixth amendment right to the

assistance of counsel. Unlike our finding in United States ex

rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972) (court held

pretrial photographic identification by witnesses did not occur

at a critical stage of proceedings), the ex parte telephone

conversation occurred at a "critical stage" of the trial.

"`Critical stages' are those links in the prosecutorial chain of

events in which the potential for incrimination inheres or at

which the opportunity for effective defense must be seized or

34
foregone." Id. at 742. The only way Yohn's counsel could have

effectively defended Yohn's position was to be able to

participate contemporaneously in the telephone conversation with

the Chief Justice. Yohn's counsel was not able to participate,

and, as a direct result of the Chief Justice's remarks, the trial

judge changed his ruling.

III.

In addition to finding that a constitutional error

occurred during Yohn's trial, we must also find that the error

was not harmless in order to grant the habeas relief.

Constitutional errors have been categorized as one of two types:

structural error or trial error. A structural error is a defect

in the trial mechanism itself, affecting the entire trial

process, and is per se prejudicial. Arizona v. Fulminante, 499

U.S. 279, 309-310 (1991), reh'g denied, 500 U.S. 938 (1991).

Trial error occurs during the presentation of the case to the

jury, and may be quantitatively assessed in the context of all

other evidence. Brecht v. Abrahamson, 507 U.S. 619, ___, 113

S.Ct. 1710, 1717 (1993), reh'g denied, 113 S.Ct. 2951 (1993).
Thus, trial errors are subject to a harmless error analysis. Id.

The constitutional error which occurred during Yohn's trial is of

the trial type. Therefore, we will review the violation under

the harmless error standard.

The Supreme Court most recently spoke to the harmless

error standard in O'Neal v. McAninch, 115 S.Ct. 992, 130 L.Ed.2d
947 (1995), clarifying two issues involving the standard. First,

35
the Court discarded the "burden of proof" requirement in favor of

a judicial inquiry: "Do I, the judge, think that the error

substantially influenced the jury's decision?" Id. at 995. In

phrasing this inquiry, the Supreme Court relied on its earlier

decision in Kotteakos v. United States, 328 U.S. 750 (1946).

Second, the Court made clear that its holding in O'Neal applies

only in the limited situation in which a judge, after a thorough

review of the record, remains in "grave doubt" as to the likely

effect of an error on the jury's verdict. 115 S. Ct. at 994. The

Court explained that by "grave doubt" it meant that, "in the

judge's mind, the matter is so evenly balanced that he feels

himself in a virtual equipoise as to the harmlessness of the

error." Id. Further, "[w]hen a federal judge in a habeas

proceeding is in grave doubt about whether a trial error of

federal law had `substantial and injurious effect or influence in

determining the jury's verdict,' that error is not harmless. And,

the petitioner must win." Id.

Kotteakos still applies to determine whether or not the

error was harmless. Id. at 995-96. There the Court opined that

when the error relates to the minimum amount of evidence

necessary to sustain a conviction, so that if eliminated the

proof would not be legally sufficient, the prejudice is

substantial. Kotteakos, 328 U.S. at 763-64 n.18. In addition,

"[i]f, when all is said and done, the conviction is sure that the

error did not influence the jury, or had but very slight effect,

the verdict and the judgment should stand . . . ." Id. at 764.
The crucial inquiry is the impact of the error on the minds of

36
the jurors in the total setting. Id. It is thus inappropriate

to ask whether there was sufficient evidence to support the

result, apart from the phase of the trial affected by the error.

Id. at 765. The correct inquiry is whether the error had a

substantial influence on the verdict despite sufficient evidence

to support the result apart from the error. Id.

Framing the harmless error inquiry of Kotteakos in the

context of Yohn's trial, we must ask whether the admission of the

wiretap evidence had a substantial and injurious effect or

influence on the jury's deliberations. From the trial record, we

know that the existence of the tape was repeatedly mentioned to

the jury: initially, during voir dire, when prospective jurors

were asked about their beliefs concerning "participant

monitoring," and later during the opening statements of the

Commonwealth and Yohn's counsel. The prosecutor told the jury

that the tape would show that Yohn incriminated himself in the

murder of Kollar. Yohn's counsel told the jury the tape was

barely audible with gaps in sentences.

Certainly the jury was aware of the legal controversy

with respect to the admissibility of the tape because of the

numerous sidebar conferences and in camera hearings. First, the

trial judge dismissed the jury for the day on October 30, 1985,

once again to take up the issue of the tape's admissibility. The

court told the jury that it had a very important issue to resolve

and it would take a while. The next day, the court told the

jurors that the important issue that the court needed to resolve

and which necessitated their dismissal the previous day was the

37
admissibility of the tape. At the request of the prosecutor, the

judge gave a curative instruction regarding a change in the

ruling on the tape's admissibility. The judge told the jurors

that they were not going to hear the tape, that the Commonwealth

did not intend to mislead them, and that they should not draw a

negative inference against Yohn because of the tape. After the

intervention of the Chief Justice, the trial judge informed the

jurors that the tape was now going to be played; they would be

given a transcript of the two minutes at issue, but they were not

to regard the transcript as evidence. The tape was then played

and the jurors were given a transcript to assist them in

understanding the tape. The transcript was collected after the

tape concluded.0 In his closing arguments, the prosecutor again

brought up the tape. He asked the jury to infer that Yohn was

the shooter by filling in some of the gaps in the tape with his

own words. The court stenographer's transcript recorded when the

tape was played for the jury differs from the prosecutor's

version to which he referred in his closing argument.

Besides the wiretap evidence, the only solid evidence

incriminating Yohn were the statements and/or testimony of the

0
The day after the tape was played for the jury, defense
counsel, at a sidebar conference, brought up the fact that
excerpts from the transcript of the tape appeared in a newspaper
article that day. Apparently, the trial judge admitted showing
the transcript to a reporter and discussed it with the reporter.
Because the transcript was not part of the record, Yohn's counsel
objected, and requested that all of the jurors be polled to
ascertain whether any of them had read the article in the
newspaper. After the jury poll, it was determined that none of
the jurors had seen the article.

38
co-conspirators, Lynn and Southerland.0 The Commonwealth does

not dispute the district court's finding that the tape was

crucial to its case: the prosecutor needed to have the tape of

the wiretap played for the jury in order to validate the

statements of the co-conspirators.0 The credibility of the co-

conspirators was called into question because of their status as

co-conspirators, and because they entered into a plea bargain

with the Commonwealth in exchange for their cooperation.0

Therefore, the wiretap evidence was crucial to the prosecutor's

case.0 Indeed, because the tape was admitted, Yohn alleges he

0
In addition to the tape, the Commonwealth offered into
evidence numerous exhibits consisting of photographs of the
victim, crime scene, pistols, Yohn's and Southerland's homes;
ammunition and other shotgun supplies, a 45 cartridge; a
certificate evidencing Yohn's ownership of a 45 caliber pistol;
drugs; lab and autopsy reports; statements and the preliminary
hearing testimony of Donald Lynn; and the statement of Gerald
Southerland.
0
In his testimony at trial as well as in his statements
to police at the time of his arrest, Lynn implicated himself,
Yohn and Southerland in the attempted burglary and murder of
Kollar. He stated that immediately after he heard the shotgun
blast, he ran outside and saw Yohn holding a shotgun. In a
statement dated March 14, 1985, Southerland told police that Yohn
was the shooter. Neither Lynn nor Southerland, however, actually
saw Yohn shoot Kollar.
0
In return for his testimony at trial against Yohn, Lynn
accepted a plea bargain for third degree murder and attempted
burglary. Southerland agreed to wear a body wire to try and
elicit incriminating statements from Yohn, and in exchange, was
charged only with burglary, not murder. Southerland was released
on his own recognizance, subsequently fled the jurisdiction
before trial, and thus, was not available to testify. Over the
objection of Yohn's counsel, Southerland's March 14, 1985
statement was admitted into evidence.
0
We are surprised by the Commonwealth's argument
regarding harmless error -- that since the trial judge ruled the
tape was inaudible, and if it was truly inaudible, then the tape
could not have added anything to the Commonwealth's case.
Further, if the tape added nothing to the Commonwealth's case, it

39
was forced to take the stand to attempt to nullify the prejudice

which resulted from the tape.

Applying the Kotteakos standard to these facts we

conclude that the error was not harmless. The prejudice began

when the trial court reversed its preliminary ruling, thus

excluding the tape. The jury was left to speculate about what

was really on the tape. Then the tape, which the trial judge

found to be inaudible and highly prejudicial, was played for the

jury. Again, the jurors were left to draw their own inferences

as to the incriminating nature of the taped conversation. And,

in case the jury was having trouble deciphering those statements

on their own, the prosecutor supplied his own incriminating

interpretation of the tape recording in his closing argument.

Because of all the controversy over the tape throughout the

trial, the jury must have believed it was an important piece of

evidence. It is reasonable to conclude, therefore, that the tape

substantially influenced the jury's decision. Thus, the

constitutional error was not harmless.

We are not persuaded by the Commonwealth's attempt to

analogize the facts of Brecht v. Abrahamson, 507 U.S. 619, 113 S.

Ct. 1710 (1993) to Yohn's trial. The Commonwealth likens the

could not have prejudiced the jury and substantially affected
their verdict, and thus, the error was harmless.

The Commonwealth's position here is contrary to the
very essence of the controversy in the criminal trial which gave
rise to this appeal. Further, the Commonwealth was willing to
seek a writ of prohibition to get the tape admitted into
evidence, a rather extreme measure for something that the
Commonwealth now argues would not add anything to its case.

40
references made to the tape during voir dire and opening

arguments to the state's use in Brecht of petitioner's post-

Miranda silence for impeachment purposes. The Commonwealth

argues that, when taken in context, the playing of the tape after

the jury had already heard from both sides of its existence, and

its alleged contents, was completely harmless. Further, the

Commonwealth contends that it would have been more harmful not to

have played the tape after the jury had already heard of its

existence and alleged contents.

We disagree with the Commonwealth's analysis. First,

the references to the tape occurred at the beginning of the trial

and weighed on the jurors' minds throughout the trial. The

misuse of evidence in Brecht occurred at the end of trial, when

the petitioner took the stand. Second, the purpose for

introducing the tape was to inculpate Yohn, not to impeach his

credibility. Finally, it is not sufficiently clear that the

evidence of guilt against Yohn was weighty as in Brecht.

IV.

We turn finally to the appropriateness of the relief

fashioned by the district court -- the exclusion of the taped

evidence at retrial. The federal habeas statute, 28 U.S.C.

§2243, directs the federal courts to act "as law and justice

require" in fashioning habeas relief.

While we were not able to find any federal cases

directly on point, the Court's opinion in Crane v. Kentucky, 476
U.S. 683 (1986), is instructive. In Crane, the petitioner sought

41
habeas relief to obtain a new trial and to have admitted at

retrial, evidence which bore directly on the voluntariness and

credibility of his confession. 476 U.S. at 686. The Court

acknowledged its "traditional reluctance to impose constitutional

constraints on ordinary evidentiary rulings by state trial

courts," id. at 689, citing its prior decisions holding that

trial judges must be given "`wide latitude' to exclude evidence

that is `repetitive . . ., only marginally relevant,' or poses an

undue risk of `harassment, prejudice [or] confusion of the

issues.'" Id. at 689-90. Yet, the Court in Crane had little

difficulty determining on the facts before it that the exclusion

of the evidence deprived the defendant of a fair trial, and thus,

ordered the evidence admissible on retrial. Id. at 690-91. From

Crane we learn that under the right set of facts, federal habeas

courts may fashion a remedy involving an evidentiary ruling which

normally is reserved for the trial judge.

Here, the district court felt that permitting the

introduction of the tape at retrial "would, in essence, render

the habeas proceeding a nullity by vindicating Yohn's

constitutional rights in the abstract while having no practical

effect." The district court opined that, "but for the violation,

Yohn would have been tried without the tape's admission into

evidence." While the latter statement is true, we cannot find

support in either the caselaw or the facts for such a remedy

here.

Discretionary rulings regarding the admissibility of

evidence are still best left to the province of the trial judge.

42
The underlying basis of this habeas proceeding is Yohn's initial

motion in limine, questioning the audibility of the tape. Unlike

Crane, Yohn was not seeking to admit exculpatory evidence, but

rather, was attempting to exclude evidence which, he claimed, was

highly prejudicial. Yohn questioned the tape's trustworthiness

and its prejudicial effect on the jury, since the tape was barely

audible, with substantial gaps in sentences. The state trial

judge remains in the best position to make that determination.

Hopefully, on retrial, the mistakes that were made during the

first trial will not be repeated. We are confident that the

trial judge assigned to Yohn's retrial will deal with this issue

in a more timely manner to avoid the procedural problems

encountered the first time.

One final matter bears mention. Earlier in this

opinion, we quoted at length the exchange chiefly between the

prosecutor and the trial judge. Without question, this is the

most caustic and disrespectful confrontation by a prosecutor this

court has read. Despite the resulting difficulties and the

passage of time, it was clear at oral argument before us that the

prosecutor had not the slightest remorse for his personal affront

to the trial judge. We take this opportunity to remind him of

his responsibilities as an officer of the court and that

effective counsel can disagree without being disagreeable.

V.

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 For the reasons set forth above, we will affirm the

district court's order granting the Writ of Petition for Habeas

Corpus, unless the state court affords Yohn a new trial within

one hundred and twenty days from the date of the final judgment

of this court. We will vacate that part of the order which

directs the exclusion of the tape-recorded evidence upon retrial.

44