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May 5, 1995

DAVID LEE YOHN, Petitioner

The opinion of the court was delivered by: CLARENCE C. NEWCOMER

I. Procedural History

 II. Factual Background

A. The Crime and Arrests
B. The Tape and the Pre-Trial Motion to Suppress
C. The Motion in Limine
D. Trial
E. The Telephone Call
F. The Aftermath

 III. The Effect of the Telephone Conversation

 IV. The Habeas Petition

A. Procedural Due Process
1. Adequate Notice
2. The Chance to be Heard
3. A Court Having Jurisdiction
4. The Commonwealth's Argument
B. Harmless Error
1. The Burden of Pleading
2. The Burden of Proof
3. The Standard for Assessing Harmlessness
4. Application of the Standard
C. The Remedy

 V. Conclusion


 Presently before the Court is David Lee Yohn's Petition for Writ of Habeas Corpus, the Answer of Respondents thereto, *fn1" the Report and Recommendation of United States Magistrate Judge Charles B. Smith, Respondent's Objections thereto, and the record of the proceedings against Petitioner in the state courts of Pennsylvania. For the reasons that follow, the Report and Recommendation will be approved, and the Petition for Writ of Habeas Corpus will be granted.

 I. Procedural History

 On November 5, 1985, a jury convicted petitioner David Lee Yohn of second degree murder, robbery, conspiracy, and related charges after a trial before the Honorable James N. Diefenderfer of the Lehigh County Court of Common Pleas. Yohn filed timely post-trial motions in arrest of judgment and for a new trial raising numerous claims, including the allegation that Pennsylvania Supreme Court Chief Justice Robert N.C. Nix improperly intervened in the trial and caused Judge Diefenderfer to reverse his decision to exclude a tape recording. *fn2" These motions were denied on November 3, 1986 by an en banc panel of the Court of Common Pleas. *fn3" On June 13, 1988 Yohn was sentenced to life imprisonment on the second degree murder conviction and included offenses and a consecutive term aggregating five to ten years for the non-merged offenses.

 Yohn appealed his conviction directly to the Superior Court of Pennsylvania, which affirmed the judgment of the Court of Common Pleas on June 22, 1989. In this appeal, Yohn again raised his claim concerning the improper intervention of Chief Justice Nix. The Superior Court specifically declined to address this issue. *fn4"

 On July 14, 1989 Yohn petitioned the Pennsylvania Supreme Court for allocatur, again raising the intervention of Chief Justice Nix as grounds for reversal. At the same time, Yohn moved for recusal of Chief Justice Nix. On February 19, 1993 the Pennsylvania Supreme Court issued a per curiam order denying the petition for allowance of appeal.

 On January 26, 1994 Yohn filed the instant Petition under 28 U.S.C. § 2254, raising two grounds:

1. In violation of the 5th, 6th and 14th Amendment guarantees to a fair and impartial trial, Chief Justice Nix improperly and without jurisdiction interfered in Yohn's trial by conducting an ex parte telephone conversation with the trial judge that caused the trial judge to reverse involuntarily his decision to preclude admission of a tape recording; *fn5" and
2. In violation of constitutional due process and equal protection guarantees, Chief Justice Nix interfered in Yohn's allocatur petition by reversing his original decision to recuse himself and influencing the justices of the Supreme Court to deny the petition. *fn6"

 Magistrate Judge Smith addressed only the first of these claims in his Report and Recommendation issued on February 7, 1995, concluding that resolution of this claim rendered consideration of the second moot. *fn7" Magistrate Judge Smith recommended that this Court grant the petition and order Yohn released from custody unless the Commonwealth affords him a new trial within 120 days. The Commonwealth filed timely objections to the Report and Recommendation.

 A. The Crime and Arrests

 At approximately 11:40 p.m. on January 23, 1985 in Old Zionsville, Lehigh County, Pennsylvania, Andrew Kollar was killed outside his home, a victim of one shotgun blast to the back. Pennsylvania State Police learned that Kollar was a drug dealer and bookmaker known to keep large quantities of drugs and cash in his home and surmised that he was the subject of a failed robbery attempt. Jerry Southerland was reputedly involved in illicit transactions with Kollar, and rumors about his involvement in the murder started to circulate. Police suspicion began to focus on Southerland.

 On March 10, 1985 police questioned Southerland, who denied any knowledge of or participation in the killing. Some time later, however, Southerland changed his story and, accompanied by his lawyer, met with authorities in hopes of negotiating a deal. Law enforcement officials and Southerland reached an agreement that required Southerland to cooperate with the prosecution of others allegedly involved in the crime. In exchange, Southerland would be charged only with one count of burglary, rather than murder, and would be allowed to remain free on his own recognizance. The deal was contingent on the accuracy of Southerland's self-described role in the crime as simply the "wheelman."

 Pursuant to his agreement, Southerland gave authorities a statement implicating Yohn and Donald Lynn in the failed robbery; he identified Yohn as the one who fired the fatal shotgun blast. Southerland then agreed to wear a body wire and meet with Yohn to attempt to elicit incriminating statements from him. On March 15, 1985, pursuant to Pennsylvania wiretapping law, 18 Pa. C.S.A. § 5708, et seq., police wired Southerland with a transmitter. A reel-to-reel tape recorder was to serve as the primary device for recording any conversations between Southerland and Yohn. In the van was a receiver for the transmitter with an attached recorder that was to serve as a back up to the reel-to-reel recorder while also permitting the police to overhear the conversation as it took place.

 With the transmitter in place, Southerland met with Yohn and had discussions with him in a bar, in Southerland's car, and outside the car in an isolated area. The State Police were monitoring the conversations from a van containing receiving and recording equipment. The van was following Southerland's car throughout his meeting with Yohn. The reel-to-reel recorder failed to capture any of the conversation, and the transmitter fared little better, recording only fragments.

 Later that day, police arrested Yohn and Lynn on charges of murder, robbery, burglary, criminal trespass, crimes committed with firearms, and criminal conspiracy. Immediately after his arrest, and without counsel present, Lynn gave a statement implicating himself, Southerland and Yohn. Three days later, on March 18, 1985, Lynn amended the statement to add that, shortly after hearing the shot that killed Kollar, he had observed Yohn holding a shotgun. Eventually, Lynn reached an agreement with the prosecution under which, in exchange for his testimony at trial, he was permitted to enter pleas of guilty to charges of third degree murder and attempted burglary. Yohn elected to proceed to trial.

 B. The Tape and the Pre-Trial Motion to Suppress

 As noted above, portions of the conversation between Yohn and Southerland made their way onto the tape in the recorder attached to the transmitter. The tape was approximately thirty minutes in length. A fragment comprising about two minutes of this was partially audible. Yohn filed a motion to suppress the tape recording on constitutional and procedural grounds. Judge David E. Mellenberg denied the motion in an opinion and order filed on September 10, 1985.

 C. The Motion in Limine

 On October 21, 1985, immediately prior to voir dire, Yohn moved in limine for an order excluding the tape recording, or, alternatively, precluding the prosecution from referring to the tape until a ruling on its admissibility had been made. The court held an in camera hearing, with the judge sitting in the jury box while reading a transcript of the tape prepared by a secretary in the District Attorney's office. The court stenographer attempted to transcribe the tape. *fn8" Yohn argued that the tape was inaudible and untrustworthy, and would cause the jury to engage in ...

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