II. Factual Background
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.
Yohn argued that the tape was inaudible and untrustworthy, and would cause the jury to engage in prejudicial speculation. The court reserved its ruling until the following morning, when it would have the opportunity to review the stenographer's transcript.
On October 22, 1985 the court overruled the defense objection to the tape in chambers, stating "we will let [the tape] go in, but I'm not satisfied with the transcript." On October 23, 1985 Yohn argued that the ruling regarding the tape was unclear, and, further, that if the court had made a ruling on the admissibility of the tape it was obligated to make findings of fact on the record, as required by Pennsylvania law.
The judge stated that he agreed "that there is more to be resolved in respect to the tape." He further stated that he would permit the prosecution to refer to the tape during voir dire, and that the issue would be taken up again after a jury was selected. The prosecution referred to the existence of recorded conversations during the questioning of prospective jurors.
Trial commenced without any further discussions of or rulings on the admissibility of the tape recording. In its opening statement, the prosecution devoted a considerable amount of time to an explanation of the tape recording, how it was made and what it would be used to prove. The defense also devoted a portion of its opening statement to the tape recording, advising the jury that, if it was permitted to hear the tape, it would discover that nearly all of the recorded conversation was inaudible.
When the Commonwealth attempted to introduce evidence based on the tape at trial, Judge Diefenderfer halted the trial and ordered another in camera hearing so that he could again consider the admissibility of the recording. The Assistant District Attorney 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, Judge Diefenderfer 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.