David Lee Yohn v. William J. Love; the Attorney General of the State Ofpennsylvania; the District Attorney of Lehighcounty, Pennsylvania, District Attorneyof Lehigh County, Appellant, 76 F.3d 508 (3d Cir. 1996)

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 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, 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 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 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.⁶ 

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.⁷  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 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.⁸  The judge and the prosecutor spoke with the Chief Justice on the only two available telephones. Defense counsel did not participate in the conversation.⁹  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.¹⁰ 

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 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 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 and impartial trial in violation of the fifth, sixth, and fourteenth amendments to the United States Constitution.¹¹ 

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 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, Y--- U.S. ----, 114 S. Ct. 645, 126 L. Ed. 2d 603 (1993). Because here the district court did not conduct an evidentiary hearing,¹²  we will exercise plenary review of the district court's decision granting the writ.

Criminal defendants in a state court proceeding are entitled to federal habeas corpus relief if they show that their detention violates the fundamental liberties of the person guaranteed by the U.S. Constitution. Frank v. Mangum, 237 U.S. 309, 325-26, 35 S. Ct. 582, 586, 59 L. Ed. 969 (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...."¹³  Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2062-63, 80 L. Ed. 2d 674 (1984). The essentials of a fair trial were set forth by the Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682 (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 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 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, 43 S. Ct. 265, 267, 67 L. Ed. 543 (1923) (citing Frank v. Mangum, 237 U.S. at 326, 35 S. Ct. at 586). 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, 87 S. Ct. 1428, 1446, 18 L. Ed. 2d 527 (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."

Because of the ex parte¹⁴  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,¹⁵  and the conversation with the Chief 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.¹⁶ 

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 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 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. 520-21.)

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.Cons.Stat.Ann., refer to the collective body of "the Supreme Court." None of these sections would apply to this case.¹⁷ 

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; 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 various publications to be printed for use by the 'judicial department.' " Id. at 397-98, 470 A.2d 1048. 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.¹⁸ 

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).¹⁹  Article II, Section D of the IOPs reinforces the duty of the collective body of the supreme court to adjudicate matters 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 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.²⁰  (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 (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.

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).²¹ 

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, 99 S. Ct. 3104, 61 L. Ed. 2d 877 (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. 478 Pa. at 494-95, 387 A.2d 425. 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.

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.²²  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 Schools 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 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.²³ 

Since there is no authority empowering a single justice of the supreme court to intervene in a discretionary ruling of a 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.

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 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.

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, 111 S. Ct. 1246, 1264-65, 113 L. Ed. 2d 302 (1991), reh'g denied, 500 U.S. 938, 111 S. Ct. 2067, 114 L. Ed. 2d 472 (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, 629-30, 113 S. Ct. 1710, 1717, 123 L. Ed. 2d 353 (1993), reh'g denied, 508 U.S. 968, 113 S. Ct. 2951, 124 L. Ed. 2d 698 (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, --- U.S. ----, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995), clarifying two issues involving the standard. First, 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 ----, 115 S. Ct. at 995. In phrasing this inquiry, the Supreme Court relied on its earlier decision in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (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. U.S. at ----, 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 ----, 115 S. Ct. 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, 66 S. Ct. at 1247 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, 66 S. Ct. at 1247. The crucial inquiry is the impact of the error on the minds of 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, 66 S. Ct. at 1248. 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 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.²⁴  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 co-conspirators, Lynn and Southerland.²⁵  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.²⁶  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.²⁷  Therefore, the wiretap evidence was crucial to the prosecutor's case.²⁸  Indeed, because the tape was admitted, Yohn alleges he 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, 123 L. Ed. 2d 353 (1993) to Yohn's trial. The Commonwealth likens the 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.

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, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986), is instructive. In Crane, the petitioner sought 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, 106 S. Ct. at 2144. The Court acknowledged its "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts," id. at 689, 106 S. Ct. at 2146, 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, 106 S. Ct. at 2146. 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, 106 S. Ct. at 2146-47. 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. 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.

For the reasons set forth above, we will affirm the district court's order granting the Petition for Writ of 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.