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COMMONWEALTH PENNSYLVANIA v. KIM LEE HUBBARD (01/28/77)

decided: January 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
KIM LEE HUBBARD, APPELLANT



COUNSEL

Peter T. Campana, Williamsport, for appellant.

Allen E. Ertel, Dist. Atty., Williamsport, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.

Author: Pomeroy

[ 472 Pa. Page 265]

OPINION OF THE COURT

On October 19, 1973, Jennifer Hill of South Williamsport, Pennsylvania, twelve years of age, failed to return

[ 472 Pa. Page 266]

    home after an overnight stay with a girl friend, Ruth Hubbard. Ten days later her body was discovered in a cornfield several miles from the Hubbard home. An autopsy disclosed that death had been caused by manual strangulation and had occurred on October 19. Kim Lee Hubbard, the twenty year old brother of Ruth Hubbard was indicted and tried for the murder. A jury found him guilty of murder in the second degree. This direct appeal followed.*fn1

I.

Appellant first contends that the evidence adduced at trial was not sufficient to support his conviction. Appellant argues that the circumstantial case presented against him (1) does not disprove his alibi defense; and (2) does not sufficiently exclude the possibility that other persons could have committed the crime. While the questions are close ones, we must reject appellant's contentions.

This Court has often recognized that circumstantial evidence may be sufficient to support a conviction. See, e. g., Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1975); Commonwealth v. Massart, 469 Pa. 572, 366 A.2d 1229 (1975); Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975); Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960). "The test of sufficiency of evidence is whether, accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Clark, 454 Pa. 329, 331, 311 A.2d 910, 911

[ 472 Pa. Page 267]

(1973). When viewed in this light the evidence introduced at trial may be summarized as follows:

At approximately 4:00 in the afternoon of October 19, Jennifer Hill left the Hubbard residence to return home from her overnight stay. She was next seen at 4:30 p. m. walking in front of the home of a neighbor of the Hubbards. At that time a metallic-green colored automobile was seen to approach Jennifer from behind. On the ledge behind the rear seat was a white construction helmet. The driver of the car stopped his car and gestured to Jennifer. In apparent recognition of the driver, Jennifer ran to the car, hopped in the front seat and was driven off. This was the last time she was seen alive.

Ten days later, on October 29, a member of the Civil Air Patrol Squadron discovered Jennifer's body lying in a cornfield five feet off of a short dirt road which connects the field to Sylvan Dell Road. Time of death was fixed at between 4:30 and 8:00 p. m. on October 19.*fn2 When discovered, Jennifer's body was only partially clad. Her clothing was not torn, however, and the autopsy revealed no evidence of rape or sexual attack. No signs of a struggle were found in the area in which the body was discovered. A search of the location did, however, yield two significant pieces of evidence: a clear boot-heel mark under the buttocks of the victim, and two tiremarks embedded in a mound of clay near the intersection of the dirt road and Sylvan Dell Road. The clay was not indigenous to the soil of the area, but had been deposited on the dirt lane by a bulldozer operator who had removed the substance from the cleats of his tires while working in the field at approximately noon on October 19. Because

[ 472 Pa. Page 268]

    exposure to the elements would have caused the clay to harden within thirty-six hours, it was concluded that the tire imprints, formed while the clay was yet soft, must have been made between twelve noon on October 19 and six p. m. on October 20.

On October 31, two police officers went to the Hubbard home to question the members of the Hubbard family about the circumstances of Jennifer's visit on October 19 and her disappearance. During the course of the questioning, appellant agreed to allow the police to inspect his automobile and his boots. The automobile was metallic-green and contained a white construction helmet on the ledge behind the rear seat. Imprints taken of the tires of the car and of the heels of the boots matched those imprints found in the cornfield. At trial, appellant admitted that no one other than he had used his boots or his automobile. Appellant steadfastly denied, however, ever having been in the cornfield in which the body was found.

At trial, appellant relied upon an alibi defense, namely, that he was at his home between 4:30 and 5:00 p. m. on October 19 and could not, therefore, have been the individual who beckoned Jennifer Hill into the automobile. To support this theory appellant relied primarily on the testimony of two witnesses -- his girl friend, Colleen Whitenight, and the victim's father, Jack Hill. Miss Whitenight testified that she had telephoned the Hubbard home at 4:30 p. m. on October 19 and conversed with appellant for approximately five minutes. Her testimony was flatly contradicted, however, by that of her father. Mr. Whitenight testified that he was with his daughter at the time she claims to have made the phone call and that he was certain that no such phone call had been made. The jury obviously chose to believe the testimony of Mr. Whitenight.

Jack Hill testified that appellant answered the phone when he telephoned the Hubbard home at 5:00 p. m. to

[ 472 Pa. Page 269]

    inquire about Jennifer's whereabouts. This testimony places appellant at his home thirty minutes after Jennifer was observed driving away in the metallic-green automobile. Appellant established at trial that it would take fifteen minutes for an automobile travelling at a speed of thirty-five miles an hour to drive from the point where Jennifer was seen boarding the car to the cornfield where her body was found, and then back to the Hubbard residence. It was further established that it takes between three to four minutes to cause a death by manual strangulation. Given these facts, plus the additional considerations that some time would have been required to go from the car to the place in the field where the body was found and that some moments must be allotted to the disrobing of the victim, appellant contends that it would have been physically impossible for him to have strangled Jennifer Hill, deposited her body in the cornfield and returned home by 5:00 p. m., in time to receive Mr. Hill's call. Appellant argues, therefore, that the Commonwealth's case, if anything, tends to corroborate his alibi.

Appellant's contention must, however, be rejected. The Commonwealth's theory of the case is not at all dependent upon proving that appellant killed Jennifer Hill in that cornfield, or, indeed, that he there concealed her body sometime between 4:30 and 5:00 p. m. on October 19. Rather, the Commonwealth's evidence tended to prove that the victim was strangled by appellant between 4:30 and 5:00 p. m. on October 19 and that her body was subsequently deposited in the cornfield sometime before six p. m. on October 20. We are satisfied that the evidence adduced at trial was sufficient to support this theory. When the evidence is so construed it cannot be said that the Commonwealth's evidence tended to verify appellant's alibi.

So too, must we reject appellant's contention that the evidence does not sufficiently link Hubbard to the murder to exclude the possibility that other persons could

[ 472 Pa. Page 270]

    have committed the crime. In support of this proposition appellant relies on our decision in Commonwealth v. Woong Knee New, 354 Pa. 188, 47 A.2d 450 (1946). In Woong Knee, the conviction was based entirely on evidence which placed defendant with the victim at the victim's home shortly before the victim was there murdered. There was, however, no evidence which tended to prove that the defendant had committed the crime or which cast doubt on the equally likely possibility that an unknown assailant had killed the victim after the defendant had left his company. In reversing the conviction we noted that:

"When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty." Commonwealth v. Woong Knee New, 354 Pa. 188, 221, 47 A.2d 450, 468 (1946).

See also Commonwealth v. Crews, 436 Pa. 346, 260 A.2d 771 (1970).

This case is not Woong Knee. The cornfield in which the body was found was not necessarily the scene of the murder. Rather, the evidence tended to show that the victim's body was deposited there after the strangulation occurred. Thus the murderer would likely be a person whose presence in the cornfield at some relevant time could be established. Despite repeated denials, Hubbard was placed in that cornfield, at the very point where the body was found. The finding of a clear print of his boot-heel underneath the victim's body would indicate that Hubbard had stood on that spot shortly before the body was deposited. That the victim was last seen alive boarding an automobile which matched the description of a car owned by appellant, at the beckoning of a man with whom the victim was apparently familiar, permits an inference that Hubbard was the driver of that vehicle.

[ 472 Pa. Page 271]

Tire marks from this vehicle were found in the cornfield and were made at the relevant time. We cannot say that the jury acted unreasonably in concluding that this combination of circumstances proved defendant's guilt beyond a reasonable doubt. As this Court has recently said in reviewing a similar sufficiency challenge to a circumstantial case:

"While none of the foregoing facts taken singly would be sufficient to establish [appellant's] guilt, the totality thereof and the reasonable inferences arising therefrom were legally sufficient to render [appellant's] guilt an issue for the jury." Commonwealth v. Dawson, 464 Pa. 254, 257, 346 A.2d 545, 547 (1975).

Thus appellant's sufficiency challenge must be rejected.

II.

Following a period of questioning at his home on October 31, appellant consented to a police inspection of his automobile and boots. Imprints of the automobile tires and boot-heels were taken by the police and later introduced into evidence against appellant. During the course of the trial and in response to testimony by the police that appellant had not been advised of his Miranda*fn3 rights during the October 31 questioning, appellant's counsel, for the first time, made an oral motion to suppress all the evidence obtained as a result of this questioning. The trial judge refused to conduct a suppression hearing and denied the motion. This ruling is assigned as error.

Rule 323(b) of our Rules of Criminal Procedure provides that the issue of the admissibility of evidence is waived unless an application to suppress is made to the court ten days prior to trial.*fn4 Pa.R.Cr.P. 323(b), 19 P.S.

[ 472 Pa. Page 272]

(1975 Pamphlet). See also Commonwealth v. Goggans, 455 Pa. 606, 317 A.2d 222 (1974); Commonwealth v. Williams, 454 Pa. 261, 311 A.2d 920 (1973); Commonwealth v. Sasser, 453 Pa. 622, 309 A.2d 352 (1973). This rule is subject to only two exceptions: (1) where the opportunity to make an application to suppress did not previously exist, or (2) where "the interests of justice require." Pa.R.Cr.P. 323(b). Where the party seeking to suppress evidence for the first time at trial fails to demonstrate that his untimely application falls within one of these two exceptions, the trial court commits no error in refusing to hear the application. In the instant case appellant alleges that his application to suppress fell within both these exceptions. We do not agree.

Prior to the testimony of the police officer at trial, appellant states, his counsel was unaware that appellant had not been warned of his constitutional rights before submitting to questions on October 31. As a consequence, he argues, "the opportunity did not previously exist" for the application to suppress. In support of this argument he relies on Commonwealth v. Williams, 229 Pa. Super. 390, 323 A.2d 862 (1974). This reliance is misplaced.

In Williams, appellant was charged with driving under the influence of alcohol. Tests were made of appellant's blood while he was being treated for injuries sustained in an accident which gave rise to the arrest. Neither appellant nor his lawyer was aware that these tests had been conducted, and, as a consequence, no pre-trial application was made to suppress the results. When the Commonwealth

[ 472 Pa. Page 273]

    sought to introduce the results, appellant's counsel, for the first time, moved to suppress. The trial court refused to hear the motion. On appeal the Superior Court reversed, holding that where counsel could not reasonably have been expected to have discovered the existence of evidence prior to its introduction at trial, the opportunity to file a pre-trial written motion could not be said to have previously existed. As a consequence, the court concluded that the oral motion should have been heard at trial.

In the instant case, in contrast, appellant's counsel was well aware of the fact that his client had been questioned by the police on October 31, that Hubbard had, at that time, turned over to the police his boots and automobile, and that imprints of the tires and boot-heels had been made. Unlike the Williams case, trial counsel knew of the existence of the evidence and had ample opportunity to determine whether a motion to suppress was warranted. Accordingly, we conclude that appellant's application did not fall within the first exception to rule 323(b).

Likewise it cannot be said that "the interests of justice" required that the motion be heard. The "interests of justice" exception to rule 323(b) was borrowed from its predecessor, Pa.R.Cr.P. 2001(b), and is designed to grant a trial judge the discretion to excuse a failure to file a pretrial motion. Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968). It has been said that such discretion should be exercised where "the merits of counsel's oral motion were so apparent that justice required that it be heard." Commonwealth v. Williams, 229 Pa. Super. 390, 399, 323 A.2d 862, 866 (1974). Appellant here argues that this is such a case; that is, that the failure to advise him of his Miranda rights rendered his consent to the police inspection involuntary per se, and that, as a consequence, the soundness of the oral motion should have been apparent to the trial judge. We do not agree.

[ 472 Pa. Page 274]

In our view, the issue of what the prosecution must prove to demonstrate that a consent to a search was voluntarily given is controlled by the decision of the Supreme Court of the United States in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In that case a police officer, who had stopped an automobile because one of its headlights was out, asked one of the passengers of the car if he could search the vehicle. The passenger, who had told the police he was in lawful possession of the car, consented to the search. Stolen checks were uncovered and the passenger was convicted of possessing a stolen check with the intent to defraud. Prior to trial, the trial court denied a motion to suppress this evidence based on the argument that the State should be required to establish a knowing and intelligent waiver of the right to refuse a search before a consent to a search will be deemed valid. On appeal from a denial of habeas corpus relief, the Court of Appeals for the Ninth Circuit reversed the conviction, concluding that proof of knowledge of a right to refuse consent is a necessary prerequisite to demonstrating a "voluntary" consent. On appeal the Supreme Court rejected the argument that the strict "knowing and intelligent" waiver requirements of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), extend to the constitutional guarantee against unreasonable search and seizure. 412 U.S. at 240, 93 S.Ct. at 2054, 36 L.Ed. at 870. The Court similarly rejected the notion that "the Court's decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent." 412 U.S. at 246, 93 S.Ct. at 2058, 36 L.Ed.2d at 874. Instead the Court concluded that:

"when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact

[ 472 Pa. Page 275]

    voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a pre-requisite to establishing a voluntary consent." Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875 (1973).

Noting that the subject of the search was not in custody, that there was no evidence of any inherently coercive tactics, and that the atmosphere surrounding the elicitation of the consent was congenial, the Court reversed the judgment of the Ninth Circuit.

The record in this case discloses no evidence that Hubbard was in custody at the time he consented to the inspection of his property.*fn5 The request by the police to inspect the boots and automobile was made only after a short, informal questioning period in Hubbard's own home, and it was the uncontradicted testimony of the investigating officers that they had twice advised Hubbard that he had a right to refuse to consent to the requested inspection. Under these circumstances we cannot conclude that appellant's motion to suppress

[ 472 Pa. Page 276]

    raised an "apparently meritorious claim." See Commonwealth v. Williams, supra, 229 Pa. Super. at 399, 323 A.2d 862. Accordingly, we hold that the trial judge did not abuse his discretion in refusing to hear appellant's motion to suppress. See Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973); cf. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84, 88 (1975).

III.

Appellant was represented at trial by privately retained counsel [hereinafter "trial counsel"] who withdrew from the case after he had filed post-trial motions. He was succeeded by a public defender [hereinafter "post-trial counsel"], who filed a supplemental motion for a new trial and represented appellant throughout the post-trial proceedings at the trial court level. On appeal, appellant has been represented by still a third lawyer (another public defender) [hereinafter "appellate counsel"]. He raises various questions of ineffectiveness of both trial and post-trial counsel.

As to the performance of trial counsel, it is now claimed to have been ineffective in that he: (1) failed to file a pre-trial motion to suppress the evidence obtained as a result of the police inspection of appellant's automobile and boots; (2) failed to object to the admission into evidence of certain black and white photographs depicting the victim's body as it was discovered in the cornfield; and (3) failed to object to certain allegedly prejudicial remarks made by the district attorney during his summation. None of these contentions, however, was raised by appellant's post-trial counsel in his post-trial motions. As a consequence, the issue of trial counsel's ineffectiveness has not been properly preserved for appellate review.*fn6

[ 472 Pa. Page 277]

With respect to post-trial counsel, appellant now contends that his representation also was ineffective because the supplemental post-trial motions he filed did not assign as error (1) the admission into evidence of two color slides; (2) the ineffectiveness of trial counsel.*fn7

In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

"[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests."

The initial factor which must be considered in applying this reasonable basis standard is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis. In Maroney we noted that "a finding of ineffectiveness could never be made ...


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