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COMMONWEALTH PENNSYLVANIA v. KIM LEE HUBBARD (07/05/79)

decided: July 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KIM LEE HUBBARD, APPELLANT



No. 635 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 73-11, 218, pursuant to the mandate in Commonwealth v. Hubbard, Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Larsen

[ 485 Pa. Page 355]

OPINION

In February of 1974, a jury found appellant guilty of murder of the second degree. Post-verdict motions were denied and appellant was sentenced to ten to twenty years imprisonment. On direct appeal, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (hereinafter Hubbard I), appellant contended, inter alia, that post-trial counsel*fn1 was ineffective because in the post-verdict motions he failed to raise the issue of trial counsel's alleged ineffectiveness for failing to object to certain allegedly prejudicial comments made by the district attorney during summation.*fn2 After finding this contention to be of arguable merit, this Court

[ 485 Pa. Page 356]

    vacated the judgment of sentence and remanded the case for an evidentiary hearing stating:

Our inability to determine from the record trial counsel's basis for failing to object further complicates our review of post-trial counsel's alleged ineffectiveness for not raising this issue post-trial. If post-trial counsel investigated this aspect of trial counsel's alleged ineffectiveness and reasonably concluded that trial counsel acted in the best interest of appellant, then post-trial counsel could not be said to have been ineffective for failing to raise the issue. If, on the other hand, no such consideration was given to the question by post-trial counsel, then this failure to raise the issue would have been the product of lack of diligence and thus would constitute ineffective assistance. . . . Hubbard I, 472 Pa. 285-286, 372 A.2d at 699-700.

Following the evidentiary hearing at which both post-trial counsel and trial counsel testified, the lower court held that post-trial counsel rendered effective assistance to appellant, and therefore reinstated the judgment of sentence. Appellant now appeals from that order of the lower court.

This Court held in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-3 (1967) that:

[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 [Emphasis original].

An accurate summary of the testimony adduced at the evidentiary hearing appears in the trial court's opinion (pp. 2-3) as follows:

Defendant's post-trial counsel was Chief Public Defender of Lycoming County at the time he entered the case. He testified that at least two hundred hours were consumed by him in reviewing the trial evidence, preparing and arguing post-trial motions and investigating alleged discrepancies with respect to some of the physical evidence, which were raised in post-trial motions as assignment

[ 485 Pa. Page 357]

    of error # 7. (n.t. 34). Although Mr. Felix testified that in certain instances he might have tried the case differently than trial counsel, after reviewing the testimony he concluded that, in the totality of the case, trial counsel had not been ineffective in not objecting to the closing remarks (n.t. 12). He noted that trial counsel had objected to other portions of the summation (n.t. 9-10); that constant objection may lead to resentment of defense counsel by the jury, to the detriment of the defendant (n.t. 13); that objection might highlight the remarks (n.t. 13); that trial counsel's ...


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