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COMMONWEALTH PENNSYLVANIA v. ROBERT KELSEY HUBBLE (04/29/83)

filed: April 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT KELSEY HUBBLE, APPELLANT



No. 166 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County, No. 501 of 1977.

COUNSEL

Carl E. Barlett, Williamsport, for appellant.

Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.

Wieand, Beck and Montemuro, JJ.

Author: Wieand

[ 314 Pa. Super. Page 103]

On August 5, 1976, Mrs. Claire Kepner and her two small children were found murdered in their home near Muncy in Lycoming County. All had been shot with a .32 caliber gun, and the abdomen of one child had been repeatedly slashed with a knife. Robert Hubble was tried jointly with Milton Scarborough*fn1 and was found guilty of burglary,*fn2 robbery,*fn3 theft,*fn4 conspiracy*fn5 and three counts of murder in the first degree.*fn6 On direct appeal from judgments of sentence imposed after post verdict motions had been denied, Hubble asks that we review and find error in the trial court's refusal to grant his request for a trial continuance and various evidentiary rulings made during trial. He also contends that the trial court erred by denying a motion for new trial on the grounds of after-discovered and recanting testimony. Our review discloses neither error nor valid reason for setting aside the verdict of the jury. Therefore, we affirm the judgment of sentence.

The evidence showed that on the evening of the killings, Robert Hubble, his brother, David, Milton Scarborough, and John Shafer, together with Colin Brown and some others, had gathered at Ricky Snyder's "shack" in rural Lycoming County. Scarborough, Shafer and the Hubble brothers obtained ten dollars from Colin Brown and left in David Hubble's*fn7 car to buy some beer. They purchased a case of beer at a bar in Muncy and rode around the countryside, drinking beer. During the course of their ride, appellant

[ 314 Pa. Super. Page 104]

    suggested "hitting a place" and randomly selected a residence where he instructed Scarborough, who was driving, to pull into the driveway. Scarborough and the Hubble brothers got out of the car, leaving Shafer behind as lookout, and entered the dwelling where Claire Kepner lived with her children. After they had returned and driven away, according to Shafer's testimony,*fn8 appellant handed a pistol to his brother and told him to put it in the glove compartment. They purchased additional beer with money taken from the Kepner home and returned to the "shack." There, David Hubble made various statements, heard by Snyder, Brown and Shafer, in which he recounted the killing of Mrs. Kepner and her children. He said that it had been necessary to kill them in order to get their money. He also made reference to playing "tic-tac-toe" on the stomach of one of the children.*fn9 Appellant, who was present, heard his brother and told him to "shut the f___ up." The following night, Shafer and Brown encountered David Hubble at the Step Inn in Montgomery, Lycoming County. David again referred to the Kepner "job."*fn10 Appellant, his brother, grabbed him and angrily told him: "Keep quiet or I'll kill you."

Appellant was arrested and taken into custody on July 13, 1977, following a lengthy investigation of the killings by police. Counsel was appointed for appellant on July 28, 1977. A change of venue was subsequently granted, and the case was transferred to Lebanon County for trial. On October 27, 1977, an order was entered granting pre-trial discovery, and a pre-trial conference was held on November 5, 1977. Trial was set for November 14, 1977. A motion

[ 314 Pa. Super. Page 105]

    for continuance to permit additional investigation was denied, and trial commenced before the Honorable G. Thomas Gates on the day assigned.

A trial court has broad discretion in determining whether a continuance shall be granted. Commonwealth v. Metzger, 498 Pa. 678, 680-82, 450 A.2d 981, 983 (1982); Commonwealth v. Wolfe, 301 Pa. Super. 187, 192-93, 447 A.2d 305, 308 (1982); Commonwealth v. Volk, 298 Pa. Super. 294, 303, 444 A.2d 1182, 1186 (1982); Commonwealth v. Kittrell, 285 Pa. Super. 464, 467, 427 A.2d 1380, 1381 (1981); Commonwealth v. Andrews, 282 Pa. Super. 115, 123, 422 A.2d 855, 859 (1980). Absent a manifest abuse of discretion, which results in prejudice to the defendant, the trial court's decision will not be reversed on appeal. Commonwealth v. Eackles, 286 Pa. Super. 146, 152, 428 A.2d 614, 617 (1981); Commonwealth v. Waters, 276 Pa. Super. 584, ...


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