Com. v. Hubbard

Decision Date16 May 1977
Citation372 A.2d 687,472 Pa. 259
PartiesCOMMONWEALTH of Pennsylvania v. Kim Lee HUBBARD, Appellant.
CourtPennsylvania Supreme Court

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



POMEROY, Justice.

On October 19, 1973, Jennifer Hill of South Williamsport, Pennsylvania, twelve years of age, failed to return 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. 1


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 (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. 2 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 tire-marks 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 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 menbers 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 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 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. 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...

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