Commonwealth v. Hubble

• Decision Date: 29 April 1983
• Citation: 460 A.2d 784,314 Pa.Super. 99
• Parties: COMMONWEALTH of Pennsylvania v. Robert Kelsey HUBBLE, Appellant.
• Court: Pennsylvania Superior Court

460 A.2d 784

314 Pa.Super. 99

COMMONWEALTH of Pennsylvania v. Robert Kelsey HUBBLE, Appellant.

Superior Court of Pennsylvania.

April 29, 1983

Argued Oct. 18, 1982. [Copyrighted Material Omitted]

Carl E. Barlett, Williamsport, for appellant.

Kenneth D. Brown, Dist. Atty., Williamsport, for Commonwealth appellee.

Before WIEAND, BECK and MONTEMURO, JJ.

WIEAND, Judge:

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 ^[1] and was found guilty of burglary, ^[2] robbery, ^[3] theft ^[4] conspiracy ^[5] and three counts of murder in the first degree. ^[6] 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 ^[7] 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 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, ^[8] 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. ^[9] 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." ^[10] 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 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, 590-591, 419 A.2d 612, 615 (1980); Commonwealth v. Palmer, 273 Pa.Super. 184, 190, 417 A.2d 229, 232 (1979). See: Commonwealth v. Wolfe, supra 301 Pa.Super. at 192-93, 447 A.2d at 308.

Appellant's counsel had 3 1/2 months to prepare for trial following his appointment. His investigation was supplemented by the efforts of counsel for appellant's accomplices, by local counsel in Lebanon County and by several private investigators. Although averring "real prejudice" by not being able to follow all "leads" or conduct pre-trial interrogation of all potential witnesses, appellant has been unable to identify specifically any evidence that was undiscovered or any other prejudice because of the denial of his motion for continuance. There was neither a witness that was unexamined nor a defense that remained unpresented. In the absence of specific prejudice, appellant contends that the longer period available to the Commonwealth for investigation and the greater manpower available to participate therein renders the denial of his motion inherently unfair. We reject this argument.

In Commonwealth v. Eackles, supra, the defendant had been charged with 38 counts of forgery and 31 counts of theft. A motion for continuance was denied and trial commenced 55 days after the defendant's arrest. In response to his complaint that a denial of his motion for continuance had resulted in too prompt a trial, this Court said:

"We perceive no valid reason for holding such preparation time inadequate per se.... Significantly, appellant has failed to specify in what manner he was unable to prepare his defense or what he could have done by way of preparation if given more time. In the absence of a showing of prejudice, therefore, we perceive no abuse of discretion and decline to reverse the trial court's denial of the defense motion for continuance."

Id. 286 Pa.Super. at 152, 428 A.2d at 617. See also: Commonwealth v. Volk, supra; Commonwealth v. Palmer, supra; Commonwealth v. Waters, supra. Despite the seriousness of the crimes with which appellant was charged, the absence of prejudice suggests most strongly that the denial of his motion for continuance was not an abuse of discretion.

The trial court received evidence, over defense objections, of extra-judicial statements made by David Hubble on the evening of the killings and again on the following night. On both occasions, appellant responded by telling his brother emphatically to be quiet. The trial court permitted this evidence on grounds that the statements had been made during the continuance of the conspiracy. Appellant contends that this was error.

For purposes of this appeal, we find it unnecessary to determine whether the statements were admissible as statements made in furtherance of a conspiracy. ^[11] We must affirm the trial court's ruling if there was any valid reason for receiving this evidence. See: Commonwealth v. Walton, 483 Pa. 588, 596, 397 A.2d 1179, 1183 (1979); E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Commonwealth v. O'Donnell, 472 Pa. 25, 27 n. 3, 370 A.2d 1209, 1209 n. 3 (1977); Commonwealth v. Hines, 461 Pa. 271, 273 n. 3, 336 A.2d 280, 282 n. 3 (1975); Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Commonwealth v. Wise, 298 Pa.Super. 485, 492 n. 2, 444 A.2d 1287, 1290 n. 2 (1982).

We conclude, after having reviewed the record, that the statements of David Hubble were admissible against appellant as tacit admissions. ^[12] The rule of evidence applicable to tacit or implied admissions was set forth by our Supreme Court in Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955), as follows:

"The rule of evidence is well established that, when a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made. The justification of this rule is to be sought in the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt."

Id. at 523, 113 A.2d at 476. See also: Commonwealth v. Coccioletti, 493 Pa. 103, 113-114, 425 A.2d 387, 392 (1981); Commonwealth ex rel. Smith v. Rundle, 423 Pa. 93, 98, 223 A.2d 88, 90 (1966). The tacit admission rule is circumscribed by Fifth Amendment guarantees against self-incrimination. Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). See: Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966). However, this limitation is applicable only to admissions implied from silence while an accused is in the custody or presence of the police or other law enforcement personnel. It does not preclude the receipt of tacit admissions resulting from a failure to deny accusations made while the accused was not in custody and when no police were present. Commonwealth v. Coccioletti, supra 493 Pa. at 113-114, 425 A.2d at 392; Commonwealth v. Schmidt, 452 Pa. 185, 204-205, 299 A.2d 254, 265 (1973).

The statements by David Hubble were made in the presence of appellant at the "shack" on the same night of the...