Commonwealth v. Hubbard

402 A.2d 999, 485 Pa. 353, 1979 Pa. LEXIS 625

• Court: Supreme Court of Pennsylvania
• Decided: July 5, 1979
• Docket: 365
• Status: Published

Opinions

OPINION

LARSEN, Justice.

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 counsel¹ 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.² After finding this contention to be of arguable merit, this Court 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]ounsel’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 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 tactics could be grasped by review of the record (n.t. 16); and that trial counsel’s failure to object at that stage appeared to be a chosen strategy (n.t. 22, 27).

Defendant’s privately retained trial counsel, Patrick H. Fierro, also testified at the hearing. He testified that the “major thrust” of defendant’s case was credibility (n.t. 37-38) and that he anticipated the District Attorney would “become shrill” and alienate the jury by his attacks on the defendant (n.t. 38-39, 45), which was “a plus” for the defendant. He further testified that if he had asked for and received a mistrial, “we would have lost the best chance we ever had at that point in time of ever getting whatever favorable verdict a jury might give us, and that a second go-around would have been a disaster in view of the entire case as it finally developed.” (n.t. 40). Mr. Fierro elaborated on this statement later when he said that in view of the Commonwealth’s rebuttal testimony “the Commonwealth could have fairly destroyed the defense even before it made an offer of defense in the next go-around”, and that defendant still had enough credibility left before this jury to get “a more favorable response” from it (n.t. 43). As he noted, the jury reached verdict of murder in the second degree, whereas, the Commonwealth was seeking a first degree verdict (n.t. 44).

We have reviewed the trial transcript and it establishes that trial counsel presented a well prepared and vigorous defense, and that trial counsel’s failure to object to the comments in question (Footnote 2, supra) was born of a reasonable, calculated, and apparently successful trial strategy-³

Moreover, the post-verdict motions filed by post-trial counsel reflect thorough and untiring preparation. Thus, the record is devoid of any evidence which would indicate that post-trial counsel’s failure to raise the issue of trial counsel’s alleged ineffectiveness was the product of “sloth or lack of awareness of the available alternatives.” Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

We do not condone the remarks of the prosecutor in this case. However, after reviewing the entire record in this case we are convinced that the lower court properly concluded that post-trial counsel was effective.

Order of the Court of Common Pleas of Lycoming County reinstating the judgment of sentence is hereby affirmed.

ROBERTS, J., filed a dissenting opinion. MANDERINO, J., filed a dissenting opinion.

1 . Appellant was represented at trial by privately retained counsel (trial counsel). Trial counsel was succeeded by a public defender (post-trial counsel), who filed supplemental post-verdict motions. On direct appeal, appellant was represented by another public defender (appellate counsel).

2 . The comments of the district attorney quoted below appear in Hubbard I:

“Only two people know where the scratch marks [on Jennifer’s neck] came from, Jennifer Hill, who is never going to testify, and the killer. So we will never be able to explain everything in this case, obviously, because one party to the explanation is dead and the other party is not telling the truth.” (N.T., summation, 10-11). “And once you conclude it didn’t happen in that cornfield, where did it occur? Only two people know, one of them is Jennifer Hill, she will never tell you, and the killer, and we can’t prove where that killing took place, but what we do know is that the Defendant has consistently fabricated in this case. Does he know?” (N.T., summation, 16).

“How about some of the other lies? The Defendant said he had never been in that cornfield in his life.” (N.T., summation, 21). “Now, let’s talk about a few other things. The Defendant said, T lied to get a job.’ He said that sort of proud. Would he lie if he murdered? Certainly.” (N.T., summation, 22).

“But he made a mistake of the tire prints and the foot markings, and once he started to lie to cover it up, they kept getting bigger and bigger and he kept getting enmeshed in his own lies.” (N.T., summation, 27).

3 . During trial counsel’s summation, which lasted approximately eighty-five minutes, he directly challenged the credibility of key Commonwealth witnesses and attempted to downplay the inconsistent statements which appellant made to police prior to trial. At one point trial counsel commented as follows; “The State said he made some inconsistent statements. About what? About where he was at a certain time, whether he paid this bill first or that bill second. You know what I think that is, Ladies and Gentlemen? Baloney.” (N.T., summation, 13).