J-S42015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KEVIN BRYAN CONOVER                     :
                                         :
                   Appellant             :   No. 1749 MDA 2017

            Appeal from the Judgment of Sentence May 31, 2017
   In the Court of Common Pleas of Lancaster County Criminal Division at
                      No(s): CP-36-CR-0001586-2016

BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 29, 2018

     Kevin Bryan Conover appeals from the judgment of sentence of fifteen

months to four years incarceration after a jury convicted him of burglary,

criminal trespass, and theft by unlawful taking. We affirm.

     The trial court offered the following summary of the history of this case.

             On October 6, 2015, [Appellant] was discovered on the
     property of Beverly Eaby loading his truck with items that had
     been taken from a storage facility on the property. [Appellant]
     initially attempted to get into his truck and drive away, but Eugene
     Ryndycz reached into the truck and took the keys. [Appellant]
     pursued Mr. Ryndycz, but then ran away into the fields behind the
     property when Mr. Ryndycz retrieved a crowbar. [Appellant] hid
     out with friends following the incident and never went to the police
     or attempted to retrieve or inquire about his truck. Police were
     unable to located [sic] [Appellant] until March 17, 2016, despite
     his identity being known.

           Following trial on November 30 and December 1, 2016, a
     jury found [Appellant] guilty of burglary of a building or occupied
     structure with persons present, criminal trespass and theft by
     unlawful taking. [Appellant] was sentenced on February 9, 2017
     to an aggregate term of twenty-four months to four years of
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S42015-18


      incarceration.   [Appellant] filed a post-sentence motion on
      February 21, 2017, which was granted, in part, by Order dated
      April 18, 2017. At [Appellant’s] resentencing on May 31, 2017, it
      was noted that the record lacked sufficient evidence to establish
      that persons were present during the commission of the burglary.
      [Appellant] was resentenced to an aggregate term of fifteen
      months to four years of incarceration. [Appellant] filed a second
      post sentence motion on June 9, 2017, which was denied by
      operation of law on October 12, 2017. [Appellant] filed his notice
      of appeal on November 9, 2017.

Trial Court Opinion, 1/8/18, at 1-2 (footnotes and repetition of numbers in

numeral form omitted).     Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents one question for our review:

      Did the trial court err in refusing to permit [Appellant] to testify
      that two men offered him $100 to assist them in loading their
      possessions onto his truck to take them to auction, where this
      testimony was not hearsay, offered for its truth, but was being
      offered to explain [Appellant’s] course of action and his state of
      mind?

Appellant’s brief at 5.

      Appellant’s issue challenges the trial court’s evidentiary ruling.

Accordingly, the following principles apply.

      The admissibility of evidence is a matter addressed solely to the
      discretion of the trial court, and may be reversed only upon a
      showing that the court abused its discretion. For there to be abuse
      of discretion, the sentencing court must have ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018)

(internal citations and quotation marks omitted).


                                     -2-
J-S42015-18


      However, even if this Court determines that the trial court erred in

making an evidentiary ruling, the judgment of sentence may be affirmed if

that error was harmless. “[T]he doctrine of harmless error is a technique of

appellate review designed to advance judicial economy by obviating the

necessity for a retrial where the appellate court is convinced that a trial error

was harmless beyond a reasonable doubt.”       Commonwealth v. Allshouse,

36 A.3d 163, 182 (Pa. 2012) (internal quotation marks omitted). “An error

will be deemed harmless where the appellate court concludes beyond a

reasonable doubt that the error could not have contributed to the verdict.”

Commonwealth v. Green, 162 A.3d 509, 519 (Pa.Super. 2017) (en banc)

(internal quotation marks omitted).

      Appellant’s defense at trial, as outlined in counsel’s opening statement,

was that he did not intend to steal anyone’s property. Rather, an acquaintance

of Appellant who did not have a truck sought Appellant out and offered him

$100 to load his truck with items that belonged to the acquaintance, which

were stored at Eaby’s Auto Sales, and drive them to an auction. N.T. Trial,

11/30-12/1/16, at 56-57.       Accordingly, when testifying in his defense,

Appellant explained that he was leaving work when the acquaintance, Ward

Robinson, and another man pulled up alongside Appellant’s truck. Id. at 173.

Appellant was about to detail the substance of the conversation when the

Commonwealth raised a hearsay objection. Id. at 174. Appellant argued that

the statements were being offered to explain Appellant’s course of conduct,


                                      -3-
J-S42015-18


rather than for the truth of the statements. Id. Outside of the presence of

the jury, Appellant gave the following offer of proof as to the content of the

proposed testimony:

            [Appellant] is going to testify that as he was leaving the
      place that he just described, that two gentlemen came to him.
      And one or both of them suggested to him that he could make a
      hundred bucks if he would load into his pickup truck the -- some
      items that they wished to take to an auction.

             He then followed those men in their car. They were in their
      car. He followed in his truck. And they took him to Eaby’s,
      whereupon they pointed out the items and he loaded them into
      his truck.

            And, of course, while he was loading them, Mr. Ryndycz and
      Miss Eaby came along.

Id. at 175.

      Appellant contended that the out-of-court statements were not hearsay

because they were not being offered for the truth of the matters asserted.

Indeed, Appellant acknowledged that the statements at issue were false, as

the gentlemen had no authority to dispose of the property. Id. at 176. The

trial court ruled that the statements, central to Appellant’s defense, were

offered for their truth, and that Appellant was not permitted to testify as to

them. Id.

      Following the trial court’s ruling, Appellant testified that, after meeting

Mr. Robinson and the other man, he followed them to the Eaby property,

where they pointed out a pile of boxes, a floor heater, and a snowblower. Id.

at 178. The men loaded the items into Appellant’s truck, then drove away to


                                      -4-
J-S42015-18


meet someone. Id. at 179. After they left, Appellant sought to secure the

things in the back of the truck, and Ms. Eaby and Mr. Ryndycz arrived and

questioned what Appellant was doing. Id. at 179-80. Appellant indicated that

he was loading the items up for some gentlemen and was going to take them

to a consignment shop. Id. at 180. When Mr. Ryndycz asserted that the

items belonged to him, Appellant indicated that, as far as he knew, they

belonged to Mr. Robinson, and attempted to call him, but Mr. Robinson hung

up on Appellant. Id. at 180-81. Mr. Ryndycz took Appellant’s keys and came

at him with a tire iron. Id. at 182. Another call to Mr. Robinson went straight

to voicemail, and Appellant panicked and fled. Id.

      We agree with Appellant that the statements at issue were not hearsay.

“Hearsay is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.”   Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007)

(internal quotation marks omitted). “An out of court statement offered not

for its truth but to explain the witness's course of conduct is not hearsay.” Id.

      The statements of Mr. Robinson that Appellant sought to introduce were

not being offered to prove that the two men actually had the right to dispose

of the property or were willing to pay Appellant $100.        Rather, Appellant

intended to use the statements to explain why he went to the Eaby property

and loaded the items found there into his truck. Accordingly, the trial court

erred in excluding the statements. See, e.g., Commonwealth v. Johnson,


                                      -5-
J-S42015-18


42 A.3d 1017, 1035 (Pa. 2012) (holding officer’s testimony that a detective

believed a boot may have been used as a weapon was not hearsay, as it was

offered not as proof that the boot was the weapon, but to explain why the

officer seized it as potential evidence).

      However, we agree with the trial court that the error was harmless. The

trial court explained that, in spite of the hearsay ruling, Appellant “was still

able to allege the fact of the conversation and to explain his actions and his

state of mind as a result of the conversation.” Trial Court Opinion, 1/8/18, at

5 (citing Commonwealth v. Flagg, 242 A.2d 921, 922 (Pa.Super. 1968)

(finding no reversible error where, although trial court excluded as hearsay

contents of conversation with attorney, the defendant “was permitted to show

the fact of the conversation with his attorney” and the actions he took as a

result)).

      As detailed above, the jury heard that Appellant had a conversation with

Mr. Robinson and that, as a result, Appellant believed Mr. Robinson had the

authority to dispose of the boxes and other items on the Eaby property, that

Appellant went to the property at the behest of Mr. Robinson and his

companion, that Mr. Robinson and his companion were the ones who loaded

the items into Appellant’s truck, and that Appellant intended to take the

truckload of property to a consignment shop per Mr. Robinson’s instructions.

As such, any prejudice from the trial court’s refusal to detail the precise

language of Appellant’s conversation with Mr. Robinson and the offer of $100


                                      -6-
J-S42015-18


for Appellant’s services, was de minimis and could not have contributed to the

verdict.   See, e.g., Commonwealth v. Cooper, 941 A.2d 655, 667 (Pa.

2007) (holding murder defendant was not entitled to relief on claim that trial

court erred in excluding victim’s statements to her coworkers that her

boyfriend, who the appellant claimed was the actual murderer, caused bruises

and burn marks on the victim’s body, where the jury heard that the boyfriend

had been physically abusive to the victim).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2018




                                    -7-
