J-S16025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WAYNE EUGENE EBERSOLE, JR.,

                        Appellant                  No. 1843 MDA 2014


            Appeal from the PCRA Order of October 17, 2014
            In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0001490-2010


BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED MAY 06, 2015

     Appellant, Wayne Eugene Ebersole, Jr., appeals from the order entered

on October 17, 2014, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. 9541-9546. We affirm.

     The trial court summarized the facts of this case as follows:

        On December 3, 2009, Pennsylvania State Police troopers
        executed a warrant to search [Appellant’s] residen[ce] in
        Fort Loudon. They believed that [Appellant] had traded an
        electric scooter or wheelchair to William “Roy” Myers in
        exchange for a Tikka .243 caliber rifle. [Appellant] could
        not then (and cannot now) legally possess firearms.

        Inside the home, Trooper Eric Guyer found an orange gun-
        carrying case with a nametag for “William Myers” in the
        dining/kitchen area.   In a gun cabinet in the master
        bedroom, troopers found the Tikka .243 rifle and a Western
        Auto Revelation .30-30 rifle. As part of the investigation,
        Trooper David Rush discovered that [Appellant] was
        convicted in 1994 of a felony under the Controlled
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        Substances, Drug, Device and Cosmetic Act. [Appellant]
        later made a tape-recorded, inculpatory statement to police.

        [In his statement to police, Appellant] claimed that the two
        rifles [belonged to] his stepfather, Rick Bell[]. [Appellant]
        said that Bell kept the rifles at [Appellant’s] Fort Loudon
        house because Bell hunted in the area. (Bell was deceased
        at the time of trial.) [Appellant] said he lived primarily in
        Washington, DC … and not in Fort Loudon. He contended
        that he incriminated himself because police told him that
        the charges would be dismissed. [Appellant] managed to
        so testify on direct over repeated objection by the
        Commonwealth.          On cross-examination, [Appellant]
        admitted that his tape-recorded statements contained no
        such promise from State Police. When confronted with the
        recording, he claimed under cross-examination that his self-
        incriminatory statements were false.

        After deliberating for 19 minutes, the jury found [Appellant]
        guilty [of persons not to possess a firearm, 18 Pa.C.S.A. §
        6105.].

PCRA Court Opinion, 10/17/2014, at 1-2 (record citations and footnote

omitted).

     Procedurally, the case progressed as follows.    On January 25, 2012,

the trial court sentenced Appellant to 56 to 112 months of incarceration.

Appellant did not file post-sentence motions or an appeal.     On March 16,

2012, Appellant filed a pro se PCRA petition.    The PCRA court appointed

counsel who filed an amended PCRA petition on August 29, 2012. Following

an evidentiary hearing, the PCRA court reinstated Appellant’s direct appeal

rights nunc pro tunc.   Ultimately, Appellant raised two alleged trial court

evidentiary errors, the trial court denied relief, and this Court affirmed

Appellant’s judgment of sentence. Commonwealth v. Ebersole, 87 A.3d

382 (Pa. Super. 2013) (unpublished memorandum). The Pennsylvania

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Supreme Court denied further review.             Commonwealth v. Ebersole, 87

A.3d 814 (Pa. 2014).

       Appellant filed his current PCRA petition on August 8, 2014. The PCRA

court decided the claims as submitted on briefs filed by both Appellant and

the Commonwealth. The PCRA court entered an order, and accompanying

opinion, on October 17, 2014 denying Appellant relief.        This timely appeal

resulted.1

       On appeal, Appellant presents the following issues for our review:

         1. Did the trial court err in dismissing Appellant’s [petition]
            for [PCRA] relief where trial counsel was ineffective for
            [failing    to   assert    a]   relevance     objection   to
            Commonwealth testimony involving the contents of a
            search warrant application whereby allowing information
            that was unnecessary, confusing, incriminating, and
            prejudicial to be provided to the jury – including but not
            limited to 1) out-of-court statements involving John
            Jarrett and William Roy Meyers, 2) beliefs of individuals
            including the officer, 3) statements regarding “probable
            cause,” and 4) the approval of the search warrant
            application by a Magisterial District Court Judge – which
            likely altered the outcome of the trial to the detriment of
            Appellant entitling Appellant to a new trial?

         2. In the alternative, did the trial court err in dismissing
            Appellant’s motion for [PCRA] relief where trial counsel
            was ineffective for failing to request a cautionary
____________________________________________


1
  Appellant filed a notice of appeal on October 30, 2014. On October 31,
2014, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on November 7, 2014. On November 12, 2014, the trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a), relying largely on its prior decision
issued on October 17, 2014.



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           statement in relation to confusing, incriminating, and
           prejudicial testimony regarding the contents of a search
           warrant application – including but not limited to the
           significance and correct application of 1) out-of-court
           statements involving John Jarrett and William Roy
           Meyers, 2) beliefs of individuals including the officer, 3)
           statements regarding “probable cause,” and 4) the
           approval of the search warrant application by a
           Magisterial District Court Judge – which likely altered the
           outcome of the trial to the detriment of Appellant
           entitling Appellant to a new trial?

Appellant’s Brief at 9 (record citations omitted).

      Appellant’s   issues   assert,   alternatively,   that   trial   counsel   was

ineffective for allowing the admission of testimony from the investigating

officer regarding the contents of the search warrant application, or failing to

request a cautionary instruction thereafter. More specifically, Appellant first

claims that trial counsel was ineffective for failing to object to the relevancy

of the investigating officer’s testimony regarding the search warrant

application, which “contained statements of two key witnesses, John Jarrett

and William ‘Roy’ Meyers” who “were not available for the prosecutor to call

at trial[.]” Id. at 19-20.    Appellant argues that:      1) such testimony was

incriminating and there is arguable merit to his ineffectiveness claim; 2)

while trial counsel did lodge a hearsay objection, he “simply did not make

the complete applicable objection” and, therefore lacked a reasonable

strategy, and; 3) the out-of-court statements made in the search warrant

application “placed at least one firearm in [Appellant’s] possession” and were

so prejudicial as to change the outcome of trial.         Id. at 20-23.      In the

alternative, Appellant argues that trial counsel was ineffective for failing to


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request a cautionary instruction to the aforementioned testimony.       Id. at

24-29.

     Our standard of review is as follows:

         In reviewing the denial of PCRA relief, we examine whether
         the PCRA court's determination is supported by the record
         and free of legal error. To be entitled to PCRA relief,
         appellant must establish, by a preponderance of the
         evidence, his conviction or sentence resulted from one or
         more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2).
         [One such enumerated error is that the conviction or
         sentence resulted from the ineffective assistance of counsel
         which, in the circumstances of the particular case, so
         undermined the truth-determining process that no reliable
         adjudication of guilt or innocence could have taken place.
         42 Pa.C.S.A. § 9543(a)(2)(ii).]

                             *        *           *
         Counsel is presumed effective, and the appellant bears the
         burden of proving otherwise. To prevail on an
         ineffectiveness claim, appellant must establish:

            (1) the underlying claim has arguable merit; (2) no
            reasonable basis existed for counsel's actions or
            failure to act; and (3) appellant suffered prejudice as
            a result of counsel's error such that there is a
            reasonable probability that the result of the
            proceeding would have been different absent such
            error.

         Failure to prove any prong of this test will defeat an
         ineffectiveness claim. If a claim fails under any necessary
         element of the [aforementioned] test, the court may
         proceed to that element first. When an appellant fails to
         meaningfully discuss each of the three ineffectiveness
         prongs, he is not entitled to relief, and we are constrained
         to find such claims waived for lack of development.
         Further, counsel cannot be deemed ineffective for failing to
         raise a meritless claim.




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Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa. 2014) (citations,

quotations and original brackets omitted).

       Initially, we recognize that the PCRA court noted that Appellant did not

meaningfully discuss the second or third prongs of the test for counsel

effectiveness in relation to the first issue (asserting preclusion of the

challenged testimony) presented in his PCRA petition. PCRA Court Opinion,

10/17/2014, at 7 (Appellant “wholly fails to even address whether the

second or third prongs of [the test for counsel ineffectiveness] are satisfied

on this claim.”).      Since the petition did not address the second and third

prongs, Appellant waived this claim for lack of development. Fears, 86 A.3d

at 804.    The fact that Appellant addresses those prongs on appeal cannot

overcome waiver, because claims cannot be raised for the first time on

appeal. Pa.R.A.P. 302(a).

       Regardless, Appellant’s contention that police testimony regarding the

application for the search warrant in this case is irrelevant or constitutes

hearsay is without arguable merit.2 “Hearsay is an out-of-court statement

offered into evidence to prove the truth of the matter asserted.”      Pa.R.E.

801(c). “As a general rule, hearsay is inadmissible as such evidence lacks


____________________________________________


2
   The challenged testimony, information contained in the affidavit of
probable cause to support the implemented search warrant, was clearly
relevant to the issues presented at Appellant’s trial. As discussed infra,
police witnesses are permitted to rely upon out-of-court statements to
explain their course of conduct in a criminal investigation.



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guarantees of trustworthiness fundamental to the Anglo–American system of

jurisprudence.” Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super.

2011), citing Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super.

2006). “However, ‘an out-of court statement offered not for its truth but to

explain the witness's course of conduct is not hearsay’ and thus, is not

excludable under the hearsay rule.” Id., citing Commonwealth v. Rega,

933 A.2d 997, 1017 (Pa. 2007).       “Since the evidence was introduced for

course of conduct, and not for its truth, it [is] not hearsay, and counsel

cannot be deemed [ineffective] for failing to object.”      Commonwealth v.

Carson, 913 A.2d 220, 258 (Pa. 2006). Accordingly, Appellant’s first issue

was waived, and otherwise without merit.

      Next, Appellant claims that trial counsel was ineffective for failing to

request   a   cautionary   instruction,   pertaining   to   the   aforementioned

testimony, which would have explained that the jury should evaluate the

out-of-court statements at issue solely for the purpose of understanding

police course of conduct and not to evaluate the truth of those statements.

Appellant’s Brief at 23-29. He maintains that cautionary instructions were

warranted based upon on our Court’s decisions in Estepp and Dargan,

supra. Id. at 25. Relying upon trial counsel testimony from an unrelated

PCRA hearing wherein counsel stated “he had little memory of the exchange

[at trial] relating to the warrant application[,]” Appellant argues “there is no

evidence to suggest that he had a strategic reason for neglecting to request

a cautionary statement.”     Id. at 27.     He claims there was a reasonable

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likelihood that the outcome of trial would have been different with the

cautionary instruction, because the out-of-court statements “placed at least

one firearm in [Appellant’s] possession” and misled jurors regarding

probable cause and caused them to discount his defenses. Id. at 28-29.

         Appellant failed to prove that counsel lacked any reasonable strategy

not to request a cautionary instruction or that he was prejudiced by trial

counsel’s actions.     Regarding trial counsel strategy, our Supreme Court

previously determined, “[u]nder some circumstances, trial counsel may

forego objecting to an objectionable remark or seeking a cautionary

instruction on a particular point because ‘objections sometimes highlight the

issue for the jury, and curative instructions always do.’” Commonwealth v.

Koehler, 36 A.3d 121, 146 (Pa. 2012) (internal citation and original

brackets omitted).       As the foregoing establishes, failing to request a

cautionary instruction is not per se ineffective assistance of counsel.

Appellant bore the burden of proof to show that there was no reasonable

strategy involved.     Merely claiming that counsel had little memory of the

testimony at trial pertaining to the warrant application, does not carry that

burden.

         Moreover, Appellant failed to establish a reasonable probability that

the outcome of trial would have differed had trial counsel sought a

cautionary instruction, considering the overwhelming evidence of Appellant's

guilt.    At trial, the Commonwealth played an audiotaped recording of a

statement Appellant made to police following the search at issue.        N.T.,

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12/2/2011, at 35.     In the recording, Appellant admitted he brokered a deal

between his step-father and the firearm seller for the purchase of the Tikka

.243 caliber gun.    He also admitted that the .30-30 rifle was inherited from

a relative and was in Appellant’s residence for two to three months prior to

the police interview.     At trial, Appellant admitted he listened to the

audiotaped statement, confirmed it was his voice, acknowledged that he had

the firearms in his house despite a disqualifying conviction, recognized he

made the transaction for the Tikka .243 caliber firearm, and conceded that

police made no promises to drop charges in exchange for a confession. Id.

at 59-63.    Because Appellant admitted that there were known guns in his

home, the complained of out-of-court statements clearly did not prejudice

him. Accordingly, Appellant’s second claim of counsel ineffectiveness must

fail.

        Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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