Com. v. Ebersole, Jr., W. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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