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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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