NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 44 MDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. WAYNE EUGENE EBERSOLE, JR., Appellant No. 44 MDA 2013 Appeal from the Judgment of Sentence Entered January 25, 2012 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR BEFORE: BENDER, J., DONOHUE, J., and STRASSBURGER, J. * MEMORANDUM BY BENDER, J. FILED SEPTEMBER 13, 2013 Appellant, Wayne Eugene Ebersole, appeals from the judgment of sentence of months incarceration following his conviction for a violation of 18 Pa.C.S (persons not to possess, use, manufacture, control, sell or transfer firearms). Appellant contends the trial court abused its discretion when it overruled his objection to hearsay testimony. After careful review, we affirm. The trial court summarized the facts adduced at trial as follows: On December 3, 2009, Pennsylvania State Police troopers executed a warrant to search Ebersole's residence in Fort Loudon. N.T., 12/2/11 (Jury Trial), at They believed that Ebersole had traded an electric scooter or wheelchair to William "Roy" Myers in exchange for a Tikka.243 caliber rifle. Id. at * Retired Senior Judge assigned to the Superior Court.

2 Ebersole could not then (and cannot now) legally possess firearms. Id. Inside the home, Trooper Eric Guyer found an orange guncarrying case with a nametag for "William Myers" in the dining/kitchen area. Id. at 22, 30. In a gun cabinet in the master bedroom, troopers found the Tikka.243 rifle and a Western Auto Revelation rifle. Id. at 28. As part of the investigation, Trooper David Rush discovered that Ebersole was convicted in 1994 of a felony under the Controlled Substances, Drug, Device and Cosmetic Act. Id. at 43. Ebersole later made a tape-recorded, inculpatory statement to police. Id. at 34. Ebersole claimed that the two rifles were his stepfather, Rick Bell's. Id. at 48. Ebersole said that Bell kept the rifles at Ebersole's Fort Loudon house because Bell hunted in the area. Id. at (Bell was deceased at the time of trial. Id. at 59.) Ebersole said that he lived primarily in Washington, DC and not in Fort Loudon. Id. at He contended that he incriminated himself because police told him that the charges would be dismissed. Id. at 57. Ebersole managed to so testify on direct over repeated objection by the Commonwealth. Id. at On cross-examination, Ebersole admitted that his taperecorded statements contained no such promise from State Police. Id. at When confronted with the recording, he claimed under cross-examination that his self-incriminatory statements were false. Id. at 66. Trial Court Opinion (TCO), at 1 2. The jury found Appellant guilty. On January 25, 2012, the trial court sentenced him to a term of months incarceration. Appellant did not file post-sentence motions or an appeal. However, on March 16, 2012, Appellant filed a pro se petition under the Post Conviction Relief Act (PCRA), seeking reinstatement of his appellate rights. On December 21, 2012, the trial court granted Appellant s PCRA petition, thus reinstating his appellate rights nunc pro tunc. This appeal followed. Appellant presents a single claim on appeal: - 2 -

3 Did the trial court err in admitting incriminating out-of-court statements involving John Jarrett and William Roy Myers over trial counsel's hearsay objection (see objection and ruling at Trial Transcript pages 21-22) in the absence of providing appropriate instructions to the jury where said err[or] resulted in unlawful, incriminating, and prejudicial out-of-court statements (see Trial Transcript page 22) being presented to the jury that altered the outcome of the trial to the detriment of Appellant which entitles Appellant to a new trial? Appellant s Brief, at 7. Appellant s claim, as stated in his brief, is two-fold. First, he argues that the trial court abused its discretion by overruling his hearsay objection. The Commonwealth contends the trial court did not err because the statement was not offered for the truth of the matter asserted therein and, therefore, it was not hearsay. Second, Appellant avers that the trial court abused its discretion when it failed to issue a cautionary instruction once it determined the statement was admissible. The Commonwealth argues that Appellant waived this aspect of his claim because it was not raised in the trial court. The standard of review employed when faced with a challenge to the trial court's decision as to whether or not to admit evidence is well settled. Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion. Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Commonwealth v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007) (internal citations omitted)

4 Hearsay is a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Pa.R.E. 801(c). As a general rule, hearsay is not admissible. Pa.R.E At issue in the instant case is the testimony of State Trooper Guyer. Trooper Guyer read into the record the affidavit supporting the warrant to search Appellant s home. N.T., 12/2/11, at Included in the affidavit were statements by John Jarret and Roy Meyers indicating that Appellant was in possession of firearms and that Appellant was legally prohibited from possessing firearms. Id. at 22. Appellant s trial counsel objected on hearsay grounds. Id. at 21. The prosecutor responded that the statements were not being offered for their truth and were, therefore, not hearsay. Id. The trial court agreed, and overruled the objection. Id. at 22. In its opinion, the trial court explained that Appellant s claim lacked merit because: In response to trial counsel's objection, the Commonwealth stated that it was not offering Jarrat's and Meyer's statements for their truth. Although the exact reason proffered for the statements is not in the record, it appears that the Commonwealth was using the statements to show why Trooper Guyer suspected that [Appellant] was illegally possessing a firearm and why police obtained a search warrant. The statements, having been offered for a reason other than their truth, were not hearsay. Therefore, the Court properly overruled [Appellant]'s objection. TCO, at 4 (internal citation to the record omitted)

5 We agree with the trial court. The statements were offered and admitted into evidence in order to establish why the police suspected Appellant of illegally possessing firearms and what led them to seek and ultimately obtain a search warrant. The statements were not admitted to establish that Appellant possessed firearms or that that he was legally prohibited from possessing them, as would be necessary to establish a violation of 18 Pa.C.S As such, the statements were non-hearsay 1 That statute reads in pertinent part as follows: (a) Offense defined.-- (1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. (c) Other persons.--in addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a): (2) A person who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years. 18 Pa.C.S

6 and, therefore, not subject to the Pa.R.E. 802 hearsay prohibition. Accordingly, we conclude that the trial court did not abuse its discretion when it overruled Appellant s objection to hearsay. The second aspect of Appellant s claim is that the trial court should have issued a contemporaneous cautionary instruction when it permitted the admission of the statements as non-hearsay. We must first address the Commonwealth s assertion that this aspect of Appellant s claim has been waived. The Commonwealth contends that Appellant waived this matter when he failed to request a cautionary instruction after his hearsay objection was overruled. In any event, the Commonwealth argues that Appellant waived the matter when he failed to include it in his Pa.R.A.P. 1925(b) concise statement. We agree that Appellant failed to adequately preserve a claim concerning the trial court s failure to issue a cautionary instruction. Our Supreme Court has repeatedly found that the failure of trial counsel to request cautionary instructions relative to the admission of evidence constitutes the waiver of a claim of trial court error in failing to issue such instructions. Commonwealth v. Boyer, 891 A.2d 1265, 1267 (Pa. 2006). Appellant s brief does not identify where in the notes of testimony he requested or was denied a request for a cautionary instruction pertaining to the contested testimony. Our review of the record fails to uncover any such - 6 -

7 request. Accordingly, we conclude that this aspect of Appellant s claim has been waived. 2 Judgment of sentence affirmed. Judgment Entered. Deputy Prothonotary Date: 9/13/ We would also conclude that this aspect of Appellant s claim was waived because of Appellant s failure to include the matter in his Pa.R.A.P. 1925(b) concise statement. [I]n order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule Any issues not raised in a 1925(b) statement will be deemed waived. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). In Appellant s concise statement, he set forth the following claim of error: The Trial Court erred in admitting hearsay statements involving John Jarrett and William Roy Myers over trial counsel's objection (see objection and ruling at Trial Transcript pages 21-22) which subsequently resulted in unlawful, incriminating, and prejudicial hearsay testimony (see hearsay testimony at Trial Transcript page 22) being presented to the jury that altered the outcome of the trial to the detriment of Appellant which entitles Appellant to a new trial. Appellant s Pa.R.A.P. 1925(b) concise statement, 1. Appellant s concise statement made no mention of the trial court s failure to issue a cautionary instruction and, therefore, Appellant cannot now raise this matter for the first time in his brief on appeal. See Lord, supra