J-A09027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
SEAN BURTON,                               :
                                           :
                     Appellant             : No. 1861 EDA 2014

                     Appeal from the PCRA Order May 30, 2014,
                     Court of Common Pleas, Delaware County,
                  Criminal Division at No. CP-23-CR-0003894-2010

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED MAY 05, 2015

       Appellant, Sean Burton (“Burton”), appeals from the order entered on

May 30, 2014 by the Court of Common Pleas, Delaware County, denying his

petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”).1 For

the reasons set forth herein, we conclude that Burton did not satisfy the

requisite elements of a claim for ineffective assistance of counsel, and we

therefore affirm the PCRA court’s order.

       A prior panel of this Court provided the following summary of the facts

and procedural history:

             This case arises out of the relationships between
             Burton, Theresa Murphy [(“Murphy”)], and the
             victim, Army Sergeant James Stropas [(“Stropas”)].

             Burton was the owner of Final Impact, a car stereo
             and alarm shop in Morton, Pennsylvania, when he


1
    42 Pa.C.S.A. §§ 9541-46.
J-A09027-15


          met Murphy in 2005. He was divorced, and she was
          the single mother of two children.     Burton and
          Murphy married on July 6, 2006, and lived as a
          couple in Pennsylvania, although Burton maintained
          a residence in Delaware where he would stay for
          extended periods of time.     In 2006, before the
          marriage, Murphy met Stropas, who was a security
          guard in the building where Murphy worked. In early
          2008, Burton and Murphy separated, and Murphy
          filed for divorce.    She was not represented by
          counsel, and did not seek spousal support or
          equitable distribution of marital property.    The
          divorce became final on June 10, 2008.

          During the separation, and prior to the divorce,
          Burton lived in his residence in Delaware.      In
          February 2008, Stropas stayed with Murphy in
          Springfield, Pennsylvania. On one occasion, Burton
          came to the house and noticed Stropas’ Jeep in the
          driveway. When he entered the house, he went into
          the master bedroom where he saw Stropas on the
          bed wearing shorts and a tank top. Burton was
          upset, but no altercation occurred.

          After the separation and divorce, Burton and Murphy
          remarried each other in November 2008. In March
          2009, Stropas began his second tour of duty in Iraq,
          during which time he and Murphy remained in
          contact. Upon his return from Iraq in March 2010,
          Stropas met with Murphy.          Shortly thereafter,
          Stropas went on a road trip by himself, and returned
          to the area in May 2010.

          During Memorial Day weekend 2010, Burton and
          Murphy had a disagreement during which Burton
          admitted to infidelity, and the couple discussed
          divorce.    Burton left the house, and Murphy
          contacted Stropas, who began living with her shortly
          thereafter.

          On June 9, 2010, Murphy, now represented by
          counsel, filed for divorce, and sought spousal support
          and division of marital property. Upon receiving the



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J-A09027-15


          complaint, Burton attempted to reconcile because he
          did not want to have to pay support. When Burton’s
          first marriage ended in 1998, he was ordered to pay
          his ex-wife four years of alimony. He did not wish to
          have a similar situation with Murphy.

          At the same time that Murphy was living with
          Stropas, she and Burton attended marriage
          counseling sessions and maintained an intimate
          relationship.

          Sunday, June 20, 2010, was Fathers’ Day. Murphy
          invited Stropas to spend the day with her and her
          two children. Burton knew that he was not invited.
          In the early morning hours of June 20, 2010, Burton
          went to Murphy’s house and attached a GPS device
          to Stropas’ Jeep, which was parked in the driveway.
          The GPS unit transmitted information regarding the
          location of the vehicle to Burton’s cellular phone and
          laptop so he would be able to find out the location of
          the Jeep at all times.

          On the morning of Monday, June 21, 2010, Burton
          drove his van to work. He and Murphy texted about
          a marriage counseling session scheduled for that
          afternoon.    That morning, Murphy and Stropas
          planned to go to a doctor’s appointment, and
          because they were running late, Murphy asked him
          to drive to the Dunkin’ Donuts at the Olde Sproul
          Shopping Center to pick up some coffee for her.

          Burton was at his office at Final Impact when he
          received an alert that Stropas’ Jeep had moved. He
          left work and drove to the Bertucci’s restaurant
          parking lot close to Murphy’s house.        From the
          parking lot he could see Stropas’ Jeep driving toward
          him. While receiving updates from the GPS, Burton
          followed Stropas’ Jeep to the Olde Sproul Shopping
          Center where he saw Stropas enter the Dunkin’
          Donuts. Burton parked his van close to Stropas’
          Jeep, and then removed his Final Impact tee shirt,
          turned it inside out, and put it back on.




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          Stropas exited the Dunkin’ Donuts with two cups of
          coffee and a bag of food. He opened the driver’s
          side door of the Jeep and entered the vehicle.
          According to Burton, he approached Stropas, who
          acknowledged his presence by saying, “Hey Sean.”
          Burton then alleged that Stropas grabbed a knife and
          began to attack him. Once Burton was able to get
          the knife blade from Stropas, he stabbed and
          slashed him more than seventy times. After the
          attack was over, Burton got into the Jeep, sat down
          on top of Stropas, whose body was stretched across
          the front seat, and drove out of the shopping center.
          Police pulled him over shortly thereafter, and as he
          exited the Jeep at the officers’ command, he stated,
          “He came at me with a knife and I had to defend
          myself.” Burton was taken to the hospital where he
          was treated in the emergency room. Stropas died as
          a result of his wounds.

          A search of Burton’s van that he drove to the scene
          of the crime revealed a hand truck, heavy duty
          rubber gloves, duct tape, electrical tape, plastic “zip
          ties,” a shovel, a hatchet, a can of gasoline, and a
          baseball bat.

          On June 21, 2010, police charged Burton with
          several offenses arising out of Stropas’ death.

          A jury trial began on March 21, 2011. Burton
          testified in his own defense. He told the jury that
          when he approached the Jeep, Stropas was seated
          inside, and the driver’s side door was open. Burton
          intended to close the door so that he would be
          standing outside while Stropas remained inside.
          However, he did not get to close the door because he
          saw Stropas turn around with a knife in his hand.
          Burton grabbed the knife blade with his right hand
          and then grabbed his right hand with his left hand as
          his body was pinned up against the driver’s side
          doorframe. Burton twisted the blade and it snapped,
          leaving the blade in his hand and the handle in
          Stropas’ hand. Stropas started to move towards
          Burton, and Burton stabbed Stropas in the chest. He



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J-A09027-15


          proceeded to stab and slash him while pushing
          Stropas back onto the seat. Stropas lunged over to
          the passenger side, and Burton thought he was
          reaching underneath the passenger seat for another
          weapon, so Burton yelled for help twice and stabbed
          Stropas in the back. Stropas was reaching for the
          passenger door handle, which led Burton to believe
          that Stropas was going to get out of the vehicle and
          try to kill him. Burton then stabbed Stropas in the
          neck. After Burton saw Stropas’ face, he dropped the
          knife and held Stropas’ neck to stop the bleeding. He
          then got behind the wheel of the Jeep with the
          intention of driving Stropas to the hospital. N.T.
          Trial, 3/24/11, at 84-93.

          The jury also heard the testimony of Dr. Bennett
          Preston, the medical examiner who performed the
          autopsy on Stropas. He testified that Stropas was
          slashed and stabbed seventy to eighty times, and
          that he sustained classic defense wounds. When Dr.
          Preston was shown photographs of the injuries that
          Burton sustained to his hands, he testified that they
          were not defense wounds, but were caused by
          Burton’s hands slipping on the knife. N.T. Trial,
          3/23/11, at 27, 41-42, 53.

          On March 25, 2011, the jury convicted Burton of
          first-degree murder and PIC. On May 24, 2011, the
          court sentenced Burton to life imprisonment for first-
          degree murder and a consecutive term of six to
          twenty-three months for PIC.

          Burton filed a notice of appeal on June 15, 2011, and
          on July 7, 2011, he filed a statement of errors
          complained of on appeal pursuant to Pa.R.A.P.
          1925(b). The trial court filed its Rule 1925(a) opinion
          on August 12, 2011.

Commonwealth v. Burton, 1582 EDA 2011, at 1-6 (Pa. Super. March 28,

2012) (unpublished memorandum).




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      On March 28, 2012, a panel of this Court affirmed the judgment of

sentence. On April 20, 2012, Burton filed a petition for allowance of appeal

to the Pennsylvania Supreme Court, which was denied on August 28, 2012.

Burton subsequently filed a timely PCRA petition on April 3, 2013.

      On June 3, 2013, the PCRA court filed a Notice of Intent to Dismiss

PCRA Petition Without a Hearing pursuant to Rule 907 of the Pennsylvania

Rules of Criminal Procedure. Burton filed a response on June 11, 2013 and

an amended PCRA petition on October 15, 2013. On February 27, 2014, the

PCRA court held an evidentiary hearing on Burton’s amended PCRA petition.

At the conclusion of the evidentiary hearing, the PCRA court issued an order,

permitting Burton to file a memorandum of law in support of his arguments

by April 14, 2014 and permitting the Commonwealth to file a memorandum

of law in support of its arguments by April 28, 2014. On May 30, 2014, after

considering all of the evidence, the PCRA court denied Burton’s PCRA

petition.

      Burton filed a timely notice of appeal on June 20, 2014 and a

statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure on July 3, 2014.           On appeal,

Burton raises the following issues for our review:

            1. Did the PCRA court err in denying [Burton] a new
            trial due to ineffective assistance of trial counsel?




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                  A. Was trial counsel ineffective in failing to
                  present an expert witness regarding the use of
                  the GPS locator device in this case?

                  B. Was trial counsel ineffective in failing to
                  object to prosecutorial misconduct during the
                  prosecutor’s closing speech to the jury?

            2. Was trial counsel ineffective in failing to object to
            the prosecutor’s closing remark that, “It’s not the
            first time [Burton]’s gone after somebody with a
            knife”?

            3. Was trial counsel ineffective in failing to pursue a
            motion in limine regarding the defense testimony
            offered by Detective Frey which referred to [Burton],
            upon arrest, having asked to “talk to a lawyer”?

Burton’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error. Commonwealth v. Wantz, 84

A.3d 324, 331 (Pa. Super. 2014) (citing Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011)).      A PCRA petitioner must establish the

claim by a preponderance of the evidence.        Commonwealth v. Gibson,

925 A.2d 167, 169 (Pa. 2007).

      In his brief, Burton presents several arguments that trial counsel,

Attorney Mark Much (“Attorney Much”), provided ineffective assistance.

“Our longstanding test for ineffective assistance of counsel derives from the

standard set by the United States Supreme Court in              Strickland v.

Washington, 466 U.S. 668 (1984).” Commonwealth v. Clark, 961 A.2d



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J-A09027-15


80, 85 (Pa. 2008). The test for ineffective assistance of counsel (the “IAC

test”) requires the petitioner to establish: (1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s actions or

failure to act; and (3) petitioner 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. Commonwealth

v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).       “Failure to meet any

prong of the test will defeat an ineffectiveness claim.” Commonwealth v.

Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (quoting Commonwealth v.

Wright, 961 A.2d 119, 148-49 (Pa. 2008)).

      Beginning with his first issue on appeal, Burton argues that Attorney

Much failed to present an expert witness to contradict the Commonwealth’s

witness, Clark Swanson (“Swanson”), regarding Burton’s use of the GPS

locator device on Stropas’ vehicle. Burton’s Brief at 7. Burton contends that

Swanson’s testimony, which indicated that Burton manually initiated 147

GPS locate commands, “significantly contributed to the guilty verdict at

trial.” Id. at 8-9. The PCRA court determined that Attorney Much did not

render ineffective assistance of counsel because the outcome of trial would

not have been any different if Burton’s proposed expert witness, Michael

Caloyannides, Ph.D. (“Dr. Caloyannides”), had testified.         PCRA Court

Opinion, 8/11/14, at 26. After reviewing the record, we conclude that the

record supports the PCRA court’s conclusion.



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      This Court has established that when raising a claim for ineffectiveness

for failing to call a potential witness at trial, the PCRA petitioner must satisfy

the prejudice prong of the IAC test by establishing the following:

            (1) the witness existed; (2) the witness was
            available to testify for the defense; (3) counsel
            knew, or should have known, of the existence of the
            witness; (4) the witness was willing to testify for the
            defense; and (5) the absence of the testimony of the
            witness was so prejudicial as to have denied the
            defendant a fair trial.

Wantz, 84 A.3d at 331 (citing Commonwealth v. Sneed, 45 A.3d 1096,

1108-09 (Pa. 2012)).

      In this case, Burton failed to establish that Attorney Much’s failure to

call Dr. Caloyannides at trial was so prejudicial as to have denied him a fair

trial. This Court has established that to demonstrate prejudice, “a petitioner

‘must show how the uncalled witness[]’ testimony would have been

beneficial under the circumstances of the case.’” Wantz, 84 A.3d at

332 (citing Gibson, 951 A.2d at 1134) (emphasis in original).

            Whether an uncalled witness’s testimony would have
            been “beneficial” or “helpful” to the defense depends
            ultimately upon whether it would have created a
            reasonable probability of a different outcome at trial.
            In turn, when an uncalled witness’s testimony would
            have created a reasonable probability of a different
            outcome [at] trial, “the absence of the testimony of
            the witness was so prejudicial as to have denied the
            defendant a fair trial.”

Id. at 333 (citing Sneed, 45 A.3d at 1109).




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     At the PCRA hearing, Dr. Caloyannides testified that if called to testify

at trial, he would have offered testimony that the GPS locate commands

could have occurred without manual initiation. N.T., 2/27/14, at 23-25. Dr.

Caloyannides further stated that he would have testified that no one could

have said, with a reasonable degree of certainty, that the pattern that was

observed occurred as a result of manual initiation.      Id. at 38-39.    Dr.

Caloyannides also testified, however, that he did not examine the device

used by Burton in this case, and only knew the functionality of the device

based on the description provided by Swanson at trial.         Id. at 30-31.

Furthermore, Dr. Caloyannides testified that he would not have been able to

determine which locate commands were automatic and which commands

were manual.     Id. at 40.    Instead, Dr. Caloyannides stated that any

determination he would have made regarding whether the locate commands

were automatic or manual would have been by conjecture by “taking into

consideration what’s plausible.” Id. at 41.

     After our review of the record, we conclude that the record supports

the PCRA court’s conclusion that Dr. Caloyannides’ testimony was not

beneficial to Burton’s defense in this case.   Burton’s defense was that he

acted in self-defense. The issue of whether the GPS locate commands were

automatic or manual was not beneficial or useful to proving that he acted in

self-defense as Burton himself testified that he placed the GPS device on

Stropas’ car and manually tracked the location of Stropas’ car on several



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occasions, including on the day of the incident. See N.T., 3/24/11, at 112-

14.   Although Burton contested the number of times he manually tracked

the location of the GPS device, it is questionable whether Dr. Caloyannides’

testimony, which was admittedly based upon conjecture, could establish a

lower number.     Even if he could establish a lower number, however, Dr.

Caloyannides’ testimony would not have supported Burton’s self-defense

theory, as it had no bearing on whether or not he acted in self-defense. As

a result, we conclude that the PCRA did not err in reaching its conclusion

that Dr. Caloyannides’ testimony would not have affected the outcome of the

trial. Burton therefore failed to establish any prejudice, and consequently,

failed to satisfy the third prong of the IAC test. The PCRA court did not err

in its determination the Attorney Much did not render ineffective assistance

of counsel for failing to call Dr. Caloyannides to testify.

      For his next two issues on appeal, Burton alleges that Attorney Much

provided ineffective assistance by failing to object to two instances of

prosecutorial    misconduct,     both      of    which   occurred     during   the

Commonwealth’s closing argument.            The first involves the prosecutor’s

statement to the jury regarding Burton’s credibility.         Burton argues that it

was unfair and improper for the prosecutor to state, “we saw his

performance yesterday. I suggest to you that his testimony, that his -- that

the Appellant himself, as well as his story, are completely incredible.”

Burton’s Brief at 17 (citing N.T., 3/25/11, at 97).            Burton asserts that



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Attorney Much “was under an obligation to present an objection” and his

failure to do so, denied Burton of a fair trial. Id. at 18.

      Attorney Much testified at the PCRA hearing regarding his justification

for not lodging an objection to the prosecutor’s comment, stating:

             I had tried to argue that [Burton’s] testimony was
             consistent not only with, you know, other witnesses
             in the case, but with, you know, other evidence in
             the case. And I thought it was a fair response to my
             argument.

             … I listen when prosecutors close and I object in
             prosecutor’s closing, not all the time, but frequently
             enough to say that I do object. And I listen for the
             words, I believe, I heard suggest, I submit, I
             suggest. It’s argument. It’s either the jury found
             him credible or not credible. And at the time, I just
             didn’t feel that it was that important to object.

N.T., 2/27/14, at 79, 81.

      The PCRA court determined that Attorney Much did not provide

ineffective assistance by failing to object, finding that “[t]he prosecutor’s

statements were grounded in findings supported by the record, not her

own personal judgment.” PCRA Court Opinion, 8/11/14, at 30 (emphasis

in original). After our review of the record, we agree.

      This Court has established that “[a]lthough a prosecutor may comment

on the credibility of the defendant or other witnesses, it is improper for a

prosecutor    to   express   a   personal      belief   as   to   their   credibility.”

Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citing

Commonwealth v. Chmiel, 889 A.2d 501, 545 (Pa. 2005)).                      It is well



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settled, however, that “[a] prosecutor must have reasonable latitude in fairly

presenting a case to the jury and must be free to present his or her

arguments with logical force and vigor.”     Commonwealth v. Charleston,

94 A.3d 1012, 1024 (Pa. Super. 2014) (quoting Commonwealth v. Rolan,

964 A.2d 398, 410 (Pa. Super. 2008)). Furthermore, “[i]n cases where the

outcome is controlled by credibility determinations, a prosecutor is permitted

to make comments reinforcing the fact that the jury is presented with

conflicting accounts.   A prosecutor’s contention that a defendant lied is

neither unfair nor prejudicial when the outcome of the case is controlled by

credibility[.]” Commonwealth v. Judy, 978 A.2d 1015, 1024 (Pa. Super.

2009) (citing Commonwealth v. Johnson, 588 A.2d 1303, 1307 (Pa.

1991)). “[I]n reviewing prosecutorial remarks to determine their prejudicial

quality, comments cannot be viewed in isolation but, rather, must be

considered in the context in which they were made.”       Judy, 978 A.2d at

1019 (quoting Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.

Super. 2006)).

      In this case, the record reflects that Attorney Much used his closing

statement to connect statements and evidence produced at trial with his

theory that Burton acted in self-defense.      See N.T., 3/25/11, at 7-79.

Attorney Much testified at the PCRA hearing that part of his goal for

delivering his closing statement was to convince the jury that Burton was

credible. N.T., 2/27/14, at 78. In so doing, Attorney Much emphasized that



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the evidence presented at trial, including the injuries Burton sustained, were

consistent with Burton’s story, and stated on several occasions that Burton

offered consistent and unequivocal testimony at trial. Id. at 45-46, 64.

     During her closing statement, the prosecutor attempted to establish

the contrary to be true, averring that the evidence supported the

Commonwealth’s theory that Stropas’ murder was premeditated rather than

Burton’s self-defense theory.    The prosecutor made the statement that

Burton’s story was incredible in the midst of her comparison of Burton’s

testimony and self-defense theory as submitted by Attorney Much during his

closing statement, with the evidence produced at trial. See N.T., 3/25/11,

at 83-112.    The prosecutor’s closing statement, and in particular, her

statement that Burton was incredible, reinforced the conflicting theories

presented at trial by the parties and suggested to the jury that the

Commonwealth’s theory of premeditated murder was supported by the

evidence, while Burton’s theory of self-defense was not.        Thus, as the

prosecutor’s statement in this case was responsive to Attorney Much’s

statements and reinforced the conflicting theories at trial, we conclude that

there is no merit to Burton’s claim of prosecutorial misconduct in this

instance.

     Burton’s second allegation of prosecutorial misconduct relates to the

prosecutor’s statement, “It’s not the first time [Burton]’s gone after

somebody with a knife.”    Burton’s Brief at 21-22.   Burton argues that the



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prosecutor’s comment was improper and prejudiced him “because the jury

may have thereby believed that the prosecutor knew of other occasions in

which [Burton] had evidenced a propensity to commit violent acts of assault

similar to the one on trial in this case.”    Id. at 22.   Furthermore, Burton

asserts that Attorney Much’s failure to object was prejudicial to his case

“[s]ince the origin of the knife was a crucial issue in the case.” Id. at 24.

The PCRA court again concluded that the prosecutor’s statement was

grounded in the record, and therefore, “was fair game for her [to] address in

her closing, as well as a fair response to the argument made by trial

counsel.” PCRA Court Opinion, 8/11/14, at 33. We agree.

      This Court previously held, “[t]he Commonwealth is entitled to

comment during closing arguments on matters that might otherwise be

objectionable or even outright misconduct, where such comments constitute

fair response to matters raised by the defense, or where they are merely

responsive to actual evidence admitted during a trial.” Commonwealth v.

Culver, 51 A.3d 866, 876 (Pa. Super. 2012) (citing Commonwealth v.

Trivigno, 750 A.2d 243, 249 (Pa. 2000)).

      Our review of the record reveals that Attorney Much introduced

evidence at trial that Murphy previously gave Burton a knife to investigate a

possible intruder.   See N.T., 3/25/11, at 38. Attorney Much testified that

because the origin of the knife used to kill Stropas was at issue, his “thinking

at the time was if the jury believes that [] Murphy gave [] Burton a knife,



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the jury may also believe that [] Murphy gave [Stropas] the knife before he

left the house.” N.T., 2/27/14, at 89. Thus, although the prosecutor used

this evidence to make a negative inference against Burton’s case, the record

establishes that her comment was made in response to evidence admitted

during trial.   Accordingly, in accordance with Culver, the prosecutor was

entitled to make the comment.

      Furthermore, even if the      prosecutor’s comment was improper,

Attorney Much established a reasonable strategy for not asserting an

objection. With respect to the second prong of the IAC test, this Court has

established that

            [g]enerally,    counsel’s   assistance   is   deemed
            constitutionally effective if he chose a particular
            course of conduct that had some reasonable basis
            designed to effectuate his client’s interests. Where
            matters of strategy and tactics are concerned, a
            finding that a chosen strategy lacked a reasonable
            basis is not warranted unless it can be concluded
            that an alternative not chosen offered a potential for
            success substantially greater than the course actually
            pursued.

Charleston, 94 A.3d at 1019 (citing Commonwealth v. Spotz, 84 A.3d

294, 311-12 (Pa. 2014)). In conducting this analysis, we are mindful that

“[w]e do not employ a hindsight analysis in comparing trial counsel’s actions

with other efforts he may have taken.”       Commonwealth v. Pander, 100

A.3d 626, 631 (Pa. Super. 2014) (internal citations omitted) (quoting




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Commonwealth v. Stewart, 84 A.3d 701, 706-07 (Pa. Super. 2013) (en

banc)).

      This Court has held that “[u]nder some circumstances, trial counsel

may forego objection 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.” Charleston, 94 A.3d

at 1022 (quoting Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa.

2012)).    At the PCRA hearing, Attorney Much explained that since Murphy

and Burton testified at trial regarding Burton’s use of a knife to investigate

an intruder, he believed that if he objected to the prosecutor’s closing

remark, “and it was overruled, [] it would be more damaging than letting the

jury sort out what they remembered about the case and that there was no

evidence to suggest that [Burton] had ever had a criminal case before

involving a knife.”   N.T., 2/27/14, at 89.   Since Attorney Much’s actions

supported a valid strategy, he cannot be found to be ineffective.

      For his final issue on appeal, Burton asserts that Attorney Much

provided ineffective assistance when he failed to submit a motion in limine

prior to trial to preclude testimony by defense witness, Detective James Frey

(“Detective Frey”), that upon arrest, Burton stated that “He came at me with

a knife.   I had to defend myself.     I think I want to talk to a lawyer.”

Burton’s Brief at 25-26; N.T., 3/24/11, at 10.       Burton argues that the

reference to wanting to speak with a lawyer created a suggestion that he



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fabricated his statements that he acted in self-defense and could have

misled the jurors into concluding that Burton admitted guilt. Burton’s Brief

at 26-27. The PCRA court, however, determined that this issue was without

merit and should be dismissed because Attorney Much had a reasonable

strategic basis for eliciting Officer Frey’s testimony.   PCRA Court Opinion,

8/12/14, at 37. We agree.

      Attorney Much testified at the PCRA hearing that his strategy in the

case was to pursue a self-defense theory. Although another officer testified

as a witness for the Commonwealth regarding Burton’s statements after he

exited the vehicle, Attorney Much stated that he “wanted the jury to hear

that [Burton] told another officer, not just himself testifying, but another

police officer, that [Stropas] came at him with a knife and he had to defend

himself.” N.T., 2/27/14, at 69-70. Attorney Much believed Detective Frey’s

testimony would reiterate and support a theory of self-defense.            Id.

Attorney Much further testified that he made a strategic decision to not file a

motion in limine to exclude the reference to wanting to speak with a lawyer

because he “wanted the first two parts of that statement” and because he

believed “it was reasonable for someone to say that they wanted to talk to a

lawyer based on the circumstances that [Burton] found himself in at the

time that he was pulled over.” Id. at 71; see id. at 84. After our review of

the record, we conclude that the record supports the PCRA court’s

determination that Attorney Much “chose a particular course of conduct that



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had some reasonable basis designed to effectuate [Burton’s] interests.” See

Charleston, 94 A.3d at 1019.

      Finally, Attorney Much explained why he did not object when Detective

Frey testified that Burton asked to speak with a lawyer, stating, “there are

some times that things happen during the course of a trial that I don’t want

to jump up and object to because then a jury feels that I care about it and it

must be important. … I didn’t want to bring attention to it.” N.T., 2/27/14,

at 84. As this Court has established that trial counsel may choose to forego

an objection to avoid highlighting the issue for the jury, see Charleston, 94

A.3d at 1022, we conclude that Attorney Much’s actions supported a valid

strategy, and cannot be found to be ineffective. Accordingly, as Burton has

failed to establish that Attorney Much provided ineffective assistance of

counsel, we affirm the PCRA court’s denial of relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2015




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