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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.
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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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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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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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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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Com. v. Burton, S.
Combined Opinion