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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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