J-S31009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALBERTO LEE TORRES,

Appellant No. 1595 MDA 2015

Appeal from the PCRA Order August 20, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001954-2011

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 04, 2016

Appellant, Alberto Lee Torres, appeals from the order entered on 

August 20, 2015, that denied his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

On December 4, 2012, following a jury trial, Appellant was convicted 

of aggravated assault, simple assault, recklessly endangering another person 

(“REAP”), and possessing a prohibited offensive weapon. At a separate trial 

held on January 2, 2013, a jury convicted Appellant on a charge of persons 

not to possess firearms. On March 27, 2013, the trial court sentenced 

Appellant to an aggregate term of eleven and one-half to twenty-three years 

of incarceration in a state correctional institution. Appellant filed a timely

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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post-sentence motion that was denied by the trial court in an order filed on 

April 10, 2013, and Appellant filed a timely appeal. This Court affirmed 

Appellant’s judgment of sentence on March 21, 2014, and the Supreme 

Court denied Appellant’s petition for allowance of appeal. Commonwealth 

v. Torres, 1259 MDA 2013, 100 A.3d 315 (Pa. Super. filed March 21, 2014) 

(unpublished memorandum), appeal denied, 97 A.3d 744 (Pa. 2014). 

On March 9, 2015, Appellant filed a timely PCRA petition. The PCRA 

court held a hearing on Appellant’s petition on May 27, 2015. On August 20, 

2015, the PCRA court denied Appellant’s PCRA petition, and Appellant filed a 

timely appeal. Both Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925.1

On appeal, Appellant raises the following issues for this Court’s 

consideration:

1. Whether the Court erred in finding [Appellant] failed to show 

that but for wearing the stun belt, there would have been a 

different result, thus denying [Appellant’s] first claim, when:

a. The Sheriff’s policy which requires all defendants at 

trial to wear a stun belt violates case law; and,

b. Trial Counsel admitted that he was not even aware 

of the Sheriff’s policy, did not know that [Appellant] 

was made to wear a stun belt, and would have raised 

the issue with the Court had he known it was a 

concern; and, 

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1

In its Pa.R.A.P. 1925(a) opinion, the PCRA court incorporated by reference 

the August 20, 2015 opinion and order denying Appellant’s PCRA petition.
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c. [Appellant] questioned the use of the stun belt when 

it was put on him, but was informed that it was a 

matter of policy.

Appellant’s Brief at 5. In the argument portion of his brief, Appellant frames 

his issue as a claim of ineffective assistance of counsel for failing to object to 

wearing the stun belt. Id. at 9. 

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014) (en banc)). This Court is limited to determining whether the evidence 

of record supports the conclusions of the PCRA court and whether the ruling 

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that 

are supported in the record and will not disturb them unless they have no 

support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa. Super. 2014). 

Additionally, counsel is presumed effective, and it is the defendant’s 

burden to prove ineffectiveness. Commonwealth v. Martin, 5 A.3d 177, 

183 (Pa. 2010). To overcome this presumption, Appellant must 

demonstrate that: (1) the underlying claim has arguable merit; (2) counsel 

did not have a reasonable basis for his actions or failure to act; and (3) the 
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petitioner suffered prejudice as a result of counsel’s deficient performance. 

Id. An appellant’s claim fails if he cannot meet any one of these prongs. Id.

As noted above, Appellant argues that his counsel was ineffective in 

failing to object when he was required to wear a stun belt. Appellant’s Brief 

at 10. Appellant baldly asserts that, because he was made to wear the stun 

belt, he was nervous and unable to assist in his defense. Appellant’s Brief at 

12. In Commonwealth v. Lopez, 854 A.2d 465, 469-470 (Pa. 2004), our 

Supreme Court addressed a nearly identical claim of error:

It is difficult to ascertain what prejudice allegedly resulted from 

appellant’s wearing the belt, beyond the prejudice of not being 

able to escape. Appellant does not allege the jury was prejudiced 

by seeing him in the belt, but instead claims it constricted his 

breathing and movement, thereby interfering with “his Sixth 

Amendment right to assist his counsel.” Appellant’s Brief, at 8. 

However, appellant has not demonstrated that but for the belt, 

the outcome of his trial would have differed. Accordingly, his 

claim of trial counsel’s ineffectiveness fails, and this necessarily 

defeats his claim of appellate counsel’s ineffectiveness. 

Lopez, 854 A.2d at 469-470. 

The same is true in the case at bar. Appellant does not argue that the 

jury saw the stun belt, only that Appellant was nervous while wearing it. 

Appellant’s Brief at 12-13. The PCRA court addressed Appellant’s issue as 

follows:

[Appellant] testified at his PCRA hearing that he was 

outfitted with a “RACC” belt, which is a form of stun belt. The 

belt is wrapped around the defendant’s waist and is remotely 

operated by a Sheriff’s Deputy in the courtroom. The stun belt 

emits an electric shock to immobilize a defendant. The stun belt 

was affixed to [Appellant’s] waist and was beneath his clothing. 

All testimony confirms that the belt was not visible to the public 
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or jurors, and no mention of it was ever made to the jurors. 

[Appellant] asserts that the compulsion to wear the stun belt 

inhibited his free participation in the course of the trial, and that 

it “made him nervous.” Furthermore, he asserts that it inhibited 

his ability to testify on his own behalf at trial, thus violating his 

6

th Amendment rights to counsel and a fair trial.

[Appellant’s] trial counsel, Drew Deyo, testified that he did 

not notice that [Appellant] was wearing the stun belt; he was 

not aware of the Sheriff’s policy which requires all defendants at 

trial to wear a stun belt, and that he had in fact advised 

[Appellant] against testifying as his testimony would be more 

harmful than helpful to him. He assumed that [Appellant] would 

be claiming his innocence if he testified.

This Court notes that the trial transcript reveals at the 

conclusion of the testimony of the trial on January 2, 2013, 

[Appellant] was given an opportunity to either assert his 5th

Amendment right or indicate if he wished to testify. The colloquy 

was conducted outside of the presence of the jury after 

[Appellant] was placed under oath. The Court first confirmed 

that [Appellant] had the benefit of his privately retained counsel, 

Drew Deyo, Esquire. The Court confirmed that [Appellant] 

understood that he could not be compelled to make any 

statements under the 5th Amendment to the Constitution. The 

Court also confirmed with [Appellant] that the trial was the time 

and place for him to address the jury if he wished to do so. 

[Appellant] answered in the affirmative that he understood all of 

his rights. Furthermore, the Court confirmed that [Appellant] 

understood that he could not ask to come forward a day, a 

week, 30 days, or a year from now and indicate that he was 

denied an opportunity to testify on his own behalf. [Appellant] 

confirmed that he understood that the trial was the time and 

place to address the jurors. By this Court’s recollection, he did 

not assert that he was nervous, concerned, or fearful of being 

shocked by the stun belt. [Appellant] confirmed in the colloquy 

with the Court that he had adequate time to discuss the issue of 

whether or not he should testify with his attorney. He also 

indicated he was exercising his right to remain silent. (Pgs of 

trial transcript 161-162).

In the case of Comm. v. Romero, 595 Pa. 275, 297-298, 

938 A.2d 362, 375 (Pa. 2007), the Pennsylvania Supreme Court 

found that where a stun belt was not visible to the jury and was 
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underneath the appellant’s clothing, that “a jury could not have 

been prejudiced by what it could not see.” Id. In that case, the 

Defendant Romero offered no testimony regarding the 

psychological effect upon him. In this instance, the Court finds 

that [Appellant] has offered testimony relating [to] the alleged 

psychological effect, yet the Court is of the opinion that having 

heard [Appellant’s] testimony, that such testimony is not 

credible in light of the fact that the Court took the time to 

affirmatively confirm whether or not [Appellant] wished to testify 

at the time of trial. Furthermore, by his own counsel’s testimony, 

there appeared to be no visible signs to his trial counsel that he 

was somehow psychologically affected by wearing the stun belt. 

In fact, his counsel was unaware that he was wearing it at the 

time of his trial. If the application and use of such a device was 

causing [Appellant] stress at trial, this Court could reasonably 

expect that [Appellant] would offer a complaint to his counsel 

about the use of such a restraint, and request that it be 

addressed. In fact, [Appellant] acknowledges that although 

wearing it to him may have seemed “weird,” it was not until he 

was transported to SCI Smithfield and presumably began to 

investigate such issues that the question of illegality of its use 

was brought to his attention. However, a challenge regarding 

illegality is not the sole inquiry per the case law of the 

Commonwealth of Pennsylvania. There must be more than mere 

alleged illegal use. It must affect or prejudice the [d]efendant’s 

case in the eyes of the jury or to have such a psychological 

impact that it would deny him the opportunity to fully participate 

in the trial. The Court considers [Appellant’s] testimony at his 

PCRA hearing to be self-serving in that he is now attempting to 

contradict all the evidence which points to the contrary. Simply 

by saying that he could not adequately voice his concerns about 

the use of the belt to his counsel is not credible. The Court takes 

into account that Mr. Deyo was his privately retained counsel 

and presumably the relationship was one such that [Appellant] 

had assurances of the attorney-client relationship and would 

have trusted such matters to his counsel. The complaint that 

[Appellant] is now lodging about the impact that the stun belt 

had upon him are in this Court’s view not credible. For that 

reason, the Court finds that there is no evidence to support 

[Appellant’s] claim that there was a psychological impact upon 

him which affected his participation in the trial.

In Comm. v. Lopez, 578 Pa. 545, 553, 845 A.2d 465, 469-

470 (Pa. 2004), the Pennsylvania Supreme Court has established 
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that when a Defendant is asserting a claim of ineffective 

assistance of counsel, he must prove “that but for the belt, the 

outcome of the trial would have been different.” Id. As this Court 

has stated, [Appellant’s] testimony in this area was not 

persuasive or credible. The Court finds that it is at best selfserving, and while [Appellant] may have had concerns about 

wearing the belt, he was given ample opportunities to reveal to 

counsel and the Court what impact it was having upon him 

throughout the course of the trial. This Court is of the opinion 

that [Appellant] has failed to show how he was psychologically 

impacted or so affected that he could not engage with his 

counsel throughout the course of trial. In fact, Mr. Deyo 

confirmed that if there was any concern at all raised at any time 

throughout the course of the trial, he would have brought it to 

the attention of the court and insisted that it be addressed.

For these reasons, [Appellant] has failed to show that but 

for the wearing of the stun belt, there would have been any 

change in the result of trial. For those reasons, his claim of 

ineffective assistance of trial counsel must fail.

PCRA Court Opinion and Order, 8/20/15, at 2-5. We agree with the PCRA 

court’s conclusion that Appellant failed to establish prejudice. 

In his brief, Appellant also challenges the policy of wearing the stun 

belt as a basis upon which counsel should have objected. Appellant’s Brief 

at 10. Appellant avers that, without a finding of “extreme need,” the policy 

is a violation of Pennsylvania law. Id. However, the case Appellant cites is 

a non-precedential memorandum from the Commonwealth Court, Brown v. 

Bovo, 2339 CD 2008, 980 A.2d 223 (Pa. Cmwlth. filed September 14, 2009) 

(unpublished memorandum). In addition to Brown being a nonprecedential decision, the “extreme need” language cited therein is in 

connection to a defendant in a federal case appearing in the courtroom in 

visible leg-irons and handcuffs. Lemons v. Skidmore, 985 F.2d 354, 359 
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(7th Circuit 1993). However, nothing in the case at bar reveals that 

Appellant wore shackles or that the stun belt was visible to the jury.

2

 

Under the facts presented here, the “extreme need” analysis is inapplicable 

because the stun belt was not visible, and we have already concluded that 

Appellant failed to show prejudice.3

For the reason set forth above, Appellant’s ineffectiveness claim fails. 

Accordingly, we affirm the order denying Appellant’s PCRA petition. Martin, 

5 A.3d at 183.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2016

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2

“The Fifth and Fourteenth Amendments prohibit the use of physical 

restraints visible to the jury absent a trial court determination, in the 

exercise of its discretion, that they are justified by a state interest specific to 

a particular trial.” Deck v. Missouri, 544 U.S. 622, 642 (2005) (emphasis 

added).

3 We must also point out that counsel testified credibly that Appellant never 

informed him that he was wearing the stun belt. While we have already 

concluded that Appellant failed to establish prejudice, were we to reach this 

issue, we would not find that counsel was ineffective for failing to raise an 

issue that Appellant did not reveal. See Commonwealth v. Willis, 68 A.3d 

997, 1009-1010 (Pa. Super. 2013) (finding that counsel was not ineffective 

for failing to raise a claim of which she was unaware).