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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
    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(unpublished memorandum), appeal denied, 97 A.3d 744 (Pa. 2014).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
     6th 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 5 th
     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 self-
      serving, 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   non-

precedential 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
____________________________________________


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).



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