J-S48008-14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                : IN THE SUPERIOR COURT OF
                                             :      PENNSYLVANIA
                   Appellee,                 :
                                             :
              v.                             :
                                             :
JAVIER ROSARIO-BONES,                        :
                                             :
                   Appellant                 : No. 228 MDA 2014

            Appeal from the Judgment of Sentence January 15, 2013,
                   Court of Common Pleas, Lancaster County,
               Criminal Division at No. CP-36-CR-0000320-2012

BEFORE: DONOHUE, JENKINS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED AUGUST 04, 2014

     Javier Rosario-                   -                  from the judgment of

sentence entered following his convictions of delivery of a controlled

substance, 35 P.S. § 780-113(a)(30), and criminal use of a communications

facility, 18 Pa.C.S.A. § 7512(a). We affirm.

     We summarize the relevant facts as follows. On June 13, 2011, the

Lancaster police apprehended Rosario-Bones after he sold four bags of

heroin to a confidential informant.        On January 15, 2013, Rosario-Bones

appeared for trial.    At the commencement of the proceeding, his court-

appointed counsel told the trial court that Rosario-Bones wanted a new

attorney.    N.T., 1/15/13, at 2.   After significant discussion, the trial court

denied this request. Rosario-Bones then pled guilty to the above-mentioned




*Retired Senior Judge assigned to the Superior Court.
J-S48008-14


crimes and was sentenced to an aggregate term of three to eight years of

imprisonment. No post-sentence motions or direct appeal were filed.

      On June 5, 2013, Rosario-Bones filed a pro se PCRA petition.

Following a hearing, the PCRA court reinstated Rosario-

rights and granted his request to file post-sentence motions nunc pro tunc.

Rosario-Bones subsequently filed a post-sentence motion, arguing that his

guilty plea was involuntary.     The trial court denied the post-sentence

motion, and this timely appeal followed.

      The first issue that Rosario-




grounds for appeal except for the jurisdiction of the court, the voluntariness

of the plea, and the legality of the sentence. Commonwealth v. Barbaro,

__ A.3d. __, 2014 WL 2601509 at *1 n.1 (Pa. Super. June 11, 2014). As

this issue does not implicate the jurisdiction of the court, the voluntariness

of his plea, or the legality of his sentence, Rosario-Bones has waived it for

purposes of appeal.

      Even if this issue were not waived, we would conclude that it is without

merit.

            Pennsylvania Rule of Criminal Procedure 122(C)

            defendant for whom counsel has been appointed

            Pa.R.Crim.P 122(C). To satisfy this standard, a



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            defendant must demonstrate he has an irreconcilable
            difference with counsel that precludes counsel from
            representing him. Commonwealth v. Spotz, [] 756
            A.2d      1139,    1150      ([Pa.]    2000)    (citing
            Commonwealth v. Tyler, [] 360 A.2d 617, 619
            ([Pa.] 1976)). The decision whether to appoint new
            counsel lies within the trial court's sound discretion.
            Id. (citing Commonwealth v. Segers, [] 331 A.2d
            462, 465 ([Pa.] 1975)).

Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008). Rosario-Bones

                                            ce that there were serious issues

between [trial counsel] and [Rosario-



record supports this claim, as it indicates that when making his request for

new counsel, Rosario-Bones told the trial court that trial counsel called him



                                                              -

Id. at 7.

      As st



Wright, 961 A.2d at 134. In Commonwealth v. Johnson, 454 A.2d 1111

(Pa. Super. 1983), the defendant argued that the trial court erred in denying



                              Id. at 1115. More specifically, the defendant

complained that the attorney used a curse word when speaking with him.

Id. at 1116. This Court concluded that this complaint did not amount to an



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irreconcilable difference such that the trial court should have granted the

request for new counsel. Id. at 1116-17. Here, Rosario-

that trial counsel called him stupid, is

complaint in Johnson, and therefore we conclude that it does not establish

an irreconcilable difference entitling him to the appointment of new counsel.1

      In his second issue on appeal, Rosario-Bones argues that his plea was



therefore involuntary, such that the trial court erred in denying his request
                                             2



                                                 sentence imposed, the plea

may be withdrawn only upon a showing of manifest injustice, which may be



Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004), aff'd, 956

A.2d 399 (Pa. 2008).       This Court addressed the precise argument that

Rosario-Bones now raises in Commonwealth v. Egan, 469 A.2d 186 (Pa.

Super. 1983) (en banc). In that case, the defendant first intended to plead


1
  Rosario-Bones does not mention on appeal his vague statement, made to
the trial court, that trial counsel was not representing him well. As such, it
is waived. See Commonwealth v. Doyen, 848 A.2d 1007, 1014 (Pa.
Super. 2004) (noting that this Court will not review not properly developed
in briefs).
2
    We note that in contravention of the Rules of Appellate Procedure,
Rosario-Bones did not develop his argument with citation to any relevant
case law or reference to the record. See Pa.R.A.P. 2119. We could find this
issue waived on the basis of these briefing defects, Pa.R.A.P. 2101, but we
decline to do so in this instance.


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guilty, but changed his mind at the last minute and indicated that he wanted

to go to trial. A few hours later, the defendant requested a continuance to

obtain new counsel. The trial court denied that request, and the defendant

subsequently pled guilty to robbery.    On appeal, he argued that the trial



him in the position of either proceeding to trial with counsel in which he did

not have confidence or pleading guilty.    This created, he says, a form of

coercion which rendered his guilty plea                   Id. at 189.    After



considered whether such a claim could ever afford a defendant relief:

            Notwithstanding the fact that an indigent defendant
            does not have a right to counsel of his choice,
            Commonwealth v. Simpson, [] 294 A.2d 805 ([Pa.
            Super.] 1972), it is certainly conceivable that a
            defendant could be placed in a situation in which a
            lack of confidence in his court-appointed counsel
            could result in an unwillingness to go to trial. This
            could, in turn, result in the entry of an involuntary
            guilty plea. The questions before us are what the
            parameters are in which we will recognize that this
            has occurred and whether they are present here.

            A recent United States Supreme Court decision,
            Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75
            L.Ed.2d 610 (1983), is most helpful in setting these
            boundaries. In the opinion of the Court, the Chief
            Justice wrote:

               The Court of Appeals' conclusion that the Sixth
               Amendment right to couns
               substance if it did not include the right to a
               meaningful      attorney-
               [Slappy v. Morris ] 649 F.2d [718] at 720 [



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              (9th Cir.1981) ] (emphasis added), is without
              basis in the law. No authority was cited for this
              novel ingredient of the Sixth Amendment
              guarantee of counsel, and of course none could
              be. No court could possibly guarantee that a
              defendant will develop the kind of rapport with
              his attorney privately retained or provided by
              the public that the Court of Appeals thought
              part of the Sixth Amendment guarantee of
              counsel. Accordingly, we reject the claim that
              the    Sixth    Amendment       guarantees      a

              and his counsel.

          Morris v. Slappy, supra, 461 U.S. at [12], 103
          S.Ct. at 1617.

          The lesson to be gained from this holding is simple.
          Appellant's mere dissatisfaction with counsel does
          not work a violation of his Sixth Amendment right to
          counsel. Without more, such dissatisfaction could not
          create a situation which we would recognize as
          coercing a guilty plea.

          This is in accord with the law regarding
          continuances. The decision whether to grant a
          continuance is within the discretion of the court
          below. Commonwealth v. Kittrell, [] 427 A.2d
          1380 ([Pa. Super.] 1981). An appellate court cannot
          disturb a continuance decision absent an abuse of
          that discretion. The United States Supreme Court
          also addressed this area in Morris.

              Trial judges necessarily require a great deal of
              latitude in scheduling trials. Not the least of
              their problems is that of assembling the
              witnesses, lawyers, and jurors at the same
              place at the same time, and this burden
              counsels against continuances except for
              compelling reasons. Consequently, broad
              discretion must be granted trial courts on
              matters of continuances; only an unreasoning




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              violates the right to the assistance of counsel.
              Ungar v. Sarafite, 376 U.S. 575, 589 [84
              S.Ct. 841, 849, 11 L.Ed.2d 921] (1964).

          Morris, supra, 461 U.S. at [12], 103 S.Ct. at 1616.


          which was not granted, could appellant's right to
          counsel have been violated and the guilty plea have
          been coerced.

          What would make such a request justifiable? All such
          requests cannot be per se justifiable. That would
          enable a criminal defendant to indefinitely delay his
          going to trial. He would simply have to announce to
          the court at every trial date that he was dissatisfied
          with his counsel and wanted a continuance to obtain
          new counsel. Nor, as noted above, can all such
          requests be considered per se unjustifiable.         A
          standard is necessary to separate the justifiable from
          the unjustifiable request for a continuance due to
          dissatisfaction with counsel.

          In determining the applicable standard, we have
          looked to the test applied in a similar context:
          whether a confession can be suppressed because it
          was given in a custodial interrogation setting without
          constitutional safeguards, rooted in voluntariness,
          having been met. The situation before us has many
          parallel features: whether a guilty plea can be
          withdrawn because it was given in a situation
          without    constitutional   safeguards,    rooted   in
          voluntariness, having been met.

          The standard to be applied to the former situation in
          this    Commonwealth       was      announced      in
          Commonwealth v. Marabel, [] 283 A.2d 285
          ([Pa.] 1971) (Eagen, J.).

              It is our view that the proper test was applied
              in Myers v. State, 3 Md.App. 534, 240 A.2d
              288 (1968), wherein the court stated:



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              * * * [C]ustody occurs if a suspect is led to
              believe, as a reasonable person, that he is
              being deprived or restricted of his freedom of
              action or movement under pressures of official
              authority. * * * whether the suspect is
              physically deprived of his freedom of action in
              any significant way or is placed in a situation in
              which he reasonably believes that his freedom
              of action of movement is restricted by such
                              Id. at 537, 240 A.2d at 290.

              The above test has the element of
              objectiveness since we look at what the
              suspect could believe as a reasonable man,
              and by focusing on the suspect, compliance
              with the thrust of the Miranda decision is
              achieved.

           Commonwealth v. Marabel, supra, [] 283 A.2d at
           288.

                                    ***
           The standard announced in Marabel is transferable
           to the situation before us: whether a guilty plea can
           be withdrawn on the grounds that the guilty plea
           was coerced through the denial of a continuance,
           forcing appellant to plead guilty rather than go to
           trial with counsel in whom he had no confidence.

Id. at 189-

criminal defendant must have a reasonable belief that his counsel will not

adequately represent him. Id.

explaining the obvi

that the criminal defendant must actually have such a belief. Second, that

                                                                     Id.




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     Rosario-Bones does not point to any evidence that would support a

finding that trial counsel could not have adequately represented him, and

our review of the record reveals none.     He has filed to meet the Egan

standard, and so we must conclude that he has not established a manifest

injustice such that would require the withdrawal of his guilty plea. Leidig,

850 A.2d at 745.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2014




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