J-S48008-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

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-Bones (“Rosario-Bones”) appeals 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 courtappointed 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 
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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-Bones’ direct appeal 

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-Bones presents on appeal is “whether the 

[trial] court erred when it summarily denied [his] request for new counsel?” 

Appellant’s Brief at 4. When a defendant pleads guilty, he waives all 

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) 

provides ‘[a] motion for change of counsel by a 

defendant for whom counsel has been appointed 

shall not be granted except for substantial reasons.’ 

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 

argues that he put the trial court “on notice that there were serious issues 

between [trial counsel] and [Rosario-Bones]” when he told the trial court 

that trial counsel had called him “stupid.” Appellant’s Brief at 13. The 

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 

stupid and that he believed that trial counsel was not “representing [him] 

well.” N.T., 1/15/13, at 2, 7. The trial court denied Rosario-Bones’ request. 

Id. at 7. 

 As stated above, a defendant must establish an “irreconcilable

difference with counsel that precludes counsel from representing him.” 

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 

his request for a new attorney, where the defendant “[didn’t] like the way 

[the attorney] was talking.” 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-Bones’ complaint, 

that trial counsel called him stupid, is essentially identical to the defendant’s 

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 

coerced due to the “unjustified denial of his request for new counsel,” and 

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

to withdraw his plea. Appellant’s Brief at 15.2

“Once a guilty plea has been entered and sentence imposed, the plea 

may be withdrawn only upon a showing of manifest injustice, which may be 

established if the plea was not voluntarily or knowingly entered.” 

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 

court’s denial of his request for a continuance to obtain new counsel “put 

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 involuntary.” Id. at 189. After 

noting that “in the abstract, this argument is a convincing one[,]” we 

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 counsel ‘would be without 

substance if it did not include the right to a 

meaningful attorney-client relationship,’ 

[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 

‘meaningful relationship’ between an accused 

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 

and arbitrary “insistence upon expeditiousness 
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in the face of a justifiable request for delay” 

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. 

Only if there was a ‘justifiable request for delay,’ 

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 

interrogation.” 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 189-91. We ultimately concluded that the “standard is that the 

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

adequately represent him. Id. at 191. We further clarified “[a]t the risk of 

explaining the obvious ... that this requirement consists of two parts. First, 

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

this belief is reasonable. The facts of this case satisfy neither element.” 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