J-S81037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM J. DEMENCZUK

Appellant No. 990 EDA 2016

Appeal from the Judgment of Sentence February 22, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0005408-2015

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2016

Appellant William J. Demenczuk appeals from the judgment of 

sentence entered by the Court of Common Pleas of Bucks County after the 

trial court convicted Appellant of Driving Under the Influence of a Controlled 

Substance (DUI) (incapable of safely driving), fleeing or attempting to elude 

a police officer, resisting arrest, and a summary traffic violation. Appellant 

claims the trial court abused its discretion in denying his request for a 

continuance. After careful review, we affirm.

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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On June 21, 2015, after Officer Keith Fennell observed Appellant failed 

to yield to a stop sign, he activated his lights and siren in an attempt to 

effectuate a traffic stop of Appellant’s vehicle. Appellant did not stop but 

continued driving to his residence. When Appellant exited the vehicle, he 

began screaming at the Officer Fennell, who noticed an odor of alcohol on 

Appellant’s breath. After Officer Fennell called for backup, he conducted 

field sobriety testing with Appellant’s consent. Appellant was unable to 

recite the alphabet and could not complete the finger-to-nose test.

Once Officer Fennell informed Appellant that he was under arrest for 

suspicion of DUI, Appellant became combative and physically resisted the 

officers’ attempt to place him in handcuffs. He continued to kick and flail 

while the officers put him in the back of the patrol car. Appellant claimed 

the officers broke his leg in the struggle. When an officer opened the door 

to check on Appellant’s foot, Appellant tried to escape. The officers subdued 

Appellant and again placed him in the back of the patrol car. Appellant 

refused to submit to chemical testing after being advised of the Pennsylvania 

Implied Consent Law.

Appellant was arraigned on June 22, 2015 and his preliminary hearing 

was held on August 24, 2015, at which he was represented by private 

counsel. The trial court gave Appellant a trial date of November 10, 2015. 

On that day, Appellant requested a continuance to allow him to obtain new 

private counsel as “financial issues kind of put things on hold.” Trial Court 

Opinion (T.C.O.), 6/21/16, at 3. The Honorable Wallace H. Bateman granted 
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Appellant’s request and rescheduled Appellant’s trial for December 2, 2015. 

Judge Bateman warned Appellant that he would not receive another 

continuance to obtain counsel and suggested that if Appellant could not 

afford an attorney, he should contact the Public Defender’s Office before 

leaving the courthouse.

On November 28, 2015, Appellant was notified that he did not qualify 

for representation by a public defender. Upon contacting the court 

administrator with this information, Appellant was granted a second 

continuance and his trial date was rescheduled to February 22, 2016.

Thereafter, on February 22, 2016, Appellant appeared for his 

scheduled trial without counsel and asked Judge Bateman for a third 

continuance to obtain counsel as he needed time to “gather the funds to pay 

him.” T.C.O. at 5. Judge Bateman noted that the prosecution was ready to 

present its case and its witnesses were present. Judge Bateman denied 

Appellant’s request for a continuance as he had been previously given nearly 

three months to obtain counsel after he was denied representation by the 

public defender.

The trial court proceeded to hold a bench trial and ultimately convicted 

Appellant of the aforementioned offenses. On the same day, the trial court 

sentenced Appellant to one to two years imprisonment pursuant to the 

applicable mandatory minimum sentencing provisions as this was Appellant’s 

fourth DUI conviction. The trial court imposed concurrent two year terms of 

probation for the convictions of attempting to elude a police officer and 
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resisting arrest, but did not impose further penalty for the summary traffic 

violation. Appellant filed this appeal and complied with the trial court’s 

direction to submit a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

Appellant claims the trial court abused its discretion in denying his 

request for a continuance, which thereby denied Appellant his right to 

counsel. Our standard of review of a trial court’s decision to deny a request 

for a continuance is as follows:

Appellate review of a trial court's continuance decision is 

deferential. The grant or denial of a motion for a continuance is 

within the sound discretion of the trial court and will be reversed 

only upon a showing of an abuse of discretion. As we have 

consistently stated, an abuse of discretion is not merely an error 

of judgment. Rather, discretion is abused when the law is 

overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill-will, as shown by the evidence or the record[.]

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa.Super. 2016) (citation 

omitted).

A defendant has the right to the assistance of counsel in a criminal 

prosecution under both the Sixth Amendment to the United States 

Constitution and Article I, Section 9 of the Constitution of the 

Commonwealth of Pennsylvania. However, this Court has held that:

the right of the accused to choose his own counsel, as well as 

the lawyer's right to choose his clients, must be weighed against 

and may be reasonably restricted by the state's interest in the 

swift and efficient administration of criminal justice. Thus, this 

Court has explained that while defendants are entitled to choose 

their own counsel, they should not be permitted to unreasonably 
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clog the machinery of justice or hamper and delay the state's 

efforts to effectively administer justice. 

Commonwealth v. Randolph, 582 Pa. 576, 584, 873 A.2d 1277, 1282 

(2005) (citations and quotation marks omitted).

In a similar case, Commonwealth v. Wentz, 421 A.2d 796 

(Pa.Super. 1980) (en banc), the defendant claimed the trial court erred in 

failing to grant him a continuance on the day of trial so that he could seek 

the assistance of counsel. This Court concluded that the defendant had 

waived his right to counsel as he had been notified of his trial date, had been 

directed to retain counsel to represent him, but nonetheless appeared 

without counsel for his scheduled trial with no reasonable excuse for the lack 

of counsel and no concrete plans on obtaining counsel.

Likewise, in this case, we find Appellant waived his right to counsel by 

ignoring the trial court’s repeated directions for him to retain counsel. On 

Appellant’s most recently scheduled trial date, the case had already been 

continued twice upon Appellant’s request. Although Appellant had been 

given nearly three additional months to obtain counsel, he failed to make 

this arrangement and waited until the date of his scheduled trial to ask for a 

third continuance. Appellant indicated that he was “talking to” another 

attorney but wanted more time to “gather the funds to pay him.” T.C.O., at 

5. Besides this assertion, Appellant offered no information concerning his 

efforts to acquire funds for his attorney’s fees and did not indicate when he 

would be able to retain an attorney. As in Wentz, we find Appellant “denied 
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himself the assistance of counsel when he failed to take steps to retain 

counsel despite the admonishments of the trial court.” Wentz, 421 A.2d at 

799. As a result, we conclude that the trial court did not err in denying 

Appellant’s request for a continuance.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016