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COMMONWEALTH PENNSYLVANIA v. ALASTAIR BOYD KYLE (01/05/82)

submitted: January 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ALASTAIR BOYD KYLE, APPELLANT



No. 2832 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Bucks County, No. 111 Miscellanous 1980

COUNSEL

Alastair B. Kyle, appellant, in pro. per.

Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, Cavanaugh and Montemuro, JJ. Cavanaugh, J., files dissenting opinion.

Author: Montemuro

[ 307 Pa. Super. Page 447]

Appellant, in this pro se appeal, asks us to reverse the order of the court below because he earns Six Hundred Fifty Dollars ($650) a week, and therefore requiring him to spend his valuable time in court violates his due process rights under the Fourteenth Amendment of the United States Constitution. That having been said, one would expect the next sentence to read: "[W]e find no merit in appellant's claim and therefore affirm the order of the lower court." Unfortunately, and somewhat sadly, we are compelled to reverse the lower court because of procedural irregularities upon which this court has spoken many, many times.

[ 307 Pa. Super. Page 448]

Appellant was found guilty by a District Justice for failing to stop at a stop sign.*fn1 He took an appeal de novo to Common Pleas Court. He arrived at court at 9:00 A.M., on October 3, 1980, the date of the hearing. After waiting for one and a half hours, he was informed by the assistant district attorney that his case would not commence until 1:30 P.M. He left the courtroom and subsequently that day filed a Motion to Dismiss or in the alternative for a Continuance. In his Motion to Dismiss, he argued that the charges should be dismissed because requiring him to wait in court at such a great personal expense effectively abridged various constitutional guarantees. The lower court judge sidestepped the issue and granted a Continuance until November 21, 1980. Appellant failed to appear at that hearing.

Appellant now repeats the argument in his Motion to Dismiss on appeal. However, we cannot reach the merits. The transcript of the November 21, 1980, proceedings reads as follows:

MR. LACKS: The first matter we have is the Commonwealth v. Alastair Kyle, Miscellaneous 111 of 1980. The defendant failed to appear for the Summary Hearing. We would ask that the appeal be dismissed.

THE COURT: Dismiss it.

The action of the lower court dismissing the appeal was improper. "This court has repeatedly held that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either 'guilty' or 'not guilty.'" Commonwealth v. Gula, 300 Pa. Super. 445, 446 A.2d 938 (1982), citing Commonwealth v. Carter, 230 Pa. Super. 401, 326 A.2d 530 (1974); see also Commonwealth v. Gamarino, 299 Pa. Super. 144, 445 A.2d 189 (1982).

Normally, this defect alone would compel a remand for the entry of a proper verdict followed by appropriate post-trial motions in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Gula, ...


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