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COMMONWEALTH PENNSYLVANIA v. JOHN THEODORE BONAPARTE (09/03/87)

filed: September 3, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN THEODORE BONAPARTE, APPELLANT



Appeal from the Order entered July 15, 1986 in the Court of Common Pleas of York County, Criminal Division at Nos. 2215(A) and 2216(A) CA 1984.

COUNSEL

John T. Bonaparte, in propria persona.

John S. Kennedy, York, for Com., appellee.

Cavanaugh, Montemuro and Kelly, JJ. Cavanaugh and Montemuro, JJ., concur in result.

Author: Kelly

[ 366 Pa. Super. Page 184]

Appellant, John Theodore Bonaparte, appeals from an order denying his motion for bail pending disposition of various petitions filed pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq.*fn1 Although we

[ 366 Pa. Super. Page 185]

    find that disposition of such motions is governed by Pa.R.Crim.P. 1506(2) rather than Pa.R.Crim.P. 4010, which was relied upon by the trial court, we nonetheless affirm.

On October 29, 1984, appellant was arrested and charged with: two counts of corruption of minors, 18 Pa.C.S.A. § 3125; two counts of prostitution and related offenses, 18 Pa.C.S.A. § 5902; one count of possession of marijuana with intent to deliver, 35 P.S. § 78-113(30); and one count of possession of marijuana, 35 P.S. § 78-113(31). On June 28, 1985, appellant entered an open plea to two counts of prostitution and related offenses and one count of possession of marijuana pursuant to a negotiated plea bargain. The remaining charges were nol prossed. On August 23, 1985, appellant was sentenced to two consecutive terms of three to six years on the prostitution and related offenses convictions and a concurrent term of twelve months probation on the possession of marijuana conviction. No timely motion to modify sentence or timely notice of appeal was filed. However, beginning August 29, 1985, appellant filed

[ 366 Pa. Super. Page 186]

    a series of counseled and pro se motions and petitions. The instant appeal involves only the court's July 15, 1986 denial of appellant's June 18, 1986 pro se petition for bail during the pendency of proceedings on his various PCHA petitions.

Review of appellant's inarticulate pro se brief reveals the following contentions: the court erred in denying the petition for bail; appellant was denied a fair hearing on his petition for bail; the court erred in failing to appoint counsel to represent appellant at a bail hearing; appellant was denied due process; and the trial judge erred in failing to recuse himself.

The trial court rejected appellant's contentions and filed a memorandum opinion which includes the following statement:

The defendant has filed an appeal to the Superior Court of Pennsylvania from our Order of July 15, 1986, refusing to grant him bail pending the various proceedings against him. This Memorandum Opinion is filed to comply with Rule of Appellate Procedure 1925(a).

As we indicated in our said Order of July 15, 1986, we are governed by Pa.R.Crim.P. 4010(b)(2) . . . .

Trial Court Opinion at 1-2.

I.

While we agree that this appeal lacks merit and that the order denying appellant's petition for bail should be affirmed, we cannot agree with the trial court's reasoning in reaching this result. The provisions of Pa.R.Crim.P. 4010 referred to by the trial court do not apply to the instant case; rather, motions for bail pending disposition of PCHA petitions or other ...


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