Criminal Law — Practice — Failure to file post-trial motions — Record silent as to why defendant did not file post-trial motions — Commonwealth v. Fryberger, 232 Pa. Super. 127 (1975) Held controlling — Remand of record for evidentiary hearing.
1. Where the record is silent on why post-trial motions were not filed, the record must be remanded for an evidentiary hearing to determine whether the appellant intentionally and intelligently relinquished his right to the assistance of counsel in the critical task of taking and perfecting an appeal which of necessity includes counsel's assistance in the filing of post-trial motions. Commonwealth v. Fryberger, 232 Pa. Super. 127 (1975).
2. If after hearing a lower court determines that a defendant did not intentionally and intelligently waive his right to file post-trial motions, it shall permit the defendant to file such motions nunc pro tunc and shall then proceed to hear the motions, and if it denies the motions, it shall permit the defendant to file an appeal nunc pro tunc from the judgment of sentence.
VAN der VOORT, J., concurred in the result.
Submitted November 11, 1974.
OPINION BY SPAETH, J., February 27, 1975:
This case involves two appeals, which were consolidated and submitted together.
Appellant was tried before a jury and convicted of larceny. When no post-trial motions were filed, he was sentenced to two to five years in prison. On January 17, 1974, the sentence was amended to one to five years. Appeal No. 196 April Term, 1974 is from that sentence.
Act of June 24, 1939, P.L. 872, § 807, 18 Pa.C.S.A. § 4807. Repealed. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 5, eff. 6 months from date of final enactment.
On February 8, 1974, appellant petitioned the lower court to allow him to file motions in arrest of judgment and for a new trial nunc pro tunc. On March 14, 1974, the petition was denied without a hearing. Appeal No. 283 April Term, 1974 is from that denial.
We need consider only Appeal No. 283. It is controlled by Commonwealth v. Fryberger, 232 Pa. Super. 127, 334 A.2d 743 (1975), which cites and applies Commonwealth v. Grillo, 208 Pa. Super. 444, 222 A.2d 427 (1966). Those cases hold that where, as here, the record is silent on why post-trial motions were not filed, the record must be remanded for an evidentiary hearing to determine whether appellant "intentionally and intelligently relinquished" his right "to the assistance of counsel in the critical task of taking and perfecting an appeal . . . [which of necessity includes] counsel's assistance in the filing of post-trial motions." Commonwealth v. Grillo, supra at 448, 222 A.2d at 429.
If after the hearing the lower court determines that appellant did intentionally and intelligently waive his right to file post-trial motions, it shall enter an order to that effect, and appellant may then ask us to consider his appeal from the sentence (Appeal No. 196). If the lower court determines there was no waiver, it shall permit appellant to file post-trial motions nunc pro tunc and shall proceed to hear the motions. If the lower court denies the motions, it shall permit appellant to file an appeal nunc pro tunc from the sentence. See Commonwealth v. Odenwalt, 217 Pa. Super. 763, 268 A.2d 460 (1970). Appeal No. 196 will then be moot.
Remanded with a procedendo.
VAN der VOORT, J., concurs in the result.