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COMMONWEALTH v. BALLINGER (09/15/66)

decided: September 15, 1966.

COMMONWEALTH
v.
BALLINGER, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1966, Nos. 1364 and 1365, in case of Commonwealth of Pennsylvania v. Joseph W. Ballinger.

COUNSEL

Vincent J. Ziccardi, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Joseph M. Smith, Assistant District Attorney, with him Victor J. DiNubile, Jr., Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 208 Pa. Super. Page 450]

In this appeal from judgment of sentence in the court below, appellant's counsel failed to file post-trial motions. Since the contentions now raised were not properly raised in the court below, we would ordinarily

[ 208 Pa. Super. Page 451]

    not consider them on appeal. Commonwealth v. Whiting, 205 Pa. Superior Ct. 92, 208 A.2d 1 (1965).

Our examination of the record convinces us, however, that this matter should be remanded for further consideration in light of this court's decision today in Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 222 A.2d 427 (1966).

Accordingly, the case is to be remanded to the court below with directions to hold an evidentiary hearing at which time the circumstances of appellant's failure to file post-trial motions will be fully explored.

If the lower court should conclude, following such a hearing, that no denial of appellant's constitutional rights occurred, it shall enter an order to that effect. In the event, however, that the court determines that appellant's constitutional rights were infringed, it shall enter an order vacating appellant's sentence and granting appellant the right to file post-trial motions nunc pro tunc.

Record remanded for further proceedings consistent ...


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