Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1965, No. 730, in case of Commonwealth of Pennsylvania v. Francis A. Grillo.
Vincent J. Ziccardi, Assistant Defender, Anthony Gilbert Bateman, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
Joseph M. Smith, Assistant District Attorney, with him Gordon Gelfond, 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. Ervin, P. J., would affirm the order of the court below.
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On November 10, 1965, appellant, Francis A. Grillo, was tried before Honorable Theodore L. Reimel, sitting without a jury, on charges of burglary, larceny and receiving stolen goods. Appellant, while represented by counsel, was found not guilty on the charges of burglary and larceny and guilty on the charge of receiving stolen goods. No post-trial motions were filed on appellant's behalf. Appellant was sentenced to undergo imprisonment for a term of not less than one nor more than three years at the State Correctional Institution at Philadelphia. This sentence was reconsidered and vacated on December 7, 1965, at which time appellant was sentenced to a term of not less than one nor more than three years in the Philadelphia County Prison.
On January 17, 1966, appellant petitioned this court for leave to file an appeal without payment of the statutory filing fee, and for the appointment of counsel to perfect his appeal. By order of this court dated January 28, 1966, appellant was granted leave to file his appeal in the manner requested. The appeal was filed on February 1, 1966. The Defender Association of Philadelphia was appointed as counsel to perfect this appeal and entered its appearance on March 30, 1966.
In Commonwealth v. Whiting, 205 Pa. Superior Ct. 92, 208 A.2d 1 (1965), no post-trial motions were filed by defendant's counsel prior to sentencing. One month later, having procured new counsel, defendant filed a petition for a rule to show cause why motions for a new trial and in arrest of judgment nunc pro tunc should not be allowed. The lower court concluded that the petition came too late and refused to grant the rule.
On appeal we affirmed the order of the lower court, holding that, "Motions for a new trial must be made prior to sentence . . . . The refusal of a new trial is
[ 208 Pa. Super. Page 447]
not error where the motion therefor is not filed within the time prescribed by the rules of court. . . . Matters not properly raised in the court below may not be invoked on appeal . . . even though they involve constitutional questions. . . ." (p. 95). Appellant's petition for allocatur was refused by the Supreme Court of Pennsylvania, 205 Pa. Superior Court xxxvii (1965).
Since counsel similarly failed to file post-trial motions prior to sentence in the instant case, our decision in Whiting would ordinarily require that this appeal be dismissed on the procedural grounds mentioned above. Accordingly, we would not reach appellant's present contentions concerning the sufficiency of the evidence.
In a series of cases arising subsequent to our decision in Whiting, however, the Supreme Court of Pennsylvania re-examined the nature of a defendant's right of appeal in criminal prosecutions. In one of these cases, Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 159, 218 A.2d 811, 813 (1966), the court stated: "It is settled law since the decision in Douglas v. California, supra [372 U.S. 353, 83 S. Ct. 814 (1963)], that an indigent defendant is constitutionally entitled to the assistance of counsel on an appeal as of right. Moreover, it is equally settled that a necessary incident of that right is the assistance of counsel in the task of perfecting such an appeal. Commonwealth ex rel. Branam v. Myers, supra [420 Pa. 77, 216 A.2d 89 (1966)]; Commonwealth ex rel. Robinson v. Myers, supra [420 Pa. 72, 215 A.2d 637 (1966)]; Commonwealth ex rel. Stevens v. Myers, supra [419 Pa. 1, 213 A.2d 613 (1965)]." See also Commonwealth ex rel. Newsome v. Myers, 422 Pa. ...