Appeal from order of Court of Common Pleas of Erie County, No. 1518 of 1973, in case of Commonwealth of Pennsylvania v. Michael Wardell.
Stephen H. Hutzelman, and Plate, Doyle, Kroto and Hutzelman, for appellant.
Daniel J. Kuhn, Assistant District Attorney, Bernard L. Siegel, First Assistant District Attorney, and R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Van der Voort, J., concurs in the result.
[ 232 Pa. Super. Page 469]
This case involves two appeals, which were consolidated and submitted together.
Appellant was tried before a jury and convicted of larceny.*fn1 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.
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. Superior Ct. 127, 334 A.2d 743 (1975), which cites and applies Commonwealth v. Grillo, 208 Pa. Superior Ct. 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
[ 232 Pa. Super. Page 470]
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. Superior Ct. ...