Appeal from order of court of Common Pleas of Chester County, Nov. T., 1971, Nos. 191 and 192, in case of Commonwealth of Pennsylvania v. Donald Fryberger.
William N. Sterling, for appellant.
F. Ned Hand and Timothy H. Knauer, Assistant District Attorneys, and William H. Lamb, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Van der Voort, J. Watkins, P. J., joins in this dissenting opinion.
[ 232 Pa. Super. Page 129]
This is an appeal from the lower court's order denying the relief requested by appellant in his PCHA*fn1 petition. Appellant's principal contention is that he did not knowingly and understandingly waive his right to file post-trial motions. Because we agree with appellant, we remand this case to the lower court and permit appellant to file such motions nunc pro tunc.
The record reveals that appellant was charged with playfully or wantonly pointing and discharging a firearm, assault and battery (two counts), rape (four counts), and adultery (four counts). Appellant's first trial which was held in May of 1972 ended in a mistrial. At the conclusion of appellant's second trial which was held in September of 1972, the jury found appellant guilty on all four counts of adultery but acquitted him of the other charges. No post-trial motions were filed by appellant's privately-retained counsel. Nonetheless, appellant filed a direct appeal with this Court.*fn2 That appeal was affirmed per curiam without opinion. Commonwealth v. Fryberger, 226 Pa. Superior Ct. 707,
[ 232 Pa. Super. Page 130308]
A.2d 108 (1973). On November 13, 1973, appellant filed a PCHA petition in which he alleged, among other things, that he did not knowingly and understandingly waive his right to file post-trial motions. After an evidentiary hearing in which appellant and his trial counsel testified, the lower court dismissed the petition. This appeal followed.
The notes of testimony of the PCHA hearing reveal that soon after the second trial, appellant's trial counsel considered the propriety of filing post-trial motions. Counsel eventually came to the conclusion that post-trial motions would be fruitless and related this to appellant. No post-trial motions were filed.
In Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 448, 222 A.2d 427, 429 (1966), our Court recognized: "[A]n accused is entitled to the assistance of counsel in the critical task of taking and perfecting an appeal, unless such right is intentionally and intelligently relinquished. . . . The failure to file [post-trial] motions within the time prescribed by court rule may bar a subsequent appeal by defendant [or limit the arguable issues]. Thus, a defendant's right to the assistance of counsel in properly perfecting his appeal must, of necessity, include counsel's assistance in the filing of post-trial motions. Consequently, . . . counsel's personal conclusion that the filing of post-trial motions is unwarranted should not foreclose a defendant's right to representation on such motions. Moreover, the decision not to file such post-trial motions, no less than the decision not to file the appeal itself, requires the defendant's intelligent and understanding appreciation of the consequences of such action." In Grillo, this Court remanded the case to the lower court with directions to hold an evidentiary hearing to determine the circumstances surrounding appellant's failure to file post-trial motions.
[ 232 Pa. Super. Page 131]
In the present case, an evidentiary hearing was held at which appellant testified that he was not told what would happen if no post-trial motions were filed or that the failure to file post-trial motions would waive trial errors. Although appellant's trial counsel testified that appellant agreed with his decision not to file post-trial motions, counsel never testified that he advised appellant of the consequences of the failure to file such motions. When this question was asked: "Isn't it true you didn't tell him by not filing his motions he forever gave up his right to appeal upon the merits?", appellant's trial counsel responded: "I ...