decided: April 4, 1978.
COMMONWEALTH OF PENNSYLVANIA
JOHN BUCCI, APPELLANT
Nino V. Tinari, Philadelphia, for appellant.
Nicholas Barna, Dist. Atty., Wayne County, Honesdale, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Author: Per Curiam
[ 477 Pa. Page 452]
OPINION OF THE COURT
Appellant was convicted of receiving stolen property and criminal conspiracy. He filed and was denied post trial motions. A notice of appeal was filed to the Superior Court and was docketed. A petition for bail pending appeal was filed with the Superior Court and was granted in the amount of $50,000. The appellant posted the bail but thereafter failed to file a brief or otherwise prosecute the appeal.
[ 477 Pa. Page 453]
Appellant had been represented by the same counsel throughout the proceedings. The Superior Court entered a judgment of non pros and dismissed appellant's appeal.
After retaining new counsel, a petition for allowance of appeal was filed with this Court. Appellant alleges that his trial attorney was incompetent for failing to pursue his appeal in the Superior Court. The Commonwealth contends that appellant's trial counsel did perform substantial services for his client and that the reasons for the briefs not being filed were not due solely to counsel's negligence. Since the critical facts are in dispute and must be resolved before there can be a determination as to counsel's incompetence, we grant allocatur and remand the cause to the trial court for an evidentiary hearing and finding as to whether the failure to prosecute the appeal in the Superior Court constituted a knowing and intelligent waiver by petitioner or whether there was a denial of petitioner's appellate rights.
Bail entered March 7, 1978 is to remain in full force and effect until final disposition of the matter in the court below.
It is so ordered.
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