235 Pa. Super. 15 | Pa. Super. Ct. | 1975
Lead Opinion
Opinion by
Appellant was convicted, by a jury, of assault with intent to kill. Post-verdict motions were filed and then withdrawn. Appellant was sentenced and then filed a
Therefore the only question which we must now resolve is whether appellant is correct in his contention that this case should be remanded for an evidentiary hearing to determine whether appellant knowingly and intelligently waived his right to file post-verdict motions. In support of this contention appellant cites the cases of Commonwealth v. Grillo, 208 Pa. Superior Ct. 444 (1966) and Commonwealth v. Ballinger, 208 Pa. Superior Ct. 450 (1966). In these cases no post-verdict motions were filed prior to sentencing and it was unclear if the defendants were aware that this failure to file post-verdict motions foreclosed their right to an appeal. Due to this uncertainty the cases were remanded to the lower court with directions to hold an evidentiary hearing to determine if the defendants understood the consequences of their not filing post-verdict motions. If it was determined that the defendants did not make a knowing and intelligent waiver of their right to file post-verdict motions they were then to be granted the right to file post-verdict motions nunc pro tunc. If the fact situation in the instant case
Judgment of sentence affirmed.
. The victim, appellant’s step-daughter, was six years old at the time of the incident and ten years old at the time of the trial.
. Act of January 25, 1966, P.L. (1965) 1580, §1 et seq., effective March 1, 1966. 19 P.S. §1180-1 et seq.
Concurrence in Part
Concurring and Dissenting Opinion by
I agree with the majority that since appellant did not raise by post-trial motion his claim that the victim was incompetent to testify, he cannot do so now. I cannot agree, however, that the record is adequate to show that appellant intelligently and voluntarily waived his right to file post-trial motions. In Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 222 A.2d 427 (1966), it was not clear whether the defendants were aware that their failure to file post-trial motions foreclosed their right to appeal. We therefore held that the record must be remanded for an evidentiary hearing to determine whether