Opinion by
On Nоvember 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. Aрpellant, 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 Avere filed on appellant’s behalf. Appellant was sentenced to undergo imprisonment for a term оf not less than one nor more than three years at the State Correctional Institution at Philadelphia. This sentence Avas reconsidered and vacated on December 7, 1965, at which time appellant was sentenced to a term of not less than one nor more than threе years in the Philadelphia County Prison.
On January 17,1966, appellant petitioned this court for leave to file an appeal without paymеnt of the statutory filing fee, and for the appointment of counsel to perfect his appeal. By order of this court dated January 28, 1966, аppellant 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 appeаrance on March 30, 1966.
In
Commonwealth v.
Whiting,
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 *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 invokеd on appeal . . . even though they involve constitutional questions. ...” (p. 95). Appellant’s petition for allocatur was refused by the Supremе 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, оur 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,
The clear holding of these cases is, therefore, that an accused is entitled to the assistance of counsel in the critical task of taking and perfecting an aрpeal, unless such right is intentionally and intelligently relinquished. The relevance of these cases to our decision in Whiting is apparent, for in Whiting we held that a prerequisitе to the perfecting of such an appeal is the filing of post-trial motions. The failure to file such motions within the time prescribed by court rule may bar a subsequent appeal by defendant. 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, as with the right to representation on appeal, 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 the instant case appellant, on his own, petitioned the court for leave to file an appeal in forma pauperis within the forty-five day period provided by law. This act alone would tend to indicate that appellant was unaware that his counsel’s failure to file pоst-trial motions foreclosed such an appeal. On our present record, however, we are unable to determine this question. Acсordingly, the case is to be remanded to the court *449 below with directions to hold an evidentiary hearing at which time the circumstances of appellant’s failure to file post-trial motions will be fully explored.
If the lower court should conclude, following such a hearing, that no deniаl of appellant’s constitutional rights occurred, it shall enter an order to that effect. In the event, however, that the court determines that appellant’s constitutional rights were infringed, it shall enter an order vacating appellant’s sentence and granting appellant the right to file post-trial motions nunc pro tunc. 1
Record remanded for further proceedings consistent with this opinion.
Notes
We note that our order in this ease differs somewhat from the order of the Supreme Court in Commonwealth ex rel. Newsome v. Myers, supra, and in Commonwealth ex rel. Robinson v. Myers, supra. In both of those eases post-trial motions had not been filed by the dеfendants. Although the Supreme Court did not specifically order that the lower courts should pass on these motions nunc pro tunc prior to thе docketing of an appeal, we believe that such a procedure is implicit in its opinions. It is our understanding that the Supreme Court has nоt abandoned the strong policy considerations underlying our Whiting decision which require the filing of post-trial motions prior to the taking of an aрpeal. Certainly, the proper and orderly administration of criminal justice is furthered, in the great majority of eases, by requiring that such motions. bе filed. Such a procedure offers lower courts the opportunity to rectify their own errors immediately and obviates the delay and expense of appellate review. Moreover, these motions aid in clarifying and framing the issues which are to be raised on appeal.