Commonwealth v. Ballinger

222 A.2d 430, 208 Pa. Super. 450, 1966 Pa. Super. LEXIS 865

• Court: Superior Court of Pennsylvania
• Decided: September 15, 1966
• Docket: Appeal, No. 406
• Status: Published

Opinion

Opinion by

Hoffman, J.,

In this appeal from judgment 15, 1966: sentence in the court below, appellant’s counsel failed to file post-trial motions. Since the contentions now raised were not properly raised in the court below, we would ordinarily not consider them on appeal. Commonwealth v. Whiting, 205 Pa. Superior Ct. 92, 208 A. 2d 1 (1965).

Our examination of the record convinces us, however, that this matter should be remanded for further consideration in light of this court’s decision today in Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 222 A. 2d 427 (1966).

Accordingly, the case is to be remanded to the court 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 denial 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.

Record remanded for further proceedings consistent with this opinion.