Commonwealth v. Duncan

Concurring and Dissenting Opinion by

Spaeth, J.:

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 *19appellant “intentionally and intelligently relinquished” his right “to the assistance of counsel in the critical task of taking and perfecting an appeal . . . [which of necessity includes] counsel’s assistance in the filing of post-trial motions.” Id. at 448, 222 A.2d at 429. Accord, Commonwealth v. Fryberger, 232 Pa. Superior Ct. 127, 334 A.2d 743 (1975); Commonwealth v. Wardell, 232 Pa. Superior Ct. 468, 334 A.2d 746 (1975). It is true that in the present case appellant filed post-trial motions but then withdrew them. However, there is no substantive difference between an unintelligent failure to file a motion and an unintelligent withdrawal of a motion. Since it is not clear whether appellant knew that by withdrawing his motions, he was foreclosing his right to appeal, we should, as we did in Grillo, remand for an evidentiary hearing.