author: WIEAND, Judge:

text:
    470 A.2d 581
    COMMONWEALTH of Pennsylvania v. Ronald HENRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1983.
    Filed Dec. 23, 1983.
    Petition for Allowance of Appeal Denied June 13, 1984.

      Rosemarie T. Kenkelen, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Ronald Henry was tried nonjury and convicted of simple assault in connection with the stabbing of his brother. He was acquitted of related charges of possession of an instrument of crime, recklessly endangering another person, and aggravated assault. On direct appeal from the judgment of sentence, he contends (1) that there was insufficient evidence to convict him of simple assault; (2) that the trial court erred in denying his motion to dismiss for a violation of Pa.R.Crim.P. 1100; (3) that delay of the victim in reporting the alleged incident to the police resulted in prejudice to appellant requiring dismissal of the charge; and (4) that the trial court erred in failing to articulate specific reasons for the sentence imposed. These contentions have no merit; and, therefore, we affirm the judgment of sentence.

In determining the sufficiency of the evidence, “we view the entire record in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom favorable to the Commonwealth, determine whether there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Pronkoskie, 498 Pa. 245, 248, 445 A.2d 1203, 1204 (1982). See also: Commonwealth v. Davis, 308 Pa.Super. 204, 216, 454 A.2d 92, 98 (1982); Commonwealth v. Price, 306 Pa.Super. 507, 511, 452 A.2d 840, 842 (1982). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence.” Commonwealth v. Nunez, 312 Pa.Super. 584, 586, 459 A.2d 376, 377 (1983), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

The testimony of Tyrone Henry, appellant’s brother, was that on January 9, 1981, appellant had entered the bedroom where Tyrone was sleeping and repeatedly stabbed Tyrone in the back and leg with a twelve inch long cooking fork. Tyrone struggled with appellant and was able to escape. He went to a hospital where he received treatment and was admitted for one day. He told authorities at the hospital that he had been injured when he fell on a picket fence. He did this, he said, to protect his brother who was then on federal parole. On January 16, however, Tyrone apparently changed his mind, for he then filed a complaint with the police. Criminal charges against appellant followed.

Appellant contends that Tyrone’s prior inconsistent statement at the time of admission to the hospital rendered his trial testimony unworthy of belief. He also produced evidence that at the preliminary hearing Tyrone had identified the offending weapon as an ice pick. The rule of law applicable to testimonial inconsistencies was stated in Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981), as follows:

“If a witness has made inconsistent or contradictory statements they may be used to attack the witness’ credibility. Commonwealth v. Bean, 244 Pa.Super. 368, 372, 368 A.2d 765, 767 (1976); Commonwealth v. Lenker, 202 Pa.Super. 538, 541, 198 A.2d 347, 349 (1964); Commonwealth v. Bartell, 184 Pa.Super. 528, 537, 136 A.2d 166, 172 (1957). Prior inconsistent statements, however, do not render a witness incompetent or require that his testimony be disbelieved. Id. It is true, of course, that a conviction cannot properly be sustained if it be based upon testimony of a witness which is so contradictory on the essential issues as to make the verdict obviously the result of conjecture or guess. Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976); Commonwealth v. Lenker, supra, 202 Pa.Super. at 542, 198 A.2d at 349; Commonwealth v. Bartell, supra, 184 Pa.Super, at 537, 136 A.2d at 172. However, the mere fact that there are some inconsistencies is not alone sufficient to destroy the Commonwealth’s case. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053-54 (1977); Commonwealth v. Bartell, supra, 184 Pa.Super. at 537-38, 136 A.2d at 172. It is the function of the trier of the facts, in this case the trial judge, to reconcile conflicting testimony; the mere existence of conflicts in the testimony does not mean that he is required to resort to speculation. Commonwealth v. Duncan, supra.

Id., 290 Pa.Superior Ct. at 214, 434 A.2d at 719. See also: Commonwealth v. Galloway, 495 Pa. 535, 539-540, 434 A.2d 1220, 1222 (1981); Commonwealth v. Scarpino, 494 Pa. 421, 426, 431 A.2d 926, 928 (1981); Commonwealth v. Curry, 318 Pa.Super. 490, 494-95, 465 A.2d 660, 662 (1983).

In the instant case, the trial court found Tyrone’s testimony credible. This testimony was not internally inconsistent so as to render a verdict based thereon a matter of conjecture or guess. Tyrone explained that his inconsistent statement at the hospital was motivated by an ill-directed wish to protect his brother and that his error in identifying the weapon during the preliminary hearing was the product of confusion caused by desperation at the time of the attack. In determining the facts, moreover, the trial court could take into consideration the testimony of appellant who admitted that he had stabbed his brother. Appellant’s claim of self-defense, based on his assertion that Tyrone had threatened to hit him with a chair (this testimony was denied by Tyrone), was clearly for the trier of the facts. Under the totality of this evidence, the trial court could properly find appellant guilty of simple assault, i.e., that he intentionally, knowingly or recklessly caused bodily injury to his brother.

Similarly, there is no merit in appellant’s argument that the trial court should have dismissed the charge because of a Commonwealth failure to try him within the time constraints of Pa.R.Crim.P. 1100. The relevant procedural history is not in dispute. The complaint was filed on January 16, 1981, creating a July 15 mechanical run date. On April 14, the public defender was permitted to withdraw from appellant’s case, and Ronald White, Esquire, was appointed new counsel. Because appellant was without counsel on that day, the scheduled trial was continued to June 26, 1981. On the latter date, trial was continued on a defense motion to August 17, 1981 because White was unavailable. On July 3, 1981, the Commonwealth filed a petition for an extension pursuant to Rule 1100(c). The petition cited the unavailability of defense counsel from June 26 to August 17 as excludable days and averred that it had been ready to proceed. On August 17, proceedings were again continued on motion of counsel for the defense because counsel was going on vacation. Both trial and a hearing on the Commonwealth’s extension petition were set for October 5, 1981. On August 31, 1981, White withdrew as counsel for appellant, and shortly thereafter present counsel was appointed. On October 5, appellant’s motion for dismissal was heard and denied, the Commonwealth’s petition to extend was granted, and a new run date of October 24, 1981 was fixed. However, appellant was tried the same day, October 5, 1981, and was convicted.

Pa.R.Crim.P. 1100(d)(1) provides that in making a determination of the period for commencement of trial, there shall be excluded any delay that results from the unavailability of the defendant or his attorney. See also: Commonwealth v. Smith, 269 Pa.Super. 424, 410 A.2d 329 (1979). Appellant argues, however, that he did not agree to the several continuances and should not be prejudiced because his counsel’s personal and business affairs made him unavailable for a trial of the charges against appellant. This argument is directed to the operation of the Rule itself. It does not demonstrate that the time requirements of the rule have been violated. Appellant’s contentions that White should not have requested the July 3rd and August 17th continuances and should have been available for trial on those dates cannot be made the basis for finding a violation of Rule 1100.

Appellant also contends that he should be discharged because Tyrone, his brother, delayed making a report of the incident to the police for one week. In making this argument, appellant attempts to analogize the instant case to cases involving delays between sale and arrest in narcotics cases. See, e.g., Commonwealth v. West, 261 Pa.Super. 246, 396 A.2d 380 (1978); Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978). See also: Ross v. United States, 349 F.2d 210 (D.C.Cir.1965). However, the principles discussed in these cases have never been applied to complaints which are not the result of police action. Moreover, there was here no evidence of prejudice, and the trial court found as a fact that appellant had not been prejudiced by the delay. See: Commonwealth v. King, 234 Pa.Super. 247, 338 A.2d 621 (1975). Appellant has been unable to call our attention to any case holding and we decline to hold that a delay of one week in bringing criminal activity to the attention of the police is per se unreasonable so as to bar prosecution for such activity. See: Commonwealth v. DeMarco, 281 Pa.Super. 62, 421 A.2d 1147 (1980).

Finally, appellant complains that the trial court, prior to imposing a sentence of imprisonment for not less than ten nor more than twenty-three months, failed to refer specifically to guidelines contained in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and failed to explain the applicability or inapplicability thereof in determining the sentence.

“It is well-settled law that the sentence imposed upon a convicted defendant is within the broad discretion of the sentencing judge. The sentencing judge must, however, comply with Pa.R.Crim.P. 1405, with the standards of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), with the factors in 42 Pa.C.S.A. § 9725, and also with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), giving reasons on the record for his choice of sentence....”

Commonwealth v. Evans, 299 Pa.Super. 529, 536, 445 A.2d 1255, 1259 (1982), quoting Commonwealth v. DeCaro, 298 Pa.Super. 32, 43-44, 444 A.2d 160, 166 (1982) (citations omitted) (footnotes omitted). However, “we should not hold a statement of reasons insufficient, and therefore require vacation and remand, when it is apparent that even though the court made no reference to the guidelines, it did consider and apply them.” Commonwealth v. Williams, 274 Pa.Super. 464, 477, 418 A.2d 499, 506 (1980), quoting Commonwealth v. Wareham, 259 Pa.Super. 527, 534, 393 A.2d 951, 954 (1978). See also: Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982); Commonwealth v. Smillie, 316 Pa.Super. 83, 462 A.2d 804 (1983); Commonwealth v. Stafford, 313 Pa.Super. 231, 459 A.2d 824 (1983); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979).

Appellant’s sentence was based “on the facts of this particular case, [the appellant’s] prior record and [a] letter report from [appellant’s] Federal Parole Officer....” The letter report was read to appellant and was made a part of the record. It contained observations and conclusions of appellant’s parole officer over a five year period and concluded that the assault on appellant’s brother was “the result of one instance of continuous violent behavior.” The report also detailed appellant’s failure to benefit from the use of various social agencies and programs and his exhibition of a thinly disguised anger that “could be unleashed at any time.”

The court had before it and based its sentence upon a detailed and intimate rendition of appellant’s “history, character and condition.” The report reflected and the court found a necessity that appellant be confined because of the violent nature of his character and his incorrigibility regarding rehabilitation programs. This was adequate support for the sentence of confinement imposed by the court.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 907.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 2702.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    470 A.2d 585
    ESTATE OF Frances R. McCREDY, Deceased. Appeal of VILLAGE IMPROVEMENT ASSOCIATION (Doylestown Hospital) and Attorney General of the Commonwealth of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1983.
    Filed Dec. 23, 1983.

      Walter E. Nelson, Jr., Philadelphia, for Village Improvement, appellant.
    Lawrence Barth, Deputy Attorney General, Philadelphia, for Commonwealth, appellant.

      Davil L. Grove, Philadelphia, for Weaver, Campbell and Spellessy, participating parties.
    Norman H. Brown, Philadelphia, for Provident Nat’l. Bank, participating party.
    Before CAVANAUGH, BROSKY and CIRILLO, JJ.
   CIRILLO, Judge:

The charitable beneficiary under a testamentary trust seeks to surcharge the corporate trustee and the individual trustee’s estate for the amount of losses incurred on certain trust investments. The questions raised require an interpretation of provisions of the will of Frances R. McCredy, deceased.

Frances R. McCredy died on December 26, 1964. She left a will dated June 24, 1954, with codicils dated June 5, 1961 and November 25, 1964. Item Five of the will, as amended by the first codicil, left her entire residuary estate for the creation of a perpetual charitable trust, subject to certain life interests not relevant to this case. The will provided that trust income was to be paid in semi-annual installments forever to the Village Improvement Association, a tax-exempt women’s club, for the operation and maintenance of the Doylestown Emergency Hospital.

Item Six of Mrs. McCredy’s will reads:

In the management and control of my Trust Estate, I order and direct as follows:
(a) So long as he shall live and shall desire to be so employed, I order and direct that Arthur E. Spellissy shall have complete and absolute control and oversight of the management of said Trust, and during that time that the Corporate Trustee hereinafter named shall follow his directions blindly and implicitly, doing only the clerical work involved, keeping the records, etc. and having the physical care and custody and possession of the papers, documents, securities and muniments and evidences of title of the property and assets of said Trust. Under no circumstances shall he or his Executor or Administrator be liable to any person at any time or in any proceeding whatever for anything whatever which he may do or direct to be done in reference to said Trust, nor likewise shall said corporate Trustee be liable, provided only that it obey his directions so long as he shall act as Investment Counsel for said Trust. For his services as Investment Counsel I direct that he shall be paid his regular current compensation for such oversight and advice, in addition to whatever sum may be paid him for his services as co-executor and co-trustee.
(b) In the management and control of the property and assets of said Trust, I order and direct that the Executors and Trustees and their successors as fiduciaries shall have such rights, powers and privileges as follow herein: My Executors and Trustees may retain any investment, asset or property which I shall have at my death so long as deemed wise and advantageous. They may also, in any manner they deem wise, sell and dispose of any trust asset or property ... at any time if deemed wise and advantageous____ They may invest trust funds in any type or kind of property or investment whatever, real or personal, including shares of common or preferred corporate stocks, and corporate bonds, and in “common trust funds”, though same be managed by the corporate trustee____ They shall not be confined to income-producing property, nor such as is a legal investment for trust funds____ And they and their successor may exercise all or any one of the foregoing powers without any liability whatever to any beneficiary or any other person for any loss or depreciation in value of any trust asset, always provided that said corporate Trustee shall do therewith as directed by said Spellissy, so long as he shall act as Investment Counsel for said Trust.

In Item Eight of the will, Mrs. McCredy appointed “my friend and Investment Counsel ARTHUR E. SPELLISSY” and the Provident Trust Company of Philadelphia, to exercise the foregoing powers as both co-executors of her estate and co-trustees of the trust. Item Eight also provided that should Spellissy cease to act as executor or trustee, he could continue to act as investment counsel to the trust so long as he desired.

After termination of the life interests previously mentioned, Spellissy and Provident Trust Company (now Provident National Bank) filed their final account as executors. By an adjudication dated June 30, 1969, the Philadelphia Court of Common Pleas, Orphans’ Court Division, awarded the remaining estate to Spellissy and Provident as trustees. They continued as co-trustees of the trust, with Spellissy making all investment decisions for the trust and with Provident restricting itself to clerical duties, until Spellissy died on May 31, 1974. Because of Spellissy’s death, Provident as surviving trustee filed an account covering the period from the inception of the trust to May 27, 1976. The executors of Spellissy’s estate joined in the account insofar as it relates to Spellissy’s period of stewardship.

The value of the trust principal had declined dramatically during the account period, and the Village Improvement Association (hereinafter “VIA”), together with the Attorney General as parens patriae for charities, filed objections to the account. The objectants sought to surcharge the trustees on the basis of their investments in the securities of three corporations: Photon, Inc., Phoenix Steel Corporation, and Chrysler Corporation. The objectants alleged that the trustees breached two duties in making and retaining these investments: the duty of prudent fiduciary investment, and the duty of undivided loyalty to the trust. Judge Theodore S. Gutowicz of the Philadelphia Orphans’ Court heard eight days of testimony and the parties’ oral arguments. On August 10, 1981, Judge Gutowicz dismissed the objections to the account in a comprehensive opinion and adjudication. The judge ruled that Mrs. McCredy had established Arthur Spellissy’s personal investment philosophy, rather than the rule of prudent investment, as the standard by which trust investments were to be measured. The judge also ruled that the trustees had not breached their duty of undivided loyalty, and that with respect to Photon securities Mrs. McCredy had waived the rule of undivided loyalty by bequeathing Photon securities to the trust with full knowledge that Spellissy was personally involved in the company. The VIA and the Attorney General filed exceptions to the adjudication, and the orphans’ court sitting en banc dismissed the exceptions in a final decree dated December 18, 1981. The exceptants appeal, pursuing the same arguments they made in the orphans’ court.

We will affirm the Orphans’ Court of Philadelphia.

I. Facts

Mrs. McCredy’s relationship to Arthur Spellissy dated back to May 1935. Mrs. McCredy, herself the widow of an investment adviser, in that month engaged Spellissy as her investment adviser and provided him with $240,780 to invest for her. Later she gave him $17,000 to invest. From that time on, every increase in Mrs. McCredy’s invested capital came from securities as to which Spellissy rendered investment advice. By 1954, the year she executed her will, the market value of her securities had reached $1,009,003; by 1961, the year she executed her first codicil, her securities were worth $1,726,218; when she died at the age of ninety-six, her securities had a market value of over $2,750,000.

Mrs. McCredy took an active interest in her investments. She visited the offices of Spellissy’s investment advisory firm more frequently than any other client, and discussed each investment with Spellissy before it was made. She received annual reports detailing her investments, plus all correspondence sent to shareholders by companies in which she had investments. In November of 1960, with age curtailing her mobility, Mrs. McCredy opened a custodian account at Provident National Bank for the keeping of her securities. She continued to receive annual investment reports directly from Spellissy, but shareholder correspondence thereafter went to Provident.

Spellissy was wed to his work as an investment adviser. He had founded his own firm in 1931; the firm, Spellissy & Associates, was registered as an investment adviser under federal and state law, and was incorporated in 1966. The firm was not registered under law as a broker-dealer of securities. Spellissy and his firm enjoyed an excellent reputation in the Philadelphia financial community. Spellissy had a unique investment philosophy. He believed that appreciation of principal was the best way to protect the value of a portfolio’s securities; consequently he would sacrifice current income for future principal appreciation. Spellissy recommended to his clients that they carry certain “special situation” securities in their portfolios. According to Spellissy’s investment philosophy, a “special situation” would have some feature making it a distinctively attractive hold; usually it was a modest-sized company undergoing some development that gave it special promise for the future. “Special situations” usually presented opportunities not followed or appreciated by the general investing public; they would not be considered standard investments, and a trust company like Provident usually would not see fit to invest in them for its accounts.

Of the three investments challenged by the VIA, at least two — Photon and Phoenix Steel — were decidedly “special situations” within Spellissy’s investment philosophy.

Photon, Inc.

Photon, Inc., developed, manufactured, and sold high-speed phototypesetting equipment. High-speed phototypesetting represented the first basic innovation in typesetting since the introduction of hot lead typecasting in 1886. Spellissy considered Photon to be in the forefront of a new technology, and personally invested in Photon stock as early as 1951. Spellissy was very enthusiastic about Photon’s future, and remained so until his death. He served on its board of directors from May of 1959 until February of 1974. He served as its treasurer, without salary, from August 1964 to August 1973. When he died on May 31, 1974, he held 503,400 shares of Photon common stock, approximately ten percent of the outstanding total. He was then the largest individual shareholder in the company.

Spellissy also recommended Photon securities to his clients and associates; specifically, Mrs. McCredy first purchased stock in Photon in July 1953, and she owned Photon securities continuously from that time until her death in December 1964. As part of her estate, she passed $15,000 Photon five percent convertible debentures due December 1, 1971, and 3,250 shares of Photon common stock. The total cost to Mrs. McCredy of these Photon securities had been $49,506; their fair market value at her death was $78,500.

In June of 1965, her executors exercised previously acquired rights to purchase 750 shares of Photon common stock for $9,000. On September 13, 1968, the executors received 12,000 additional shares of Photon common stock in a four-for-one stock split. By the time the executors filed their final account in March of 1969, the total market value of Photon securities held in the estate had reached $728,000.

On November 19, 1969, at Spellissy’s direction, the trustees sold 500 shares of Photon stock at a gain of $10,303.85 in order to raise cash for the purchase of Phoenix Steel securities. On July 29, 1971, Spellissy directed an exchange of the Photon debentures for 12,000 additional shares of Photon stock, bringing total trust holdings in Photon to 27,500 shares of non-dividend-paying common stock. Had Spellissy not exercised the conversion privilege, Photon would have had no obligation but to pay the $15,000 par value of the debentures on December 1, 1971. At the time of the conversion, the fair market values for the trust’s Photon securities were $112,000 for 15,500 shares of common stock and $84,000 for the debentures, for a total fair market value of $196,000 for all Photon securities. On July 28, 1975, Provident as surviving trustee withdrew all Photon securities from the trust account as worthless, under the following circumstances.

Photon “had speculative characteristics which perhaps could lead to the loss of the entire principal. It had no income. It had limited resources within the company. It was not a widely-followed reasonable quality investment.” (Opinion of Gutowicz, J., 49, Finding of Fact 98, quoting testimony of James W. Stratton.) Photon’s sales had been growing through 1968, but in 1969 the company stopped growing except in the inventory account. The inventory/sales ratio peaked at .86 in 1971. Such a high ratio

“suggests either that the company is building a lot of units which they are not selling and physically storing some of these or that there is something wrong with the accounting and that their cost of goods is being put on to the inventory account rather than expensing certain costs. It could be either of those two. The first would show up as a growing number of units in the inventory and the second would show up as the same number of units but with a growing cost of goods per unit assigned to the inventory.”

(Id. at 50, Finding of Fact 101, quoting Stratton.) In March of 1973, Photon’s board of directors learned that the company’s past financial statements were of questionable accuracy. The board refused to issue annual financial statements for 1972, and terminated the company’s auditors. The Securities and Exchange Commission suspended trading in Photon securities on March 26, 1973. The suspension was lifted on July 23, 1973, but SEC regulations still prohibited trading in Photon securities because of a lack of current financial information. A new auditor determined that the company’s accounting procedures were unreliable and inadequate, and that the company’s books materially overstated its sales and assets. The auditor made substantial adjustments to Photon’s books, to reflect a deficit of $26,673,135 for the period December 31, 1971 — September 30, 1973, instead of the previously reported retained ■ earnings of $1,239,820. Photon’s officers and chairman of the board resigned and were replaced. Blame for the company’s shoddy accounting fell on its former auditors and its former president, Robert M. Campbell. Various suits were filed against Campbell and the auditors, and a group of stockholders won their suit for substantial damages. On February 14, 1975, Photon was declared bankrupt. As Photon’s largest individual shareholder, Spellissy suffered a greater loss on Photon investments than anyone else.

Phoenix Steel Corporation

“Phoenix Steel is primarily a fabricator manufacturer of steel plate with its primary facility in Claymont, Delaware, and a tubing and pipe mill in Phoenixville. It is and has been for a long time a very marginal steel company, marginal because it is devoted to one product line and because its capital structure is overweighted with debt and relatively very little equity. To be more specific, if you look at the earnings per share line, you can see that Phoenix Steel in the ten years from 1968 through 1977 made money in only one year.”

(Id. at 59, Finding of Fact 119, quoting Stratton.) Although Mr. Stratton had a poor opinion of Phoenix Steel as an investment, Arthur Spellissy believed in its long-term profitability. He personally invested over $200,000 in Phoenix Steel six percent convertible debentures due September 1, 1987. During the years 1967 through 1970, Spellissy also directed several purchases of the debentures on behalf of the McCredy estate and trust. In all, the executors and trustees expended $56,407.50 for the debentures. After Spellissy’s death, Provident’s portfolio manager for the McCredy trust, Marshall Figgatt, determined that the debentures were the least desirable of all securities held by the trust. He directed their sale in six lots between June 28 and December 11, 1974, at an aggregate price of $40,264.

In November 1969, Phoenix Steel offered a stock issue of 900,000 “units,” each unit consisting of two shares of Phoenix common stock and one warrant to purchase an additional share. The price per unit was $11; at that time Phoenix Steel common stock was trading at $7,625 per share. Spellissy reviewed Phoenix’s prospectus for the stock issue, which contained the following caveat:

[T]his offering involves special risks. The Company’s Claymont, Delaware, plant has not been profitable since its purchase in 1960, and the profits from the Company’s Phoenixville plant have decreased in each of the last 2 years. In 1966 the Company began a major modernization program at Claymont. This program took longer than was anticipated to complete and was not finished in its entirety until late 1968. Due in part to operational and mechanical difficulties, the new equipment is still producing at levels far below capacity and the Claymont plant continues to be unprofitable. As a result, the cash position of the Company has been critical for months. Accounts payable are in many cases long overdue, and the Company is experiencing difficulty in obtaining necessary materials and supplies and in attracting and retaining customers. Although the issuance of the securities offered hereby will at least temporarily alleviate its cash problem, there can be no assurance that it will do so permanently or that, when and if production approaches capacity, the Company will be able to sell sufficient products at prices which will result in net profits. In fact, losses are expected to continue for an unascertainable period of time.

Spellissy also visited Phoenix’s plant to assess its modernization program. On behalf of various clients, Spellissy & Associates subscribed for 60,000 of the Phoenix Steel units. The firm put up the entire $660,000 purchase price out of its own funds and billed each client for his respective share. Spellissy directed the purchase of 1,000 units of the issue for the McCredy trust; at Spellissy’s request Provident as co-trustee paid the $11,000 purchase price directly to Spellissy & Associates. Neither Spellissy nor his firm charged or received any compensation in connection with the transaction; in fact, the firm absorbed the interest costs on a loan of $400,000 it had obtained from Provident in order to purchase the units. On November 24, 1970, the trustees at Spellissy’s direction sold the shares and warrants comprising the Phoenix Steel units at a loss on principal of $4,661.37.

Chrysler Corporation

Mr. Spellissy for years had been knowledgeable about Chrysler Corporation, and interested in it as an investment. He recommended Chrysler stock to his clients and invested in it both personally and on behalf of various trusts for which he acted as investment adviser. Mrs. McCredy owned Chrysler stock continuously from 1957 to her death, at which she left 2,900 shares to her estate. Her executors bought an additional lOO shares, so that upon distribution of the estate the trustees received 3,000 shares of Chrysler common stock.

Chrysler is considered a “businessman’s risk stock” in a cyclical industry. Chrysler suffered a short-term liquidity crisis in 1970. The company slashed its quarterly dividend from fifty cents to fifteen cents per share in February of that year. Spellissy was aware of the crisis, but believed in Chrysler’s long-term prospects. The company’s dividend never again reached its former level, but Chrysler rebounded from its difficulties, and earnings and dividends rose in 1971, 1972, and 1973. In January of 1973, Provident’s trust department issued a “Progress Report” on Chrysler predicting a possible decline in sales for 1974, and essentially pointing out the volatile nature of Chrysler stock. In April 1974, news became available that Chrysler was suffering another liquidity crisis, a virtual “replay” of 1970. At the time of Spellissy’s death on May 31, 1974, Chrysler stock was selling in the mid-teens, which translated into a paper loss on the McCredy trust’s holdings of over $100,000. Although Spellissy sold 3,000 shares of his own Chrysler stock in the last two months of his life, he did not sell the McCredy trust’s stock. After Spellissy’s death, the price of Chrysler stock continued to decline through the year. On February 19, 1975, Chrysler’s board of directors decided to suspend the company’s quarterly dividend. Marshall Figgatt learned of the board’s action and immediately ordered the sale of the McCredy trust’s 3,000 shares. A sale was consummated on February 26, 1975, resulting in a loss on the stock of $148,468.29, with $21,625 of the loss accumulating after Spellissy’s death.

II. Standard of Review

In assessing appellant’s arguments, we must bear in mind general principles limiting our scope of review. The auditing judge’s findings of fact were accepted by the orphans’ court en banc, and we likewise must accept them if they are supported by the evidence. Smith Estate, 454 Pa. 534, 314 A.2d 21 (1974). Where the findings of fact are supported by evidence, our review is limited to rectifying errors of law. Zeedick Will, 421 Pa. 44, 218 A.2d 755 (1966). Of course, the inferences, deductions, and conclusions drawn by the orphans’ court are not findings of fact and do not bind us on appeal. Pruner Estate, 400 Pa. 629, 162 A.2d 626 (1960).

III. Rule of Prudent Fiduciary Investment

Appellants’ first argument is that the trustees breached their trust by purchasing and retaining Photon, Phoenix, and Chrysler securities because these investments were imprudent and unauthorized investments for a charitable trust. The argument is based on the Pennsylvania rule of fiduciary investment care, codified in the Decedents, Estates, and Fiduciaries Code at 20 Pa.C.S. § 7302:

Authorized investments; in general
(a) Specifically authorized. — Subject only to the provisions of the governing instrument, if any, a fiduciary may accept, hold, invest in, and retain, any of the investments authorized by this chapter, and shall not be liable for loss on such investments so long as he exercises due care and prudence in the performance of his duties in regard to them. “Legal investment” or “authorized investment” or words of similar import used in a trust instrument shall be construed to mean any investment authorized by this chapter.
(b) Prudent man rule. — Any investment shall be an authorized investment if purchased or retained in the exercise of that degree of judgment and care, under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income to be derived therefrom as well as the probable safety of their capital____

Cf. Uniform Probate Code § 7-302:

Except as otherwise provided by the terms of the trust, the trustee shall observe the standards in dealing with the trust assets that would be observed by a prudent man dealing with the property of another, and if the trustee has special skills or is named trustee on the basis of representations of special skills or expertise, he is under a duty to use those skills.

By case law, Pennsylvania follows the Uniform Probate Code in imposing a heightened duty of care on trustees possessing special expertise. Estate of Stetson, 463 Pa. 64, 345 A.2d 679 (1975). Not only the trustee’s acquisition but also his retention of investments is subject to duties imposed for the benefit of the trust. Id.

The orphans’ court did not decide whether Photon, Phoenix, and Chrysler were prudent or authorized investments under general Pennsylvania fiduciary law. Instead, the court relied on the language of the statute making its rule “[sjubject ... to the provisions of the governing instrument,” and held that the McCredy will allowed Spellissy wide discretion to invest according to his own “investment philosophy” without limiting him to prudent or authorized investments. The court found that Spellissy’s purchase or retention of each of the questioned investments was done in “conscious implementation of his personal investment philosophy,” thus satisfying the standard set down by the testator.

By the terms of the trust, the testator may permit the trustee to invest in or retain securities which are not proper investments under the prudent man rule, Restatement (Second) of Trusts, § 227, Comment u (1959) (hereinafter “Restatement”), or which are not statutorily authorized investments for trustees. Henry Estate, 413 Pa. 478, 198 A.2d 585 (1964). When the terms of a trust instrument prescribing a trustee’s investment powers conflict with the Fiduciaries Code, the trust instrument controls. 20 Pa.C.S. § 7319(a). See In re Estate of Niessen, 489 Pa. 135, 413 A.2d 1050 (1980). The intent of the testator, as gathered from the language of the will, the scheme of distribution, and the facts and circumstances surrounding the testator when he made his will, remains the “polestar” fixed for the court’s guidance in interpreting the terms of a will. Gramm Estate, 437 Pa. 381, 263 A.2d 445 (1970).

Mrs. McCredy’s will appoints Arthur Spellissy, her long-time friend, as both investment counsel and decision-making trustee for the charitable trust. Item Six directs that Spellissy should have “complete and absolute control and oversight of the management” of the trust, while directing the corporate trustee to follow Spellissy “blindly and implicitly,” and to restrict itself to clerical duties. The will empowers the executors and trustees and their successors to “retain any investment ... I shall have at my death so long as deemed wise and advantageous,” and to “invest trust funds in any type or kind of property or investment' whatever____ They shall not be confined to income-producing property, nor such as is a legal investment for trust funds.” These terms evidence an intent not to restrict the trustees to investments authorized by statute, but to remove the trustees’ investment decisions from the ambit of the statute.

Still, appellants argue that by permitting the trustees to retain or invest trust property only “so long as deemed wise or advantageous,” Mrs. McCredy intended that trust investment decisions should be measured by an objective standard of prudence. The orphans’ court took the view that this language merely served to confirm that Spellissy’s personal investment philosophy was to be the sole yardstick of investment care.

We believe the court’s determination is amply supported by the evidence. Spellissy made his unusual investment philosophy well known in the investment community. Mrs. McCredy had a close working relationship with Spellissy for over thirty years. During that time Spellissy, by using his special investment philosophy, helped her to vastly increase her investment holdings. According to officers of Provident assigned to the McCredy trust, they found the language in the will giving Spellissy absolute control over trust investment decisions to be quite unusual and explicit, and during Spellissy’s lifetime they honored the letter of the will by taking no active part in trust investments. The VIA also virtually ignored the performance of the trust portfolio, on counsel’s advice that it had no right to question Spellissy’s decisions. Had Provident’s trust officers had control over the McCredy trust’s portfolio, they would have deemed the Photon, Phoenix, and Chrysler holdings too speculative for a charitable trust and would have liquidated. the holdings. Taken as a whole, the evidence tends to indicate that Mrs. McCredy apportioned the trustees’ duties with the specific intent of allowing Spellissy to implement his investment philosophy for the trust, and with the knowledge that a trust company would pursue a much more conservative investment pattern than Spellissy would.

The court’s construction of the McCredy will does not leave Spellissy’s administration of the trust subject to no standard at all, as appellants allege. By choosing Spellissy as trustee and investment adviser for her trust, Mrs. McCredy was adopting a standard of care she knew he would implement for the trust: his special investment philosophy. Had Spellissy, through neglect or carelessness, invested or retained investments in securities willy-nilly or without thinking about his reasons for doing so, he would not have met the standard prescribed by the testator. But the evidence shows that the questioned securities were consciously sought out. Not only did Spellissy’s associates testify that the three companies fit into his scheme of investment; it was also clear that Spellissy invested in the companies for numerous other clients and himself.

Appellants allege generally that Spellissy disregarded the interests of the charitable beneficiary, but the major premise for their allegation appears to be that Photon, Phoenix Steel, and Chrysler securities were poor quality investments for Spellissy to make and retain. It is essentially irrelevant whether we agree that they were poor quality investments, for under the terms of the trust that determination was left to Spellissy, not us.

The only specific evidence cited by appellants from which to infer that Spellissy temporarily abandoned his trust is the evidence of his sales of Chrysler stock for his own account in the last two months of his life. News of Chrysler’s liquidity crisis had just come out in April 1974, and Spellissy sold 3,000 of his personal shares in a declining market in April and May, while taking no action with the trust’s 3,000 shares. The auditing judge found generally that Spellissy was not motivated to make any sale of his own Chrysler stock by concern over the company’s financial condition. With specific regard to the April and May sales, we are not certain what evidence the judge relied on for his finding. We do know that in late 1973 and early 1974, Spellissy personally bought 13,000 shares of Chrysler stock in eighteen separate transactions. During this period the market price for Chrysler stock fluctuated between the high twenties and the mid-teens. Spellissy last purchased Chrysler stock on March 14, 1974, at twenty dollars per share; thereafter he sold 1,000 shares on April 19 at 1772; 1,000 shares on May 1 at 177s; and 1,000 shares on May 23 at 17. Spellissy appears to have been actively speculating in Chrysler stock for his personal account, and to have sold 3,000 shares because he foresaw the downturn in the market.

However, Spellissy’s personal investment philosophy emphasized holding securities in anticipation of long-term gains and income enhancement. It is reasonable to conclude that Spellissy was holding onto the trust’s Chrysler stock in an attempt to realize these long-term goals for the trust. The Chrysler shares held in the trust had been purchased at times when Chrysler was still trading in the forties; had Spellissy liquidated the stock at the time he was selling his own, the trust would have realized a loss approximating $100,000. Giving due respect to Judge Gutowicz’s findings, we draw no inference of improper purpose or negligence from Spellissy’s actions in the months before his death.

We hold that it was not a breach of trust for Spellissy to follow his own investment scheme on behalf of the trust.

After Spellissy’s death on May 31, 1974, Provident as surviving trustee retained the trust’s 3,000 shares of Chrysler stock until February 1975. In their only nonderivative claim against the corporate trustee, appellants seek to surcharge Provident for the loss suffered on the Chrysler stock between May and February. Appellants argue that Provident should have liquidated the stock in June or July, and that its failure to do so resulted from inattentiveness. In assessing this argument, the auditing judge held Provident to the heightened duty of care applicable to a corporate trustee with a highly developed trust department. See In re Mendenhall, 484 Pa. 77, 398 A.2d 951 (1979). By this standard, the court found that Provident had fulfilled its duty as trustee. Because the court’s determination is supported by evidence, we will not disturb it.

At Spellissy’s death, Marshall Figgatt, an experienced investment banker, took over active administration of the trust. Figgatt reviewed the trust portfolio in June or July of 1974 and decided immediately to sell the Chrysler stock at the earliest opportunity. However, Figgatt held off selling the stock in the expectation that its market price, which then was very depressed, would rise closer to what he believed to be the true value of the stock. Figgatt also factored into the equation the dividend paid on Chrysler stock and the income needs of the hospital as beneficiary. Appellants’ expert witness, James Stratton, agreed at trial that Figgatt’s decision to wait was reasonable under the circumstances. But in spite of Figgatt’s considered judgment, the price of Chrysler stock continued to decline through 1974, reaching a low in December. By February 19, 1975, the price of the stock still had not recovered to a level acceptable to Figgatt, but on that day he received information that Chrysler’s board of directors had suspended the dividend. Figgatt coupled this information with rumors beginning to surface that Chrysler was having difficulty rolling over its commercial paper, and decided that he could no longer afford to wait for the market price to recover. That same day Figgatt ordered a sale of the trust’s Chrysler stock. The loss to the trust was unfortunate, but the evidence supports the auditing judge’s conclusion that Provident acted on a sound basis in retaining the stock as long as it did. Provident’s foresight may not measure up to appellants’ hindsight, but hindsight is not the test of a trustee’s diligence. Estate of Knipp, 489 Pa. 509, 414 A.2d 1007 (1980); Lerch Estate, 399 Pa. 59, 159 A.2d 506 (1960).

IV. Rule of Undivided Loyalty

Appellants argue that, regardless whether the trust instrument authorized Spellissy to pursue his unorthodox investment philosophy, his decisions to invest in and retain the questioned securities violated the rule of undivided loyalty: In general, “[t]he trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary.” Restatement, supra, § 170(1). The rule prohibits both self-dealing and conflicts of interest. Thus, the trustee must neither 1) deal with trust property for the benefit of himself or third parties, 39 P.L.E. Trusts § 186 (1961), nor 2) place himself in a position inconsistent with the interests of the trust. Id. § 185.

Appellants find an instance of self-dealing in Spellissy’s purchase as trustee of the 1,000 units of Phoenix Steel directly from his firm, Spellissy & Associates. It is elemental to the rule against self-dealing that a trustee may not sell to himself, as trustee, property which he owns in his individual capacity. Tracy v. Central Trust Company, 327 Pa. 77, 192 A. 869 (1937); Restatement, supra, § 170, Comment h. The rule extends to purchases from a firm of which the trustee is a partner or member. Curtis Trust, 45 Pa.D. & C.2d 701 (Orphans’ Ct.Phila.1968); Restatement, supra, § 170, Comment h; 2 Scott on Trusts § 170.12 (3d ed. 1967). However, where the trustee never actually holds an interest in the property sold to the trust, no self-dealing occurs. Scott, supra, § 170.14. The authorities specifically permit a corporate trustee to advance its own money for investment in mortgages and to distribute participations in the mortgages among various trusts administered by it, if the mortgages were acquired for the purpose of distribution among the trusts and only a short interval elapses between the purchase and the distribution. Restatement, supra, § 170, Comment i; Scott, supra, § 170.14. See 7 P.S. § 405; Downing Estate, 162 Pa.Super. 354, 57 A.2d 710, aff'd per curiam, 359 Pa., 534, 59 A.2d 903 (1948); Curtis Trust, supra; Estate of Van Deusen, 37 A.D.2d 131, 322 N.Y.S.2d 951 (1971). When a trustee purchases property for distribution to various trusts, he must “earmark” the property held for each trust. Lewis Estate, 349 Pa. 455, 37 A.2d 559 (1944). See Restatement, supra, § 179, Comment d.

In purchasing the Phoenix Steel units, Spellissy’s firm acted simply as a conduit to facilitate purchases of the units by its various clients. The auditing judge found that the 60,000 units subscribed for by the firm all were issued in the names of the clients who eventually were to have them. Spellissy & Associates billed each client only for the purchase price of the units each received; instead of being compensated for its role in the transaction, the firm itself absorbed interest costs on the loan it took out to make the purchase. The judge also found that Spellissy & Associates “earmarked” the 1,000 units purchased for the McCredy trust in accordance with a prearranged subscription plan. Appellants question the finding, pointing out that the original plan called for the McCredy trust to receive 2,000 units; this fact is adequately explained by Spellissy & Associates’ inability to purchase as many units as it had intended, and is not a reason to upset the court’s finding. We agree with the court’s conclusion that the trustees’ purchase of Phoenix Steel units directly from Spellissy & Associates involved no self-dealing on Spellissy’s part. Cf. Cornet v. Cornet, 269 Mo. 298, 190 S.W. 333 (1916) (prohibited self-dealing for trustee to buy bonds with personal funds for distribution to trusts administered by him or to his personal account, depending on conditions of the various trusts).

As for the fact that Spellissy & Associates was not licensed to act as a broker-dealer of securities (and appellants have cited no authority to establish that this is what the firm was doing in this case), we are convinced that the fact is irrelevant under the circumstances. Our concern is to examine Spellissy’s conduct for breaches of trust; having determined that the Phoenix Steel transaction was not self-dealing, we would serve no purpose by determining whether the firm’s conduct might be questioned on grounds unrelated to the administration of the trust.

Appellants next find conflicts of interest in the fact that Spellissy had substantial personal interests in the companies whose securities he purchased or retained for the trust.

The trustee violates his duty to the beneficiary if he sells to himself as trustee his individual property or property in which he has a personal interest of such a substantial nature that it might affect his judgment. It is immaterial that the trustee acts in good faith in purchasing the property for the trust, and that he pays a fair consideration. This is true whether he purchases for the trust property which he owns individually, or property owned by a firm of which he is a member, or property owned by a corporation in which he has a controlling or substantial interest.
A trustee cannot properly purchase securities for the trust for the purpose of maintaining the market price of similar securities in which the trustee has an individual interest, even though he purchases the securities in the market from third persons.

Restatement, supra, § 170, Comment h.

The test of forbidden self-dealing is whether the fiduciary had a personal interest in the subject transaction of such a substantial nature that it might have affected his judgment in material connection: Downing Estate, supra [162 Pa.Super.], at p. 359 [57 A.2d 710], citing Scott on Trusts, § 170(1) Comment h____ It will be noted that the extent of the fiduciary’s disqualifying interest need not be such as “did affect his judgment” but merely such as “might affect his judgment”: Downing Estate, supra, 162 Pa.Superior Ct. at p. 360 [57 A.2d 710].

Noonan Estate, 361 Pa. 26, 31, 63 A.2d 80, 83 (1949).

A potential conflict of interest arises when a trustee purchases for the trust the stock or securities of a corporation in which he has substantial personal interests. As Professor Scott says in treating the related case of a corporate trustee holding its own stock, in trust,

It is quite true that under ordinary circumstances there is in fact no actual conflict of interest; but there is a possibility that circumstances may arise in which there is a conflict of interest. The rule of undivided loyalty is based on this possible conflict. The trustee and its officers and directors are in a position where in determining whether to sell or retain in the trust the stock of the trustee they cannot approach the problem with the same detachment with which they could approach the problem of selling other securities.

Scott, supra, § 170.15, at 1340. However, in the case of an individual trustee, there is an inherent problem in saying when his personal interests in a corporation are substantial enough to cause a potential conflict of interest should he purchase or retain that corporation’s stock for the trust. The Pennsylvania courts have not attempted to define a “substantial” interest in a corporation. See, Comerford Estate, 388 Pa. 278, 130 A.2d 458 (1957) (fiduciary may not purchase securities in a corporation in which he is “substantial” stockholder) (dictum). Cf. Ryan v. Plath, 18 Wash.2d 839, 140 P.2d 968 (1943) (prohibited self-dealing for trustee to sell trust property to corporation of which he was president, general manager, and majority stockholder; court found sale to corporation was in effect sale to trustee himself); Re Filardo, 221 Wis. 589, 267 N.W. 312 (1936) (court found self-dealing where guardian of incompetent invested trust funds in the frozen assets of a bank which was hard pressed to maintain its cash reserve and of which guardian was officer, director, and stockholder).

In the final analysis, whether a trustee’s personal interests present an impermissible potential conflict with those of the trust is a determination to be made on the facts of each case. See generally 90 C.J.S. Trusts § 248 (1955). We should be guided in our analysis by the Noonan standard prohibiting personal interests that might affect the trustee’s investment decisions on behalf of the trust.

As a matter of law, we hold that Spellissy’s personal investments in Phoenix Steel debentures and Chrysler stock were not substantial enough in themselves to conflict with his proper administration of the trust. To hold otherwise would be to effectually outlaw a trustee’s owning personal stock, even a relatively small amount, in a corporation in which the trust has stock. The holdings of both Spellissy and the trust in Chrysler stock were minute in comparison to the outstanding total. We find it inconceivable that Spellissy’s decision to retain in the trust 3,000 shares of Chrysler stock, including 2,900 devolved from the settlor, could have been motivated or tinged by personal interest. Similarly, Spellissy’s personal holdings in Phoenix Steel debentures, although not insignificant in dollar amount, should not be characterized in the words of the Restatement as a “controlling or substantial” interest in the firm. Restatement, supra, § 170, Comment h. Certainly neither the Chrysler nor the Phoenix Steel holdings of the trust could have been held for the purpose of maintaining the market prices of Spellissy’s own securities. Id. In the circumstances of this case, it seems highly unlikely that Spellissy’s purchases of Chrysler or Phoenix Steel securities for the trust or for his numerous other clients could have been influenced by the extent of his personal holdings in those companies.

Our holding assumes, of course, that Spellissy’s decisions to purchase and retain these securities for the trust were not in fact made to further his personal interests, or in disregard of the trust’s interests. On this point we must accept the orphans’ court’s findings that Spellissy acted in what he believed to be the interests of the trust.

Spellissy’s personal interests in Photon were much more complex. During the period of the trust accounting, Spellissy was a treasurer, director, and ten percent stockholder of Photon. These relations alone show a high correlation of interest between Spellissy and the company, even though, as treasurer, Spellissy did not run the company’s financial operations or collect a salary. Additional undisputed facts are that Spellissy had followed Photon enthusiastically almost since its inception, proudly made known his personal involvement with the company, and remained confident about it even through adversity. Never in Spellissy’s twenty-year association with Photon did his outward enthusiasm for it dampen, even after Photon’s reported sales/inventory ratio began its decline in 1969, and apparently even after Photon’s board of directors discovered major irregularities in the company’s books for the early 1970s. Despite Spellissy’s aspiration for and affinity with Photon, its stock never earned a cent of income for the McCredy trust’s charitable beneficiary, and in fact the stock decreased in value continuously throughout the administration of the trust.

When a trustee invests his personal pride and good name, as well as his personal capital, in a corporation whose securities form a substantial part of the trust corpus, he places himself in a position where it is very difficult to remain inflexibly loyal to the trust. Cowan v. Hamilton National Bank, 177 Tenn. 94, 146 S.W.2d 359, cert. denied, 313 U.S. 592, 61 S.Ct. 1116, 85 L.Ed. 1546 (1941). At some point a trustee’s personal ties to a company will compel the conclusion that investment of trust assets in the company is improper. When the point is reached, we do not stop to inquire whether self-interest actually tinged the trustee’s decisions for the trust; the rule of undivided loyalty is not intended to be remedial of actual wrong, but preventive of the possibility of it. Banes Estate, 452 Pa. 388, 305 A.2d 723 (1973); In re Pew Memorial Trust No. 1, 5 Pa. D. & C.3d 627 (Orphans’ Ct. Phila.1977). As the New York Court of Appeals said in In re Lewisohn, 294 N.Y. 596, 608, 63 N.E.2d 589, 592 (1945),

A true discharge of that duty [of undivided loyalty] called upon the trustee completely to avoid all occasions for the counteraction of incompatible demands. This stringent measure of trust administration is not one of mere inward integrity or unselfishness. The rule is inflexible that a trustee shall not place himself in a position where his interest is or may be in conflict with his duty.

The extent and gravity of Spellissy’s personal interests in Photon were such that we cannot rule out that his judgment in handling the trust’s Photon investments might have been affected. However, in refusing to surcharge the accountants for losses suffered on the trust’s Photon holdings, the orphans’ court held that Mrs. McCredy waived the rule of undivided loyalty. We believe the court properly so held.

Generally, by the terms of the trust the settlor can waive the application of the rule of undivided loyalty. Scott, supra, § 170.15; Restatement, supra, § 170, Comment t. The settlor can also waive the rule by implication, where he knowingly places his trustee in a position which might conflict with the interests of the trust or its beneficiaries, and gives the trustee power to act in that dual capacity. Pincus Estate, 378 Pa. 102, 105 A.2d 82 (1954); Steele Estate, 377 Pa. 250, 103 A.2d 409 (1954); Flagg Estate, 365 Pa. 82, 73 A.2d 411 (1950). Cf. Burke Appeal, 378 Pa. 616, 108 A.2d 58 (1954) (trustees permitted to deal parcels of trust land to themselves where one of trust purposes was to satisfy their claims out of trust estate); Patterson v. Lennig, 118 Pa. 571, 12 A. 679 (1888) (purpose of trust was to pay debts to creditors, including trusteé); In re Kellogg’s Trust, 35 Misc.2d 541, 230 N.Y.S.2d 836 (1962) (family trust holding stock of family corporation).

A comparable situation in which the Pennsylvania courts permit self-dealing arises when a settlor bequeaths stock in a corporation to the corporation as trustee, and authorizes the trustee generally to retain investments held by the settlor at death. Glauser Estate, 350 Pa. 192, 38 A.2d 64 (1944); Child Estate, 15 Pa.D. & C.2d 257 (Orphans’ Ct.Phila.1957); Clay’s Estate, 25 Pa.D. & C. 257 (Orphans’ Ct.Phila.1936). Accord, Matter of Heidenreich, 85 Misc.2d 135, 378 N.Y.S.2d 982 (1976); contra, In re Trusteeship of Stone, 138 Ohio St. 293, 34 N.E.2d 755 (1941) (requiring an express authorization for trustee to retain its own stock).

In this case Mrs. McCredy did a closely analogous thing: she passed Photon stock and debentures as part of her estate and authorized Spellissy as executor and trustee to retain any investments she held at her death. The VIA argues evidence was sparse that Mrs. McCredy knew of Spellissy’s Photon connections. However, the evidence supports the orphans’ court’s finding that she did know, and we are therefore bound to accept that finding. Estate of McClatchy, 492 Pa. 352, 424 A.2d 1227 (1981). Mrs. McCredy maintained a close relationship with Spellissy as friend and investment counsel, and discussed each investment with him in detail. He was very sanguine about Photon, and made his pride and stake in the company widely known. Spellissy’s own connections to Photon must have been among the topics of discussion when he advised Mrs. McCredy to buy into the company. We can also assume that after investing in Photon she read its stockholder correspondence identifying Spellissy as a director of the company.

The will itself is additional strong evidence that Mrs. McCredy had no intention of preventing Spellissy from retaining and trading in Photon securities for the trust. She gave him paramount, unfettered discretion to make investment decisions, and in broad terms insulated him from liability for his decisions. Mrs. McCredy would have been at a loss to express more emphatically her intention that the final word on trust investments was to be Spellissy’s. Where an instrument grants such broad power to the trustee we should not interfere with the trustee’s exercise of that power absent bad faith or profiteering at the beneficiary’s expense. See Restatement, supra, § 170, Comment t, § 222(2); Scott, supra, § 222; compare Renz v. Beeman, 589 F.2d 735 (2d Cir.1978) (trustees appropriated trust opportunities for their own account); Vredenburgh v. Jones, 349 A.2d 22 (Del.Ch.1975) (semble). The terms of Mrs. McCredy’s will indicate her intent to vest complete authority in Spellissy, and that intent controls. In re Estate of Flagg, 501 Pa. 38, 459 A.2d 740 (1983); In re Estate of Macfarlane, 313 Pa.Super. 397, 459 A.2d 1289 (1983).

We hold that Spellissy’s estate is not subject to surcharge. Provident National Bank, which was directed by the McCredy will to follow Spellissy “blindly and implicitly,” likewise can suffer no surcharge.

The decree of the orphans’ court dismissing exceptions and confirming the trustees’ account is affirmed.

      . The executors’ final account, filed March 31, 1969, reflected principal with a market value of over $4,000,000. The trustees’ account reflects trust principal with a market value of approximately $2,000,-000 less.

      . The Attorney General has not filed a brief in this Court, but joins in appellant VIA’s argument.

      . When Mrs. McCredy executed her will and codicils, Pennsylvania statute law employed a "list" scheme of authorized types of investments. However, fiduciaries were held to the prudent man standard with regard to the types of securities listed in the statute. The statute also provided that the testator's directions were to control when they conflicted with the statute. Act of May 26, 1949, P.L.1828, No. 544.

      . Collaterally, appellants argue that Spellissy violated the federal Investment Advisers Act of 1940, § 206 (as amended), 15 U.S.C. § 80b-6, by advising the trust on its Photon, Phoenix Steel, and Chrysler securities without revealing to the VIA his personal interests in those companies. The orphans' court refused to consider any claim based on federal law, holding that Spellissy’s administration of the trust was to be judged exclusively under Pennsylvania law. We understand that appellants are arguing that a violation of federal securities law should constitute a breach of trust under Pennsylvania law. However, neither the federal act nor the case law and regulations interpreting the act specifically condemns the type of conduct engaged in by Spellissy. The act prohibits an investment adviser from perpetrating any "fraud or deceit” upon a client. Essentially, appellants beg the question by urging us to extend the prohibition of the act to the facts of this case; of course a "fraud or deceit” would amount to a breach of trust under Pennsylvania law, but we are better able to identify a fraud or deceit by interpreting trust law rather than by attempting to extend federal securities law.


author: POPOVICH, Judge: ROWLEY, Judge,

text:
    470 A.2d 601
    COMMONWEALTH of Pennsylvania v. Bernard JERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed Dec. 23, 1983.
    Petition for Allowance of Appeal Denied April 13, 1984.

      Michael James Healey, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying Post Conviction Hearing Act (PCHA) relief to appellant, Bernard Jerry.

On March 16, 1977, appellant was convicted by a judge, sitting without a jury, of possession of a controlled substance and theft by receiving stolen property. Appellant was sentenced to a term of imprisonment of not less than nine months nor more than eighteen months. No post-verdict motion was filed, and no direct appeal was taken. We must remand for proceedings not inconsistent with this opinion.

On September 2, 1977, appellant filed his first PCHA petition pro se. A hearing was held on June 1, 1978, and the court denied appellant’s petition.

On November 29, 1978, appellant filed his second PCHA petition pro se. The court denied appellant’s petition without a hearing. Appellant’s third pro se PCHA petition was filed in May of 1981. This petition also was dismissed because “all issues raised therein have been previously disposed of by this Court.” Order of Court dated June 23, 1981, at No. 4. There is no transcript of this evidentiary hearing; however, counsel for the appellant and the prosecution entered into a “STIPULATION OF FACTS” which stated that an evidentiary hearing was conducted on September 15, 1981. Appellant was permitted to amend his PCHA petition to include an allegation of the ineffective assistance of appellate counsel. The court concluded that appellant did not waive his right to appeal and entered an order allowing appellant the right to appeal nunc pro tunc from the order of court dated June 1, 1978. The court also appointed private counsel to represent appellant on appeal.

Appellant raises three issues: (1) whether the trial court erred in denying appellant’s application to suppress illegally seized evidence because warrants were required; (2) whether the trial court erred in admitting into evidence a statement made by appellant as a result of police interrogation; and (3) whether the trial court erred in ruling that there was sufficient evidence to support appellant’s conviction for theft by receiving stolen property.

The prosecution contends that the issues that appellant raises either have been finally litigated or waived because “appellant’s failure to file post trial motions precludes consideration of those allegations of error raised in his first PCHA petition concerning the admission of certain evidence.” Brief for the Prosecution at 7. We cannot agree with the prosecution’s contention.

To begin with, the PCHA court determined that appellant’s appellate rights were violated. Even the prosecution conceded as much in its “STIPULATION OF FACT” when it stated:

“Any waiver which resulted from the failure to file a timely Notice of Appeal was through no fault of the petitioner and, therefore, cannot be deemed to be knowing and voluntary. Petitioner at all times desired to pursue an appeal from the denial of post conviction relief and in fact believed that such an appeal had been perfected on his behalf.” Record at No. 8, page 2.

Although the prosecution in its stipulation admitted that appellant’s appellate rights were violated at the PCHA stage, this Court concludes that appellant’s failure to file post-trial motions does not constitute a waiver because our examination of the record reveals that appellant was not advised properly of his post-trial rights. The Court stated the following:

“THE COURT: I am going to order a pre-sentence report and direct that the Defendant be returned pursuant to the detainer to Beaver County Jail.
You know you have seven days to file post-trial motions on this matter, Mr. Stockey?
MR. STOCKEY: I guess I have to.
THE COURT: I don’t know whether you have to or not. You have to say on the record that you understand you have seven days.
MR. STOCKEY: Right.” (Notes of Testimony, N.T., 3/17/77, at 77-78)

At the time of appellant’s trial, March 17, 1977, appellant should have been informed of his “rights with respect to the filing of post-trial motions [e.g., the right to the assistance of counsel in the filing of the motion and on appeal of any issues raised therein], the time for filing and the waiver consequences of not filing as required by Rule 1123”. Commonwealth v. Vasquez, 268 Pa.Super. 295, 298 n. 4, 408 A.2d 154, 156 n. 4 (1979).

Although appellant was advised of the time limit for filing post-trial motions, he was not advised of his right with respect to the filing of post-trial motions nor was he advised of the waiver consequences of not filing a motion in accordance with Pa.R.Crim.P. 1123. Thus, on this record we are unable to agree with the prosecution that “appellant’s failure to file post trial motions precludes consideration of those allegations of error raised in his first PCHA petition concerning the admission of certain evidence.” Brief for the Prosecution, supra at 7.

It is well-established that:

“ ‘[When] the trial court [does] not comply with Rule 1123(c), petitioner’s failure to file adequate post-verdict motions cannot be deemed a knowing and intelligent waiver of his right to appeal.’ Commonwealth v. Cathey, 477 Pa. 446, 450, 384 A.2d 589, 591 (1978).” Commonwealth v. Rowe, 268 Pa.Super. 380, 383, 408 A.2d 516, 517 (1979).

In any event, the issue of whether appellant was deprived of his appellate rights either at the post-trial stage or at the PCHA stage is intertwined in the instant case because the PCHA court concluded that appellant’s appellate rights were violated at the PCHA stage, and our examination of the record also establishes that appellant’s appellate rights were violated at an additional stage, the post-trial stage. This is significant because we must analyze the issues appellant has raised in connection with the PCHA Hearing Act which provides in relevant part:

Section 9544 of the Post Conviction Hearing Act provides for the following:
(a) Issues finally litigated. — For the purpose of this subchapter, an issue is finally litigated if:
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.
(b) Issues waived. — For the purposes of this subchapter, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under-this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption. — There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

The presumption in the instant case has been rebutted because appellant was deprived of his appellate rights at the post-trial stage. See Commonwealth v. Miranda, supra.

In this nunc pro tunc appeal, we are presented with an additional procedural twist. That is, appellant raised at the PCHA level and before this Court other issues. In his brief, filed before this Court, appellant contended that (1) the suppression court erred in denying his application to suppress because the police officer conducted an illegal, warrantless search and seizure and an illegal warrantless arrest; (2) the trial court erred in admitting into evidence a statement obtained as the result of police interrogation; and (3) the evidence was insufficient to sustain a conviction of receiving stolen property.

Because the other issues which appellant raises can be addressed on the present record, there is no need to remand on these issues. See Commonwealth v. Miranda, Id., 296 Pa.Superior Ct. at 456, 442 A.2d at 1141 (“Moreover, we have a complete record and can address each of the specific allegations raised by appellant.”)

In reviewing the determination made by the suppression court, we must remember the following guidelines:

“In the case of Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980), our Supreme Court stated the following:
‘When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights, Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this Court must “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” (citations omitted)’

Additionally, in making this determination, we must consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-1, 361 A.2d 282, 290 (1976).

The prosecution’s evidence at the suppression hearing established that the police received a telephone call at approximately 3:59 P.M. on October 29, 1976, stating that appellant at 58 Roberts Street was seen with a machine gun. (Notes of Suppression Testimony, N.S. 4) The police also knew from information received seventeen or eighteen months previously that a “man was renting guns out to suspected hold-up people.” (N.S. 5) The police also stated that at that time appellant was not there. Id. The police officer proceeded to 58 Roberts Street with other officers and surrounded the house. (N.S. 6) The police officer approached the front door, knocked on the door and was admitted by an unknown adult. (N.S. 6-7) The officer, who was not in uniform at the time, asked the individual where Bernard, the appellant, was, and the individual “made a motion with her hand, pointing up.” (N.S. 7) The police officer then climbed the stairs until he went to the second floor. Id. Because the police officer had recovered a gun previously on the third floor, he opened the door to the third floor. Id. He heard footsteps and saw appellant either exiting or coming in the doorway. (N.S. 8) By this time, the other officers had arrived. The police then found a .38 pistol on the dresser at the top of the steps. Id. Upon being asked whose guns they were, no one answered. Id. Then appellant answered that the other guns were in the corner when the police questioned, “Where are your other guns?”. (N.S. 8) A rifle was located in the corner, ■ which had a clip of eight live rounds. (N.S. 17) At that time, appellant was placed under arrest. The police also seized a white envelope in plain view which tested to be cocaine and lidocaine. (N.S. 18)

After the police officers testified on behalf of the prosecution, the appellant presented no additional testimony. The suppression court then stated the following:

“THE COURT: [The police] knew a lot more than that. They had had prior contact with the Jerry family. They had prior contact with guns being at 58 Roberts Street. They knew that Bernard Jerry was a former convict and, as such, would not be permitted to be carrying guns.
I think it is totally different, I really do, between a machine gun and narcotics. I totally agree with you as far as the underlying circumstances, but what are the police supposed to do. Here they received information that one of our citizens is carrying a machine gun. Are they supposed to at this point in time say, well, gentlemen, there is nothing we could do about that, you know, and let the community be at risk.
THE COURT: [The police] have to conduct investigations. They would really be derelict in their duties if they did not follow that up. You know, it went fromthe [sic] Sergeant to the Inspector and back to these men and they responded immediately as any responsible police officers would do and they get to the door. When they get to the door, you know, they are merely — they have suspicions, they don’t at this point in time have any probable cause. All they know is they have received word that Bernard Jerry was seen going to 58 Roberts Street with a machine gun. Now, they have all these other things that they also know about 58 Roberts Street and Bernard Jerry, right? When a person answered the door, the person who appeared to be in custody of the house, at least an adult who could open the door, and when Officer Fetherolf said to that person, ‘Is Bernard Jerry here.? [sic]’ Now, his suspicions are confirmed when she pointed, ‘Yes, he’s here.’ Now, the police officer at this point, in my opinion, had every right to be where he was and he had a right to enter to find out whether or not it was true that Bernard Jerry was carrying a gun, and his continued investigation ended up revealing that he did—
‡ ‡ $
We are here only arguing whether the police violated the dutyof [sic] their office and I don’t believe they did in this case.
I’m going to deny the motion to suppress, for the reasons I have set forth.
We will stand in recess and I would like to see Counsel and all offivers [sic] in my chambers.” (N.T. 31-32)

In our view, the suppression court’s findings of fact and conclusions of law are supported by the record. In a similar case, we found that the officer’s entry onto the premises and subsequent arrest was valid notwithstanding the fact that no warrants were obtained and stated the following:

“Appellant argues that his arrest and the search of the premises were unlawful because they were not based upon probable cause. Generally, the Fourth Amendment to the United States Constitution requires that a search warrant be issued before any search of a premises can be lawfully conducted. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However there are certain circumstances which, when they occur, justify a warrant-less search of a suspect or his premises. E.g. see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Warrantless searches or seizures are frequently justified when the court finds such exigent circumstances which excuse the police from obtaining a warrant. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In the Warden case the court held that neither the entry of a premises without a warrant to search for a robber, nor the search for him without a warrant was invalid where the exigencies of the situation made that course imperative, as where the police were informed that an armed robbery had taken place, and that the suspect had entered the premises less than 5 minutes before they reached it. The court held that the police had acted reasonably when they entered the house under such circumstances and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The facts of the instant case are strikingly similar to the ones in Warden, supra. In our case the police had been informed that an armed robbery had just taken place. After a cursory search of the area at which the robbery had taken place they received information that the perpetrators of the crime were inside premises which was located about a block away from the scene of the crime. Their entry into the premises took place within 15 minutes of the robbery. Therefore we hold that the officer’s entry onto the premises and arrest of appellant were sufficiently proximate in time and place to the scene of the crime so as to fulfill the doctrines of ‘exigent circumstances’ and ‘hot pursuit’ as recognized by the Supreme Court in the Warden, supra, case.
Appellant attempts to distinguish between our case and Warden, supra, in that in our case the information as to appellant’s whereabouts was supplied by an unknown person not to the police officers themselves, but to the victim who then transmitted that information to the police. In Warden, supra, two taxi cab drivers who had observed the suspect enter certain premises relayed that information to the police. Since probable cause may be based on information which would be inadmissible in a court of law such as hearsay information, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and since the Supreme Court of the United States upheld the search of the premises in the Warden case under circumstances similar to the ones at hand we fail to see any distinguishing factors between the instant case and Warden, supra.
In both instances the information as to the suspects’ whereabouts was provided through intermediaries. We fail to see how the cab dispatcher in the Warden case was any more reliable than the victim in our case, nor how the cab drivers were any more reliable than the unknown person in our case. The salient factors in our case are that the robbery, the informer’s tip, and the subsequent arrest of the appellant all occurred within 15 minutes time and within a block of each other. This places the occurrences so close to one another in time and place so as to justify the search as the probabilities were very great that a disinterested observer of the occurrences would have seen where the suspects went. Accordingly we find no unlawful police conduct relative to the search of the premises and subsequent arrest of appellant and his accomplice.” Commonwealth v. Montgomery, 246 Pa.Super. 371, 375-377, 371 A.2d 885, 887-888 (1977).

Additionally, we note that once the police were lawfully on the premises, they had a right to seize anything that was in plain view. Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978).

Appellant attacks the validity of his arrest because it was made without a warrant. He cites Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978) for support of the proposition that a warrantless arrest in one’s home, absent exigent circumstances, violates the Fourth Amendment protection against unreasonable searches and seizures. We need not examine whether Williams is controlling because our Supreme Court held in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), that Williams is not retroactive and applies only to “arrests made subsequent to the date of the Williams decision, November 18, 1978.” Commonwealth v. Norris, 305 Pa.Super. 206, 211, 451 A.2d 494, 496 (1982). In the instant case, appellant was arrested on October 29, 1976, more than two years before Williams was decided. Accordingly, we need not examine the applicability of that decision.

The second issue appellant raises concerns whether the trial court erred in allowing the police to testify at trial that appellant had told the police that he had resided on the third floor of 58 Roberts Street, the scene of the crime. Appellant claims that this statement was the product of improper police interrogation. However, this issue was not raised at the pretrial stage nor was there this objection interposed at trial. Hence, a waiver has occurred. See Pa.R.Crim.P. 306 and Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant argues next that the evidence is insufficient to establish his conviction of receiving stolen property. More specifically, appellant contends that even if the prosecution established that the “gun was stolen, it has failed to show the necessary criminal intent on the part of Defendant.” Brief for Appellant at 15. We agree.

When analyzing the sufficiency of evidence, we must view the evidence in a light most favorable to the verdict winner, in this case, the prosecution, and accept as true all of the evidence and the reasonable inferences therefrom, upon which the fact finder, the trial court, could have based its verdict. Commonwealth v. Harrison, 289 Pa.Super. 126, 131, 432 A.2d 1083, 1086 (1981).

Additionally, in order to establish the crime of receiving stolen property, the prosecution had to prove beyond a reasonable doubt that “(1) the property had been stolen, (2) the accused received the property and (3) the accused knew or had reasonable cause to know that it had been stolen.” Commonwealth v. Worrell, 277 Pa.Super. 386, 390, 419 A.2d 1199, 1201 (1980).

When viewed in a light most favorable to the prosecution, the record contains the following uncontradicted testimony:

Between September 21st and 23rd of 1975, a .38 caliber pistol, a “Smith and Wesson Chief Special”, had been stolen from Frank Dampf, a police officer with Duquesne University’s Department of Public Safety. (N.T. 63) While the officer did know that the pistol was stolen from his locker, he did not know who had stolen the pistol. On October 29, 1976, approximately one year and four weeks later, the police seized the pistol from the top of appellant’s dresser, which was located on the 3rd floor of 58 Roberts Street. No fingerprints were taken from the gun and the appellant presented no testimony on his behalf at trial.

In the past, we have said that the facts in receiving stolen property cases must be examined in light of the following considerations:

“[T]he appellant’s conduct; the appellant’s relationship to the victim; the elapsed time between the appellant’s possession and the theft; the situs of the theft and the situs of the possession; the kind of property; the quantity of the'property; and the identifying characteristics of the property.” (Citations omitted) Id.

Commonwealth v. Harrison, 289 Pa.Super. at 130, 432 A.2d at 1086 (quoting Commonwealth v. Henderson, 415 Pa. 452, 455, 304 A.2d 154, 156 (1973)).

Based on the above standard, we find that appellant offered no license or other explanation of how he came into possession of the pistol. Parenthetically, we note that it is not a crime in Pennsylvania to carry an unlicensed firearm in your home. See 18 Pa.C.S.A. § 6106 (“No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.) (Emphasis added).

Additionally, the fact that appellant’s possession of the pistol was “unexplained” is not dispositive of the issue of appellant’s guilty knowledge. See Commonwealth v. Stover, 291 Pa.Super. 509, 436 A.2d 232 (1981) (plurality-opinion).

On this aspect of the case, we have said the following: “While the element of guilty knowledge may be established by direct or circumstantial evidence, the fact that an accused possesses stolen property is not by itself sufficient to establish the requisite guilty knowledge. Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). Nor is the Commonwealth’s position enhanced by the fact that possession of the stolen goods was ‘unexplained.’ Commonwealth v. Owens, 441 Pa. 318, 271 A.2d 230, 233 (1970). There must be sufficient evidence which a fact finder may conclude beyond a reasonable doubt that Appellant must have known that the goods possessed were stolen. Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973).” Commonwealth v. Ward, 255 Pa.Super. 377, 380, 387 A.2d 98, 100 (1978).

Thus, without additional evidence, appellant’s unexplained possession is not sufficient to support his conviction for the crime of receiving stolen property in this case.

We note that at the time of appellant’s arrest, appellant did not flee nor did he indicate that the pistol on the dresser was stolen. See Commonwealth v. Robinson, 317 Pa.Super. 135, 138, 463 A.2d 1121, 1123 (1983) (the accused’s conduct at the time of arrest is indicative of guilty knowledge); Commonwealth v. Wilcox, 310 Pa.Super. 331, 336, 456 A.2d 637, 640 (1983) (“Both Appellant’s flight and his collection of car keys are supportive of Appellant’s knowledge that the car was stolen.”)

Second, the prosecution presented no testimony regarding the appellant’s relationship with the victim. However, it was stipulated at trial that the “gun was stolen by some unknown person in September, 1975”. (N.T. 63).

Third, with respect to the elapsed time period of approximately one year and three weeks, we have said that the term “recent possession” “correspond^] to a period of time within which a thief could not have had the opportunity to divest himself of possession.” Commonwealth v. Brosko, 243 Pa.Super. 312, 318, 365 A.2d 867, 870 (1976). As applied to the instant case, we conclude that appellant’s possession was not recent. See Commonwealth v. Stover, 291 Pa.Super. at 512, 436 A.2d at 233 (possession of an automobile 37 days after the car was stolen is “not very recent”.) In this connection, our Supreme Court has even said that “substantial numbers of used guns are transferred in seemingly innocent circumstances.” Commonwealth v. Owens, 441 Pa. at 325, 271 A.2d at 233.

Fourth, although the record states that the victim’s pistol was stolen from his locker, there was no indication where the locker was located.

Fifth, even if appellant’s possession of the stolen gun could be considered recent, we have said that possession of the kind of property involved in the instant case, a recently stolen gun, does not rise to an inference that “a possessor of a recently stolen pistol more likely than not knew or had reason to know that the weapon had been stolen”. Id., 441 Pa. at 325, 271 A.2d at 234.

Sixth, the rifle which was seized at the same time as the pistol did not prove to be stolen nor were any other stolen items seized by the police at the time of appellant’s arrest.

Seventh, the prosecution failed to establish whether there were any distinguishing characteristics of the property.

Thus, in the absence of any other evidence, appellant’s mere possession of the stolen pistol and his unexplained possession of the pistol are insufficient to support a conviction for receiving stolen property. Hence, we must vacate that conviction.

The record indicates that appellant was sentenced to not less than nine months nor more than eighteen months in prison for his convictions of possession of a controlled substance and receiving stolen property. However, because we are unable to determine the process by which the sentencing court arrived at the sentence because the sentencing transcript has not been forwarded to this Court, and because we are unable to glean such information from the record, we must remand the matter for resentencing. Commonwealth v. Welch, 291 Pa.Super. 1, 3, 435 A.2d 189, 190 (1981).

Remanded for proceedings not inconsistent with this opinion. Jurisdiction is not retained.

ROWLEY, J., filed a concurring and dissenting statement.

ROWLEY, Judge,

concurring and dissenting:

I join in the opinion of the Court. However, I respectfully dissent from the decision to remand this case for resentencing.

Appellant has not raised, in his statement of questions involved, an issue concerning his sentence or the sentence proceeding. Pa.R.A.P. 2116 is “in the highest degree mandatory,” and we should not consider issues that have not been raised by the appellant in his statement of questions involved. Moreover, even if the issue was properly before us, rather than remand for resentencing I would direct that a supplemental record consisting of the sentencing transcript be certified and transmitted to this Court pursuant to Pa.R.A.P. 1926. However, since the issue has not been raised, I would affirm the judgment of sentence.

      . 42 Pa.C.S.A. § 9541 et seq.

      . 35 Pa.C.S.A. § 780-113(16).

      . 18 Pa.C.S.A. § 3925.

      . In a similar case, we said:
      "At the time of appellant’s trial [June, 1977], a seven (7) day period was in effect under then Rule 1123. The ten (10) day period did not become effective until July 1, 1977. However, the amending of the rule has no bearing on the issues raised by this appeal.” Id., 268 Pa.Superior Ct. at 298 n. 3, 408 A.2d at 155 n. 3.

      . The notes of testimony from the sentencing proceeding have not been forwarded to this Court with the rest of the transcript. However, even if we assume that appellant was advised properly of his appellate rights at sentencing, any appeal he would have launched would have been futile because a defendant "waives for purposes of appeal any issues which could have been included in the post-trial motions.” Commonwealth v. Olsen, 247 Pa.Super. 513, 519, 372 A.2d 1207, 1210 (1977).

      . In Commonwealth v. Miranda, 296 Pa.Super. 441, 448 n. 6, 442 A.2d 1133, 1136 n. 6 (1982), this Court commented on this problem:
      Thus, it is evident that denial of appellate rights may result for varied reasons, including, inter alia, the ineffectiveness of appellate counsel, as was the case in Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 373 (1976), or a procedural error committed by the lower court, such as the failure of the court to inform defendant of his appeal rights. Because most of the cases developing the law in the area of nunc pro tunc appeals arise within the context of ineffective appellate counsel claims, our opinion appears to deal with this subject almost exclusively; however, the impact and scope of this opinion is intended to be broader and more general, explaining the proper procedure to be utilized by a PCHA court faced with a claim asserting denial of appellate rights, for whatever reason, together with other claims properly raised.

       Pa.R.Crim.P. 323(i) provides the following:
      At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

       Pa.R.Crim.P. 323(h) provides the following:.
      The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. The defendant may testify at such hearing, and, if he does so, does not thereby waive his right to remain silent during trial.”

      . The firearms violations were dropped by the prosecution because the prosecution had misindicted appellant because the barrel length of the rifle was sixteen inches long. Under 18 C.P.S.A. § 6102, a rifle must have a barrel of less than 15 inches in order to fall within the Uniform Firearms Act, Act of December 6, 1972, P.L. 1482, No. 334, § 1 et seq., as amended. See Commonwealth v. Rapp, 253 Pa.Super. 31, 384 A.2d 961 (1978).

      . The prosecution did not address the merits of this issue because it contends that this issue also is waived because it was "not raised in appellant’s first post conviction petition and [has] been finally litigated.’’ Brief for the Prosecution at 10 n. 4. However, a deprivation of appellate rights does not operate as a waiver in this case, as previously ' discussed. See Commonwealth v. Miranda, supra.

      . It appears that appellant's father rents rooms on the 2nd floor to boarders, and that appellant’s father resides on the first floor of the building.
      Additionally, the record states that an individual also was arrested in appellant’s room on October 29, 1976; however, this individual was released when the police discovered that he was a visitor.