author: SPAETH, President Judge:

text:
    470 A.2d 115
    COMMONWEALTH of Pennsylvania v. Dwayne JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Dec. 16, 1983.
    Petition for Allowance of Appeal Granted March 26, 1984.

      John W. Packel, Chief Appeals Assistant Public Defender, Jeffrey P. Shender, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   SPAETH, President Judge:

This is an appeal from judgments of sentence for rape and related offenses. Appellant argues that the trial court erred in not granting use immunity to a proposed defense witness. The trial court held that only the Attorney General or a district attorney could request an immunity order, and that since here there had been no such request, no order could issue. This was error. The court itself, upon appropriate proof, had the power to grant immunity. We find, however, that the error was harmless, and therefore affirm.

The charges are based on an incident described at trial as follows: On July 1, 1980, at about 2:30 a.m., appellant and Daryl Jorden entered the residence of Kelly Mock and forced her at knife-point to go to the kitchen. Jorden held a hammer to her head and raped her, and then appellant raped her. As they were leaving the house, both Jorden and appellant were arrested.

After a common suppression hearing, on a motion by Jorden’s counsel the cases were severed. Appellant’s case was listed for trial first. At the trial, defense counsel asked the trial court to grant use immunity to Jorden. The court refused, the trial was held without Jorden testifying, and appellant was found guilty.

In support of its refusal to grant use immunity to Jorden, the trial court cited 42 Pa.C.S.A. § 5947(b), which provides:

(b) Request and issuance. — The Attorney General or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the Attorney General or district attorney:
(1) the testimony or other information from a witness may be necessary to the public interest; and
(2) a witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

In the court’s opinion, these provisions afford the only basis for an immunity order:

Since the request and issuance of immunity is within the judgment of the Attorney General and district attorney, neither the Court nor defense counsel may force the prosecutor to compel the testimony of a defense witness. Accordingly, the Court properly denied Defendant’s request for immunity.
Slip op. at 6.

Appellant relies on Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980). In Smith, a group of young men assaulted and robbed the victim of some money. A principal issue at trial was the identification of the assailants. One of the assailants, Ernesto Sanchez, made a statement to the police that he and three other men, who were nicknamed “Scotto”, “Mon”, and “Mouth”, were the assailants. This statement in effect exculpated three of the defendants, for they had different nicknames. However, when the defendants called Sanchez to testify, he invoked his Fifth Amendment privilege against self-incrimination. The defendants then tried to use Sanchez’s statement, but the court sustained the Government’s objection that it was unable to cross-examine Sanchez. The defendants then requested that Sanchez be granted immunity. The Virgin Islands Attorney General’s Office, which had exclusive jurisdiction over Sanchez because he was a juvenile, was willing to grant immunity if the United States Attorney consented. However, the United States Attorney did not consent, the trial proceeded without Sanchez’s potentially exculpatory testimony, and the defendants were convicted of robbery. On appeal, the Court of Appeals for the Third Circuit held that in some circumstances, a grant of immunity is required to ensure a fair trial. The Court discussed

two theories in which due process requires the testimony of defense witnesses to be immunized. When the court finds prosecutorial misconduct by the government’s deliberate intent to disrupt the factfinding process, it should order the government to grant statutory immunity to the defense witness or face a judgment of acquittal. In addition, even if there is no evidence of such prosecutorial misconduct, when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity, the court should grant judicial immunity to the witness in order to vindicate the defendant’s constitutional right to a fair trial.
Id. at 974.

Finding that on the facts before it, either theory might be available to the defendants, the court vacated the sentence and remanded for an evidentiary hearing to determine whether immunity should be granted.

Here, appellant does not argue that the trial court should have found prosecutorial misconduct, and on that basis should have ordered the prosecution to grant Jorden statutory immunity. Rather, appellant argues that the circumstances were such that in order to ensure a fair trial, the trial court itself should have granted Jorden judicial immunity. As already indicated,' the trial court held that it had no power to grant judicial immunity. The first issue we must decide, therefore, is whether this holding was correct.

The court in Smith drew a distinction between an order granting judicial immunity and an order requiring the government to grant statutory immunity:

First the need for “judicial” immunity is triggered, not by prosecutorial misconduct or intentional distortion of the trial process, but by the fact that the defendant is prevented from presenting exculpatory evidence which is crucial to his case. Second, the immunity granted is a court decreed immunity; it is not achieved by any order directed to the executive, requiring the executive to provide statutory immunity.
Id. at 969-970 (emphasis in original).

The court noted that it had previously hinted at the availability of a judicial grant of immunity. Specifically, in United States v. Herman, 589 F.2d 1191 (3d Cir.1978), cert. denied 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979) the court had stated:

But while we think that the court has no power to order a remedial grant of statutory immunity to a defense witness absent a showing of unconstitutional abuse, a case might be made that the court has inherent authority to effectuate the defendant’s compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense.
Id. at 1204 (emphasis added).

However, in Herman the court did not decide the issue of judicial immunity, for it had not been raised by the parties. When the issue was raised in Smith, the court held that in certain circumstances due process requires that a court grant immunity. It found support for its holding in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Thus the court, explained:

As we noted in Herman, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), albeit in a context different than immunity, furnishes strong support for the holding that immunity may be required for a defense witness if realistic meaning is to be given to a defendant’s due process right to have exculpatory evidence presented to the jury. 589 F.2d at 1204. In Chambers, the Supreme Court held that Mississippi’s strict adherence to its rules of evidence, which prevented the defendant, Chambers, from introducing trustworthy, exculpatory evidence, effectively denied Chambers a fair trial in accordance with the principles of due process. Chambers had sought to cross-examine a witness who had previously confessed to the same crime; he was prevented from doing so by the state’s evidence rule against a party impeaching his own witness. In addition, rigid application of Mississippi’s rule against hearsay prevented Chambers from introducing other informal admissions of the witness’ guilt which would have exculpated Chambers. The Supreme Court, recognizing the crucial importance of the excluded evidence, reversed Chambers’ conviction, holding that his due process right to present an effective defense had been violated. To remedy the constitutional deficiency found in Chambers, the Court required that Chambers be retried so that the exculpatory evidence, which he had originally been denied', could be admitted at the new trial. In this case the prima facie due process violation revealed by the record, i.e., the denial of exculpatory evidence to which [the defense witness] could testify, is not different in substance than the violation found in Chambers.
Government of Virgin Islands v. Smith, supra at 970 (footnote omitted).

Furthermore, the court noted, a new trial

would be insufficient to remedy the constitutional infringement which may have occurred here. Any remedy in the present case must take into account the fact that a retrial would be meaningless unless the evidence in issue may be compelled. That compulsion can only be accomplished in the context of a case such as the instant one, by granting immunity to a defense witness, once it is established, however, that the conditions for such a remedy have been satisfied.
Id. at 971.

We are aware that there is a considerable division of opinion on whether a court does have inherent power to grant use immunity. The United States Supreme Court has not decided the issue, and the circuit courts have divided at least three ways, the Third Circuit, in Smith, finding the power; other circuit courts denying existence of the power; and still others holding that on the facts before them, immunity was properly denied, while leaving open whether on other facts immunity might have been granted. See United States v. Thevis, 665 F.2d 616, 638-39 (5th Cir.) cert. denied Evans v. United States, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303; cert. denied Hood v. United States, 458 U.S. 1109, 102 S.Ct. 3489, 73. L.Ed.2d 1370; cert. denied Thevis v. United States, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982) (collecting cases). We are nevertheless persuaded by the reasoning of Smith; in any event, we are probably bound by it, for as stated by our Supreme Court in Commonwealth v. Negri, 419 Pa. 117, 122, 213 A.2d 670, 672 (1965), overruled on other grounds, Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1966):

While recognizing that in cases involving federal questions the Supreme Court of the United States is the ultimate arbiter, in view of the widespread confusion in this area of the law and the failure of the Supreme Court to clarify it, the decision of the Third Circuit Court of Appeals is on this matter, for all practical purposes, the ultimate forum in Pennsylvania. If the Pennsylvania courts refuse to abide by its conclusions, then the individual to whom we deny relief need only to “walk across the street” to gain a different result. Such an unfortunate situation would cause disrespect for the law. It would also result in adding to the already burdensome problems of the Commonwealth’s trial courts, which look to us for guidance. Finality of judgments would become illusory, disposition of litigation prolonged for years, the business of the courts unnecessarily clogged, and justice intolerably delayed and frequently denied.
Consequently, in order to alleviate and correct a regrettable situation, the clear indication for this Court is to accept and follow the decision of the Third Circuit on this matter until some further word is spoken by the Supreme Court of the United States.

We therefore hold that the trial court did have inherent power to grant appellant’s request that Jorden be granted use immunity. The conclusion follows that in holding that it had no such power, but could only grant immunity pursuant to 42 Pa.C.S.A. § 5947(b), the trial court erred.

This conclusion, however, is not dispositive. For the issue remains whether the trial court should have exercised the inherent power that we have held it had. If it should not have exercised the power, its error in believing that it did not have the power was harmless.

The issue whether a trial court should exercise its inherent power to grant use immunity was considered at some length in Smith. The court in Smith recognized, as have other courts, see United States v. Thevis, supra, and cases there cited, that the decision whether to grant immunity might well involve balancing conflicting considerations:

Frequently, the government will have a legitimate interest in prosecuting the very witness whom the defendant seeks to immunize. But this does not mean that no accommodation can be reached between the government’s interest as prosecutor and the defendant’s constitutional right to present an effective and entire case.
Government of Virgin Islands v. Smith, supra, at 973.

“In many instances”, the court said, a grant of use immunity to the proposed defense witness would be “virtually costless,” for the government would have already assembled the evidence necessary to prosecute the witness. Id. Or the government might be able otherwise to protect its interest, as, for example, by postponing the defendant’s trial until it had completed assembling its evidence against the witness. However,

where the government either rebuts the defendant’s showing [of need to call the witness] or establishes that the public interest would be disserved by a grant of immunity to a defense witness or that such grant would entail significant costs to it, it would be appropriate for the immunity application to be denied.
Id.

Summarizing its decision, the court stated:

We hold that, in cases when the government can present no strong countervailing interest, a' court has inherent authority to immunize a witness capable of providing clearly exculpatory evidence on behalf of a defendant who has met our stated conditions.
Id. at 973-74.

On the facts before it, the court in Smith concluded, as we have already noted, that the judgments of sentence should be vacated and the case remanded for an evidentiary hearing on whether a grant of judicial immunity was required to ensure the defendants’ right to a fair trial. Even those who have disagreed with the court’s reasoning in Smith have agreed with the result. See United States v. Turkish, 623 F.2d 769, 777 (2d Cir.1980). And indeed, it would be difficult not to agree, for the government’s conduct, at least as the record stood and without further explanation, was shocking: the witness the defense sought to have immunized had given the police a statement that three of the defendants had not participated in the crime; the government had objected to the use of this statement at trial; it hád refused to permit defense counsel to interview the witness; and finally, it had no power to prosecute the witness, although the Attorney General of the Virgin Islands, who did have the power, had no objection to the witness being immunized. Given these facts, it is not surprising that the court in Smith held that “it appears from the record that the United States Attorney would have little claim to any governmental interest in approving a grant of immunity to [the witness].” Id. at 974. Here, however, the facts are very different.

In the first place, appellant’s claim that if Jorden were immunized his testimony would exculpate appellant, is at least suspect. In requesting that Jorden be immunized, appellant’s counsel stated that:

Daryl Jorden will testify that, in fact, he did not rape her, that, in fact, any sexual contact between the parties was consen[s]ual, that no rape took place, nor was there any implement usage [sic] of an instrument of crime, any assault, or any threats, which I believe are the current outstanding charges. And, of course, no conspiracy to commit any of these crimes.
N.T. 26 (4/20/81).

However, the record discloses that appellant gave a statement to the police in which he said, among other things:

My cousin had Pat call her [the victim] downstairs, and when she came down my cousin had a knife out. I took the knife from him but he grabbed a hammer which was on the living room table and pulled the girl from the living room where we was to the kitchen where it was dark. I had given Daryl [Jorden] the knife back before he took the girl out, because I wasn’t going to fight him. Pat went back upstairs. I left the house then and the cops stopped me as I was crossing the street. They got Daryl as he came out behind me. Daryl put the knife in the stretcher of the wagon that brought us down here. I didn’t touch that girl____ I couldn’t see what Daryl was doing with the girl in the kitchen because it was dark.
N.T. 223-24 (4/15/81).

Thus, in Smith the witness that the defendant asked be immunized had given a statement to the police exculpating the defendant. But here the record does not disclose what the witness — Jorden—would testify; it only discloses what appellant’s counsel said he would testify, and that offer, while outlining testimony that would exculpate appellant, described the incident in a manner inconsistent with appellant’s own description of it. At the hearing on the immunity request, the trial court, although concluding that it had no authority to grant immunity, nevertheless considered appellant’s request. The court found that “[t]he testimony sought through th[e] requested grant of judicial use immunity ha[d] not been shown to be clearly exculpatory or essential in any case.” N.T. 46 (4/21/81). We agree with that finding.

In the second place, the witness in Smith and the witness here were in very different positions. In Smith, as already noted, not only had the witness not been charged but he could not be, since he was a juvenile within the exclusive jurisdiction of the Attorney General of the Virgin Islands. Here, Jorden was appellant’s co-defendant, who was to be tried with appellant, until the cases were severed. Thus, had Jorden been immunized, the prosecution of appellant might have been made more difficult, for Jorden, encouraged by his immunization, might have given false testimony, with the result that appellant might have been acquitted. In addition, the prosecution of Jorden might have been made more difficult, for if appellant were acquitted, he might have felt free to testify on Jorden’s behalf at Jorden’s trial. As the trial court stated:

[T]he witness in question is an indicted co-conspirator who would, were immunity to be granted, be in a position to testify in any manner he chose to whatever effect he chose without fear of the consequences and thus be aided by the Court in possible efforts to aid and abet his co-conspirator in thwarting the ends of justice.
N.T. 46 (4/21/81).

The court in United States v. Thevis, supra, addressed this problem of possible abuse by co-defendants, should a grant of judicial immunity issue. Upholding a trial court’s refusal to grant immunity, the court said:

The incentive for abuse is strong given that the witness, because of immunity, is in no worse a legal position for having testified, and because of the heavy burden on the government to prove lack of taint, the witness in practice may improve his legal position.
Nor are we convinced that perjury prosecutions are an adequate deterrent. Successful perjury prosecutions are not common, and in many cases the penalty for the substantive crime will far surpass perjury penalties. 665 F.2d at 640 n. 27.

Thus, the court said:

Whatever may be gained in fairness in a particular trial in which true exculpatory evidence may be obtained only through judicial use immunity, therefore, may well be lost through the subsequent effect of abuse on the integrity of the judicial process as a whole.
665 F.2d at 640.

Given the differences between the record in Smith and the record here, we are satisfied that the court in Smith would conclude, were this case before it, that appellant was not entitled to have Jorden immunized. As we have noted, the court in Smith held that “it would be appropriate for the immunity application to be denied” if the record “establishes that the public interest would be disserved by a grant of immunity to a defense witness or that such grant would entail significant costs to [the prosecution].” 615 F.2d at 973. Here, the uncertainty as to what Jorden would testify, taken with the fact that he was himself a co-defendant, does establish, in our opinion, that the public interest would be disserved by granting him judicial immunity.

We recognize that in Smith the court remanded for a hearing on whether judicial immunity should have been granted. However, we see no need for a remand here, for the trial court has already held a hearing on appellant’s request. Moreover, appellant does not request a remand for a hearing, instead asking that we ourselves “order a new trial with use immunity being conferred on the witness Daryl Jorden.” Brief for Appellant at 18. We assume, therefore, that appellant has already offered of record all he can. Since, as we have held, that offer was inadequate to justify a grant of immunity, we are in a position to decide the appeal now.

Affirmed.

      . .Use immunity is the "immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom ..." Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 rehearing denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972). A witness granted use immunity may not plead the Fifth Amendment. Id.

      . The Constitutional right involved in Smith was not the Sixth Amendment right to compulsory process but the Fourteenth Amendment right to due process of law. However, a strong argument can be made that the right to compulsory process includes the right to compel the testimony of a defense witness over the witness’s claim of privilege. See: Note: The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv.L.Rev. 1266 (1978); Westen, Compulsory Process, 73 Mich.L.Rev. 71, 168 (1974) ("The constitutional right of the accused to obtain immunity for his witnesses falls squarely within the language and purpose of the compulsory process clause.”); McCormick on Evidence § 143 at 308 (2nd ed.) ("It is certainly arguable that without the right to have immunity granted a defendant lacks 'compulsory process for obtaining witnesses in his favor’ guaranteed by the Sixth Amendment.”) But see: United States v. Turkish, 623 F.2d 769 (2d Cir.1980), cert. denied 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981). (Sixth Amendment compulsory process does not include right to have immunity granted to defense witnesses); United States v. Trejo-Zambrano, 582 F.2d 460 (9th Cir. 1978), cert. denied sub. nom. Fierro-Soza v. United States, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1979) (same); United States v. Smith, 542 F.2d 711 (7th Cir.1976) (same). See generally: 4 A.L.R.4th 617, "Right of Defendant in Criminal Proceedings to Have Immunity from Prosecution Granted to Defense Witnesses".

      . The Third Circuit cases cited by the Commonwealth, United States v. Rocco, 587 F.2d 144 (3rd Cir.1978) cert. denied sub nom. La Duca v. United States, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979), and United States v. Niederberger, 580 F.2d 63 (3rd Cir.1978) cert. denied 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978), are distinguished in Smith. See: Government of Virgin Islands v. Smith, supra at 972 n. 11.

      . We may note in passing that while Smith is based on the right to due process guaranteed by the United States Constitution, the same right is guaranteed by the Pennsylvania Constitution, which provides:
      In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him ... nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.
      Pa. Const. Article I, Section 9.
      And in Commonwealth v. Devlin, 460 Pa. 508, 514, 333 A.2d 888, 891 (1975), the Court stated:
      It has been a long-standing tenet of Pennsylvania jurisprudence that "the law of the land” in Article I, Section 9 is synonymous with “due process of law.” See, e.g., Commonwealth v. Jackson, 457 Pa. 79, 319 A.2d 161 (1974); Craig v. Kline, 65 Pa. 399, 413 (1870). Thus, we have held that the State Constitution is violated where the defendant is substantially denied an opportunity to present a defense. Commonwealth v. Jester, 256 Pa. 441, 100 A. 993 (1917).


source: Caselaw Access Project

license: Public Domain

text:
    470 A.2d 122
    COMMONWEALTH of Pennsylvania v. Robert Elwood LAURENSON, II, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Dec. 16, 1983.

      George Edward Lepley, Jr., Public Defender, Williams-port, for appellant.
    Kevin H. Way, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before SPAETH, President Judge, HESTER and LIPEZ, JJ.
   SPAETH, President Judge:

This is an appeal from judgments of sentence. Two informations were consolidated for trial, and on October 6 through 9, 1981, appellant was tried before a jury. In case No. 81-10,200 (McLaughlin case) appellant was found guilty of burglary, rape, involuntary deviate sexual intercourse, terroristic threats and simple assault. In case No. 81-10,-432 (Cooper case) appellant was found guilty of rape, burglary and terroristic threats. On December 21, 1981, appellant was sentenced to a total of 21 to 42 years imprisonment. We affirm.

Prior to trial the Commonwealth filed a motion to consolidate the Cooper and McLaughlin cases. Appellant then filed an omnibus pretrial motion, in which he moved to suppress his statement to the police; to suppress any in-court identification of him by Mrs. McLaughlin; to suppress certain real evidence seized by the police; for a change of venue or, in the alternative, a change of venire; and for individual voir dire. Following hearings on August 6, 10, and 24, 1981, the trial court by opinion and order dated September 23, 1981, granted the Commonwealth’s motion to consolidate; denied appellant’s motions to suppress; denied appellant’s motion for a change of venue or venire; and granted appellant’s motion for individual voir dire. On appeal, appellant argues that the trial court erred in granting the Commonwealth’s motion to consolidate and in denying his several motions to suppress and his motion for a change of venue or venire. He also argues that his trial counsel was ineffective.

1

Appellant argues that the Cooper and McLaughlin cases were not sufficiently similar to warrant consolidation, and that he was unduly prejudiced by the consolidation.

Whether to consolidate the informations was a decision within the discretion of the trial court, and the decision will not be reversed absent an abuse of discretion. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Larkins, 302 Pa.Super. 528, 449 A.2d 42 (1982). Consolidation is proper if the facts of each offense are easily separable, and evidence of one offense would have been admissible in a separate trial for the other offense. Commonwealth v. Morris, supra; Commonwealth v. Larkins, supra; Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982); Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982); Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981).

The Cooper case involved an attack on Mrs. Cooper, 24 years old, in her home between 6:30 and 7:00 a.m. on November 25, 1980. The assailant slit the screen and forced open a cellar window to enter the home. Mrs. Cooper was in bed asleep at the time. The assailant used the victim’s robe to cover her face and thereby hide his identity. The assailant had a strange voice. His speech was mumbled and garbled and hard to understand. He weighed approximately 150 pounds. He threatened the victim verbally and with the use of a knife or sharp object. He penetrated the- victim and performed oral sex on her.

Following the attack, it was found that light bulbs in the bathroom adjacent to the victim’s bedroom had been removed and placed in the waste basket. Boot impressions were found in the cellar and in the yard. In addition, a small hunting knife was found in the yard.

The McLaughlin case involved an attack on Mrs.' McLaughlin, 30 years old, in her home at approximately 7:00 a.m. on February 20, 1981. The assailant entered the home as Mrs. McLaughlin opened the front door to leave for work with her daughter. The assailant opened the door and pushed the victim back into the house. The assailant forced the victim to the couch and told the daughter to go upstairs. His voice was deep and raspy and hard to understand. The assailant threatened the victim verbally, and with a cold, thin, metal object. The assailant pulled the victim’s coat over her head, attempting to hide his identity. He penetrated her and forced her to perform oral sex on him. The victim started to fight, there was a knock on the door, and the assailant fled. He wrestled with Officer Albright on the front lawn and then ran away.

Following the attack, it was found that the screen on a rear window of the house had been slit and entry attempted through the window. The globe on an outdoor light near the window was cracked and the bulb unscrewed. Boot impressions were found on the victim’s coat and in the yard. Leather gloves were found on the coffee table and a small knife was found on the couch. The assailant’s knit ski hat was found in the front yard.

The homes of the two victims were approximately five blocks apart. The tread of a pair of boots later taken from appellant’s home was similar to the impressions found at each of the victims’ homes.

Appellant identified the items found at Mrs. McLaughlin’s home as his, and he gave a statement to the police implicating himself in the attack on Mrs. McLaughlin. Appellant was also identified by Mrs. McLaughlin as her assailant.

Mrs. Cooper did not see her assailant ánd did not identify appellant. In addition, appellant denied having attacked Mrs. Cooper, and said that he was at home in bed at the time.

Given these facts, we hold that the trial court did not abuse its discretion in consolidating the two informations for trial. With respect to the first factor to be considered in determining the propriety of consolidation, the facts of each offense were easily separable and involved no complicated fact situations that could lead to confusion. The primary issue in each case was the identification of the assailant. With respect to the second factor, evidence of either one of the offenses would have been admissible to show appellant’s modus operandi in a separate trial for the other. While as a general rule, evidence of other crimes committed by a defendant is not admissible, see Commonwealth v. Morris, supra, such evidence is admissible for certain limited purposes, one of which is to prove the defendant’s identification, id. Evidence of a defendant’s modus operandi is admissible to prove identification if there is “such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.” Commonwealth v. Morris, 493 Pa. at 176, 425 A.2d at 721. Here, this standard was met. The offenses were committed approximately three months apart in homes approximately five blocks apart; both were committed between approximately 6:30 and 7:00 a.m.; both were committed in the victim’s home; in both cases a screen was slit and entry made or attempted through a window; in both cases the victim was threatened verbally and with a knife; in both cases the assailant covered the victim’s face; both victims were forced to engage in oral sex; in both cases the assailant spoke in a strange voice and was difficult to understand; and the boot prints found in both cases were similar. Given the variety of circumstances in which rape is committed, the similarities in these two cases make it very unlikely that the rapes were committed by different persons. See Commonwealth v. Morris, supra (consolidation proper: two robberies, five days apart, committed in elevators located in.adjoining buildings, between 6:30 and 7:00 p.m., each victim was woman with small children, assailant searched underclothing of each victim); Commonwealth v. Larkins, supra (consolidation proper: all three offenses occurred in early morning hours within three mile area, all victims were attacked from behind, each assailant wore leather gloves, methods of assault were similar, each victim’s purse was taken, two of stolen purses were found in defendant’s apartment); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981) (evidence of prior offenses properly admitted: all involved inmate in county jail being invited to sheriff’s quarters and offered alcohol, appellant then made sexual advances to each inmate, and sexual activity was always of some variety); Commonwealth v. King, supra (consolidation proper: both offenses involved use of same scheme to gain access to victim).

Even if an exception to the rule against admitting evidence of other crimes applies, before admitting the evidence the court is required to determine that its probative value outweighs any prejudice to the defendant. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977); Commonwealth v. Claypool, 317 Pa.Super. 320, 464 A.2d 341 (1983); Commonwealth v. Taylor, supra; Commonwealth v. Booth, supra; Commonwealth v. King, supra. Appellant contends that he was prejudiced by the consolidation because he confessed and was identified in the McLaughlin case, but denied that he was the assailant in the Cooper case. This contention is without merit. As noted, the facts of each offense are easily separable and involved no complicated fact situations. The jury could easily have found appellant guilty in the McLaughlin case but not guilty in the Cooper case if it had believed appellant’s alibi defense in the Cooper case.

2

Appellant argues that his recorded statement, played at trial, was involuntary, and therefore should have been suppressed, because of the large volume of alcohol and drugs he had consumed during the 24 hours prior to giving the statement. He also argues that his trial counsel was ineffective for failing to introduce at the suppression hearing available expert testimony regarding the effect that the consumption of this volume of alcohol and drugs would have had on him.

The Commonwealth bears the burden of showing by a fair preponderance of the evidence that a statement was voluntary. Commonwealth v. Smith, 487 Pa. 626, 410 A.2d 787 (1980). In reviewing a trial court’s determination that a statement was voluntary, we will consider only the prosecution’s evidence and so much of the defense’s evidence as remains uncontradicted, and we will not disturb the trial court’s findings if • they are supported by the record. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). Factors to be considered in determining whether a statement was voluntary include: the age of the defendant; his education; his intelligence; his physical state; the duration and method of interrogation; the conditions of detention; and the advice given to him concerning his constitutional rights. Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981).

Appellant was taken to the police station at approximately 12 noon. He first made an incriminating statement at approximately 1:00 or 1:30 p.m. and his statement was recorded at approximately 3:00 or 3:15 p.m. Hearing Transcript [H.T.] 246-47.

Appellant testified at the suppression hearing that during the 24 hour period preceding the interrogation he consumed approximately 19 marijuana cigarettes, a quart of wine, several tablets of “speed,” four or five bottles of beer, and two tablets of LSD. H.T. 430-36. He also testified that he had had no sleep during this time. H.T. 428.

Countering appellant’s testimony was the testimony of several prosecution witnesses. Two of appellant’s fellow employees testified that they saw appellant on the morning of February 20, 1981, before he was taken to the police station for interrogation, and that he did not appear intoxicated. H.T. 105, 129. A police officer who saw appellant at this time also testified that he did not appear intoxicated. H.T. 159. A police officer who participated in questioning appellant at the police station testified that although appellant appeared tired, he appeared coherent and rational. H.T. 256. Another officer who participated in the questioning testified that appellant did not appear intoxicated and that although he appeared tired, he was very coherent and alert. H.T. 303, 335-36. Finally, the District Attorney was present at the taping of the statement and he testified that appellant did not appear intoxicated. H.T. 411.

Prosecution witnesses testified, and appellant acknowledged, that he was offered soda, coffee and sandwiches during the course of the questioning. H.T. 269, 287, 445.

In addition, appellant was advised of his Miranda rights at three different times. Appellant was advised of his rights before being taken to the police station, and said he understood his rights and was willing to talk. H.T. 153-54. Appellant was again advised of his rights upon arrival at the station and at that time signed a card waiving his rights. H.T. 232-33. Finally, appellant was advised of his rights before his statement was recorded, and again said that he understood his rights, and also, that he was willing to have his statement recorded. H.T. 292, 485-88.

Before he gave any statement, appellant was repeatedly told that he was free to leave. H.T. 253, 296. Appellant acknowledged this, and said'that he wanted to stay to get things cleared up. H.T. 444.

Further, there was no evidence that appellant was tricked into making a statement or physically coerced. Appellant was not handcuffed or restrained in any way. H.T. 237, 287.

Considering the above evidence, we hold that the trial court’s finding that appellant’s statement was voluntary is supported by the record. Cf. Commonwealth v. Cruz, supra (sufficient evidence to uphold finding of voluntariness — four Commonwealth witnesses testified appellant did not appear intoxicated).

As we have mentioned, appellant also argues that his trial counsel was ineffective for failing to introduce available expert testimony regarding the effect the alcohol and drugs he allegedly consumed would have had on him. This argument is also without merit. Expert testimony is not necessary to prove intoxication. See Commonwealth v. Guiliano, 274 Pa.Super. 419, 418 A.2d 476 (1980) (lay witness may give opinion as to intoxication drawn from observation — evaluation of blood test requires expert testimony). In addition, the trial court’s determination that the statement was voluntary rested on the competent testimony of several prosecution witnesses who had observed appellant and testified that he did not appear intoxicated. Since the trial court did not believe appellant’s testimony, its findings would not have been altered by expert testimony, which would have been based on the assumption that the facts to which appellant testified were true.

3

Appellant also argues that the consent that he gave, while he was being questioned, to the search of his house was also involuntary. We reject this argument for the reasons stated above. See Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979) (voluntariness of consent to search to be determined by totality of circumstances, with great deference to trial court’s decision, given its opportunity to observe witnesses and assess credibility).

4

Appellant also argues that the trial court erred in allowing Mrs. McLaughlin to make an in-court identification of him because, he says, this identification was tainted by Mrs. McLaughlin having viewed him at the police station in suggestive circumstances.

It will be recalled that Mrs. McLaughlin was attacked at approximately 7:00 a.m. on February 20, 1981. That afternoon, a police officer requested that she go to the police station to identify some articles of evidence. Her brother drove her to the station; she was also accompanied by her sister. Upon arriving at the station, Mrs. McLaughlin asked what had been done with the man being held because she did not want to see him. She was told that he had been taken care of and not to worry. Mrs. McLaughlin was led upstairs, where she identified the articles. She was departing with her brother and sister when, through an . open door at the end of the hallway, she saw appellant sitting at the end of a table. She immediately told her sister that he was her assailant. H.T. 22-27. The District Attorney testified that at approximately 1:30 p.m. Sergeant Peterson had called about bringing Mrs. McLaughlin to the station for a show-up, but that he had told the sergeant not to do this because it was not close enough to the crime. H.T. 407. Mrs. McLaughlin’s sister testified that they were assured by a police officer that the assailant was not in the station. H.T. 70.

We will not disturb the trial court’s finding that Mrs. McLaughlin’s viewing appellant at the police station was not so suggestive as to taint any subsequent identification. There is no evidence that the viewing was contrived by the police. In fact, the District Attorney advised against a showup. In addition, the victim was advised that the assailant was not in the station so that she did not expect to see him there. Finally, the evidence shows that appellant was not handcuffed or restrained in any way. See Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978) (spontaneous identification of defendant while in custody of police in police station not improper when incident was accidental and not contrived); Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972) (uncontrived, spontaneous identification by victim of defendant while handcuffed and sitting on bench in police station not unduly suggestive and not violation of due process); Commonwealth v. Fucci, 251 Pa.Super. 156, 380 A.2d 425 (1977) (inadvertent, uncontrived identification by police officer of defendant at police station not suppressed).

The trial court also found that even if Mrs. McLaughlin’s police station identification of appellant was tainted, the prosecution had established by clear and convincing evidence an independent basis for her in-court identification of him. An in-court identification may be admitted if the court finds that despite the taint, other factors make the in-court identification reliable. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); overruled in part on other grounds, Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). A general statement of the factors that may be relevant is as follows:

“(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the [out-of-court] identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.”
Commonwealth v. Slaughter, supra, 482 Pa. at 546, 394 A.2d at 457 (quoting United States v. Higgins, 458 F.2d 461 (3d Cir.1972)).

Consideration of these factors in this case shows that Mrs. McLaughlin’s in-court identification of appellant was reliable and properly admitted. Mrs. McLaughlin was able to observe her assailant’s face from the bottom of his nose to the top of his eyebrows for two to three minutes during the attack, and his full face for three to four minutes while he scuffled with Officer Albright on her front lawn following the attack. H.T. 37, 40-41, 44. In addition, Mrs. McLaughlin identified appellant’s picture following the attack and before going to the police station. H.T. 62. Finally the viewing at the police station occurred on the same day as the attack, and as discussed above, was not unduly suggestive.

5

Appellant’s last argument is that the trial court erred in not granting his motion for change of venue or venire. This argument is without merit. Appellant failed to introduce any evidence of the extent or nature of the publicity regarding the case. Appellant’s girlfriend testified that the last statements she had heard regarding the case were approximately five months before the suppression hearing. H.T. 518. The Chief of Police testified that he had never heard any comments made against appellant. H.T. 520. The record therefore was empty of any evidence in support of appellant’s motion for a change of venue or venire.

In this regard, appellant argues that his trial counsel was ineffective for failing to introduce into evidence at the suppression hearing copies of prejudicial newspaper, radio and television publicity in support of his motion for a change of venue or venire. The record does indicate that trial counsel had originally intended to introduce such evidence. H.T. 520-21. We are unable to determine from the record the reason for counsel’s decision not to introduce it. It may be, as the Commonwealth contends, that any adverse pretrial publicity had dissipated by the time of trial. It may also be, however, that counsel simply did not take the time or make the effort to procure the evidence. We cannot tell from the record.

There is no need, however, to remand for an evidentiary hearing on this issue. As has been noted, although the trial court denied appellant’s motion for a change of venue or venire, it granted his motion for individual voir dire. During voir dire each prospective juror who said he or she knew anything about the case, either through personal knowledge, discussion with others or the news media, was individually questioned by the court. If the person questioned indicated any doubt regarding his or her impartiality, he or she was stricken for cause. In addition, appellant’s trial counsel and counsel for the Commonwealth were given the opportunity to question each prospective juror who had not been excused after questioning by the court. Of 80 prospective jurors, 19 were stricken for cause, 7 were stricken upon defense counsel’s peremptory challenge, and 5 were stricken upon the Commonwealth’s peremptory challenge. Appellant does not allege and the record does not indicate that this procedure was inadequate to protect his right to a fair and impartial trial or that any juror who served was in any way prejudiced against him. Absent any allegation of prejudice resulting from counsel’s alleged ineffectiveness, appellant is not entitled to an evidentiary hearing regarding the basis for counsel’s actions. Cf. Commonwealth v. Metzger, 295 Pa.Super. 267, 441 A.2d 1225 (1981) (counsel not ineffective for withdrawing motion for change of venue after defendant entered plea of guilty — no basis for believing judge would not be impartial). See also Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980) (in order to prevail on theory of ineffective assistance of counsel on direct appeal, appellant must show act or omission arguably ineffective and also likelihood that he was prejudiced thereby); Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978) (same).

The judgments of sentence are affirmed.

      . This standard is now codified in Pa.R.Crim.P. 1127(l)(a), effective July 1, 1982.

      . Appellant also argues that the statement should have been suppressed because when he waived his Miranda rights, he was not aware of the nature of the investigation. This issue was not raised below and therefore is waived. Pa.R.A.P. 302(a).


author: WIEAND,' Judge: SPAETH, Judge,

text:
    470 A.2d 130
    COMMONWEALTH of Pennsylvania v. Bobby AYCOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1983.
    Filed Dec. 16, 1983.

      George T. Guarnieri, Philadelphia, for appellant.
    Leslie Sudock, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND,' Judge:

Bobby Aycock was tried non-jury and found guilty of aggravated assault and possession of an instrument of crime. On direct appeal from the judgments of sentence, Aycock argues (1) that the evidence was insufficient to sustain the convictions, (2) that trial was held in violation of Pa.R.Crim.P. 1100, and (3) that trial counsel was ineffective (a) for failing to call appellant or other witnesses on behalf of the defense and (b) for arguing post-verdict motions orally at the conclusion of the trial instead of filing written post-trial motions. We agree that the evidence was insufficient to sustain the conviction for possessing an instrument of crime. Appellant’s remaining contentions, however, are lacking in merit.

After Aycock had been found guilty, the trial court advised him of his right to file post-trial motions. One of the options available to him was the right to file oral, post-trial motions immediately. See: Pa.R.Crim.P. 1123(b). After appellant and his trial counsel had conferred, a decision was made to “go ahead with oral post verdict motions right now.” The court thereupon heard immediate argument. This procedure was sufficient to preserve for appellate review the issues which appellant argues in this court. See: Commonwealth v. Lewis, 315 Pa.Super. 328, 330-31 n. 5, 461 A.2d 1305, 1306 n. 5 (1983); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 245 n. 1, 441 A.2d 750, 751 n. 1 (1981). The use of oral post-verdict motions has been encouraged by the express language of Pa.R.Crim.P. 1123(b); and counsel will not be deemed ineffective for using authorized procedure. In this case, moreover, appellant had been instructed by the court, had conferred with counsel, and had consented affirmatively to proceed with oral motions. Cf. Commonwealth v. Lewis, supra. Appellant’s argument that trial counsel was ineffective for proceeding by oral post-trial motions, therefore, must be rejected.

In reviewing a challenge to the sufficiency of the evidence, our task is to determine whether, “ ‘accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [fact finder] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.’ ” Commonwealth v. Minoske, 295 Pa.Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983).

“Aggravated assault is committed when a person ‘attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.’ 18 Pa.C.S.A. § 2702(a)(1).” Commonwealth v. Williams, 290 Pa.Super. 209, 215, 434 A.2d 717, 720 (1981).

The evidence in this case showed that Aycock had used a piece of channel steel, approximately eighteen inches in length, to strike Melvin Anthony Lee, a fellow desk fabricator at Metal Stand Corporation in Philadelphia, on the head and back while holding Lee on the floor with his foot. As a result of this assault, which ended when other employees intervened, Lee sustained cuts of the head requiring twenty-seven sutures.

This evidence was sufficient to show an aggravated assault. In Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980), a conviction for aggravated assault was affirmed where head injuries inflicted by a tire iron had required nine sutures. Such evidence, the Court concluded, was “sufficient to support an inference that [the defendant] attempted to cause serious bodily injury____” Id., 278 Pa.Superior Ct. at 545, 420 A.2d at 675. See also: Commonwealth v. Glover, 303 Pa.Super. 229, 235-236, 449 A.2d 662, 665 (1982), aff'd, 500 Pa. 524, 458 A.2d 935 (1983); Commonwealth v. Galloway, 302 Pa.Super. 145, 153, 448 A.2d 568, 572 (1982). Although Aycock argues, as he did at trial, that he was acting in self-defense, this issue was clearly for the trier of the facts under all the evidence presented by both parties. See: Commonwealth v. Galloway, supra; Commonwealth v. Cutts, 281 Pa.Super. 110, 421 A.2d 1172 (1980); Commonwealth v. Jones, 231 Pa.Super. 300, 332 A.2d 464 (1974). The existence of a longstanding animosity between the two men and a heated dispute on the prior day, although relevant, did not compel a finding that Lee was the aggressor at the time of the alleged assault.

We agree with appellant, however, that the piece of channel steel used to strike Lee was not an “instrument of crime,” the possession of which was proscribed by 18 Pa. C.S. § 907(a). This drawer channel was neither “commonly used” nor “specially adapted” for criminal purposes. See: 18 Pa.C.S. § 907(c). Therefore, it was not an instrument of crime. See: Commonwealth v. Cavanaugh, supra 278 Pa.Super. at 545, 420 A.2d at 675; Commonwealth v. Short, 278 Pa.Super. 581, 596-597, 420 A.2d 694, 701-702 (1980); Commonwealth v. Hill, 267 Pa.Super. 140, 406 A.2d 558 (1979); Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979); 18 Pa.C.S. § 907(c).

Although appellant’s conviction for possession of an instrument of crime must be set aside, it does not appear that the invalid conviction influenced the sentence imposed for aggravated assault. The sentences imposed were concurrent. Therefore, we find it unnecessary to remand to the trial court for resentencing. See: Commonwealth v. Short, supra 278 Pa.Super. at 598, 420 A.2d at 702; Commonwealth v. Senyszyn, supra.

The complaint in this case was filed on January 6, 1980. The run date under Pa.R.Crim.P. 1100, therefore, was July 3, 1980. On January 16, 1980, a Commonwealth witness failed to appear, and the preliminary hearing was continued. On February 14, 1980, the appellant failed to appear until after the continued preliminary hearing had been called and postponed once again. A third continuance of the preliminary hearing became necessary when, on March 20, 1980, a subpoenaed Commonwealth witness failed to appear. The preliminary hearing was finally held on April 8, 1980, after which the charges were returned to court. Appellant was arraigned on April 22, 1980, and trial was set for May 28. On that day, the defense filed a pre-trial omnibus motion and requested a continuance. On June 26, 1980, appellant waived Rule 1100 until August 26, 1980; and trial was rescheduled for August 19, 1980. On August 19, the Commonwealth was ready to proceed. The trial judge, however, was unable to reach the case; and at or about 3:30 p.m., the case was marked “Ready — Not reached” and given a new trial date of September 10, 1980. The Commonwealth promptly filed an extension petition on August 21, 1980. This was heard and granted by the Honorable Ned L. Hirsch on September 3, 1980. The record of that hearing confirms that it was judicial delay and not a lack of due diligence which prevented the trial from being held on August 19, 1980. It also establishes that September 10, 1980 was the earliest available date for trial. Finally, the record of the extension hearing confirms that when, on August 19, the trial had been assigned the new date of September 10, neither appellant nor his counsel voiced any objection thereto. Under these circumstances, the extension was properly granted. Appellant’s argument to the contrary is without merit. See: Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981); Commonwealth v. Sutherland, 305 Pa.Super. 1, 5-6, 451 A.2d 1, 3 (1982).

Appellant does not challenge the validity of waivers executed by him on two subsequent occasions. On September 10, 1980, trial was continued upon request of both parties, and appellant waived Rule 1100 until November 21, 1980. A similar request and waiver on November 14, 1980 resulted in a final continuance until January 21, 1981. The trial took place on January 14, 1981.

Appellant’s next contention is that trial counsel was ineffective for failing to put appellant on the stand to testify in his own behalf. When considering this claim, we review independently the record and examine counsel’s stewardship in light of available alternatives. However, the inquiry ceases and counsel will be deemed effective once we are able to conclude that counsel’s actions had a reasonable basis designed to effectuate his or her client’s interests. The test is not whether it appears in retrospect that another course of action would have been more successful. Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-353 (1967); Commonwealth v. Nelson, 311 Pa.Super. 1, 11-12, 456 A.2d 1383, 1388 (1983); Commonwealth v. Carroll, 306 Pa.Super. 152, 156 n. 2, 452 A.2d 260, 262 n. 2 (1982); Commonwealth v. Sutherland, supra 305 Pa.Super. at 3-4, 451 A.2d at 2.

The record discloses, as appellant contends, that trial counsel did suggest to appellant that he not testify. However, it also reveals that appellant participated in the decision and agreed with it. He did not express dissatisfaction with that decision until after the trial court had found him guilty. Whether appellant should have testified after the complainant had made what were perceived to be damaging admissions on cross-examination was a matter of trial strategy to be decided by appellant and his counsel. Where, as here, the trial strategy recommended by counsel was reasonable and designed to effectuate appellant’s interests, we will not find counsel ineffective.

Finally, appellant suggests that trial counsel was ineffective for failing to call as witnesses those employees who may have observed the altercation between Aycock and Lee. However, appellant fails to allege that such witnesses were available or what the nature of their testimony would have been. The bare assertion that counsel failed to call unnamed witnesses is an insufficient basis upon which to grant relief. “Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract,” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Accord: Commonwealth v. Brown, 313 Pa.Super. 256, 259, 459 A.2d 837, 838 (1983); Commonwealth v. Nelson, supra 311 Pa.Super. at 14-15, 456 A.2d at 1390.

The judgment of sentence imposed upon the conviction for aggravated assault is affirmed. The judgment of sentence imposed upon the conviction for possession of an instrument of crime is reversed and set aside.

SPAETH, J., filed a concurring opinion.

SPAETH, Judge,

concurring:

I concur in the result reached by the majority but I am unable to join its reasoning. In my view, the record does not show, either that the Commonwealth exercised due diligence in bringing appellant to trial within the period prescribed by Pa.R.Crim.P. 1100, or that it,met the requirements for an extension based upon “judicial delay.” I am satisfied, however, that appellant waived his right to be tried within the Rule 1100 period. In addition, I think it should be noted that the trial court based its decision on Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808 (1982), which I am unable to reconcile with Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979). The majority does not acknowledge this conflict, and its opinion may be read by the trial court as approving Perry.

On February 14, 1980, appellant was late for his preliminary hearing. The hearing was then rescheduled for March 20, 1980. The trial court, relying on Commonwealth v. Perry, supra, found that this thirty-five day period was attributable to appellant’s unavailability and was thus ex-cludable under Rule 1100(d)(1).

In Commonwealth v. Morgan, supra, two periods of delay were in question. The first delay occurred because the appellant failed to appear for arraignment. The Commonwealth sought to exclude the period between the date he failed to appear and the date the Commonwealth’s bench warrant was withdrawn. The Supreme Court, however, held this period not excludable, stating:

Nor do we accept the argument that the postponement of the arraignment constituted a “delay in the proceedings” as required by section (d) where as here it in no way affected the commencement of trial. While the “delay” may occur “at any stage of the proceedings” it is only a delay cognizable under section (d) where it causes (either directly or indirectly) the commencement of trial to be postponed for some period of time beyond the time it would have been scheduled absent the “delay.”
Id., 484 Pa. at 123, 398 A.2d at 974.

The second delay occurred because the appellant failed to appear for trial, appearing instead in federal court. Trial was rescheduled, and the Commonwealth sought to attribute this delay to appellant’s unavailability under Rule 1100(d). The Supreme Court, however, held that this delay represented judicial delay under Rule 1100(c), and that the Commonwealth was therefore required to apply for an extension “prior to the expiration of the period for the commencement of trial,” Pa.R.Crim.P. 1100(c), and to show that “trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Id. Moreover, the Court noted:

It cannot be seriously argued in this case that the Commonwealth’s willingness to arrange for the rescheduling of this matter without any further information than the fact that appellant was involved in a federal proceeding on January 29, 1976, exhibited the kind of due diligence that would warrant the exclusion of a period so extensive as the one here involved.
484 Pa. at 127, 398 A.2d at 976.

Here, the period of delay is like the first of the two periods considered in Morgan. Appellant’s lateness on February 14, 1980, did not cause a delay in the commencement of trial, for a trial date had not yet been set.

In nevertheless excluding the period, the trial court relied on Commonwealth v. Perry, supra. In Perry, the Rule 1100 period expired on January 23, 1978. The appellant had been late for trial on October 26, 1977, and trial was then postponed until November 17, 1977. The case was not reached on that date; nor was it reached on a later scheduled trial date. The appellant was convicted on February 10, 1978. The majority excluded the delay from October 26 to November 17 under Rule 1100(d)(1) as attributable to the appellant’s unavailability. Thus, its decision does indeed support the trial court’s decision here. However, I am unable to reconcile Perry with Morgan, for under Morgan, the court in Perry should have regarded the issue as one of judicial delay, rather than one of the appellant’s unavailabil-' ity. See Commonwealth v. Perry, supra 296 Pa.Super. at 362, 442 A.2d at 810 (HOFFMAN, J., dissenting).

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 907.

      . On the conviction for aggravated assault, Aycock was directed to make restitution of $152.00 and was placed on probation for two years. A concurrent sentence of two years probation was imposed for possession of an instrument of crime.

      . The trial court, in a memorandum opinion filed pursuant to Pa.R.A. P.1925, conceded with commendable candor that it had erred in concluding that the drawer channel was an instrument of crime.

      . At the hearing on the Commonwealth’s petition to extend the Rule 1100 period, the only evidence presented to show that trial could not be commenced before the expiration of the period was testimony of the assistant district attorney who had been assigned to the courtroom on August 19, 1980, the date appellant’s case was marked "Ready, Not Reached.” The assistant district attorney stated that the court instructed him to select either one or two of the cases (the record is unclear, N.T. 6) to be tried that day, since the court would be unable to reach all of the cases, and that he then selected the oldest case(s). The assistant district attorney then testified that he "asked [the court administrator] if the case was going to be continued, that it be given the earliest possible date." N.T. 7. He stated that the court administrator responded that September 10 was the earliest possible date. Id. This testimony did not show that the Commonwealth could not, in the exercise of due diligence, have brought appellant to trial during the remaining fifteen days before the expiration of the Rule 1100 period. See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978). It also fell far short of the requirement, established in Commonwealth v. Mayfield, supra, that “if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” See also Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979) Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

      . At the hearing on the Commonwealth’s petition to extend the Rule 1100 period, the assistant district attorney who had been present on August 19, when trial was set for September 10, testified that the public defender representing appellant on August 19 "didn’t say anything” in response to the trial being set for a date beyond the Rule 1100 period. Appellant did not contradict this testimony. Moreover, appellant had previously waived his rights under Rule 1100 for the period June 29, 1980, to August 26, 1980. In these circumstances, appellant waived his rights under Rule 1100 until September 10, 1980. Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981).

      . Rule 1100(d)(1) provides:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      Pa.R.Crim.P. 1100(d)(1).

      . Rule 1100(c) provides:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
      Pa.R.Crim.P. 1100(c).


author: McEWEN, Judge:

text:
    470 A.2d 136
    In re ESTATE OF Anastassios A. LYCHOS. Appeal of BLOOMSBURG BANK, Co-Trustee. In re ESTATE OF Anastassios A. LYCHOS. Appeal of Artemis L. WEISS, Nadia Leonhardt and Xeria L. Filipos.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1983.
    Filed Dec. 16, 1983.

      M. Paul Smith, Norristown and Raymond J. DeRaymond, Easton, for Bloomsburg Bank, appellant (at No. 3298) and participating party (at No. 30).
    John M. Bray, Washington, for Weiss, Leonhardt and Filipis, appellants (at No. 30) and participating parties (at No. 3298).
    Arthur L. Piccone, Wilkes-Barre, for Lychos, participating party.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   McEWEN, Judge:

Presently before this Court are cross appeals from the final decree of the Orphans’ Court Division of the Court of Common Pleas of Northampton County which granted in part and denied in part a claim for surcharge asserted by Artemis L. Weiss, Xeria L. Filipos and Nadia Leonhardt [hereinafter appellants], against the Bloomsburg Bank — Columbia Trust Company [hereinafter Bloomsburg Bank]. Surcharges totaling $49,299.88 were imposed against the corporate co-trustee, Bloomsburg Bank, as a result of its administration of a testamentary trust established under the will of Anastassios A. Lychos. Appellants seek to increase the amount of the $49,299.88 surcharge imposed upon Bloomsburg Bank, while the Bank argues that the Orphans’ Court applied an incorrect standard of care and, therefore, improperly imposed the surcharges against it. The individual co-trustee, John O. Lychos, a sibling of the appellants, was not surcharged and requests this Court to affirm the final decree of the Orphans’ Court.

Anastassios A. Lychos died testate on July 4, 1968. Letters Testamentary were granted to the Bloomsburg Bank— Columbia Trust Company and to John O. Lychos, the son of the decedent. The first and final account of the executors was confirmed on February 22, 1971 and the entire residuary estate was awarded back to the same fiduciaries as trustees of a testamentary trust. The trust created a life estate for the wife of the testator with remainder over to the four Lychos children. Income from the trust was the only income available to Mrs. Lychos other than social security.

The primary asset of the trust was a three-story commercial building situated on Main Street in Bloomsburg, Pennsylvania almost directly across the street from the Blooms-burg Bank. The property was valued in 1969 for estate purposes at $51,000.00. A subsequent appraisal conducted in 1972 for purposes of obtaining a mortgage on the property resulted in a valuation of $75,000.00.

The following facts relevant to the administration of the Lychos trust were found by the auditing judge:

At [the time of the decedent’s death] the entire building was leased to one tenant at a rental of $400.00 per month. This lease was to expire in July, 1971, and the trustees immediately began negotiations for a new lease. After negotiations with the current tenant failed, the trustees, principally by the individual co-trustee, John Lychos, negotiated a lease with a podiatrist, Dr. Marvin Hughes. This lease, executed on November 15, 1971, provided for a term of ten years at a monthly rental of $1,000.00 with an option for a ten-year renewal. The lease further required the lessors to make certain repairs to the building and to install an elevator. The trustees had not obtained a firm price for the elevator when the lease was executed. To finance the repairs required by the lease, the trustees placed a mortgage on the building in March, 1972. The amount of the mortgage was $50,000.00 with interest at the rate of lk% per annum which resulted in monthly payments of $629.09, including an escrow for taxes and fire insurance. At this time the property was valued at $75,000.00 including building and land.
By June, 1972, most of the repairs to the building had been completed at a cost of approximately $22,000.00 and it had become apparent to the trustees that they didn’t have sufficient.remaining funds to install the elevator. This letdown was due to the fact that the bank used approximately $13,000.00 of the proceeds to satisfy the cash deficit carried over from the estate accounting and from the first year of the trust administration. Throughout this period and for the entire duration of the trust, the life tenant was paid $150.00 per month plus her household expenses, utility bills and taxes.[]
Inexplicably, the bank held the $15,000.00 balance of mortgage proceeds in a non-interest-bearing account in its own institution from July of 1972 to July, 1973, when the balance of funds then remaining were invested in certificates of deposit. There was no evidence that the individual trustee participated in this decision. For two months in the summer of 1971 and from December, 1972, until the lease was terminated, the tenant unilaterally reduced the rent payment to $650.00 allegedly because the trustees had not installed the elevator. Although the trustees objected and demanded payment of the full rental, suit was not filed to enforce the lease until four years later, in September, 1976. An undetermined portion of this delay was occasioned by the discovery of a conflict of interest on the part of counsel retained to represent the trust who also represented the tenant. This litigation finally was successful and the trustees recovered the additional rent due to September, 1976 together with interest. An ejectment action resulted in a final decree in February, 1978. Again for reasons that are not clear, the trustees were required to file an additional law suit for the rental due between September, 1976 and the date of ejectment, and despite the prior court decisions, a jury verdict was for the tenant. No appeal was taken. Finally, on May 18, 1978, after the trustees’ first account had been filed, the building was completely destroyed by fire. At that time the building was insured for $80,-000.00. The proceeds were used principally to satisfy the mortgage and to demolish the remaining structure. The land remains vacant, [footnote omitted and supplied].

The auditing judge, the Honorable Alfred T. Williams, Jr., surcharged the corporate co-trustee $1,125.00 for its negligence in depositing the $15,000.00 balance from the mortgage proceeds in a non-interest bearing account for a full year while the trust was obliged to pay interest at 1%% on the funds. The auditing judge also sustained an objection to the claim by the corporate co-trustee for $4,465.20 in commissions. The objection to the claim by the corporate co-trustee for legal fees and costs in the amount of $4,338.68 was sustained in part and a surcharge of $1,735.47 was imposed against the counsel fees and costs claimed by the corporate co-trustee. The objections and request for surcharge by appellants, based upon the corporate co-trustee’s alleged failure to properly insure the building and for their alleged negligence in entering into a wasting and improvident lease were denied. The request for surcharge against the Bank for counsel fees incurred by appellants was also denied by the auditing judge. Exceptions to the adjudication and decree nisi of the auditing judge were filed by appellants and the Bank and, in response thereto, the court en banc found that as a result of the negligent failure of the corporate co-trustee to properly insure the Lychos building, the trust sustained a loss of $45,000.00. A surcharge in that amount was therefore imposed upon the corporate co-trustee by the court en banc. The surcharge of $1,125.00 imposed by the auditing judge against the corporate co-trustee for failure to invest the mortgage proceeds was dismissed without explanation by the court en banc while the remaining surcharges imposed against the Bank were affirmed.

“ Tn reviewing the decision of the orphans’ court, our task is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.’ ” Estate of Brojack, 321 Pa.Super. 154, 467 A.2d 1175 (1983) quoting In re Estate of McCrea, 475 Pa. 383, 386-387, 380 A.2d 773, 775 (1977). Accord Estate of Hamill, 487 Pa. 592, 601, 410 A.2d 770, 774 (1980); In re Trust Under Deed of LaRocca, 485 Pa. 236, 239, 401 A.2d 746, 748 (1979). Our standard of review with respect to the factual findings of the auditing judge is clear: “ 'The credibility of the witnesses and the weight to be given their testimony is in the first instance to be determined by the auditing judge. His findings of fact, affirmed by the court en banc, like those of a jury, are conclusive unless they are unsupportable by the record.’ ” In re Estate of Lux, 480 Pa. 256, 263, 389 A.2d 1053, 1056 (1978) quoting Gelb Estate, 425 Pa. 117, 125, 228 A.2d 367, 372 (1967).

I. STANDARD OF CARE APPLICABLE TO BANK

Bloomsburg Bank contends that the auditing judge and the court en banc erred in holding that the Bank, as a professional fiduciary, was required to exercise a greater degree of skill and care than that of an ordinary, prudent person. We disagree.

“Every fiduciary is obligated, in managing the investment of trust assets, to exercise the care, skill, and judgment of an ordinarily prudent person unless it either has or procures its appointment by representing that it has greater skill, in which case it is obligated to exercise such greater skill.” In re Estate of Stetson, 463 Pa. 64, 74 n. 4, 345 A.2d 679, 684 n. 4 (1975). Accord. Estate of Knipp, 489 Pa. 509, 512, 414 A.2d 1007, 1008 (1980); Killey Trust, 457 Pa. 474, 477, 326 A.2d 372, 375 (1974).

The auditing judge found that the Trust Department of Bloomsburg Bank, headed by a man with fifteen years experience in the administration of trusts, held itself out as an expert in trust administration. The auditing judge also found that a substantial portion of all commercial properties located in the Bloomsburg area were managed by the Trust Department of Bloomsburg Bank. The auditing judge concluded, therefore, that Bloomsburg Bank possessed greater skill in the administration of trusts, investments and commercial real estate than an ordinary, prudent man and had procured its appointment as co-trustee as a result of its representations of greater skill. Those findings of fact of the auditing judge, affirmed by the court en banc and supported by the record may not be disturbed on appeal. In re Estate of Lux, supra, 480 Pa. at 263, 389 A.2d at 1056. The conduct of the Bloomsburg Bank in administering the Lychos trust must, therefore, be reviewed in light of the expertise- of the Bank in such matters. See In re Mendenhall, 484 Pa. 77, 81-82, 398 A.2d 951, 954 (1979).

Similarly, we are bound by the findings of the auditing judge, supported by the record, that John O. Lychos possessed only the skill and expertise of an ordinary, prudent person. The auditing judge, therefore, properly concluded that John O. Lychos was obligated to exercise such common skill, prudence and caution as a reasonable and prudent person, under similar circumstances, would exercise in dealing with his own property. See Lohm Estate, 440 Pa. 268, 273, 269 A.2d 451, 454 (1970). See also Killey Trust, supra, 457 Pa. at 479, 326 A.2d at 376.

II. FIRE INSURANCE

Appellants argue that the court en banc erred in denying their request for a surcharge against the Bank for failure to insure the Lychos building for its full replacement cost value, while the bank contends that the court en banc erred in imposing a surcharge against it for failure to insure the building for its actual cash value. Neither argument has merit and the surcharge of $45,000.00 imposed against the Bank will, therefore, be affirmed.

The auditing judge held that the corporate co-trustee was not required to carry full replacement cost insurance on the building and refused, therefore, to impose a surcharge against the bank for failure to purchase such insurance. The request by appellants for surcharge for failure to insure the building for actual cash value, however, was also refused by the auditing judge on the grounds that the decision was in part based upon the severe cash flow problem of the trust. The court en banc reversed this holding, based upon the findings of fact made by the auditing judge that the cash flow problem had been created by the failure of the bank to collect the full rental due on the building and its failure to invest the balance of the proceeds from the mortgage in an interest bearing account. The court en banc, therefore, imposed a surcharge of $45,-000.00 against the Bank, which represented the difference between the actual cash value of the building and the amount for which the building had been insured by the Bank.

A primary duty of a trustee is the preservation of the assets of the trust. The Decedents, Estates and Fiduciaries Code provides, inter alia, that a trustee “shall have the right to and shall take possession of, maintain and administer each real and personal asset of the trust, collect the rent and income from it, and make all reasonable expenditures necessary to preserve it.” 20 Pa.C.S. § 7131. See also Estate of Hamill, supra, 487 Pa. at 602 n. 7, 410 A.2d at 775 n. 7; Denlinger Estate, 449 Pa. 393, 396, 297 A.2d 478, 480 (1972). “It is well-settled in this Commonwealth that a fiduciary who has negligently caused a loss to an estate may properly be surcharged for the amount of such loss.” Lohm Estate, supra 440 Pa. at 273, 269 A.2d at 454. Accord In re Estate of Lux, supra 480 Pa. at 264, 389 A.2d at 1057; Estate of Stephenson, 469 Pa. 128, 138, 364 A.2d 1301, 1306 (1976); Denlinger Estate, supra 449 Pa. at 396, 297 A.2d at 480. Once a beneficiary has succeeded in proving that the trustee committed a breach of duty and that a related loss occurred, the burden shifts to the trustee to prove that the loss would have occurred in the absence of the breach of that duty. Estate of Stetson, supra, 463 Pa. at 84, 345 A.2d at 690.

The auditing judge and the court en banc found that the Bank had breached its duty by entering into a $50,-000.00 mortgage prior to ascertaining the amount of funds necessary to renovate the building, by failing to assist in the lease negotiations, by failing to properly administer the lease and by failing to timely institute proceedings against the tenant. The court en banc found that these breaches of duty by the Bank had resulted in the decision not to increase the insurance. The Bank failed to establish that it would not have insured the building for its actual cash value in the absence of the breaches by the Bank which had created the cash flow problem in the trust. We find, therefore, that the court en banc properly imposed a surcharge against the bank in the amount of the loss suffered by the trust as a result of the failure by the Bank to insure the Lychos building for its actual cash value.

At the same time, we reject the argument advanced by appellants that the Bank was under a duty to insure the Lychos building for its full replacement cost value. The duty of the trustee is to preserve the corpus of the trust. However, the trustee is not a guarantor or insurer of the success of the trust, Killey Trust, supra 457 Pa. at 480-481, 326 A.2d at 376 (Roberts, J. concurring), and is not under a duty to replace the asset new in the event of a loss. The duty of the trustee to preserve the assets of the trust is faithfully discharged where the assets of the trust are insured in the amount of their actual cash value. Such insurance guarantees that in the event of destruction of the corpus, the trust is reimbursed in the amount of the actual cash value of the asset and, therefore, no loss is suffered by the trust. In the absence of’ any loss there can be no surcharge imposed against the trustee.

III. MORTGAGE PROCEEDS

Appellants argue that the court en banc erred in dismissing the surcharge of $1,125.00 levied against the Bank by the auditing judge for its failure to invest the $15,000.00 balance of the mortgage proceeds in an interest-bearing account. We agree. Bloomsburg Bank obtained a $50,000.00 mortgage on the Lychos building in order to obtain funds for repairs and the installation of the elevator required by the lease with Dr. Hughes. The Bank, however, never obtained an estimate for the cost of installing ■ an elevator shaft in the building and, therefore, entered into the lease and obtained the mortgage without knowledge of the actual cost of providing the elevator. The Bank used $22,000.00 of the mortgage proceeds to make repairs to the building, which the auditing judge found to be necessary and proper. Approximately $13,000.00 of the proceeds were used to pay debts carried over from the administration of the estate which included commissions claimed by the Bank. The remaining monies, approximately $15,000.00, were placed in a non-interest bearing account in the Bank and remained there for one year. During this entire period, however, the trust was obligated to pay interest at lk% per annum on these monies. The auditing judge found, and we agree, that the failure of the Bank to invest these monies in an interest bearing account was a clear breach of its fiduciary duty, resulting in a loss to the estate. See and compare: In re Estate of Pitone, 489 Pa. 60, 67-68, 413 A.2d 1012, 1016 (1980); In re Estate of Vaughn, 315 Pa.Super. 354, 461 A.2d 1318 (1983). The auditing judge, therefore, properly surcharged the Bank in the amount of the loss suffered by the estate. The court en banc dismissed this surcharge, possibly on the grounds that any interest earned would have been expended for increased insurance benefits. However, once appellants established that a breach of duty by the Bank caused a loss to the estate, the burden shifted to the Bank to prove that the loss would have occurred in the absence of its breach. In re Estate of Stetson, supra 463 Pa. at 84, 345 A.2d at 690. The order of the court en banc which dismissed the surcharge against the Bank for failure to invest the mortgage proceeds is, therefore, reversed. On remand the court is to reimpose the $1,125.00 surcharge for failure to invest the mortgage proceeds subject, however, to reduction in the amount which the trust would have expended in increased insurance premiums for proper insurance coverage.

IV. COUNSEL FEES, COSTS AND COMMISSIONS

The auditing judge granted in part the request by appellants for surcharge against the counsel fees, costs and commissions claimed by the Bank and surcharged the Bank $2,564.41 against commissions and $1,735.47 against counsel fees claimed by the Bank. The request for a surcharge in the amount of counsel fees paid by appellants was denied. Both the Bank and appellants allege that the auditing judge erred.

“[T]he allowance of a fiduciary’s commission, as well as counsel fees, is primarily within the discretion of the auditing judge, and his action ordinarily will not be disturbed except for clear error.” Dowman Estate, 156 Pa.Super. 655, 659, 41 A.2d 339, 340 (1945) allocatur denied April 13, 1945. Accord Lohm, Estate, supra 440 Pa. at 277-278, 269 A.2d at 456; Mastria Estate, 413 Pa. 278, 283, 196 A.2d 653, 655-656 (1964). See also Estate of Wanamaker, 314 Pa.Super. 177, 180, 460 A.2d 824, 825 (1983). Our review of the record herein discloses no abuse of discretion or error of law on the part of the auditing judge in imposing these surcharges. However, the auditing judge based the surcharge against counsel fees claimed by the bank upon criteria which are no longer viable. Therefore, upon remand the auditing judge may reevaluate the amount of surcharge to be imposed upon the counsel fees claimed by the Bank. See Lare Estate, 436 Pa. 1, 14-15, 257 A.2d 556, 564 (1969).

Similarly, we find no error on the part of the auditing judge in refusing to award counsel fees to appellants. “The general rule is that each party to adversary litigation is required to pay his or her own counsel fees.-” Estate of Wanamaker, supra, 314 Pa.Super. at 179, 460 A.2d at 825. Accord Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975);

V. LEASE

Appellants argue that the Orphans’ Court erred in denying their request for surcharge against the Bank in the amount of the alleged profits realized by the tenant, Dr. Hughes, from subletting portions of the building.

The Bank delegated the responsibility for the selection of a suitable tenant as well as for the negotiation of a lease to the individual co-trustee, John O. Lychos, who, in turn, by reason of a lack of special skill or expertise in real estate matters, relied on the advice of counsel provided by the Bank in negotiating certain terms of the lease. The fact that the attorney for the Bank was also the attorney for the tenant was unknown to the Bank or John Lychos until the day the lease was signed. The lease as executed provided for a monthly rental of $1,000.00 over the first ten years of the leasehold and required the trust to make certain repairs to the building as well as to install an elevator. The lease also granted the tenant an option for a second ten year term. No provision against subletting was included in the lease, nor was there a provision requiring the tenant to share with the trust any profits realized as a result of subletting portions of the building. The auditing judge found it “shocking that a corporate trustee would permit an individual co-trustee to assume full responsibility for negotiating a lease to a building which was the sole asset of [a] trust.” He concluded that the Bank had breached its fiduciary duty to utilize its superior skills in commercial real estate matters by delegating all responsibility for the lease agreement to John O. Lychos. A surcharge was denied, however, because the auditing judge found that no loss to the trust had resulted from the lease because the monthly rental of $1,000.00 was “competitive with similar properties in Bloomsburg.” Appellants do not dispute the findings of the auditing judge that the monthly rental was a competitive one, rather, they argue that the Bank should be surcharged for the amount of profits Dr. Hughes realized from subletting. We disagree.

“It is well-settled in this Commonwealth that a fiduciary who has negligently caused a loss to an estate may properly be surcharged for the amount of such loss.” Lohm Estate, supra 440 Pa. at 273, 269 A.2d at 454. Accord Denlinger Estate, supra, 449 Pa. at 396, 297 A.2d at 480 (1972). See also Estate of Stephenson, supra, 469 Pa. at 138, 264 A.2d at 1306. However, evidence that Dr. Hughes realized a profit as a result of subletting portions of the building is not evidence that the trust suffered a loss by entering into the lease with Dr. Hughes. The auditing judge found that the lease was a commercially reasonable one, competitive with leases for similar properties and considerably more profitable for the trust than the prior lease which provided for a total monthly rental of $400.00. We are bound by those findings, which are supported by adequate and competent evidence. The conclusion of the auditing judge that the trust did not suffer a loss as a result of the lease precluded the imposition of the surcharge urged by appellants. Hindsight is not the test of liability for surcharge, as a trustee is not a guarantor or insurer of the success of the trust. See Estate of Knipp, supra, 489 Pa. at 512, 414 A.2d at 1008. “The exercise of investment skills greater than those possessed by the average man, as is required of a corporate fiduciary, which holds itself out as an expert, does not guarantee results better than [the] average person may have achieved during the same investment period.” Estate of Knipp, supra, 489 Pa. at 512, 414 A.2d at 1008. (emphasis in original.) See also Mereto Estate, 373 Pa. 466, 469, 96 A.2d 115, 116-117 (1953). Moreover, had the Bank attempted to lease individual portions of the building as suggested by appellants, there may well have been periodic vacancies, resulting in a monthly income to the trust of less than the $1,000.00 provided for in the lease with Dr. Hughes.

VI. UNCOLLECTED RENTS

Appellants also argue that the auditing judge and the court en banc erred in refusing to impose a surcharge against the Bank in the amount of the monies not recovered by the trust in the second action against Dr. Hughes for rent arrearages.

As noted above, an action was instituted in September of 1976 against Dr. Hughes for rent arrearages. Due to what the auditing judge characterized as a “procedural error” committed by counsel for the trust, the judgment entered against Dr. Hughes included only monies due up to date of the filing of the complaint. A second action instituted by the Bank for the monies due from September 1976 until the termination of the leasehold resulted in a judgment for the tenant. The auditing judge refused to surcharge the Bank for the rent not recovered in the second action because he believed appellants were bound by the decision of the jury in the second action that $650.00 per month was the fair rental value of the building without an elevator. Appellants argue that a surcharge should be imposed against the Bank for negligent failure to plead all damages in the first action.

A trustee may, under certain circumstances, be surcharged for the negligent acts or omissions of counsel employed by the trustee. See In re Estate of Stetson, supra 463 Pa. 64, at 80, 345 A.2d 679, at 688 (1975); In re Trust of Mintz, 444 Pa. 189, 200, 282 A.2d 295, 301 (1971); Lohm Estate, supra 440 Pa. at 275, 269 A.2d at 455. However, while we believe that a surcharge is appropriate in the instant case, our decision is not based upon a finding of any negligence on the part of counsel but, rather, upon the breach of fiduciary duty by the Bank in failing to assist in the negotiation of the lease with Dr. Hughes.

As was noted above, the auditing judge refused to surcharge the Bank for its failure to participate in the lease negotiations only because the auditing judge found that no loss to the trust had resulted from what the auditing judge found to be®a “shocking” breach of duty by the Bank. The finding of the auditing judge that no loss had resulted to the trust was based upon his finding that a rental of $1,000.00 per month was “competitive with similar properties in Bloomsburg.” The auditing judge found that the building, under proper management, should have produced an income of $1,000.00 per month. Therefore, the Bank should be surcharged in an amount sufficient to compensate the trust for those periods for which the full rental of $1,000.00 per month was not received. Where a breach of duty results in a loss to the trust, the trustee is liable for surcharge in the amount of the loss. Estate of Stephenson, supra 469 Pa. at 138, 364 A.2d at 1306. On remand, therefore, a surcharge on the amount of the rents not recovered in the second action should be imposed against the Bank.

Decree affirmed in part and vacated in part. Case remanded for further proceedings consistent with the foregoing opinion.

Jurisdiction is relinquished.

      . Monies paid to Mrs. Lychos were paid primarily from principal after the Lychos building was mortgaged in March of 1972. The tenant was paying only $650.00 per month rent during this period while the mortgage payments which the trust was obliged to pay were in excess of $600.00 each month.

      . As a result, the Bank was awarded only $1,900.79 of the $4,465.20 it sought as commissions.

      . This resulted in the Bank being awarded $2,603.21 in legal fees and costs.

      . Estimates of the replacement cost value of the building varied from $279,000.00 to $409,000.00. Estimates of the actual cash value of the building varied from $95,000.00 to $166,000.00 depending upon the depreciation factor applied by the witness. "Replacement cost value” is the actual cost of repair or replacement of the building without deduction for depreciation. Canulli v. Allstate Insurance Company, 315 Pa.Super. 460, 463, 462 A.2d 286, 287 (1983). “ 'Actual cash value, is the actual cost of repair or replacement less depreciation." Id., 315 Pa.Superior Ct. at 462, 462 A.2d at 287.

      . The auditing judge based this surcharge upon a percentage derived from a comparison of the number of objections sustained in relation to the number dismissed.