dissenting:
On May 11, 1970, appellant was found guilty of rape and related offenses. During that trial, the prosecutor impeached the appellant by introducing two prior convictions : a 1961 rape conviction and a 1965 assault and battery conviction. During the tortuous procedural history which followed the 1970 conviction, appellant’s 1961 conviction was reversed on constitutional grounds in a Post Conviction Hearing Act proceeding in 1973, and was subsequently nolle prossed in 1974. In the instant case, appellant contends that use of the constitutionally invalid *3591961 conviction for impeachment purposes in the 1970 trial was reversible error. I agree and would remand for a new trial.
On December 15, 1969, the Philadelphia Grand Jury indicted appellant on charges of aggravated robbery (No. 968), carrying a concealed deadly weapon (No. 969), and forcible rape (No. 970), which arose out of an incident that occurred on November 1, 1969. A jury was selected on May 7, 1970; on May 11, the jury found appellant guilty on all charges. The following is the account of the criminal episode as developed by the Commonwealth at trial.
At about 1:30 a. m., on November 1, 1969, the victim left work and was on her way to meet her fiance when she was accosted by the appellant at the corner of 51st and Locust Streets, in Philadelphia. The victim attempted to walk past appellant, but he caught up to her and placed a sharp object against her throat. The victim testified that appellant told her not to scream and that “[i]f I did he would cut my throat. So I asked him why did he want to, you know, do this to me; I had four children at home, you know; ... he told me to shut up; he didn’t want to hear that and we started walking. He put his arm around me and held onto my coat and put the razor, like, inside the collar of my coat.”
Appellant led the victim to an abandoned house at 50th and Arch Streets where he had forcible intercourse with her. According to the victim’s testimony, after appellant completed the act, he fell asleep on top of her. She then found the razor and threw it across the room. She also removed a pay stub from his pocket, later used by the police to locate the appellant.
After appellant awoke, he searched the victim’s purse and removed some money. He then forced the victim to submit to a second act of intercourse. Upon completion of the act, appellant told his victim to remain in the building for five minutes longer before she left.
*360The victim went home immediately and, after changing clothes, went to the local police station with her fiance. The police found the victim’s underclothes and the razor in the abandoned house.
The appellant took the stand and stated that he knew the victim, that she asked him if he knew where they could use some drugs and that they, therefore, went to the abandoned house. She then produced a drug that she called “monster" which appellant broke up with the razor that he was carrying. He claimed that after snorting the “monster" they agreed to have intercourse for $10; he could not recall whether he achieved penetration. Apparently, appellant passed out; when he woke up, he discovered that the victim had removed $10 in addition to the $10 originally agreed upon. He allegedly retrieved all the money from her, which precipitated an argument between them. After appellant finished his testimony, the Commonwealth introduced two prior criminal convictions, including the 1961 conviction for rape, in rebuttal.
Appellant was convicted and, on July 24, 1970, was sentenced to concurrent terms of imprisonment of 5 to 10 years on the rape and robbery bills (nos. 970, 968). Sentence on the weapon offense (no. 969) was suspended. On appeal, this Court affirmed per curiam. Commonwealth v. Jones, 219 Pa.Super. 723, 280 A.2d 446 (1971). Allocatur was denied on March 6, 1973. 219 Pa.Super. xxxviii. In the interim, on June 29, 1972, appellant petitioned the United States District Court for the Eastern District of Pennsylvania for a writ of habeas corpus. The petition was denied on August 29,1972.
On July 30, 1973, appellant filed a Post Conviction Hearing Act1 petition in which he challenged the validity of the 1961 conviction. Counsel was appointed to represent the appellant. Appellant contended that he had *361not knowingly and intelligently waived his right to appeal that conviction. On the authority of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811 (1963), and Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), the lower court granted appellant the right to file post-trial motions nunc pro tunc. Subsequently, when it was learned that there was no record of the trial testimony, the lower court ordered that appellant be granted a new trial. See Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971). The Commonwealth nolle prossed the charges on April 16, 1974.
While appellant was pursuing the litigation that overturned his 1961 conviction, he also filed a pro se PCHA petition challenging his 1970 conviction on the ground that he was prejudiced by introduction of prior convictions. He was denied relief on February 19, 1974, and did not appeal the court’s order.
After his 1961 conviction was overturned, appellant filed another PCHA petition alleging that the use of the 1961 conviction for impeachment purposes required a new trial because it had subsequently been declared constitutionally invalid. On September 22, 1974, the lower court ordered another hearing on the matter for purposes of resentencing only. On December 13, 1974, appellant was resentenced to concurrent terms of four to eight years. This appeal followed.
Before we can reach the merits of appellant’s claim, we must decide whether the issue was properly preserved for our review. The concurring opinion makes the following argument: Appellant did not raise the invalidity of his 1961 conviction prior to or at his 1970 trial.2 Be*362cause the United States Supreme Court had already decided Griffin v. Illinois, supra, and Douglas v. California, supra, appellant’s challenge to his 1961 conviction would have been successful. Once that conviction had been successfully challenged, the concurring opinion suggests that appellant could have challenged its use for impeachment purposes even prior to United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), despite the fact that no court had so held. Therefore, the concurring opinion finds that appellant waived his right to challenge his 1970 conviction.
Initially, the concurring opinion assumes that appellant could have utilized a procedure to protect himself and cites Commonwealth v. Sheehan, 446 Pa. 35, 285 A. 2d 465 (1971). There is a serious problem with that approach. Appellant was no longer incarcerated by virtue of his earlier convictions at the time of the alleged 1969 rape. At the time of appellant’s trial, Commonwealth v. Sheehan was not the law of Pennsylvania. See Commonwealth v. Sheehan, 216 Pa.Super. 26, 260 A.2d 496 (1969). Thus, under our holding in Sheehan, appellant’s petition to overturn his 1961 conviction would have been dismissed.
Further, it is not clear that the 1961 conviction would have been inadmissible for impeachment purposes. Common sense may have dictated that result, but as the concurring opinion seems to recognize, that issue was still to be decided by the United States Supreme Court. That is precisely what the Court decided in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), and United States v. Tucker, supra. See discussion, infra. I would not hold appellant responsible for failing to antici*363pate Loper and Tucker. See Post Conviction Hearing Act, supra, 19 P.S. § 1180-3(c) (12).3
Finally, although the above problem was not specifically discussed, our Supreme Court vacated judgment of sentence for resentencing in a situation similar to that raised in the instant case. Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975). In Calvert, appellant was sentenced on March 30, 1968. The lower court considered for sentencing purposes numerous convictions rendered invalid by virtue of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but never previously challenged by the appellant. The Court did not consider the waiver issue, and decided that appellant was entitled to be resentenced on a record that did not include the invalid convictions.
Thus, we must decide the merits of appellant’s contention. The resolution of appellant’s contention turns on our interpretation of two United States Supreme Court cases, Loper v. Beto, supra, and United States v. Tucker, supra.
In Tucker, the accused was convicted of armed bank robbery in 1953. He was identified by four bank employees. After taking the stand to present an alibi defense, Tucker was cross-examined and impeached by means of three prior felony convictions. After a jury convicted Tucker, “[i]n the ensuing sentencing proceeding the District Judge conducted an inquiry into the respondent’s background, and, the record shows, gave explicit attention to the three previous felony convictions the respondent had acknowledged.” 404 U.S. at 444, 92 *364S.Ct. at 590. The court sentenced Tucker to the maximum permissible term.
Subsequent to Tucker’s conviction, the United States Supreme Court decided Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which held that due process required appointment of counsel in state criminal proceedings. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (per curiam remand) gave full retroactive application to Gideon.
Tucker successfully challenged two of the convictions used to impeach his credibility during his 1953 trial. In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921 (1966); Tucker v. Craven, 421 F.2d 139 (9th Cir. 1970). Thereafter, Tucker instituted the proceedings that reached the Supreme Court. The Ninth Circuit Court of Appeals held that “it had been ‘firmly proved that the evidence of prior convictions did not contribute to the verdict obtained and that, with respect to the verdict of guilty, the error in receiving such evidence was therefore harmless beyond a reasonable doubt.’ [but] that there was ‘a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed.’” 404 U.S. at 446-47, .92 S.Ct. at 591. The Court of Appeals remanded the case for resentencing without consideration of the pre-Gideon uncounselled convictions. The Supreme Court affirmed.
In Loper v. Beto, supra, the Court addressed the problem found harmless in Tucker-, whether the use of convictions invalid under Gideon to impeach requires reversal. Loper was tried in 1947 on a charge of statutory rape. The only witness for the state was the victim, Lo-per’s 8-year-old stepdaughter. Similarly, Loper’s defense consisted solely of his own testimony in which he denied the episode. As in Tucker and in the instant case, the prosecutor then introduced evidence of prior crimes to impeach his credibility. Loper was convicted *365and sentenced to 50 years in prison. Subsequently, he challenged his conviction on the ground that he was impeached on the basis of constitutionally invalid convictions. The Supreme Court reversed Loper’s convictions: “ ‘To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . . right.’ [citing Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L. Ed.2d 319 (1968) ] . . .
“The Tucker case involved only that aspect of Burgett that prohibits the use of invalid prior convictions to ‘enhance punishment.’ The case now before us involves the use of such convictions ‘to support guilt.’ For the issue of innocence or guilt in this case turned entirely on whether the jury would believe the testimony of an 8-year-old girl or that of Loper. And the sole purpose for which the prior convictions were permitted to be used was to destroy the credibility of Loper’s testimony in the eyes of the jury.” 405 U.S. at 481-82, 92 S.Ct. at 1019. The Court vacated Loper’s conviction and remanded for a new trial. Thus, Loper requires a reversal if “the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case.” 405 U.S. at 480, 92 S.Ct. at 1018.
The instant case raises two problems. After the PCHA court discovered that the 1961 conviction was constitutionally invalid and that the charge had been nolle prossed, it remanded for resentencing. The 1961 conviction was held invalid because of a denial of appellate rights under Griffin v. Illinois, supra, and Douglas v. California, supra, not because of a denial of the right to trial counsel under Gideon. The Court in Tucker and *366Loper emphasized that denial of counsel at trial rendered the factfinding process suspect. Therefore, it must be decided whether a denial of appellate rights similarly renders the factfinding suspect. Further, if such impeachment was improper, it must be decided whether the disposition of the instant case is controlled by Loper or Tucker.
Appellant’s 1961 conviction was held to be invalid because he was denied his appellate rights. Obviously, a Gideon violation goes to the quality of the factfinding process of the trial. On the other hand, a denial of appellate rights may or may not be relevant to the integrity of the factfinding process. Thus, in the instant case, had the record of the 1961 conviction been available, he would have been able to exercise his right to appeal nunc pro tune. In that appeal, it is conceivable that the alleged errors would have been without merit or would not have challenged the factfinding integrity of the trial. For example, had appellant alleged a technical violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), not challenging the reliability of the confession, we would have had no difficulty in affirming appellant’s conviction. As the facts stand, however, we simply have no way of knowing what issues appellant would have raised in that appeal, and, therefore, do not know whether there were trial errors rendering the fact-finding process suspect.
This problem was addressed in Griffin and resolved in favor of the criminal accused: “We must ... assume for purposes of this decision that errors were committed in the trial which would merit reversal, but that the petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript.” 351 U.S. at 16, 76 S.Ct. at 589. The Court noted further that “[a] 11 of the States now provide some method of appeal from criminal convictions, recognizing the importance of appellate review to *367correct adjudication of guilt or innocence. Statistics show that a substantial proportion of criminal convictions are reversed by state appellate courts. Thus to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside.” Id. at 18-19, 76 S.Ct. at 590. Further, the Supreme Court has held both Douglas v. California, supra, and Griffin v. Illinois, supra, retroactive; see, Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964), and Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) — a result indicating the Court’s view that the denial of the right to appeal creates the possibility of an unreliable verdict. Cf. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).
The only remaining question is what remedy is proper. The Court affirmed Tucker’s conviction because the use of the invalid prior conviction amounted to harmless error in light of the strength of the evidence at trial. In Loper, the sole issue was one of credibility. There were only two witnesses — Loper and his stepdaughter. The introduction of Loper’s prior constitutionally invalid convictions may have convinced the jury that Loper was not worthy of belief. To allow the conviction to stand would compound the original violation of Loper’s right to counsel; therefore, the Court remanded the case for a new trial. Similarly, in the instant case, only appellant and the victim testified on the issue of whether intercourse was consensual. The police officer’s testimony that he found a razor and the victim’s undergarments in the abandoned house was consistent with testimony of both the victim and the appellant. Appellant admitted that he had engaged in intercourse. Further, there was no evidence of bruises, lacerations, or other physical harm that would inherently refute appellant’s claim of consent. Thus, the case ultimately turned on the credibility of the appellant and the victim. Under such circumstances, in*368troduction of the constitutionally invalid 1961 conviction was not harmless error.
Therefore, I would reverse appellant’s conviction and remand the case for a new trial.
SPAETH, J., joins in this dissenting opinion.. Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq.
. Presumably, the appellant would have had to raise the issue pre-trial, rather than at trial. If he had not raised the problem until trial, the lower court would have known only that appellant had been denied his right to appeal. The proper remedy would *362have been a right to appeal nunc pro tunc. It was only the fortuity of the absence of a record that led to the nolle pressing of the charges. Thus, at the time of trial, it would not have been error for the lower court to have allowed the use of the 1961 conviction to be used for impeachment purposes.
. See discussion McCormick, Evidence § 43 (Cleary 2d Ed.). “A conviction in a prosecution where accused was denied counsel has been held not usable for impeachment, Gilday v. Scafati, 428 F.2d 1027 (1st Cir. 1970) cert. denied 401 U.S. 222 [400 U.S. 926, 91 S.Ct. 188, 27 L.Ed.2d 186], but the decision must be read in light of the subsequent decision in Harris v. New York, 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1] (1971).” McCormick, supra, § 43 n. 68.