Concurring and Dissenting.
The lead opinion focuses on the narrower of two questions presented by this appeal, namely, the general applicability of collateral estoppel at a criminal trial with respect to an evidentiary matter previously resolved at a probation revocation hearing. The case, however, presents a broader and more substantial question of public policy: whether the Commonwealth should ever be authorized to invoke the doctrine of collateral estoppel offensively to preclude relitigation of issues by an accused in a criminal trial. The decisions primarily relied upon by the lead are largely of tangential relevance to this question, since each involves the defensive use of issue preclusion by an accused against the Commonwealth, see Commonwealth v. Lagana, 510 Pa. 477, 480-81, 509 A.2d 863, 864-65 (1986); Commonwealth v. Brown, 503 Pa. 514, 517-18, 469 A.2d 1371, 1372-73 (Pa.1983), an application that is more commonly sanctioned and, in some circumstances, mandated in the criminal setting.1 Moreover, Appellant’s single-page argument, at best, touches only obtusely on the broader controversy, providing the Court with little meaningful assistance in identifying and weighing the.competing public policy concerns involved.2 Most significantly, as the lead opinion recognizes, Appellant fails to reference the substantial constitutional considerations that have caused some courts to disapprove this *489particular attempted application of issue preclusion. See Opinion Announcing the Judgment of the Court, op. at 9 n. 10 (citing cases). As such considerations are integrally intertwined with salient public policies, in my judgment, the lead opinion’s determination that Appellant has failed to raise them renders this appeal an unsuitable vehicle in which to sanction the government’s use of offensive collateral estoppel in a criminal case.
As the lead opinion does not expressly weigh the public policies involved in the context of the broader issue, I am unable to join its approval of offensive collateral estoppel in this criminal matter. In this regard, I note that courts which have disapproved such application of the doctrine have generally concluded that a criminal defendant’s constitutionally protected liberty interests outweigh the concerns of efficiency and finality that are typically invoked to support application of issue preclusion in the civil context. See, e.g., United States v. Pelullo, 14 F.3d 881, 893 (3d Cir.1994) (“It is widely recognized that ‘in criminal cases, finality and conservation of private, public, and judicial resources are lesser values than in civil litigation’ ”);3 see also United States v. Gallardo-Mendez, 150 F.3d 1240, 1244 (10th Cir.1998) (“As the Court of Appeals for the Third Circuit has well illustrated, [the] interest of the accused to vindicate himself in a criminal case has been held to trump a variety of ‘public interest concerns ... of the highest magnitude’ “ (citation omitted)); State v. Rodriguez, 11 S.W.3d 314, 322 (Tex.Ct.App.1999) (“The efficiency concerns that drive the collateral estoppel policy on the civil side are not nearly as important in criminal cases because criminal cases involve a public interest in the accuracy and justice of criminal results that outweighs the economy concerns that undergird the estoppel doctrine.” (citations omitted)).
I also am troubled by the lead’s decision to substantially adjust the usual rules of appealability to ameliorate shortcom*490ings of the application of offensive collateral estoppel in this setting. Such departures frequently have consequences that may not be anticipated, not the least of which is the generation of additional litigation to determine the boundaries of the exception that is developed to address the particular situation at hand. This, of course, might be avoided if the issue were to be decided in a case in which a broader range of core concepts could be explored in the first instance. I also question whether it is truly best to preclude a trial court from considering the merits of a prior evidentiary ruling which has not been challenged on appeal in the context of a subsequent criminal trial, while then requiring the appellate courts to do just that. This would seem to have countervailing effects in terms of efficiency and finality that should be considered in their own right. Additional abstractions and incongruities are presented by the focus on the unappealed decision rendered in the prior case rather than upon a present determination of the court whose rulings are directly under consideration in the appeal. Finally, I am not certain that the distinction between evidentiary and ultimate fact drawn by many courts in assessing the application of issue preclusion should be summarily dismissed based on the truncated treatment of the question given by a plurality of Justices in Commonwealth v. Hude, 492 Pa. 600, 614-15 & n. 6, 425 A.2d 313, 321 & n. 6 (1980). See Majority Opinion, at 502 n. 4.
Since I do not support the application of collateral estoppel in this case on the terms provided by the lead opinion, I would craft the remand to direct the Superior Court to consider whether the trial court’s application of collateral estoppel constituted harmless error, which would entail evaluation of the applicability of the Rape Shield Law to Appellant’s evidence concerning other alleged incidents involving the victim.
Justice CASTILLE and Justice NEWMAN join this concurring and dissenting opinion.. See generally Brown, 503 Pa. at 517-18, 469 A.2d at 1372-73 (explaining the required application of issue preclusion, rooted in the Fifth Amendment’s guarantee against double jeopardy, as concerns issues of ultimate fact decided favorably to an accused via a valid and final judgment citing Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970)).
. Appellant offers a single citation to Commonwealth v. Cosgrove, 427 Pa.Super. 553, 629 A.2d 1007 (1993), for the general proposition that a defendant, who has been found to be in violation of probation on account of his commission of a subsequent criminal offense, is nevertheless entitled to a trial in which he is presumed innocent of the charges.
. In Pelullo, the Third Circuit also explained that there is little historical justification for application of collateral estoppel against a criminal defendant. See Pelullo, 14 F.3d at 893-94.