*460Dissenting Opinion by
Cekcone, J.:I respectfully dissent.
Defendant Charles Dooley originally stood trial for the felony murder of one Martha Day resulting from the arson of an apartment building at 710 West North Avenue, North Side, Pittsburgh, Pennsylvania. That murder case was given to the jury for its consideration on two issues (1) whether or not defendant had in fact committed the crime of arson, and (2) whether that offense proximately caused the death of Martha Day. The jury returned a verdict of acquittal.
Thereafter, the Commonwealth attempted to try defendant for the murders of Mary Carder and Kenneth Plater as victims of the same arson. The court, however, held the defense of autrefois acquit and the doctrine of collateral estoppel to be applicable and concluded that the Commonwealth is “precluded from proceeding with subsequent prosecution for murders against this defendant based on the same factual and legal issues which had been previously determined by the jury adversely to the Commonwealth.”
The Commonwealth did not appeal but brought defendant to trial for the crime of arson,1 which trial ended with a jury rendering a verdict of guilty. Defendant invoked the plea of double jeopardy, in consideration of which the trial judge granted defendant’s motion in arrest of judgment holding that the issue was ruled by Commonwealth v. DeVaughn, 221 Pa. Superior Ct. 410, (1972), which decision was based on an application of the doctrine of collateral estoppel.
It is my opinion that the doctrine of collateral es-toppel relied on in DeVauglm is not applicable in the *461instant case. DeVaughn involved a felony murder arising out of armed robbery. At the felony-murder trial, the ultimate issue presented to the jury for determination was whether defendant had participated in the armed robbery during which the homicide occurred. The jury found him not guilty. Our court there held that in the second trial (for armed robbery) the ultimate issue would be exactly the same as the one determined in the first trial and therefore the second trial would violate the defendant’s right against double jeopardy in accordance with the collateral estoppel principle and extension of the Fifth Amendment guarantee enunciated in Ashe v. Swenson, 397 U.S. 436 (1970). In the instant case, at the first trial for felony murder, two issues were set forth by the court for the jury’s determination. Since there is no way to determine upon which of these two issues the jury based its verdict, the doctrine of collateral estoppel would not apply to defendant’s second trial for arson: Ashe v. Swenson, supra; Comm. v. DeVaughn, supra.
In fact, double jeopardy, which gives a broader coverage of protection than collateral estoppel, is also not present in this case. The nature of the guarantee against double jeopardy is grounded on the universal maxiin that runs through Greek, Roman and English common law that no man is to be brought into jeopardy of his life more than once for the same offense. This principle is encompassed in the double jeopardy clause of the Fifth Amendment of our Federal Constitution which is made enforcible against the states through the Fourteenth Amendment: Benton v. Maryland, 395 U.S. 784 (1969) (made retroactive in the case of Price v. Georgia, 398 U.S. 323). The test to determine whether an accused stands in danger of being tried twice for the same offense was set forth in the case of Blockberger v. United States, 284 U.S. 299, 304 (1932) where it was held “that the test to be applied to determine whether *462there are two offenses or only one is whether each provision (i.e., each charge) required proof of a fact which the other does not.” In the instant case although the defendant’s alleged commission of arson served as the basis for the felony murder charge yet it was necessary in that first trial that there be further evidence to establish that the arson was the proximate cause of the three deaths. Therefore, the murder charge required proof of a fact not required by the arson charge. In the trial for arson the conduct of setting the fire was sufficient to establish the crime. In the trial for murder it was necessary to show further that the arson was the proximate cause of the deaths.
Furthermore, the first trial was on a charge of murder only. Arson was not included as an offense in the indictment and defendant therefore could not have been convicted of arson at the first trial. A former acquittal would only be a bar to a subsequent prosecution where the defendant could have been convicted on the first indictment of the charge preferred in the second. Comm. v. Comber, 374 Pa. 570 (1953). Here, the jury could not have returned a verdict of arson against defendant at his first trial for felony murder because no separate and distinct charge of arson was before them.2 The protection against double jeopardy extends no further than the offense [s] charged in the indictment at the initial prosecution, or of the offense[s] which a defendant may be properly convicted even though not actually charged in the indictment, i.e. (fornication in a rape case, arson and larceny in a robbery case): Hilands v. Comm., 114 Pa. 372 (1886). Accordingly since defendant was not placed in jeopardy of being convicted for arson at his first trial, his subsequent trial on *463the charge of arson, was not a violation of his Fifth Amendment right against double jeopardy.
Following the decision of Ciucci v. Illinois, 356 U.S. 571 (1958), recent United States Supreme Court cases have upheld the right of a state to prosecute individual offenses, arising out of one occurrence, singly at separate trials, in the absence of proof establishing that the trials entailed fundamental unfairness: Miller v. Oregon, 405 U.S. 1047 (1972) (holding double jeopardy clause not violated when defendant was prosecuted for use of weapon during perpetration of a felony after being tried for violation of a City ordinance (possession of a concealed weapon), both crimes arising out of same transaction) ; Grubb v. Oklahoma, 409 U.S. 1017 (1972) (denied writ of certiorari where defendant was convicted in one trial of armed robbery followed by a second trial for kidnapping, both offenses arising out of the “same transaction”) ; Robinson v. Neil, 409 U.S. 505, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973) (where court remanded in order to determine “whether the state and municipal prosecutions were actually for the same offense). These decisions can only be interpreted as holding that successive prosecutions for different offenses arising from the same transaction, however defined, are constitutionally permissible.
However, despite this general view of the United States Supreme Court on double jeopardy, the recent decision of the Pennsylvania Supreme Court in Comm. v. Campana, 452 Pa. 233, 304 A. 2d 432 (1973) and the general rule under the new Pa. Crimes Code (Sec. 110 (1) (ii)) effective June 6, 1973, requiring joinder, seem to eliminate the need for the doctrine of collateral es-to] >pel and the traditional approach to double jeopardy in Pennsylvania. The concern and travail which courts, legislatures and legal scholars have experienced down through the years over deciding whether or not an accused has been deprived of his constitutional right *464against double jeopardy, all the phrases found in opinions and research articles such as “identity of issue”, “identity of offenses”, “separate offenses” and other expressions utilized in determining whether an accused was twice placed in jeopardy, have lost their original importance. Now, under the decision of Campana and the Crimes Code, supra, if the offenses were committed in one criminal episode they shall be consolidated for trial.
A majority of the court however did not agree in the Campana case that the lack of joinder presented a constitutional issue, the deprivation of which violated the defendant’s constitutional rights. Therefore, even if applicable to the facts of this case, that decision is not binding3 upon us so as to require us to apply it to the facts of this case in protection of any constitutional rights of the defendant.
Furthermore, the new Pennsylvania Crimes Code which became effective after the Campana decision sets forth an exception to any required consolidation of charges, which exception would be applicable to the facts of this case and in accord with the reasoning of this court before set forth. Section 110(1) (iii) (A) provides for separate trials for offenses even though arising out of the same conduct where “each required proof of a fact not required by the other and the law defining each of such offenses is intended to prevent substantially different harm or evil.” I am of the opinion that the felony murder doctrine, originating at common law and firmly established statutorily (including present re-enactment under the new Crimes Code, Section 2502(a)), in classifying as murder in the first *465degree, a killing which, occurs in the commission of an enumerated felony, intends beyond question, to prevent a substantially different harm or evil. The charge of felony-murder certainly was intended to prevent a substantially different harm or evil than that resulting from an arson alone. “To the victim criminal conduct is readily divisible and intensely personal; each offense is an offense against a person.” To say that a trial on a charge of felony murder precludes a trial on the underlying felony such as rape, kidnapping, arson, burglary or robbery on the grounds of double jeopardy “demeans the dignity of the human personality and individuality.” As Chief Justice Burger states, “no court that elevates the individual rights and human dignity of the accused to a high place — as we should — ought to be so casual as to treat the victim as a single homogenized lump of clay. I would grant the dignity of individual status to the victim as much as to those accused, not more but surely not less”: Ashe v. Swenson, supra (dissenting opinion).
In my view the separate trial of the defendant on the arson charges was permissible and proper, and that the court below erred in holding defendant’s constitutional rights were violated by such subsequent trial.
I would reverse the order of the court below and remand for sentencing.
All these trials were based on separate indictments consecutively rendered at the same term of court, No. 2720 through 2726 of April 1970, which indictments included other charges not here material.
A separate charge of arson was not presented along with the felony murder charge presumably in accordance with Rule 219 of the Pa. Rules of Criminal Procedure.
Comm. v. Cooper, 444 Pa. 122, 278 A. 2d 895 (1971), Comm. v. Silverman, 442 Pa. 211, 275 A. 2d 308 (1971), Comm. v. Little, 432 Pa. 256, 248 A. 2d 32 (1968), Comm. v. Wagner, 221 Pa. Superior Ct. 50, 60 (1972).