dissenting:
I agree with the majority that all Counts except the first are not barred under Section 110(2) of the Crimes Code, because, as the opinion demonstrates, none of the Commonwealth’s averments here were “necessarily” determined in appellant’s favor by the general verdict of acquittal at his murder trial.
However, the majority opinion has not distinguished — in fact has lumped together — state statutory collateral estoppel (Section 110) and the Fifth Amendment constitutional requirements of collateral estoppel found in the double jeopardy clause, Ashe v. Swenson, 397 U.S. 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). While our statute permits a collateral estoppel defense only when the prosecution seeks to re-litigate facts “necessarily” decided in a defendant’s prior trial, “[t]he federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. . The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Ashe v. Swenson, supra at 444, 90 S.Ct. at 1194. Indeed, the federal decisions indicate that constitutional collateral estoppel is not limited to ultimate issues of fact necessarily decided at a prior trial, but also extends to evidentiary facts which are litigated, when the evidence presented in both trials will be substantially the same. “[T]he Government . may not in a second trial relitigate an issue of either ultimate fact or evidentiary fact upon which the defendant was acquitted in an earlier trial.” U. S. v. Gurney, 418 F.Supp. 1265, 1268 (M.D.Fla.1966). See also Wingate v. Wainwright, 464 F.2d 209, 213 (5th Cir. 1972) (government may not charge second offense after acquittal on first which would force a defense against the same factual allegations, even though they are only evidentiary).
As the Court in U. S. v. Drevetzski, 338 F.Supp. 403, 409 (N.D.Ill.1972) said in barring a perjury prosecution after the defendant’s acquittal in his previous trial: “While ‘if at first *34you don’t succeed try, try again’ may be a lofty and worthy ideal for the general public it has no place in the area of criminal prosecution where that first attempt at success has fully and completely adjudicated the issues and where the second prosecution merely rehashes old evidence.” Undoubtedly the reason for this Fifth Amendment protection is that “[f]or whatever else that constitutional guarantee may embrace, ... it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” Ashe v. Swenson, supra at 445, 90 S.Ct. at 1195. The federal courts have therefore been cognizant of the potential danger of subsequent perjury prosecutions allowing abusive and vindictive prosecutors taking a second shot at acquitted defendants with the same evidence. See Adams v. U. S., 287 F.2d 701, 703 (5th Cir. 1961). See also, Toll, Pennsylvania Crimes Code Annotated 537.
As the majority’s recitation of the facts indicates, the Commonwealth showed that appellant had a motive and an opportunity to commit the murder. Looking at the trial “in a practical frame,” and “with an eye to all the circumstances,” I would say that the jury most likely acquitted appellant because they believed his testimony and found his alibi credible. That being the case, I would not permit the Commonwealth a second chance to prove that appellant’s testimony was false in any of its evidentiary details. All that their case-in-chief can possibly do is re-hash all the old evidence surrounding the details of appellant’s alibi in hope that a second jury will now disbelieve him in whole or part when the first jury found him credible. However, this is precisely that Ashe and the other federal cases cited here forbid, on constitutional grounds.
Moreover, a review of the averments in the Commonwealth’s information, when compared to the evidence produced at the murder trial, indicates that the Commonwealth has an extremely weak perjury case, even though the majority allows it to be tried.
For instance, Count II charges that appellant lied when he said he saw two friends on Lambs Gap Road when he was *35returning to Camp Hill on the day in question. The Commonwealth does not contend that appellant was not on the road, or that the two friends were not on the road at the same time. (In fact, the Commonwealth called these two individuals at the murder trial and proved their presence on the road). Apparently somehow the Commonwealth intends to prove that while the two friends were on the road and appellant had an opportunity to see them, he did not in fact see them! Bringing a perjury charge on these averments can be described as childish.
Count III avers that the appellant lied when he said that the last time he saw his mother was when he deserted her at Millers Gap, because actually the last time he saw her was when he struck her. Since the jury acquitted appellant of murder, the Commonwealth will thus have to prove that appellant delivered some non-lethal blow to his mother on the day in question at a place other than Millers Gap and then deserted her. We can by mental gymnastics conjure up this possibility, but how can the Commonwealth possibly prove this averment? Since there were no eyewitnesses, the Commonwealth has no chance unless the appellant himself changes his testimony and inculpates himself.
Count IV charges that appellant lied when he stated that he didn’t think he had told anybody of his mother’s whereabouts up to a certain time, when in fact he earlier told one Sue Ann Guise that he had struck his mother and left her on the mountain. First of all, appellant was uncertain at this point of his testimony. Secondly, the Commonwealth will have to prove a conversation in which appellant confesses to a crime which the murder jury said he did not commit. Lastly, since it is not alleged that anyone overheard this alleged admission to Ms. Guise, the two witness rule appears to be a difficult obstacle to the Commonwealth in proving this averment, unless they induce appellant to change his testimony and inculpate himself.
Count VI charges that appellant lied when he recounted his route taken to Miller Gap, because he omitted making a stop at the Valk Manufacturing Company. In the murder *36trial, three witnesses testified, and the Commonwealth therefore stipulated, that a round trip from Camp Hill to either Millers Gap or Lambs Gap took a full hour and a half, the time elapsed between appellant’s departure and his return when seen at Carol Durkin’s house. For the Commonwealth to prove an additional excursion five to ten minutes out of the way, to a place where they allegedly stayed ten to fifteen minutes, puts an unbearable strain on the stipulated time framework of the events in question.
Because of the extreme weakness of the Commonwealth’s case, I think it is questionable whether the information here is brought in good faith.1 It is my view that the Fifth Amendment, as construed by Ashe v. Swenson, supra, protects the appellant from having to endure the hardship of defending criminal charges a second time.
I would reverse the order below and dismiss the information.
. The judge at appellant’s murder trial, the Hon. Keith B. Quigley, learning of the District Attorney’s intent to charge appellant with perjury, requested the D.A. to submit his case to the Attorney General for an impartial review. The case was assigned to Deputy Attorney General Bernard L. Seigel, who reviewed the evidence and concluded that appellant should not be prosecuted.