The opinion
VAN der VOORT, Judge,
dissenting:
The majority grants a new trial to a convicted rapist notwithstanding the fact that the Commonwealth’s proof of the crime was overwhelming. I cannot subscribe to Such reasoning and therefore I must respectfully dissent. Before expounding further upon my divergence with the majority, I must first note that I have reviewed appellant’s other contentions (See Majority Opinion, p. 321-22, n. 4) and find them to be without merit.
The majority finds that evidence of appellant’s prior rape conviction, as voiced by the appellant himself to intimidate the victim into submission, while relevant, was nonetheless inadmissible. ' Such holding is grounded upon language to the effect that when such evidence of a prior conviction is admissible under one of the five exceptions to the general rule, the court must then balance the probative value against the prejudice to a defendant. Commonwealth v. Ulatoski, 472 Pa. 53 , 371 A.2d 186 (1977); Commonwealth v. Booth, 291 Pa.Superior Ct. 278, 435 A.2d 1220 (1981). The exceptions referred to are (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design; and (5) the identity of the person charged. To this list, the majority would add an “exception” of the res gestae of the crime charged. The majority therefore requires balancing of the prosecution’s need against the prejudice to the appellant.
*332 I believe such balancing is improper in the current circumstances. The majority opinion refers to three cases which hold that prior criminal acts or statements referring thereto made or performed in the “same transaction” or “res gestae” are admissible. Commonwealth v. Brown, 462 Pa. 578, 590-91 , 342 A.2d 84, 90 (1975); Commonwealth v. Kjersgaard, 276 Pa.Superior Ct. 368, 375, 419 A.2d 502, 506 (1980) and Commonwealth v. Seigrist, 253 Pa.Superior Ct. 411, 421, 385 A.2d 405, 410 (1978). Those courts all found similar crimes or admissions, of crimes were properly admitted because “sordid as they were, [the evidence] was admissible ... because they were part and parcel of the violent rampage” Brown ; “were cogent evidence that the victims submitted only upon the threat of injury or death”, Kjersgaard ; and such evidence was proper “not to prove the truth of the assertion ... but rather to prove the fact of the assertion which was clearly relevant to the question of lack of consent.” Seigrist . The majority then attempts to distinguish the current case by applying the balancing test and finding that the numerous references and the overwhelming evidence of guilt requires that the evidence be withheld from the fact finder.
I have reviewed six cases which specifically address the issue whether “res gestae” or “same transaction” evidence referring to prior criminal conduct is admissible: Brown, supra; Commonwealth v. Ross, 413 Pa. 35 , 195 A.2d 81 (1963); Kjersgaard, supra; Commonwealth v. Stufflet, 276 Pa.Superior Ct. 120, 419 A.2d 124 (1980); Seigrist, supra; and Commonwealth v. Stevens, 237 Pa.Superior Ct. 457, 352 A.2d 509 (1975). All six of the above cases held'that such was properly admitted under the facts of that case. Only one of these cases, Stufflet , mentioned the above balancing test. The majority here attempts to apply the balancing test as a matter of hind sight to Kjersgaard and Seigrist in an attempt to distinguish those two cases from the current situation by finding that here the frequency, as well as the elaboration were greater. I cannot join in such *333 approach; since there is nothing in the opinions referring to the balancing test, one should not assume such was applied.
At the same time, I must not ignore what appears on the surface to be a conflict between Stufflet and Stevens. Stevens held that “[b]y admitting this evidence, we do not weaken the underlying policy of protecting an accused against unfair prejudice. As ... stated in Brown : ‘No error was committed in permitting the full story ... to be told’ 462 Pa. at 591 [ 342 A.2d 84 ].” 237 Pa.Superior Ct. at 464 [ 352 A.2d 509 ]. Stufflet , held that “[t]he evidence was needed to complete the story of the crime. Moreover, the prejudicial effect was not so prejudicial as [t]hat ... permitted ... in Stevens.” 276 Pa.Superior Ct. at 125, 419 A.2d 124 (Emphasis supplied). The keyword in Judge Hoffman’s opinion in Stevens is “moreover.” Webster’s New Collegiate Dictionary (1980) defines moreover as: in addition to what has been said; besides. In other words when read in the context of Stevens , the holding was that the “whole story” is admissible; besides, even if it was not the balance would fall in favor of the Commonwealth.
The balancing test which the majority applies here was the state of the law at the time of Kjersgaard (1980) and Seigrist (1978); Ulatoski upon which the majority relies was decided in 1977. Therefore, we must assume that this court was aware of such but did not utilize it when relating the “whole story.” The other exceptions all deal with evidence which while relevant, is removed or remote in time, place, or logical connection from the crime charged. The “whole story” is not so removed.
Additionally, I find appellant’s admission of prior criminal activity was more relevant to the charge on trial than that in Brown . There the Commonwealth presented testimony of a rampage involving numerous crimes, all admissible to complete the story. In the current case the prior crime not only completes the story but is material to the lack of consent.
The majority’s emphasis upon the repetition and detail of the testimony is misplaced. The numerous references *334 which are of concern to the majority are for the most part the result of a tactical decision made by the defense. Any opening comment by the prosecutor was a proper summary of the incident of rape. Appellant’s own testimony both on direct and cross examination was a rational tactical approach. He could either sit quiet as to the prior rape and request an instruction to the effect that the admission was offered not for the truth of the matter but to show the fact it was said, or he could attempt to explain the prior incident in an attempt to dissuade the jury from holding it against him. Appellant’s tactical choice was to bare his record to the jury. He may not now complain that such tactic did not prove to be fruitful.
Furthermore, while I find no error, even if error did exist it was harmless beyond a reasonable doubt. While the majority would exclude the testimony in question because the Commonwealth’s case was overwhelming, Seigrist found any error in the admission of similar evidence, was harmless beyond a reasonable doubt “in view of the other overwhelming evidence of force or lack of consent.” 253 Pa.Superior Ct. at 421, 385 A.2d 405 . I would hold likewise in this case.
Therefore, I respectfully dissent and would affirm the judgment of sentence.