The opinion
Dissenting Opinion by
Hoffman, J.:
Appellant contends that the instant prosecution for receiving stolen goods was barred by the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969).
The facts relevant to appellant’s claim were elicited at pre-trial hearings. On January 4, 1972, the residence of Ray Snyder in Coopersburg was burglarized, and seven rifles were taken. 1 Subsequently, Leslie None-maker told Detective Neimeyer of the Allentown Police Department that appellant had sold him a 300-Magnum Weatherby rifle for $150.00. Although the record is not entirely clear, Nonemaker apparently gave appellant a check and recorded the serial number of the rifle on his checkbook stub. At some point, Nonemaker requested a receipt, but appellant went to the Nonemaker home, retrieved the rifle from Mrs. Nonemaker, and never returned it. The police checked the serial number against those of the rifles taken from Ray Snyder and determined that the Weatherby was one of the stolen weapons.
On February 22, 1972, Officer Sandy of the Upper Saucon Police Department obtained a warrant for appellant’s arrest and a warrant to search appellant’s residence. The search warrant listed all seven rifles taken from the Snyder home as the evidence sought. *340 Although the search proved fruitless, Officer Sandy swore out a criminal complaint charging that appellant received a rifle on January 27, 1972, knowing or having reasonable cause to know that it was stolen. The Grand Jury returned an indictment, and appellant was tried on April 23, 1973. After the Commonwealth presented its case, the trial court sustained appellant’s demurrer. 2 The Commonwealth perfected an appeal to this Court, but it was subsequently withdrawn for reasons not appearing of record.
The police did not pursue the case until September 24, 1973, when Mrs. Peluso and her mother, Mrs. Helvig, brought five rifles to the Allentown Police Station. Mrs. Helvig told the police that she discovered the rifles wrapped in a bedspread, when she was cleaning the area underneath the porch. Mrs. Peluso also gave a statement to the police. She informed them that on January 27, 1972, John Bonetsky, one of the later-convicted burglars, came to their home and sold her husband several guns. Mrs. Peluso also told the police that her husband had stated, in Bonetsky’s presence, that the rifles were stolen. The police checked the serial numbers of the five rifles and determined that two of them had been stolen from the Snyder residence. Mrs. Peluso, however, was able to identify only one of the rifles discovered underneath her mother’s porch as one of the rifles her husband had purchased from Bonetsky.
The Grand Jury of Lehigh County returned an indictment against appellant, charging “that on the twenty-seventh day of January, 1972, in said County of Lehigh, the said Francis Peluso did unlawfully receive, *341 retain or dispose of moveable property of another, to wit, one .22 rifle Bolt Action with Weaver scope, and one .22 rifle make Iver Johnson ... knowing that it had been stolen or believing that it had probably been stolen ....”
Appellant raised two issues prior to trial: that Janet Peluso could not testify that appellant made incriminating statements during the time they were married, and that the Double Jeopardy Clause barred the second trial for receiving stolen goods. Both were denied by the lower court. Appellant was tried by a jury and found guilty. Because I believe that appellant’s double jeopardy contention is meritorious, I need not decide whether Mrs. Peluso was properly allowed to testify.
Both the appellant and the lower court treat our Supreme Court’s decision in Commonwealth v. Campana, 452 Pa. 233 , 304 A.2d 432 (1973), vacated and remanded, Pennsylvania v. Campana, 414 U.S. 808 (1973), reestablished, Commonwealth v. Campana, 455 Pa. 622 , 314 A.2d 854 (1974), as dispositive. Campana adopted §1.07(2) of the Model Penal Code as a means of preventing successive prosecutions: “[A] defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial____” 452 Pa. at 247-248 , 304 A.2d at 438 . It is clear that Campana does not rest on federal constitutional requirements, see Commonwealth v. Campana, 455 Pa. at 624 , 314 A.2d at 855 , but is an exercise of the Pennsylvania Supreme Court’s supervisory power over state criminal proceedings. See Pa. Const, art. V, §10. Whether or not the facts of the instant case are within the Campana proscription against successive prosecutions, the federal constitution prohibited appellant’s second trial.
In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court held that collateral estoppel in *342 criminal trials is an integral part of the protection against double jeopardy guaranteed by the Fifth Amendment. The Court stated that collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443 . See also Turner v. Arkansas, 407 U.S. 366 (1972); Simpson v. Florida, 403 U.S. 384 (1971); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). Collateral estoppel, however, can be applied only in limited circumstances. In Campana, our Supreme Court described the narrow protection collateral estoppel affords a defendant faced with successive prosecutions: “That imprecise doctrine has proven quite difficult and burdensome for appellate courts to properly and uniformly apply. Before the doctrine of collateral estoppel can apply the first trial must end in acquittal, and a ‘rational’ reading of the record must disclose that the jury based its verdict of acquittal on but one issue.” 452 Pa. at 246-247 , 304 A.2d at 438 . When the previous judgment of acquittal is based on a general verdict, the appellate court must “examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Wingate v. Wainwright, supra at 212. Thus, it is a rare situation in which the collateral estoppel defense will be available to a defendant. See United States v. Tramunti, 500 F.2d 1334 (2d Cir. 1974), cert. denied, 419 U.S. 1079 ; United States v. Cioffi, 487 F.2d 492 (2d Cir. 1973), cert. denied, 416 U.S. 995 ; United States v. Fusco, 427 F.2d 361 (7th Cir. 1970).
There is no difficulty, however, in applying collateral estoppel in the instant case. At appellant’s first trial for receiving the stolen Weatherby rifle, the Commonwealth relied mainly on the testimony of Mr. Nonemaker. Thus, *343 the Commonwealth proved that a rifle had been stolen and that appellant had possessed the weapon at some point. Under the 1939 Penal Code, the crime of receiving stolen property was defined as follows: “Whoever buys, has, or receives any goods, chattels, money or securities, or any other matter or thing, which shall have been stolen or feloniously taken, ... knowing, or having reasonable cause to know the same to have been stolen or feloniously taken, is guilty of a felony ...” 3 Thus, there are three elements of the crime: possession of a stolen item knowing or having reasonable cause to know that it was stolen. The Commonwealth clearly proved that the Weatherby was stolen, and Mr. Nonemaker’s testimony showed that appellant was in possession of the rifle. But the trial court sustained appellant’s demurrer. Thus, the court could only have concluded that the Commonwealth’s evidence failed to prove that appellant knew or had reason to know that the Weatherby had been stolen. 4 That issue, therefore, was determined in appellant’s favor. 5
The Commonwealth, however, obtained additional evidence on the scienter issue prior to the second trial, as Mrs. Peluso was prepared to testify that her husband had admitted to her that the rifles were stolen. The availability of additional relevant evidence, however, does not preclude the defense of collateral estoppel: “Certainly where an issue has been determined in a prior *344 prosecution, the state is barred from bringing any subsequent prosecution in which a different determination of that issue is necessary to prove the offense charged.” Wingate v. Wainwright, supra at 213. The constitutional guarantee applies even though the additional evidence indicates that the prior acquittal may have been erroneous.
In Harris v. Washington, 404 U.S. 55 (1971), a bomb sent through the mail exploded in the home of Ralph Burdick, killing Burdick and petitioner’s son, and seriously injuring petitioner's estranged wife. Initially, petitioner was tried for the murder of Ralph Burdick. The state attempted to introduce a letter allegedly written by petitioner which threatened both Burdick and petitioner’s wife. This evidence, however, was excluded, and petitioner was acquitted. Immediately thereafter, petitioner was rearrested and charged with the murder of his son and the assault of his wife. At the second trial, the letter was admitted and petitioner was convicted. Although the same ultimate issue was involved in both prosecutions, i.e., the identity of the person who mailed the bomb, the State Supreme Court upheld the conviction on the theory that the issue had not been fully litigated in the first prosecution because the letter had been excluded. The United States Supreme Court reversed: “The State concedes that the ultimate issue of identity was decided by the jury in the first trial. That being so, the constitutional guarantee applies, irrespective of whether the jury considered all relevant evidence, and irrespective of the food faith of the State in bringing successive prosecutions.” 404 U.S. at 56-57 (Emphasis added).
In the instant case, the trier of fact at the first trial determined that appellant did not know that the Weatherby was stolen. It would seem, therefore, that the Commonwealth would be precluded from proving that appellant knew that the two .22 rifles were stolen. The lower court attempted to distinguish the two prosecutions *345 by holding that the three rifles may have been received at different times: “We do not believe it inevitably follows that because objects were admittedly stolen at one time, they were necessarily received by another at the same time or as part of a same episode.” As a general proposition, this statement is certainly true. Under the facts of the instant case, however, it is impossible to sustain. In the first place, the warrant authorizing the search of appellant’s residence averred that the police had reason to believe that all the guns taken from Mr. Snyder were in appellant’s possession. Second, the indictments for both prosecutions allege that the stolen items were received on the same date, January 27, 1972. Third, and most important, the pre-trial testimony of Janet Peluso completely negates any - possibility that appellant received the guns at different times. She stated that John Bonetsky gave appellant all the guns on the evening of January 27, 1972. Thus, all the evidence available to the lower court pointed to the conclusion that the rifles were received at the same time. The lower court also knew that at appellant’s first trial, a demurrer was granted because the Commonwealth failed to prove that appellant knew the Weather by was stolen. Because that ultimate issue of fact was previously decided in appellant’s favor, the Commonwealth was precluded from bringing a second prosecution for receiving stolen goods as a different determination of that issue was necessary to prove the crime charged.
Judgment of sentence should be reversed, and appellant ordered discharged.
Cercone and Spaeth, JJ., join in this dissenting opinion.
. Appellant was never arrested for the burglary. Four persons, three of whom were juveniles, were convicted. None of the four, however, ever implicated appellant as a receiver.
. The police never questioned Mrs. Peluso because they were aware that a wife was incompetent to testify against her husband. In fact, appellant and Mrs. Peluso were divorced two weeks prior to the trial. As will be discussed, infra, her testimony was crucial to the Commonwealth’s case, and her failure to testify at appellant’s first trial was a major reason for the granting of appellant’s demurrer.
. Act of June 24, 1939, P.L. 872, §817; May 21, 1943, P.L. 306, §1; 18 P.S. §4817, superseded by Act of Dec. 6, 1972, P.L. 1482, No. 334, §1; 18 Pa.C.S. §3925.
. The lower court does not dispute this conclusion. In its opinion, the court stated: “The first indictment was dismissed because the only facts proven by the Commonwealth were that several guns had been •stolen and at some point in time defendant had been in possession of the Weatherby. Because the prosecution could not prove the requisite scienter or knowledge that the gun had been stolen, its case was obviously defective.”
. Because the Commonwealth withdrew its appeal, the demurrer is a valid and final judgment. See 18 Pa.C.S. §110(2).