� 1 In this appeal we determine whether a charge of sexual assault is precluded where Richard A. Buffington has been charged and acquitted of rape and involuntary deviate sexual intercourse (IDSI). We hold that sexual assault is not a necessarily included offense of rape or IDSI. Therefore, the Commonwealth is not precluded from re-prosecuting Buffington for sexual assault where the jury acquitted him of rape and IDSI.
� 2 The Commonwealth appeals from the trial court’s order granting Buffington’s motion for judgment of acquittal and dismissing a sexual assault charge. The Commonwealth contends that the trial court erred in concluding that a sexual assault charge was precluded by collateral estoppel where a jury acquitted Buffington of rape and IDSI. After study, we agree with the Commonwealth; accordingly, we reverse the trial court order and remand for further proceedings.
� 3 The facts of this case arise from events that transpired during an Independence Day picnic at Buffington’s home. A.B. (the victim) and S.P., both sixteen, went to Buffington’s home to watch the holiday fireworks. While there, Sherry Buffington, Buffington’s wife, provided the girls with alcoholic beverages. Later that evening, one of the Buffingtons began playing a pornographic movie. At Buffington’s suggestion, the victim, S.P. and the Buffingtons began playing strip poker. Eventually, the girls became intoxicated and the victim was entirely naked. The victim then passed out. Buffington instructed S.P. to go into another room presumably because Sherry Buffington wanted to speak with her. Buffington approached the victim, began rubbing his penis against her vagina, and then put his penis in her mouth. S.P. returned to the living room to find the victim crying. The victim told S.P. that Buffington had sex with her and that she had tried to tell him “no.” The Commonwealth subsequently charged Buffington with two counts each of Disseminating Obscene Materials to Minors, Furnishing Liquor to Minors, Corruption of Minors, and one count each of IDSI by Forcible Compulsion, IDSI of an Unconscious Person, Rape of an Unconscious Person, and Sexual Assault. A jury found Buffington guilty of Disseminating Obscene Materials to Minors and Furnishing Liquor to Minors. Conversely, the jury acquitted Buffington with respect to the Rape and IDSI charges. Due to a hung jury, the trial court declared a mistrial with respect to the Sexual Assault charge. Thereafter, Buffington filed a motion for habeas corpus relief, which the court treated as a motion for judgment of acquittal. See Pa.R.Crim.P. 606(A)(3). Buffington argued that the Commonwealth could not prosecute him on a lesser-included charge of sexual assault. The trial court granted Buffington’s petition from which the Commonwealth filed this appeal.
