¶1dissenting.
¶2The majority summarily dismisses all of appellant Benjamin Valesquez’s claims of ineffective assistance. I cannot agree, however, that they all lack merit. Appellant claims that identification evidence introduced at trial should have been suppressed as the tainted product of a suggestive pre-arrest photo display. Appellant further claims that counsel was ineffective in failing to pursue this suppression claim in post verdict motions and on appeal. I agree, however, and therefore dissent from the majority opinion.
¶3In Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Supreme Court “recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals.” The danger of misidentification is introduced when police show the witness
“the pictures of several persons among which the photograph of a single such individual . . . is in same way emphasized. . . . [T]he witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.”
¶4Id.,390 U.S. at 383-84, 88 S.Ct. at 971 (footnotes omitted). To ensure the trustworthiness of subsequent identifications, the Commonwealth has the burden of proving by clear and *248convincing evidence that, despite the suggestive factors in the photo identification, the subsequent identifications have an independent source. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
¶5In the instant case, the police showed two Commonwealth witnesses, one of whom was twelve years old, “mug shots” of eight or nine males. The photograph of appellant depicted him bare-skinned, exposing a livid scar across his chest. The other eight photographs depicted men fully clothed. On the basis of this record, I must conclude that the Commonwealth failed to satisfactorily prove that the identification evidence was independent of the suggestive photo display.
¶6Counsel’s failure to challenge the suppression court’s rejection of the claim of tainted identification evidence “must be justified by some reasonable basis intended to inure to the client’s benefit.” Commonwealth v. Yocham, 473 Pa. 445, 451, 375 A.2d 325, 328 (1977). If not, counsel’s abandonment of the claim post-trial constitutes ineffective assistance. In light of my conclusion that the suppression court erred in denying appellant’s motion, there can be no reasonable basis for counsel’s failure to pursue that claim.
¶7Accordingly, I would vacate judgment of sentence and remand for a new trial.