dissenting:
When confronted with a claim of ineffective assistance of counsel this court undertakes a two-step analysis. First, we must determine whether the issue underlying the claim has arguable merit. If we find such arguable merit, then we inquire whether there was a reasonable basis for counsel’s action or inaction. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, 285 Pa.Super.Ct. 295, 427 A.2d 231 (1981). In this case the claim is that counsel was ineffective for not “raising the issue” of a one-on-one confrontation between the victim and the defendant three days after the defendant robbed the victim at gunpoint. The police brought two suspects in a car to the victim’s store and asked her if they were the robbers. The victim responded that she couldn’t be sure. At the preliminary hearing she did identify the defendant. At trial she testified that she recognized him as the robber because he had been a customer.
Firstly, at trial the jury knew of her earlier equivocation, and could therefore accord to her identification of the de*74fendant what weight it chose. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Boone, 287 Pa.Super.Ct. 1, 429 A.2d 689 (1981). Secondly, the identification of the defendant at the preliminary hearing had a basis independent of any recognition tainted by the earlier confrontation. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971); Commonwealth v. Townsend, 280 Pa.Super.Ct. 155, 421 A.2d 452 (1980); Commonwealth v. Perdie, 249 Pa.Super.Ct. 406, 378 A.2d 359 (1977). Thirdly, two customers in the store also identified the defendant.
The test of the validity of the pre-trial confrontation is whether, considering the totality of the circumstances, the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973). ,
Based on the totality of the circumstances surrounding this case, there would have been no due process violation found and hence counsel was not ineffective for not “raising the issue.”
I therefore would affirm the denial of the PCHA petition.