dissenting.
I agree with the. view expressed in the majority opinion that Lewis is not procedurally barred from raising the issue of the sufficiency of the evidence to support the conviction. However, because the other crimes evidence was prejudicial, I would reverse and remand for a new trial.
*605Absent well established exceptions, evidence that a defendant has committed crimes other than the offense for which he then is being tried is inadmissible. See Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 892-93 (1983); King v. Commonwealth, 217 Va. 912, 914, 234 S.E.2d 67, 69 (1977). To be admissible as an exception, evidence of other offenses must be relevant “(1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity; (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operandi; or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part.” Sutphin v. Commonwealth, 1 Va. App. 241, 245-46, 337 S.E.2d 897, 900 (1985). The rationale behind the general rule of inadmissibility of evidence of other crimes is that “such evidence confuses one offense with the other, unfairly surprises the defendant with a charge he is unprepared to meet, and, by showing that the [defendant] has a criminal propensity, tends to reverse his presumption of innocence of the crime on trial.” Lewis, 225 Va. at 502, 303 S.E.2d at 893. I dissent from the majority opinion because this case does not fall within the exceptions to the rule barring evidence of other crimes.
This appeal arose from the conviction of Gary Anthony Lewis for the robbery of employees of a pizza restaurant on July 30, 1986. All three of the employees of the restaurant identified Lewis as the gunman who committed the robbery. None of the employees was able to identify the person who remained outside the store. As a witness for the Commonwealth, Sheppardson testified that he remained outside the restaurant and acted as a lookout while Lewis committed the robbery.
Prior to the testimony of Andre Robinson, one of the employees, defense counsel moved the trial judge to forbid Robinson from making any reference to another robbery (the first robbery) which occurred three weeks prior to the July 30 robbery. Robinson was questioned under oath out of the presence of the jury concerning the historical facts. Following a conference in chambers, the Commonwealth’s Attorney said “I am going to elicit from . . . *606Robinson ... the testimony that [Lewis] was involved in the prior robbery.” However, the entire context of the discussion on record suggests that he apparently agreed not to question Robinson concerning the first robbery unless defense counsel raised on cross-examination the question of identification. The trial judge stated that he would rule if, and when, the issue arose during Robinson’s testimony. The trial judge also instructed Robinson not to mention the first robbery unless defense counsel “specifically asked . . . about it.” Robinson then testified before the jury and identified Lewis as the person who robbed him on July 30. He testified that Lewis was standing across a desk from him in a brightly lighted room and was holding a blue rag in an attempt to mask part of his face. On cross examination Robinson was asked:
Q Did you ever pick this man out of any photographs shown to you by the police officers?
A No.
Q Do you recall the preliminary hearing when we were in court before, in lower court on this case?
A Yes.
Q Do you recall that you testified that you picked this man out of a photo spread?
A Yes.
Q But that’s not what you did?
A No.
He was also questioned concerning Lewis’ appearance on July 30 and the description of the gunman that he gave to the police.
On redirect examination Robinson stated that the person whose picture he picked from the photographic spread participated in the first robbery and that Lewis’ picture was not in that photographic spread. The Commonwealth then asked Robinson: “Now, have you ever seen the defendant on any other occasion prior to July 30th?” Over defense counsel’s objection, Robinson stated that Lewis participated in the first robbery. He then was permitted to testify in detail concerning the circumstances of the first robbery. *607Defense counsel’s motion for a mistrial was denied.
In Day v. Commonwealth, 196 Va. 907, 914, 86 S.E.2d 23, 26-27 (1955), our Supreme Court stated the general rule concerning the admissibility of evidence of other offenses:
The accepted rule to be derived from the cases is that evi-. dence which shows or tends to show the accused guilty of the commission of other offenses at other times is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense similar to that charged; but if such evidence tends to prove any other relevant fact of the offense charged, and is otherwise admissible, it will not be excluded merely because it also shows him to have been guilty of another crime.
One of the exceptions to the general rule barring evidence of other crimes involves the use of other crimes evidence to prove identity.
Underlying this exception is the probability that a person who performs one act is the person who also performed another distinctively similar act. For this probability to exist the criminal acts must be “so distinctive as to indicate a modus operandi.” Mere similarity standing alone is not enough. “Generally, the device used to commit the crime, or the manner in which the crime was committed, must be so unusual and distinctive as to act as a signature.” The crimes must reflect a modus operandi that is so distinctive that it identifies the accused as the person who committed both offenses.
Henderson v. Commonwealth, 5 Va. App. 125, 128, 360 S.E.2d 876, 878 (1987)(citations omitted); see also Sutphin, 1 Va. App. at 246-47, 337 S.E.2d at 900.
In this case the majority opinion does not determine that the evidence of other crimes is “so unusual and distinctive as to act as a signature.” Id. Rather, it holds that evidence of other crimes may be admitted merely to bolster a witness’ identification of the defendant when the witness’ testimony lacks clarity. I respectfully disagree. Neither of the two cases cited in the majority opinion for that proposition authorizes such use. See Hawks v. Commonwealth, 228 Va. 244, 321 S.E.2d 650 (1984)(evidence of a rape *608which occurred during an abduction was admissible to prove intent to deprive of personal liberty); Evans v. Commonwealth, 222 Va. 766, 773-74, 284 S.E.2d 816, 820 (1981), cert. denied, 455 U.S. 1028 (1982) (evidence of pending charges admissible in a capital murder trial to show defendant’s state of mind when he killed a sheriff during an escape from jail). See also Williams v. Commonwealth, 203 Va. 837, 127 S.E.2d 423 (1962)(evidence of prior assault by defendant against victim inadmissible to prove deliberation or premeditation in the commission of a murder months after the assault prosecution); Day v. Commonwealth, 196 Va. 907, 86 S.E.2d 23 (1955) (evidence that defendant chased a woman shortly before he was alleged to have raped another woman was inadmissible to establish intent to molest women and was of “doubtful” probative value as to identity); Curtis v. Commonwealth, 3 Va. App. 636, 352 S.E.2d 536 (1987) (evidence of prior rapes which were “so unusual and distinctive as to act as a signature” was admissible to prove identity of defendant as perpetrator in a rape case with “overwhelming similarities”); Sutphin, 1 Va. App. 241, 337 S.E.2d 897 (1985) (evidence of another burglary inadmissible to prove identity of defendant as perpetrator of subsequent, separate burglary because evidence did not establish that method of committing the burglaries was so distinctive as to indicate a modus operandi).
Even if we assume that the use of this evidence was permissible as an exception to the general rule, the legitimate probative value does not outweigh the prejudice to the accused. See Hawks, 228 Va. at 247, 321 S.E.2d at 652; Curtis, 3 Va App. at 638, 352 S.E.2d at 537-38. The majority opinion concludes that evidence of the first robbery was necessary to dispel any confusion raised in the minds of the jury as to why Robinson identified Sheppardson in the photo spread. Robinson’s testimony concerning Lewis’ alleged involvement in the first robbery, however, simply was not probative of why Robinson identified Sheppardson in the photo spread instead of Lewis. Nor was that testimony probative with respect to Robinson’s statement on cross-examination that he had doubt at the preliminary hearing whether Lewis was the robber on July 30. At the time of the preliminary hearing Robinson was able to identify by sight the persons who committed the first robbery, and thus expressed certainty that Lewis was involved in the first robbery. However, despite seeing Lewis at the preliminary hearing, Robinson apparently expressed doubt at the time that Lewis *609robbed him on July 30. Thus, proof that Lewis was a participant in the first robbery, which occurred prior to the preliminary hearing, could not have tended to make Robinson’s identification of Lewis as the July 30 robber any more certain.
Moreover, Robinson testified that he identified Sheppardson as the robber in the July 30 robbery because he was asked to “pick out the person that [he] recognized.” Lewis’ photograph was not in the photographic spread that Robinson viewed. On redirect examination, Robinson’s explanation that he recognized Sheppard-son from a prior robbery served to simply and fully clarify the reason he had identified Sheppardson from the photographic spread. No further clarification was necessary and none ensued from Robinson’s subsequent testimony that Lewis had been involved in the prior robbery as well. Robinson also explained in his testimony that his misstatement at the preliminary hearing occurred because he was confused by the question that was asked. Whatever confusion Robinson may have experienced at the preliminary hearing had an explanation independent of the circumstances surrounding Lewis’ involvement in the first robbery.
Whether evidence is admissible always depends upon its probative value. See Day, 196 Va. at 912-13, 86 S.E.2d at 26-27. The basis for allowing proof of other offenses is that they are probative of contested issues in the case. If the only evidentiary value of another offense is to inferentially prove propensity to commit crimes, as it did in this case, such evidence cannot be admitted. Id. Other than exposing Lewis to the jury as a person who had a propensity to commit crimes, the testimony concerning the first robbery was immaterial.
Not only was the probative value of the testimony lacking, the testimony also was highly prejudicial. As aptly stated in Day: *610Id. at 915, 86 S.E.2d at 27. The prejudice was significant because the jury, which had to determine Lewis’ guilt, also fixed punishment. The evidence of prior offenses not only had the tendency to reverse the presumption of innocence, but it also impermissibly added an aggravating factor for the jury to consider in fixing punishment. The evidence was irrelevant, prejudicial, and should have been barred. See Donahue v. Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768-74 (1983); Eccles v. Commonwealth, 214 Va. 20, 22-23, 197 S.E.2d 332, 333 (1973); Boyd v. Commonwealth, 213 Va. 52, 53, 189 S.E.2d 359, 360 (1972); Fleenor v. Commonwealth, 200 Va. 270, 275-76, 105 S.E.2d 160, 164 (1958).
*609[The witness’s] detailed testimony constituted no material link in the chain of evidence, and obviously tended to inflame the minds of the jury and prejudice them against the defendant. This testimony amounted to a distinct charge which the defendant was not required to defend and which was not intimately connected and blended with any constituent element of any of the three serious offenses for which he was on trial.
*610Moreover, I disagree with the majority opinion’s view that defense counsel’s examination of Robinson opened the door for this prejudicial evidence. Defense counsel obviously had to make a difficult decision whether to question Robinson concerning his identification of Lewis. However, Robinson testified on cross-examination that at the time of the preliminary hearing he had some doubt as to whether Lewis was the person who robbed him July 30. Defense counsel obviously wanted to bring before the jury Robinson’s doubt, as expressed at the preliminary hearing, whether Lewis in fact was the robber.
The judge declined to rule on defense counsel’s motion prior to Robinson’s testimony. Instead, he stated that he would rule at the appropriate time during the testimony. When called upon to rule during Robinson’s testimony, there was no suggestion that the other crimes evidence was probative of any issue in the case and no evaluation of its potential prejudicial effect. The judge simply stated: “It is proper for the Commonwealth’s Attorney to show that he has seen the witness before and under what circumstances.” Testimony concerning the first robbery could not assist the jury in weighing Robinson’s testimony at the preliminary hearing and would only impermissibly suggest to the jury that Lewis must have been the robber because he committed the first crime.
For these reasons, I would reverse the conviction.
*611ORDER
VIRGINIA:
In the Court of Appeals of Virginia on Wednesday, the 7th day of February, 1989.
Shahee Akbar, Appellant,
against
Commonwealth of Virginia Appellee.
Counsel for the defendant has moved for leave to withdraw. Anders v. California, 386 U.S. 738 (1967), specifies a basis upon which counsel may, after taking specified measures to protect an indigent defendant’s due process rights on appeal, request leave to withdraw:
The constitutional, requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae .... Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
Id. at 744 (footnote omitted).
*612The petition filed in this appeal does not satisfy the Anders requirements. The motion to withdraw is accompanied by a petition stating that “there is nothing in the record to support the appeal.” This assertion fails to meet counsel’s responsibility to his client and the Court, as defined in Anders, to file a “brief referring to anything in the record that might arguably support the appeal.” Id. at 744 (emphasis added). Counsel states in his motion and petition that “he believes the appeal is wholly frivolous after conscientious examination of the record.” Until relieved of his responsibility, counsel remains an advocate for his client, not an amicus curiae. Although counsel may advance as his reason in support of his motion to withdraw his assessment that the appeal is frivolous, he may do so only after asserting as an advocate in his client’s behalf all arguments “that might arguably support the appeal.” For in the final analysis, this court, not defense counsel, must determine whether the appeal is frivolous. Robinson v. Black, 812 F.2d 1084, 1087 (8th Cir. 1987) (citing Smith v. United States, 384 F.2d 649 (8th Cir. 1967)). Defense counsel has, in effect, assumed the role of counsel for the Commonwealth. See Penson v. Ohio, 57 U.S.L.W. 4020 (Nov. 29, 1988). Furthermore, a copy of the petition and motion to withdraw have not been furnished to the defendant, apparently because he left the Commonwealth after serving his sentence on these convictions. Nevertheless, counsel states that he believes the defendant is incarcerated somewhere in New Jersey. Accordingly, the motion to withdraw is denied.
Counsel is directed to file an amended petition within fifteen days. This direction is given without prejudice to counsel’s right to file, if he be so advised, a brief and motion fully complying with Anders. Counsel shall also make a bona fide effort, with the assistance of the Commonwealth if necessary, to locate the defendant and provide him a copy of the motion to withdraw, the petition and amended petition, and this order. If counsel locates the defendant and mails the documentation to him, the defendant may, if he be so advised, file with the Clerk of the Court of Appeals in Richmond within thirty days from the date counsel certifies that he has mailed the documents by first class mail to the defendant, his petition or pleading raising any point he chooses. Counsel shall report his efforts, whether he located the defendant, and his compliance with this order, until the coming in of which this matter is continued.
*613Because the issues addressed herein reoccur with sufficient regularity that members of the bar may benefit from the directives herein, the clerk is directed to have the order published.