dissenting.
While I agree with the majority’s conclusion that Appellant’s claim has arguable merit and that counsel is deemed *600effective if any reasonable basis exists, I disagree with its conclusion that counsel had a reasonable basis for his actions and that Appellant was not prejudiced. Therefore, I dissent.
First, I find no reasonable basis for defense counsel questioning the probation officer during the adjudicatory portion of the trial. The explanation offered at sidebar was a mistake on the part of defense counsel in that he was offering the testimony to mitigate against the death penalty. Clearly, this type of testimony is only appropriate at the penalty phase and should not have been pursued during the adjudication stage.
Additionally, I disagree with the majority’s finding regarding the reasonableness of counsel’s actions. Counsel testified that he placed Appellant’s probation officer on the stand in hopes of rebutting the Commonwealth’s case in chief by showing that following the shooting Appellant had engaged in a course of conduct inconsistent with, the actions one would normally take after committing a murder. The majority finds that “[t]he fact that the trial judge refused to admit such evidence does not create a claim of ineffective assistance since the attempt to introduce the evidence was a reasonable strategic choice between doing nothing to rebut the Commonwealth’s case, and attempting to rebut the Commonwealth’s evidence with the only evidence available.” Op. at 598 (footnote omitted). I disagree with the finding that this strategic choice was reasonable.
During post-trial motions, counsel explained that the probation officer’s testimony that Appellant reported regularly would contradict the Commonwealth’s testimony that Appellant had evaded the police for over a year and, therefore, would remove the indicia of guilt suggested by Appellant’s continued flight. However, Commonwealth witnesses testified about several acts of flight that took place after the time period for which the probation officer had knowledge. Thus, the inference of guilt from these acts of flight would have remained regardless of the probation officer’s testimony. As a result, counsel’s “strategic choice” had no reasonable basis.
*601Counsel’s assertion that the testimony of the probation officer could put a question in the jurors’ minds as to the mens rea of Appellant has no reasonable basis either. Defense counsel stated that the jury might have believed that Appellant would not continue to report to the probation officer, even until October, if he had just committed this vicious attack. However, any possible benefit Appellant might have received from this theory was minimal in contrast to the harm he suffered when the jury became aware of his prior criminal conduct. This action was clearly unreasonable. “The presumed effect of [evidence of prior criminal conduct] is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.” Commonwealth v. Groce, 452 Pa. 15, 19, 303 A.2d 917, 919, cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973) (quoting Commonwealth v. Trowery, 211 Pa.Super. 171, 173-74, 235 A.2d 171, 172 (1967)). Therefore, this explanation is unreasonable also.
Finally, defense counsel’s statement during the post-trial hearing that the probation officer was the only witness available at the time the defense was to be presented is certainly not a reasonable basis for counsel’s actions. Rather, as the trial court correctly stated, “in view of the evidence presented at trial, especially the fact that there was no live eyewitness testimony at the trial identifying the defendant as the perpetrator of these crimes, introduction of any information involving a prior criminal record was devastating.” Commonwealth v. Douglas, Nos. 2326-28, 2334-36 August Term 1981, slip op. at 6 (C.P. Philadelphia County November 16, 1988).
Therefore, in considering all of the possible explanations proffered by defense counsel, including those offered in hindsight, I am constrained to conclude that no reasonable explanation exists to support counsel’s actions in pursuing the line of questioning which would elicit Appellant’s prior criminal activities. Moreover, I can find no other reasonable basis for counsel’s actions.
After determining that trial counsel’s actions were not reasonably designed to protect Appellant’s interests, a determina*602tion as to whether counsel’s actions prejudiced Appellant must be made. Commonwealth v. Eisenhart, 531 Pa. 103, 611 A.2d 681 (1992). In Eisenhart, this Court set forth the test for examining the effect of improperly admitted evidence, such as testimony by a probation officer, as follows:
[Ejvidence improperly admitted can be treated as harmless on any of the three grounds, namely, [1] that the evidence of guilt, without regard to the tainted evidence, is so overwhelming that conviction would have followed beyond a reasonable doubt without regard to it, [2] that the tainted evidence was merely cumulative of other proper persuasive evidence on the issue for which it is offered, or [3] that it was so slight or tangential in its effect that its influence on the jury can be determined to be de minimus.
Id. at 111, 611 A.2d at 685 (citing, Commonwealth v. Norris, 498 Pa. 308, 317, 446 A.2d 246, 250 (1982)).
When analyzed under the Eisenhart standard, the facts of this case establish the prejudicial nature of the evidence presented by putting the probation officer on the stand. Here, there was no live eyewitness testimony at the time of trial and very little circumstantial evidence to support the Commonwealth’s charges against Appellant. Therefore, it cannot be concluded that the jury would have convicted Appellant without. regard to his prior criminal record. Further, there was no additional proper evidence as to Appellant’s prior criminal record, and thus, the evidence is not merely cumulative. Finally, the inference of guilt which attaches to the admission of prior criminal activity cannot be considered de minimus in a case with such a dearth of other evidence against Appellant.
Accordingly, I would reverse the Order of the Superior Court and remand the matter to the Court of Common Pleas for a new trial.
ZAPPALA, J., joins in this dissenting opinion.