Tuesday 22nd April, 1997.

Phillip Deangelo Harris, Jr., Appellant, against Record No. 1952-95-2 Circuit Court No. F-95-2158 Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc Before Judges Benton, Coleman, Willis, Elder, Bray, Fitzpatrick, Annunziata and Overton

Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

In Harris v. Commonwealth, 23 Va. App. 311, 477 S.E.2d 1 (1996), a majority of a panel of the Court reversed the judgment of the trial court. The Commonwealth's petition for rehearing en banc was granted and heard on March 20, 1997. For the reasons stated in the panel's majority opinion, the majority reverses the decision of the trial court. Accordingly, the stay of this Court's October 15, 1996 mandate is lifted.

Judges Willis, Fitzpatrick and Overton would affirm the judgment of the trial court for the reasons stated in the dissenting opinion of the original panel decision.

This order shall be published and certified to the trial court.

A Copy, Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk