Commonwealth v. MacE , 234 Pa. Super. 463 ( 1975 )

Concurring Opinion by

Spaeth, J.:

I believe that when the prosecutor anticipates offering testimony based on physical evidence, he has a duty to preserve that evidence. Only by preserving the evidence can it be made available for pretrial discovery, if appropriate, see Pa. R. Crim. P. 310, and for production at trial. See Commonwealth v. Kontos, 442 Pa. 343, 276 A. 2d 830 (1971). As Judge Spaulding stated in his concurring opinion in Commonwealth v. Cromartie, 222 Pa. Superior Ct. 278, 282, 294 A.2d 762, 764 (1972):¹

“[A]Rowing the state to bring in testimony based on physical evidence within its exclusive control while denying a defendant the opportunity to examine physical evidence amounts to a denial of due process when the opportunity to examine is crucial to defendant’s ability to effectively impeach or contradict the state’s witness, and when the physical evidence operates to establish an element of the crime or a direct link between the defendant and the crime alleged.”

In the present case, the failure to preserve the autopsy specimens appears to have done appellant no harm. For that reason, I concur in affirming the judgment of sentence.

Hoffman, J., joins in this opinion.

1 . Hoffman and Cercone, JJ., joined in this concurring opinion.