Commonwealth v. Upshur; Appeal of: WPXI, Inc. (Concurring Opinion)

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[J-60-2007] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : : : : v. : : : JAMIE LYNN UPSHUR, : : : : APPEAL OF: WPXI, INC. : No. 2 WAP 2006 Appeal from the Order of the Superior Court entered August 22, 2005 at No. 373 WDA 2004 reversing the Order of the Court of Common Pleas of Allegheny County entered March 2, 2004 at No. MISC 410 March 2004. ARGUED: September 11, 2006 RESUBMITTED: April 13, 2007 CONCURRING OPINION CHIEF JUSTICE CAPPY DECIDED: JUNE 20, 2007 I join the Opinion Announcing the Judgment of the Court in all respects. I write separately only to emphasize that WPXI is only entitled to access a copy of the audiotape. There is simply no reason that WPXI should be given custody of the tape itself, as such custody could raise serious security concerns regarding potential evidence. The risk of inadvertent destruction or loss of evidence is too great. Rather, it is within the trial court s supervisory powers to determine the best way to provide access to the audiotape in question. Additionally, I point out that the party seeking access to the document in question should be charged with the costs related to replication.

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