dissenting.
Respectfully, I dissent from so much of the majority opinion as finds that the Commonwealth committed no error when it permitted the victim’s body to be destroyed while the defendant’s motion for an independent examination of the body was pending.
At the time defense counsel moved the court for permission to examine the body, *187and noticed the Commonwealth Attorney accordingly, the body was in the custody of the State Forensic Anthropologist, Dr. David Wolfe. There is no question but that, upon receipt of the motion, the Commonwealth Attorney could have notified Dr. Wolfe to hold the body, which would have prevented destruction of the evidence.
It is no answer to say that, “if there was a duty to notify the coroner before the hearing [on the motion], it was borne equally by Scott’s lawyer.” Majority Opinion, p. 185. The Commonwealth, through its officials, had both possession and control of the body. There is no doubt in my mind but that state officials would respect a request from the Commonwealth Attorney to hold the body pending a decision on the defense’s motion. On the other hand, there is no reason to suspect that defense counsel had access to information as to location of the body, or, if he did, any authority to control its disposition.
The testimony at trial from the state’s forensic anthropologist, which went unchallenged, was the principal evidence against the defendant. His testimony identified the body, established that the victim was killed by two shots from a shotgun, and placed the time of death in the summer of 1982, consistent with the time of her disappearance. Both the time of death and the weapon and the ammunition which were used to kill her were important evidence open to question on independent examination of the body.
Thus the Commonwealth destroyed important, material evidence, and denied the defendant the right to conduct tests in his own defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a host of other eases hold that where the prosecution “witholds evidence on demand of an accused which, if made available, would [or might] tend to exculpate him or reduce the penalty,” such is a violation of due process. 373 U.S. at 87-88, 83 S.Ct. at 1196-1197.
The issue is not whether the appellant can prove that an independent examination of the body would have produced evidence favorable to the appellant. The principle which we should apply here is thus stated in Stipp v. State, Fla.App., 371 So.2d 712, 713 (1979):
“It is wrong for the state to unnecessarily destroy the most critical inculpatory evidence in its case against an accused and then to be allowed to introduce essentially irrefutable testimony of the most damaging nature against the accused.”
Unfortunately, were we to exclude the evidence from the state’s forensic anthropologist, the remaining evidence falls far short of a submissible case. The Commonwealth concedes that without this evidence, it has no case. Thus, a proper disposition in the circumstances is not only to reverse and remand for a new trial because of trial errors, as ordered by the Majority Opinion, but to reverse and dismiss.