Concurring Opinion by
Jacobs, J.:I concur in the result reached by the majority because I believe that the failure of the Commonwealth to produce the photographic layout at the suppression hearing upon request violated appellant’s rights to due process of law. However, in my opinion, it was unnecessary to consider whether Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919 (1970), requiring counsel at a photographic layout after a defendant has been arrested, is still the law of Pennsylvania. In the present case, the appellant was not under arrest for the offense in question when the witness was shown the photographic layout but was in custody for an unrelated burglary investigation. For that reason, I believe that Commonwealth v. Whiting, supra, has no application.