Petition for Review and Petition to Assume Plenary Jurisdiction over Petition for Review from Orders Dated October 20, 1987 and October 22, 1987, In Re: The Fifth Statewide Investigating Grand Jury, Pennsylvania Supreme Court Docket No. 5 M.D. 1986, Dauphin County Common pleas Docket NO. 280 M.D. 1986.
Henry G. Barr, Joel R. Burcat, Harrisburg, for petitioner.
Keith F. Welks, Sp. Prosecutor, Chief Counsel, LeRoy S. Zimmerman, Atty. Gen., Robert A. Graci, Deputy Atty. Gen., Harrisburg, Nancy M. Sobolevitch, Court Adm'r, for respondent.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion in which Flaherty, McDermott and Papadakos, JJ., join.
Upon consideration of the Motions to Dismiss Petition for Review and Petition to Assume Plenary Jurisdiction filed by Respondent, Leroy S. Zimmerman, Attorney General, and the Reply filed by Petitioner Elmer R. Baumgardner, the Petitions are hereby dismissed as moot.
LARSEN, Justice, concurring.
For procedural reasons I agree that this case should be dismissed as moot. However, it should be pointed out to the prosecutor that he should not, in the grand jury proceedings, assume the position of a jurist. All counsel should be on equal footing and when the prosecutor sits in a judge's chair behind a judge's bench, and interrogates witnesses therefrom, he communicates to the members of the Grand Jury that he has some "special" judicial type powers. This distortion impedes the jurors' ability to fulfill their duty i.e., determine facts.