dissenting.
Because I am of the belief that 42 Pa.C.S. § 5947(e) creates an unconstitutional intrusion upon a contemnor’s due process rights, I dissent.
The functions of an investigatory grand jury are set by statute, rules promulgated by this Court, and case law. In essence, the purpose of the grand jury is to investigate and discover criminal acts which adversely affect and endanger the general public. McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936). To assist in the performance of the duties of the grand jury, the prosecuting attorney has been given the right to summon witnesses before the grand jury and if necessary to request immunity for their testimony. 42 Pa.C.S. § 5947(b). To enforce the immunity granted, the *81supervising judge has been armed with the authority to coerce testimony through the finding of civil contempt and the imposition of incarceration. 42 Pa.C.S. § 5947(e).
The issue that must be addressed is the validity of the legislative scheme providing a contemnor, who has refused to testify during the term of the Grand Jury, the opportunity to purge himself of contempt by testifying before the Supervising Judge. 42 Pa.C.S. § 5947(e). For the following reasons this provision of the Act must be stricken as contrary to the purpose of the Act and as repugnant to our Constitution.
If the purpose and function of the grand jury is to ascertain whether criminal acts have occurred and to bring the individuals involved to justice through the use of an indictment, then no benefit exists in requiring an individual imprisoned for failure to testify before the grand jury notwithstanding immunity to testify before a supervising judge.1 The judge as a neutral arbitrator cannot use the information received from the contemnor for the purpose of prosecuting any criminal violations. Thus, when § 5947(e) requires a contemnor to purge himself by “complying before the designated court which issued the order,” the legislature is creating a situation in which a contemnor could never purge himself, because a judge cannot use the evidence for any legitimate purpose.
Due process of law requires that a person being incarcerated for refusing to testify before a grand jury after having been granted immunity be given an opportunity to purge himself or be released from incarceration. In Re: Martora*82no, 464 Pa. 66, 346 A.2d 22 (1975). See also, Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975); Conestoga National Bank v. Patterson, 442 Pa. 289, 275 A.2d 6 (1971) (regarding the minimum requirements of procedural due process). Under the applicable statute, the contemnor is given no such opportunity since the basis for his contempt will not be relieved by the remedy provided by the legislature. As such, § 5947(e) does not become coercive (i.e., an attempt to persuade the witness to provide evidence), but punitive.2 This change in the nature of the punishment effectively denies the contemnor due process and thus violates our Constitution.
Furthermore, the procedure set forth in § 5947(e) infringes upon our constitutional concept of the judiciary. A trial judge’s role in our system of justice is not that of investigator, but a trier of fact. He is not concerned with supposition or prima facie evidence, but whether sufficient evidence has been establish to prove guilt or innocence. In the course of a trial, this significant role difference requires hearing evidence of both parties rather than exclusively the evidence of the Commonwealth. Finally, a trial judge functions in the context of an adversary proceeding. Section 5947(e) ignores this function by not only requiring a judge to take jurisdiction in a matter in which no proceeding is pending, but also reduces the role of the Supervising Judge to an adjunct investigator for the prosecuting attorney. Neither the Supervising Judge nor the Grand Jury can use any information obtained from a contemnor’s testimony. Rather the prosecuting attorney will be the only one to benefit from this testimony. Thus, the legislature is per*83mitting the prosecuting attorney to use the Supervising Judge as a discovery tool.
Likewise, since no proceeding is pending, if a grand jury term has expired, a judge has no jurisdiction to consider any matter before him. Therefore, a judge has no authority to hear a contemnor’s testimony, creating the inevitable obstacle of leaving a contemnor without any opportunity to purge himself of contempt.
Effectively, in promulgating § 5947(e), the legislature has denied a contemnor his due process rights which I cannot condone.
LARSEN and CAPPY, JJ., join in this dissenting opinion.. In support of its position that § 5947(e) is constitutional, the majority holds that permitting a witness to testify before a supervising judge aids a grand jury investigation by creating a record of that testimony which can be used if the Commonwealth elects to convene another grand jury. (See Slip Opinion at p. 10). Under this analysis the court becomes merely an appendage or vehicle of the grand jury and the prosecuting attorney’s office. I cannot accept this concept of relegating our judiciary to a conduit from whom the prosecuting attorney receives his requested information much as a house or senate committee reports to their respective bodies. The judiciary is not an arm of the prosecutor’s office, but an independent branch of government with specific constitutional powers and duties.
. In Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), the United States Supreme Court held that a civil contemnor who refused to testify before a grand jury after being granted immunity could only be incarcerated until the grand jury expired, since the coerciveness of the incarceration would end when the grand jury was no longer in session. "Where the grand jury has been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt." Id. at 371, 86 S.Ct. at 1536.