Concurring and Dissenting Opinion by
Spaeth, J.:In this case we are again presented with the difficult problem of striking a proper balance between the individual’s right to be free from unfair prosecution and the community’s right to the effective enforcement of the law. Although I agree with most of what the majority has said, I have myself struck a slightly different balance. Also, it seems to me that recent developments in the law warrant some comment.
I
I agree with the majority that under Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000 (1971), and Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 325 A.2d 289 (1974), appellant was not entitled to a preliminary hearing before indictment; that we should not consider whether appellant should have been allowed access to the grand jury testimony, since that issue was not certified to us; that the mere presence in the grand jury room of ex-grand juror Karlinski was not fatal to the indictment; *406and that the substitution of the six investigating grand jurors was unauthorized.
However, I cannot agree with the majority that the unauthorized substitution of the six investigating grand jurors was “inherently prejudicial” to appellant’s rights. (Majority opinion at 403.) I can imagine situations where such a substitution, albeit improper, would have no adverse effect upon the rights of a person being investigated by the grand jury. For example, an investigating grand jury might unanimously return a presentment concerning a given person after all its members had heard all the testimony relative to that person. In such a situation, the unauthorized substitution of six jurors would be harmless.
I agree with the majority’s (as I understand it, alternative) analysis that if actual prejudice is shown to have resulted from the unauthorized substitution, the indictments against appellant must be quashed. The majority does not say, however, that actual prejudice was shown. Rather, it only says that “it is clear from the specificity of the presentment that it could have provided the primary basis for the indictments.” (Majority opinion at 404, emphasis added.) Noting this, Judge Price says in dissent that “[t]here is no evidence that the deliberations and proceedings of the indicting grand jury were not full and complete,” adding that “an indictment cannot be invalidated by a mere suspicion.” (Dissenting opinion at 411.) It seems to me that there is here much more than mere suspicion. If practice in other cases is any guide, cf. Commonwealth v. McCloskey, supra, the indicting grand jury may have had little or nothing before it except the presentment. In that event, appellant would have suffered actual prejudice. It is not clear from the record, however, what the indicting grand jury had before it. Therefore, I would vacate the lower court’s order and remand for a hearing on this issue. If the evidence were to show that the presentment provided the primary impetus behind appellant’s indictment, I would *407join the majority. If, however, that were not the case, I would agree with Judge PRICE’S conclusion that the lower court was correct in refusing to quash the indictments.
II
As the majority opinion indicates, resolution of appellant’s attack upon the improper substitution of the six investigating grand jurors hinges upon the effect of the irregularity upon the indicting grand jury. The fundamental disagreement between the majority and dissenting opinions concerning this issue demonstrates that the isolation and detection of prejudice may prove elusive. Such case-by-case inquiry into possible irregularities in the composition of the investigating grand jury is uneconomical and a disservice to the valuable function served by that body. It should, therefore, be avoided, if — and the “if” is of critical importance — that avoidance can be accomplished without being unfair to the accused.
As stated by Chief Justice Vanderbilt:
“No community desires to live a hairbreadth above the criminal level, which might well be the case if there were no official organ of public protest. Such presentments are a great deterrent to official wrongdoing. By exposing wrongdoing, moreover, such presentments inspire public confidence in the capacity of the body politic to purge itself of untoward conditions.”
In re Presentment by Camden County Grand Jury, 10 N.J. 23, 66, 89 A.2d 416, 444 (1952). See also Johnson v. Superior Court, 15 Cal. 3d 248, 256 n.1, 124 Cal. Rptr. 32, 37 n.1, 539 P.2d 792, 797 n.1 (1975) (Mosk, J., concurring) (“[t]he grand jury serves a valuable and productive role in the area of investigation, particularly with respect to governmental corruption or ineptitude”). In my view, this valuable role could be fulfilled, and any *408possible prejudice resulting from irregularities in the investigating grand jury be fully cured, if it were held that following the presentment, the accused was entitled to a preliminary hearing, at which, after the accused had been afforded the valuable rights enumerated in Pa. R. Crim. P. 141(c), a judicial officer determined whether the accused should be held either for indictment or trial.
I recognize that this suggestion would necessitate the overruling of Commonwealth v. McCloskey, supra, and also of Commonwealth v. Columbia Investment Corp., supra, which followed McCloskey. In McCloskey our Supreme Court explicitly held that “an investigating grand jury presentment is a constitutionally permissible and reasonable alternative to a preliminary hearing.” Id. at 140, 277 A.2d at 776. In arriving at this holding the Supreme Court noted that “[t]o accede to appellee’s request would merely be subjecting the administration of criminal justice to another superfluous layer of delay and imposing an unwise burden upon our judicial process as well as upon the prosecutor and counsel for the defense with only a slight expectation for what at most would be a highly speculative de minimis advantage to an accused.” Id. at 139, 277 A.2d at 775. Even so, I submit with deference that recent developments in the law suggest that the holding of McCloskey might be reconsidered.
The first development is the decision of the Supreme Court in Commonwealth v. Webster, 462 Pa. 125, 337 A.2d 914 (1975). While I agree with the majority’s opinion in the present case that Webster does not overrule McCloskey and Columbia Investment, even so it represents, I suggest, a significant change in emphasis. In Webster, Mr. Justice Roberts (the author of the majority opinion in McCloskey), in rejecting challenges to the provisions of the state constitution and implementing legislation that at local option permit criminal prosecutions to be initiated either by indictment or information, emphasized the protective function of the *409preliminary hearing. This emphasis, in my judgment, is inconsistent with the conclusion in McCloskey and Columbia Investment that a presentment is equivalent to a preliminary hearing. I submit that it is not. As Mr. Justice Mosk, joined by Chief Justice Wright, observed in advocating that all persons accused of crime in California be afforded a post-indictment preliminary hearing, the preliminary hearing is the forum “which will permit the development not only of affirmative exculpatory evidence but also evidence gleaned from adequate cross-examination and confrontation of the state’s witnesses.” Johnson v. Superior Court, supra, at 269, 124 Cal. Rptr. at 46, 539 P.2d at 806.
The second development, also reflected in Webster, is the abolition of the indicting grand jury, not in all counties but in some, including Philadelphia. In November, 1973, the people of the Commonwealth approved a constitutional amendment permitting the courts of common pleas, with Supreme Court approval, to provide for the commencement of criminal proceedings by information rather than indictment. Pa.Const.Art. I, §10. This provision was implemented by the Act of Oct. 10, 1974, P.L. 713, No. 238, §1 et seq., 17 P.S. §271 et seq. Section 3(b) of the Act, 17 P.S. §273(b), provides that the district attorney may not file an information “where a preliminary hearing has not been held or properly waived except as provided in the rules of criminal procedure.” Section 5 of the Act, 17 P.S. §275, contains the qualification that nothing in the Act shall prohibit the impanelling or functioning of an investigating grand jury. Arguably, Section 5, and the proviso at the end of Section 3(b) (“except as provided in the rules of criminal procedure”), could be read as preserving McCloskey’s holding that investigating grand jury presentment serves as a substitute for a preliminary hearing. See also (Note following Pa.R.Crim.P. 231. This is not, however, a necessary conclusion. The elimination, in Philadelphia and other *410counties, of the indicting grand jury eliminates the “layer of delay” remarked upon in McCloskey. With that elimination the foundation of McCloskey is undermined — in my view, substantially. Section 3(b) might therefore be construed as meaning that even when an investigating grand jury has made a presentment, the district attorney may not file an information against the accused until a preliminary hearing has been held. Such a salutary construction would preserve the investigating grand jury’s role, avoid procedural battles such as in the present case, and provide scrupulous protection of the rights of the accused.
I would remand for further proceedings.