¶1CONCURRING: I concur fully with the Majority.
¶2Being empathetic with the predicament of the Commonwealth in this case, I wish to write further.
¶3There were options to the time consuming and unproductive course followed in this case. We recognize that here the prosecutor was left with no choice but to move to dismiss the indictment, once it was apparent that going forward was futile. Not only can going forward be futile in this type of situation, it can be fatal to the case. Jeopardy would bar a subsequent trial if the defendant is either acquitted or the action dismissed on directed verdict.
¶4But once the indictment is dismissed pursuant to the Commonwealth’s request, as here,, the prosecutor has two choices. He or she can carefully evaluate the case and decide whether to proceed with the prosecution or decline. If it is decided to proceed, then a new indictment must be obtained. Immediately and before a trial date is set, a motion in limine will once again get the controversial issues before the trial court for a formal ruling. If an adverse ruling is once again the result, an extraordinary remedy must be sought by an . appeal to a higher court for a writ.
¶5I dare not venture into the merits of such an effort in this case,' as it would be both premature and inappropriate. But procedurally it would appear to me that is the proper course for prosecutors to take when confronted with such a dilemma.
¶6Keller, J., joins.