Commonwealth v. Lester , 554 Pa. 644 ( 1998 )

NIGRO, Justice,

concurring.

I join the opinion of the majority with the exception of its analysis on Appellant’s claim that the trial court erred in instructing the jury on the aggravating circumstance of torture. As recognized by the majority, the trial court did not instruct the jury that the aggravating circumstance of torture requires an intent to cause pain or suffering to the victim in addition to the intent to kill the victim. This Court has required such an instruction. See Commonwealth v. Edmiston, 535 Pa. 210, 236, 634 A.2d 1078, 1091 (1993); Commonwealth v. Crawley, 514 Pa. 539, 564, 526 A.2d 334, 347 (1987); Commonwealth v. Nelson, 514 Pa. 262, 280, 523 A.2d 728, 737 (1987). The majority finds the trial court’s instruction in this case similar to the instruction approved of in Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). However, in Pursell, unlike in this case, the court instructed the jury that torture requires “an intention to inflict pain, suffering or both pain and suffering.” 508 Pa. at 239 n. 13, 495 A.2d at 197 n. 13. Although the trial court’s instruction was erroneous under the above-stated authorities, a new penalty hearing is unnecessary since the jury found one other aggravating circumstance and no mitigating circumstances. In this situation, the sentence of death is required. 42 Pa.C.S. § 9711(c)(1)(iv). Thus, I concur in the result reached by the majority on this issue.

Justices ZAPPALA and GAPPY join in the concurring opinion.