concurring.
A majority of the members of this Court determined that two of the four aggravating circumstances found by the jury cannot be sustained; namely, that the victim was a prosecution witness to a murder or other felony committed by Appellant and was killed for the purpose of preventing his testimony in a grand jury or other criminal proceeding, and that the killings were committed by means of torture. 42 Pa.C.S. § 9711(d)(5) and (8).
I believe the majority was in error on both counts and I would, normally, join in a grant of reconsideration. With *72respect to aggravating circumstance No. 5, Caldwell explained that both victims were purposely killed to prevent their identifying him and his co-defendants. Both victims knew Caldwell who had done odd jobs for them in the past. In his statement to the police, Caldwell said, “I told him he had to go ahead and knock them off, like he said, he said he wasn’t. So I said, you know. But they can identify me so I’m in a spot, and so I done it and we left.” See page four, taped statement of Chris Caldwell. Other references in the statement show that Caldwell went armed to the house with the express intent of robbing and killing the victims.
Caldwell’s statement to the police clearly establishes the “animus upon which this particular aggravating circumstance rests.” “It is the full formed intent prior to the event to kill a potential witness____” Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780, footnote 2, p. 784, opinion by Mr. Chief Justice Nix, see my concurring opinion, p. 785.
Furthermore, there is absolutely no doubt in any mind that Caldwell killed his victims by means of torture and the finding by the jury of aggravating circumstance No. 8 should be sustained. Unfortunately, the charge to the jury was inadequate on the question of torture and, thus, no useful purpose would be served in granting reconsideration. The penalty would still remain at life imprisonment.
I, therefore, reluctantly concur in the denial of the Application for Reargument.