Commonwealth v. Elliott

ZAPPALA, Justice,

concurring.

I join in affirming the judgement of sentence. I write separately, however, to express my disagreement with the conclusion that sufficient evidence supported the aggravating circumstance of torture, 42 Pa.C.S. § 9711(d)(8). Because there was sufficient evidence supporting the aggravating circumstance that the killing was committed while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and no mitigating circumstances were found, the death sentence may be affirmed despite this conclusion. See 42 Pa.C.S. § 971 l(h)(3)(ii).

In our recent decision in Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305 (1996), we discussed what is necessary to establish the aggravating circumstance of torture.

As [former] Chief Justice Nix noted in Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987),
The aggravating circumstance provides an additional element to the intentional killing which justifies the ultimate sentence. Thus subsection 8 of section 9711 must of necessity require more than a mere intent to kill.
*158Implicit in subsection 8 is the requirement of an intent to cause pain and suffering in addition to the intent to kill.
Id. at 279-280, 523 A.2d at 737. (footnote omitted). Neither the efficacy of the means employed by a defendant to murder his victim nor the immediacy of death is itself determinative of the question whether the offense was committed by means of torture. Commonwealth v. Caldwell, 516 Pa. 441, 448, 532 A.2d 813, 817 (1987). There must be an indication that the killer was not satisfied with the killing alone. Commonwealth v. Edmiston, 535 Pa. 210, 236, 634 A.2d 1078, 1091 (1993).

Id. at 551, 681 A.2d at 1321.

The majority fails to apply these concepts. The record establishes that the victim was beaten, dragged across the floor, raped, sodomized, and strangled both manually and with a severed electrical cord. Although the acts committed by Appellant are deplorable, we must adhere to the legal definition of the word torture. As stated in Auker, many homicide victims suffer considerable pain and anguish, yet only a narrow category of “torturous” acts warrant the most severe penalty of death. See Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991) (torture established when, prior to strangling the victim, the defendant viciously beat, raped and sodomized her, and repeatedly cut her neck with a piece of broken glass and bit her face); Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d 626 (1995) (torture established when victim was alive when defendant inflicted injuries including multiple stab wounds, blunt force injuries, a fractured nose, abrasions, lacerations; victim was stabbed repeatedly and set on fire); Commonwealth v. Lee, 541 Pa. 260, 662 A.2d 645 (1995), cert, denied, — U.S.-, 116 S.Ct. 1831, 134 L.Ed.2d 935 (1996) (torture established when the defendant repeatedly slashed the face and hands of the victims, which are areas sensitive to pain yet unlikely to result in death).

In the aforementioned cases, the defendants all inflicted injuries which were not necessary to the killing of the victim and which establish that the defendant specifically intended *159for the victim to suffer rather than merely die. To the contrary, the abhorrent acts committed by Appellant in this case did not establish a separate intent to inflict pain beyond that which was necessary to complete the crimes of rape and murder. Accordingly, I am constrained to conclude that the aggravating circumstance of torture was not established.