concurring.
I join in the affirmance of appellant’s conviction and sentence of death. However, due to the fact that in reaching this result the majority continues to cling to the interpretation of 42 Pa.C.S. § 9711(d)(8) articulated by this court in Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987), I write separately for I feel Nelson is based on a misreading of section 9711(d)(8) and should be overruled.
The majority today holds that appellant’s claim of ineffective assistance fails on the ground that appellant was not prejudiced by his trial counsel’s failure to request that a definition of the word torture be given to the jury by the trial court. This conclusion rests on the premise that a jury could infer solely from the gruesome facts of this case that in addition to the intent to kill appellant also possessed the separate specific intent to inflict an extreme amount of pain and suffering upon the victim which Nelson requires for section 9711(d)(8) to apply as an aggravating circumstance. See Commonwealth v. Caldwell, 516 Pa. 441, 532 A.2d 813 (1987), reh’g denied, 520 Pa. 69, 550 A.2d 785 (1988) (defendant’s act of slashing the victims’ throats was insufficient to establish that the offense was committed by means of torture even though victim did not die instantaneously since efficacy of means employed did not establish that the defendant specifically intended to cause pain and suffering or was not satisfied with the killings alone); Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987) (absence of instruction that in order to establish that the offense was committed by means of torture the Commonwealth must prove that the defendant had the specific intent to inflict pain, suffering, or pain and suffering in addition to the specific intent to kill was prejudicially deficient). I now write separately for I believe this analysis begs the question of *545whether Nelson’s requirement of a separate intent to torture is a correct interpretation of the language of section 9711(d)(8). Since I believe it is not, I believe Nelson should be discarded.
42 Pa.C.S. § 9711(d)(8) provides for the finding of an aggravating circumstance when “the offense was committed by means of torture” not whether the offense was committed with the intention to torture. The legislature’s use of the word “means” requires a focus on the modus operandi by which an actor’s intent to kill is effectuated as opposed to the actor’s intentions. Nevertheless, this court in Nelson and its progeny has created an additional element of intent to torture which is simply not found in the language of the statute. This is incorrect. What is proscribed is an intentional killing that is inflicted by means of intense pain, regardless of the actors intentions. As stated by Justice McDermott in his dissent in Nelson:
A killing by “means of torture” does not require that torture be the reason for the employment of painful means. The means of killing are evidence of intention that when proved are subsumed by the intention to kill, and where that intention is manifested by the unnecessary infliction of pain the torture proscribed by the statute may be considered in imposing sanction.
What is proscribed is the infliction of pain that accompanies the intention to kill. It cannot matter to the victim that his killer is a bungler, unfamiliar with the state of the art, or did his best with the means at hand. If the means employed inflict pain as defined in Pursell, [508 Pa. 212, 238, 495 A.2d 183, 196 (1985) ], the killer ought not be heard to say that the pain was a mere by-product of his killing.
Nelson, 514 Pa. at 284, 523 A.2d at 739 (McDermott, J., dissenting).
Under the brutal facts of the instant case, I do not believe that an instruction informing the jury that section 9711(d)(8) requires an intentional killing inflicted by means causing excruciating pain for the aggravating circumstance to apply *546would in any way change the outcome of appellant’s sentencing proceeding. A jury is perfectly capable of arriving at such a definition through their common understanding of the phrase “by means of torture.” Thus, I agree with the majority that appellant’s claim fails the prejudice prong of the test for ineffective assistance of counsel.
I disagree, however, with the majority’s conclusion that if Nelson’s definition of torture were given to the jury in the present case there is no reasonable probability that the outcome of the proceeding would be different. I do not believe the laymen’s understanding of the words “by means of torture” incorporates the concept of a separate intent to torture which Nelson requires. Thus, if the jury were given the definition of torture articulated in Nelson, I believe there is a reasonable possibility that at least one juror could find that the aggravating circumstance of “the offense was committed by means of torture” did not apply. Hence, I would hold that appellant has satisfied the prejudice prong of the test for ineffective assistance of counsel as set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), if the court chooses to continue to employ the Nelson interpretation of section 9711(d)(8).
Finally, I would note that even if appellant is able to establish the prejudice necessary to sustain a claim of ineffective assistance of counsel under Pierce, I would nonetheless affirm the judgment of sentence against appellant. This is due to the fact that Nelson, upon which appellant relies, was not announced until four years after appellant’s trial. This court has consistently held that counsel cannot be found ineffective for failing to anticipate changes in the law. Commonwealth v. Johnson, 516 Pa. 407, 532 A.2d 796 (1987); Commonwealth v. Garrity, 509 Pa. 46, 500 A.2d 1106 (1985); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977). Nor does the severity of sentence in the present case affect the application of this principle because we have previously applied it under similar facts in Commonwealth v. Yarris, 519 Pa. 571, 605-606, 549 A.2d 513, 530-531 (1988), cert. denied, *547491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989). The judgment of sentence should be affirmed.