¶ 1 This is an appeal from the judgment of sentence following appellant’s guilty plea to voluntary manslaughter. Appellant asserts that the trial court abused its discretion in two ways, first by imposing an excessively harsh sentence outside the guidelines, and second, by considering criminal charges initially filed against appellant that were later nolle prossed. After careful consideration, we conclude that the sentence imposed is not supported by the record and so vacate and remand for resentencing.
¶ 2 Appellant was charged with criminal homicide, aggravated assault, hindering apprehension, tampering with evidence and criminal conspiracy in connection with the shooting death of William Belvin. Appellant’s uncle, Jose Pabon, sought appellant’s assistance in confronting Belvin because Pabon believed Belvin intended to harm Pabon. Pabon, along with appellant
On April 27th of 2002, the victim in this case, William Belvin, had a problem with a co-defendant, Jose Pabon, who incidentally is the defendant’s uncle.
That problem centered around unwanted advances or unwanted interest that Pabon was taking in his wife, Tammy Belvin.
Mr. Belvin was understandably upset about that. I think sought [sic] to confront Mr. Pabon [sic]. He and several other individuals were chasing Mr. Pa-bon in the Mount Joy area earlier on this evening in a car.
Pabon eventually got away or lost them. It was a rainy night and it was dark.
Mr. Pabon then went into the city [Lancaster] and sought out his nephew, [appellant] Jose Vega, and a third co-defendant by the name of Mario Vigo.
At that point it was decided that they would go back to Mount Joy and if a confrontation occurred between them and Mr. Belvin and his friends, that they would settle the matter then. I believe initially the belief was that that would be a fight.
But between the three of them, they decided to take a gun for insurance. There were several guns being stored at Mr. Vega’s house that evening and they — Mr. Vigo chose one of those and it was carried along in a car driven by Mr. Vigo and ... [appellant].
It was [appellant’s] car he was driving. Mr. Vigo was in the passenger seat. They were following Mr. Pabon in his vehicle back to the Mount Joy area.
They passed a gas station where Mrs. Belvin worked, where Mr. Pabon had had contact with her before and/or believed that Mr. Belvin might be there.
He was, in fact, there. And as soon as he saw Mr. Pabon’s car, he proceeded to follow these individuals. And they ended up making a couple of tens and ending up on a fairly desolate road in Rapho Township, Lancaster County, called Milton Grove Road.
And Mr. Pabon then stopped his vehicle in the roadway, sort of catty-corner. Mr. Belvin was behind him at the point. He stopped. He got out of his car and began approaching Mr. Pabon’s car.
At this point [appellant] ... drives up with Mario Vigo in the passenger seat, sees Mr. Belvin approaching Pabon’s car with the gun in his hand and [appellant] ... then pulls his car in front of Mr. Belvin. I believe [sic] admittedly bumped him [sic]. Didn’t strike him hard but pulled the car close enough that it actually contacted Mr. Belvin.
At that point ... Mr. Vigo sticks a gun out of the car, fires one shot, striking Mr. Belvin and lolling him.
The three defendants then flee the scene and the gun is disposed of.
In the process, the police arrive. They found Mr. Belvin there clutching a handgun. And unfortunately for Mr. Belvin that evening, that gun was unloaded, raising the question, why would he have had it, why would these individuals have needed to bring one to what was otherwise a fight that they all seemed to want to settle either with intimidation or with fists.
Which brings me back full circle to my initial comment, which is guns, certainly in this situation, did not help solve this*1280 problem anyway. They only exacerbated and a tragic result occurred.
The Commonwealth has entered into this agreement with ... [appellant] under the belief that it was not his intention that night to go there and cause the death of Mr. Belvin or anyone else, but that he unreasonably believed, as did his co-defendants, that they had a right to exercise self-defense in the situation as it unfolded as I’ve related to the Court.
N.T. 10/25/02 at 12-14.
¶ 3 Appellant’s plea was an open one, that is, there was no negotiated sentence. However, in exchange for the plea to one count of voluntary manslaughter, the Commonwealth agreed to drop all other charges pending against appellant. Further, although it had the right to seek it, the Commonwealth waived imposition of the five year mandatory minimum sentence for commission of the offense with a firearm.
¶4 The only witness offered by the Commonwealth at sentencing was Mrs. Belvin, who described how the loss of her husband affected her and her two young children. She asked the court to impose the maximum sentence.
¶ 5 In support of his request for a sentence below the guidelines, appellant offered the testimony of his son’s mother, family members, friends, two high school administrators, a former employer and a church youth director. These witnesses described appellant as responsible, hard working, honest, loving, respectful, trustworthy and a good father and provider. Most of the witnesses also wrote letters to trial court judge, further explaining their interaction with appellant and commenting favorably on his character. The attorney for the Commonwealth, though given an opportunity, declined to cross examine any of these witnesses.
¶ 6 Appellant, age 20 when he appeared before the court, had no criminal record, either as an adult or juvenile. His prior record score was 0. As a result, the applicable guidelines called for a standard minimum sentence of between 3 and years in prison. When calculated in the aggravated range, the guidelines called for a minimum sentence as high as &k years.
¶ 7 Ultimately, the trial court imposed a sentence of 7 to 14 years in prison with a consecutive probationary term of 6 years. In addition, the Court ordered appellant to pay a fine of $500.00 and restitution in the amount of $2,449.00 to cover the cost of Mr. Belvin’s funeral expenses. Appellant sought and was denied modification of sentence; this appeal followed.
¶ 8 Preliminarily, we note that appellant is not entitled to challenge the discretionary aspects of his sentence as of right. Rather, he must satisfy the . dictates of Pa.R.A.P. 2119(f) by including a concise statement of reasons relied upon for allowance of appeal and, further, is required to establish that the sentencing claim he brings raises a substantial question warranting appellate review. Commonwealth v. Kenner,
¶ 9 Under Commonwealth v. Mouzon,
¶ 10 We find these to be plausible arguments that the sentence is contrary to the fundamental norms which underlie the sentencing process. See Commonwealth v. Parlante,
¶ 11 “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.” Kenner, supra,
[The] deference paid to the trial court does not necessitate a rubber stamped approval of the sentences imposed by the sentencing court. Appellate review of sentencing matters would become a mockery and a sham if all sentences were routinely affirmed under the guise of discretion of the trial court. Further, it must be considered our function to review sentences in a more detached manner so that we can ensure not only a fair and impartial sentence under the circumstances, but also to protect against grossly disparate treatment of like offenders throughout the Commonwealth.
Commonwealth v. Smart,
¶ 12 Further, the sentencing court is required to consider the guidelines. Commonwealth v. Begley,
(1) The nature and circumstances of the offense and the history and characteristics of the defendant^]
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation[;]
(3) the findings upon which the sentence was based[;and]
(4) the guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
¶ 13 In light of these standards, we have reviewed the entire record in this case,
¶ 14 We note first that although the trial court stated on the record that it considered.the testimony, the PSI and the guidelines, it imposed the sentence in this case with little explanation. Among the few reasons proffered by the sentencing court in its opinion were: 1) the seriousness of the offense; and 2) the fact that the maximum penalty for the offense under the Sentencing Code is 20 years.
¶ 15 With regard to the seriousness of the offense, we observe that “the guidelines provide the predesignated ranges of punishment for the offense considering the inherent egregiousness of the conduct which is generally associated with the commission of that offense.” Commonwealth v. Gause,
¶ 16 While voluntary manslaughter is a serious offense that produces tragic consequences, these general factors were taken into account when the guidelines were fashioned. We point out this fact not to trivialize the tremendous loss suffered by the victim’s family here, but to underscore the fact that the seriousness factor does not adequately justify the court’s upward departure from the aggravated range of the sentencing guidelines.
¶ 17 As for consideration of the maximum penalty authorized by law, we find this factor to be mostly immaterial in this case. For purposes of setting the legal limits of punishment, crimes are categorized in relatively broad classifications of felony, misdemeanor or summary offenses. However, the maximum punishment allowed by law for any category of felony or misdemeanor reflects the punishment deemed appropriate in the most extreme case for the most egregious crime contained in the classification, as well as for an offender who has demonstrated his dangerousness to society, either by the specific conduct in which he engaged or by his inability to be rehabilitated. As such, the maximum penalty allowed by law does not represent a sound starting point of reference. In this case, the maximum of 20 years is a particularly inappropriate gauge, as is evident from the Commonwealth’s agreement to waive imposition of the mandatory minimum sentence of 5 years.
¶ 18 By assigning an offense gravity score, the guidelines reflect a specific assessment of the punishment deemed appropriate for the crime in question. Moreover, the guidelines consider the offender’s prior involvement in criminal activity through the prior record score and enhance the punishment accordingly. As such, the guidelines provide a more precise assessment than the general felony and misdemeanor classifications do.
¶ 19 The single fact relied on by ■ the sentencing court that specifically supports an upward deviation from the guidelines is that appellant supplied the gun used in the crime. However, this “fact” is not entirely clear from the record. In its recitation of the facts before the court, the Common
¶ 20 Finally, it is not surprising that the trial court did not rely on appellant’s character and prior history to support the upward deviation. Appellant’s criminal history (or lack thereof) and evidence of character militate in favor of mitigation, not aggravation, of his sentence. The witnesses presented at sentencing spoke highly of appellant and his conduct and character prior to this criminal episode were by all accounts positive. The Commonwealth did not dispute this fact by presenting an opposing point of view nor did it challenge any of the extensive evidence offered by appellant at sentencing.
¶ 21 In sum, we cannot find on this record sufficient evidence to support the trial court’s imposition of sentence. As a result, the sentence must be vacated and the matter remanded for resentencing in a manner that faithfully applies the applicable standard set forth above.
¶ 22 Judgment of sentence vacated; matter remanded for resentencing. Jurisdiction relinquished.