No. 275 March Term 1977, Appeal from Judgment of Sentence Court of Common Pleas of Adams County at No. CC-272-76.
Gary E. Hartman, Assistant Public Defender, Gettysburg, for appellant.
Oscar F. Spicer, District Attorney, Gettysburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 498]
Appellant pleaded guilty to charges of aggravated assault with a deadly weapon and criminal mischief.*fn1 He was sentenced to a term of 1 1/2 to 5 years in a state correctional institution. On this appeal appellant argues that the sentence was manifestly excessive.*fn2
The following facts were disclosed at the guilty plea colloquy. On August 3, 1976, appellant requested his estranged wife to visit him at his apartment. His wife agreed and her boyfriend drove her to appellant's home. Appellant invited the boyfriend into the house. While the parties were in the house an argument erupted between appellant and his wife. The reasons for this argument are not clear; the boyfriend was not actively engaged but stood apart and watched. During the course of the argument with his wife, appellant took a shotgun, loaded it, and aimed it at the boyfriend's chest. Appellant's wife attempted to push the gun away but appellant pulled the trigger; the gun discharged and the boyfriend was struck in the shoulder. Appellant's wife was not injured. After reloading the gun, appellant left the house and fired it at the boyfriend's car, causing $482 in damages. The boyfriend spent ten days in the hospital and still required medical treatment at the time of trial.
A presentence investigation was conducted and a report was filed. At the sentencing hearing appellant's counsel pointed out that this was appellant's first offense and that
[ 259 Pa. Super. Page 499]
recidivism was not a problem because the incident was caused by the pressures and emotions coming to bear upon appellant as a result of his domestic problems. He requested a sentence of 11 1/2 to 23 months. The sentencing judge acknowledged that he was trying to understand appellant's domestic problems in passing sentence but said that the facts of the case, including the use of a deadly weapon, indicated that the crime could have been murder.
The sentencing judge has explained his sentence as follows:
The offense is a misdemeanor of the first degree. The maximum penalty we could impose was 5 years in prison (Section 1104 of the Crimes Code). We ordered a presentence investigation report. From that report we learned that this was the defendant's first criminal act. It was also obvious to us that the defendant was emotionally distressed because of his marital problem. For those reasons we made his minimum sentence less than it could have been. But for the action of the defendant's wife in moving the gun barrel before the gun was discharged, the defendant could have been charged with murder. Because of the defendant's obvious intent to physically harm the victim without adequate legal ...