concurring and dissenting:
I join in the majority’s discussion of the procedural problems in this case and in the majority’s conclusion that the procedural requirement of Pa.R.A.P. 2119(f) has been waived. I also agree with the majority’s discussion of the merits of the issue concerning the trial court’s consideration of appellant’s other criminal conviction. However, I respectfully dissent from the majority’s conclusion that because there was a sufficient reason to warrant the trial court’s decision to deviate from the guidelines, we need not consider appellant’s second argument as to why the trial court erred in deviating from the guidelines.
Our Supreme Court has held that “a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers' other permissible factor as well.” Commonwealth v. Bethea, 474 Pa. 571, 579-580, 379 A.2d 102, 106 (1977). Rather, the appropriate inquiry in such a case is not whether the court considered legitimate factors in imposing sentence, but whether the court considered only such factors. See also: Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987). Therefore, before affirming the judgment of sentence on the basis that there was a legitimate reason for imposing the sentence outside the guidelines, I think the Court should determine whether any of the reasons for deviating from the sentencing guidelines was improper.
Appellant’s second argument as to why the trial court erred in sentencing outside the guidelines is that the trial court’s conclusion that appellant’s testimony was willfully *237false was based on facts outside the record. The trial court concluded that appellant’s testimony was false because, as presiding judge at both of appellant’s trials, the trial court knew that appellant had provided the same unsubstantiated alibi in both cases. When the trial court explained in its opinion this reason for sentencing appellant outside the record, the trial court attached to its opinion a copy of the transcript of the prior trial and stated that it was to be made a part of the record in this case. The court’s sua sponte reopening of the record to admit something without the knowledge of either party and without providing either party an opportunity to object was improper and therefore did not in fact make the transcript from the prior trial part of the record in this case. Thus the court’s consideration of the testimony from the prior trial to support the imposition of a sentence outside the guidelines in this case was impermissible.
Although there may be adequate and proper reasons to support the sentence imposed by the trial court, I cannot determine that the trial court would have imposed the same sentence had it not considered appellant’s testimony to have been false. Therefore, I would vacate the judgment of sentence and remand for resentencing.