Com. v. Diaz, A. ( 2022 )

J-S30032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGELA M. DIAZ :
:
Appellant : No. 151 MDA 2021
Appeal from the Judgment of Sentence Entered December 9, 2020
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005090-2017
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 17, 2022
Angela M. Diaz appeals from the judgment of sentence entered following
an open guilty plea wherein she pleaded guilty to one count of third-degree
murder. See 18 Pa.C.S.A. § 2502(c). For that offense, Diaz received fifteen
to thirty years of incarceration. On appeal, Diaz solely challenges the
discretionary aspects of her sentence. As we see no basis to disturb her
sentence, we therefore affirm.
By way of background, the victim, a two-year-old female, died while
under the exclusive care of Diaz. As would later be determined, death
stemmed from the combination of a severe head injury as well as repeated
physical abuse. While Diaz originally claimed that the victim had fallen off of
a bed and hit her head, medical evidence refuted this assertion. In fact,
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
J-S30032-21
beyond the head injury, a post-mortem examination would uncover injuries
to the victim’s cheeks, ears, neck, abdomen, back, and buttocks, which served
to suggest, if not confirm, repeated physical abuse. The victim also appeared
to have suffered from nutritional neglect.
Ultimately, Diaz pleaded guilty to third-degree murder. At sentencing,
having been apprised of, inter alia, Diaz’s pre-sentence investigation (“PSI”)
report, the court imposed the aforementioned fifteen to thirty years of
incarceration. After sentencing, Diaz filed a timely post-sentence motion,
which was subsequently denied. Thereafter, Diaz filed a timely notice of
appeal. The relevant parties have complied with their respective obligations
under Pennsylvania Rule of Appellate Procedure 1925, and accordingly, this
appeal is ripe for review.
On appeal, Diaz presents one issue:
1. Was the sentence of fifteen to thirty years of incarceration
manifestly excessive and contrary to the fundamental norms
underlying the sentencing process?
See Appellant’s Brief, at 7.
The gravamen of Diaz’s argument is that her “sentence, which is more
than twice the bottom range of the standard range, is excessive.” Id., at 9.
She continues by contending that “[t]here were no aggravating factors in this
case, and the [c]ourt failed to properly consider the numerous mitigating
factors, instead primarily focusing [on] the factors related to the offense,
which are already factored into the standard range.” Id.
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Preliminarily, we note that as Diaz is contesting the discretionary
aspects of her sentence, such a challenge is not appealable as of right. See
42 Pa.C.S.A. § 9781(b). Instead,
an appellant challenging the sentencing court's discretion must
invoke this Court's jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code[.]
Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super. 2019)
(citation omitted). Following satisfaction of all four elements, this Court then
reviews the underlying discretionary aspects of sentencing issue, pursuant to
an abuse of discretion standard. See id., at 328-29.
In the present matter, Diaz adhered to the first three prongs by filing a
timely notice of appeal, filing a post-sentence motion seeking a modification
of her sentence, and including within her brief a statement pursuant to Rule
2119(f). See Appellant’s Brief, at 10-11. As such, we review her 2119(f)
statement to see whether she has presented a substantial question that serves
to illuminate an incongruency between the sentence she received and the
Sentencing Code as written.
To ascertain whether a substantial question has been raised, an
appellant must set “forth a plausible argument that the sentence violated a
provision of the [S]entencing [C]ode or is contrary to the fundamental norms
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of the sentencing process.” Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.
Super. 2012) (citations and quotations omitted). Specifically, an appellant
must demonstrate: (1) where his or her sentence falls in conjunction with the
Sentencing Guidelines; (2) the Sentencing Code provision that has been
violated; (3) the fundamental norm that the sentence ran afoul of; and (4)
the way the sentence violated that norm. See id.First, Diaz points to 42 Pa.C.S.A. § 9721 and 42 Pa.C.S.A. § 9725 to
establish the factors a court must consider at sentencing. As to the former
section, it requires a court to consider, inter alia, “the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b). The latter section, which deals specifically with total
confinement, obligates the court to impose such a sentence if, after
considering the “nature and circumstances of the crime and the history,
character, and condition of the defendant,” 42 Pa.C.S.A. § 9725, it determines
that correctional treatment would most effectively assist that individual or that
a lesser sentence would diminish the seriousness of that individual’s crime.
See id., at § 9725(2)-(3).
Second, and more saliently, Diaz contends that “the court failed to
consider the mitigating circumstances during sentencing,” Appellant’s Brief, at
11, in the context of her sentence amounting to “twice bottom of the standard
range.” Id. Although Diaz’s support for this averment is terse and the
connection between her sentence and the Sentencing Code requires a
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generous reading of her brief, we conclude that she has raised a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (concluding that an excessive-sentence claim in tandem with
an argument that the sentencing court failed to consider mitigating factors is
sufficient to demonstrate a substantial question).
As a substantial question has been presented, we consequently employ
our well-settled standard of review:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
Diaz submits that there are several reasons militating in favor of finding
that the lower court abused its discretion in sentencing. She states that third-
degree murder has a maximum sentence of forty years, but a standard range
of seven to twenty years. See Appellant’s Brief, at 15. She goes on to claim
that the court focused predominately on the facts of the offense itself, which
intrinsically had already been factored into a standard-range sentence
pursuant to the Sentencing Guidelines.
Moreover, Diaz states that there “were no aggravating factors in this
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case,” id., but, conversely, there were mitigating factors present. Diaz
emphasizes her remorse, demonstrated via citations to the record, wherein
she repeatedly apologized to the victim’s family and to the court. Diaz also
stresses that she has been involved in numerous rehabilitative programs and
courses while in prison, such as drug dependency and recovery groups. See
id., at 16-17.
Given the ordination of Diaz’s brief, we have already outlined the
requisite sentencing considerations, supra. Weight of those factors is
“exclusively for the sentencing court, and an appellate court [cannot]
substitute its own weighing of those factors.” Commonwealth v. Bowen,
975 A.2d 1120, 1123 (Pa. Super. 2009). As Diaz’s sentence fell within the
Sentencing Guidelines, we are cognizant that “[t]he primary consideration[s]
… [are] whether the court imposed an individualized sentence[] and whether
the sentence was nonetheless … clearly unreasonable[.]” Id., at 1124.
However, “[a] sentencing judge’s discretion must be accorded great weight as
he is in the best position to weigh various factors such as the nature of the
crime, the defendant’s character, and the defendant’s displays of remorse,
defiance, or indifference.” Commonwealth v. Fries, 523 A.2d 1134, 1135
(Pa. Super. 1987).
Our Supreme Court has determined that where the trial
court is informed by a PSI [report], it is presumed that the court
is aware of all appropriate sentencing factors and considerations,
and that where the court has been so informed, its discretion
should not be disturbed. The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
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record by indicating that he or she has been informed by the PSI;
thus[,] properly considering and weighing all relevant factors.
Commonwealth v. Edwards, 194 A.3d 625, 637-38 (Pa. Super. 2018)
(citations omitted) (formatting altered).
Turning to the present matter, in its opinion, the court states:
A review of the record clearly demonstrates a meaningful
consideration of the appropriate and relevant sentencing factors,
including the PSI [report], [Diaz’s] age, maturity, intelligence, and
work history. The PSI [report] included information about the
various Lancaster County Prison programs that [Diaz] completed
during her incarceration which were highlighted at the sentencing
hearing. The [c]ourt also considered the fact that [Diaz] did not
have any prior criminal convictions. The sentence that was
ultimately constructed fell directly within the standard guidelines.
The [c]ourt would also note some factors that were relevant
to its decision which were included in the pre-sentence records
but did not address at length on the record. It was apparent to
the [c]ourt that [Diaz] showed zero remorse for her violent actions
at any point until the sentencing hearing. . . .
Trial Court Opinion, 2/23/21, at 3-4 (citations to the record omitted).
We conclude that the trial court’s conclusions are supported by the
record. The court considered Diaz’s PSI report as well as the Sentencing
Guidelines. See Sentencing Hearing, 12/9/20, at 35. The court further
remarked on Diaz’s age, educational level, work history, lack of criminal
record, reports from the prison indicating her completion of classes, her
apologetic letter to the victim’s family and court, her behavior while in prison,
the positive things Diaz has done with her life, her health and dependency
issues, and the specific facts surrounding her criminality. See id., at 34-38.
The court concluded its statement by indicating that incarceration was
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warranted because “a lesser sentence would depreciate the seriousness of the
crime, the act that was perpetrated on this two-year-old girl.” Id., at 38. The
court then imposed a sentence within the standard range of the Sentencing
Guidelines.
Although, as Diaz points out, there were mitigating factors present in
this case, the court clearly recognized them at sentencing. We perceive no
problem in the court’s juxtaposition of those mitigating factors against the
backdrop of the specific facts leading to the third-degree murder, i.e., the
gravity of the offense, as well as the court’s desire to protect the public at
large, all of which were discussed at length. Accordingly, the court’s ultimate
determination that a standard-range sentence was necessary was not an
abuse of discretion, and we affirm Diaz’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2022
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