J-S30032-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANGELA M. DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.
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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 thirddegree 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