Com. v. Kenowski Clark, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAD KENOWSKI CLARK :
:
Appellant : No. 1062 MDA 2022
Appeal from the Judgment of Sentence Entered June 29, 2022,
in the Court of Common Pleas of Lackawanna County,
Criminal Division at No(s): CP-35-CR-0002676-2018.
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 26, 2023
Chad Kenowski Clark appeals from the judgment of sentence imposed
after he pleaded guilty to third-degree murder and arson with intent to collect
insurance funds. Upon review, we affirm.
The trial court detailed the facts as follows:
On June 25, 2018, Scranton Fire and Police Departments
responded to 52 Roosevelt Street in Scranton, Pennsylvania,
following reports of a structure fire. When first responders
arrived, they observed heavy fire coming from the home's garage,
and performed a primary search of the residence. Despite initial
reports that the home was vacant, responders discovered a
deceased black male, later identified as Brett Sweeting[,] Jr., as
well as a propane tank located next to a minivan parked in the
garage.
Once the fire was extinguished, the City Fire Inspector conducted
an investigation which determined that the fire was set with an
open flame, was "incendiary in nature" and that the case was one
of [a]rson. Additionally, Dr. Gary Ross, a forensic pathologist,
performed an autopsy on [Brett Sweeting, Jr.] and determined
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that his cause of death was thermal burns and carbon monoxide
poisoning; the manner of death was determined to be homicide.
Dr. Ross found it noteworthy that, at the time of his death, the
victim was in possession of house keys to the residence located at
52 Roosevelt Street.
A subsequent police investigation revealed that the home located
at 52 Roosevelt Street belonged to [Clark]; however, the
residence was under contract to be sold at the time of the fire.
Scranton police discovered that [Clark] had attempted to sell the
home numerous times over the past few years and that he
promptly filed an insurance claim for the June 26th fire loss at his
first opportunity to do so. The investigation additionally
unearthed that [Clark] and [Sweeting, Jr.] had been friends. Said
friendship was confirmed by his family, when they relayed to the
police that the pair met at [Clark's] yoga studio and that
[Sweeting, Jr.] the victim looked up to [Clark] as a mentor.
Ultimately, Scranton police obtained a search warrant for
[Sweeting, Jr.’s] phone records and discovered that he had made
and received several telephone calls to his father, Brett
Sweeting[,] Sr., on the night of the [a]rson. The call logs
confirmed that, on the night of June 26, 2018, [Sweeting, Jr.]
drove to his father's residence in Williamsport, Pennsylvania; said
logs further confirmed that both individuals then traveled back to
Scranton and were present at 52 Roosevelt Street on the night of
the [a]rson. During his police interview, [Sweeting, Sr.] indicated
that [his son] told him about a "dude" that wanted him to burn
his house down for insurance money. Police opined that
[Sweeting Sr.] acted as the lookout for [his son] while he
committed the [a]rson and that the "dude" that wanted
[Sweeting, Jr.] to burn his house down was [Clark]. Ultimately,
[Sweeting, Sr.] was charged with [m]urder in the [second degree]
and other related charges.
Police later had a confidential informant [“CI”] reach out to
[Clark], who eventually admitted that he and the victim agreed to
burning [Clark's] house down for the insurance money. During
their recorded conversation, [Clark] relayed to the CI that he
needed money for his family and that his intention was that, since
[Sweeting, Jr.] as now deceased, [his] family could sue his
insurance company after [the] claim was settled. Ultimately, the
CI pressed [Clark] for [Sweeting, Jr.'s] share of the insurance
money and the two agreed that [Clark] would give the
aforementioned to the CI and the CI would then give the insurance
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proceeds to [Sweeting, Jr.’s] family under the guise that he/she
had won it at a casino. During that same conversation, [Clark]
also informed the CI that he had an upcoming interview with his
insurance company and that he intended to make it seem as
though the fire was the result of a faulty automobile issue.
Trial Court Opinion, 9/16/22, at 1-4 (citations omitted). Following the
investigation, the Scranton police arrested Clark and charged him with
multiple offenses.
Ultimately, on April 8, 2022, Clark pled guilty to murder in the third
degree and arson with intent to collect insurance, both as an accomplice.1 On
June 29, 2022, the trial court sentenced Clark to 10 to 20 years’ incarceration
for murder and 1 to 2 years’ incarceration for arson to run consecutively. Clark
filed a post-sentence motion which the court denied.
Clark filed this timely appeal. Clark and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Clark raises a single issue:
1. Whether the trial court abused its discretion by consider[ing]
the nature and gravity of the offense, but failing to give
consideration or proper consideration to [Clark’s] character and
background and then imposing a manifestly unreasonable and
excessive sentence in violation of the Sentencing Code and
applicable case law?
Clark’s Brief at 3.
Clark challenges the discretionary aspects of his sentence. “It is well
settled that, with regard to the discretionary aspects of sentencing, there is
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1 18 Pa.C.S.A. §§ 2502(c) and 3301(c)(3).
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no automatic right to appeal.” Commonwealth v. Austin, 66 A.3d 798, 807-
08 (Pa. Super. 2013) (citation omitted). This Court has explained that, to
reach the merits of a discretionary sentencing issue, we must conduct a four-
part analysis of the following factors:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is appropriate
under the sentencing code. . . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Austin, 66 A.3d at 808).
Here, Clark satisfied the first three requirements under Colon.
Accordingly, we must determine whether Clark raised a substantial question.
In his 2119(f) statement, Clark claims that the trial court imposed a
manifestly unreasonable and excessive sentence. Specifically, Clark argues
that the court focused on the nature and circumstances of the crime itself
without considering his history and background, character, and various
mitigating factors. Clark’s Brief at 12.
This Court has held that sentencing an offender solely based upon the
serious nature of the criminal act, and not all relevant factors, presents a
substantial question for appellate review purposes. Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa. Super. 2009). Additionally, a claim that a
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sentence is excessive, in conjunction with an assertion that the trial court
failed to consider mitigating factors, presents a substantial question.
Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa. Super. 2015) (en
banc). We therefore will consider the merits of Clark’s sentencing claim.
In the argument section of his brief, Clark specifically argues that the
presentence investigation report (“PSI”) submitted to the trial court was
“devoid of much information” and did not adequately detail many important
and relevant factors about Clark’s history, background, character and other
mitigating factors.2 According to Clark, these included Clark’s family and
educational background, home, neighborhood, military history, employment,
and employment abilities and accomplishments, and interests. Thus, because
the trial court based its sentence on an insufficient PSI, Clark maintains that
the trial court abused its discretion and improperly sentenced Clark. Clark’s
Brief at 20-24. We disagree.
Our standard of review of a sentencing claim is as follows:
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
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2 We observe that in the argument section of his brief, Clark additionally
argues that the trial court predetermined his sentence and that his sentence
was excessive because it effectively constituted a life sentence and Brett
Sweeting, Sr. received a much lesser sentence than he did. Clark’s Brief at
25-28. However, these arguments were not raised in Clark’s Rule 2119(f)
statement. Even if Clark included them in this statement, he did not raise
these arguments with the trial court and as such, he waived them. Therefore,
we will not address these arguments.
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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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
To assist with the sentencing of a defendant, Pennsylvania Rule of
Criminal Procedure 702 provides that the sentencing judge may, in the judge’s
discretion, order a PSI. Notably, the PSI must include information “regarding
the circumstances of the offense and the character of the defendant sufficient
to assist the judge in determining sentence.” Pa.R.Crim.P. 702. In the
absence of a PSI, the trial court must “conduct sufficient presentence inquiry
such that, at a minimum, the court is apprised of . . . the defendant's personal
history and background.” See Goggins, 748 A.2d 721, 728 (Pa. Super.
2022). “The essential inquiry” is not whether the court obtained a pre-
sentence investigation report, but “whether the sentencing court was apprised
of comprehensive information to make the punishment fit not only the crime
but also the person who committed it.” Commonwealth v. Finnecy, 135
A.3d 1028, 1032 (Pa. Super. 2016) (citation omitted). Sufficient information
must be substituted for a PSI, so that the court can make a fully informed
sentencing decision. See Commonwealth v. Flowers, 950 A.2d 330, 333
(Pa. Super. 2008).
Here, Clark alleges that the PSI that was presented to the trial court
was incomplete and inaccurate. Even if it was, the record reveals that the
trial court had sufficient information from other sources to make a fully
informed, individualized sentencing decision regarding Clark.
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In addition to the PSI, the trial court considered a sentencing
memorandum from Clark. At the sentencing hearing, Clark’s counsel informed
the court that the PSI did not contain certain information about Clark and
specifically asked the court to rely on Clark’s memorandum for this information
instead of the PSI. Notably, the trial court observed that counsel’s
memorandum was one of the most comprehensive it had seen, indicating that
the court reviewed it and was cognizant of its contents. Additionally, Clark
gave the trial court numerous letters of support from family, friends, and
business associates, from the area and across the country. The court
indicated that it considered these letters. The court also heard from Clark
himself who expressed remorse and accepted responsibility for the victim’s
death. N.T., 6/29/22, 9-10, 13-14,
From all this information, the trial court discerned and expressly
acknowledged that the incident at issue was an aberration from Clark’s life
accomplishments and past behavior. Id. at 14. However, the court pointed
out that someone lost his life because of Clark’s conduct, and that fact also
had to be considered in sentencing Clark. The court further noted that Clark
pled guilty to two charges and opined that the arson to collect insurance funds
was the motivation behind the crime. Id. at 14-15. Consequently, the trial
court imposed an 11 to 22-year aggregate sentence, with both sentences
being in the standard range.
Based upon our review of this case, and the sentencing transcript, it is
evident that the trial court considered Clark’s history, background, character
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and other mitigating factors; it had the facts necessary to sentence Clark
despite the inadequacy of the PSI. The court considered the two criminal acts
and considered all other relevant factors. On appeal, “[w]e cannot re-weigh
the sentencing factors and impose our judgment in place of the sentencing
court.” Macias, 968 A.2d at 778. Additionally, a defendant convicted of
multiple offenses is not entitled to a “volume discount.” See Commonwealth
v. Hoag, 665 A.2d 1212, 1214 (Pa. 1995). Therefore, conclude that the trial
court did not commit a manifest abuse of discretion when it sentenced Clark.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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