from the Judgment of Sentence, November 29, 2017, in the
Court of Common Pleas of Montgomery County, Criminal Division
at No(s): CP-46-CR-0002243-2016.
BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI [*] , J.
Pacheco appeals from the aggregate judgment of sentence
imposed following his conviction of multiple counts of
possession with intent to deliver
("PWID") and related offenses. We vacate the
judgment of sentence, reverse the order denying suppression
as it relates to real-time cell site location information
("CSLI") evidence, and remand for further
April 2015, a heroin trafficking investigation initiated by
the Montgomery County District Attorney's Office,
Narcotics Enforcement Team, uncovered a large criminal
conspiracy. The District Attorney's Office learned that a
Mexican drug trafficking organization was smuggling heroin
into the United States, and Pacheco, a Norristown,
Pennsylvania, resident, was picking up the heroin in Atlanta,
Georgia, and then transporting it to wholesale heroin buyers
in New York City, New York.
23, 2015, Montgomery County prosecutors applied for and
obtained orders from the Montgomery County Court of Common
Pleas pursuant to Subchapter C of Pennsylvania's Wiretapping
and Electronic Surveillance Control Act ("the Wiretap
Act"). The orders compelled wireless service providers
to provide to prosecutors records for three cellular
telephones suspected to be linked to Pacheco. The service
records from the wireless service providers revealed that one
of the phones was registered to Pacheco.
month later, on August 28, 2015, Montgomery County
prosecutors sought and obtained additional orders from the
Montgomery County Court of Common Pleas under Subchapter E,
the Wiretap Act. The orders, which were issued pursuant to 18
Pa.C.S. § 5773, authorized prosecutors to obtain
information relating to Pacheco's cell phone number and
the numbers for other cell phone believed to be used by him.
Pursuant to those orders, prosecutors obtained call detail
records for the prior thirty days. Additionally, the orders
allowed prosecutors to obtain mobile communication tracking
information, install and use pen registers, trap and
trace devices, and telecommunications identification
interception devices for a prospective period of sixty days.
On October 15, 2015, the court issued an order permitting
usage of the various electronic surveillance and tracking
methods for an additional sixty days, for a total tracking
period of 120 days.
December 11, 2015, and January 6, 2016, Montgomery County
prosecutors sought and obtained orders from the Superior
Court pursuant to Subchapter B of the Wiretap Act, authorizing
them to intercept oral, electronic and wire communications
for the cell phone registered to Pacheco, as well as three
others believed to be used by him.
and detectives analyzed the information they obtained through
pen registers, trap and trace devices, call detail records,
wire interceptions, physical surveillance and real-time CSLI
tracking. They identified multiple occasions between
September 2015 and January 2016 when Pacheco traveled to
Atlanta and New York as a member of the Mexican drug
trafficking organization. On each trip, Pacheco obtained a
car battery containing three kilograms of heroin in Atlanta,
returned briefly to Norristown, and then transported the
heroin to New York, using his cell phone to facilitate the
monitoring intercepted telephone calls, detectives learned
that, on January 10, 2016, Pacheco planned to drive from
Georgia back through Norristown with a retrofitted car
battery containing three kilograms of heroin. Police
assembled a surveillance team along Pacheco's anticipated
route, and apprehended him in Montgomery County. A lawful
search of his vehicle revealed three kilograms of heroin
hidden in the car's battery.
arrested Pacheco and charged him with nine counts each of
PWID and criminal use of a communications facility, two
counts of dealing in unlawful proceeds, and one count each of
conspiracy to commit PWID and corrupt
organizations. Pacheco moved to suppress the call detail
records, the realtime CSLI evidence, and evidence collected
from telecommunications identification interception devices.
Following a suppression hearing and supplemental briefing,
the trial court denied suppression.
case proceeded to a jury trial beginning on August 7, 2017.
Pacheco stipulated that he transported three kilograms of
heroin on seven of the nine trips detected by law
enforcement. He also admitted on direct examination that he
"did the things that police say [he] did." N.T.
Trial, 8/9/17, at 131. However, Pacheco raised the defense of
duress; he claimed that he was coerced by Mexican drug
cartels to act as a drug courier; if he did not comply, the
cartels threatened that they would kill his family members.
conclusion of trial, the jury convicted Pacheco of all
charges except corrupt organizations. On November 29, 2017,
the trial court sentenced him to an aggregate prison term of
forty to eighty years, followed by ten years of
probation. Pacheco timely filed post-sentence
motions, which the trial court denied on December 12, 2017.
He then filed a timely notice of appeal. Pacheco and the
trial court complied with Pa.R.A.P. 1925.
raises the following four issues for our review, which we
have reordered for ease of disposition:
I. Whether [Pacheco] waived [his challenge to the denial of
suppression of the real-time CSLI evidence] when it was
clearly set forth in his [Rule] 1925(b) statement?
II. Whether the trial court erred in denying the motion to
suppress evidence where the Commonwealth illegally tracked
[Pacheco's] cell phone(s) in violation of the
Pennsylvania Constitution, the Fourth Amendment, the
Pennsylvania Wiretap Act and the recent decision in
Carpenter v. United States, 138 S.Ct. 2206, 2218
III. Whether the trial court erred by denying the right to
present a Mexican drug cartel expert whose testimony would
have supported the duress defense presented at trial?
IV. Whether the trial court abused its discretion by imposing
a manifestly unreasonable, excessive aggregate sentence of
forty (40) to eighty (80) years of imprisonment, which was a
virtual life sentence, without giving adequate reasons for
that sentence while relying on improper considerations?
Appellant's Brief at 5 (footnote added).
we must address whether Pacheco sufficiently preserved his
constitutional challenge to the trial court's order
denying suppression of the real-time CSLI
evidence. In its Pa.R.A.P. 1925(a) opinion, the
trial court concluded that the issue was waived because it
was stated too vaguely in Pacheco's concise statement.
Pacheco framed this issue as follows:
Whether the trial court erred in failing to suppress all
evidence derived from the warrantless real-time tracking of
[his] cell phone where such evidence was obtained in
violation of the Pennsylvania Wiretap Act, Article I, Section
8 of the Pennsylvania Constitution, and the Fourth and
Fourteenth Amendment of the United States Constitution?
Concise Statement, 1/31/18, at 1.
Rule of Appellate Procedure 1925 requires an appellant
"concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to
identify all pertinent issues." Pa.R.A.P.
1925(b)(4)(ii). This Court has considered the question of
what constitutes a sufficient 1925(b) statement on many
occasions. It is well-established that an appellant must
properly specify in his concise ...