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Commonwealth v. Pacheco

Superior Court of Pennsylvania

July 3, 2019


          Appeal 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.


          KUNSELMAN, J.

         David Pacheco appeals from the aggregate judgment of sentence imposed following his conviction of multiple counts of possession with intent to deliver ("PWID")[1] 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 proceedings.

         In 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.

         On July 23, 2015, Montgomery County prosecutors applied for and obtained orders from the Montgomery County Court of Common Pleas pursuant to Subchapter C[2] 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.

         One 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, [3] of 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, [4]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.

         On December 11, 2015, and January 6, 2016, Montgomery County prosecutors sought and obtained orders from the Superior Court pursuant to Subchapter B[5] 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.

         Prosecutors 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 transactions.

         By 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.[6]

         Police 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.[7] 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.

         The 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.

         At the 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.[8] 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.

         Pacheco 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 (2018).[9]
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).

         Initially, we must address whether Pacheco sufficiently preserved his constitutional challenge to the trial court's order denying suppression of the real-time CSLI evidence.[10] 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.

         Pennsylvania 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 ...

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