Commonwealth v. Pacheco

• Decision Date: 24 January 2020
• Docket Number: No. 151 EDA 2018,151 EDA 2018
• Citation: 227 A.3d 358
• Parties: COMMONWEALTH of Pennsylvania v. David PACHECO, Appellant
• Court: Pennsylvania Superior Court

227 A.3d 358

COMMONWEALTH of Pennsylvania

v.David PACHECO, Appellant

No. 151 EDA 2018

Superior Court of Pennsylvania.

Argued April 9, 2019

Filed January 24, 2020

Brooks T. Thompson, Norristown, for appellant.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI,^* J.

OPINION BY 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. Pacheco challenges the warrantless search and seizure of his real-time cell site location information (CSLI), the limitations on his expert's testimony, and the length of his sentence. After extensive review, we affirm.

The parties do not dispute the underlying facts of this case. Essentially, in 2015, the Montgomery County District Attorney's Office, Narcotics Enforcement Team, working with the DEA, uncovered a large criminal conspiracy as part of a heroin-trafficking investigation. The District Attorney's Office learned that a Mexican drug cartel was smuggling heroin into the United States for distribution. They believed that Pacheco, a Norristown, Pennsylvania, resident, played a significant role in this operation by transporting drugs from Georgia to New York.

At various times throughout their nearly year-long investigation, Montgomery County prosecutors applied for and obtained several orders pursuant to Pennsylvania's Wiretapping and Electronic Surveillance Control Act ("the Wiretap Act"). 18 Pa.C.S.A. §§ 5701 - 5782. Some of those orders, issued on August 28 and October 15, 2015, also included "ping" requests that specifically authorized the cell phone company to send signals to Pacheco's phone at intervals and times as directed by law enforcement. Orders, 8/28/2015 and 10/15/2015, at ¶9.² These signals gave investigators real-time CSLI so they would know Pacheco's location. The Montgomery County Court of Common Pleas issued those orders under Subchapter E of the Wiretap Act, which authorizes the collection of mobile communication tracking information in limited circumstances. 18 Pa.C.S.A. §§ 5771 - 5775.

"Mobile communications tracking information" is defined by the Wiretap Act as "[i]nformation generated by a communication common carrier or a communication service which indicates the location of an electronic device supported by the communication common carrier or communication service." 18 Pa.C.S.A. § 5702. Many types of tracking information are available, including historical CSLI and real time CSLI. Historical CSLI is automatically generated and routinely collected by wireless service providers whenever a cell phone connects to a cell tower.³ In contrast, according to the testimony by the Commonwealth at Pacheco's trial, real-time CSLI is actively obtained through the following procedure:

At the request and direction of law enforcement, the wireless service provider sends a command signal to the targeted cell phone. The command signal then reaches the user's cell phone and activates the phone's location subsystem to determine the location of the phone. The phone's location is ascertained by obtaining data from at least three GPS satellites or, in the event GPS data cannot be obtained, the location of the Cell Tower the phone is currently near. The cell phone then transmits its location back to the wireless provider, who in turn e-mails the information to law enforcement. The location information generated is generally accurate within less than thirty meters.

Pacheco's Brief at 9 (citations to record omitted). Here, the orders at issue authorized the collection of Pacheco's real-time CSLI.

Prosecutors and detectives analyzed the information they obtained through the various orders issued under the Wiretap Act. They identified multiple occasions between September 2015 and January 2016 when Pacheco traveled to Georgia and New York. On each trip, Pacheco obtained a car battery containing three kilograms of heroin in Atlanta, Georgia, returned briefly to Norristown, Pennsylvania, and then transported the heroin to the Bronx, New York, using his cell phone to facilitate the transactions.

By monitoring intercepted telephone calls from orders not challenged on appeal, detectives learned that, on January 10, 2016, Pacheco would be driving back from Atlanta, 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 search of his vehicle revealed three kilograms of heroin hidden in the car's battery.⁴

Police arrested Pacheco and charged him with nine counts of PWID and criminal use of a communications facility, two counts of dealing in unlawful proceeds, and one count of conspiracy to commit PWID and corrupt organizations.⁵ Among other evidence not challenged on appeal, Pacheco moved to suppress the real-time CSLI evidence. Following a suppression hearing, the trial court denied Pacheco's motion.

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 said he did. Trial Court Opinion, 3/9/18, at 4 (citation to record omitted). However, Pacheco claimed the defense of duress. He argued that the Mexican drug cartels coerced him to act as a drug courier by threatening to kill his family members if he did not cooperate. Pacheco's Brief at 12.

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.⁶ Pacheco timely filed post-sentence motions, which the trial court denied on December 12, 2017. He then filed a timely notice of appeal. Both Pacheco and the trial court complied with Pa.R.A.P. 1925.

In his Statement of Questions Involved, 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 , ––– U.S. ––––, 138 S.Ct. 2206, 2218, 201 L.Ed.2d 507 (2018).^[7]

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?

Pacheco's Brief at 5 (footnote added).

In considering his first issue, we must decide whether Pacheco sufficiently preserved his challenge to the warrantless collection of the real-time CSLI evidence. Although numerous orders were issued to law enforcement during the course of the investigation, in this appeal, Pacheco challenges only the portions of the orders issued pursuant to 18 Pa.C.S.A. §§ 5771 - 5775, Subchapter E of the Wiretap Act, which authorized the real-time CSLI tracking of his cell phone.

Appellate Rule 1925 requires that 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 Rule 1925(b) statement on many occasions. See, e.g., Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011) (holding that it is well-established that an appellant must properly specify in his concise statement the error to be addressed on appeal).

In Pacheco's concise statement, he framed his challenge to the real-time CSLI evidence 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.

In its Rule 1925(a) opinion, the trial court concluded that Pacheco waived this issue because he stated it too vaguely. Trial Court Opinion, 3/9/18, at 7-8. According to the trial court, because prosecutors obtained multiple court orders authorizing various searches, it was "unclear what evidence was obtained without a [c]ourt order or warrant." Id. at 7.

The Commonwealth also argues that Pacheco waived the claim, albeit on a different basis; namely, that Pacheco did not raise a Carpenter issue before the trial court. Commonwealth's Brief at 4.

Although Pacheco did not specifically mention the Carpenter decision until he filed his appellate brief, based on our examination of the certified record, we conclude that Pacheco did, in fact, raise and preserve his challenge to the warrantless collection of real-time CSLI evidence from his cell phone provider. Pacheco filed a supplement to his motion to suppress in which he specifically claimed that prosecutors failed to "seek a search warrant from the [c]ourt to legally utilize ‘Mobile Tracking Technology’ ... or similar technology ... as ... is required and necessary under Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution." Supplement to Motion to...