COMMONWEALTH OF PENNSYLVANIA v. DAVID PACHECO, Appellant
No. 151 EDA 2018
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED JANUARY 24, 2020
2020 PA Super 14
OPINION BY KUNSELMAN, J.
J-A09011-19. Aрpeal 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.
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
At various times throughout their nearly year-long investigation, Montgomеry County prosecutors applied for and obtained several orders pursuant to Pennsylvania‘s Wiretapping and Electronic Surveillance Control Act (“the Wiretap Act“).
“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.”
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
At the conclusion оf 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
In his Statement of Questions Involved, Pacheco raises the following four issues for our review, which we have reordered for ease of disposition:
- 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?
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).7 - Whether the trial court erred by denying the right to present a Mexican drug сartel expert whose testimony would have supported the duress defense presented at trial?
- 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
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.”
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; namеly, 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 Suppress, 11/18/16, at unnumbered 1-2. Pacheco additionally claimed that the use of such technology “constitutes a ‘search’ under constitutional analysis which . . . cannot be authorized without the issuance of a search warrant based on probable cause.” Id. at unnumbered 2.
Following the suppression hearing, Pacheco filed a supplemental brief where he аgain argued that the orders authorizing real-time CSLI tracking of his cell phone under Subchapter E of the Wiretap Act violated Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution “because the [o]rders fail[ed] to satisfy the constitutional protections of the warrant requirement.” Memorandum of Law in Support of Supplemental Motion to Suppress, 3/6/17, at unnumbered 14.
Based on these averments, Pacheco adequately raised and preserved his challenge to the orders authorizing real-time CSLI tracking of his cell phone; he claimed this tracking constituted a search under the Fourth Amendment and that investigators were required to obtain a warrant before the tracking began. We disagree with the trial court‘s finding that the issue, as Pacheco framed it in his concise statement, was unduly vague. In our view, the issue was stated with sufficient clarity to identify the pertinent issue on appeal; thus, Pacheco did not waive his claim.
Having concluded that Pacheco sufficiently preserved his challenge that prosecutors obtained his real-time CSLI without а warrant, we will address the merits of his second issue, i.e., whether the trial court erred in denying his motion to suppress this evidence. Pacheco argues that the seizure of his CSLI information was a search under the Fourth Amendment, and that the orders used by prosecutors were insufficient under Carpenter because they were not warrants. Pacheco‘s Brief at 28, 31. These issues raise pure questions of law, for which our standard of review is de novo. Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018). Because these questions challenge the decision of the suppression court, our scope of review as to the subject matter is confined to the factual findings and legal conclusions of the suppression court. See In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). As for the record, we may consider only the evidence of the prevailing party at the suppression
Pacheco claims the investigators violated his rights under the Fourth Amendment of the Constitution of the United States and Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania becаuse they obtained his real-time CSLI without a warrant.
Both the Fourth Amendment of the Constitution of the United States and Article I Section 8 of the Constitution of the Commonwealth of Pennsylvania protect citizens from unreasonable, searches and seizures. The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Similarly, the Pennsylvania constitution provides:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
In support of his argument that law enforcement violated his rights, Pacheco rеlies on the Supreme Court of the United States’ decision in Carpenter, supra, which was announced during the pendency of this appeal.9 There, the High Court addressed the question of whether the government conducts a search under the Fourth Amendment when it accesses historical CSLI during the course of a criminal investigation. Suspecting that Carpenter
Prior to trial, Carpenter moved to suppress the historical CSLI provided by the wireless carriers. He argued that the government‘s seizure of this information violated his reasonable expectation of privacy because it was
Reversing, the Supreme Court of United States Supreme Court first observed that this type of digital data maintained by a third party did not fit neatly under existing precedents. Carpenter, 138 S.Ct. 2206, 2214 (2018). To determine whether historical CSLI was protected by the Fourth Amendment, the court discussed two line of cases, both involving different privacy interests. Id. at 2214-15. The first line of cases addressed an individual‘s expectation of privacy in his physical location and movements. Compare United States v. Knotts, 460 U.S. 276 (1983) (finding no expectation of privacy using a beeper to aid in tracking Knotts’ car because a person traveling in an automobile on public streets has no expectation of privacy in his movements from one place to another) with United States v. Jones, 565 U.S. 400, 405 (2012) (finding a search occurred when agents installed a GPS tracking device on Jones’ car and continuously monitored the vehicle‘s movements for 28 days).
The second line of cases held that a person does not have a reasonable privacy interest in information he voluntarily turns over to third parties, i.e., the third-party doctrine. See United States v. Miller, 425 U.S. 435, 443 (1976) (finding no expectation of privacy in financial records held by a bank); see also Smith v. Maryland, 442 U.S. 735, 743-744 (1979) (finding no expectation of privacy in records of dialed telephone numbers conveyed to telephone company).
Based on how cell phones are used in today‘s society, the High Court found that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI, even more so than with a GPS device. As the Court observed, a cell phone has become “almost a feature of human anatomy.” Carpenter, 138 S.Ct. at 2218. “While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor‘s offices, political headquarters and other potentially revealing locales.” Id. In fact, “when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone‘s user.” Id. Accordingly, the Court held when the government accessed Carpenter‘s CSLI from his wireless carriers without a warrant, it invaded his reasonable expectation of privacy in the whole of his physical movements. Id. at 2219.
The High Court rejected the application of the third-party doctrine to historical CSLI for two reasons: the lack of limitations on this type of information and the fact that an individual does not voluntarily “share” this information in the normal sense of that word. Id. at 2219-20. The Court observed:
In the first place, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume the risk” of turning over a comprehensive dossier of his physical movements.
Id. at 2220 (citations omitted; some formatting).
Having found that the acquisition of Carpenter‘s CSLI was a search, the Court also concluded that the Government must generally obtain a warrant supported by probable cause before acquiring such records. Id. at 2221. The Court further determined that the “D orders” issued under
Notably, the High Court in Carpenter emphasized that its decision was a narrow one, and did not extend to matters not before it, including thе collection of real-time CSLI, which is the technology at issue in this case. Id. at 2220.
Nevertheless, Pacheco asserts that the rationale of Carpenter applies with equal or greater force to real-time CSLI tracking. Pacheco‘s Brief at 26. He argues that a cell phone‘s historical CSLI automatically generates as it communicates throughout the day with cell towers and the wireless service provider as part of its ordinary operations. By contrast, real-time CSLI tracking requires the wireless service provider to signal the cell phone at the active request of law enforcement. Id. at 26-27. Pacheco asserts that “[t]hose signals then reached into [his] pocket, home, car, or wherever the phone was kept, to activate the phone‘s location subsystem . . . without [his] knowledge.” Id. at 27.
In the wake of Carpenter, other courts addressing this question have determined that real-time CSLI is subject to the same privacy concerns as historical CSLI.11 Indeed, even before Carpenter, several courts determined
We find no meaningful distinction between the privacy issues related to historical and real-time CSLI. In our view, the High Court‘s rationale in Carpenter extends to real-time CSLI tracking. Applying that Court‘s analogy, obtaining real-time CSLI is the equivalent of attaching an ankle monitor to the cell phone‘s user; it allows the government to track the user‘s every move as it is happening. See Carpenter, 138 S.Ct. at 2218. Therefore, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through real-time CSLI. As such, when prosecutors sоught and obtained real-time information about Pacheco‘s location by pinging his cell phone, they conducted a “search” under the federal and state constitutions.
Because a search occurred, we must decide whether the orders prosecutors used to seize that information under the Pennsylvania Wiretap Act satisfied the warrant requirement of the Fourth Amendment. Pacheco argues that mere orders are insufficient under Carpenter, and that the government specifically needs a warrant. “[B]ecause detectives had no warrant to obtain [Pacheco‘s] real-time CSLI, all evidence derived therefrom must be suppressed pursuant to Carpenter.” Pacheco‘s Brief at 28. “Moreover, unlike in Jones where the Court did not address the warrant requirement, the holding in Carpenter unequivocally requires a warrant to obtain CSLI.” Id. at 31.13
Our research discloses that the Supreme Court of the United States previously has held that “orders” issued under the federal wiretap act were, in fact, warrants under the Fourth Amendment, provided certain requirements were met. Dalia v. United States, 441 U.S. 238, 255-256 (1979). In Dalia,
The
Fourth Amendment requires that search warrants be issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Finding these words to be “precise and clear,” this Court has interpreted them to require only three things. First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probаble cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. Finally, “warrants mustparticularly describe the ‘things to be seized,‘” as well as the place to be searched.
Id. at 255 (citations omitted).
It concluded that the court order authorizing the interception of oral communications at the defendant‘s office was “a warrant issued in full compliance with these traditional Fourth Amendment requirements.” Id. at 255 (emphasis added). As the Court observed:
[The order] was based upon a neutral magistrate‘s independent finding of probable cause to believe that [defendant] had been and was committing specifically enumerated federal crimes, that petitioner‘s office was being used “in connection with the commission of [these] offenses,” and that bugging the office would result in the interception of “oral communications concerning these offenses.” Moreover, the exact location and dimensions of [defendant‘s] office were set forth, and the extent of the search was restricted to the “[i]ntercept[ion of] oral communications оf [defendant] and others as yet unknown, concerning the above-described offenses at the business office of [defendant]. . . .”
Id. at 256 (citations to record omitted; some brackets in original). Thus, the High Court found that some orders may, in fact, be warrants.
Turning to the case before us, the court orders in question were obtained by Montgomery County District Attorney‘s Office pursuant to
Furthermore, the instant orders were obtained pursuant to affidavits of probable cause, each more than thirty pages long, detailing the specifics of the criminal investigation into this Mexican drug cartel‘s activities in the United States, and Pacheco‘s suspected role in that operation. The affidavits attested to the personal observation of the affiant, information provided by other investigators and law enforcement agencies, several confidential and reliable informants, and information from other electronic and physical surveillance.
Finally, and most importantly, these orders, when read in their totality,18
The warrants issued here under the Pennsylvania Wiretap Act differ substantiаlly from the “D orders” issued under the federal SCA in Carpenter. The court that issued the “D orders” compelling Carpenter‘s records merely found there were “reasonable grounds” to believe that the records sought were relevant and material to an ongoing criminal investigation.”
In sum, we find the government conducted a search when it obtained Pacheco‘s real-time CSLI and that search was constitutional, because it was conducted pursuant to warrants properly issued in accordance with the Pennsylvania Wiretap Act and the
In his third issue, Pacheco argues that the trial court erred in limiting the scope оf testimony provided by defense witness Robert O. Kirkland, Ph.D., who was qualified as an expert on Mexican drug cartels. Our review of a trial court‘s evidentiary ruling is limited to determining whether the trial court abused its discretion. See Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005).
In order to preserve a challenge to an evidentiary ruling, a litigant must make a timely and specific objection to the court‘s ruling. See Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (holding that issues are preserved when objections are made timely to the error or offense); Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005) (holding that an “absence of contemporaneous objections renders” an appellant‘s claims waived); Commonwealth v. Bruce, 916 A.2d 657, 671 (Pa. Super. 2007) (holding that a “failure to offer a timely and specific objection results in
At trial, Dr. Kirkland testified generally about Mexican drug cartels. He explained that the cartels normally operate in the United States through cross-border family connections or individuals with dual citizenship. He further testified as to the coercive tactics used by the most powerful Mexican drug cartels, including killing, extortion, and threats of violence both in Mexico and in the Unites States against individuals and their family members. N.T. Trial, 8/9/17, at 217-18. The evidentiary rulings at issue arose when defense counsel attempted to ask Dr. Kirkland certain hypothetical questions:
[Defense counsel]: So, if there was an individual who lived in the United States who had a family member who was living in Mexico, that person would be at risk of kidnapping if the cartel wanted such, correct?
[Prosecutor]: Objection.
The Court: Sustained. Don‘t answer that Doctor.
Q: Sir, I want you to assume the following facts in terms of this hypothetical question: Assume that specifically an individual lived in Norristown and –
[Prosecutor]: I‘m going to object right now, Your Honor.
Id. at 221. In sustaining the Commonwealth‘s objections, the trial court ruled that, based on the area of expertise for which Dr. Kirkland was qualified, he could testify generally about the cartels, but could not testify specifically to Pacheco‘s case. See id. at 222; see also Trial Court Opinion, 3/9/18, at 17.
The following day, after Dr. Kirkland‘s testimony was completed, defense counsel placed a formal objection on the record regarding the court‘s limitation of Dr. Kirkland‘s testimony, and its refusal to let him respond to hypothetical questions specific to Pacheco‘s case. N.T. Trial, 8/10/17, at 16-17. Defense counsel indicated that he had intended to elicit Dr. Kirkland‘s opinion as to whether Pacheco would have been a potential target of extortion by the cartel. Id. at 17. The trial court ruled that because Dr. Kirkland never interviewed Pacheco, and had no direct contact with him, it would be a “great leap” for him to render an opinion as to whether Pacheco was, in fact, threatened by the cartels. Id. at 18.
Pacheco asserts that the hypothetical questions his counsel intended to ask were framed to demonstrate that an individual residing in the United States, who has family members living in Mexico, is at risk of having his relatives kidnapped should he refuse to cooperate with cartel associates. Pacheco argues that his sole defense was duress, and the trial court prevented Dr. Kirkland from opining as to whether Pacheco was threatened by the cartels so as to establish this defense.19
The trial court ruled that Pacheco waived his evidentiary claim, since he failed to make a timely objection or offer of proоf regarding the hypothetical
We agree with the trial court‘s waiver determination. Counsel waited until the day after Dr. Kirkland had been excused from the witness stand to object to the limitation of his testimony. Under our jurisprudence, this was simply too late to lodge an objection to the ruling that limited the scope of the witness‘s direct examination. See Commonwealth v. Tucker, 143 A.3d 955, 962 (Pa. Super. 2016) (holding that claim was waived where appellant waited until the completion of direct examination and cross-examination of the subject witness and the next witness before raising objection). By failing to place this argument on the record contemporaneously with the trial court‘s ruling, Pacheco has waived it. See Commonwealth v. McGriff, 160 A.3d 863, 868 (Pa. Super. 2017) (finding issue waived for failure to make a timely and specific objection at time of witness‘s testimony).20
In his final issue, Pacheco challenges the discretionary aspects of his sentence. “Challenges to the disсretionary aspects of sentencing do not entitle an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue, this Court conducts a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, seePa.R.Crim.P. [720] ; (3) whether appellant‘s brief has a fatal defect, [see]Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [see]42 Pa.C.S.[A.] § 9781(b) .
Id. (citation omitted). When an appellant challenges the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987);
“The determination of what constitutes a substantial question must be evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011). Further, “[a] substantial question exists only when the appellant advances a colorable argument that the sentencing judge‘s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. (internal citations omitted).
In the instant case, Pacheco filed a timely notice of appeal, preserved his claims in a timely post-sentence motion, and included in his appellate brief a Rule 2119(f) statement. As such, he technically complied with the first three requirements to challenge the discretionary aspects of his sentence. See
In his Rule 2119(f) statement, Pacheco claims that the trial court improperly relied on a heroin study provided by the Commonwealth which indicated sentences imposed on defendants in different jurisdictions where little information is known. Pacheco also claims that, rather than focusing on Pacheco‘s rehabilitative needs in fashioning his sentence, the trial court sought to send a message that severely harsh sentences will be imposed for drug mules. Pacheco contends that the trial court improperly considered as an aggravating faсtor the potential harm that Pacheco could have caused had he not been caught by law enforcement, rather than the actual harm he caused by his drug trafficking activities. Pacheco asserts that, in failing to consider his rehabilitative needs and in holding him accountable for a severe heroin epidemic, the trial court‘s consecutive sentencing scheme, even though within the standard range of the guidelines, renders his sentence manifestly excessive, and a virtual life sentence.
This Court has held on numerous occasions that a claim of inadequate consideration of rehabilitative needs does not raise a substantial question for our review. See Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015). Similarly, an allegation that a sentencing court failed to consider or did not adequately consider certain mitigating factors does not raise a
However, an allegation that the court considered an impermissible sentencing factor raises a substantial question. See Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009); see also Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007). With regard to the imposition of consecutive sentences, this Court has stated:
A court‘s exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.
[An appellant] may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015) (citations and quotations omitted).
Because Pacheco claims that the court considered an impermissible sentencing factor and that his standard range consecutive sentences are unreasonable as applied to him, we find he raises a substantial question and will address the merits of his discretionary sentencing claim.
The triаl court determined that Pacheco‘s excessiveness claim, if reviewable,21 lacks merit because the trial court did not abuse its discretion in fashioning his sentence. The court explained its determination, as follows:
[Pacheco] is incorrect to claim that his sentence is unduly harsh in light of the conduct at issue. This court presided over the jury trial in this case and heard all the evidence. This court noted the Defendant‘s age, his family, and his prior job and company. It also noted that it did not believe [Pacheco] started his criminal activity with the intent of joining a cartel. This case involved a large amount of money and [Pacheco‘s] own words that he hoped there would be more, more work, more money. This court noted the huge amount of money that the heroin was worth, specifically, the 27 kilograms of heroin that [Pacheco] transported and possessed was worth 8.9 million dollars on the street.
While the opiate issue within Montgomery County was mentioned and this court considered that there is an effect from opiate addiction on the people of this community, this cоurt did not provide that consideration undue weight. It was merely one of many factors considered. This court also possessed a pre-sentence investigation [(“PSI“)], heard the [allocution] of [Pacheco], and the testimony from [Pacheco‘s] wife and half-brother. This court did not improperly rely on the severity of the heroin epidemic in fashioning its sentence. Rather, this court noted that the conduct of [Pacheco] contributed to the drug problem within the community, and that his trafficking of massive amounts of heroin contributed to that problem. It is proper for this court to consider the effect of [Pacheco‘s] criminal actions on the community.
However, this court also considered the individual characteristics of [Pacheco] as laid out in the PSI, arguments of counsel, and statements of [Pacheco] and his family. Finally, this court did note that the jury acquitted [Pacheco] of corrupt organizations and heard evidence that the police did not recover large sums of money from [Pacheco]. Nevertheless, the lack of evidence that
[Pacheco] was in possession of large amounts of money is not relevant to the sentence. What is relevant to the sentence, among the other factors already discussed, is the conduct of [Pacheco] in this case. In particular, [Pacheco] trafficked 3 kilograms of heroin 9 different times. He made long trips to Georgia and New York in his trafficking. Each trip, which resulted in the trafficking of 3 kilograms of heroin, deserved a separate sentence. Still, rather than imposing all 9 possession with intent to distribute counts consecutively, this court imposed a mixture of consecutive and concurrent sentences in order to effectuate a particular sentencing scheme that reflected the seriousness of the criminal conduct. [Pacheco] should not receive a volume discount for his crimes because he committed the same crime more than once. Considering the quantity of drugs in this case, it was reasonable to run sentences for seven of the nine separate acts consecutively. Additionally, the two trips in which [Pacheco] transported large sums of drug monеy were equally deserving of their own consecutive sentences. Dealing in proceeds of criminal activity is a separate action to the drug trafficking behavior of [Pacheco]. Finally, the conspiracy charge was also deserving of its own sentence. [Pacheco] did not just traffick [sic] 27 kilograms of heroin, he engaged in a far reaching conspiracy to achieve his criminal goals. Therefore, that action was also deserving of separate punishment. This court did not run every sentence consecutive, nor did this court even impose a prison term for each count. Additionally, all sentences were guideline range sentences. Considering the criminal conduct at issue, this sentence was appropriate.
Trial Court Opinion, 3/9/18, at 30-32 (citations to record and some capitalization omitted).
We discern no abuse of discretion by the trial court in imposing Pacheco‘s sentence. Importantly, the sentencing court had the benefit of a PSI. It is well-settled that where a sentencing court is informed by a PSI, “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
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/20
Notes
Carpenter, 138 S.Ct. at 2211-12.There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking for the best signаl, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone‘s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.
Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue [in Carpenter]. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.
(d) Requirements for court order.--A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
- That there is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained from the targetеd telephone.
- The identity, if known, of the person to whom is leased or in whose name is listed the targeted telephone, or, in the case of the use of a telecommunication identification interception device, the identity, if known, of the person or persons using the targeted telephone.
- The identity, if known, of the person who is the subject of the criminal investigation.
- In the use of pen registers and trap and trace devices only, the physical location of the targeted telephone.
- A statement of the offense to which the information likely to be obtained by the pen register, trap and trace device or the telecommunication identification interception device relates.