Commonwealth v. Henderson

1

COMMONWEALTH OF PENNSYLVANIA v. TAURON R. HENDERSON Appellant

No. 1162 EDA 2022

J-A03023-23

Superior Court of Pennsylvania

January 17, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered April 4, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000910-2019

BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

SULLIVAN, J.

Tauron R. Henderson ("Henderson") takes this appeal after a jury found him guilty of multiple counts of robbery robbery of motor vehicle, conspiracy, and theft,^[1] and the trial court reimposed the judgment of sentence following a remand by this Court.^[2] We affirm.

The trial court has detailed the factual background of Henderson's convictions for a series of robberies in March 2017, see Trial Court Opinion, 6/17/22, at 1-3 (footnote omitted), and we summarize the evidence and procedures relevant to this appeal. The last of these robberies occurred in Lower Moreland Township, Montgomery County. In that incident, a car bumped into a white Audi A4 ("the Audi") driven by Corissa McInerney ("McInerney"). Stephanos Bageas ("Bageas") was in the Audi's passenger seat at the time. McInerney pulled over to the side of the road, and Bageas got out of the Audi. Several men exited the other car. One of the men opened the driver's door of the Audi, dragged McInerney from the vehicle, and then pointed a gun at her head. Another man pointed a silver and black gun at Bageas's head. The men ultimately left the scene in the Audi and the other car. Bageas provided police with general physical descriptions of the men and noted one of them was African American, approximately six feet tall, with dreadlocks, and was wearing a black jacket and tan pants.

The afternoon after the robbery of Bageas and McInerney, police received a 911 call reporting a robbery near the parking lot of an AutoZone in East Orange, New Jersey ("the AutoZone"). The 911 call indicated that the robbers were going to a white Audi at the AutoZone and mentioned one of the robbers had a firearm in his pocket. Officer Elemond Tucker ("Officer Tucker"), with the East Orange Police Department, responded to the AutoZone in full uniform and in a marked police vehicle. See N.T., 11/18/19, at 27-28. Officer Tucker saw a white Audi in the parking lot,^[3] and the officer parked his vehicle in the "middle of the parking lot." See id. at 29. The officer activated his vehicle's emergency lights, and as he opened his door to exit, the Audi sped out of the parking lot. See id. at 29-30. Officer Tucker and other responding officers pursued the Audi, which crashed a short distance from the AutoZone. All of the Audi's occupants fled from the scene. East Orange police found Henderson hiding in the basement of a nearby home. Henderson had the key fob for the Audi, had on a black jacket and tan pants, and had dreadlocks.

East Orange police recovered from the Audi several cellphones, including a Samsung Galaxy Express 3 ("the Samsung phone"), Henderson's personal property, and a black handgun. Lower Moreland Township police obtained a warrant for the Samsung phone and recovered a music video featuring Henderson and two unidentified individuals. One of the other individuals on the video was brandishing a silver firearm.

The Commonwealth subsequently charged Henderson with seventy counts related to the string of robberies.^[4] Henderson filed a motion to suppress all evidence recovered by the East Orange police. Therein, Henderson claimed Officer Tucker coerced his abandonment of all evidence because the officer lacked reasonable suspicion to detain him at, or pursue him from, the AutoZone. See Motion to Suppress, 9/9/19, at 2.

At a suppression hearing, the Commonwealth presented the following testimony from Officer Tucker and Sergeant Anthony Ricks ("Sergeant Ricks"), also with the East Orange Police Department.^[5] Sergeant Ricks testified he was working undercover across the street from the AutoZone, an area which had a high crime rate and was known for drug dealing. See N.T., 11/18/19, at 6. Sergeant Ricks heard the dispatch involving "[s]everal males with a handgun possibly involved in a robbery" by the AutoZone, and he looked across the street and saw four men and a woman standing and talking by the Audi in the parking lot. See id. at 6-7. He identified Henderson as one of the men and saw Henderson get into the driver's seat of the Audi. See id. at 8.^[6] Sergeant Ricks stated the source for the dispatch was anonymous and he thought the reported robbery was "odd" because the people around the Audi "just appeared to be talking to each other." See id. at 10-11. The Audi was parked when Sergeant Ricks saw Officer Tucker's vehicle enter the parking lot. See id. at 17. Sergeant Ricks believed there were several cars parked to the north of the Audi but did not think any cars were parked to the south of the Audi, i.e., the direction from which Officer Tucker approached Audi. See id. at 16. Sergeant Ricks noted the parking lot was generally heavily traveled and people used it to work on their cars. See id. Sergeant Ricks stated he saw Officer Tucker activate his emergency lights "seconds" after entering the AutoZone parking lot and stop his vehicle within "five feet" of the Audi. Id. at 17-18.

Officer Tucker testified that he received a dispatch stating several men possibly committed a robbery, the robbery involved a handgun, and the suspects were in the AutoZone parking lot in a white Audi. See id. at 27-30. Officer Tucker responded within thirty seconds of the dispatch, entered the parking lot from the south entrance, and proceeded north. See id. at 28. Officer Tucker saw the Audi in front of him. See id. Officer Tucker testified he "confirmed the [license plate of the Audi] with the dispatcher." Id. at 28-29, 32.

Officer Tucker stated he then parked his vehicle "in the middle of the parking lot" approximately "twenty feet" away from the Audi. Id. at 29-30. The officer testified he did not block the Audi with his vehicle. See id. at 30. He testified he then activated the emergency lights of his vehicle and was opening the door to exit his vehicle when the Audi "sped off" out of the east exit of the parking lot. Id. at 29-30, 36, 41. He clarified that the Audi sped off as he "cracked" open his door and before he was able to get out of his vehicle or issue any verbal commands. Id. at 30, 41. Officer Tucker testified he did not activate his vehicle's siren until after the Audi left the parking lot. See id. at 40. During cross-examination, Officer Tucker testified the dispatch indicated one of the suspects in the reported robbery had a gun, but he did not see a gun; the officer also conceded he did not see a possible robbery victim in the parking lot. See id. at 39.^[7] When confronted with Sergeant Ricks' testimony that he saw Officer Tucker stop his car within five feet of the Audi, Officer Tucker responded, "I can tell you what I did. I can't speak to what [Sergeant Ricks] observed." Id. at 37.

The trial court denied Henderson's suppression motion. The court acknowledged that Officer Tucker's activation of his vehicle's emergency lights would typically initiate an investigative detention; however, the court concluded that a detention did not arise under the facts of the case. See Findings of Fact and Conclusions of Law, 11/22/19, at 7-8. The court, in relevant part, reasoned that Officer Tucker did not block in the Audi, and there was a "mere split second" lapse between Officer Tucker's activation of his emergency lights and the flight of the Audi from the parking lot. See id. The court found that "the operator of the vehicle likely did not even have time to react to the activation of the [emergency] lights." Id. at 8. The interaction, the court thus explained, did not escalate to an investigative detention requiring reasonable suspicion, and Henderson's unprovoked flight provided reasonable suspicion for the officer to pursue. See id. Alternatively, the court determined that Officer Tucker had reasonable suspicion to detain the Audi at the AutoZone based on the 911 call. The court suggested that by calling 911, the caller was at risk of having his phone traced and being prosecuted for a false claim. The court added that the information relayed by the caller, which the court believed included a full license plate number for the Audi confirmed by Officer Tucker, was akin to an eyewitness account of a crime. See id. at 8-9.

Henderson proceeded to a jury trial. The Commonwealth presented testimony from the victims of the robberies, police officers, and expert witnesses. The Commonwealth also called one of the occupants of the Audi at the AutoZone, Rachel Nazario ("Nazario"),^[8] and played the audio and video portions of the music video downloaded from the Samsung phone.^[9] Henderson did not present evidence but argued he was only a fence who did not participate in the underlying robberies. The jury found Henderson guilty of numerous counts of robbery, conspiracy, and theft but acquitted him of some charges related to one of the robberies.

In January 2021, the trial court sentenced Henderson to an aggregate term of fourteen to twenty-eight years in prison and Henderson timely appealed ("the first appeal"). Henderson who had retained new counsel after trial, thereafter obtained a recording of the 911 call that led to his arrest in East Orange. Henderson, through present counsel, filed in this Court a petition for a remand based on the recording of the 911 call. Upon consideration of Henderson's petition for remand and the Commonwealth's response, this Court vacated the judgment of sentence and remanded for an evidentiary hearing on Henderson's...