Opinion
1162 EDA 2022 J-A03023-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. TAURON R. HENDERSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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, and the trial court reimposed the judgment of sentence following a remand by this Court. We affirm.
See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), (iv), 3702(a), 903(a)(1), 3921(a), 3925(a).
See Order, 493 EDA 2021, 1/6/22, at 1.
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, 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.
The white Audi was later determined to be the Audi stolen from McInerney and Bageas.
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. 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.
Although most of the robberies occurred in Philadelphia, the Commonwealth filed all charges against Henderson in Montgomery County. We note the robberies occurred in March 2017, but Lower Moreland police did not file charges until April 2018. The Commonwealth filed an information in 2019. There is some indication the delay in the filing of charges and prosecution resulted from Henderson's flight to a different state sometime after his arrest in New Jersey.
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. 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. 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.
We also refer to the suppression hearing and ruling as the "original suppression hearing" and "original suppression ruling," respectively.
Sergeant Ricks did not state whether Henderson got into the driver's seat of the Audi before or after Officer Tucker entered the parking lot and approached the Audi.
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. 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.
Prior to the suppression hearing, Henderson requested discovery from the Commonwealth, including "visual/aural recordings . . .." Request for Pre-Trial Discovery, 4/10/19, ¶ 8. During the suppression hearing, Henderson asked Sergeant Ricks about the existence of a recording of the 911 call, and Officer Tucker about the existence of video recordings of the events at the AutoZone. Sergeant Ricks answered that a 911 call that came through dispatch would be recorded, but did not think the recording was provided to the Commonwealth. See N.T., 11/18/19, at 10. Officer Tucker stated that obtaining surveillance videos would be detectives' work and he did not recall if he was wearing a body camera or if his vehicle had a dash camera. See id. at 38-39.
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"), and played the audio and video portions of the music video downloaded from the Samsung phone. 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.
Nazario testified, in part, that Henderson was driving the Audi and he drove out of the AutoZone parking lot after a police officer told them to "freeze." Id. at 13.
The record does not contain a playable copy of the rap video or a transcript of the lyrics, nor has Henderson included a copy of the video in his reproduced record. We note the Commonwealth proffered the rap video as evidence to link Henderson to the Samsung phone, rebut Henderson's opening statement that Henderson was merely a fence, and question a witness whether the silver handgun on the video had been used during a robbery. See N.T., 12/17/19, at 163; N.T., 12/18/19, at 164. Henderson's counsel initially objected to the playing of the video but on authentication and chain of custody grounds. See N.T., 12/16/19, at 66. Later, when the Commonwealth played the video for a second time, counsel objected based on relevance and prejudice. See N.T., 12/17/19, at 164. Lastly, Henderson objected based on the lack of pretrial notice and improper bad acts evidence under Pa.R.E. 404, when the Commonwealth examined a detective about his retrieval of information from the Samsung phone. See N.T., 12/18/19, at 163.
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 after-discovered evidence claim. See Order, 493 EDA 2021, 1/6/22, at 1-2.
The Commonwealth opposed Henderson's petition for remand, asserting, in part, that Henderson could have obtained the recording of the 911 call before trial. This Court's order concluded that this response was "specious at best[.]" Order, 493 EDA 2021, 1/6/22, at 1 n.1. The order noted the recording of the 911 call was part of "documentation that should have been turned over by the Commonwealth as part of pretrial discovery." Id. The order also directed the trial court to reimpose the judgment of sentence if the court determined a new trial was not required.
Upon remand, the trial court held a hearing to consider the recording of the 911 call ("the hearing upon remand"). Henderson moved into the record several exhibits, including a transcript of the 911 call. We summarize the 911 call as follows. The caller initially indicated he wanted to report a robbery in progress and stated the suspect "[was] walking with . . . a black jacket on, he got a gun in his pocket, going across AutoZone parking lot, be driving a white Audi that's sitting in the parking lot." See Henderson's Exhibit 2, at 1. The caller then indicated the suspect was dressed in all black, another individual was wearing light-colored blue pants, and "they" robbed a mechanic. See id. The caller stated "they" were going to "a white Audi that's stolen, in the parking lot of AutoZone." See id. The caller did not give his name when the dispatcher asked for it, but he stayed on the line. See id. at 2. The dispatcher apparently broadcasted that there was "a male walking with all black on to a white Audi in the AutoZone parking lot with a one fifty on him in progress of robbing" a mechanic. Id. The transcript indicates that an unidentified officer asked for the license plate number for the Audi. Id. The dispatcher relayed the question to the caller, the caller responded, "I don't know, I seen it had, uh, it got like a loaner car on it." Id.
The certified record in this appeal does not include the transcripts of the recording of the 911 call or the hearing upon remand. Henderson's reproduced record contains copies of the relevant transcripts, however, and the Commonwealth has not objected to the accuracy of the reproduced record. Therefore, we decline to find waiver due to these defects in the record. See Commonwealth v. Barnett, 121 A.3d 534, 546 n.3 (Pa. Super. 2015).
The dispatcher then asked the caller for a description and location of the victim. See id. The caller indicated the victim ran "down Central Avenue" towards Clinton Avenue and later stated the victim "just ran down Amherst going toward Clinton Avenue." See id. at 2-3. The dispatcher confirmed with the caller that the report involved a white Audi in the AutoZone parking lot and asked if the caller saw officers. See id. at 3. The caller stated, "The Audi just pulled off[,]" and indicated officers were in pursuit. Id. The caller remained on the line, and when the dispatcher again asked for the caller's name, the caller responded he was "Walter's father." Id. at 4. The caller stated that "Walter" was a "fellow" officer, Officer "Lawson." Id. The caller did not give his own name, however. See id. The caller remained on the line after the Audi crashed and the occupants fled.
At the hearing upon remand, Henderson asserted the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce the recording of the 911 call during discovery. See N.T., 3/14/22, at 8. Henderson indicated that his girlfriend requested the recording from the East Orange police, but her open records request had been denied. Henderson only obtained the recording in November 2021, after subpoenaing them.Upon prompting from the trial court, Henderson requested reconsideration of the court's suppression ruling. See id. at 27. Additionally, Henderson referred to portions of Nazario's trial testimony indicating Officer Tucker had told the occupants of the Audi to "freeze," as well as East Orange police reports regarding the timing of the events at the AutoZone. Henderson claimed that his evidence established that Officer Tucker's testimony at the original suppression hearing was unreliable and demonstrably false. The Commonwealth responded to Henderson's Brady claim and asserted it had requested all discovery from the East Orange Police Department but did not receive the recording of the 911 call. See id. at 28. The Commonwealth explained that two years had elapsed from the time of the 911 call and the Commonwealth's involvement in the case, and the prosecutor had reason to believe that the recording of the call would have been purged after ninety days of the call, as was the policy in Montgomery County. See id. The Commonwealth thus claimed that it did not possess the recording of the 911 call and argued Henderson had equal access to the recording. The Commonwealth asserted that even if the court were to consider the recording, Henderson's challenges to Officer Tucker's credibility at the original suppression hearing merited no relief.
Henderson's exhibits, which the court admitted into evidence, included a March 2021 open records request from his girlfriend, which the East Orange police denied, as well as a November 2, 2021 subpoena, upon which the East Orange police supplied Henderson with a recording of the 911 call and other police activity logs. We note that Henderson presented no evidence that the Commonwealth suppressed the police activity logs.
As noted above, Lower Moreland police filed a criminal complaint against Henderson one year after the robberies occurred. The Commonwealth's reference to two years appears to be based on the involvement of the Montgomery County District Attorney's Office in the prosecution.
The trial court concluded the recording of the 911 call did not alter its original suppression ruling and entered an amended findings of fact and conclusions of law denying Henderson's suppression motion. See Trial Court Memorandum, 4/4/22, at 3-4. The court further determined Henderson failed to establish a Brady violation because the Commonwealth did not possess the recording of the 911 call and Henderson had equal access to it. See id. at 5-7. The court reimposed the judgment of sentence on April 4, 2022. Henderson timely appealed. The court did not order a new Pa.R.A.P. 1925(b) statement but filed a revised Rule 1925(a) opinion.
Henderson raises the following issues for our review:
I. Whether the trial court erred as a matter of law in denying [Henderson] a new trial because the Commonwealth violated Brady when it failed to turn over the audio recording of the 911 call and the recording affirms that Officer Tucker unlawfully detained [Henderson] without reasonable suspicion or probable cause.
II. Whether the trial court erred in admitting an online rap music video because the video is not relevant, unfairly prejudicial, the lyrics did not describe a crime mirroring that for which [Henderson] was tried, and the video did not fall under an applicable Pa.R.[E]. 404(b) exception.
Henderson raised eight issues in the Rule 1925(b) statement filed during the previous appeal. The trial court addressed all eight issues in its revised Rule 1925(a) opinion. In his current brief, Henderson only raises the two arguments stated in his questions involved in this appeal.
In his first issue, Henderson claims that he was entitled to a new suppression hearing and, alternatively, the suppression of the evidence recovered by the East Orange police. We address these claims separately.
Initially, Henderson asserts the Commonwealth violated Brady when it failed to disclose the recording of the 911 call and he is entitled to a new suppression hearing.
It is well settled that the prosecution's suppression of evidence favorable to an accused, irrespective of the good or bad faith exercised by the Commonwealth, constitutes a due process violation and may require a new trial. See Commonwealth v. Holt, 273 A.3d 514, 534 (Pa. 2022), cert. denied sub nom. Holt v. Pennsylvania, 143 S.Ct. 380 (2022). To establish a Brady claim, the defendant must demonstrate that: (1) the prosecution suppressed evidence; (2) the evidence is helpful to the petitioner, either because it is exculpatory or impeaching; and (3) prejudice ensued. See id. The prosecution's obligation to disclose material evidence extends to materials in the files of police agencies within the same government bringing the prosecution. However, unless the prosecution takes other affirmative steps to conceal the existence of the evidence, a court will not find a Brady violation when the defense has equal access to the allegedly withheld evidence or if the defense knew or could have uncovered such evidence with reasonable diligence. See Commonwealth v. Bagnall, 235 A.3d 1075, 1091-92 (Pa. 2020); Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 26 (Pa. Super. 2020). Our standard of review of a Brady issue is de novo, and our scope of review is plenary. See Bagnall, 235 A.3d at 1084.
Henderson contends that the Commonwealth failed to disclose the recording of the 911 call, the recording would have impeached Officer Tucker's testimony at the original suppression hearing, and the failure to disclose the recording resulted in prejudice. The trial court concluded, and we agree, that Henderson's reliance on Brady, is misplaced.
A review of the record shows that the Commonwealth denied ever possessing the recording of the 911 call despite its request to the East Orange police for all discovery. Henderson proffered no evidence to show the Commonwealth actually possessed the recording. Additionally, Henderson managed to obtain the recording while his first appeal was pending. Henderson offered no evidence explaining why he failed to obtain the recording from East Orange Police Department earlier. There is no record evidence suggesting that the Commonwealth, by its actions or omissions, dissuaded Henderson from exercising reasonable diligence to obtain the recording earlier. See Bagnall, 235 A.3d at 1091-92. Therefore, Henderson has not demonstrated that the Commonwealth had possession of the recording of the 911 call and suppressed the recording for the purpose of a Brady claim. See Benvenisti-Zarom, 229 A.3d at 26. Accordingly, Henderson has not demonstrated he is entitled to a new suppression hearing under Brady.
We acknowledge that this Court's prior remand order suggested that the Commonwealth had an obligation to disclose the recording of the 911 call because it was "documentation that should have been turned over by the Commonwealth as part of pretrial discovery." Order, 493 EDA 2021, 1/6/22, at 1 n.1. However, given the further development of the record at the hearing upon remand on whether the Commonwealth possessed the recording of the 911 call, our prior conclusion is not conclusive of Henderson's Brady issue. As discussed herein, Henderson has also failed to offer this Court a focused argument contesting the trial court's determination that the recording of the 911 call did not alter its original suppression rulings.
Next, Henderson asserts that regardless of his Brady claim, the trial court should have suppressed the evidence recovered by the East Orange police.
When reviewing an order denying a motion to suppress evidence, our standard of review
is limited to determining whether the findings of fact are supported by the record and whether the legal conclusions drawn from those facts are in error. In making this determination, this [C]ourt may only consider the evidence of the Commonwealth's witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous.Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015) (internal citations omitted).
It is well settled that our scope of review is limited to the record developed at the suppression hearing. See Commonwealth v. Davis, 241 A.3d 1160, 1171 (Pa. Super. 2020) (internal citation omitted). However, the trial court may, in its discretion, reconsider its original suppression ruling when evidence was previously unavailable, the defendant was unable to present the claim earlier, or the interests of justice so require. See Commonwealth v. Sodomsky, 137 A.3d 620, 626 n.8 (Pa. Super. 2016) (en banc)(discussing Pa.R.Crim.P. 581(B) and (J); Commonwealth v. Branch, 437 A.2d 748, 751 (Pa. Super. 1981) (applying former Rule 323(j)); see also Pa.R.Crim.P. 581(B) (requiring a defendant to file a timely motion to suppress, unless the opportunity did not exist or the interests of justice otherwise require) and (J) (noting that once a trial court holds a hearing and denies a suppression motion, its determination is conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable).
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect private citizens from unreasonable searches and seizures by government officials. See Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citing United States v. Mendenhall, 446 U.S. 544, 551 (1980)). However, "[n]ot every encounter between a law enforcement officer and a citizen constitutes a seizure warranting constitutional protections." Commonwealth v. Adams, 205 A.3d 1195, 1199 (Pa. 2019). As our Supreme Court has explained there are three types of interactions that occur between law enforcement and private citizens: (1) a mere encounter, which does not constitute a seizure and requires no level of suspicion that the citizen is or has been engaged in criminal activity; (2) an investigative detention, which constitutes a seizure of a person and must be supported by reasonable suspicion that criminal activity is afoot; and (3) a custodial detention, is the functional equivalent of an arrest and must be supported by probable cause. See id. at 1199-200. When determining whether a seizure has occurred to elevate the interaction beyond a mere encounter, courts apply a "free to leave test," which considers whether, under the totality of the circumstances, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. See id. at 1200. Relevant factors include:
t]he number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.Commonwealth v. Thomas, 273 A.3d 1190, 1199 (Pa. Super. 2022) (internal citation omitted), appeal denied, 283 A.3d 793 (Pa. 2022). The activation of emergency lights on a police vehicle is a significant, often determinative, factor when considering whether a reasonable person would feel free to leave an interaction with a police officer. See Commonwealth v. Livingstone, 174 A.3d 609, 621 (Pa. 2017); Commonwealth v. Thran, 185 A.3d 1041, 1044 (Pa. Super. 2018). Pursuit of a fleeing suspect constitutes a seizure under Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Matos, 672 A.2d 769, 771, 776 (Pa. 1996); therefore, an officer must demonstrate there was reasonable suspicion a defendant had been engaged in criminal activity for a pursuit to be constitutional. See Commonwealth v. Soto, 202 A.3d 80, 90 (Pa. Super. 2018).
When considering whether reasonable suspicion exists to support an investigative detention, courts employ an objective standard to determine "whether the facts available to police at the moment of the intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate." Commonwealth v. Cunningham, 287 A.3d 1, 8 (Pa. Super. 2022) (internal citation omitted). "While a tip can be a factor, an anonymous tip alone is insufficient as a basis for reasonable suspicion. Such anonymous tips must be treated with particular suspicion." Commonwealth v. Leonard, 951 A.2d 393, 397 (internal citations omitted). Nevertheless, the "determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Id. (internal citations and quotations omitted). Further, "[w]here . . . the source of the information given to the officers is unknown, the range of details provided and the prediction of future behavior are particularly significant, as is corroboration by independent police work." Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000).
Henderson presents a hodgepodge of factual contentions mixing evidence from the original suppression hearing, with evidence from the recording of the 911 call, and all other evidence presented at the hearing upon remand. See Henderson's Brief at 29-36. He contends that Officer Tucker's testimony at the original suppression hearing contradicted the evidence at the hearing upon remand. He concludes that there is no record or legal support for the trial court's original suppression ruling that Officer Tucker did not effect a detention when Henderson fled in the Audi or had reasonable suspicion to detain the Audi and that suppression is required. See id. at 29.
As noted above, the trial court concluded that the recording of the 911 call did not require reconsideration of its original suppression ruling. The trial court reasoned that the only material discrepancy raised in the recording of the 911 call involved Officer Tucker's testimony at the original suppression hearing that he confirmed the license plate of the Audi with the dispatcher. See Trial Court Memorandum, 4/4/22, at 3. The court determined this discrepancy did not affect its original suppression rulings that Officer Tucker's encounter with the Audi at the AutoZone did not constitute a detention or that the 911 call, along with Officer Tucker's and Sergeant Ricks' observations, provided the officer with reasonable suspicion to detain the Audi.
Following our review, we conclude Henderson's suppression arguments merit no relief. Critically, our scope of review is limited to the evidence presented at the original suppression hearing and our prior remand order for the trial court to consider the recording of the 911 call. Henderson's arguments, however, do not specifically challenge the trial court's ruling that the recording of the 911 call would not have altered its original suppression ruling. Rather, Henderson argues that he was entitled to suppression based on his own view of the testimony at the original suppression hearing, see Henderson's Brief at 29-38, and his belief that Officer Tucker's original suppression hearing testimony should be afforded no weight when read in light of the evidence from the recording of the 911 call and trial testimony, as well as other exhibits presented at the hearing upon remand. See id.
For example, when contesting the trial court's determination that Officer Tucker did not detain him at the AutoZone parking lot, Henderson relies on trial testimony from a Nazario, another occupant of the Audi, that Officer Tucker stepped out of his vehicle and stated, "[F]reeze," to assert that a detention occurred. See id. at 32.
Put bluntly, Henderson tailors his legal arguments based on facts which the court did not find, evidence ordinarily beyond the scope of this Court's review of the original suppression ruling, and evidence outside the scope of our remand for consideration of the recording of the 911 call as after-discovered evidence. When read as a whole, Henderson's argument essentially goes to the effectiveness of his prior counsel in failing to investigate and present evidence to impeach Officer Tucker's testimony at the original suppression hearing. Absent focused argument that the trial court erred or abused its discretion when concluding that the recording of the 911 call did not alter its original suppression ruling, we cannot conclude relief is due and decline to fashion such an argument on Henderson's behalf. Thus, Henderson's claim that he was entitled to suppression fails.
In his second issue in this appeal, Henderson contends that the trial court erred in allowing the Commonwealth to play the rap video obtained from the Samsung phone. He contends the record did not support the trial court's determination that the video contained a lyric about stealing cars. See Henderson's Brief at 42-43. He further asserts the lyrics and depictions of other individuals with a handgun had no evidentiary purpose other than to present him in an unflattering light. See id. at 43. He also asserts that the Commonwealth failed to provide adequate notice that it would seek to have the video admitted as prior bad acts evidence under Pa.R.E. 404. See id.
Pennsylvania Rule of Evidence 103(a)(1) requires a party to make a timely objection to evidence and state a specific ground for the objection. See Pa.R.E. 103(a)(1); Commonwealth v. Shank, 883 A.2d 658, 672 (Pa. Super. 2005). Moreover, it is well settled that an appellant must ensure this Court has a complete record to review his claims of error, and the failure to provide the materials necessary for appellate review will result in waiver. See Commonwealth v. Holston, 211 A.3d 1264, 1276-77 (Pa. Super. 2019) (en banc).
In the case sub judice, we conclude that Henderson waived his objection to the trial court's admission of the rap video. When the Commonwealth first proffered the evidence, Henderson objected. However, he objected based on the authentication and chain of custody concerns. See N.T. 12/16/19, at 65-67. Henderson later objected based on relevance and prejudice when the Commonwealth requested to replay a portion of the video, without sound, to Bageas, one of the robbery victims. See N.T., 12/17/19, at 164. Henderson only stated an objection based on Pa.R.E. 404 during the Commonwealth's examination of the detective who searched and downloaded the contents of the phone, after the video had been played at least two times at trial. Additionally, Henderson has failed to provide this Court with a playable copy of the video. Thus, this issue is waived. See Holston, 211 A.3d at 1276-77; Shank, 883 A.2d at 672.
Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.