Com. v. Fryer, D. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEVON FRYER, :
:
Appellant : No. 138 EDA 2015
Appeal from the Judgment of Sentence December 15, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0001427-2013
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 05, 2015
Devon Fryer (“Fryer”) appeals from the judgment of sentence entered
following his convictions of possession of a controlled substance and
possession of a controlled substance with intent to deliver.1 On appeal,
Fryer challenges the trial court’s denial of his request for a continuance and
its limitation of his cross-examination of a Commonwealth witness.
Following our review, we affirm.
The trial court summarized the facts underlying Fryer’s convictions as
follows:
On January 16th, 2013, at approximately 9:25 p.m.,
Philadelphia Police Sergeant Tamika Allen set up an
undercover surveillance in the 3800 block of Wallace
Street in Philadelphia, Pennsylvania. (N.T. 5/20/2014
at 11-12). During the surveillance, she observed
[Fryer] sitting on the steps of 3829 Wallace Street.
1
35 P.S. §§ 780-113(a)(16),(30).
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(Id. at 12). Approximately [five] minutes later,
Sergeant Allen observed Mr. Bradford Clover arrive
on the scene and stand on the 600 block of Lowber
Street. (Id. at 13). Shortly thereafter, [Fryer]
walked onto the 600 block of Lowber Street and
approached Clover. (Id.). After a brief conversation,
Clover handed [Fryer] money. (Id.). [Fryer] took the
money from Clover and walked to 632 North Lowber
Street. (Id. at 13-14). Sergeant Allen then observed
[Fryer] reach down on the side of some steps and
retrieve an object. (Id. at 14). [Fryer] removed
small items from the object and then placed the
object back on the ground beside the steps. (Id.).
[Fryer] then walked back over to Clover and handed
him the items he just retrieved from the object by
the steps. (Id.). After the items were handed to
Clover, [Fryer] walked away and sat back down on
the steps of 3829 Wallace Street. (Id. at 21).
Approximately [five] minutes after the initial
transaction, Sergeant Allen observed Ms. Angela
Edwards arrive on the scene and stand on the 600
block of Lowber Street. (Id. at 22). Shortly
thereafter, [Fryer] arose from the steps of 3829
Wallace Street and walked over to Edwards. (Id.)
Sergeant Allen observed Edwards hand [Fryer]
money, (id. at 22-23) and [Fryer] walked directly
over to 632 North Lowber Street, then retrieved
additional items from the object beside the step. (Id.
at 23). After retrieving the items, Sergeant Allen
observed [Fryer] walk back over to Edwards and
hand her those items. (Id.).
After observing these transactions, Sergeant Allen
radioed Philadelphia Police Officer John Merrigan,
one of her backup officers, and gave him a
description of [Fryer]. (Id. at 97). Officer Merrigan
observed [Fryer] sitting on the steps of 3829 Wallace
Street and arrested him. (Id. at 97-98). Incident to
the arrest, Officer Merrigan recovered $118.00 in
[Fryer’s] pants pockets.t. [sic] (Id.). Once [Fryer]
was in custody, Sergeant Allen directed other officers
to the steps on 632 North Lowber Street. (Id. at
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111). Officer Nicholas Martella recovered a blue
Mentos container beside the step, which contained
[four] purple packets of crack cocaine. (Id.). The
substance in the [four] purple packets recovered
from the Mentos container [was] later tested and
confirmed to be crack cocaine. (Id. at 123).
Sergeant Allen also radioed her other backup officers
on the scene, Officer Barry Stewart and Officer Justin
Falcone, and gave them descriptions of Clover and
Edwards. (Id. at 66, 84). Officer Stewart
apprehended Clover and recovered three purple
packets containing crack cocaine from Clover's
jacket. (Id. at 66-67). Officer Falcone apprehended
Edwards and recovered one purple packet containing
crack cocaine from her pants pocket. (Id. at 86-87).
The substance in the purple packets recovered from
Clover and Edwards [was] later tested and confirmed
to be crack cocaine. (Id. at 122-123).
Trial Court Opinion, 5/6/15, at 2-4.
Following a jury trial, Fryer was convicted of the offenses listed above
and sentenced to one to three years of incarceration, followed by two years
of probation. Fryer sought reconsideration of his sentence. Following a
hearing, the trial court resentenced Fryer to eleven and a half to twenty-
three months of incarceration, followed by four years of probation. This
timely appeal followed.
As noted above, Fryer presents two issues for our review. First, he
argues that the trial court denied him “his constitutional right to present a
defense when, in the late afternoon on the first day of trial testimony, it
denied … [Fryer’s] request for a brief continuance until the following morning
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to secure attendance of an essential witness[,]” Mr. Hasson.2 Fryer’s Brief at
14.
“The grant or denial of a continuance to secure a witness is a matter
within the sound discretion of the trial court and an appellate court will not
reverse a trial court's ruling unless there has been prejudice to the
defendant or a showing of palpable and manifest abuse of discretion.”
Commonwealth v. Thomas, 717 A.2d 468, 475-76 (Pa. 1998). When
reviewing a trial court's decision to deny a request for a continuance, we
consider the following factors:
(1) the necessity of the witness to strengthen the
defendant's case; (2) the essentiality of the witness
to the defendant's defense; (3) the diligence
exercised to procure his or her presence at trial; (4)
the facts to which he or she could testify; and (5)
the likelihood that he or she could be produced in
court if a continuance were granted.
Id. at 476 (citing Commonwealth v. Scott, 365 A.2d 140, 143 (Pa.
1976)).
The trial court denied Fryer’s motion because Fryer did not explain
“what Mr. Hassan [sic] was expected to testify about or why his testimony
was essential to [his] defense[,]” and because Fryer did not state that “if a
continuance was granted it was likely that Mr. Hassan [sic] would appear or
2
Mr. Hasson’s first name does not appear in the record or in Fryer’s brief on
appeal.
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that the absence of Mr. Hassan’s [sic] testimony prejudiced him[.]” Trial
Court Opinion, 5/6/15, at 8.
The record reveals that on the first day of trial, the Commonwealth
rested and Fryer called his first witness. N.T., 5/20/14, at 126, 133. At the
conclusion of that witness’ testimony, Fryer informed the court that one of
the witnesses that he subpoenaed, Mr. Hasson, was not present and asked
for a continuance until the following morning so that he could track down Mr.
Hasson. Id. at 152-53. The trial court responded, “[I]t’s 3:15. I can’t let
the jury go[,]” to which Fryer said only “I understand, Your Honor. I need to
ask for that.” Id. at 153.
Presently, Fryer argues that the trial court erred because “[w]ithout
even inquiring at all into the nature or relevancy of the proposed testimony
of Mr. Hasson,” it denied his motion. Fryer’s Brief at 19. We cannot agree.
While a trial court is supposed to consider, inter alia, the nature and
relevancy of a potential witness’ testimony when ruling on a motion for a
continuance to secure a witness’ presence, Thomas, 717 A.2d at 476, it was
Fryer’s responsibility to argue these matters to the trial court. Fryer had the
opportunity to tell the trial court precisely why Mr. Hasson’s testimony was
relevant and essential to his defense, yet he did not. Instead, he acquiesced
to the trial court’s inclination to go forward with the trial without attempting
to justify his request for a continuance. See N.T., 5/20/14, at 153. Fryer is
due no relief on this claim.
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In his second issue, Fryer argues that the trial court erred by limiting
his cross-examination of Sergeant Tamika Allen.
The determination of the scope and limits of cross-
examination are within the discretion of the trial
court, and we cannot reverse those findings absent a
clear abuse of discretion or an error of law. An
abuse of discretion is not a mere error in judgment,
but, rather, involves bias, ill will, partiality,
prejudice, manifest unreasonableness, or
misapplication of law.
Commonwealth v. Handfield, 34 A.3d 187, 210 (Pa. Super. 2011)
(citations omitted).
The record reveals that at trial, Fryer sought to question Sergeant
Allen on cross-examination about her testimony in other criminal cases as to
how she conducted surveillance in those cases for the purpose of attacking
her veracity and credibility.3 Following an objection from the Commonwealth
and argument before the trial court, he was prohibited from doing so. N.T.,
5/20/14, at 43-50.
We find no abuse of discretion in the trial court’s ruling. Pennsylvania
Rule of Evidence 608 provides, in relevant part, that “the character of a
witness for truthfulness may not be attacked or supported by cross-
examination or extrinsic evidence concerning specific instances of the
3
Specifically, Fryer argued, “It is my point of view that this is a fabrication[,]
that this officer always says [she surveilles from] eighty feet away, always
says she’s in a confidential location even when she’s corrected … . I think
that goes to her credibility as far as where she was and what she was able to
observe.” N.T., 5/20/14, at 47.
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witness' conduct[.]” Pa.R.E. 608(b)(1). Yet, this is exactly what Fryer was
attempting to do by cross-examining Sergeant Allen as to the substance of
her testimony in other drug-related criminal trials, and Fryer admits as
much. Fryer’s Brief at 22-23. The trial court accurately applied the law in
prohibiting this line of cross-examination, and so we find no error in its
ruling.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2015
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