J-S63012-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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