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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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