The Philadelphia District Attorney’s Office is appealing a recent decision by a Philadelphia judge to dismiss third-degree murder charges against Kenneth Frye, a former Tabu Nightclub bouncer who killed a gay man.
Eric Pope, 41, was punched in the face by Frye after being shoved out of Tabu on April 16, 2022. Pope allegedly was inebriated when he was shoved out a side door of Tabu into an alleyway. He died a week later. Frye was charged with third-degree murder but maintains his innocence. Advocates say Pope posed no threat to Frye and was targeted due to his LGBT status.
“Of course this is third-degree murder,” declared Municipal Judge Karen Y. Simmons, after an hour-long preliminary hearing for Frye in July 2022. Simmons said Frye acted with malice when he punched Pope in the face for no apparent reason.
On Dec. 22, 2022, Common Pleas Judge Lillian H. Ransom dismissed the third-degree murder charge against Frye. As of press time, Ransom hadn’t filed an opinion explaining in detail her reasoning.
On Jan. 20, 2023, the Philadelphia DA’s Office filed a notice of appeal in Pennsylvania Superior Court, stating that Ransom acted in error when quashing the third-degree murder charge.
The matter is expected to be litigated for a lengthy period of time. A three-member panel of appellate judges may hold oral arguments. If they reverse Ransom’s ruling, defense attorneys can appeal to a higher court.
Frye, 24, remains free on bail and still faces a charge of involuntary manslaughter. The DA’s spokesperson, Jane Roh, was asked if the office will prosecute Frye for involuntary manslaughter in the event the DA’s appeal is unsuccessful. “The DA’s Office fully intends to pursue justice in this matter as we do in all criminal matters: guided by the facts and the law,” Roh replied, in an email.
Pope’s family issued this statement: “On behalf of our 41-year-old son, Eric Pope, our family is thankful and in full support of the appeal filed by the District Attorney’s office. Our family continues to suffer from Eric’s passing and will never recover from his death. We believe that the assailant who continues on with his life, and who took our son Eric’s life, should be charged with — and prosecuted for — at least third-degree murder.”
Frye’s attorney, Zak T. Goldstein, expressed agreement with Ransom’s ruling. “Third degree murder requires proof that a defendant not only caused the decedent’s death but also acted with malice,” Goldstein said, in an email. “Malice is a high standard to meet. It’s the equivalent of shooting into a crowd, drag racing at 100 mph while drunk, or leaving a baby home alone for a week. It’s something where you do not necessarily intend death, but the risk of death is so high and the conduct so outrageous that you can be held responsible for murder rather than manslaughter. The law is clear that one punch, absent something unusual or extraordinary, does not prove malice. We are glad that after reviewing the evidence from the preliminary hearing, Judge Ransom agreed and reduced the charge to involuntary manslaughter. We are optimistic that the Superior Court will agree, as well. This case is an absolute tragedy. But it is not a murder.”
Goldstein filed a 28-page motion to quash the third-degree murder charge on Nov. 18, 2022. The DA’s Office filed a 20-page reply on Dec. 19, 2022. Ransom granted Goldstein’s motion to quash on Dec. 22, 2022, according to court records.
“[I]t appears that Mr. Frye got angry, failed to contain his anger, and threw one punch, with tragic consequences,” states Goldstein’s motion, which also emphasizes that Frye didn’t act with malice.
The DA’s reply brief states: “After [Frye] unjustifiably punched [Pope], he lied about how the incident happened and failed to render aid or call 9-1-1. From approximately 12:54 a.m. to 1:04 a.m., [Pope] laid on the ground and no one called for help until [assistant Tabu manager] John Markocki called 9-1-1. If there was ever a case of one punch rising to third-degree murder, this is it.”
Asa Khalif, an LGBT advocate who has met with Pope’s family, expressed disagreement with Ransom’s ruling.
“I personally thought Mr. Frye should be charged with first-degree murder,” Khalif told PGN. “But I understand the realities of the judicial system. Clearly, he acted with malice when he killed Mr. Pope. There’s absolutely no justification for what he did. I also believe it was a hate crime. The bouncer clearly has an underlying issue with gay people or people whom he perceives as gay. I want the individual [Frye] charged to the fullest extent of the law. I would prefer third-degree murder over involuntary manslaughter — which often just results in a slap on the wrist. This man [Pope] was a member of our community. And he deserved to feel safe. It angers me to no end that he [Frye] thought he had a right to harm him.”