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decided: July 6, 1976.



Chas. Lowenthal, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Wilson, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix and Manderino, JJ., concur in the result.

Author: Eagen

[ 467 Pa. Page 485]


Appellant, Edward Ryder, was convicted by a jury of murder of the first degree and conspiracy to murder. Motions for a new trial and in arrest of judgment were filed and denied. Ryder was sentenced to life imprisonment on the murder conviction and given a suspended sentence on the conspiracy conviction. An appeal was filed in the Superior Court from the judgment of sentence imposed on the conspiracy conviction and later certified to this Court for disposition with the direct appeal

[ 467 Pa. Page 486]

    filed in this Court from the judgment of sentence imposed on the murder conviction.

The facts established by the Commonwealth's evidence at trial are as follows. On August 15, 1973, Ryder and one Samuel Molten, inmates in the Holmesburg Prison in Philadelphia, had an animated argument over religion. It was necessary for prison guards to intervene in order to prevent Ryder from carrying out a threat to throw Molten off a balcony. Ryder attended a meeting the following evening, August 16, conducted by the hierarchy of the cellblock's Black Muslim chapter, that is, Theodore Brown, Kenneth Covil, and Michael Grant, at which the leader of the chapter, Brown, stated that if anyone disagreed with their religious tenets that person "would be taken care of." Subsequently that evening, two members of the hierarchy, Grant and Covil, were seen in their cells sharpening a metal rod. The following day, August 17, Ryder, Grant, Covil and Brown were seen approaching Molten's cell. Covil warned another inmate in the area to leave saying that they were preparing to kill someone and they did not want any witnesses. At the time Ryder had a shirt draped over his arm. Immediately thereafter, the sounds of a scuffle and heavy breathing were heard emanating from Molten's cell while Covil stood outside. Ryder, now emptyhanded, together with Grant and Brown, joined Covil and the four were seen running down the cellblock corridor. As they passed one of the other inmates, Covil said, "You didn't see anything." Molten was found dead in his cell within the next few minutes and a search of the cell revealed a sharpened metal rod, which the medical examiner testified was consistent with the multiple stab wounds which were the cause of Molten's death. A blue prison shirt was also found hidden in a bucket.

Appellant asserts several errors in the trial process. However, after a study of the record and the briefs, we conclude appellant's contentions are without merit and

[ 467 Pa. Page 487]

    only one requires discussion here.*fn1 It is contended the trial judge, on several occasions, made unnecessary statements in the presence of the jury which indicated bias against the appellant and his counsel and which deprived the appellant of his right to a fair trial. We are not so persuaded.

Initially, we note that in none of the trial incidents now complained of did appellant move for a mistrial. More importantly, a reading of the record clearly manifests that the statements of the trial judge, which appellant argues prejudiced him and his counsel with the jury, constituted legitimate efforts on the part of the judge to have appellant's counsel cease dilatory and distracting tactics.

Not every unnecessary comment made in a trial requires a new trial. As this Court said in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1975):

"'Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.'" [Citations omitted.] [Emphasis in original.]

Accordingly, we must evaluate the challenged statements of the trial judge in the instant case with a view to determining if the defendant was deprived of a fair trial.

Specifically, four of the five statements of the trial judge, brought to our attention in the instant appeal,

[ 467 Pa. Page 488]

    focus directly on the trial judge's response to counsel's repetitious and dilatory tactics.*fn2 In each of these four instances, the trial judge, in our view, was legitimately exercising his discretion to expedite the trial and performing his duty to focus the proceeding on the issues presented by the case. See Commonwealth v. Evancho, 379 Pa. 273, 108 A.2d 719 (1954); Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951). This in no sense deprived the appellant of a fair trial. It should also be noted the trial of this case consumed fifteen days during which defense counsel, at sidebar conference, admitted that he employed, as a matter of course, the tactic of asking irrelevant and knowingly objectionable questions.*fn3 Since from a reading of the record, we are

[ 467 Pa. Page 489]

    convinced that the trial judge afforded defense counsel every reasonable latitude in cross-examination and in the face of counsel's admission of employing dilatory tactics, we can find no error in the court's comments aimed at restraining these unwarranted practices by defense counsel.

Additionally, appellant directs our attention to one other comment made by the trial judge in the presence of the jury for separate consideration. During the direct examination of prison guard, Taylor, the witness testified that many of the inmates were in the corridor "talking, hollering, playing cards, things like that." Defense Counsel asked the witness, "Can you give us a demonstration of how loud the noise was?" The assistant district attorney immediately objected. The following then ensued:

"The Court: Let's bring in -- what was it, half a dozen prisoners that you said [sic]? Can you reconstruct it? Do you have a recording machine with you to give us an idea of what noises there were? It is a ridiculous question.

"Defense Counsel: Do you understand what the judge is asking you?

[ 467 Pa. Page 490]

"The Court: You asked that ridiculous question. The objection is sustained."

Although the court went further than necessary in ruling on the objection, see Canon 15, Canon of Judicial Ethics, particularly in labeling the question "ridiculous," this is not the type of comment which would prejudice a defendant to the point of depriving him of a fair trial. This is not a case where the court lectured defense counsel, see Commonwealth v. Horvath, 446 Pa. 11, 285 A.2d 185 (1971), or where the court threatened counsel in the presence of the jury, Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56 (1924).

With the knowledge that this trial consumed fifteen days, which, by his own admission defense counsel unnecessarily prolonged, the complained of comments do not warrant a new trial. This is particularly so because we are convinced after a careful study of the entire record that the appellant received a fair trial. The trial judge gave every possible consideration to defense counsel and exercised patience throughout the long trial.*fn4 The record discloses no conduct or utterances on the part of the trial judge which would in any way prejudice the appellant or his counsel in the eyes of the jury.*fn5

Judgments of sentence affirmed.

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