The opinion of the court was delivered by: DITTER
The defendant was convicted of selling stolen motor vehicles. His motions for a new trial and for judgment of acquittal now bring the matter before the court.
A review of the record reveals the following facts. On seven separate occasions defendant went to various junk dealers and bought automobiles of recent vintage which had been wrecked ostensibly beyond repair. At the same time, he obtained their titles. After buying a particular automobile from a junk dealer, defendant then came into possession of a new automobile of the same type, make, and color which had recently been reported stolen by its owner. Thereafter, defendant sold to a third person an automobile which contained the vehicle identification number of the wrecked automobile previously purchased. Upon closer inspection, however, it was found that the car which had been sold was not in fact the wrecked vehicle which had allegedly been repaired but was instead the automobile which had been stolen.
Able defense counsel has cited nine reasons in support of defendant's motions. We shall now consider each of these contentions in turn.
I. Was the evidence presented by the government against the defendant illegally obtained?
Defendant's first contention is that the search warrant in this case did not issue upon probable cause because its supporting affidavit did not state sufficient underlying facts.
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), sets forth the principles of law which govern the issuance of search warrants:
1. Probable cause must be determined by a neutral and detached magistrate, based upon facts and not the unsupported conclusions of complainant;
2. The magistrate's judgment is to be based upon a common-sense reading of the entire affidavit;
3. Probability, and not a prima facie showing of criminal activity, is the standard of probable cause;
4. Affidavits of probable cause are tested by much less rigorous standards then those governing the admissibility of evidence at trial;
5. A magistrate's determination of probable cause should be paid great deference by reviewing courts.
Here the affidavit in question was made by George Hatton, a detective of the City of Philadelphia. It sets forth that he and two other Philadelphia detectives were assigned to investigate the matters that led up to the request for the warrant. Specifically, the affidavit relates that the Philadelphia Police Department received a request from the National Auto Theft Bureau to investigate the circumstances surrounding the titling of a 1966 Chevrolet which had been totally wrecked in an accident. The detectives personally ascertained that a vehicle bearing its serial numbers was in the possession of Donald I. Davis, a Philadelphian, who had purchased it from the Marv Pollow automobile agency, Lansdowne, Pennsylvania.
The detectives then found that the vehicle's confidential serial number had been obliterated and another number, corresponding with the manufacturer's number on the door plate, had been stamped in its place. There was damage to the door plate and the assembly plant letter on the firewall did not correspond with the door plate letter. This car, and 19 others with similar case histories, had been bought by the agency from one Joseph Phillips.
The affidavit then alleges that an examination of other cars purchased by automobile dealers from Phillips, the defendant, and other named individuals, showed the alteration and substitution of serial numbers and the destruction or defacing of confidential numbers. Through tests performed by the Federal Bureau of Investigation, the true serial numbers of these vehicles were ascertained, the true owner located in most instances, and thus it was learned that the vehicles had been stolen. From this the complainant concluded that Phillips, the defendant, and the others named, were engaged in a conspiracy to traffic in stolen motor vehicles accomplished by defacing the true serial numbers of a vehicle and substituting other serial numbers obtained from wrecked and salvaged vehicles. As a part of this conspiracy, the persons named used dies to stamp and imprint the false serial numbers upon the stolen vehicles.
Counsel for the defendant contends there is nothing in this affidavit which is incriminatory of the defendant, who operates an automobile repair business and for that reason purchases wrecked vehicles to obtain parts. I disagree. In the first place, the affidavit not only asserts that the defendant purchased wrecks, the serial numbers of which were later found to be on stolen cars, but also that he sold automobiles, on which numbers had been altered, and which subsequently proved to have been stolen. From these allegations the magistrate was justified in concluding that the defendant was probably engaged in criminal activity. Secondly, the affidavit does not relate that the defendant is in the automobile business or set forth any of the matters pertaining to how that business is operated. When a magistrate is called upon to judge probable cause, he is not required to weigh matters of defense which will be introduced at trial to explain incriminatory evidence. The defendant is suggesting that in judging the magistrate's evaluation of this affidavit we should ignore certain parts of it and consider what remains in light of details of the defendant's business activities not of record before the magistrate. This would obviously be wrong.
The fact that the affidavit also contains Detective Hatton's
conclusions as to the defendant's criminal activities does not make it defective. All the law requires is sufficient factual averments from which the magistrate can make an independent evaluation. In essence, Detective Hatton stated that the defendant, and other men, bought wrecked automobiles, sold stolen automobiles, and that scientific tests conducted by the Federal Bureau of Investigation revealed the obliteration of valid serial numbers and the substitution of numbers and number plates obtained from the wrecked automobiles. Tested in light of the principles set forth in Spinelli, the facts contained in this affidavit were sufficient to justify the issuance of the search warrant.
II. Was the defendant denied his constitutional right to be represented by the attorney of his choice?
Taylor's second contention is that he was forced to stand trial at a time when his attorney was physically unable to represent him and thus he was deprived of his constitutional rights.
The defendant was arrested on September 4, 1968, but was not indicted until May 20, 1969. He was arraigned on August 5, 1969, and trial was set for the following month. In September, it was continued until December 9, 1969. On that date, defendant advised the court that he wished to hire a new attorney because his then-counsel had suggested the entry of pleas of guilty. At the defendant's request, the case was continued so that the defendant could be represented by John Patrick Walsh, Esquire, a member of the Philadelphia Bar.
Subsequently, by agreement between the Assistant United States Attorney and Mr. Walsh, trial was set for April 20, 1970. Prior to that time, however, Mr. Walsh suffered a heart attack and was hospitalized from February 24 to March 21, 1970. On April 20, when the case was called for trial, the defense asked that it be continued until September. The trial judge, The Honorable Ralph C. Body, refused and listed the case for June 8, 1970. On that date, the defendant asked for a further continuance until September so that Mr. Walsh could represent him. It was stated to the court that Mr. Walsh, then 65, had been told by his physicians not to try any cases before September but that he fully expected to be able to participate in court work at that time.
The motion for the continuance was refused after the trial judge considered the fact that there was no assurance of Mr. Walsh's availability in September, the large number of government witnesses that had been subpoenaed, the fact that many were from out of state, the prior continuances, and the availability of Mr. Walsh's associate, David N. Savitt, Esquire, to represent defendant. No complaint is made about Mr. Savitt's conduct of the case, his preparations, his counsel, or trial strategy. In fact, the defendant's brief refers to him as "extremely competent trial counsel." The sole basis for defendant's complaint is that he wanted to be represented by Mr. Walsh and the court refused to grant him a continuance for that purpose.
An application for a continuance on account of the absence through sickness of an accused's attorney is addressed to the discretion of the trial court. Denial of such a continuance is not an abuse of discretion where it appears that able counsel is available, where the accused knew of his counsel's illness a reasonable time before trial and that from the nature of the illness he would be absent for a prolonged period, where there was ample opportunity to obtain other counsel and other counsel was in fact obtained, and where there was no showing of any injury to the accused. See Rolon Marxuach v. United States, 398 F.2d 548 (1st Cir. 1968), cert. den. 393 U.S. 982, 89 S. Ct. 454, 21 L. Ed. 2d 443; Franken v. United States, 248 F.2d 789 (4th Cir. 1957), cert. den. 355 U.S. 956, 78 S. Ct. 541, 2 L. Ed. 2d 532; 22A C.J.S. Criminal Law § 484, pp. 98-99.
Desirable as it is that a defendant be afforded counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice, the availability of witnesses