Com. v. One (1) Jersey Hold' Em Machine ( 2014 )

J-A21028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ONE (1) JERSEY HOLD 'EM MACHINE
SERIAL NO. DDGPA0003
ONE (1) RED, WHITE, & BLUE GAMING
MACHINE
SERIAL NO. DDGPA0002
No. 309 EDA 2014
Appeal from the Order December 18, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-MD-0001060-2011
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 23, 2014
The Commonwealth appeals from the order entered on December 18,
2013, declaring two machines, one Jersey Hold’em Machine, Serial No.
DDGPA0003, and one Red, White, & Blue Gaming Machine, Serial No.
DDGPA0002, (collectively, “Two Machines”), to be games of skill rather than
chance, and consequently, not gambling devices as outlined in 18 Pa.C.S. §
5513(a).1 The Commonwealth contends the trial court erred as a matter of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
A person violates Section 5513 based on the following:
(Footnote Continued Next Page)
J-A21028-14
law and/or fact in finding that the Two Machines were predominately games
of skill, and therefore, could not be confiscated pursuant to the gaming
statute. Based on the following, we affirm.
We summarize the facts and procedural history as follows. On October
15, 2010, state troopers seized the Two Machines at an American Legion
establishment, Knowles-Doyle Post 317 (“ALP”), in Yardley, Pennsylvania. It
was the Commonwealth’s position that the Two Machines were being
commercially offered, used, and operated by the general public at the ALP in
violation of Section 5513(a). Following the seizure, the Commonwealth filed
a motion for condemnation and forfeiture on April 18, 2011, and a petition
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(Footnote Continued)
(a) Offense defined. --A person is guilty of a misdemeanor of
the first degree if he:
(1) intentionally or knowingly makes, assembles, sets up,
maintains, sells, lends, leases, gives away, or offers for
sale, loan, lease or gift, any punch board, drawing card,
slot machine or any device to be used for gambling
purposes, except playing cards;
(2) allows persons to collect and assemble for the purpose
of unlawful gambling at any place under his control;
3) solicits or invites any person to visit any unlawful
gambling place for the purpose of gambling; or
4) being the owner, tenant, lessee or occupant of any
premises, knowingly permits or suffers the same, or any
part thereof, to be used for the purpose of unlawful
gambling.
18 Pa.C.S. § 5513(a).
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for forfeiture hearing on May 27, 2011. Martin Caplan, owner of the Two
Machines, filed an answer to petition for forfeiture on August 25, 2011. A
hearing was held on October 18, 2013, and the matter was continued until
December 18, 2013 for the admission of additional evidence.2 On that same
day, the court entered an order declaring the Two Machines to be games of
skill and not games of chance. It concluded that the Two Machines were not
gambling devices under Section 5513(a) and therefore, they were wrongfully
confiscated. The Commonwealth filed this timely appeal.3, 4
____________________________________________
2
The trial court explained that the two-year period between the petitions
and the hearings was “due to the necessary and timely procurement of
expert reports and the Commonwealth’s lack of response to numerous
defense requests to schedule a hearing.” Trial Court Opinion, 4/2/2014, at
2.
3
On January 8, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth complied with the trial court’s directive and
filed a concise statement on January 28, 2014. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on April 2, 2014.
4
Initially, we note the Commonwealth admits that it mistakenly filed this
appeal with our Court and not with our sister court, the Commonwealth
Court, because appeals from decisions in forfeiture actions fall under the
jurisdiction of the Commonwealth Court. See 42 Pa.C.S. § 762(a)(1)(ii); 47
P.S. § 6-602(a) (“The proceedings for the forfeiture or condemnation of all
property shall be in rem, in which the Commonwealth shall be the plaintiff
and the property the defendant.”); see also Commonwealth v.
McDermond, 560 A.2d 901 (Pa. Commw. 1989). Nevertheless, the
Commonwealth noted Caplan did not file an objection to this Court’s
jurisdiction. The Commonwealth asserts that the challenge is now waived,
and we may retain jurisdiction in the interest of judicial economy.
Commonwealth v. Smith, 722 A.2d 167 (Pa. Super. 1998). We agree,
and will address the merits of this appeal.
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On appeal, the Commonwealth contends the trial court erred in finding
the two gaming machines were predominately games of skill because it
claims the court “relied upon mere assumptions and conclusions
unsupported by adequate facts or competent evidence.” Commonwealth’s
Brief at 26. Furthermore, the Commonwealth asserts the competent
evidence established that for each of the machines, the outcome of the
game was predominately based on chance or luck, rather than any
purported skill of the player. Id. The Commonwealth states that based on
testimony of its expert witness, Daryl Robert Sertell, while “it may be
possible for a player to attempt to use visual cues during play … any such
outcomes, as demonstrated, are overwhelming[ly] based on ‘luck,’ chance or
random outcome and not selection by the player.” Id. at 36. Moreover, the
Commonwealth argues the court’s reliance on the defense witnesses,
Caplan, and expert, Nick Farley, is misplaced because they based their
opinions on “the physical action of a player in pushing a button to stop a
reel,” whereas, Sertell stated that “the physical actions of putting money in a
machine and pushing buttons, even within a certain amount of time allotted,
is not the same as getting a particular intended result or desired by the
intentional manipulation of the controls of the machines.” Id. at 37. The
Commonwealth states, “Common sense dictates the same as merely
pressing a button requires no special intelligence, knowledge, memory, or
dexterity.” Id.
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The “standard of review applied in cases involving petitions for
forfeiture and motions for the return of property is for an abuse of
discretion.” Beaston v. Ebersole, 986 A.2d 876 (Pa. Super. 2009). “The
three elements of gambling under Pennsylvania law are consideration,
chance, and reward.” Commonwealth v. Dent, 992 A.2d 190, 191 (Pa.
Super. 2010). Moreover, in determining whether a gaming machine is a
game of chance or skill, Pennsylvania courts have employed the
“predominate-factor test” as set forth in Commonwealth v. Two
Electronic Poker Game Machines, 465 A.2d 973 (Pa. 1983), and applied
in Dent, supra. The “predominate-factor test” “holds that for a game to
constitute gambling, it must be a game where chance predominates rather
than skill.” Dent, 992 A.2d at 193 (citation omitted).5
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5
In Two Electronic Poker Game Machines, the Supreme Court stated:
[T]he mere fact that a machine involves a substantial element of
chance is insufficient to find the machine a gambling device per
se. Thus a showing of a large element of chance, without more,
is not sufficient. Nor must the outcome of a game be wholly
determined by skill in order for the machine to fall outside the
per se category. As Superior Court pointed out:
A peculiar combination of luck and skill is the sine qua non
of almost all games common to modern life. It is hard to
imagine a competition or a contest which does not depend
in part on serendipity. It cannot be disputed that football,
baseball and golf require substantial skill, training and
finesse, yet the result of each game turns in part upon luck
or chance.
(Footnote Continued Next Page)
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After a thorough review of the transcripts from the two-day forfeiture
hearing, we find the trial court, in its Rule 1925(a) opinion, thoroughly and
accurately summarized the testimony presented by the witnesses for the
Commonwealth and the defense. See Trial Court Opinion, 4/2/2014, at 2-
12. We also conclude the court provided a well-reasoned basis for its
determination that the Two Machines were games of skill. Id. at 12-17
(finding the Two Machines were predominately games of skill based on the
following: (1) the results as to the high win percentage and payout
percentage following the testing of the machines for a period of six (6)
weeks; (2) unlike traditional casino slot machines, these machines only
operate if the customer manually initiates the stop buttons; (3) neither
machine is equipped with a “random number generator” in the source codes;
(4) the order of the symbols/cards on the respective reels, although not
sequential, is fixed; (5) there existed a consistency in how far the reel would
continue to travel before it came to a complete stop after the button was
initiated; and (6) there was no dispute that both machines were significantly
modified). We conclude that the trial court’s opinion properly disposes of
_______________________
(Footnote Continued)
We are thus left with the task of determining in each case the
relative amounts of skill and chance present in the play of each
machine and the extent to which skill or chance determines the
outcome.
Two Electronic Poker Game Machines, 465 A.2d at 977 (citations and
quotations marks omitted).
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the issue in this case. Accordingly, we affirm on the basis of that opinion,
while adding the following comment.
The forfeiture hearing was essentially a battle of the expert witnesses,
with each party’s expert arguing why certain factors pointed either to skill or
chance. The Honorable Albert J. Cepparulo gave greater weight to the
defense expert testimony of Farley, particularly to the fact that Farley’s
“employees, following familiarization with the machines, were able to locate
visual cues on the reels that would give them the ability to stop the
machines in consistent locations.” Trial Court Opinion, 4/2/2014, at 16.6
Judge Cepparulo, sitting as fact-finder, was free to do so. See
Commonwealth v. Puksar, 951 A.2d 267, 276 (Pa. 2008) (“The expert
testimony offered at trial by both sides amounted to a battle of the experts,
with the [fact-finder] as the ultimate referee based upon its assessment of
the credibility of the experts.”). We are bound by this determination.
Accordingly, the Commonwealth’s sole argument fails.
Order affirmed.
Judge Bowes joins the memorandum.
Judge Strassburger files a dissenting memorandum.
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6
Likewise at the proceeding, Judge Cepparulo stated, “Mr. Farley was able
to get into the heart and soul of these machines by going into their
computer programming, and that’s perhaps the most important part of the
machines to determine how they’re going to act depending on what the
player does.” N.T., 12/18/2013, at 91.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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