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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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:
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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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(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 ____________________________________________
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.
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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
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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. ____________________________________________
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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