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COMMONWEALTH v. PARENTE (06/11/57)

June 11, 1957

COMMONWEALTH
v.
PARENTE, APPELLANT.



Appeal, No. 180, Oct. T., 1957, from judgment of Court of Quarter Sessions of Northamption County, April T., 1956, No. 101, in case of Commonwealth v. Richard Parente. Judgment affirmed.

COUNSEL

Everett Kent, for appellant.

Robert Ungerleider, First Assistant District Attorney, with him Edward G. Ruyak, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 184 Pa. Super. Page 128]

OPINION BY WOODSIDE, J.

The defendant was convicted and sentenced on a charge of occupying a certain place in the City of Bethlehem with books, apparatus and paraphernalia for the purpose of recording and registering bets and wagers. He contends that the court below erroneously refused to grant his motions in arrest of judgment and for a new trial.

The defendant was charged with the violation of section 607 of the Act of June 24, 1939, P.L. 872, 18 PS ยง 4607, which provides, inter alia, that "Whoever ... occupies any place with books, apparatus or paraphernalia for the purpose of recording or registering bets or wagers, ... is guilty of a misdemeanor ..."

Appellant contends that "the Legislature intended that an occupier was one who brought to a place certain apparatus and articles, and if it could be shown that he occupied the place for gambling purposes, he was guilty of having assumed that status." We cannot accept this definition of "occupies". One can "occupy" a place, as the term is used in the statute, without having "brought" the apparatus and articles to the place. One "occupies" when he "does business in" or "holds possession of." See Webster's New International Dictionary, Unabridged, 2nd Edition.

In State v. Deppe, 286 S.W.2d (Mo.) 776, 779 (1956), it was held that evidence indicating that the

[ 184 Pa. Super. Page 129]

    defendant was physically present in a room and that his physical presence was in connection with scratch sheets, was sufficient to sustain a conviction of occupying a room with any books, sheet, blackboard, instrument or device or substance for the purpose of recording or registering bets or wagers.

The appellant contends there was not sufficient evidence to sustain the conviction.

The jury could have found the following facts from the evidence: At the time of the raid the defendant was in the room standing behind a desk on which was an electric adding machine, a telephone, and slips with number bets, and, in front of which, on the floor was a roll of papers with number bets; he was in his shirt sleeves, and his jacket was hanging on the wall; slips with numbers, identified as gambling paraphernalia, were on the desk; during the raid there was a telephone call to "Dick" taken by one of the officers wherein about 100 bets were placed on different numbers; there were twenty-three additional telephone calls, in which the callers asked either for "Dick" or "Tony" and were told by the officers that the party requested was not there, but that the speaker was the other one, and in a number of these calls bets were given; in the office there was a desk, desk chair, telephone, adding machine, adding machine tape, numbers slips, two bundles or packets of numbers and "hits" for April 24th and 25th, 1956 (the two days immediately preceding the raid) coin wrappers, paper pads, and "control sheets"; to the question "Do you make a lot of money in this business?" defendant replied, "It's not as easy as you think it is. Some people call in and make bets and then when they lose, they don't pay ..." Trooper Ritsick testified that defendant said, "Well, I come in here to answer the phone for Tony", and when the officer asked "And take numbers?" defendant replied "Yes". When

[ 184 Pa. Super. Page 130]

    asked "How about horses?" defendant again said "Yes".

There was sufficient evidence to sustain the conviction. See Commonwealth v. Cerzullo, 175 Pa. Superior Ct. 330, 104 A.2d 179 (1954).

Counsel for appellant suggests that "The courts of Pennsylvania have gone far astray on the subject of admitting the substance of telephone calls in cases like this." Counsel seems to acknowledge that the evidence concerning telephone calls was admissible under the decisions of this Commonwealth, but suggests that the cases were wrongly decided. We have not been convinced that this Court should attempt to change the well established law on this point. Commonwealth v. Prezioso, 157 Pa. Superior Ct. 80, 41 A.2d 350 (1945); ...


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