April 12, 1962
Appeals, Nos. 425 to 430, inclusive, Oct. T., 1961, from order of Court of Quarter Sessions of Delaware County, Sept. T., 1961, Nos. 201, 202, and 203, in case of Commonwealth of Pennsylvania v. Robert George McDade et al. Order reversed.
Paul R. Sand, Assistant District Attorney, with him Ernest L. Green, Assistant District Attorney, Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for Commonwealth Appellant.
Melvin G. Levy, with him McClenachman, Blumberg & Levy, for appellees.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 197 Pa. Super. Page 523]
OPINION BY RHODES, P.J.
Robert George McDade, Edith McDade, and James E. Spring were each indicted by the grand jury of Delaware County and charged with offenses of bookmaking and conspiracy. Section 607, Act of June 24, 1939, P.L. 872, 18 PS § 4607; section 302, Act of June 24, 1939, P.L. 872, 18 PS § 4302. Their cases were called for trial before a judge and a jury. At the conclusion of the Commonwealth's testimony each defendant demurred to the Commonwealth's evidence, and the demurrer was sustained by the trial judge as to each.*fn1
[ 197 Pa. Super. Page 524]
Thereafter the Commonwealth took these appeals which are now before us for determination. The question presented is whether the evidence submitted by the Commonwealth was sufficient to have the matter submitted to a jury under the counts in the indictments. It was established by the Commonwealth that investigators from the district attorney's office had the McDade home under surveillance for a period of two or three weeks. Having a search warrant, they were admitted to the premises by Edith McDade. The McDade home was a single split-level house. As they entered, Edith McDade ran to the basement and "hollered" to someone as the detectives followed her downstairs. They there found James E. Spring sitting at a desk upon which were three telephones, some sheets of paper, a radio, and an adding machine. Of the three telephones, two of them carried telephone numbers of the State of Delaware; the third was a local exchange. In addition, there was another telephone on the first floor, with an extension on the wall as you came down the stairs. The telephones on the desk in the basement were connected with each other by push buttons. The radio was tuned in to the results of the races. A telephone kept ringing off and on giving the results at the different tracks. There were approximately 28 telephone calls which were answered by the detectives. Inquiries were made relative to the races. Some of the calls asked that bets be placed on horses which were running that day at Delaware Park. During the period that the detectives were questioning Spring and Edith McDade, Robert George McDade entered. Edith McDade said that she knew Spring, and that maybe he was taking bets but she was not sure. She admitted that Spring had been coming to the McDade home for the past few weeks and used the telephones which she had installed. Spring asserted that he was in the toy business. There was nothing to indicate his connection with any such
[ 197 Pa. Super. Page 525]
business. The detectives recovered a sheet, which was described as a settlement sheet typical of bookmakers, showing the amount of money the bookmaker owed the different betters.
"The proper test to apply to the validity of a demurrer is whether the 'evidence of record' (Commonwealth v. Ernesto, 93 Pa. Superior Ct. 339, 341, 342), the 'admitted state of facts' (Commonwealth v. Kerr, supra [150 Pa. Superior Ct. at page 601, 29 A.2d at page 342]), the 'evidence produced' (Commonwealth v. Williams, 71 Pa. Superior Ct. 311; Commonwealth v. Kolsky, supra [100 Pa. Superior Ct. at page 599]), and 'all the facts testified to and the inferences reasonably drawn therefrom' (Sadler, Criminal Procedure in Pennsylvania, Vol. II, § 541, pp. 611, 612), would support a verdict of guilty." Com. v. Frank, 159 Pa. Superior Ct. 271, 278, 48 A.2d 10, 14.
We are of the opinion that the court below erred in sustaining the demurrers. As we said in Com. v. Mattero, 183 Pa. Superior Ct. 548, 553, 132 A.2d 905, evidence concerning telephone calls placing bets, which were answered by the police during the raid, was admissible to establish the corpus delicti.
The evidence discloses sufficient gambling paraphernalia found on the premises occupied and owned by the McDades and under the control and supervision of the defendants to establish a prima facie case. See Com. v. Gregory, 183 Pa. Superior Ct. 53, 57, 127 A.2d 788. There was a definite connection of defendants with the establishment which was used for bookmaking purposes. see Com. v. Fisher, 166 Pa. Superior Ct. 245, 70 A.2d 372; Com. v. Stoe, 167 Pa. Superior Ct. 300, 74 A.2d 526; Com. v. Smith, 186 Pa. Superior Ct. 89, 140 A.2d 347. An unlawful agreement may be inferred from the circumstances.
The order sustaining the demurrers to the evidence is reversed in each appeal with a procedendo.