Appeal from judgment of sentence of Court of Common Pleas of Butler County, June T., 1974, No. 134, in case of Commonwealth of Pennsylvania v. Peter Betres.
A. R. Cingolani, Jr., with him August T. Costanzo, and Cingolani & Cingolani, for appellant.
Robert F. Hawk, First Assistant District Attorney, with him John H. Brydon, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 237 Pa. Super. Page 363]
This appeal arises from the conviction of Peter Betres on various gambling charges. The relevant facts are as follows. On February 10, 1972, Betres and another individual purchased the land and building owned and occupied by the German Beneficial Society of Lyndora, Pennsylvania. The German Club had been in existence since 1910 and was governed by its own officers. It owned a liquor license and was primarily an "after-hours" social club and drinking establishment. After the purchase Betres and his partner leased back the property to the German Club. Betres often visited the club, became a member and lent his assistance to the club; exactly how much control Betres exerted over the club will be discussed more specifically at a later point.
In early December, 1973, Larry Riley, a Pennsylvania State Police Officer, visited the club for the express purpose of determining if any illegal gambling was taking place. On December 21, 1973, he returned and purchased a membership. He visited the club eight times between December, 1973, and March 10, 1974, often taking a fellow officer with him as a guest. During these visits he saw no hint of gambling.
On March 10, 1974, Officer Riley again visited the club; he was accompanied this time by Officer Shaffer. During this visit Officer Riley engaged in several pool games with Betres upon the outcome of which wagers were made. On the morning of March 17, 1974 at approximately 3:45 A.M. Officers Riley and Shaffer were again at the club standing next to the pool table when Betres stated "Stick around. We're going to shoot dice." Betres then took towels and placed them in the pockets of the pool table and began a game called "over and under." Betres placed two cards on the table; an eight of diamonds on one side and a six of clubs on the other. The idea of the game was to bet that the rolled dice would be either eight or above or six or below. If, for example, one
[ 237 Pa. Super. Page 364]
wished to bet that the rolled dice would be eight or above, the bettor would place a wager on the side of the pool table closest to the eight of diamonds and if, in fact, the dice roll was eight or above, Betres would pay all the persons on the high side the amount of their wagers and take the money from bettors on the low side of the table. If the dice roll resulted in seven, Betres would take all the money on the table. Without the aid of complex mathematical reasoning it can be seen that one person was more likely to win than the others, i.e., the person conducting the game, which in this case was Betres. Officers Riley and Shaffer participated in the over and under game for about an hour and then left.
A week later on March 30, 1974, the German Club was raided by the police, who found no evidence of gambling or gambling paraphernalia at that time. Betres was arrested, tried by a jury, and convicted of violating subsections (a)(2), (a)(3) and (a)(4) of Section 5513 of the Crimes Code.*fn1 Motions for a new trial and arrest of judgment were argued and denied, and Betres was sentenced to 6 to 12 months imprisonment and fined $1,500.00. Betres now appeals to this court raising several issues.
The first issue which we will consider is whether the lower court should have sustained all or any part of appellant's demurrer to the evidence. Because appellant was ...