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COMMONWEALTH PENNSYLVANIA v. PETER SMITH (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
PETER SMITH, APPELLANT



No. 505 October Term 1977, Appeal from the Order of Sentence of the Court of Common Pleas of Cumberland County, Pennsylvania, to No. 229 Criminal Division, 1976.

COUNSEL

Arthur L. Goldberg, Harrisburg, for appellant.

John M. Eakin, Mechanicsburg, with him Kevin A. Hess, Deputy District Attorney, Carlisle, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Van der Voort and Spaeth, JJ. Price, J., did not participate in the consideration or disposition of this case. Watkins, President Judge, and Van der Voort, J., dissent.

Author: Spaeth

[ 250 Pa. Super. Page 437]

On April 21, 1976, an indictment was returned by the Grand Jury of Cumberland County charging appellant, in one count, of engaging in pool selling and bookmaking, and in eight counts, of permitting pool selling and bookmaking upon premises owned or occupied by him. Appellant filed a motion to suppress evidence seized pursuant to a search warrant. The motion was denied, and on May 11, 1976, appellant was found guilty by a jury on all eight counts of permitting pool selling and bookmaking, but was acquitted on the one count of engaging in pool selling and bookmaking. Post-trial motions in arrest of judgment and for a new trial were filed and denied, and on November 29, 1976, appellant was sentenced on each of the eight counts to pay a fine of $2,000 and to serve a term in prison of two and one-half years to five years, the sentences to run concurrently. This appeal followed.

[ 250 Pa. Super. Page 438]

I

Appellant argues that his motion in arrest of judgment should have been granted because the evidence was insufficient to prove beyond a reasonable doubt that he had knowledge that gambling activities were taking place on his premises.

Section 5514 of the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, ยง 1, eff. June 6, 1973, provides in pertinent part that:

A person is guilty of a misdemeanor of the first degree if he:

(5) being the owner, lessee, or occupant of any premises, knowingly permits or suffers the same, to be used or occupied for any [pool selling or bookmaking purposes].

There is no dispute that the evidence established that appellant owned the premises where the gambling paraphernalia was found and the telephone over which bets were being taken was located. Regarding the evidence that appellant had knowingly ...


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