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COMMONWEALTH PENNSYLVANIA v. KARL E. BRETZ (07/24/81)

filed: July 24, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KARL E. BRETZ



NO. 41 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Potter County, at No. 28 of 1978.

COUNSEL

Thur W. Young, District Attorney, Coudersport, for Commonwealth, appellant.

John A. Duvall, Coudersport, for appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 289 Pa. Super. Page 261]

This is an appeal by the Commonwealth from an Order denying its Petition for Destruction. At issue are two slot machines confiscated from the appellee's premises.

Appellee was arrested and charged with Corruption of Minors,*fn1 Involuntary Deviate Sexual Intercourse,*fn2 Delivery of a Controlled Substance,*fn3 and Furnishing Liquor to a Minor.*fn4 On the day of the arrest, the State Police (pursuant to a search warrant) seized the two slot machines here at issue. Appellee entered a guilty plea to Involuntary Deviate Sexual Intercourse and to Furnishing Liquor to a Minor and he was duly sentenced for a period of one (1) to five (5) years in prison.

[ 289 Pa. Super. Page 262]

Subsequently the Office of the District Attorney of Potter County, petitioned the court below, to have the slot machines destroyed. Appellee filed an answer denying that the machines were or ever had been evidence; he claimed the machines were antiques under the provisions of 18 Pa.C.S. § 5513; and that they had never been used for any unlawful purpose. After a hearing on the petition, the lower court denied the Commonwealth's request and directed the machines be returned to appellee. The Commonwealth here appeals the disposition of the lower court.

The Commonwealth's basic contention on this appeal is that the Court of Common Pleas erred as a matter of law in failing to find the slot machines were gambling devices per se. We agree.

The provisions of the Crimes Code here involved is 18 Pa.C.S. § 5513, which reads:

§ 5513. Gambling devices, gambling, etc.

(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 ...


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