No. 592 Pittsburgh, 1980, Appeal from Order entered May 21, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania Criminal Division at Misc. No. 444 April, 1980.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Wayne V. DeLuca, Pittsburgh, for appellee.
Spaeth, Shertz and Montgomery, JJ.
[ 297 Pa. Super. Page 56]
This is an appeal by the Commonwealth from the order of the Trial Court, entered on May 21, 1980, granting a Motion for Return of Property and to Prohibit Seizure. We affirm the order of the court below.
Harold O. Allen is the owner and operator of an establishment known as "Allen's Grill." For the entertainment of his customers, Mr. Allen maintained on his premises an electronic coin operated device known as an Electro-Sport Draw Poker Machine. On March 11, 1980, a Pennsylvania State Trooper obtained a warrant for Mr. Allen's arrest, charging him with a violation of 18 Pa.Con.Stat.Ann. § 5513 (Purdon 1973),*fn1 which prohibits the maintaining, etc. of a device used for gambling purposes. Upon learning of the issuance of the warrant, Mr. Allen voluntarily appeared before the issuing authority. The machine was then seized by the State Police. On May 14, 1980, by order of court, the caption was amended from Commonwealth v. Harold O. Allen, to its present form, reflecting the fact that the sole purpose of the proceeding was to determine whether seizure of the machine was lawful.*fn2 On Mr. Allen's filing of a Motion for Return of Property and to Prohibit Seizure, an evidentiary hearing was held. Following the hearing, the court held that the machine was not a gambling device per se and granted Mr. Allen's motion for return of the property. The Commonwealth appealed.
The Electro-Sport Draw Poker Machine is an electronic game which simulates five-card draw poker. The machine is operated by the insertion of one or more quarters. One quarter entitles the player to play one hand of poker. The deposit of more than one quarter does not affect the odds or
[ 297 Pa. Super. Page 57]
chance of winning, but merely increases the number of free games, the sole "reward" provided by the machine, if the player has a winning hand. Fifty-two (52) "cards" in the computer program are electronically shuffled by the machine and then dealt. The cards received by a player appear on a viewing screen. As in poker, the player may "stand pat", i.e. play the hand dealt, or draw cards by pushing a draw button and indicating which cards he wishes to discard.*fn3 The cards are not reshuffled prior to the draw. The odds are precisely the same as those in an ordinary game of poker. Since the machine is "solid state," the odds cannot be altered without replacing the integrated circuits that store the contents of the computer program for the Draw Poker Machine.
[ 297 Pa. Super. Page 58]
The sole issue raised on appeal is whether the court below erred in concluding that the Electro-Sport Draw Poker Machine is not a gambling device per se.*fn4 A machine is a gambling device per se only if it can be used for no purpose other than gambling. Nu-Ken Novelty, Inc. v. Heller, 220 Pa. Super.Ct. 431, 288 A.2d 919 (1972). In order to apply this test, an analysis of the term "gambling" is necessary. "Gambling" is not defined in the Pennsylvania Crimes Code, but historically and traditionally, gambling has been held to include three elements -- consideration, reward and a result determined by chance as opposed to, and exclusive of, skill. A device or machine, to be a gambling device "per se", must meet all three criteria. See In re Gaming Devices Seized at Page 58} American Legion Post No. 109, 197 Pa. Super.Ct. 10, 176 A.2d 115 (1961); In Re: Treasure Chest Amusement Device, 9 D&C 3d 295 (1978).
The Commonwealth, contending as it does that the Electro-Sport Draw Poker Machine satisfies the definition of gambling as stated above and is therefore, ipso facto, a gambling device per se, bears the burden of establishing the existence of each of these elements. However, because the proceeding is in rem, the Commonwealth need not prove each element beyond a reasonable doubt, but rather by a preponderance of the evidence. See Nu-Ken Novelty, Inc. v. ...