No. 81 E.D. Appeal Dkt. 1982, Appeal From an Order Entered July 9, 1982 in the Superior Court of Pennsylvania, No. 2134 Philadelphia 1980, Affirming the Orders Entered May 8, 1980 and August 27, 1980 in the Court of Common Pleas of Lehigh County, Criminal Division, at Case No. 9-M of 1980, 302 Pa. Superior Ct. 350,
Roberts, C.j., and Nix, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., did not participate in the consideration or decision of this case.
These cases require us to consider the issue of what constitutes a gambling device per se, as well as the distinct but related issue of the power of a court to order the seizure and forfeiture of a machine which while not a gambling device per se is shown to have been used for gambling purposes. Specifically, we must determine whether electronic devices which simulate some of the elements of the games of draw poker and blackjack and which give only free games as a reward for successful play are nevertheless gambling devices per se when they also possess a "knock-down" button and a meter to record the number of free games knocked down.
In both Commonwealth v. One Electronic Poker Game Machine and One Electronic Blackjack Game Machine (One Poker Game) (No. 88 E.D. Appeal Dkt.1982) and Commonwealth v. One Electro-Sport Draw Poker Machine (Electro-Sport) (No. 68 W.D. Appeal Dkt.1982), the lower courts held the machines were not gambling devices per se because they could be used for purposes other than gambling and the elements of pure chance and a reward, necessary to the finding of a gambling device per se, were not present. Bearing in mind that the Commonwealth has the burden of proving the per se nature of the machines, but also that the proceedings are in rem in nature, requiring the Commonwealth to prove its case only by a preponderance of the evidence, we hold that on the facts of Electro-Sport, the evidence was sufficient to show that the machine in question was a gambling device per se. We thus reverse the Superior Court's ruling in Electro-Sport. Based on our disposition of Electro-Sport, we find that the evidence which points to the per se nature of the machine in that case is lacking in One Poker Game. We therefore affirm Superior Court's ruling in that case.
In Commonwealth v. Two Electronic Poker Game Machines and One Electronic Blackjack Game Machine (Two Poker Games) (No. 81 E.D. Appeal Dkt.1982) we must
determine the authority of a court to order the seizure and forfeiture, under 18 Pa.C.S. § 5513(b) and 47 P.S. § 6-602, of devices found to have been used for gambling purposes but not found to be gambling devices per se. Common Pleas ordered the forfeiture after appellant King Amusement Company failed to produce any evidence that the machines were being lawfully used or that it had no knowledge of the unlawful use. Appellant claims that it is clothed with a "presumption of innocence" and therefore need not introduce evidence as to the machine's lawful use or its lack of knowledge of unlawful use. Common Pleas rejected this argument, as did Superior Court in affirming the Common Pleas' order of forfeiture. We believe Common Pleas properly exercised its discretion under the statute, and that the Commonwealth's evidence was sufficient to support the forfeiture order, and thus we affirm.
While these cases have been consolidated for appeal, each arises from a distinct set of facts and will be separately considered. Because our determination in Electro-Sport is controlling in One Poker Game, we consider the former case first.
No. 68 W.D. Appeal Docket 1982
On March 11, 1980, a criminal complaint was filed against a tavern owner in Neville Township, Allegheny County, charging him with maintaining a device used for gambling purposes in violation of 18 Pa.C.S. § 5513(a)(1)*fn1 and seeking the seizure and forfeiture of the machine pursuant to 18 Pa.C.S. § 5513(b).*fn2 The complaint alleged that the machine, an Electro-Sport Draw Poker Machine, was a gambling
device per se. RR-5a. No allegation was made that the machine had been used for gambling purposes. The tavern owner filed a Motion for Return of Property under Pa.R.Crim.P. 324 to determine whether the seizure of the machine was lawful.
Following a hearing before Allegheny County Common Pleas, that court ruled that the Electro-Sport Draw Poker Machine was not a gambling device per se, finding that the machine was essentially an electronic deck of cards and that the elements of a result determined by chance and a reward, necessary for the finding of a gambling device per se, were not present. Common Pleas therefore granted the Motion for Return of Property. Superior Court affirmed, agreeing with Common Pleas' findings and going on to hold that the Electro-Sport machine required substantial skill for successful play, that free games did not constitute a sufficient reward, and that the presence of a multiple-coin feature, a "knockdown" button, and a meter to record the number of games knocked down did not render the machine a gambling device per se. Electro-Sport, 297 Pa. Superior Ct. 54, 443 A.2d 295 (1981).
The physical characteristics of the Electro-Sport machine and its method of play are not in dispute. It is a coin operated video game which simulates some elements of five card draw poker. A microprocessor, through the operation of a random number generation program, simulates the shuffling of a deck of cards and the dealing of one hand of five card draw poker. The player can insert from one to eight coins to begin play. Although only one coin is necessary to play a game, the insertion of multiple ...