submitted: February 9, 1984.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
No. 312 Pittsburgh, 1982, Appeal from the Order of March 3, 1982, Court of Common Pleas, Allegheny County, Criminal Division at No. CC8108860.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
John L. Doherty, Pittsburgh, for appellee.
Brosky, Olszewski and Johnson, JJ.
Author: Per Curiam
[ 326 Pa. Super. Page 462]
The Commonwealth appeals from the order of March 3, 1982 granting appellee's motion to dismiss indictment.
The record, pursuant to a stipulation of facts, indicates that appellee, while employed as a barmaid in an establishment which provided an electronic draw poker machine, "paid off" a liquor control agent and local police officer who had won free games on said machine. Appellee was also
[ 326 Pa. Super. Page 463]
observed "paying off" other players of the machine. The machine was of the same type as discussed in Commonwealth v. One Electro-Sport Draw Poker Machine, 297 Pa. Super. 54, 443 A.2d 295 (1981), rev'd Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983).
Appellee was subsequently charged with violating 18 Pa.C.S. § 5513(a)(1) and (2)*fn1 regarding gambling devices. The trial court granted the motion to dismiss based on the decision in Commonwealth v. One Electro-Sport Draw Poker Machine, supra, which held such a gambling machine not to be a gambling device per se. That appeal was from an order granting a motion for the return of property, pursuant to the confiscation of the machine, as permitted by 18 Pa.C.S. § 5513(b).*fn2
The instant appeal is from criminal charges arising from subsections (a)(1) and (2) of that section, which are not based on whether the machine was a gambling device per se, but on appellee's conduct.
Under these circumstances, it was error to grant the motion to dismiss the charges, as section 5513(a)(1) and (2) contain no requirement that the device to be used for gambling purposes be a gambling device per se. In any event, our Supreme Court has recently held that the machine
[ 326 Pa. Super. Page 464]
in Commonwealth v. One Electro-Sport Draw Poker Machine, supra, was a gambling device per se. See Commonwealth v. Two Electronic Poker Game Machines, supra.