No. 422 Harrisburg 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Adams County at No. CC-323-81.
Joshua D. Lock, Harrisburg, for appellant.
Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
Wickersham, Olszewski and Hoffman, JJ. Olszewski, J., files a dissenting opinion.
[ 331 Pa. Super. Page 32]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Adams County.
In November of 1981, Gettysburg was the site of a coin show. Among those attending the show was a coin dealer from Baltimore named Richard Gross. Also attending the show was appellant, Jeffrey Weisman, who "whether by talent, training, calculation, computation, [or] prestadigitation [sic] . . . had the ability to accurately and invariably predict the outcome of a coin toss." Brief for Appellant at 4.
On November 21, 1981, appellant was demonstrating his unusual talent to a group of coin dealers. Mr. Gross was fascinated and he joined in with some other on-lookers who were wagering that appellant could not maintain his accurate predictions. Despite the odds and the laws of probability, and unfortunately for Mr. Gross, appellant continued to accurately predict the outcome of the coin tosses. Mr. Gross proceeded to lose $6,900.00 in less than three hours, despite the fact that he [Mr. Gross] usually provided the coins tossed and either tossed them himself or had some other disinterested person toss them.
Mr. Gross reported his misfortune to the local police, who responded by sending two state undercover officers to the coin show the following day. One officer occupied appellant,
[ 331 Pa. Super. Page 33]
who was engaged in a repeat performance of his earlier activities, while the other attempted to discern the secret of appellant's success. Again, the coins used and the person tossing it varied. What happened next was accurately described by the lower court: "The police lost six thousand ($6,000.00) dollars in forty-five (45) minutes without ascertaining anything of worth about [appellant's] modus operandi. They did not leave the issue up in the air. They arrested [appellant] and recouped their money even more speedily than they had lost it." Lower ct. op. at 2.
Appellant was charged with two counts of maintaining a gambling place, 18 Pa.C.S. § 5513(a)(1); one count of maintaining or setting up a gambling device, 18 Pa.C.S. § 5513(a)(1); and one count of theft by deception, 18 Pa.C.S. § 3922(a)(1). On May 4, 1982, appellant was tried before a jury, and was found guilty of maintaining or setting up a gambling device.*fn1 Post-verdict motions were filed and denied, and appellant was sentenced to pay a fine of $7,500.00, costs, plus forfeit whatever money remained in custody of the state police, and 23 months probation.
In this timely appeal, appellant raises only one issue: Does a coin constitute a "device" which can be used for gambling purposes under 18 P.S. § 5513(a)() of the Crimes Code?
Brief for Appellant at 3. We find that a coin does not constitute such a device, and ...