No. 01474 Pittsburgh 1984, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC8404922, OTN B 112064-1.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Vincent A. Tucceri, Pittsburgh, for appellee.
Olszewski, Popovich and Montgomery, JJ. Olszewski, J., files a dissenting opinion.
[ 348 Pa. Super. Page 339]
Appellee was charged with one count of gambling devices*fn1 and proceeded to trial without a jury. At the close of the Commonwealth's case, the trial court sustained appellee's demurrer. The Commonwealth filed a motion for reconsideration which was denied, and this appeal followed. The issue presented for our consideration is whether the trial court erroneously granted appellee's demurrer where the evidence was sufficient to establish that he maintained a device for gambling purposes.*fn2
In ruling on a demurrer, the court must determine whether the evidence, if credited by the factfinder, is legally
[ 348 Pa. Super. Page 340]
sufficient to warrant the conclusion that the accused is guilty beyond a reasonable doubt. Commonwealth v. DePetro, 350 Pa. 567, 39 A.2d 838 (1944). In sustaining the demurrer herein, the trial court found that the evidence failed to establish that appellee's conduct was such as to constitute a violation of the statute under which he was charged. The relevant evidence adduced at trial is as follows:
At 11:45 p.m. on February 10, 1984, two state troopers entered appellee's tavern. One of them played a coin operated video draw poker machine, and accumulated forty credits or free games. At approximately 1:00 a.m., appellee requested that everyone leave as it was almost closing time. Approximately five minutes later the trooper informed appellee that he had accumulated forty credits. Appellee in turn gave him ten dollars and closed the tavern for the night.
18 Pa.C.S. § 5513(a)(1), (2) provides:
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 ...