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COMMONWEALTH PENNSYLVANIA v. KEVIN G. DUMONT (11/23/87)

filed: November 23, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN G. DUMONT, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. EDWARD D. DOTT, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ALLAN J. KANAREK, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division Nos. CC8412553, 8502299, CC 8502297, 8601593.

COUNSEL

Edward A. McQuoid, Jr., Pittsburgh, for appellants.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.

Brosky, Tamilia and Hester, JJ.

Author: Tamilia

[ 370 Pa. Super. Page 158]

These cases require us to consider various issues pertaining to convictions for gambling devices and criminal conspiracy regarding video poker machines located at different establishments in the city of Pittsburgh.

Initially, and of primary importance, we must determine whether discovery of the fact that a video poker machine is equipped with a "knock-off" switch provided probable cause to warrant its seizure as a gambling device per se, and if answered in the affirmative, whether a judge of the Pittsburgh magistrates court is authorized to issue a search warrant as process ancillary to the exercise of that court's criminal jurisdiction by the express terms of the several pertinent provisions of the judicial code.

[ 370 Pa. Super. Page 159]

We believe that a determination of the above issues is mandated prior to our addressing the other issues presented, due to the fact that while some cases have been consolidated and one has not, all are companion cases that share in common the need to resolve these questions. Subsequent to our analysis of these matters, we will address those issues which arise from the distinct set of facts peculiar to each appellant's case.

The facts underlying the convictions of Edward G. Dott and Kevin G. Dumont are as follows. During the years of 1984 and 1985, the Pittsburgh Police conducted a broad investigation of the video poker machines in the city of Pittsburgh. Among those establishments investigated were the the Arsenal Bar and Dott's Bar, both within which were located video poker machines. Typically the investigators would enter the establishment in question, obtain quarters from an employee, put four or more quarters in the machine, play one credit (one quarter's worth) on the machine, and then attempt to locate a "knock-off" or "knock-down" device. The presence of this knock-down switch or device in a machine enables excess or free games to be removed and is a standard feature on all machines that are used for gambling purposes. When the investigators detected the presence of a knock-down switch, they would proceed to prepare an affidavit of probable cause in support of an application for a search warrant. In all cases, the presence of a knock-down switch supplied the probable cause requirement in the affidavit.

Thereafter, the applications for search warrants were presented to the police magistrates of the city of Pittsburgh who then issued the search warrants authorizing the police to seize the machines. After seizure, the machines were dismantled and, on all but one of the machines, the police were able to disclose and activate computerized bookkeeping functions on the machine, the presence of which made the machine a gambling device per se as established in Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983).

[ 370 Pa. Super. Page 160]

Having ascertained ownership of the poker machines found in both the Arsenal Bar and Dott's Bar by observing the tax stamp number displayed on each machine as required by the Pittsburgh Business Licensing Code, and then inspecting the business license applications filed under each number, the Commonwealth then charged appellant Dumont (as owner) with violations of 18 Pa.C.S. § 5513. With respect to appellant Dott, he was charged with similar violations of § 5513 due to the fact his name was on the liquor license of Dott's Bar.*fn1

Appellants were tried in non-jury trials before the Honorable John J. Feeney and found guilty of violations of 18 Pa.C.S.A. § 5513 (gambling devices, gambling, etc.) and § 903 (criminal conspiracy). Prior to their trials, the Honorable Robert C. Dauer presided over a consolidated suppression hearing where he denied both written and oral pre-trial motions*fn2 and determined that city of Pittsburgh police magistrates have the power to issue valid search warrants. After post-trial motions were filed and argued, Judge Feeney issued an Order granting appellants new trials. Arrests of judgment were denied. In his Opinion, Judge Feeney concluded that Judge Dauer erred in determining that city of Pittsburgh Police magistrates have the power to issue valid search warrants. The Order was vacated and reconsideration was granted by a tribunal comprised of three judges who reversed the Order granting appellants new trials. Following reversal, appellants were given fines between $500 and $1000; further sentences were not imposed. These appeals followed.

Appellant Kanarek's conviction arose out of the Pittsburgh police's investigation of the Delux Arcade in the city

[ 370 Pa. Super. Page 161]

    of Pittsburgh, where the investigating officer was paid for accumulated credit points on two occasions by the clerk on duty at the time. The presence of a knockdown switch was disclosed in this case by the officer's observation of the clerk pushing a combination of buttons on the video poker machines which resulted in the removal of accumulated game credits. Subsequent inspection of the business license applications filed revealed the machines were owned by United Vending, Inc., of which appellant was president and majority stockholder. Appellant was found to have negotiated the percentage lease with Delux Arcade through an agent of United Vending, Inc., to have executed said lease on behalf of the corporation over the designation "owner, partner, officer", and to have personally applied for the relevant city licenses for the year 1985, the only ones affixed to the machines in early 1986 when the detective received his payoffs. The court below specifically found that under the circumstances, appellant could not hide behind the corporate shield to escape criminal liability.

All appellants maintain the Pittsburgh police lacked probable cause to obtain search warrants with respect to the video poker machines found within the establishments. Appellants assert the allegation set forth in the affidavits (that the poker machines were equipped with knockoff devices for erasing accumulated game were per se gambling devices in terms of the holding of our Supreme Court in Commonwealth v. Two Electronic Poker Game Machines ("Electrosport"), supra.

Under Electrosport, supra, the determination of whether a machine is a gambling device per se will turn on the characteristics of the machine when read against the three elements necessary to gambling; consideration, a result determined by chance rather than skill, and a reward. If the machine displays all three qualities, it will then be "so intrinsically connected with gambling" as to be a gambling device per se. Id., 502 Pa. at 194, 465 A.2d at 977. The Electrosport Court noted that the video poker machine in question there was equipped with a "knock-down" button, a

[ 370 Pa. Super. Page 162]

    meter to record the game credits that had been "knocked-off", the ability to hold-over previous play to the next game to increase the chance of a higher pay-off, a short playing time and a "dipswitch", which allows the owner to vary the number of game credits per coin. The Court noted that none of these features was necessary to the functioning of the device as a legitimate profit-making amusement game, and held the Commonwealth had sustained its burden of proof by showing by a preponderance of the evidence that the Electrosport machine manifested all three features necessary for it to be classified as a gambling device per se.

Appellants contend that since the presence of a meter device to record the erased credits on the machines is required for a dispositive finding that the video poker machines are gambling devices per se and the presence of meters was not determined herein until after the machines were seized, the "reward" element under Electrosport had not been established and probable cause was, therefore, lacking to consider the machines gambling devices "per se". This argument is misdirected. Appellants confuse the standards used in determining sufficient probable cause with the standards used in determining whether a device may be classified as a gambling device per se. A finding of the latter is not a prerequisite to the former.

Probable cause is to be determined using a flexible, common sense standard. As the Supreme Court stated in their plurality Opinion of Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief' that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A 'practical, non-technical' probability that incriminating evidence is involved is all that is required.

Id. 103 S.Ct. at 1543; Commonwealth v. Kendrick, 340 Pa. Super. 563, 490 A.2d 923 (1985).

[ 370 Pa. Super. Page 163]

This Commonwealth has held a magistrates determination of probable cause should be given deference, Commonwealth v. Ryan, 300 Pa. Super. 156, 446 A.2d 277 (1982), and in reviewing such determination it should be remembered that while mere suspicion is inadequate, the affidavit need only set forth the probability, and inadequate, the affidavit need only set forth the probability, and not a prima facie case, of criminal activity. Commonwealth v. Mazzochitti, 299 Pa. Super. 477, 445 A.2d 1214 (1982).

Appellants in the alternative argue that former 47 P.S. § 4-476 (repealed by act 1 of 1985, P.L. 1 on February 28, 1985)*fn3 which permitted a liquor licensee to offer and award cash prizes for various games, including "card tournaments or contest" was in effect during the investigation period and, therefore, no probable cause existed to infer the machines were being used illegally. Appellants contend video poker machines should have fallen under the auspices of the act as the machines simulate the shuffling of a deck of cards and the dealing of one hand of five card draw poker. This argument has no merit. Video poker machines are not decks of cards and the act did not apply to them.

To summarize, we conclude that under the circumstances of this case, probable cause existed to associate the video poker machines with illegal gambling.

Having determined probable cause existed, we must now examine appellants' contention that that magistrates of the city of Pittsburgh lack jurisdiction to issue search warrants and, therefore, any evidence obtained pursuant to those warrants must be suppressed.

Specifically, appellants argue that since subsection (a)(1) of 42 Pa.C.S.A. § 1143 of the Judicial Code (Jurisdiction and Venue) makes no specific reference to the authority of Pittsburgh magistrates to issue search warrants, said magistrates, ...


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