J-A21028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ONE (1) JERSEY HOLD 'EM MACHINE
SERIAL NO. DDGPA0003
ONE (1) RED, WHITE, & BLUE GAMING
MACHINE
SERIAL NO. DDGPA0002

                                                      No. 309 EDA 2014


                   Appeal from the Order December 18, 2013
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-MD-0001060-2011


BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 23, 2014

        The Commonwealth appeals from the order entered on December 18,

2013, declaring two machines, one Jersey Hold’em Machine, Serial No.

DDGPA0003, and one Red, White, & Blue Gaming Machine, Serial No.

DDGPA0002, (collectively, “Two Machines”), to be games of skill rather than

chance, and consequently, not gambling devices as outlined in 18 Pa.C.S. §

5513(a).1 The Commonwealth contends the trial court erred as a matter of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    A person violates Section 5513 based on the following:

(Footnote Continued Next Page)
J-A21028-14


law and/or fact in finding that the Two Machines were predominately games

of skill, and therefore, could not be confiscated pursuant to the gaming

statute. Based on the following, we affirm.

      We summarize the facts and procedural history as follows. On October

15, 2010, state troopers seized the Two Machines at an American Legion

establishment, Knowles-Doyle Post 317 (“ALP”), in Yardley, Pennsylvania. It

was the Commonwealth’s position that the Two Machines were being

commercially offered, used, and operated by the general public at the ALP in

violation of Section 5513(a). Following the seizure, the Commonwealth filed

a motion for condemnation and forfeiture on April 18, 2011, and a petition

                       _______________________
(Footnote Continued)

      (a) Offense defined. --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 be used for gambling
          purposes, except playing cards;

          (2) allows persons to collect and assemble for the purpose
          of unlawful gambling at any place under his control;

          3) solicits or invites any person to visit any unlawful
          gambling place for the purpose of gambling; or

          4) being the owner, tenant, lessee or occupant of any
          premises, knowingly permits or suffers the same, or any
          part thereof, to be used for the purpose of unlawful
          gambling.

18 Pa.C.S. § 5513(a).



                                            -2-
J-A21028-14


for forfeiture hearing on May 27, 2011.          Martin Caplan, owner of the Two

Machines, filed an answer to petition for forfeiture on August 25, 2011. A

hearing was held on October 18, 2013, and the matter was continued until

December 18, 2013 for the admission of additional evidence.2 On that same

day, the court entered an order declaring the Two Machines to be games of

skill and not games of chance. It concluded that the Two Machines were not

gambling devices under Section 5513(a) and therefore, they were wrongfully

confiscated. The Commonwealth filed this timely appeal.3,      4


____________________________________________


2
   The trial court explained that the two-year period between the petitions
and the hearings was “due to the necessary and timely procurement of
expert reports and the Commonwealth’s lack of response to numerous
defense requests to schedule a hearing.” Trial Court Opinion, 4/2/2014, at
2.
3
    On January 8, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth complied with the trial court’s directive and
filed a concise statement on January 28, 2014. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on April 2, 2014.
4
   Initially, we note the Commonwealth admits that it mistakenly filed this
appeal with our Court and not with our sister court, the Commonwealth
Court, because appeals from decisions in forfeiture actions fall under the
jurisdiction of the Commonwealth Court. See 42 Pa.C.S. § 762(a)(1)(ii); 47
P.S. § 6-602(a) (“The proceedings for the forfeiture or condemnation of all
property shall be in rem, in which the Commonwealth shall be the plaintiff
and the property the defendant.”); see also Commonwealth v.
McDermond, 560 A.2d 901 (Pa. Commw. 1989).               Nevertheless, the
Commonwealth noted Caplan did not file an objection to this Court’s
jurisdiction. The Commonwealth asserts that the challenge is now waived,
and we may retain jurisdiction in the interest of judicial economy.
Commonwealth v. Smith, 722 A.2d 167 (Pa. Super. 1998). We agree,
and will address the merits of this appeal.



                                           -3-
J-A21028-14


      On appeal, the Commonwealth contends the trial court erred in finding

the two gaming machines were predominately games of skill because it

claims   the   court   “relied   upon   mere   assumptions   and   conclusions

unsupported by adequate facts or competent evidence.”        Commonwealth’s

Brief at 26.      Furthermore, the Commonwealth asserts the competent

evidence established that for each of the machines, the outcome of the

game was predominately based on chance or luck, rather than any

purported skill of the player. Id. The Commonwealth states that based on

testimony of its expert witness, Daryl Robert Sertell, while “it may be

possible for a player to attempt to use visual cues during play … any such

outcomes, as demonstrated, are overwhelming[ly] based on ‘luck,’ chance or

random outcome and not selection by the player.” Id. at 36. Moreover, the

Commonwealth argues the court’s reliance on the defense witnesses,

Caplan, and expert, Nick Farley, is misplaced because they based their

opinions on “the physical action of a player in pushing a button to stop a

reel,” whereas, Sertell stated that “the physical actions of putting money in a

machine and pushing buttons, even within a certain amount of time allotted,

is not the same as getting a particular intended result or desired by the

intentional manipulation of the controls of the machines.”    Id. at 37. The

Commonwealth states, “Common sense dictates the same as merely

pressing a button requires no special intelligence, knowledge, memory, or

dexterity.” Id.


                                        -4-
J-A21028-14


       The “standard of review applied in cases involving petitions for

forfeiture and motions for the return of property is for an abuse of

discretion.” Beaston v. Ebersole, 986 A.2d 876 (Pa. Super. 2009). “The

three elements of gambling under Pennsylvania law are consideration,

chance, and reward.”         Commonwealth v. Dent, 992 A.2d 190, 191 (Pa.

Super. 2010).      Moreover, in determining whether a gaming machine is a

game     of   chance    or   skill,    Pennsylvania     courts   have   employed   the

“predominate-factor       test”   as    set    forth   in   Commonwealth     v.    Two

Electronic Poker Game Machines, 465 A.2d 973 (Pa. 1983), and applied

in Dent, supra.        The “predominate-factor test” “holds that for a game to

constitute gambling, it must be a game where chance predominates rather

than skill.” Dent, 992 A.2d at 193 (citation omitted).5

____________________________________________


5
    In Two Electronic Poker Game Machines, the Supreme Court stated:

       [T]he mere fact that a machine involves a substantial element of
       chance is insufficient to find the machine a gambling device per
       se. Thus a showing of a large element of chance, without more,
       is not sufficient. Nor must the outcome of a game be wholly
       determined by skill in order for the machine to fall outside the
       per se category. As Superior Court pointed out:

          A peculiar combination of luck and skill is the sine qua non
          of almost all games common to modern life. It is hard to
          imagine a competition or a contest which does not depend
          in part on serendipity. It cannot be disputed that football,
          baseball and golf require substantial skill, training and
          finesse, yet the result of each game turns in part upon luck
          or chance.

(Footnote Continued Next Page)


                                              -5-
J-A21028-14


      After a thorough review of the transcripts from the two-day forfeiture

hearing, we find the trial court, in its Rule 1925(a) opinion, thoroughly and

accurately summarized the testimony presented by the witnesses for the

Commonwealth and the defense. See Trial Court Opinion, 4/2/2014, at 2-

12.   We also conclude the court provided a well-reasoned basis for its

determination that the Two Machines were games of skill.         Id. at 12-17

(finding the Two Machines were predominately games of skill based on the

following:    (1) the results as to the high win percentage and payout

percentage following the testing of the machines for a period of six (6)

weeks; (2) unlike traditional casino slot machines, these machines only

operate if the customer manually initiates the stop buttons; (3) neither

machine is equipped with a “random number generator” in the source codes;

(4) the order of the symbols/cards on the respective reels, although not

sequential, is fixed; (5) there existed a consistency in how far the reel would

continue to travel before it came to a complete stop after the button was

initiated; and (6) there was no dispute that both machines were significantly

modified).   We conclude that the trial court’s opinion properly disposes of

                       _______________________
(Footnote Continued)

      We are thus left with the task of determining in each case the
      relative amounts of skill and chance present in the play of each
      machine and the extent to which skill or chance determines the
      outcome.

Two Electronic Poker Game Machines, 465 A.2d at 977 (citations and
quotations marks omitted).



                                            -6-
J-A21028-14


the issue in this case. Accordingly, we affirm on the basis of that opinion,

while adding the following comment.

        The forfeiture hearing was essentially a battle of the expert witnesses,

with each party’s expert arguing why certain factors pointed either to skill or

chance.     The Honorable Albert J. Cepparulo gave greater weight to the

defense expert testimony of Farley, particularly to the fact that Farley’s

“employees, following familiarization with the machines, were able to locate

visual cues on the reels that would give them the ability to stop the

machines in consistent locations.”             Trial Court Opinion, 4/2/2014, at 16.6

Judge     Cepparulo,    sitting   as   fact-finder,    was   free   to   do   so.   See

Commonwealth v. Puksar, 951 A.2d 267, 276 (Pa. 2008) (“The expert

testimony offered at trial by both sides amounted to a battle of the experts,

with the [fact-finder] as the ultimate referee based upon its assessment of

the credibility of the experts.”).             We are bound by this determination.

Accordingly, the Commonwealth’s sole argument fails.

        Order affirmed.

        Judge Bowes joins the memorandum.

        Judge Strassburger files a dissenting memorandum.

____________________________________________


6
   Likewise at the proceeding, Judge Cepparulo stated, “Mr. Farley was able
to get into the heart and soul of these machines by going into their
computer programming, and that’s perhaps the most important part of the
machines to determine how they’re going to act depending on what the
player does.” N.T., 12/18/2013, at 91.



                                           -7-
J-A21028-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




                          -8-
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
Circulated 10/30/2014 01:10 PM
