Com. v. Dent, 167 MDA 2009

• Decision Date: 25 March 2010
• Docket Number: No. 168 MDA 2009.,No. 167 MDA 2009,167 MDA 2009,168 MDA 2009.
• Citation: 992 A.2d 190
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Diane Alice DENT, Appellee. Commonwealth of Pennsylvania, Appellant v. Walter Leroy Watkins, Appellee.
• Court: Pennsylvania Superior Court

992 A.2d 190

COMMONWEALTH of Pennsylvania, Appellant v. Diane Alice DENT, Appellee.

Commonwealth of Pennsylvania, Appellant v. Walter Leroy Watkins, Appellee.

No. 167 MDA 2009, No. 168 MDA 2009.

Superior Court of Pennsylvania.

Argued October 21, 2009.

Filed March 25, 2010.

Thomas E. Leipold, Assistant District Attorney, for Commonwealth, appellant.

Howard J. Bashman, Willow Grove, for appellee.

BEFORE: FORD ELLIOTT, P.J., FREEDBERG, and COLVILLE^*, JJ.

OPINION BY FREEDBERG, J.:

¶ 1 The Commonwealth appeals from an order entered on January 14, 2009, by the Court of Common Pleas of Columbia County, which granted Appellees', Diane Dent and Walter Watkins, petition for a writ of habeas corpus and dismissed the criminal charges against them. We reverse and remand.

¶ 2 The relevant facts and procedural history of this matter are taken from the trial court's January 14, 2009 opinion. In September 2008, Appellees were charged with twenty (20) counts of violating 18 Pa. Cons.Stat. Ann. §§ 5513(a)(2), (a)(3), and (a)(4), relating to unlawful gambling. Appellees filed an omnibus pretrial motion including a motion for relief in the nature of habeas corpus. A hearing and argument occurred on December 15, 2008.

¶ 3 At the hearing, Pennsylvania State Police Trooper David Darrow testified that in July and August 2008, while undercover, he participated in games of Texas Hold `Em Poker¹ in a garage under the control of Appellees. N.T. 12/15/08 at 4-5. Trooper Darrow stated that immediately prior to the start of the game, each player would approach Appellee Dent, who acted as the dealer, and pay money to obtain chips. Id. at 6. During the course of the game, the players placed bets worth $1.00 or $2.00 into the "pot" and at the conclusion of each game the winner would receive the pot. Id. at 10. The practice during the games was that the winner who received the "pot" would tip the dealer. Id. While there was no set amount, players were encouraged to tip appropriately and to tip a larger amount if they won a bigger "pot." Id.

¶ 4 The parties agreed that the three elements of gambling under Pennsylvania law are consideration, chance, and reward. Id. at 19. They further stipulated that elements one and three were present because, to participate in the game, the players had to wager money, and, if they won the game, they were rewarded with money. Id. at 20. The parties agreed that the controlling question for the trial court was whether the element of chance predominates over skill in the game of Texas Hold `Em Poker. Id. at 21-22. On January 14, 2009, the trial court issued an opinion finding that, because skill predominated over chance, Texas Hold `Em Poker is not unlawful gambling pursuant to 18 Pa. Cons. Stat. Ann. §§ 5513(a)(2), (a)(3), and (a)(4). Accordingly, the trial court granted the motion and dismissed the charges.

¶ 5 The Commonwealth filed a timely appeal. It was then ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth filed its statement, and the trial court then issued an opinion, relying on its January 14, 2009 opinion

¶ 6 On appeal, the Commonwealth raises one issue for our review:

1. Whether the lower court committed an error of law in concluding that `Texas Hold `Em' Poker is not unlawful gambling under the Pennsylvania Crimes Code?

Commonwealth's Brief at 3.

¶ 7 In the instant matter, where the facts are not in dispute, the determination of whether the Commonwealth has established a prima facie case is a question of law. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa.Super.2001). Thus, our scope of review is limited to determining whether the trial court committed an error of law. Id.

¶ 8 Appellees were charged with violating 18 Pa. Cons.Stat. Ann. §§ 5513(a)(2), (a)(3), and (a)(4), which provide:

§ 5513. Gambling devices, gambling, etc.

(a) Offense defined.—A person is guilty of a misdemeanor of the first degree if he:

* * *

(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.

The statute does not define "unlawful gambling."

¶ 9 Neither a statute nor case law specifically addresses the legality of Texas Hold `Em Poker. To resolve this appeal, we must first determine whether Texas Hold `Em Poker is gambling. If so, then we must decide whether it is "unlawful" as that term is used in § 5513.

¶ 10 There are three elements to gambling: consideration, chance, and reward. Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973, 977 (1983). As noted, the parties agreed that both consideration and reward have been established by the Commonwealth's evidence.

¶ 11 Pennsylvania appellate courts have not definitively addressed the precise question of whether poker is a game of chance or a game of skill. In a 1983 forfeiture action, the Pennsylvania Supreme Court ruled in three cases under Section 5513 with respect to whether certain electronic game machines constituted "gambling devices per se." Two Electronic Poker Game Machines, 465 A.2d at 975. In deciding that certain of the machines did constitute gambling devices per se, the Supreme Court discussed the three elements of "gambling" and then set forth the "predominate-factor test," which holds that for a game to constitute gambling, it must be a game where chance predominates rather than skill. Id. at 977. The Supreme Court stated that, in making this determination, the court should determine the relative amount of chance and skill present in the game; and if the element of chance predominates, the game is a gambling game. Id. at 978. The Supreme Court concluded that the poker machines were gambling devices, stating:

While appellee has demonstrated that some skill is involved in the playing of Electro-Sport, we believe that the element of chance predominates and the outcome is largely determined by chance. While skill, in the form of knowledge of probabilities, can improve a player's chances of winning and can maximize the size of the winnings, chance ultimately determines the outcome because chance determines the cards dealt and the cards from which one can draw—in short, a large random element is always present. That the skill involved in Electro-Sport is not the same skill which can indeed determine the outcome in a game of poker between human players can be appreciated when it is realized that holding, folding, bluffing and raising have no role to play in Electro-Sport poker. Skill can improve the outcome in Electro-Sport; it cannot determine it.

Id. at 978 (internal citations omitted).

¶ 12 In Liquor Control Bd. v. Kehler, 114 Pa.Cmwlth. 310, 538 A.2d 979 (1988), the Commonwealth Court reversed the finding of the trial court which had reversed a decision of the Liquor Control Board, which found a licensee in violation of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101-9-902, for allowing gambling (a poker game) on his premises. In looking at the conjunction of Section 5513 of the Crimes Code and the Liquor Code, the Commonwealth Court stated:

In the past when we have upheld sanctions against licensees for gambling on the premises, this Court has dealt with factual circumstances which clearly indicated that the particular gambling activity under consideration was a violation of the Crimes Code. While we are not prepared to hold and need not decide that poker playing is "unlawful gambling" under the Crimes Code, we now hold that the Board's burden in the instant case was only to prove that gambling was occurring and that that activity was sufficient cause for the Board's action. It need not prove that the Crimes Code was in fact violated.

Our Court, in dealing with the term, had held that the three elements of gambling are consideration, chance and reward.

We believe that poker playing on a licensed premises is gambling within that definition. Certainly all three elements... are present in a poker game. In order to participate, one must "ante up" money; the winner is determined by the luck of the cards drawn (and a lot of bluffing); and the winner takes the "pot."

Id. at 981 (internal citations and footnotes omitted) (emphasis in original).

¶ 13 Courts in other jurisdictions have addressed the issue of what constitutes a game of chance versus a game of skill, both in the context of poker and other games. In an early case, the Court of Appeals of New York noted that the "prohibition and regulation of gambling in all forms and lotteries of every kind are unquestionably valid exercises of legislative power." People ex rel. Ellison v. Lavin, 179 N.Y. 164, 71 N.E. 753, 754 (1904). The Court of Appeals went on to note the difficulties of distinguishing between games of chances and games of skill:

Throwing dice is purely a game of chance, and chess is purely a game of skill. But games of cards do not cease to be games of chance because they call for the exercise of skill by players, nor do games of billiards cease to be games of skill because, at times, especially in the case of tyros, their result is determined by some unforeseen accident, usually called `luck.'

Id. at 755 (emphasis added).

¶ 14 In a 1911 case, the Supreme Court of Missouri upheld the conviction of a man for unlawful gambling, finding that a room set up for the purpose of "games of chance for money, property, and poker chips," and the maintaining of gaming tables used for the purpose of playing poker fell within the state's unlawful gambling laws. State v. Cannon, 232 Mo. 205, 134 S.W. 513, 514-15 (1911).

¶ 15 In a 1919 case, the Supreme Court of Nevada granted a petition for a writ of habeas corpus to a man who had been...