Com. v. Imes

• Decision Date: 23 April 1993
• Citation: 623 A.2d 859,424 Pa.Super. 633
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Betty IMES, Appellant, COMMONWEALTH of Pennsylvania, Appellee, v. Patrick IMES, Appellant.
• Court: Pennsylvania Superior Court

Page 859

623 A.2d 859

424 Pa.Super. 633

COMMONWEALTH of Pennsylvania, Appellee, v.Betty IMES, Appellant,COMMONWEALTH of Pennsylvania, Appellee, v.Patrick IMES, Appellant.

Superior Court of Pennsylvania.

Submitted March 8, 1993.

Filed April 23, 1993.

Byron M. Yatron, Boyertown, for appellants.

Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.

Before CIRILLO, HUDOCK and BROSKY, JJ.

HUDOCK, Judge:

This is an appeal from the judgments of sentence entered in these consolidated cases against Appellants Betty and Patrick Imes.Both Betty and Patrick (mother and son) were convicted in a non-jury trial of theft by deception ¹ for their participation in, and ownership of, two carnival games.Post trial motions were filed and denied.Patrick was sentenced to one year probation and a $500 fine.Betty was sentenced to one year probation and a $300 fine.These appeals followed and were consolidated by stipulation.We reverse.

The facts which led to the arrest of Appellants involved a carnival which was being sponsored by the Downingtown Chamber of Commerce at Kerr Park in the Borough of Downingtown, Chester County.Patrick, Betty, and two other family members own Oscar Amusements, Inc., which provided the rides and arranged for the game booths.Patrick personally owns the milk bottle game involved in this action; Betty owns the milk can game also involved here.The trial court summarized the other pertinent facts of this case as follows:

On July 28, 1990, Trooper Richard M. O'Brien of the Pennsylvania State Police Barracks was directed to go to the carnival sponsored by the Downingtown Chamber of Commerce at Kerr Park in the Borough of Downingtown, Chester County, and while there observed two games, a milk bottle game and a milk can game.

The milk bottle game consisted of three white milk bottles.The object of the game was to knock all the bottles down.The cost was one dollar per game, and on this occasion Trooper O'Brien played this game twice.He further observed 18 to 20 people playing the game and observed no winners.The bottles were stacked with two on the bottom and one on the top, and there appeared to be no difference in the bottles to an observer.

The milk can game consisted of the standard milk cans, and the object was to toss a softball into the can.The cost was one dollar ($1.00) per game.Trooper O'Brien played this game with no success, and observed at least a dozen people attempt to win the stuffed toy animals, and observed no winners.

Trooper O'Brien also observed the balls strike the center of the can and bounce back on several occasions.

Corporal Ramos of the Pennsylvania State Police, Embreeville Barracks, also was detailed to observe these games.Trooper Ramos played and participated in the milk can game, and he, likewise, had no success, and he observed one dozen to two dozen people play, and also observed the ball bounce out of the center of the can a number of times.

Trooper Ramos also observed the milk bottle game and observed at least two dozen persons participate in this game, and did not observe anyone knock the three bottles down at the same time.

The officers convened to determine what they had observed from these two games along with other troopers who were situated in the park, and who also participated in these games.They concluded that they would shut down the two games.Trooper O'Brien went to the milk bottle game and identified himself as a Pennsylvania State Trooper to a Mr. Bowman, and indicated to him that he wanted to inspect the game.

Upon the inspection of the milk bottles, the trooper clearly noted the difference in weight of two of the three bottles, and those two were situated on the bottom row of the two-tier setup.Upon observing this difference in weight, Trooper O'Brien indicated that the game would be shut down, and at that time one Patrick Imes approached the trooper and indicated that he was the operator of the game.

Prior to the group of troopers meeting to converse, Trooper Ramos had stepped back from the milk can game to stand on a slight hill, or incline, and observed from his view that the milk can contained a metal ring inside of the can neck.

Trooper Ramos then approached the milk can game to inspect that game and observed Josh Painter and Joseph Imes behind the setup with aprons on, and made them aware at that time that he wanted to inspect the game, and the game was shut down.

At the time of the participation of Trooper Ramos in the actual games earlier that evening, he observed Betty Imes standing behind the counter wearing an apron and operating this game.

At the time of Trooper Ramos' participation in the game, the only signs that were visible were signs that indicated, "one in, you win".There were approximately four signs in and around this particular trailer area where this game was located.

At trial, the cans and bottles were accepted into evidence and this Court noted that some of the bottles 3 were weighted and observed the inner ring structure of the cans.4

Trial Court Opinionat pp. 1-4.(Footnote 2 omitted.)

Appellants raise the following issues in their appeal:

I.ARREST OF JUDGMENT.

A.Was the Commonwealth's evidence insufficient as a matter of law because the Commonwealth failed to prove the elements of the creation or reinforcement of a false impression.

B.Must the Defendants be granted an arrest of Judgment because the Crimes Code and the Theft by Deception statute have no application to carnival games and/or to the conduct of the Defendants in this matter.

II.NEW TRIAL.

C.Must the Defendant's [sic] be granted a new trial due to the introduction of evidence resulting from a warrantless and illegal search and seizure.

D.Must [the] conviction of Betty Imes be reversed because it is against the weight of evidence which indicates that Betty Imes was not operating the milk can game.

E.Must the convictions for Theft by Deception be reversed because there exists an innocent explanation for the conduct for which the crime was charged.

Appellants' Briefat p. 3.

We note initially that Appellants' issue E has been waived for failure to raise it in their 1925(b) statement.Pa.R.A.P. 1925(b).

In reviewing a motion in arrest of judgment, we must determine whether the Commonwealth's evidence was legally sufficient to support the verdict.Where the evidence is insufficient to establish guilt beyond a reasonable doubt as to the crimes charged, the motion is properly granted.The standard is the same whether a finder of fact was a jury or a judge sitting without a jury.Commonwealth v. Robinson, 351 Pa.Super. 309, 311-12, 505 A.2d 997, 998(1986).In reviewing the evidence to determine whether it is legally sufficient, we must examine the evidence in the light most favorable to the Commonwealth as verdict winner and, in light of this and the permissible inferences which may be drawn therefrom, whether all of the elements of the crime have been established beyond a reasonable doubt.Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257(1986).

Appellants were charged with the crime of theft by deception which reads in pertinent part:

(a) Offense defined.--A person is guilty of theft if he intentionally obtains or withholds property of another by deception.A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise[.]

18 Pa.C.S. § 3922(a)(1).

The Commonwealth...