*2 WICKERSHAM, HOFFMAN, Before OLSZEWSKI and JJ.
WICKERSHAM, Judge: appeal judgment
This is аn from the of sentence of the Court of Common Pleas of Adams County. Gettysburg November was the site of a coin Among attending
show. those the a show was coin dealer from Baltimore named Richаrd attending Gross. Also the appellant, Jeffrey Weisman, show was who “whether by talent, calculation, training, computation, prestadigita- [or] ability had the ... and accurately invariably [sic] predict the outcome of a coin toss.” Appellant Brief for at 21, 1981, appellant
On November was demonstrating his unusual to a coin Mr. group talent dealers. Gross was fascinated and he in with some joined other on-lookers who appellant were could wagering not maintain his accu- Despite rate the odds predictions. probabil- and the laws of Gross, ity, unfortunately and for Mr. apрellant continued to predict the outcome of accurately the coin tosses. Mr. $6,900.00 proceeded hours, Gross to lose in less three than fact despite the that he usually provided the [Mr. Gross] coins and either them tossed tossed himself or had some person other disinterested toss them. reported
Mr. his misfortune to police, Gross the local who responded by sending two statе officers to undercover the coin the One following day. occupied appel- show officer lant, engaged repeat performance who in a of his was activities, eаrlier the attempted while other to discern the secret of success. the coins used and appellant’s Again, next person tossing happened it varied. What was accu- “The rately by police described lower court: lost six ($6,000.00) thousand dollars minutes with- forty-five out of worth mo- ascertaining anything [appellant’s] about operandi. dus did not in the They up leave issue air. arrested They [аppellant] recouped money their even speedily they more than had lost it.” ct. at 2. op. Lower Appellant charged was maintaining two counts of gambling 5513(a)(1); place, one сount of main- taining setting up gambling or 18 Pa.C.S. § 5513(a)(1); and one count of by deception, theft § 3922(a)(1). May On was tried before a found jury, guilty maintaining setting up gambling device.1 Post-verdict motions were filed and de- *3 nied, and appellant $7,500.00, was sentenced to a fine of pay costs, forfeit plus whatever remained in money custody police, state and 23 months probation. timely appeal, appellant this only raises one issue:
Does a coin constitute a “device” which can be used for under gambling purposes 18 P.S. 5513(a)([l]) Crimes Code? Appellant
Brief for at 3. We find that a coin does not device, therefore, constitute such a we reverse. § 5513(a)(1) states: devices, Gambling gambling, etc. (a) person Offense defined. —A is of a misde- guilty meanor of the first if degree he: makes, assembles, intentionally or sets knowingly maintains, sells, lends, leases,
up, gives or offers away, sale, loan, board, gift, lease or any punch drawing card, any gam- slot machine or device to used for bling purposes, exсept playing cards... charges by deception maintaining
1. Demurrers to the of theft gambling place charges were sustained and these were dismissed. 34
The only possible category plaсe which to appellant’s act under this section up” is “sets or “maintains” a “gambling device.”
Obviously, a coin cannot be a gambling se, device per under the standard of Commonwealth v. Two Eleсtronic Machines, Poker Game 186, 194, 502 Pa. 973, 465 A.2d 977 (1983). Coins are not “so intrinsically gam- connected with bling as to constitute [gambling] se.” Nu-Ken per devices Heller, Inc. v. Novelty, 220 Pa.Super. 288 A.2d (1972). areas, In related the mеre act of playing cards for money not a criminal offense. United States ex Rundle, rel. Yates v. 326 F.Supp. (E.D.Pa.1971). Nor is racing publication conveying races, information on horse though certainly useful a gambler bets, to in placing his apparatus “device or for gambling.” Pennsylvania Publi- cations, Inc. v. Pennsylvania Public Commission, Utility 349 Pa. (1944). A.2d 777 Since we have held that a coin is not a gambling se, per we must whеther, now determine under the facts of this the coin used by appellant could be classified as a “gambling device.” The three elements of gambling are consideration, chance, an еlement of and a reward. In re: Gaming Devices Seized at American Legion Post No. 197 Pa.Super. Although it could be argued appellant’s ability to accurately predict outcome of а coin toss was so as unfailing any remove chance, element of appellant concedes for present purposes that he engaged in gambling. if Only appellant main- devicе to gamble, tained or set aup however, was he *4 committing a crime under the statute.
The Crimes
provides
Code
no definition of the word
“device.”
the absence of
definition,
such a
“device” shall
be construed according to its common and approved usage.
§
Statutory
1972,
Construction Act of
1903(a).2
A
court must construe the words of a statute according 1339,
1903(a).
2. Act of December
P.L.
No.
their plain meaning. Commonweаlth v.
Stanley,
498 Pa.
Mumma,
Commonwealth v.
(1982),
2. an underhanded a trick. 3. a mechanical contrivance purpose; some invention. invention;
4. faculty of devising ... [Archaic.] anything conceived, 5. fancifully picture, pattern, as a piece of etc. embroidery,
6. an emblem intended to represent person, a family, action, or quality, with a suitable in painting, motto: used sculpture, and heraldry.
7. the motto attached to or suited for such an em- blem ....
8. power the act or of inventing or contriving. [Ar- chaic.]
Syn. contrivance, invention, scheme, design, project, — emblem, stratagem, motto.
In the American Heritage Dictionary, College New Edi- we find the following definition: n. device 1. Something devised or constructed for a particular purpose; especially, a machine used to perform one or more relatively simple tasks. 2. An artistic contri- vance in literary work particular used to achieve a A plan scheme, effect. especially malign one. 4. A decorative design, figure, or pattern, as one used in embroidery. motto, 5. A graphic symbol or especially
36 act, state, of devis- power The or
heraldry. 6. Archaic. one To to do as devices. allow ing. to one’s own —leave pleases. exаmined, Diction- such as Webster’s the other we books (1951) Thesaurus Roget’s and of 1st Edition
ary Synonyms, “con- found commonly synonymous “device” is instrument, inven- trivance, implement, gadget, contraption, coin can tion, do not feel that a artifice, and the like.” We definitions. under of these any “device” previously issue has never been Although precise this there has case law which in been upon Pennsylvаnia, ruled in to coins. device” relation “gambling discusses the term Superintendent in dicta in the case of Rosen v. Found of 59, 61, 181 A. 798 Pa.Super. 120 Strange, Police Le following: is the itself, instrumentality an not, ordinarily, Money be, men on the toss of gamble It as when gambling. may profit gambling, or But it is the stake usually a coin. gambling. or for apparatus device instrumentality, not boards, machines, wheels, Cards, dice, punch slot roulette tickets, tables, lottery policy kinds of boards certain among are the common slips slips, “numbers” books and apparatus. devices gambling forms in Fairmount approval was cited with languаge The above County, Pa.Super. 5 Montgomery v. Engine Co. Jersey in a (1939). It also cited New A.2d 419 was Rhodes, Pratico v. N.J.Super. 1939) (newer
Nevertheless, no modern than we .can find nor has been subject, any on thе case law Pennsylvania that the case law only We note by parties. us provided coin is a “device” that a proposition directly supporting in dicta two money, was tossing used coin whеn Co., Rosen, Fairmount Engine supra cases, forfeiture old and forty-five years are over supra, both of which statute under which predate substantially of the facts of consideration Upon сonvicted. arrested and this case and of the definitions of “device” as it is common- ly understood, used and we do not feel that the term is *6 broad enough addition, to encompass a “coin.” In we note that the burden is on the prosecution to demonstrate wheth- er an object “device,” see Nu-Ken Novelty, Inc. v. Heller, supra, and that penal statutes are to strictly be construed. Stаtutory Construction Act of § 1928(b).3
In the absence of specific statutory proscription, we do not feel that appellant can punished for his somewhat amazing ability predict the outcоme of a coin toss.
Judgment of sentence is vacated and appellant is dis- charged.
OLSZEWSKI, J., files a dissenting opinion.
OLSZEWSKI, Judge, dissenting: I respectfully dissent from the majority’s holding that a coin cannot constitute a “gambling devicе” under 18 Pa.C.S. 5513(a)(1). Sec.
To the extent that it can purposes be used for other than gambling, a coin is not a gambling However, device per se. under the facts of this we would the coin classify used by аppellant as a “gambling device.” agree
We with the majority that, under the common approved usage, a “device” could machine, signify a gadget, an apparatus, or the like. Webster’s New Twentieth Century Dictionary, Second Edi- defines “gadget” as small “any object.” A coin is a small object. Appellant was gambling with that small object. It would follow that the coin was a device used for gambling.
I would affirm judgment below.
3. Act of December P.L. No. 1928(b).