Com. v. Davis

799 A.2d 860

COMMONWEALTH of Pennsylvania, Appellant, v. Dennis G. DAVIS, Appellee.

Superior Court of Pennsylvania.

Submitted October 15, 2001.

Filed May 23, 2002.

Robert S. Bell, Asst. Dist. Atty., Indiana, for Com., appellant.

Michael C. Pribanic, Pittsburgh, for appellee.

Before TODD, J., CERCONE, P.J.E., and OLSZEWSKI, J.

CERCONE, P.J.E.

¶ 1 The Commonwealth appeals from the order of the Trial Court which granted the motion for judgment of acquittal of Appellee, Dennis G. Davis, and reversed his conviction on the charges of operating an illegal "bottle club" and selling beer at his place of business without a license, in contravention of 18 Pa.C.S.A. § 7328 and 47 P.S. § 4-492(2), respectively. After review, we affirm in part and reverse in part.

¶ 2 In March of 2000, Appellee was operating a business establishment known as Club X-Treme, which was located in the borough of Indiana, Indiana County. In order to open this establishment, Appellee had made extensive renovations to an abandoned building. N.T. Trial, 11/7/2000, at 25. Appellee originally operated his facility as an entertainment establishment serving people under twenty one (21) years of age; however attendance at the establishment declined precipitously after it became known in the community that one of Appellee's employees, unbeknownst to Appellee, was eavesdropping on customers who were college students and providing information to the police about the location of off campus drinking parties. Id. at 27. In an effort to revive his business and induce customers to return, Appellee decided to begin offering free beer. Id. at 29. Before doing so he consulted with enforcement officials from the Liquor Control Board on how to provide free beer to adult customers without violating any laws. Id. at 20, 29.

¶ 3 In an attempt to comply with recommendations given to him by an official of the Liquor Control Board, concerning the proper manner in which to give away free beer, Appellee made renovations to the physical layout of the club. N.T. Trial, 10/3/2000, at 36, 45. After the renovations were complete, the interior of the building was arranged in the following manner: At the building entrance was a ticket booth located to the immediate left of the entryway. Id. at 12, 40. To the right of the entryway was a ramp which led down to a large main room that housed a five thousand square foot lighted dance floor as well as an entertainment area containing pool tables and video games. Id. at 12, 16; N.T. Trial, 11/7/2000, at 30, 33. On the left hand side of the entryway, further below the ticket booth, was a set of steps leading down to a lounge area. Id. at 30. The lounge area was closed off from the dance floor. N.T. Trial, 10/3/2000, at 39.

¶ 4 Once the renovations were complete, in December of 1999, Appellee began offering free beer. N.T. Trial, 11/7/2000, at 34. The admittance policy of the club, as set by Appellee, was that a patron desiring free beer could enter the club without paying and go to the lounge area and consume the free beer which was stored in that area. Id. at 33. However, if an individual wished to obtain access to the entertainment area of the club then he or she was required to pay a six (6) dollar fee. Id. Individuals not paying the fee were not permitted to enter the entertainment area. Individuals paying the fee were permitted access to both the entertainment and lounge areas.

¶ 5 On the night of March 17, 2000, Officer Thomas K. Weaver, a member of the Pennsylvania State Police Bureau of Liquor Control Enforcement was assigned to investigate Club X-Treme for allegedly selling beer without a license. Officer Weaver arrived at Club X-Treme at around 9:00 p.m. on the night of March 17th accompanied by two other police officers: David J. Rostis and Russell States. The three (3) officers were not in police uniforms but in "undercover" dress. Appellee, his brother, Lance Davis, and a waitress met the officers at the club entrance. Officer Weaver asked, "Where is the free beer?" and Appellee replied that "Six (6) dollars gets you access to the whole premises." N.T. Trial, 10/3/2000, at 6. Officer Weaver testified that he again asked, "Where is the free beer?" and that Appellee again said "Six (6) dollars gets you access to the whole premises."¹ Id. At this point Officer Weaver and the two other officers paid Appellee six (6) dollars and proceeded down the ramp and over to the lounge area.

¶ 6 Once there, each of the officers obtained a draft beer from a keg located behind a bar in the lounge. The officers remained inside the club for about forty-five (45) minutes. The officers then left the premises, obtained a search warrant, and returned. Upon their return, pursuant to the warrant, they confiscated five (5), fifteen and one half (15-1/2) gallon, kegs of beer. N.T. Trial, 11/7/2000, at 9. Appellee was then charged with violating the above-cited statutory provisions.

¶ 7 After a two (2) day non-jury trial the Trial Court found Appellee guilty. On January 12, 2001, the Trial Court sentenced Appellee for the violation of 18 Pa.C.S.A. § 7328 to three (3) months supervised probation. For the violation of 47 P.S. § 4-492(2) the Judge ordered Appellee to pay a fine of $100.00 as well as court costs totaling $212.50.

¶ 8 Appellee next filed post-sentence motions seeking a judgment of acquittal based on his claim that the evidence was insufficient to sustain his convictions and also seeking an arrest of judgment based on his contention that the guilty verdict was against the weight of the evidence. See Appellee's Motion to Modify Sentence, filed 1/22/2001. The Commonwealth also filed a motion to modify sentence requesting that the Appellee's sentence be altered to include the imposition of what it contended was the mandatory fine. The Commonwealth alleged in its motion that the correct amount of the fine that was required, based on the weight of the alcohol seized from the premises, was $20,480.00. See Commonwealth's Motion to Modify Sentence, filed 2/8/2001, at ¶ 3.

¶ 9 By order docketed April 23, 2001, the Trial Court granted Appellee's motion for judgment of acquittal and denied the Commonwealth's Motion to Modify Sentence. This timely appeal by the Commonwealth followed in which they present two (2) issues for our Court's consideration:

I. WAS EVIDENCE THAT THREE UNDERCOVER OFFICERS, WHO PAID AN ADMISSION FEE AND WERE SERVED ALCOHOL, SUFFICIENT PROOF TO SUSTAIN THE TRIAL COURT'S ORIGINAL FINDING THAT DEFENDANT OPERATED A BOTTLE CLUB IN VIOLATION OF A BOROUGH ORDINANCE AND SOLD MALT OR BREWED BEVERAGES WITHOUT A VALID LICENSE?

II. DID THE TRIAL COURT ERR IN NOT IMPOSING A MANDATORY FINE FOR VIOLATION OF THE LIQUOR CODE WHEN THE COURT HAS POWER TO CORRECT AN ILLEGAL SENTENCE AT ANYTIME?

Commonwealth's Brief at 1.

¶ 10 We begin by noting that Appellee has called our Court's attention to potential uncertainty as to the exact nature of the Trial Court's disposition. He notes that it is unclear whether the Trial Court's disposition was based on a finding that the verdict was against the weight of the evidence or whether it was based on a finding that the evidence was legally insufficient to sustain Appellant's conviction, i.e. that the Commonwealth had failed to prove each and every element of the offense charged beyond a reasonable doubt. Appellee's Brief at 10.

¶ 11 We acknowledge and understand the source of Appellee's confusion, since the Trial Court in its Opinion refers to both concepts when giving its reasons for granting the judgment of acquittal. In its Opinion the Trial Court said:

After reviewing the record the Court now finds that the Commonwealth did not prove beyond a reasonable doubt that [Appellee] was operating a club in violation of 18 Pa.C.S.A. § 7328 and 47 P.S. § 4-492. It is clear that Officer Weaver asked where is the free beer. However, [Appellee's] reply of trying to sell them all the $6 entertainment fee is not a denial of free beer. The Commonwealth needed to go one step further and prove that the officers were actually denied free beer. The previous decision was against the weight of the evidence, and therefore, the Motion for Judgment of Acquittal is granted.

Trial Court Opinion, filed 4/23/2001, at 8.

¶ 12 Weight and sufficiency of the evidence are not one and the same legal concepts. As our Court has summarized in a prior case:

Weight of the evidence and sufficiency of the evidence are discrete inquiries[.] In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner.

The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt[.]

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1, 5 (1985) (quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984)); See also Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459, 462 (1984) ("When a verdict of guilty is overturned on insufficiency of the evidence grounds, the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes retrial. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981...