Retail Theft & Shoplifting

Retail Theft – 18 Pa. Cons. Stat. § 3929
(a) Offense defined.–A person is guilty of a retail theft
if he:
(1) takes possession of, carries away, transfers or
causes to be carried away or transferred, any merchandise
displayed, held, stored or offered for sale by any store or
other retail mercantile establishment with the intention of
depriving the merchant of the possession, use or benefit of
such merchandise without paying the full retail value
thereof;
(2) alters, transfers or removes any label, price tag
marking, indicia of value or any other markings which aid in
determining value affixed to any merchandise displayed, held,
stored or offered for sale in a store or other retail
mercantile establishment and attempts to purchase such
merchandise personally or in consort with another at less
than the full retail value with the intention of depriving
the merchant of the full retail value of such merchandise;
(3) transfers any merchandise displayed, held, stored or
offered for sale by any store or other retail mercantile
establishment from the container in or on which the same
shall be displayed to any other container with intent to
deprive the merchant of all or some part of the full retail
value thereof; or
(4) under-rings with the intention of depriving the
merchant of the full retail value of the merchandise.
(5) destroys, removes, renders inoperative or
deactivates any inventory control tag, security strip or any
other mechanism designed or employed to prevent an offense
under this section with the intention of depriving the
merchant of the possession, use or benefit of such
merchandise without paying the full retail value thereof.
(b) Grading.–
(1) Retail theft constitutes a:
(i) Summary offense when the offense is a first
offense and the value of the merchandise is less than
$150.
(ii) Misdemeanor of the second degree when the
offense is a second offense and the value of the
merchandise is less than $150.
(iii) Misdemeanor of the first degree when the
offense is a first or second offense and the value of the
merchandise is $150 or more.
(iv) Felony of the third degree when the offense is
a third or subsequent offense, regardless of the value of
the merchandise.
(v) Felony of the third degree when the amount
involved exceeds $2,000 or if the merchandise involved is
a firearm or a motor vehicle.
(1.1) Any person who is convicted under subsection (a)
of retail theft of motor fuel may, in addition to any other
penalty imposed, be sentenced as follows:
(i) For a first offense, to pay a fine of not less
than $100 nor more than $250.
(ii) For a second offense, to pay a fine of not
less than $250 nor more than $500.
(iii) For a third or subsequent offense, to pay a
fine of not less than $500, or the court may order the
operating privilege of the person suspended for 30 days.
A copy of the order shall be transmitted to the
Department of Transportation.
(2) Amounts involved in retail thefts committed pursuant
to one scheme or course of conduct, whether from the same
store or retail mercantile establishment or several stores or
retail mercantile establishments, may be aggregated in
determining the grade of the offense.
(c) Presumptions.–Any person intentionally concealing
unpurchased property of any store or other mercantile
establishment, either on the premises or outside the premises of
such store, shall be prima facie presumed to have so concealed
such property with the intention of depriving the merchant of
the possession, use or benefit of such merchandise without
paying the full retail value thereof within the meaning of
subsection (a), and the finding of such unpurchased property
concealed, upon the person or among the belongings of such
person, shall be prima facie evidence of intentional
concealment, and, if such person conceals, or causes to be
concealed, such unpurchased property, upon the person or among
the belongings of another, such fact shall also be prima facie
evidence of intentional concealment on the part of the person so
concealing such property.
(c.1) Evidence.–To the extent that there is other competent
evidence to substantiate the offense, the conviction shall not
be avoided because the prosecution cannot produce the stolen
merchandise.
(d) Detention.–A peace officer, merchant or merchant’s
employee or an agent under contract with a merchant, who has
probable cause to believe that retail theft has occurred or is
occurring on or about a store or other retail mercantile
establishment and who has probable cause to believe that a
specific person has committed or is committing the retail theft
may detain the suspect in a reasonable manner for a reasonable
time on or off the premises for all or any of the following
purposes: to require the suspect to identify himself, to verify
such identification, to determine whether such suspect has in
his possession unpurchased merchandise taken from the mercantile
establishment and, if so, to recover such merchandise, to inform
a peace officer, or to institute criminal proceedings against
the suspect. Such detention shall not impose civil or criminal
liability upon the peace officer, merchant, employee, or agent
so detaining.
(e) Reduction prohibited.–No magisterial district judge
shall have the power to reduce any other charge of theft to a
charge of retail theft as defined in this section.
(f) Definitions.–
“Conceal.” To conceal merchandise so that, although there
may be some notice of its presence, it is not visible through
ordinary observation.
“Full retail value.” The merchant’s stated or advertised
price of the merchandise.
“Merchandise.” Any goods, chattels, foodstuffs or wares of
any type and description, regardless of the value thereof.
“Merchant.” An owner or operator of any retail mercantile
establishment or any agent, employee, lessee, consignee,
officer, director, franchisee or independent contractor of such
owner or operator.
“Premises of a retail mercantile establishment.” Includes
but is not limited to, the retail mercantile establishment, any
common use areas in shopping centers and all parking areas set
aside by a merchant or on behalf of a merchant for the parking
of vehicles for the convenience of the patrons of such retail
mercantile establishment.
“Store or other retail mercantile establishment.” A place
where merchandise is displayed, held, stored or sold or offered
to the public for sale.
“Under-ring.” To cause the cash register or other sales
recording device to reflect less than the full retail value of
the merchandise.
(g) Fingerprinting.–Prior to the commencement of trial or
entry of plea of a defendant 16 years of age or older accused of
the summary offense of retail theft, the issuing authority shall
order the defendant to submit within five days of such order for
fingerprinting by the municipal police of the jurisdiction in
which the offense allegedly was committed or the State Police.
Fingerprints so obtained shall be forwarded immediately to the
Pennsylvania State Police for determination as to whether or not
the defendant previously has been convicted of the offense of
retail theft. The results of such determination shall be
forwarded to the Police Department obtaining the fingerprints if
such department is the prosecutor, or to the issuing authority
if the prosecutor is other than a police officer. The issuing
authority shall not proceed with the trial or plea in summary
cases until in receipt of the determination made by the State
Police. The magisterial district judge shall use the information
obtained solely for the purpose of grading the offense pursuant
to subsection (b).

A retail theft case begins with the filing of the charging paperwork in the District Court. The District Court serves as the gatekeeper for the Court or Common Pleas and generally does not decide guilt or innocence nor does it impose sentences in Misdemeanor and Felony cases.

If the shoplifting charges are felonies, M1 charges or misdemeanors observed by a law enforcement officer, the Magisterial District Judge (MDJ) will issue an arrest warrant. For all other retail theft charges the MDJ will merely mail a summons to appear for a preliminary hearing or summary trial.

The Preliminary Arraignment is the first court date a defendant must attend. At the preliminary Arraignment the MDJ will set bail. If an arrest warrant has issued, this will occur prior to the preliminary hearing. If a preliminary hearing was scheduled via summons, the Preliminary Arraignment will occur simultaneous to the Preliminary Hearing.

Preliminary Hearings are the first opportunity for the Defense to test the evidence of retail theft that the Commonwealth plans to bring against them. While the burden the Commonwealth must meet at this level is very low, it is a critical stage of the defense because it allows for the opportunity to lay the strategic groundwork that may make or break a defense in the upper courts. You should never waive a preliminary hearing without an attorney.

Formal Arraignment is the first court appearance in the Court of Common Pleas. The purpose of the Formal Arraignment is to inform defendants of certain rights they have and deadlines in their case. If negotiations by your retail theft attorney have led to a favorable plea agreement in your case, a plea may be entered at this court date

Depending on the individual retail theft case, any of the following types of court hearings may occur after preliminary arraignment but before a trial:

• Diversionary Program Hearing – Diversionary Programs allow defendants a path through the criminal justice system that does not risk the chance of conviction. First time offenders may be eligible for the ARD program. Other defendant’s may be eligible for Mental Health Court regardless of whether they have prior convictions.

• Habeas Corpus Hearing – A Habeas Corpus hearing, like a preliminary hearing, may be held to contest the sufficiency of the Commonwealth’s evidence prior to a trial.

• Suppression Hearing – A suppression hearing may be held to have evidence illegally obtained by the police ruled inadmissible at trial.

• Guilty Plea – If the Commonwealth and the defendant agree upon the terms of a guilty plea, a plea may occur at any time throughout the criminal court process

In most criminal trials, cases proceed in front of a jury. However, sometimes it may be best to opt for a non-jury trial. Non-jury trials are most often used when the nature of the crime is one that risks a jury finding someone guilty based upon emotion rather than facts.

If the case precedes as a jury trial the judge, the prosecutor and the defense attorney will question potential jurors. Each side, without any justification, can eliminate a certain number of jurors. Another number of potential jurors can be eliminated based on a list of legal justifications. Eventually, through this process, a jury is reached and seated for trial.

After a jury is chosen, the trial begins with opening statements.

Because the government has the burden of proof, the prosecutor is allowed to make his opening statement first. The defense will then have the option of making an opening statement or waiting until after the prosecution rests its case.

Defense lawyers usually opt to deliver opening statements immediately after the prosecution so that jurors can examine the government’s evidence under the defense’s theory of the case.

After the opening statement(s), each side has the opportunity to present its case.

The prosecution must present its case first. During this time the government presents evidence and elicits testimony from its witnesses. The defense is entitled to cross-examine each witness that the government calls. The prosecution must establish each charge beyond a reasonable doubt.

When the prosecution rests, the defense presents evidence to the jury. If the prosecution’s case is weak, the defense may argue to have the case dismissed at this point. If the motion is denied the defense will go forwards with its case.

After the prosecution and criminal defense lawyer have rested their case, each side will have the opportunity to make a closing argument. The defense lawyer delivers the first argument and the prosecution follows him or her.

The defendant may testify as a witness in his or her defense. However, doing so opens the door for the prosecution to attempt to discredit the witness and in many cases allows the prosecution to bring up harmful information from the defendant’s past.

While the prosecution must establish its case beyond a reasonable doubt, the defense has no obligation to present a case. When advantageous the defense may rely solely upon raising a reasonable doubt in the prosecution’s case.

After the closing arguments, the judge will read specific instructions to the jury outlining the legal standards necessary to decide if the defendant is to be found guilty or not guilty. The jury then leaves the courtroom to deliberate the case.

If all jurors cannot reach a unanimous decision, the jury is “hung,” and the case may be dismissed or it may be tried in front of a new jury.