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 of Common Pleas and generally does not decide guilt or innocence nor does it impose sentences in Misdemeanor and Felony cases. Under Pa.R.Crim.P. 509, a warrant is required when a felony or murder is charged and in specified circumstances such as reasonable grounds to believe the defendant will ignore a summons or poses a threat. A summons is ordinarily required when the most serious charge is a second-degree misdemeanor or a first-degree-misdemeanor DUI, absent those exceptions. Other cases—including many non-DUI first-degree misdemeanors—may fall within the issuing authority’s discretion. The actual charge, release status, service history, and case-specific facts control.

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 – A diversionary program may permit an eligible person to complete court-ordered conditions without a conviction if admitted and completed successfully. ARD and treatment-court eligibility are governed by statute, current county criteria, prosecutorial discretion, and court approval; prior history may affect eligibility. • 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

Whether a criminal trial is heard by a jury or by a judge depends on the grading, the right to a jury, any valid waiver, the court’s approval where required, and case-specific strategy. The decision should follow review of the charge, likely evidence, available defenses, and procedural rules—not a generalized assumption about emotion. If the case proceeds as a jury trial, the court and counsel examine potential jurors under the applicable rules. Challenges for cause and the permitted number of peremptory challenges depend on the case and governing procedure. The process continues until a qualified jury is selected and sworn. 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 may seek a judgment of acquittal when supported. The defense may then present evidence, but it has no obligation to do so and the defendant has a constitutional right not to testify. If a motion is denied, counsel and the client make the remaining trial decisions under the applicable rules. After the presentation of evidence concludes, the parties may make closing arguments. The order of argument and any rebuttal follow the applicable rules and the court’s directions. 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 the jurors cannot reach a unanimous verdict, the court may declare a mistrial. A hung jury does not automatically dismiss the charges; subject to constitutional limits and later court rulings, the prosecution may seek a new trial or may decide not to retry the case.