Private Investigations and Personal Security/Is concealing considered theft in PA

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Question
A friend was accused of stealing at a grocery store because she placed a bottle of nail polish in her jeans and covered it with her t-shirt. She removed it before leaving the store and was charged with retail theft. Is concealing considered theft in Pennsylvania?

Answer
Hi Nicole:

The following is the Pennsylvania crime code that covers retail theft:

Pennsylvania Crimes Code

Section 3929. Retail Theft.

(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.

(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. (Added by L.1996, Act 200(1), eff.
2/18/97.)

(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 justice of the peace or
other magistrate 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 district justice shall use the
information obtained solely for the purpose of grading the
offense pursuant to subsection (b).

(Chgd. by L.1978, Act 53(7(6)), eff. 6/27/80.)

If you look at 2 (c) the section that covers "Presumptions", it states very clearly that simple concealment, whether inside or outside the store, is prima facie (that means "on its face" or in other words, no other evidence is needed, to infer, the intent of the crime, which doesn't have to actually happen. In other words, at the moment that you friend put the bottle in her pocket, that is sufficient evidence of her intent.

As to whether or not a judge will order otherwise, such as if your friend says that she simply put the bottle in her pocket because she didn't have anything else to carry it in, and then later decided she didn't want it, can only be determined at a hearing.


Good luck to you!

regards,

Nic

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