There are five common types of offenses a person is likely to be charged with.
- Theft by Unlawful Taking
- Receiving Stolen Property
- Retail Theft
- Access Device Fraud
- Theft by Deception
Each charge has different elements and meant to punish different conduct and within each charge there is a significant amount of nuance. This is because it is common for theft offenses to be proven by the Commonwealth circumstantially. Circumstantial evidence is evidence which requires a degree of reason to be accepted as true.
Seeing John Doe take your purse is direct evidence that John Doe stole your purse. Having your purse show up missing with John Doe being the only person who had access to the area where it disappeared from is circumstantial evidence that John Doe stole your purse. Unless the theft was caught on camera, it is likely the case will revolve around witness testimony and the connecting of dots by law enforcement.
In most instances, a person is charged with theft by unlawful taking when he or she:
- Unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him or her thereof.
In most instances, a person is charged with receiving stolen property when he or she:
- Intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen.
In most instances, a person is charged with retail theft when he or she:
- 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.
In most instances, a person is charged with access device fraud when he or she:
- Uses an access device (credit card, debit card, account number, etc) to obtain or in an attempt to obtain property or services with knowledge that the access device was issues to another person who has not authorized its use.
In most instances, a person is charged with theft by deception when he or she:
- Intentionally obtains or withholds property of another by deception.
- A person deceives if he or she intentionally creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind.
- Prevents another from acquiring information which would affect his judgment of a transaction.
- Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship
As a general rule, the more rural the county the more harshly they will view any charge, including theft. This dynamic in and of itself can significantly increase your risk of receiving a sentence of incarceration.
Your prior record is the other big factor when making an initial determination of the likely outcome in your case. Why?
Accelerated Rehabilitative Disposition (ARD) is available to Defendant’s with minimal or no prior record. This program allows most theft related charges to be expunged upon completion of the program. The program generally consists of a period of probation along with other sanctions and treatment options depending on the facts and circumstances of your individual case. However, if you are not eligible for the ARD program, it is quite possible, depending on the County you are charged in, you may be facing a period of incarceration.
At that hearing, credibility is not at issue. What I mean by that is the Judge MUST accept EVERYTHING the Commonwealth witness says as true. This dynamic can frustrate a person charged with an offense, most notably in circumstances where they believe the facts are being exaggerated or fabricated all together.
In that circumstance the defendant must understand that the preliminary hearing is only one stop in the criminal justice process. And, even though the burden is very much tilted towards the Commonwealth at that stage, the hearing can still serve as a great place to cross examine witnesses and lock them into testimony which can be used at trial if need be.
There are certain circumstances where what is taken matters, such as firearms or motor propelled vehicles. But, overall, in determining the grading of a theft offense, the value of the property allegedly taken is often the determining factor. Grading can range from a felony to a summary depending on which charge it is an how much was allegedly stolen.
For instance, with regards to theft by unlawful taking, if the amount taken is above $2,000 it will be a felony of the third degree. If the amount taken was less than $50 it is a misdemeanor of the third degree. This dynamic makes it important for you and your attorney to understand what they are saying you took and how much it may be worth.
Often, law enforcement will find an individual in possession of a stolen piece of property. Often they aren’t sure exactly how or when the person came into possession of the property. Did they steal it or did someone else who then gave it to them? In those circumstances, they will charge a person with both theft and receiving to allow them to pivot to one or the other when the evidence becomes more clear. Although this can feel frustrating, it is important to remember that receiving stolen property “merges” into theft by unlawful taking. Since the charges “merge” you cannot and will not be sentenced separately on both.
This is not an exhaustive list of the things you should be aware of as you navigate through the judicial system with a theft related charge. However, it’s a good start.