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Senate of Pennsylvania
Session of 2013 - 2014 Regular Session


Posted: January 4, 2013 10:53 AM
From: Senator John C. Rafferty, Jr.
To: All Senate members
Subject: Retail Theft - Loophole
In the near future I am planning to introduce legislation that will treat repeat offenders of the retail theft statute the same regardless of whether the offender was given the privilege of participating in the Accelerated Rehabilitation Program (ARD) the first time they violated the statute.

Under Section 3929(b) of Title 18 (Crimes Code), a second violation of retail theft carries a grading that is no less than a misdemeanor of the second degree. However, the Pennsylvania Superior Court in Commonwealth v. Graeff held that the definition of second offense in the retail theft statute did not include an individual who was given the privilege of participating in ARD the first time that they committed a retail theft. In the Graeff case, the defendant was participating in an ARD program for a retail theft when she pled guilty to a second retail theft. The Superior Court found that because the Defendant was participating in ARD and that the statute did not specifically include ARD participation as counting towards prior offenses, that the new offense should be handled as a first offense. With the Defendant’s new retail theft offense considered a first offense, the grading then reverted to a summary offense, and the Defendant’s criminal liability greatly diminished. The opinion of the Superior Court was that the language of the statute would need to be amended to include participation in ARD to count as a first offense, much like the DUI statute, for an individual in the Defendant’s situation to be charged as a second offense.

In addition to creating a situation where repeat offenders of the retail theft statute are no longer treated equally, the Graeff opinion created a less obvious secondary result. By specifically excluding ARD as a prior offense, District Attorneys were then faced with the difficult decision to offer ARD to individuals charged with first offense retail theft violations when they knew that if the defendant reoffend they would once again be treated as a first offense. By including ARD in the list of prior offenses for retail theft, we will actually be encouraging District Attorney’s to offer ARD to first time offenders and at the same time holding repeat offenders equally accountable.

Introduced as SB731