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Photo of Matt M. McClenahen

Retail Theft Does Not Always Involve Removal of Items from Store

On Behalf of | Sep 10, 2013 | Retail Theft

The classic retail theft scenario involves hiding items, and then walking right out the front door of a store without paying for them. Yet not all retail thefts follow this pattern. Under Pennsylvania law, one form or retail theft involves consuming or tampering with items in a store without paying for them. In German, there is even a term for such behavior, which is not surprising, as the German language seems to have a term for every concept. It is called Mundraub, which translates to something like “mouth robbery.” Although, retail theft is legally quite distinct from a robbery, I still love the imagery evoked by the term.

When I lived in Harrisburg, I used to shop at the so-called “Ghetto Giant” at the top of Allison Hill, because it was located between my gym and my house. To this day, I have to chuckle when sheltered State College people refer to the Weis Market on Westerly Park Way as “Ghetto Weis,” after having shopped at a real ghetto grocery store for five years. One day at Ghetto Giant, a guy entered the store with four or five small children, reached into the donut case, and began freely distributing donuts to the kids. He and the kids immediately devoured the donuts, and I am pretty sure no one never paid for them. Had store employees been vigilant, this guy could have been charged with both retail theft and corruption of minors.

No wonder Ghetto Giant keeps things like razor blades, make-up and condoms under lock and key. I actually thought someone should hand out free condoms to the Ghetto Giant customers, but I digress.

Here in State College, Pennsylvania, where I practice law, “mouth-robbers” are far less likely to go unnoticed. Years ago, I represented a Penn State student who was waiting in line for a sub at McLanahan’s. While waiting in line, he consumed a 75 cents bag of Combos to “cheese his hunger away.” (Yes, I am aware that this Seth McFarlanesque reference may be lost upon younger readers). The absent-minded defendant forgot to pay for the Combos as he left the store, but paid for everything else. Fortunately, for this defendant, I was able to convince the magisterial district judge that my client had no intention to steal, and simply forgot to pay. The judge found him not guilty, and then I filed a motion to expunge his arrest record.

But not all “mouth-robbers” are so lucky. Another client that comes to mind could better be described as a “nose robber.” This defendant had a cold, and rather than buying nasal spray, he opened the package in the store, sprayed the medicine in his nostrils, and then put the spray bottle back in the package and onto the shelf. A lot of times, a defense attorney can work out a pretrial adjudication program for a clearly guilty retail theft defendant, which ultimately allows him to escape without a criminal record, however, due to the health-hazard posed to other customers, neither the cop, nor McLanahan’s store security, nor the judge would agree to such a resolution. Thus, all I could argue was that the defendant had been charged with the wrong subsection of the retail theft statute. It didn’t work, and the defendant was convicted.

As amusing as my examples of Mundraub may be, the consequences for retail theft in Pennsylvania are way out of proportion to the crime itself. Even if you are convicted of only a summary offense version of retail theft, you will have a criminal record, which will appear in all criminal record data bases, such as those maintained by the FBI, Pennsylvania State Police and the Administrative Office of Pennsylvania Courts web site. Therefore, if you are charged with retail theft, it is important to consult with an experienced criminal defense attorney.

Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University. He is often asked if he is related to the owners McLanahan’s. The McLanahans no longer own the stores, which bears their name, and Attorney McClenahen is related to the McLanahan family only if you go back to our ancestral home of Scotland and Ulster/ Northern Ireland.

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