Theft by Unlawful Taking

Pennsylvania Theft Defense Attorney

The theft statute in Pennsylvania is called "Theft by unlawful taking or disposition" and can be found in the Pennsylvania Crimes Code at 18 Pa.C.S. Sec. 3921. If you were to steal the property of another in Pennsylvania, you would be charged under this statute. Theft by unlawful taking is simply the taking of the property of another with the intent to deprive them of the property. Please note that this crime is distinguishable from Retail theft. If you were to steal merchandise from a retail establishment you would be charged with the crime of Retail theft whereas Theft by Unlawful Taking covers taking property from a person or entity other than a retail establishment.

Theft By Unlawful Taking can be graded as a Misdemeanor or a Felony. The seriousness of the crime is based upon the value of the property stolen. Information on the grading of theft offenses can be found at 18 Pa.C.S. 3903. The following is a succinct summary of the values and grades.

If the value of the property was:

  • greater than $2000, then the theft is a Felony of the 3rd Degree;
  • $50 or more but less, than $200 then the theft is a Misdemeanor of the 2nd Degree
  • less than $50, then the theft is a Misdemeanor of the 3rd Degree
  • 200 or more but $2000 or less, then theft is a Misdemeanor of the 1st Degree.

The grading of the offense is not an element of the crime. The grading of the offense (or the seriousness of the crime) is to be determined by the judge at the time of sentencing.

When you are charged with Theft by Unlawful Taking in Pennsylvania, typically you will also be charged with Receiving stolen property. The Receiving stolen property statute can be found at 18 Pa.C.S. Sec. 3925. In Pennsylvania, you are guilty of Receiving stolen property if you retain property knowing that is has been stolen. It logically follows that if one steals property they have to retain it thereafter. Typically the District Attorney's Office will not make you plead guilty to both charges. They will usually make you plead guilty to a theft count or a Receiving stolen property count. The case law is unsettled in Pennsylvania as to whether these crimes merge for purposes of sentencing. The doctrine of merger will be explained below. The majority of the case law is in favor of merger, therefore, as your attorney I would be able to argue that these crimes merge if the DA's office tried to have you sentenced on both theft and Receiving stolen property.

Theft by unlawful taking is a lesser included offense of other crimes such as Robbery and Burglary. Lesser included offenses merge with the greater offense for purposes of sentencing. The following example will illustrate the concept of a lesser included offenses and the doctrine of merger:

EX #1:

A Robbery occurs wherein Joe sticks a gun to Mary's head. He says "Mary give me your purse or your life." Mary then gives Joe her purse. Joe takes his case to a jury trial and is convicted of both Robbery and theft. Should the theft merge into the crime of Robbery for purposes of sentencing?

Answer: Yes. Two crimes occurred here, a theft and a Robbery. The elements of Robbery are 1) theft; and 2) the use of force in committing the theft. In this example the judge should rule that the theft crime merges into the Robbery for purposes of sentencing. An easy way to think of the concept is this: if the lesser crime has all of the same elements of the greater crime, then it must merge. Unless the lesser crime offers a new element then it should merge. In this example Robbery includes the crime of theft, so it swallows up the theft charge. The theft charge does not have any distinct elements. This way Joe can't be double punished for the same conduct. He can only be sentenced by the judge on the charge of Robbery.

However, a single act can constitute two crimes if the crimes have separate and distinct elements. The following example will illustrate:

EX #2:

A guy steals his friend's car. He is charged with Theft by unlawful taking and Unauthorized use of automobiles. A person is guilty of Unauthorized use of automobiles if he or she operates the automobile without the consent of the owner. Should these two crimes merge for sentencing purposes?

Answer: No. The elements of the crimes are separate and distinct. Stealing the car involved theft and using the car without permission. These two elements are different. The legislature intended the crimes to be distinct. This single act comprised two crimes. The defendant may be sentenced for both crimes.

In Pennsylvania, there are many different statutes that cover distinct theft crimes. My law firm represents individuals charged with any type of theft offense in Pennsylvania including but not limited to offenses such as,

  • Theft by deception
  • Theft by extortion
  • Theft of property lost, mislaid, or delivered by mistake
  • Theft of services
  • Theft by failure to make required disposition of funds received
  • Unauthorized use of automobiles and other vehicles
  • Retail theft
  • Theft from a motor vehicle.

If you or someone you know has been charged with a theft crime in Pennsylvania, contact Pennsylvania theft defense attorney, Jason R. Antoine, for a free consultation.