To:
Supervising Attorney
From: Laura Isabel Nope Calvache
Date: October 26th, 2024
Re:
Presumption Retail Theft in the case of Ms. Shade.
MEMORANDUM OF LAW
STATEMENT OF FACTS
Ms. Sandy Shade was shopping in the local Walmart. She took a transparent Pyrex
container with its solid blue lid off a shelf, placed it in her empty shopping cart, and then went to
the electronics section. In that sector, Ms. Shade took a SIM card off a shelf, then placed the SIM
card into the Pyrex container, and back into her shopping cart with the lid facing up. The SIM
card in question looks and is similar to a credit card. Ms. Shade was being observed by a Walmart
loss prevention officer.
Then, Ms. Shade continued walking through the store but did not take more items from the
store. Thirty minutes later, the Walmart loss prevention officer detained her until the police
arrived. Ms. Shade never left the store or tried to pass the cash registers. Consequently, Ms. Shade
was charged with retail theft, 18 Pa.C.S.A. 3929(A)(1).
DISCUSSION
The statutory presumption when an item is being concealed inside a store does not likely
apply to the case of Ms. Shade because the SIM card was placed in the Pyrex due to the size and
shape of the SIM card, which can fall to the floor for the halls of the shopping cart easily, and also
because the item in question was located easily in sight from the position of the security guard.
This memorandum addresses whether the presumption of retail theft applies in Ms. Shade's
case, for placing the SIM card inside of the Pyrex when she was doing shopping. This memo looks
at the statutory presumption established in 18 C.P.S.A.§ 3929 (C) and two Pennsylvania Superior
Court decisions addressing said statute -Com. v. Bonn, 368 A.2d 738, 740–41 (Pa. Super. Ct. 1976)
and Com. v. McSween, 402 A.2d 528, 529 (Pa. Super. Ct. 1979)-.
Under the 18 PA CSA. § 3929 (A) (1), the crime of Retail Theft establishes that a person
is guilty “... if he 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...” 18 Pa. Stat. and Const.
and Stat. Ann. § 3929 (West 2014).
Under the same mentioned provision, section 3929(c), the statutory presumption of
Pennsylvania for concealing establishes:
“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 *318
concealed such property with the intention of converting it to his own use
without paying the purchase price thereof within the meaning of subsection
(a) of this section, 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…” Id 3929(c).
A possible defense for the case of Ms. Shade is that the item in question, the SIM card, was
kept inside of the transparent Pyrex, because the SIM card has a very small and thin size that easily
can fall for the halls of the shopping cart, and because the security guard could observe the item
thought the Pyrex and from his location. This is case is very similar to the case Com. v. Bonn,
368A.2d 738, 740-41 (Pa. Super. Ct. 1976).
According to the facts mentioned before, the main factual aspects to analyze are the place
where the defendant put the item in discussion, in this case, the sim card was inside of Pyrex
container in her shopping cart. In addition, it is important to know that Ms. Shade continued
walking through and never left the store or tried to pass the cash registers. Those elements are
relevant to determine whether the presumption for retail theft likely applies or not.
The Court Case Com. v. Bonn, 368 A.2d 738, 740–41 (Pa. Super. Ct. 1976) supports the
conclusion that Ms. Shade did not have the intent to steal the item, so the presumption likely does
not apply. In this precedent, the defendant, Ms. Bonn, was doing Christmas shopping in a
supermarket, she took a bra and put it into her open purse, which had a broken zipper and could
not be closed. See Id. She continued her shopping, and she did not try to leave the store. See Id.
Consequently, the Court held that there was not sufficient evidence to establish her intent to
deprive the store of its property without payment, because the security guard testified he could see
the package with the price tag intact on the top of the purse of the defendant. See Id. In addition,
the open purse had a broken zipper and could not be closed, and the package in the purse was not
covered by anything. See Id. Moreover, there is no other activity that can support a finding of
intent to take the item, and also, she did not leave the store without paying for the merchandise,
because the item was visible easily. See Id.
Particularly, in that case, the Court concluded:
“Since the Commonwealth did not establish facts sufficient to show the
property **741 was concealed among appellant's belongings, it did not
establish the fact upon which the presumption is based and the presumption
is, therefore, unavailable. When the presumption is not available, guilt may
still be proved by other evidence including circumstantial evidence. But
here, without the use of the presumption there was no other evidence of
appellant's intent. The Commonwealth failed to prove an essential element
of the offense, appellant's intent to deprive the store of its property, beyond
a reasonable doubt.” Id.
Therefore, the Court will likely view the case of Ms. Shade to be comparable to those of
the defendant, Ms. Bonn. In our case, Ms. Shade placed the thin and small SIM card into the Pyrex
to avoid the item would fall in the floor due to the design of the shopping cart, also she putted into
the Pyrex, which is transparent and allows the security guard could see the SIM card. Moreover,
Ms. Shade, as Ms. Bonn, did not try to leave the store, she continued shopping. Consequently, the
presumption for concealing potentially will not likely apply.
Commonwealth v. McSween is likely not controlling on Ms. Shade case because in that
case the item was placed by the defendant where it was not possible that the security guard could
see it even just a few centimeters in front of the defendant. See Com. v. McSween, 402 A.2d 528,
529 (Pa. Super. Ct. 1979). Particularly, Mcsween took three belts from the belt department of the
store and walked through the store with the belts over his hands. See Id. The witness mentioned
that he saw the defendant carrying the belts out of the belt department in his hand and rolled them
up and held them against his body even being very close to the defendant. See Id.
In consequence, the Court held that “the fact finder had sufficient evidence before it to
substantiate its finding of guilt”. Id. The Court reasoned that the defendant rolled the belts up in
his hands and held them against his body so that the store detective, standing in front of him, could
not see the items. Therefore, the presumption applies. See Id. As a result, a Court will likely refuse
to apply Commonwealth v. McSween and instead find that Ms. Shade did not have the intent to
steal the SIM card.
In conclusion, in the case of Ms. Shade, the court likely will not apply the presumption for
concealing an item related to the crime of retail theft, because she put the SIM card into a
transparent object, a Pyrex, due to the vulnerable design of the item in contrast to the halls of the
shopping cart, and because the security people could see through the Pyrex the item in question
and she never intended to leave the supermarket without paying for the stuff.
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