[J-30-2024]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.


  COMMONWEALTH OF PENNSYLVANIA,                    :   No. 96 MAP 2023
                                                   :
                       Appellee                    :   Appeal from the Order of the
                                                   :   Superior Court at No. 160 MDA
                                                   :   2022 dated January 6, 2023
                v.                                 :   Affirming the Judgment of Sentence
                                                   :   of the Dauphin County Court of
                                                   :   Common Pleas, Criminal Division,
  MICHAEL L. STRUNK,                               :   at No. CP-22-CR-0000106-2020
                                                   :   dated December 1, 2021.
                       Appellant                   :
                                                   :   ARGUED: April 10, 2024

OPINION

 JUSTICE McCAFFERY                                        DECIDED: October 24, 2024


 I.     INTRODUCTION

        Section 6318 of the Pennsylvania Crimes Code, entitled “Unlawful contact with [a]

 minor[,]” criminalizes being “in contact with” a minor for the purpose of engaging in various

 crimes identified in the statute. 18 Pa.C.S. § 6318. The question before this Court is

 whether being “in contact with[,]” as set forth in the statute, includes conduct that is not

 communicative in nature. While acknowledging the communicative focus of the statute,

 the Superior Court concluded evidence that Strunk “engaged in physical contact with [the

 victim] beyond the assaults themselves[,]” such as pulling down the victim’s pants, was

 sufficient to establish a violation of Section 6318. Commonwealth v. Strunk, 

 (Pa. Super. 2023) (unpub. memo. at *4). We disagree. The history of the statute
demonstrates it was intended to criminalize communicative behavior not otherwise

covered by the Crimes Code. Because we conclude the Commonwealth failed to identify

any evidence of record to support a finding that Strunk communicated with the victim for

the purpose of facilitating the assaults, we vacate Strunk’s conviction for unlawful contact

with a minor.

II.    FACTUAL BACKGROUND

       The victim testified at trial that approximately one week before her 17th birthday,

she was asleep on the living room couch in the home she shared with her mother and

Strunk. She awoke to find Strunk fondling her breast under her shirt. Though she woke

up, she said nothing and pretended to remain asleep. Strunk eventually pulled down her

pants and underwear and inserted his penis into her vagina.

       After ejaculating, Strunk whispered “something” in the victim’s ear, though she

could not recall what he said. N.T., 7/22-23/2021, at 64. On cross-examination, the victim

reiterated her lack of memory, but denied that the whisper was a threat. Strunk then

procured a towel and wiped down the victim’s legs. Throughout this encounter, she

continued to feign sleep.

       The victim did not report the assault to her mother because she “didn’t want to

believe it was true.” N.T., 7/22-23/2021, at 65. Further, the victim denied discussing the

assault with Strunk before he assaulted her again approximately one month later.

       In the second assault, the victim was once again on the couch in the living room,

recuperating from having multiple teeth removed and under the influence of painkillers.

Since her gums were still bleeding, her mouth was full of gauze.

       The victim’s mother fed her protein milkshakes because the victim could not chew.

At one point, the victim’s mother left her alone on the couch to go to the store to purchase


                                      [J-30-2024] - 2
more milkshakes. Strunk entered the living room and once again fondled the victim’s

breast. This time, however, the victim resisted Strunk’s assault, eventually causing him

to leave her alone, but not before he digitally penetrated the victim’s vagina. The victim

was unsure if Strunk said anything to her prior to or during the assault. She did not report

this assault to her mother because she was embarrassed.

       Finally, several days after the second assault, the victim was asleep in her

bedroom when Strunk entered to play a videogame. The victim had previously given

Strunk permission to play games on her television because her mother did not want him

playing them on the television in their bedroom. Although she briefly awoke when Strunk

entered, the victim started to doze off while Strunk was playing.

       Strunk eventually turned off the game and left the room. Shortly thereafter, he

returned to the victim’s bedroom wearing only a robe. Once again, Strunk began by

fondling the victim’s breast, then removed her pajama pants and inserted his penis in her

vagina. The victim again feigned sleep during the assault.

       This assault was interrupted, however, when the victim’s mother walked in. Both

Strunk and the victim were covered by a blanket, and her mother demanded to know what

was happening. The victim did not answer, but Strunk challenged the victim’s mother

and directed her to “go back to bed.” N.T., 7/22-23/2021, at 77. The victim’s mother

became visibly upset and refused to leave, so Strunk took her back to her bedroom. The

victim put her pants back on and went to talk to her mother.

       When the victim’s mother threatened to call the police, the victim convinced her

not to, since she was worried that she and her mother would return to homelessness, and

the victim wanted to finish high school. Instead, they purchased a lock for victim’s




                                      [J-30-2024] - 3
bedroom door. While she was aware of several times that Strunk attempted to pick the

lock, she did not testify to any knocking or other attempts to communicate with her.

Further, the victim testified that she never discussed the previous assaults with Strunk

before the final assault. Eventually, the victim committed herself to psychiatric care due

to the mental and emotional trauma of the assaults. This triggered a police investigation,

and, in turn, led to Strunk’s arrest and conviction for unlawful contact with a minor, among

other crimes.

III.   PROCEDURAL HISTORY OF THIS APPEAL

       After the verdict, Strunk filed a pre-sentence motion for arrest of verdict arguing

the evidence was insufficient to sustain his conviction for unlawful contact with a minor.

The trial court denied the motion, and imposed consecutive sentences of five to ten years

of incarceration for each of two sexual assault convictions and one aggravated assault

conviction, a sentence of two to five years of incarceration for the corruption of minors

conviction – to be run consecutively to the assault convictions, and a sentence of five to

ten years of incarceration for the unlawful contact with a minor conviction – to run

concurrently with the aggravated indecent assault conviction. The aggregate sentence

was a term of 17 to 35 years’ incarceration.

       Strunk filed timely post-sentence motions challenging the weight of the evidence

supporting the verdicts and the consecutive nature of his sentences. The trial court

denied Strunk’s post-sentence motions. Strunk then filed a timely appeal to the Superior

Court. The trial court did not direct Strunk to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.




                                      [J-30-2024] - 4
      In a unanimous, unpublished decision, the Superior Court affirmed. See Strunk,

supra. The Court concluded the evidence was sufficient to convict Strunk of unlawful

contact with a minor.

      In reviewing the sufficiency claim, the Superior Court viewed the evidence in the

light most favorable to the Commonwealth — the verdict winner — to determine if the fact

finder had sufficient evidence to find every element of unlawful contact with a minor

beyond a reasonable doubt. The Court noted Section 6318 requires proof the defendant

engaged in verbal or nonverbal communication with a minor to bring about sexual contact,

beyond physically approaching the minor or the physical contact of the sexual act itself,

quoting its decision in Commonwealth v. Rose, 

 (Pa. Super. 2008), in

which it stated the statute was “best understood as ‘unlawful communication with a

minor.’” Strunk, 292 A.3d at *3.

      While the Court acknowledged there was no evidence Strunk verbally

communicated with the victim or gave nonverbal signals to achieve the sexual contact, it

found the element of communication was satisfied by evidence that Strunk “engaged in

physical contact with [the victim] beyond the assaults themselves to facilitate his sexual

contact with [the victim.]” Strunk, 292 A.3d at *4. Therefore, it concluded Strunk’s

sufficiency claim respecting the unlawful contact with a minor conviction was meritless.

IV.   ISSUE PRESENTED

      We granted Strunk’s petition for allowance of appeal, directing the parties to

address the following question:

      Whether the Superior Court erred in affirming [Petitioner’s] conviction for
      unlawful contact with a minor where the complainant testified that the sole
      verbal contact was in the first incident after any criminal offense was
      completed, and the Superior Court held that a step necessary for a greater
      sex offense constituted “contact,” for purposes of the statute.


                                     [J-30-2024] - 5
Commonwealth v. Strunk, 

 (Pa. October 17, 2023) (per curiam) (brackets in

original).

V.     STANDARD OF REVIEW

       While phrasing his challenge as disputing the sufficiency of the evidence

supporting his conviction for violating Section 6318, Strunk asserts “the issue is properly

one of statutory construction.” Strunk’s Brief at 16. The Commonwealth treats this appeal

as a run-of-the-mill challenge to the sufficiency of the evidence. See Commonwealth’s

Brief at 6. The issue quoted in our order granting Strunk’s petition for review does not

explicitly define the nature of the issue before us. On the one hand, the word “sufficiency”

is nowhere in the quoted issue. On the other, the issue argued before the Superior Court

was clearly a challenge to the sufficiency of the evidence. See Strunk, 292 A.3d at *4.

However, it is equally clear that Strunk’s position before the Superior Court was that “the

evidence at trial was insufficient … because there was no evidence that he communicated

with [the victim] to accomplish any of the sexual assaults.” 

    We determine that the

issue presented, as phrased in our per curiam order, requires interpretation of the statute,

and not mere rote application of the statute to the record. Thus, the issue is one that

necessarily involves statutory construction.

       In construing a statute, we seek to “ascertain and effectuate the intention of the

General Assembly.” 1 Pa.C.S. § 1921(a). The primary indicator of the legislature’s intent

is the statute’s plain language. See Commonwealth v. Lehman, 

, 1044

(Pa. 2024) (citation omitted). To interpret the meaning of words that the statute does not

explicitly define, “we turn to an examination of dictionary definitions.” Ursinus College v.

Prevailing Wage Appeals Board, 

, 171 (Pa. 2024) (internal quotation marks



                                      [J-30-2024] - 6
and citation omitted). If the plain language is clear and unambiguous, that unambiguous

interpretation controls. See Lehman, supra.

       On the other hand, if the plain language is ambiguous, we must go beyond the text

and consider other factors. See A.S. v. Pennsylvania State Police, 

(Pa. 2016). These factors include, but are not limited to:

       the occasion and necessity for the statute or regulation; the circumstances
       under which it was enacted; the mischief to be remedied; the object to be
       attained; the former law, if any, including other statutes or regulations upon
       the same or similar subjects; the consequences of a particular
       interpretation; and administrative interpretations of such statute.

 (citation omitted).

       Once we have properly construed Section 6318, we must determine whether the

evidence admitted at trial, viewed in the light most favorable to the Commonwealth –

including drawing all reasonable inferences in its favor – supports the jury’s verdict. See

Commonwealth v. Murray, 

 (Pa. 2013). As this is a question of law,

we review the issue de novo and our scope of review is plenary. See 

.

VI.    THE TEXT OF CURRENT SECTION 6318

       The full text of the current statute is:

       (a) Offense defined.--A person commits an offense if the person is
       intentionally in contact with a minor, or a law enforcement officer acting in
       the performance of duties who has assumed the identity of a minor or of
       another individual having direct contact with children, as defined under 23
       Pa.C.S. § 6303(a) (relating to definitions), for the purpose of engaging in an
       activity prohibited under any of the following, and either the person initiating
       the contact or the person being contacted is within this Commonwealth:
               (1) Any of the offenses enumerated in Chapter 31 (relating to sexual
               offenses).
               (2) Open lewdness as defined in section 5901 (relating to open
               lewdness).
               (3) Prostitution as defined in section 5902 (relating to prostitution and
               related offenses).




                                        [J-30-2024] - 7
             (4) Obscene and other sexual materials and performances as
             defined in section 5903 (relating to obscene and other sexual
             materials and performances).
             (5) Sexual abuse of children as defined in section 6312 (relating to
             sexual abuse of children).
             (6) Sexual exploitation of children as defined in section 6320 (relating
             to sexual exploitation of children).

      (b) Grading.--A violation of subsection (a) is:
             (1) an offense of the same grade and degree as the most serious
             underlying offense in subsection (a) for which the defendant
             contacted the minor; or
             (2) a felony of the third degree;
             whichever is greater.

      (b.1) Concurrent jurisdiction to prosecute.--The Attorney General shall
      have concurrent prosecutorial jurisdiction with the district attorney for
      violations under this section and any crime arising out of the activity
      prohibited by this section when the person charged with a violation of this
      section contacts a minor through the use of a computer, computer system
      or computer network. No person charged with a violation of this section by
      the Attorney General shall have standing to challenge the authority of the
      Attorney General to prosecute the case, and, if any such challenge is made,
      the challenge shall be dismissed and no relief shall be available in the courts
      of this Commonwealth to the person making the challenge.
      (c) Definitions.--As used in this section, the following words and phrases
      shall have the meanings given to them in this subsection:
      “Computer.” An electronic, magnetic, optical, hydraulic, organic or other
      high-speed data processing device or system which performs logic,
      arithmetic or memory functions and includes all input, output, processing,
      storage, software or communication facilities which are connected or
      related to the device in a computer system or computer network.
      “Computer network.” The interconnection of two or more computers
      through the usage of satellite, microwave, line or other communication
      medium.
      “Computer system.” A set of related, connected or unconnected computer
      equipment, devices and software.
      “Contacts.” Direct or indirect contact or communication by any means,
      method or device, including contact or communication in person or through
      an agent or agency, through any print medium, the mails, a common carrier
      or communication common carrier, any electronic communication system
      and any telecommunications, wire, computer or radio communications
      device or system.
      “Minor.” An individual under 18 years of age.

18 Pa.C.S. § 6318.



                                     [J-30-2024] - 8
VII.   ANALYSIS

       A. WAIVER

       Initially, we must address the Commonwealth’s claim that Strunk has waived any

challenge to the sufficiency of the evidence supporting his conviction under Section 6318.

The Commonwealth’s argument regarding waiver consists of a single sentence: “[B]y

challenging the weight of the evidence to support his unlawful contact conviction in the

trial court and Superior Court, [Strunk] has waived his challenge to the sufficiency of the

evidence claim he raises.” Commonwealth’s Brief at 6 (citing Commonwealth v. Widmer,

 (Pa. 2000)).

       The basis of the Commonwealth’s argument is not entirely clear. To the extent the

Commonwealth is claiming Strunk failed to properly preserve his sufficiency challenge in

the trial court or the Superior Court, such a claim is belied by both the law and the record.

Under our Rules of Criminal Procedure, a defendant may challenge the sufficiency of the

evidence to sustain a conviction for the first time on appeal. See Pa.R.Crim.P. 606(A)(7).

The Superior Court addressed Strunk’s sufficiency challenge on the merits, and the

Commonwealth does not identify any point in these proceedings where Strunk failed to

preserve the issue.

       To the extent the Commonwealth’s citation to Widmer indicates a belief Strunk

conceded the sufficiency of the evidence to support his conviction under Section 6318 by

also raising a challenge to the weight of the evidence, we note that Widmer does not

stand for that proposition. While Widmer properly notes that a challenge to the weight of

the evidence “concedes that there is sufficient evidence to sustain the verdict[,]” Widmer,

, for the purpose of analyzing the weight challenge, it does not purport to

establish the entirely distinct proposition that an appellant cannot challenge both the


                                      [J-30-2024] - 9
sufficiency and the weight of the evidence as alternative grounds for relief. Accordingly,

we reject the Commonwealth’s contention that Strunk has waived any challenge to the

sufficiency of the evidence supporting his conviction under Section 6318.

       B. THE SUPERIOR COURT’S CONSTRUCTION OF THE STATUTE

       As noted above, the Superior Court panel acknowledged that Section 6318 was

“best understood as ‘unlawful communication with a minor.’” Strunk, 292 A.3d at *3 (citing

Rose, 

). This construction of Section 6318 has been consistent in the

Superior Court for over 15 years.

       For several years post-enactment, Section 6318 failed to generate much

precedent. 1 However, the Superior Court published two opinions in 2006 addressing the

sufficiency of the evidence supporting convictions under the statute. See Commonwealth

v. Evans, 

 (Pa. Super. 2006) (“Here, the contact[] proscribed by

[Section 6318] took place when Appellant called the minor victim over to his car, asked

her if she liked him, told her that there were things that he wanted to do to her, asked her

for a hug, and told her to look up at him.”); Commonwealth v. Morgan, 

(Pa. Super. 2006) (concluding that instant messages sent to a victim through the internet

were “sufficient to affirm Appellant’s conviction for violating 18 Pa.C.S. Section 6318.”).



1 While this Court has previously addressed issues under Section 6318, we have never

decided the precise issue before us. Rather, in both prior cases, we considered the
proper sentencing of defendants pursuant to Section 6318(b), but have not construed
Section 6318(a)’s substantive language. See Commonwealth v. Reed, 

 (Pa.
2010) (concluding the default sentencing provision of Section 6318(b) applied where
defendant was acquitted of all substantive charges); Commonwealth v. Aikens, 

 (Pa. 2017) (affirming grading of a conviction under Section 6318 as a first-degree
felony despite the defendant being acquitted of the substantive offense because the trial
court instructed the jury it had to find defendant sought to commit the substantive offense
to convict under Section 6318).



                                     [J-30-2024] - 10
Similarly, in early 2008, the Superior Court concluded that, as “evidenced by Appellant’s

words and gestures, he clearly ‘contacted’ a ‘minor’ in ‘this Commonwealth’ within the

purview of” Section 6318. Commonwealth v. Oliver, 

 (Pa. Super.

2008) (footnote omitted) (extending definition of “in contact with” to non-verbal

communication).

       Later in 2008, the Superior Court observed in 

 that Section 6318 “is

best understood as ‘unlawful communication with a minor.’” Rose, 

(emphasis in original). It explained the “communication may take place in person, on the

telephone, via a computer, or in other ways.” 

 (citation omitted). The panel

observed that Section 6318 is violated “as of the moment of communication,” and

therefore, no other act is necessary to support the conviction. 

        In Commonwealth v. Velez, 

 (Pa. Super. 2012), a panel of the Superior

Court found unlawful contact was established based on its conclusion that it was

reasonable to infer the defendant “directed the victim, either verbally or nonverbally, to

unclothe below the waist and to assume [a] pose [of lying on her back with her legs in the

air.]” 

.

       A few years later, another panel of the Superior Court reiterated that “contact”

under Section 6318 requires the use of verbal or physical communication to achieve the

sexual assault. See Commonwealth v. Leatherby, 

 (Pa. Super. 2015).

In Leatherby, the Court distinguished Leatherby’s conduct towards separate victims. For

one victim, testimony established that Leatherby woke the victim by touching her breast

and buttocks. See 

. However, the victim denied that Leatherby ever spoke, and

there was no evidence of other communicative behavior. See 

 The Court concluded




                                     [J-30-2024] - 11
the evidence was insufficient to support Leatherby’s Section 6318 conviction based solely

on his conduct towards the victim. See 

. In contrast, the Court concluded the

evidence was sufficient to convict Leatherby under Section 6318 for his conduct toward

two other victims, based on testimony that he asked the victims to hug him before he

engaged in sexual contact. See 

. Additionally, the Court concluded Leatherby

non-verbally communicated his desire for a victim to see him naked by failing to

acknowledge her knock on a bathroom door. See 

.

       In 2019, the Superior Court reiterated that communication is the touchstone for

Section 6318 convictions. See Commonwealth v. Davis, 

 (Pa. Super.

2019) (“[T]he crime of Unlawful Contact with a Minor focuses on communication, verbal

or non-verbal….” (emphasis omitted)). There, the Court concluded the evidence was

sufficient to support the conviction because Davis described what he was about to do to

the victims before he sexually assaulted them. See 

.

       Thus, the Superior Court has consistently confirmed that the statute is

fundamentally concerned with communication. Even the panel below acknowledged this

focus, and neither the Commonwealth nor Strunk deny that Section 6318 is centered on

communicative behavior. See Strunk’s Brief at 31; Commonwealth’s Brief at 8-9.

       C. STATUTORY CONSTRUCTION

       The terms “contact” and “in contact with” are not explicitly defined in Section 6318.

However, Section 6318 does define the nearly identical term “contacts.” While at first

blush this is confounding, a review of the textual history of the section reveals this is likely

an artifact of an imperfect amendment system.

       When enacted in 1997, the statute utilized the term “contacts or communicates

with” to define the prohibited conduct.       Thus, one might reasonably conclude that


                                       [J-30-2024] - 12
“contacts” was intended to be something distinct from “communicates with.” However,

there is no indication that Pennsylvania courts applied these terms as separate concepts.

       In 2002, the legislature modified the language of the statute twice. The primary

relevant change was the deletion of the words “or communicates with” from subsection

(a), leaving only “contacts” as the criminalized act. Similarly, “or communicates with” was

deleted from subsection (c), leaving the defined term as “contacts[.]” Notably, however,

the term “or communication” was left untouched in the definition of “contacts.” Finally,

subsection (b.1) mirrored the language from subsection (a) in defining the prohibited

conduct, utilizing the term “contacts[.]”

       Less than a month later, the legislature again shortened the text of subsection (a):

       (a) Offense defined. -- A person commits an offense if he is intentionally
           in contact with a minor for the purpose of engaging in an activity
           prohibited under any of the following, and either the person initiating the
           contact or the person being contacted is within this Commonwealth[.]

18 Pa.C.S. § 6318(a) (effective Feb. 7, 2003). Here, the legislature replaced “contacts”

with the idiom “is … in contact with[.]” However, the legislature did not modify either

subsection (b.1) or (c). Thus, subsection (b.1) still utilized the verb “contacts” while

subsection (c) no longer contained an explicit definition for the conduct prohibited in

subsection (a): “is … in contact with[.]”

       The legislature provided no commentary to explain these amendments. Nor is

there any clear intent to be derived from the changes themselves.

       Similarly, the legislature’s removal of “communicates” from subsection (a) is

arguably important to our analysis. And yet the legislature retained the communicative

focus in the definition of “contacts:” “Direct or indirect contact or communication by any

means, method or device, including contact or communication in person or through an



                                      [J-30-2024] - 13
agent or agency, through any print medium, the mails, a common carrier or

communication common carrier, any electronic communication system and any

telecommunications, wire, computer or radio communications device or system.” 18

Pa.C.S. § 6318(c). Once again, the legislature provided no rationale for the changes,

though one reasonable hypothesis is that it desired to avoid any implication that

“communication” was something separate from being “in contact with.” Also possible,

however, is that viewing the alteration in isolation, we could reasonably conclude that the

legislature intended to broaden the scope of the statute by leaving only a version of the

verb “contact” as the prohibited conduct.

      Since then, the legislature amended the statute two more times. In 2006, it

modified Subsection (a) to include “sting” operations where a law enforcement officer

impersonates a minor. See 18 Pa.C.S. § 6318 (effective Jan. 1, 2007). 2 Prior to this

amendment, defendants caught in “sting” operations were prosecuted for attempted

unlawful contact with a minor. See, e.g., Rose, 

 n.6. The criminalized

behavior remained “is … in contact with a minor[.]” 18 Pa.C.S. § 6318(a) (effective Jan.

1, 2007). The only other change was an increase in the minimum grading of a conviction

under the statute from a first-degree misdemeanor to third-degree felony. See 18 Pa.C.S.

§ 6318(b) (effective Jan. 1, 2007).

      Similarly, in 2023, the legislature modified Subsection (a) to allow law enforcement

officers to impersonate not just children, but also those who have “direct contact with




2 This is the version of Section 6318 in effect in 2019, when Strunk assaulted the victim.

The differences between this version and the current version of the statute do not impact
our analysis.



                                      [J-30-2024] - 14
children,” as defined in the Child Protective Services Law. 18 Pa.C.S. § 6318 (effective

Feb. 12, 2024). The Child Protective Services Law defines “[d]irect contact with children”

as “the care, supervision, guidance, or control of children or routine interaction with

children.” 23 Pa.C.S. § 6303(a).

         Turning to dictionary definitions, we observe that most dictionaries provide two

definitions for “contact” when used as a verb. As a transitive verb, contact is defined as

either                    “touch”                     or                      “communicate.”

https://dictionary.cambridge.org/us/dictionary/english/contact, last accessed July 2,

2024; see also https://www.merriam-webster.com/dictionary/contact, last accessed July

2, 2024 (defining contact as a transitive verb as “to bring into contact,” “to enter or be in

contact with,” or “to get in communication with”). Thus, the dictionary definitions do not

dispel any ambiguity.

         The phrase “come in contact with” is also an idiom.            http://www.merriam-

webster.com/dictionary/come%20in%20contact%20with, last accessed July 2, 2024. An

idiom is “an expression in the usage of a language that is peculiar to itself either in having

a meaning that cannot be derived from the conjoined meanings or its elements (such as

up in the air for ‘undecided’) or in its grammatically atypical use of words (such as give

way).” http://www.merriam-webster.com/dictionary/idiom, last accessed July 2, 2024.

The idiom “in contact with” a person is exclusively defined in terms of communication.

See       www.merriam-webster.com/dictionary/come%20in%20contact%20with,                  last

accessed July 2, 2024 (defining the idiom “come in/into contact with” as “to see and begin

communicating                with             (someone)”);              see              also

www.dictionary.cambridge.org/us/dictionary/english/in-contact-with, last accessed July 2,




                                      [J-30-2024] - 15
2024 (defining “in contact with someone” as “in communication with someone, especially

by speaking or writing to them regularly[.]”). The idiom does, however, also connote

touching reference, when the direct object is “something.” See id.

       Further highlighting the ambiguity of the language, the legislature used the phrase

“has … contact with” to mean physical contact in the statute defining indecent assault, 18

Pa.C.S. § 3126(a) – one of the predicate crimes referenced in Section 6318(a)(1).

Indecent assault occurs when a “person has indecent contact with the complainant ….”

18 Pa.C.S. § 3101. And “indecent contact” is explicitly defined as “[a]ny touching of the

sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual

desire, in any person.” Id. Thus, when read in pari materia with Sections 3101 and 3126,

there is reason to believe Section 6318’s “in contact with” language means physical

contact.

       Under all these circumstances, the plain text does not resolve the issue of whether

the legislature used “contact” to refer solely to communication, or whether it intended to

also use the alternative definition of a physical touching. We therefore must turn to the

legislative history of Section 6318.

       D. LEGISLATIVE HISTORY

       In remarks on the bill’s final passage in the Pennsylvania House of

Representatives in 1997, before it was referred to the Senate, Representative Matthew

E. Baker, the bill’s sponsor, described the purpose of Section 6318:

               I want to talk about something that is tragic and disturbing, even
       chilling. It is the use of the Internet by pedophiles to target and recruit
       children for exploitation. It is extremely sad that some twisted individuals
       are using the incredible advances in computer and telecommunications
       technology to victimize children, but they are.




                                       [J-30-2024] - 16
       According to Ernest Allen, president of the National Center for
Missing and Exploited Children, it is impossible to estimate how many
children are victimized in cyberspace. In part, this is because child rape and
molestation are the most underreported crimes. Even so, a 1992 report by
the National Victim Center revealed that 61 percent of all rape victims are
under 18 and 32 percent of all rape victims are 12 to 17 years old. And in
1996, the U.S. Department of Justice released a study showing that 78
percent of all inmates serving time in State prison for sexual assault had in
fact abused a child. Thirty percent of these inmates had abused multiple
victims.

        The National Center often becomes aware of sexual crimes involving
online access when the targeted child runs away from home in order to meet
the “friend” he met through the Internet. These pedophiles, dubbed “cyber
enticers,” freely roam the Internet searching for young prey. They find
children through chat rooms, bulletin boards, and online sites designed for
and frequented by children. They masquerade as a member of the targeted
child’s peer group, gain trust, and then exploit that child.

       Recently, in testimony before the U.S. Senate, Mr. Allen and the
National Center encouraged States to play a larger role in combating
cybersex crimes. States, together with Federal authorities, must make the
Internet a scary place for the cyber enticer.

       According to the National Center, 13 States already have cybersex
laws: criminal statutes which prosecutors can use to go after pedophiles
using the Internet. I want Pennsylvania to be the 14th.

       My bill, HB 474, makes it a crime to intentionally contact or
communicate with a child for the purpose of exploiting that child sexually.
The term “contacts or communicates with” includes using any
electronic or telecommunications system to exploit a child, including
a computer. Additionally, the bill contains language so that cyber enticers
outside of Pennsylvania who attempt to prey on the Commonwealth’s
children will be able to be brought to justice here, under our criminal long-
arm jurisdiction statute.

       My belief is that we must give our police and prosecutors “high tech”
statutes so that they can go after “high tech” pedophiles. If these predators
are going online, so must our criminal law.

       I ask for an affirmative vote. Together let us make Pennsylvania a
frightening place for any cyber enticer that dares to communicate with any
of the Commonwealth’s children.

                                      …



                              [J-30-2024] - 17
Q & A for HB 474[:]

1. Why do we need a law aimed at putting cyber enticers in jail, especially
when there is Federal law?

       The best way to answer that is to paraphrase what Ernest Allen, the
president of the Center for Missing and Exploited Children, has said about
the need for local and State participation in cybersex cases. In testimony
before Congress, he said that local law enforcement has a vital role to play.
Local police are often the first point of contact for the victim and his or her
family. Local police and district attorneys have a real interest in making sure
that the children within their jurisdictions are safe. Moreover, if Federal
authorities decide not to prosecute, the case disappears, but the victim
remains. The only way to deter cyber predators is to construct a legal web
so tight - at the State and Federal levels - that there is a real threat they will
be caught.

       Speaking as a legislator, we owe it to our children, Pennsylvania’s
children, to enact an anti-cyber enticer law.

2. Does your bill affect the First Amendment right to free speech in any way?

       The U.S. Supreme Court has made it very clear that child
pornography is not protected by the First Amendment. When an adult
induces a child to commit a sexual act and then records it on film, it is a
crime. When an adult attempts to lure a child to his home in order to exploit
that child sexually, it is a crime. These are not examples of constitutionally
protected speech. So the Commonwealth is within its right to criminalize
hunting children on the Internet for the purpose of sexual exploitation.

        But the concern about speech is a valid one. Just to make sure we
got it right, we worked with the National Center for Missing and Exploited
Children, the prosecutor of a State which has successfully used its anti-
cyber enticer law in criminal prosecutions, and the American Civil Liberties
Union. All said my bill passes constitutional muster.

3. Do existing criminal statutes not take care of cyber enticers?

        Yes and no. While it is true that existing criminal statutes are
available to prosecutors, there may be some confusion as to how they
apply to communications on the Internet. FBI Director Louis Freeh has
talked about the need to build strong legal precedents in order to gain
convictions. I cannot think of a better way to build that than by enacting
legislation designed to stop cyber enticers dead in their tracks. Further, my
bill includes language which specifically applies to predators outside the



                                [J-30-2024] - 18
       Commonwealth who would try to contact a child within Pennsylvania in
       order to steal his innocence. This way, the Commonwealth can exert its
       “long-arm” jurisdiction over this predator and bring him to trial here - where
       the crime was committed and where the evidence is.

               These predators are clever. They pretend to be a member of the
       child’s peer group, establish trust through a series of contacts with the
       child - through the use of bulletin boards, chat rooms, and e-mail - and then
       either go “visit” the child, lure him into running away from home, or kidnap
       him. Since these pedophiles have gone “high-tech,” our criminal laws must,
       too. Thirteen other States have some kind of anti-cyber enticer statute.
       It is time that Pennsylvania become the 14th.

Pa. H. J., 1997 Reg. Sess. 52 at 1750-1751 (emphases added). While these statements,

much as any legislative history, are not definitive, they provide evidence that supports the

Superior Court’s long line of case law classifying Section 6318 as focused on

communication.

       The subsequent amendments to the statute also shed light on the proper

construction of Section 6318. In 2002, the legislature added subsection (b.1) to the

statute.   That subsection provides for concurrent jurisdiction between the Attorney

General and district attorneys for violations of Section 6318, “when the person charged

with a violation of this section contacts a minor through the use of a computer, computer

system or computer network.” 18 Pa.C.S. § 6318(b.1) (effective Jan. 19, 2003). In this

sentence the legislature clearly used “contacts” in its communicative understanding – it

makes no sense to talk about physically touching a minor through a computer, computer

system or computer network.

       In 2006, the legislature unequivocally broadened the scope of Section 6318. It

added language to subsection (a): “A person commits an offense if he is intentionally in

contact with a minor, or a law enforcement officer acting in the performance of his duties

who has assumed the identity of a minor, ….” 18 Pa.C.S. § 6318 (effective Jan. 1, 2007)



                                     [J-30-2024] - 19
(underlined language added by legislature in 2006). The legislative intent of this addition

is clear:    to allow police officers to impersonate a minor through the use of

communications technology.         When the amendment was enacted, a current law

enforcement officer, by definition, was not (and still is not) a minor. See 37 Pa.Code §

203.11(a)(1) (providing that, as of December 21, 1996, all police officers must be 18 years

of age or older). Utilizing the “touch” definition of “contact” makes no sense under this

amendment.

       Similarly, in 2023, the legislature once again added language to Section 6318 to

allow police officers to perform “sting” operations: “A person commits an offense if the

person is intentionally in contact with a minor, or a law enforcement officer acting in the

performance of duties who has assumed the identity of a minor or of another individual

having direct contact with children, as defined under 23 Pa.C.S. § 6303(a) (relating to

definitions), ….” 18 Pa.C.S. § 6318(a) (effective Feb. 12, 2024) (underlined language

added by the legislature in 2023). The added language utilizes another form of the verb

“contact” – “direct contact with children[.]”      And the legislature provides an explicit

definition for this term through cross reference: “[t]he care, supervision, guidance or

control of children or routine interaction with children.” 23 Pa.C.S. § 6303(a). This explicit

definition of “direct contact” is incompatible with the “touch” definition of the verb “contact.”

The “care, supervision, guidance or control of children” does not require physical

touching. Rather, these terms are all forms of communication with children.

       And even more, this amendment dispels any notion that the initial use of “in contact

with” utilizes the “touch” definition of “contact.” It would make no sense to find a person

guilty of “unlawful contact with [a] minor” for touching an adult police officer who was




                                       [J-30-2024] - 20
impersonating another adult who was responsible for the “care, supervision, guidance or

control of children.” By contrast, criminalizing the conduct of a person communicating

with an adult who is responsible for the “care, supervision, guidance or control of children”

for the purpose of committing, for instance, a sexual assault on a minor fits squarely within

the concept of Section 6318.

       Given this legislative history, we conclude the Superior Court has been

consistently correct in recognizing the communicative focus of Section 6318. Section

6318 does not criminalize inappropriate touching of minors; other statutes accomplish

that goal. Section 6318 is perhaps best described as an anti-grooming statute. But even

that description is imperfect.     Any communication that is intended to further the

commission of one of the crimes listed in Section 6318(a), whether it fits the definition of

grooming or not, falls within the prohibition.

       Even the panel below acknowledged this understanding when first discussing

Section 6318: “The element of contact requires proof that the defendant engaged in some

verbal or nonverbal communication with the minor for purposes of sexual contact beyond

physically approaching the minor and the physical contact of the sexual act itself.” Strunk,

292 A.3d at *3. Unfortunately, when the panel applied the law to the facts, it failed to

utilize this standard. Instead, it focused on the victim’s testimony that Strunk “removed

or pulled down her clothing in order to commit the sexual assaults ….” Id. at *4. Despite

the victim’s testimony that she was feigning sleep while Strunk manipulated her clothes,

the panel concluded that “evidence that [Strunk] engaged in physical contact with [the

victim] beyond the assaults themselves to facilitate his sexual contact with Victim is

sufficient to prove the element of communication.” Id. The panel failed to explain how




                                      [J-30-2024] - 21
such conduct was communicative, and in doing so, read the communication requirement

out of the statute. This conclusion does not follow from the statute’s requirements, even

as set forth by the panel itself.

        E. SUPPORT FOR AN INFERENCE OF COMMUNICATION

        The Commonwealth’s alternative argument that the evidence was sufficient to

allow the jury to infer Strunk communicated with the victim to further the assaults also

fails. In 

 there was no evidence about how the victim’s clothes were removed

or why the victim had her legs in the air. While the propriety of Velez’s explicit reasoning

is beyond the scope of this appeal, the panel there clearly relied on the absence of explicit

evidence to conclude the evidence at trial was sufficient. In contrast, here, the victim’s

own testimony negates any such inference. The victim testified that Strunk manipulated

her clothing while she pretended to sleep. Further, the victim testified Strunk did not

communicate with her, either verbally or non-verbally, while he was removing her clothing.

Because this is the only evidence about how the assaults occurred, it would be rank

speculation for the jury to infer Strunk communicated with the victim based solely on

evidence that the assault occurred.

VIII.   CONCLUSION

        In short, the Superior Court conflated verbal, written, and other forms of non-verbal

communicative efforts to mean any form of physical contact. That is not the purpose or

intent of Section 6318. Rather, Section 6318 is intended to criminalize and punish

communication designed to induce or otherwise further the sexual exploitation of children.

As the record before us cannot establish that Strunk communicated with the victim to




                                      [J-30-2024] - 22
facilitate his assaults, his conviction for unlawful contact with a minor cannot stand. Thus,

we vacate Strunk’s conviction for unlawful contact with a minor. 3

       Jurisdiction relinquished.

       Chief Justice Todd and Justices Dougherty and Brobson join the opinion.

       Justice Wecht files a concurring opinion in which Justice Donohue joins.

       Justice Mundy files a dissenting opinion.




3 As the sentence for this conviction was imposed concurrently, this result does not impact

the aggregate sentence and, therefore, does not disturb the sentencing scheme.

                                      [J-30-2024] - 23