Opinion
96 MAP 2023 J-30-2024
10-24-2024
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL L. STRUNK, Appellant
ARGUED: April 10, 2024
Appeal from the Order of the Superior Court at No. 160 MDA 2022 dated January 6, 2023 Affirming the Judgment of Sentence of the Dauphin County Court of Common Pleas, Criminal Division, at No. CP-22-CR-0000106-2020 dated December 1, 2021.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
OPINION
McCAFFERY, JUSTICE
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, 292 A.3d 1079 (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 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 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.
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, 960 A.2d 149, 152 (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.Commonwealth v. Strunk, 306 A.3d 250 (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." Id. 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, 311 A.3d 1034, 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, 310 A.3d 154, 171 (Pa. 2024) (internal quotation marks 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, 143 A.3d 896, 903 (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.Id. (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, 83 A.3d 137, 150-151 (Pa. 2013). As this is a question of law, we review the issue de novo and our scope of review is plenary. See id. at 151.
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).
(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.
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, 744 A.2d 745 (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, 744 A.2d at 751, 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 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, 960 A.2d at 153). 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. However, the Superior Court published two opinions in 2006 addressing the sufficiency of the evidence supporting convictions under the statute. See Commonwealth v. Evans, 901 A.2d 528, 537 (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, 913 A.2d 906, 911 (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."). 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, 946 A.2d 1111, 1114 (Pa. Super. 2008) (footnote omitted) (extending definition of "in contact with" to non-verbal communication).
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, 9 A.3d 1138 (Pa. 2010) (concluding the default sentencing provision of Section 6318(b) applied where defendant was acquitted of all substantive charges); Commonwealth v. Aikens, 168 A.3d 137 (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).
Later in 2008, the Superior Court observed in Rose, supra, that Section 6318 "is best understood as 'unlawful communication with a minor.'" Rose, 960 A.2d at 152 (emphasis in original). It explained the "communication may take place in person, on the telephone, via a computer, or in other ways." Id. at 153 (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. Id.
In Commonwealth v. Velez, 51 A.3d 260 (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.]" Id. at 267.
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, 116 A.3d 73, 79-80 (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 id. at 80. However, the victim denied that Leatherby ever spoke, and there was no evidence of other communicative behavior. See id. The Court concluded the evidence was insufficient to support Leatherby's Section 6318 conviction based solely on his conduct towards the victim. See id. at 79-80. 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 id. at 80. 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 id. at 80-81.
In 2019, the Superior Court reiterated that communication is the touchstone for Section 6318 convictions. See Commonwealth v. Davis, 225 A.3d 582, 587 (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 id. at 588.
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 "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 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). Prior to this amendment, defendants caught in "sting" operations were prosecuted for attempted unlawful contact with a minor. See, e.g., Rose, 960 A.2d at 152 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).
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.
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 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, 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.
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.
…
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
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) (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 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 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 Velez, supra, 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 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.
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.
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.
DISSENTING OPINION
MUNDY, JUSTICE
Pursuant to 18 Pa.C.S. § 6318, a person commits the offense of unlawful contact with a minor if he "is intentionally in contact with a minor . . . for the purpose of engaging in" certain sexual-related offenses, as identified in the statute. 18 Pa.C.S. § 6318(a). Pertinently, Section 6318 defines "contacts" as "[d]irect or indirect contact or communication by any means, method or device, including contact or communication in person or through[, inter alia,] an agent or agency[.]" 18 Pa.C.S. § 6318(c). In this case, Strunk was charged with numerous sexual-related offenses after he was accused of assaulting the daughter of his long-term paramour. At trial, the victim provided detailed testimony, relaying that on three separate occasions, Strunk removed articles of her clothing and committed lewd and unwanted acts on her. He was subsequently convicted of several crimes, including unlawful contact with a minor.
Following an unsuccessful direct appeal, this Court granted allocatur to consider whether a conviction for unlawful contact with a minor may stand where, as here, the accused did not verbally communicate with the complainant prior to committing a Section 6318 enumerated offense. The majority vacates Strunk's unlawful contact with a minor conviction, finding that the evidence failed to prove that Strunk communicated with the victim for the purpose of facilitating the assaults. Because I disagree with the majority's interpretation of Section 6318 and the conduct it encompasses, I dissent.
To reiterate, Section 6318 criminalizes certain intentional contact with a minor and defines "contacts" as "[d]irect or indirect contact or communication by any means, method or device, including contact or communication in person or through[, inter alia,] an agent or agency[.]" 18 Pa.C.S. § 6318(c) (emphasis added). As the resolution of the aforementioned issue necessarily involves statutory construction, I observe the following well-settled principles.
The object of all statutory interpretation "is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). "In construing the language within a statute, we must give effect to every word of the statute." S & H Transport, Inc. v. City of York, 140 A.3d 1, 7 (Pa. 2016). "This Court may not ignore the language of a statute, nor may we deem any language to be superfluous." Bayview Loan Servicing, LLC v. Lindsay, 185 A.3d 307, 312 (Pa. 2018) (internal quotation mark omitted). See also Frazier v. W.C.A.B. (Bayada Nurses, Inc.), 52 A.3d 241, 245 (Pa. 2012) ("[T]his Court should construe statutes to give effect to all of their provisions, and should not ignore language nor render any portion of the statute superfluous.").
Relatedly, a word should be construed "according to its common and approved meaning. See 1 Pa.C.S. § 1903(a). The common and approved meaning of a word or phrase is appropriately gleaned from dictionary definitions." Commonwealth v. Chisebwe, 310 A.3d 262, 269 (Pa. 2024). When words of a statute are not explicit, the Statutory Construction Act "specifically authorizes consideration of legislative history[.]" Bd. of Revision of Taxes, City of Philadelphia v. City of Philadelphia, 4 A.3d 610, 625 (Pa. 2010). See also Commonwealth v. Lehman, 311 A.3d 1034, 1044 (Pa. 2024) ("When the statutory language is ambiguous, [] we may ascertain the General Assembly's intent by considering the factors set forth in Section 1921(c) of the Statutory Construction Act and other rules of statutory construction" (footnote omitted).The majority, undoubtedly well-versed in these rules, finds that the language of the statute is ambiguous. Majority Opinion at 30-31. I agree. However, my agreement with the lead opinion begins and ends there, as the majority opines that Strunk is entitled to relief because "there is no indication that Pennsylvania courts" have applied the terms "contacts" and "communicates with" as "separate concepts." Majority Opinion, at 24.
Irrespective of its previous applications, placement of the disjunctive "or" in the definition of "contacts" is important, as it indicates that the statute criminalizes more than just verbal communication. See e.g., In re Paulmier, 937 A.2d 364, 373 (Pa. 2007) ("The word 'or' is defined as a conjunction used to connect words, phrases, or clauses representing alternatives. In other words, 'or' is disjunctive. It means one or the other of two or more alternatives" (citation and some quotation marks omitted)). Indeed, had the legislature intended the offense of unlawful contact with a minor to encompass only communication in the traditional sense, as the majority seemingly suggests, it would not have needed to include the term "contact." In fact, this Court, when addressing the insertion of the disjunctive "or" in a different statute, explained that it was reasonable to conclude that the General Assembly employed certain related terms "in the disjunctive purposefully and that they were meant to have different applications." Commonwealth v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009). This is because, we explained, "[i]t would be nonsensical to assume that it was the intention of the General Assembly to have utilized two terms- 'possession' and 'control' - interchangeably." Id.
The concurrence acknowledges that "it is not at all unreasonable to conclude that, when criminalizing 'contact' with a minor, a legislature might want to prohibit either communicating with a minor in order to facilitate a sinister objective, the physical touching of a minor by an adult, or both." Concurring Opinion at 4-5 (emphasis added). Despite this concession, the concurrence insists that Section 6318's definition of "contact' "speaks only about forms of communication" and "says nothing-not one word-about physical contact between an adult and a minor." Id. at 5. In my view, such an interpretation can only stand if one ignores the placement of the disjunctive "or" in the operative language. See 18 Pa.C.S. § 6318(c) (defining "contacts" as "[d]irect or indirect contact or communication by any means, method or device, including contact or communication in person or through[, inter alia,] an agent or agency[.]" (emphasis added)). But as the concurrence is surely aware, doing so would offend the well-settled principles of statutory construction and render "direct or indirect contact" superfluous. See Ball v. Chapman, 289 A.3d 1, 26-27 (Pa. 2023) (Wecht, J.) (explaining that "the rule against superfluities . . . instructs courts to construe a statute's language so that effect is given to all its provisions, [and] so that no part will be inoperative or superfluous, void or insignificant" (footnote and internal quotation marks omitted)); Bindas v. Dep't of Transportation, 302 A.3d 644, 656 (Pa. 2023) (Wecht, J.) (acknowledging that courts "are not permitted to ignore the language of a statute, nor may we deem any language to be superfluous.").
In this regard, we must determine what the General Legislature meant when it used the terms "contact" and "communication." Communication is traditionally understood as "a verbal or written message." See www.merriam-webster.com/dictionary/communication, last accessed June 25, 2024. While contact can have several meanings, its use within the context of the statute indicates the legislature meant the term to mean "in/into contact with[.]" Merriam-Webster's Dictionary defines the idiom "come in/into contact with" as: (1) "to touch (something)[;]" and (2) "to see and begin communicating with (someone)[.]" See https://www.merriam- webster.com/dictionary/come%20in/into%20contact%20with, last accessed June 25, 2024. As the term "contact" must mean something different than the term "communicate," see Diodoro, supra, it is reasonable to include that the statute encompasses more than verbal or written communications.
Finding "contact" to mean "communicative behavior not otherwise covered by the Crimes Code[,]" see Majority Opinion at 2; Concurring Opinion at 8-9, the majority and concurrence list a litany of actions that they believe satisfy this definition. In my view, it is incongruent to conclude that physical touch, undoubtedly a form of communication and contact, must be excluded simply because other statutes criminalize similar actions.
With these important precepts in mind, I note that in the instant matter, the victim testified extensively at trial, stating, in relevant part, that prior to committing the sexual assaults, Strunk made contact with her by removing or pulling down articles of her clothing. See N.T., 7/22/21, at 61-62 (describing the moment that her pants and underwear were pulled down by Strunk prior to him penetrating her without her consent). In my view, this evidence, establishing that Strunk engaged in contact with the victim prior to the assaults themselves, was sufficient to prove each element of Section 6318.
This determination, which is similar to the Superior Court's findings, is also consistent with prior decisions that tackled the same question, see e.g., Commonwealth v. Velez, 51 A.3d 260, 267 (Pa. Super. 2012) (finding evidence sufficient to sustain conviction for unlawful contact with a minor where the "victim would not have had her pants removed and her [knees in the air] absent previous contact by [the a]ppellant, either verbal or physical" (emphasis added)) and gives the appropriate credence to each provision of the statute. See Chapman, supra. As such, I would hold that a violation of Section 6318 does not require proof of verbal communication but can be satisfied by evidence of physical contact with the victim beyond the contact that is encompassed in the predicate offense.
For these reasons, I dissent.
CONCURRING OPINION
WECHT, JUSTICE
The Majority concludes that the term "contact," as used in the statute prohibiting unlawful contact with a minor, refers only to "communicative behavior not otherwise covered by the Crimes Code." I agree. My path to that conclusion differs slightly from the Majority's.
See 18 Pa.C.S. § 6318.
Maj. Op. at 2.
Michael Strunk sexually assaulted a minor on at least three occasions. Over the course of these assaults, Strunk touched the victim's breasts with his hands, inserted his fingers into her vagina, and engaged in sexual intercourse with her on at least two occasions. For these acts, Strunk was convicted of two counts of sexual assault, one count of aggravated indecent assault, and three counts of indecent assault. That was not all. Strunk also was charged with, and convicted of, unlawful contact with a minor, even though:
Id. § 3125(a).
Id. § 3126. Strunk also was charged with, and convicted of, corruption of the morals of a minor. 18 Pa.C.S. § 6301. That conviction is not challenged in this appeal.
there was no evidence that [Strunk] verbally communicated anything to [the victim] or gave her nonverbal signals to bring about the sexual contact. [The victim] did not recall [Strunk] saying anything to her before or during any of the assaults and did not testify that he said anything sexual or related to the assaults during the intervening weeks and days between the assaults. [The victim] testified that immediately after the first assault, [Strunk] whispered something in her ear and that she could not remember what he said, but that it was not a threat or a request that she not tell her mother.
Commonwealth v. Strunk, 2023 WL 119395, at *4 (Pa. Super. 2023) (citations to the notes of testimony omitted). For his convictions, unlawful contact with a minor included, the trial court sentenced Strunk to seventeen to thirty-five years in prison. Specifically, the trial court sentenced Strunk to five to ten years in prison for the unlawful contact with a minor conviction. The court ordered that this sentence for unlawful contact run concurrently with Strunk's five to ten year sentence for aggravated indecent assault.
Under our Crimes Code, a person commits the offense of unlawful contact with minor when he:
18 Pa.C.S. § 6318(b) (grading unlawful contact of a minor as either a third-degree felony or the equivalent of the underlying offense for which the defendant contacted the minor, whichever is greater).
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 . . . 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).
(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).
Id. § 6318(a)(1)-(6).
We agreed to review this case in order to determine the meaning of "contact" with a minor for purposes of Section 6318. Does "contact" refer to verbal (or nonverbal) communications intended to induce or facilitate the commission of sexually-related acts with a minor? Or, as the Superior Court in this case ruled, does it also include physical "contacts," i.e., silently pulling down a victim's pants? Application of our rules of statutory interpretation leads inexorably to the former, not the latter, result.
The aim of statutory interpretation is to ascertain and give effect to the General Assembly's intent. The best indicators of that intent are the words that the legislature chose, so long as those words are "clear and free from all ambiguity." "When the words of a statute have a plain and unambiguous meaning," we are bound to apply them, as written, and we cannot disregard those words "under the pretext of pursuing [the statute's] spirit." When the statutory language is unclear, or when the language is susceptible to two reasonable interpretations, our canons of interpretation are available in order to assist courts us in discerning legislative intent.
Id. § 1921(b).
Snyder Bros., Inc. v. Pa. Pub. Util. Comm'n, 198 A.3d 1056, 1071 (Pa. 2018).
In order to glean the meaning of the term "contact," we are bound to examine the term "according to [its] common and approved usage." The problem is that "contact" is rather prevalent in our everyday vernacular and has numerous commonly understood meanings. "Contact" can refer to the physical touching of two objects, items, or forces. A physician might say that boiling water caused a third-degree burn as soon as it made "contact" with the patient's skin. A coach might describe football as a "contact" sport. Two people who bump into each other on a crowded street corner are said to have made "contact" with each other. "Contact" also can refer to various types of communications (or the lack thereof) or connections between people. When a person gets a toothache, he or she might "contact" a dentist. A disgruntled constituent often is encouraged to "contact" his or her representative or senator to lodge a complaint. People might say that, as time marched on, they lost "contact" with their college friends. "Contact" can refer to a messenger or inside source, i.e. a business "contact;" to a radio signal, i.e., NASA loses "contact' with a space shuttle during re-entry into the Earth's atmosphere; to information used to get in touch with a person, i.e., a school might ask for a parent's "contact" information; or to a person that can be reached in the event of an emergency, i.e., an employer might ask an employee for an "emergency contact."
Id. § 1903(a).
The point is that "contact" is not the type of term that, when used in a statute, automatically produces a singular meaning in a reader's mind. Indeed, it is not at all unreasonable to conclude that, when criminalizing "contact" with a minor, a legislature might want to prohibit either communicating with a minor in order to facilitate a sinister objective, the physical touching of a minor by an adult, or both. Thus, the term "contact" is ambiguous.
"A statute is ambiguous when there are at least two reasonable interpretations of the text." A.S. v. Pa. State Police, 143 A.3d 896, 905-06 (Pa. 2016).
Upon determining that the "words of [a] statute are not explicit," the focus of statutory interpretation shifts from examining the statutory language to ascertaining the General Assembly's intent in enacting that statute. Here, ascertaining the General Assembly's intent is not as complicated as the Majority suggests. In fact, the intent could not be more clear: the purpose of this statute is to criminalize communicating with a minor in order to facilitate illicit interactions. To find the support for this conclusion, one need look no further than the remainder of Section 6318.
The General Assembly's chosen definition of "contact" speaks volumes, as does what the General Assembly chose not to say. Section 6318 defines "contact" as any "[d]irect 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." This definition speaks only about forms of communication. It says nothing-not one word-about physical contact between an adult and a minor. Had the General Assembly intended contact to mean anything other than communication, it could have, and would have, said so in its definition of the term. It did not. Terms such as "touch" and "physical" do not appear anywhere in the statute.
The Dissent agrees that the term "contact," as used in this statute is ambiguous. Diss. Op. at 3. When a term is ambiguous, we "may go beyond the relevant texts and look to other considerations to discern legislative intent." Commonwealth v. Giulian, 141 A.3d 1262, 1268 (Pa. 2016). We consider, inter alia, "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." Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co., 131 A.3d 977, 984 (Pa. 2016); see also 1 Pa.C.S. § 1921(c). The Dissent eschews these considerations in favor of a blinkered focus upon a single word: "or". See Diss. Op. at 4-5. The Dissent maintains that the use of this disjunctive term can mean only one thing, that the General Assembly intended "contact" to refer to both physical contact and communication. It could. It also could mean that, by using the phrase "contact or communication by any means," the General Assembly intended to criminalize a broad array of communicative interactions between human beings. For instance, the General Assembly reasonably could have intended "contact" to mean electronic communications, i.e., contact, and simultaneously could have intended "communication" to mean verbal expressions, i.e., communication. The term "contact" can mean many different things, not only the two upon which the Dissent insists. Thus, the Dissent's assertion notwithstanding, my interpretation of the term does not render the word "or" superfluous. We cannot find an element of physical contact where no such term appears in the statute. See Snyder Bros., Inc. v. Pennsylvania Pub. Util. Comm'n, 198 A.3d 1056, 1086 (Pa. 2018) (Mundy, J., dissenting) (emphasizing that courts cannot add terms to a statute under the guise of interpreting that provision). Yet the Dissent does so. In focusing upon only one word in the statute, the Dissent ignores a host of other relevant interpretive factors, including (inter alia) the absence of any language suggesting a physical component, the inclusion of the provision governing communications with law enforcement officers, the fact that the jurisdictional aspect of the statute speaks only to communication, the absurd results that would follow the Dissent's interpretation, and the rule of lenity.
Section 6318 not only criminalizes communications with a minor; it also makes it illegal to contact "a law enforcement officer acting in the performance of duties who has assumed the identity of a minor." While the internet has provided countless benefits to society in recent decades, it also has created opportunities for some to engage in more nefarious behaviors. The internet provides a semi-anonymous platform for adults to chat with minors and, in some cases, to arrange for sexual encounters with those minors. In order to combat this escalating threat, law enforcement agencies direct undercover officers to pose as minors on the internet and to engage in online conversations with adults seeking sexual relations with minors. Through the use of these online communications, law enforcement can identify, and arrest, these online predators. In 2007, the General Assembly added the particular provision in question to the statute in order to ensure that individuals who believe that they are talking to a minor, but who actually are talking to a law enforcement officer, do not escape prosecution. By expanding the reach of the statute to include online communications with undercover law enforcement officers, the General Assembly made it very clear that the intent underlying Section 6318 is to criminalize communications, not sexual conduct, which conduct the General Assembly already has addressed in numerous other parts of the Crimes Code.
Id. § 6318(a).
See 2006, Nov. 29, P.L. 1567, No. 178, § 3 (effective Jan. 1, 2007).
The "concurrent jurisdiction" portion of Section 6318 provides additional proof. That portion of the statute affords jurisdiction to prosecute the crime to the Office of the Attorney General when a person "contacts a minor through the use of a computer, computer system or computer network." The General Assembly's use of the term "contact" here can be interpreted in only one way: as a form of communication. One cannot touch another person physically through a computer or computer network. It stands to reason that the General Assembly did not intend the term "contact" to mean one thing in one part of the statute and something completely different in another part. Once more, the General Assembly spoke only to communicative acts, not physical ones.
18 Pa.C.S. § 6318(b.1).
Every nook and cranny of Section 6318 tells the same tale. This is a crime meant to stop adults from communicating with minors for prurient purposes. The text of the statute allows no other interpretation. No other evidence exists that even suggests otherwise. And even if the statutory language does not slam the door entirely on a different interpretation, the rule of lenity, which requires that all "penal provisions" be strictly construed, does.
See 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Cousins, 212 A.3d 34, 39 (Pa. 2019) ("Under the rule of lenity, when a penal statute is ambiguous, it must be strictly construed in favor of the defendant.").
To conclude otherwise, i.e., to hold that "contact" must mean physical touching, would require us to ignore the facts that: (1) the statute refers exclusively to forms of communication; (2) the General Assembly included a provision governing discussions between an adult and an undercover officer posing as a child; (3) the jurisdictional provision speaks only to communications; and (4) perhaps most importantly, the statute does not use the word "touch" or "physical" anywhere. Such an interpretation lacks textual support, and also would produce odd, and clearly unintended, results.
The crime is structured like this. An adult must "contact" a minor "for the purpose of engaging" in one of the enumerated sexually-related categories of offenses. Consider now how this would work if "contact" means "touching." Imagine that an adult touches a child on the neck for prurient purposes. With that touch, the adult has committed the crime of indecent assault of a child. However, if "contact" means "touching," then that same touch simultaneously, and automatically, also constitutes unlawful contact with a minor. In other words, every time that an adult commits an indecent assault, he also necessarily commits unlawful contact with a minor. This is true as well of rape, statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, sexual assault, institutional sexual assault, and sexual assault by a sports official, each of which requires some form of physical touch. There is no indication in the statute that suggests, let alone mandates, that unlawful contact with a minor operates as a strict liability offense. The text of the statute proves the contrary. It requires the Commonwealth to prove that the adult acted "intentionally." The statute cannot both be a strict liability offense and contain a mens rea element. To construe "contact" to mean "touching" effectively would write the mens rea out of the statute, which we cannot do. Moreover, automatic and absolute liability is undoubtedly not what the legislature intended with this statute. Since due process principles generally require proof of mens rea, strict liability "offenses are generally disfavored, and, absent indicia of legislative intent to dispense with a mens rea, a statute will not be held to impose strict liability." No such indicia can be found anywhere in this statute. In fact, inclusion of a mens rea indicates the exact opposite.
See Commonwealth v. Gamby, 283 A.3d 298, 314 (Pa. 2022) (holding that the neck is an intimate part of the body for purposes of indecent assault).
Id. § 6318(a) ("A person commits an offense if the person is intentionally in contact with a minor...." (emphasis added)).
See 1 Pa.C.S. § 1921(a) ("Every statute shall be construed, if possible, to give effect to all its provisions.").
See Staples v. United States, 511 U.S. 600, 605-06 (1994).
Commonwealth v. Moran, 104 A.3d 1136, 1149 (Pa. 2014) (internal quotation marks omitted).
The text of the statute, the rule of lenity, and consideration of the clearly unintended consequences of a contrary interpretation provide conclusive evidence that the General Assembly intended "contact" to mean "communicative behavior not otherwise covered by the Crimes Code." The analysis should end here. However, the Majority goes further, relying upon a lengthy quote from a speech given by one (and only one) member of the Pennsylvania House of Representatives before the unlawful contact with a minor statute was passed. As I have explained in the past, resort to isolated statements of legislators in order to prove the broader intent of the legislative body that underlies a statutory provision is a flawed jurisprudential methodology. Doing so runs the risk of abdicating our duty to interpret the statutory language as written, and does not offer a reliable interpretive tool . "Our goal is not to ascertain and effectuate the intent of [Representative Matthew E. Baker];" it is to ascertain the intent of the legislative body as a whole. Predicating an interpretation, even slightly, upon statements of individual legislators "is not a reliable indication of the intent of the entire House," and it "tells us nothing whatsoever about the intent of the Senators who also voted" to create the crime. Such unreliable extrapolation of one representative's thoughts to the body as a whole is particularly unnecessary in a case like this, where overwhelming evidence of the General Assembly's intent can be found merely by reading the statute. Because the Majority is willing to indulge this species of "legislative history," I am unable to join its thorough opinion.
Maj. Op. at 2.
Id. at 16-19 (quoting Pa. H. J., 1997 Reg. Sess. 52 at 1750-51).
See, e.g., Harmon v. Unemployment Comp. Bd. Of Rev., 207 A.3d 292, 311-12 n.6&7 (Pa. 2019) (Wecht, J., concurring); Snyder Bros., Inc. v. Pa. Pub. Util. Comm'n, 198 A.3d 1056, 1081-84 (Pa. 2018) (Wecht, J., concurring).
Harmon, 207 A.3d at 312 (Wecht, J., concurring).
Id.
The term "legislative history" can mean two things. The type of "legislative history" that should be viewed with "healthy caution, skepticism, and discipline," Snyder Bros., 198 A.3d at 1083 (Wecht, J., concurring), ordinarily takes the form of committee reports or floor statements made by legislators in support of (or opposition to) a particular bill. The other form of "legislative history" attempts to ascertain a statute's intent by considering additions to, or subtractions from, the text of a statute over time. Unlike statements by individual legislators or committee staff reports, this latter form of "legislative history" can offer useful insight into the General Assembly's intent with regard to a particular statute.
I also part ways with the Majority inasmuch as it leaves Commonwealth v. Velez on the books. In that case, a woman opened a door to the family room in her home only to see her eight-year-old daughter lying on the bed naked from the waist down with the defendant's head between her legs. There was no evidence whatsoever that the defendant had spoken to the girl, or otherwise had communicated with her in order to facilitate the sexual conduct. Nonetheless, the Superior Court held that there was sufficient evidence to convict the defendant of unlawful contact with a minor. In ruling that the defendant had "contacted" the girl, the court held that it was "reasonable to infer that [the defendant] directed the victim, either verbally or nonverbally, to unclothe below the waist and to assume that pose."
51 A.3d 260 (Pa. Super. 2012).
Id. at 262 (citation omitted).
Id. at 267 (emphasis added).
Our decision today does not foreclose the possibility that a non-verbal action can suffice as proof of the communication necessary for unlawful contact with a minor. For instance, a nod of the head or pointing a finger can clearly convey a message. What today's ruling does foreclose is finding that a "contact" automatically occurs whenever an adult engages in a sexual encounter with a minor. The Commonwealth must prove some form of communication between the adult and the minor and that the adult's communication was made for the purpose of facilitating a sexual encounter. Velez demands no such thing. Instead, it allows juries and courts to infer automatically that a communication occurred upon no other proof than the fact that the defendant was engaged in a sexual act with a minor. But, no crime can be inferred by the commission of another. Unlawful contact with a minor is not a strict liability offense. It is a separate, substantive offense, with an express mens rea, and all of its elements must be proven beyond a reasonable doubt. I would overrule Velez here and now, as it relieves the Commonwealth of its burden to prove an essential element of unlawful contact with a minor.
Respectfully, for these reasons, I concur only in the result of the Majority's opinion.
Justice Donohue joins this concurring opinion.