Post-Strunk Application of 18 Pa.C.S. § 6318: Verbal Commands as “Communication” for Unlawful Contact with a Minor — Justice Mundy’s Concurrence/Dissent in Commonwealth v. Smith

Introduction

In Commonwealth v. Smith (Nos. 35 EAP 2024 and 36 EAP 2024), the Supreme Court of Pennsylvania addressed two distinct issues arising from convictions entered in the Philadelphia County Court of Common Pleas and affirmed by the Superior Court: (1) whether the trial court abused its discretion by declining to ask a proposed voir dire question, and (2) whether the evidence was sufficient to support two counts of unlawful contact with a minor under 18 Pa.C.S. § 6318.

Writing separately, Justice Mundy concurred with the Majority that there was no abuse of discretion in the trial court’s voir dire ruling. She dissented, however, from the Majority’s decision to vacate the Superior Court’s sufficiency affirmance on the unlawful contact counts and to remand for reconsideration in light of the Court’s intervening decision in Commonwealth v. Strunk, 325 A.3d 530 (Pa. 2024). In Justice Mundy’s view, Strunk already supplies the rule of decision and, properly applied to this record, confirms that the Commonwealth presented sufficient evidence because Smith issued explicit pre-assault verbal commands to his minor victims to facilitate the sexual offenses.

This commentary explains the opinion’s context, its engagement with Strunk, and the practical implications for charging and proving unlawful contact with a minor under § 6318.

Summary of the Opinion

Justice Mundy’s concurring and dissenting opinion takes two positions:

• Voir dire: She agrees with the Majority that the trial court did not abuse its discretion by refusing to pose Smith’s proposed voir dire question. The content of the question is not reproduced in the excerpt, but the standard of review and result are clear: no abuse of discretion.
• Unlawful contact with a minor (§ 6318): She disagrees with the Majority’s decision to vacate the Superior Court’s sufficiency ruling and to remand for reconsideration under Strunk. Applying Strunk to the trial evidence, she concludes that Smith’s pre-assault verbal directives—such as instructing a victim to get on a table before an anal rape, commanding a victim to place his penis in her mouth, and telling another victim to lick his penis—are direct communications “for the purpose of engaging in” enumerated sexual offenses under § 6318. Because the record already satisfies Strunk’s communication element, she would affirm the Superior Court in full without remand.

Statutory Framework and the Rule from Strunk

Section 6318(a) provides that a person commits unlawful contact with a minor “if the person is intentionally in contact with a minor . . . for the purpose of engaging in” specified sexual offenses. The statute defines “contacts” as “[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.” 18 Pa.C.S. § 6318(a) (as quoted).

In Strunk, the Court clarified that § 6318 is not a generic sexual assault statute—“other statutes accomplish that goal.” Instead, it targets communication intended to further sexual exploitation of children. The Court emphasized:

“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... 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, 325 A.3d at 542)

The Court reversed the unlawful contact conviction in Strunk because the record showed no communication—verbal, written, or nonverbal—used to facilitate the assaults; reliance on “physical contact” alone impermissibly conflated assaultive touching with § 6318’s communicative element. Id. at 543.

Analysis

Precedents and Authorities Cited

• Commonwealth v. Strunk, 325 A.3d 530 (Pa. 2024): The controlling decision defining § 6318 as criminalizing “communication designed to induce or otherwise further the sexual exploitation of children,” and drawing a clear line between the physical act of assault and pre-assault or facilitating communication. Physical touching, by itself, does not satisfy § 6318’s communication element.
• Commonwealth v. Roberts, 329 A.3d 1129 (Pa. 2025): Cited for the familiar sufficiency standard of review: evidence is viewed in the light most favorable to the Commonwealth as verdict winner, and all reasonable inferences are drawn in its favor.
• Lower court assessments: The trial court concluded that Smith’s verbal commands were “verbal precursors to illicit sexual acts” fitting § 6318 (Trial Ct. Op., 6/1/22, at 9), and the Superior Court similarly held that Smith’s admissions and directives to the victims constituted the type of communication contemplated by the statute. Commonwealth v. Smith, 115–116 EDA 2022, 2023 WL 4174154, at *4–5 (Pa. Super. 2023).

Application of Strunk to Smith

Justice Mundy emphasizes the dispositive difference between Strunk and Smith:

• In Strunk, there was no evidence that the defendant communicated with the minor for the purpose of furthering the sexual offenses; the Superior Court’s attempt to derive “communication” from “physical contact beyond the assaults themselves” was rejected.
• In Smith, by contrast, the Commonwealth presented direct evidence of pre-assault communications aimed at facilitating the sexual offenses. The record includes the defendant’s explicit commands:
  • He instructed a victim to “get on a table,” after which he anally raped her. (N.T., 6/23/21, at 127)
  • He instructed the same victim to “put his penis in her mouth” immediately before that act. (N.T., 6/23/21, at 131)
  • He instructed the second victim to “lick his penis”; she refused and ran away.
  These statements are not mere descriptions of the assault; they precede and facilitate the commission of enumerated sexual offenses and therefore qualify as “communication” within § 6318 as construed in Strunk.

Justice Mundy thus reasons that the record already reflects what Strunk requires: communication “for the purpose of engaging in specified prohibited conduct.” She underscores that these commands are classic examples of statements designed to induce or further the child’s sexual exploitation and therefore satisfy § 6318’s communicative element.

Why Justice Mundy Would Not Remand

The Majority vacated and remanded for the Superior Court to reassess sufficiency in light of Strunk. Justice Mundy finds remand unnecessary because:

• The trial and intermediate appellate courts already relied on pre-assault communications (verbal commands) to sustain § 6318—not on a “physical contact” theory foreclosed by Strunk.
• The record, viewed under the sufficiency standard articulated in Roberts, permits only one reasonable outcome on the § 6318 communication element: the Commonwealth introduced evidence of verbal directives that facilitated the sexual offenses.
• Judicial economy counsels against a remand where the controlling law can be applied straightforwardly to undisputed record facts demonstrating the element is met.

Notably, Justice Mundy acknowledges that she dissented in Strunk on a statutory-interpretation ground: she read “contact or communication” (joined by “or”) to mark distinct concepts, such that physical contact beyond the predicate assault could satisfy § 6318. Even so, applying the controlling majority rule in Strunk, she concludes the evidence here is sufficient based on the verbal commands alone.

Voir Dire Issue

Although the specific content of Smith’s proposed voir dire question is not described in the excerpt, Justice Mundy agrees with the Majority that the trial court did not abuse its discretion in refusing the request. Pennsylvania law vests trial courts with broad discretion over the scope and content of voir dire; reversal requires a showing that the limitation deprived the defendant of a fair and impartial jury. On this record, the Supreme Court found no such abuse (a point on which Justice Mundy concurs).

Impact and Forward-Looking Guidance

The combined force of Strunk and Justice Mundy’s analysis in Smith has several practical implications:

• Clarifying “communication” under § 6318:
  • Prosecutors must present evidence of communication—verbal, written, or nonverbal—intended to further an enumerated sexual offense. Physical touching alone does not suffice.
  • Immediate pre-assault verbal commands (e.g., “get on the bed,” “do X to me,” “take off your clothes”) are paradigmatic examples of “communication” for § 6318 purposes if the commands are meant to induce or facilitate the offense.
  • “Grooming” is not required. Strunk holds that any such purposeful communication falls within the statute, whether or not it resembles grooming in the colloquial sense.
• Charging decisions and trial proof:
  • Police and prosecutors should document and elicit testimony about what was said or signaled before and during the offense—text messages, social media, in-person commands, gestures, or other nonverbal cues that carry communicative content.
  • Defense counsel should probe whether the Commonwealth’s theory rests solely on physical contact; if so, Strunk supports an insufficiency argument.
• Appellate review post-Strunk:
  • Where the record contains pre-assault directives or other communications, appellate courts can apply Strunk without remand.
  • Where the lower courts relied on an impermissible “physical contact beyond the assault” theory and the record is ambiguous about communication, remand may be appropriate for a fresh sufficiency analysis keyed to Strunk.
• Scope of § 6318 relative to the predicate offense:
  • Completion of the underlying sexual offense is not necessary for a § 6318 conviction; the crime is committed once the defendant makes the requisite contact or communication with the purpose of engaging in the enumerated offense. This is illustrated by the second victim here, who refused and fled; the command itself is sufficient communication for § 6318.
• Voir dire discretion:
  • The Court’s disposition reaffirms broad trial-court discretion over voir dire. Absent a showing of prejudice or denial of a fair jury, refusal to ask specific defense-proposed questions will not constitute reversible error.

Complex Concepts Simplified

• Unlawful contact with a minor (§ 6318): This offense is about the defendant’s communications with a minor undertaken for the purpose of committing specific sexual crimes. Think of it as criminalizing the communicative step—the inducements, directions, or messages—used to set up or facilitate the sexual offense.
• Communication vs. physical contact: After Strunk, “communication” requires something more than the physical act of touching or assaulting. Words, gestures, signals, or messages intended to make the child comply or to further the plan count; mere touching, even if it precedes penetration, is not by itself “communication.”
• “Purpose” or intent element: The Commonwealth must show the defendant communicated with the specific purpose of engaging in an enumerated offense. Intent is often proven circumstantially—e.g., the content of commands, the timing, context, and what happened next.
• Sufficiency of the evidence: On appeal, courts ask whether the evidence—taken in the light most favorable to the Commonwealth—supports each element beyond a reasonable doubt. Judges do not reweigh credibility; they assess whether any rational factfinder could find the elements satisfied.
• Voir dire abuse of discretion: Trial judges control voir dire. An appellate court will not disturb that control unless the limitations imposed thwart the selection of a fair and impartial jury or otherwise cause prejudice.

Conclusion

Justice Mundy’s concurring and dissenting opinion in Commonwealth v. Smith applies the Supreme Court’s recent decision in Strunk to a concrete trial record and reaches a clear bottom line: where the Commonwealth presents evidence that a defendant issued explicit pre-assault verbal commands to a child to perform sexual acts, the “communication” element of § 6318 is satisfied. On that understanding, she would affirm the Superior Court’s sufficiency ruling on unlawful contact and sees no need for remand.

Although the Majority remands for reconsideration under Strunk, Justice Mundy’s opinion supplies an important, practical clarification: § 6318 does not demand protracted “grooming”; immediate verbal directives intended to facilitate the sexual offense suffice. This application-focused reading—faithful to Strunk’s separation of communication from assault—will guide prosecutors to develop clear proof of pre-assault communications, prompt defense counsel to test the Commonwealth’s theory for illicit reliance on mere physical contact, and assist courts in conducting more precise sufficiency analyses under the statute.