Post-Strunk Application of §6318: Verbal Pre‑Assault Commands as “Communication” — Justice Mundy’s Concurrence/Dissent in Commonwealth v. Smith (Pa. 2025)

Introduction

This commentary examines Justice Mundy’s concurring and dissenting opinion in Commonwealth v. Smith, Nos. 35 & 36 EAP 2024, decided by the Supreme Court of Pennsylvania (Eastern District) on September 25, 2025. The case arose from James Smith’s convictions in the Philadelphia County Court of Common Pleas for multiple sexual offenses, including two counts of unlawful contact with a minor under 18 Pa.C.S. § 6318—one count for each of two victims. The Superior Court affirmed the convictions on June 26, 2023, and the Supreme Court granted allowance of appeal.

Two clusters of issues reached the Supreme Court: (1) whether the trial court abused its discretion in refusing to ask a defense-proposed voir dire question; and (2) whether the evidence was sufficient to sustain Smith’s convictions for unlawful contact with a minor in light of the Court’s 2024 decision in Commonwealth v. Strunk, 325 A.3d 530 (Pa. 2024), which clarified the “contact”/“communication” element of § 6318. The Majority (per Donohue, J.) concluded there was no abuse of discretion on voir dire but vacated and remanded the unlawful-contact counts to the Superior Court for reconsideration under Strunk.

Justice Mundy concurred in the voir dire ruling but dissented from the remand. In her view, Strunk already supplies the governing rule, and the record in Smith—featuring Smith’s explicit verbal commands immediately preceding the sexual assaults—amply satisfies § 6318, making a remand unnecessary.

Summary of the Opinion

Voir dire: Justice Mundy agrees with the Majority that the trial court did not abuse its discretion in refusing to ask Smith’s proposed voir dire question.
Unlawful contact with a minor (§ 6318): Justice Mundy disagrees with the Majority’s decision to vacate and remand. Applying Strunk, she concludes the trial record contains direct evidence of pre‑assault verbal communication “for the purpose of” facilitating the assaults, which satisfies § 6318 as a matter of law. She would affirm the Superior Court’s sufficiency ruling.

Analysis

Statutory framework: § 6318 (Unlawful contact with a minor)

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).

Precedents and prior decisions shaping the outcome

Commonwealth v. Strunk, 325 A.3d 530 (Pa. 2024)

Strunk controls the interpretation of § 6318’s “contact”/“communication” element. In Strunk, the defendant sexually assaulted a minor three times, beginning each assault by fondling, removing clothing, and escalating to penetration. There was no evidence he spoke to the victim before any assault. The Superior Court affirmed his § 6318 conviction, reasoning that nonverbal conduct “beyond the assaults themselves” sufficed. The Pennsylvania Supreme Court reversed.

The Court emphasized that § 6318 “does not criminalize inappropriate touching of minors; other statutes accomplish that goal.” Rather, it “is perhaps best described as an anti-grooming statute,” though “even that description is imperfect.” The critical inquiry is whether there is “communication designed to induce or otherwise further the sexual exploitation of children.” The Court warned the Superior Court had “conflated verbal, written, and other forms of non-verbal communicative efforts to mean any form of physical contact,” and it reaffirmed that the statute targets “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.” Importantly, “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.”

Applying that rule, Strunk’s conviction for unlawful contact could not stand because the record lacked evidence he “communicated with the victim to facilitate his assaults.” The pre-assault conduct was touching, not communication.

Justice Mundy’s prior dissent in Strunk

Justice Mundy notes that she dissented in Strunk. Focusing on the statutory phrase “contact or communication by any means,” she read the disjunctive “or” to signal that “contact” must reach beyond verbal/written communication, thereby encompassing physical contact preceding the sexual act (e.g., removing clothing) to satisfy § 6318. She would have upheld Strunk’s conviction on that basis. Nonetheless, in Smith she applies Strunk’s majority rule as controlling authority.

Commonwealth v. Roberts, 329 A.3d 1129 (Pa. 2025)

Justice Mundy cites Roberts for the sufficiency-of-the-evidence standard: reviewing courts must view the evidence in the light most favorable to the Commonwealth as the verdict winner and draw all reasonable inferences in its favor.

The trial court and Superior Court in Smith

Trial court: It relied on Smith’s pre-assault statements as “verbal precursors to illicit sexual acts,” finding they “clearly demonstrate[d] the type of communication and contact covered under the statute.”
Superior Court: It likewise concluded that Smith’s own admissions—asking both victims to perform oral sex, and telling one to lie on a table just before assaulting her—“demonstrate the type of communication contemplated by the statute.” The panel further rejected the overbreadth concern that “nearly every” child sexual assault would automatically yield a § 6318 conviction, emphasizing the statute’s separate requirement that the communication be “for the purpose of engaging in specified prohibited conduct.” Commonwealth v. Smith, 115–116 EDA 2022, 2023 WL 4174154, at *4–5 (Pa. Super. 2023).

Justice Mundy’s legal reasoning

Justice Mundy reads Strunk to require proof of “communication” designed to facilitate the predicate sex offense—communication that is distinct from “physically approaching the minor and the physical contact of the sexual act itself.” Applying that test to this record, she identifies multiple instances of verbal communication immediately preceding the assaults:

Smith instructed one victim to get on a table, after which he anally raped her.
He instructed that same victim to put his penis in her mouth just before that act occurred. (N.T., 6/23/21, at 127, 131.)
He instructed the second victim to lick his penis; she refused and ran away.

These commands are verbal communications “for the purpose of” committing the enumerated offenses—exactly the sort of facilitative communication Strunk requires. In her view, because Strunk already supplies the rule and the Smith record squarely meets it, a remand for re-application is unnecessary. She faults the Majority for a “cursory review” of the issue without reciting the relevant facts, and she would affirm the Superior Court’s sufficiency ruling outright.

How Strunk shaped the outcome (and the divide in Smith)

Strunk narrowed § 6318’s scope to communicative conduct—verbal, written, or nonverbal—intended to further sexual exploitation, and expressly excluded mere pre-assault touching. Justice Mundy’s opinion accepts that controlling rule and distinguishes Smith on the facts: unlike Strunk, the Commonwealth proved express verbal commands that facilitated the assault, which constitute “communication” under § 6318. The Majority nevertheless vacated and remanded for the Superior Court to apply Strunk, signaling a preference for further intermediate review rather than deciding sufficiency at the Supreme Court level on the existing record.

Voir dire: abuse-of-discretion review

On voir dire, Justice Mundy simply concurs with the Majority that the trial court did not abuse its discretion in declining a specific defense-proposed question. The opinion does not elaborate, but her concurrence reflects the well-settled principle that trial courts have broad discretion over the scope and content of voir dire, reversible only for an abuse of that discretion.

Impact and prospective significance

For prosecutors and investigators

Proof focus: Post-Strunk, prosecutors should marshal evidence of communication—words, gestures, or other communicative acts—that precede and facilitate the assault. Justice Mundy’s application in Smith highlights that even immediate pre-assault commands (e.g., “get on the table,” “put [my] penis in your mouth”) satisfy the element.
Charging decisions: Where evidence shows such commands or instructions, § 6318 charges are more robust. Conversely, cases with only non-communicative touching (as in Strunk) are vulnerable to sufficiency challenges.

For defense counsel

Line-drawing under Strunk: The defense will test whether alleged statements are truly “communication” separate from “physically approaching” and the sexual act, or merely part of the assault itself. Context and timing are crucial.
Overbreadth concerns: While the Superior Court rejected the claim that § 6318 would automatically attach to “nearly every” assault, defense counsel can argue absence of a distinct facilitative communication in close cases.

For trial courts and juries

Jury instructions: Strunk’s formulation guides the element—the Commonwealth must prove communicative conduct intended to further an enumerated sex offense, beyond mere approach and the physical act.
Fact finding: Verbal commands immediately preceding the act, directing the child to assume positions or perform sexual acts, are powerful indicia of the requisite communication and purpose.

For appellate practice

Remand vs. resolution: The Smith Majority’s remand suggests a prudential preference for intermediate re-application of fresh, controlling authority (Strunk), even where the record may allow direct affirmance. Justice Mundy’s dissent underscores a countervailing interest in judicial economy where the Strunk rule is straightforwardly met.

Complex Concepts Simplified

Unlawful contact with a minor (§ 6318):
- Elements include intentional “contact” with a minor “for the purpose of” engaging in an enumerated sexual offense.
- “Contacts” means “contact or communication by any means,” but after Strunk, the focus is on communicative conduct—verbal, written, or nonverbal signals—intended to facilitate the offense. Mere pre-assault touching does not suffice.
“Anti-grooming” label:
- Strunk described § 6318 as perhaps an anti-grooming statute, though the fit is imperfect. The key is any communication designed to induce or further sexual exploitation, whether or not it resembles classic grooming.
“For the purpose of”:
- This is a specific-intent component. The communication must be intended to further the commission of an enumerated sex offense. The Superior Court in Smith emphasized this as a limit on overbreadth.
Sufficiency of the evidence:
- On appeal, courts view the evidence in the light most favorable to the Commonwealth (the verdict winner) and draw reasonable inferences in its favor.
Abuse of discretion in voir dire:
- Trial courts have broad control over voir dire. Appellate courts will not disturb those decisions absent an abuse of discretion.
Vacatur and remand:
- When an appellate court vacates a judgment and remands, it nullifies the lower court’s decision on specified issues and returns the case for further proceedings consistent with the appellate court’s guidance.

Conclusion

Justice Mundy’s concurrence/dissent in Commonwealth v. Smith is an important, pragmatic application of the Supreme Court’s recent decision in Strunk. Accepting Strunk’s controlling rule that § 6318 targets “communication” designed to facilitate sexual offenses—and not mere touching—she highlights that explicit pre‑assault commands to a child (to assume positions or to perform sexual acts) are quintessential facilitative communications that satisfy the statute. On that basis, she would affirm the Superior Court’s sufficiency ruling rather than remand.

Two takeaways stand out. First, after Strunk, § 6318 liability turns on proof of communicative conduct with the requisite purpose. Second, Smith illuminates how immediate, directive statements preceding an assault fit that definition, distinguishing cases like Strunk where no communication preceded the touching. Although the Majority chose to vacate and remand for the Superior Court to revisit the issue in light of Strunk, Justice Mundy’s opinion offers a clear analytical template for courts and litigants: where the record shows pre‑assault verbal commands intended to bring about the sexual offense, the “communication” element of § 6318 is satisfied.

Note: This commentary analyzes Justice Mundy’s concurring/dissenting opinion and the portions of the record and precedent quoted therein. The Majority’s full rationale is not reproduced in the provided text, and the binding effect on remand will be determined by the Superior Court’s application of Strunk to the facts of Smith.