Philadelphia Criminal Defense Blog

Zak Goldstein 6/17/26 Zak Goldstein 6/17/26

PA Superior Court: A Brief Public Restraint Supports Felony False Imprisonment of a Minor, and a Holdout Juror Can Be Removed for “Refusing to Deliberate”

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Evans, 2026 PA Super 96, affirming a conviction for false imprisonment of a minor despite alarmingly little evidence. A jury in Montgomery County found that a 45-year-old man approached a 14-year-old girl at the Willow Grove Mall, took hold of her arm, and walked her against her will for about 36 seconds before she pulled free and ran. The Court held that the evidence was sufficient even though the restraint was short, happened in a crowded mall, and did not involve the girl screaming or struggling. The Court also upheld the trial court’s decision, after the jury deadlocked, to remove a juror who said she would no longer discuss the case and to replace her with an alternate. The new jury convicted. Judge Kunselman dissented.

The case establishes that a short detention of just a few seconds can potentially support a felony false imprisonment conviction (and Megan’s Law registration requirement) even when the complainant does resist in any way, and it gives a trial court room to remove a deadlocked juror who refuses to keep deliberating. Because the panel divided, this is the kind of published decision that will hopefully draw a successful request for reargument or a petition for allowance of appeal.

The Facts of the Case

On the evening of July 12, 2023, the 14-year-old complainant was shopping with three friends at the Willow Grove Mall in Montgomery County. She got upset with one of her friends, left the group, and rode a down escalator toward a first-floor jewelry store, listening to music and looking at her phone. At the bottom of the escalator, a 45-year-old man who had ridden down ahead of her waited for her, offered his arm, and told her to walk with him.

She testified that she did not go with him willingly. She said he grabbed her wrist, tucked it inside his arm, and “pressed down” so she could not pull away, and that he walked her away from the jewelry store she had wanted to visit. Asked why she did not just turn toward the store, she answered, “because I couldn’t get away from him, and that’s where he was walking.” He told her his name was Alex and that he was 25. She told him she was 13, a year younger than her real age, to make clear she was a child. She was frightened, and she started secretly recording him on her phone through Snapchat.

She testified that his grip was tight enough that she could not free herself, and that each time she pulled away he took hold again. After he loosened his grip, she pulled free and told him she was 13. She said he then asked “if he was too old for [her]” and kept trying to get her to take his arm again. She stepped back, yelled, and walked away, then ran, as a passing woman asked whether she needed help. The whole thing lasted about 36 seconds and moved her toward a corner of the mall near an exit that, the Court noted, led to the man’s parked car. She reported the encounter to mall security and then to the Abington Police, who arrested the man and charged him with false imprisonment of a minor and two counts of harassment.

The Ex Parte Questioning and Removal of a Juror

The case was tried in April 2024. The jury deliberated, came back to rewatch the videos and photographs to fix when the man took the girl’s arm, and later asked the court to explain what it means to “interfere substantially” with someone’s liberty. Early in the afternoon, the jury reported that it could not reach a unanimous verdict.

The court gave a Spencer charge, also called a dynamite charge, which tells a deadlocked jury to keep trying to reach a verdict with an open mind but without surrendering firmly held convictions. The jury went back to deliberate and then sent a note: “We are unable to reach a verdict. One juror respectfully but forcefully no longer wishes to discuss the aspects of this case.”

The court’s first reaction was understandably to declare a mistrial. The prosecutor disagreed, arguing that a juror who was refusing to deliberate should be struck for cause and replaced, because “[i]f they’re not deliberating, they’re not doing their job.” Defense counsel asked for a mistrial, arguing that the juror’s refusal to keep talking reflected her conscientious view of the evidence.

The judge then interviewed the juror, Juror No. 8, in the robing room, on the record but without counsel or the defendant present. The exchange was brief. After the juror said she felt like she was “in the principal’s office,” the court confirmed that she was the juror described in the note and that she no longer wished to discuss the case. The court discharged her and replaced her with an alternate, explaining that she was not a juror who simply would not change her mind: “She’s not sticking to her position. She’s refusing to deliberate anymore.” The new jury watched the video again and returned a guilty verdict the same day. The court later sentenced the man to three and one-half to ten years in prison and ordered him to register as a Tier I sex offender for fifteen years.

Removing a Juror Who Refuses to Deliberate

On appeal, the defense argued that the trial court should not have removed Juror No. 8 because the short colloquy never established whether she was refusing to deliberate or had deliberated and reached a firm conclusion she would not give up. The Superior Court rejected the argument and affirmed.

The Court applied the rule that the decision to discharge a juror rests in the sound discretion of the trial judge, who may substitute an alternate when the facts show that a juror can no longer perform the role. The trial judge, the Court observed, was in a unique position to evaluate Juror No. 8 in person. The jury had the case for about four hours, the court had instructed the jurors more than once to keep an open mind and consult with one another, and on that record the Court concluded that the judge could treat the juror’s refusal to discuss the case as a refusal to deliberate rather than a genuine deadlock requiring a mistrial.

The Court drew a line between two situations. A juror who deliberates and then holds to a minority view cannot be removed for that. A juror who will not keep deliberating can be. The two can look the same from the outside, and the short interview here did not explore why Juror No. 8 would not continue, which is the question that separates them. The court had also been ready to declare a mistrial before it placed her on the removable side of the line. Judge Kunselman dissented.

The Ex Parte Interview Issue Was Not Preserved

The defense also argued that questioning Juror No. 8 without counsel present violated the right to have counsel at a critical stage of trial. The Court did not reach the merits. It held the claim waived because counsel had not objected on that ground in the trial court and had instead pressed for a mistrial. The point for trial lawyers is important. An objection has to be specific and on the record when the issue comes up no matter how significant the issue.

“Substantial” Interference With Liberty

On sufficiency, the defense argued that the evidence did not show a substantial interference with the girl’s liberty, pointing to video that, in its view, showed her walking calmly at the man’s side rather than a child in distress. Viewing the evidence in the light most favorable to the Commonwealth, the Superior Court disagreed.

Drawing on earlier decisions, the Court explained that false imprisonment of a minor reaches restraints less serious than those required for kidnapping or unlawful restraint, and that the word “substantially” has its ordinary meaning, covering interference with liberty in an ample or considerable manner. The Court held that the girl’s passive reaction did not defeat the charge. It relied on her testimony that she was in “shock,” wrote that the jury could read her demeanor on the video as bewilderment rather than calm, and found nothing in the statute that excludes victims who “silently retreat inward in response to adults’ commandeering and restraints instead of lashing out in defiance.” The Court also held that the short length of the restraint did not take it out of the reach of the statute, citing decisions that found a substantial interference in a one-minute confinement of a child and in a brief grab of a 13-year-old, and distinguishing the kind of short, good-faith detention, such as a store owner questioning a suspected shoplifter, that may belong in civil court.

The Court rejected a related challenge to the jury instruction that defined “substantially.” It held that the charge tracked an earlier Superior Court decision and that, read as a whole, it created no real risk of confusion or prejudice even though it referred in passing to kidnapping and unlawful restraint without defining those crimes.

The Takeaway

The practical point is a serious one for anyone charged with this offense. A restraint that lasts only seconds, in a public place, can possibly support a felony conviction when the complainant is a child, and the complainant’s own account of her state of mind can carry the “substantial interference” element even where the video looks ambiguous. A conviction also requires fifteen years of sex-offender registration even though false imprisonment is not itself a sex crime and the Commonwealth does not have to prove a sexual motive. Reading “substantially” this broadly makes the line between the crime and a brief, lawful encounter harder to draw, and the registration consequence is severe.

The juror ruling may be an even bigger problem. After Evans, a trial court faced with a deadlock can potentially question a reported holdout and, if it finds she has stopped deliberating, replace her with an alternate instead of declaring a mistrial. That is a significant power, and the panel did not agree on it. Trial counsel unquestionably should have objected to the court doing that without counsel there. Until the Supreme Court takes up the question, counsel should make a complete record any time a court considers removing a juror during deliberations and should be ready to ask for a mistrial on the record rather than a substitution.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Lawyer Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/9/26 Zak Goldstein 6/9/26

PCRA Court Grants New Trial for Attorney Goldstein’s Client in Cumberland County Sexual Assault Case Due to Trial Counsel’s Failure to Call Character Witnesses

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, of Goldstein Mehta LLC recently won a new trial for a client in the case of Commonwealth v. J.R. In an opinion and order issued on June 9, 2026, the Cumberland County Court of Common Pleas granted J.R.’s Post-Conviction Relief Act petition, finding that trial counsel provided the ineffective assistance of counsel by failing to call character witnesses at J.R.’s trial on sexual assault charges. The court ordered a new trial and set unsecured bail, clearing the way for J.R.’s release after he had served nearly two years in state prison.

Commonwealth v. J.R.: The Allegations and the Trial

The case arose from a night out in March 2023. J.R. and three co-workers went out drinking after their shifts ended at the restaurant where they worked. At the end of the night, one co-worker drove the group home in his small two-door car. A second co-worker rode in the front passenger seat, while J.R. and the complainant sat in the back seat. The complainant became heavily intoxicated over the course of the evening and later alleged that J.R. forced the complainant to engage in sexual contact, including oral sex, during the drive. The front seat passenger testified that she heard the complainant say “help me” and turned to see J.R. holding the complainant’s hand against him. The driver testified that he did not observe any sexual contact. After J.R. was dropped off, the complainant disclosed the alleged assault to the two other co-workers, and they went to the police the following morning.

J.R. was arrested and proceeded to a jury trial in May 2024. He took the stand in his own defense and admitted that sexual contact occurred, but he testified that it was entirely consensual. The jury found him guilty of involuntary deviate sexual intercourse, sexual assault, and related offenses, and the trial court sentenced him to four and a half to nine years’ incarceration. The Superior Court affirmed the judgment of sentence on direct appeal in December 2025.

The PCRA Petition

J.R. retained Attorney Goldstein, who filed a timely Post-Conviction Relief Act petition on his behalf. The petition raised two claims of ineffective assistance of counsel: first, that trial counsel failed to impeach the driver, a Commonwealth witness, with his extensive history of crimen falsi convictions, and second, that trial counsel failed to call character witnesses on J.R.’s behalf even though several witnesses were available and willing to testify to his reputation for peacefulness and non-violence. The court held an evidentiary hearing in May 2026 at which trial counsel testified.

To win a new trial based on the ineffective assistance of counsel, a PCRA petitioner must prove that the underlying claim has arguable merit, that counsel had no reasonable strategic basis for the act or omission, and that counsel’s error prejudiced the petitioner, meaning there is a reasonable probability that the outcome of the trial would have been different. Under the Pennsylvania Supreme Court’s decision in Commonwealth v. Sneed, where the claim involves the failure to call a witness, the petitioner must also show that the witness existed, that the witness was available and willing to testify for the defense, and that counsel knew of or should have known of the witness.

The Court’s Ruling: Character Witnesses Were Critical in a He Said/She Said Case

At the hearing, it was uncontested that character witnesses existed, that they were available and willing to testify for the defense, and that trial counsel knew about them. Trial counsel testified that he chose not to call them because he did not want to distract the jury from his trial strategy, which was to argue that it would have been impossible for J.R. to sexually assault the complainant in the back seat of a small, moving car. He also acknowledged that he never consulted with J.R. about the decision.

The PCRA court rejected that explanation. As the court observed, the defense actually presented at trial was not impossibility. J.R. testified that the sexual contact was consensual, which made the trial a classic he said/she said credibility contest between J.R. and the complainant. Trial counsel himself recognized that the verdict would turn on the jury’s assessment of those two witnesses, yet he neither consulted his client about ways to bolster his credibility nor called any of the available character witnesses who could have done so. Calling character witnesses could not have undermined the defense theory because the defense theory hinged entirely on J.R.’s credibility.

Pennsylvania law treats character evidence as substantive evidence, not a mere formality. Evidence of a defendant’s good reputation may, by itself, create a reasonable doubt and require a verdict of not guilty. The principle carries particular weight in sexual assault cases. As the Pennsylvania Supreme Court explained in Commonwealth v. Weiss, in a case “where there are only two direct witnesses involved, credibility of the witnesses is of paramount importance, and character evidence is critical to the jury’s determination of credibility.” Relying on Weiss and the Superior Court’s recent decision in Commonwealth v. Alceus, the court concluded that trial counsel had no reasonable basis for failing to call character witnesses and that J.R. suffered prejudice as a result.

The court denied the separate claim concerning the impeachment of the driver. Although it agreed that the claim had arguable merit because trial counsel knew about the crimen falsi convictions and chose not to use them, the court found that counsel had a reasonable strategic basis for that decision and that no prejudice resulted. The driver did not witness the alleged assault, and his testimony was cumulative of the testimony of the other Commonwealth witnesses. The new trial was therefore granted on the character witness claim.

The Result

The court granted the PCRA petition and ordered a new trial. Because J.R. had previously posted $250,000 bail and had already served approximately twenty-two months of his fifty-four month minimum sentence, the court set bail at $250,000 unsecured pending the retrial, with the condition that he have no contact with the complainant. That ruling allows J.R. to be released from state prison while the case is pending.

This decision highlights the critical role that character evidence plays in Pennsylvania criminal trials. In a sexual assault case that comes down to the word of the complainant against the word of the defendant, evidence of the defendant’s reputation for peacefulness and non-violence may be the only corroboration the defense can offer, and the law recognizes that it may by itself create a reasonable doubt. Trial counsel must investigate potential character witnesses, consult with the client about whether to call them, and have a real strategic reason before leaving that evidence on the table. When counsel fails to do so, the PCRA may provide a path to a new trial.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak Goldstein 5/12/26 Zak Goldstein 5/12/26

PCRA Court Grants New Trial for Attorney Goldstein’s Client in Internet Contraband Case Following Successful Appeal

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, has secured a new trial for his client, M.D., in a long-running child pornography case in the Philadelphia Court of Common Pleas. Following the Pennsylvania Superior Court’s July 2025 decision reversing the denial of M.D.’s Post Conviction Relief Act petition and remanding the matter, the PCRA court entered an order on April 10, 2026 granting PCRA relief and awarding M.D. a new trial. The PCRA court also granted bail pending any further appeals, meaning that after years of incarceration on the underlying conviction, M.D. will be released from custody while the case proceeds.

The Commonwealth filed a notice of appeal from the order granting PCRA relief on April 22, 2026, and the PCRA court issued a supplemental opinion on April 27, 2026 explaining its decision.

Background

M.D. was convicted at a second jury trial of dissemination of child pornography, fifteen counts of possession of child pornography, and one count of criminal use of a communication facility. His first trial had ended in a mistrial because the jury could not reach a unanimous verdict. The trial court sentenced him to an aggregate term of five to ten years’ incarceration, followed by seven years of reporting probation. The Superior Court affirmed the judgment of sentence on direct appeal, and the Supreme Court of Pennsylvania denied allowance of appeal.

M.D. then filed a timely PCRA petition raising claims of ineffective assistance of trial and appellate counsel. The PCRA court appointed new counsel, who amended the petition, and the PCRA court ultimately dismissed it. M.D. then retained Attorney Goldstein for the appeal from the denial of his first PCRA petition.

On the first appeal, Attorney Goldstein raised layered claims of ineffective assistance — arguing both that trial counsel mishandled key aspects of the defense and that initial PCRA counsel failed to raise those issues in the amended PCRA petition. In particular, PCRA counsel had not argued that trial counsel was ineffective for repeatedly informing the jury that, when the police executed a search warrant at his home and read him Miranda warnings, M.D. declined to give a statement, refused to sign the Miranda waiver, and asked to speak with a lawyer.

The Superior Court initially remanded the case for an evidentiary hearing on the layered claims of ineffectiveness. On remand, the PCRA court heard testimony from trial counsel and from prior PCRA counsel and again denied the petition. Attorney Goldstein appealed a second time.

The Superior Court’s July 2025 Decision

In a non-precedential decision filed July 28, 2025, the Superior Court reversed in part and remanded. The Court held that M.D. had established all three prongs of the ineffective assistance test as to trial counsel’s repeated references to his pre-arrest, post-Miranda silence.

The Court explained that trial counsel’s injection of M.D.’s silence into the case was not “circumspect” or limited to its context. Instead, trial counsel referenced M.D.’s silence in her opening statement and twice elicited testimony about it on cross-examination of officers. Although trial counsel testified that her strategy was to portray M.D.’s silence as the conduct of an innocent person who understood the court system and reasonably wanted to consult a lawyer, the Superior Court rejected that strategy as unreasonable. The Court reasoned that omitting any mention of his silence offered a substantially greater chance of success, and that “most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt,” citing Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982).

On prejudice, the Superior Court found a reasonable probability that the jury inferred guilt from M.D.’s invocation of his right to remain silent while police executed a search warrant for devices suspected of containing child pornography. The Court concluded that confidence in the verdict was undermined and remanded for the PCRA court to determine whether M.D. had also satisfied the prongs of ineffectiveness as to initial PCRA counsel for failing to raise the issue.

The Commonwealth then filed a petition for allowance of appeal in the Pennsylvania Supreme Court. The Supreme Court denied that petition on February 6, 2026, leaving the Superior Court’s decision intact.

The PCRA Court Grants a New Trial on Remand

On remand, the PCRA court was tasked with deciding whether initial PCRA counsel had been ineffective for failing to raise trial counsel’s improper references to M.D.’s silence in the amended PCRA petition. In a supplemental opinion filed April 27, 2026, the PCRA court explained that, in light of the Superior Court’s holding that the underlying claim against trial counsel was meritorious, it was constrained to find that initial PCRA counsel was ineffective as well.

The PCRA court reasoned that because the Superior Court had already determined that trial counsel had no reasonable basis for her strategy and that M.D. was prejudiced as a result, initial PCRA counsel likewise had no reasonable basis for omitting that claim from the amended petition, and M.D. had necessarily satisfied the prejudice prong of his layered claim. The PCRA court therefore granted PCRA relief and ordered a new trial.

Equally important for M.D. and his family, the PCRA court also granted bail pending any further appeals. As a result, M.D. is set to be released from state prison while the Commonwealth’s appeal proceeds, rather than continuing to serve a sentence that has now been vacated.

Why This Result Matters

This case illustrates several important points about Pennsylvania post-conviction practice. First, layered claims of ineffective assistance — those that allege both that trial counsel was ineffective and that prior PCRA counsel was ineffective for failing to raise the underlying claim — can succeed even after a PCRA petition has already been litigated and denied. A petitioner who is represented by new counsel on appeal from the denial of a first PCRA petition may be able to preserve and litigate claims that earlier counsel overlooked.

Second, the case underscores how dangerous it can be for defense counsel to introduce evidence of a client’s post-Miranda silence, even when counsel believes the silence supports an innocence narrative. Pennsylvania courts have long recognized that references to an accused’s exercise of the right to remain silent may jeopardize the presumption of innocence. Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (en banc), aff’d, 104 A.3d 430 (Pa. 2014); Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982). As the Superior Court emphasized here, lay jurors are more likely to view an invocation of the Fifth Amendment as a badge of guilt than as a sign of innocence.

Finally, the bail order is a meaningful and often overlooked aspect of post-conviction litigation. When a PCRA court grants a new trial, the conviction and sentence are vacated. Once those have been vacated, the trial court has discretion to set bail pending any appeal by the Commonwealth. Continued incarceration is not automatic, and in many cases it is appropriate for the client to be released while the appellate process plays out. This is important given that a Commonwealth appeal from an order granting a new trial can take years.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania?

If you are facing criminal charges, under investigation, or considering an appeal or PCRA petition, our firm can help. Goldstein Mehta LLC has successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, including in cases involving Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client, and we frequently spot issues and defenses that other lawyers miss. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/11/26 Zak Goldstein 5/11/26

PA Superior Court Continues Eliminating Strunk’s Limits on the Unlawful Contact With a Minor Statute

The Pennsylvania Superior Court has decided the case of Commonwealth v. Smith, 2026 PA Super 69, affirming two convictions for unlawful contact with a minor on remand from the Pennsylvania Supreme Court. The Supreme Court had sent the case back so the Superior Court could reconsider it in light of Commonwealth v. Strunk, the 2024 decision that narrowed 18 Pa.C.S.A. § 6318 to communications designed to induce or otherwise further the sexual exploitation of a child. On remand, the Superior Court read Strunk to permit a Section 6318 conviction based on a few words the defendant spoke during the physical assault itself. That reading is hard to square with what the Supreme Court actually said in Strunk, and it deserves another look from the Supreme Court.

The Facts of Smith

The defendant was a frequent visitor to a Philadelphia home where two young girls lived. He was a close family friend, and the children referred to him as an uncle. Both girls testified to repeated sexual abuse in the home over a period of years. Some of those acts involved no communication at all. A few of them involved short verbal directives: the defendant told both girls to perform oral sex on him, and on one occasion he told one of the girls to lie down on a table in the basement before he assaulted her.

A jury convicted the defendant of multiple sexual offenses against both girls, including two counts of unlawful contact with a minor under Section 6318. The trial court imposed an aggregate sentence of 30 to 60 years’ incarceration followed by 10 years’ probation.

What Strunk Actually Held

Strunk was a real change in the law. For years, the Superior Court had treated “contact” under Section 6318 broadly enough that the statute essentially functioned as an add-on count whenever a defendant physically touched a child in a sexual way. The Supreme Court rejected that reading. It held that Section 6318 does not criminalize inappropriate touching of minors at all—other statutes do that—and that the statute is fundamentally about communication designed to induce or otherwise further the sexual exploitation of a child. The Court described Section 6318 as essentially an anti-grooming statute. The point of the law, in other words, is to capture conduct that leads up to an assault: the manipulation, the isolation, the inducement, and to give prosecutors a charge for that preparatory conduct that the rest of the Crimes Code does not otherwise reach.

In Strunk itself, the conviction was reversed because there was no communication. The defendant assaulted the victim while she was asleep or feigning sleep and never spoke to her. The Supreme Court held that the jury would have had to speculate to find any communicative act, and Section 6318 therefore did not apply.

The Superior Court’s Decision in Smith

On remand, the Superior Court affirmed the unlawful contact convictions. It distinguished Strunk on the ground that, unlike the sleeping victim in Strunk, the children here heard the defendant say a few words to them. He told them to perform oral sex. He told one of them to lie on the table. According to the Superior Court, those statements were communications designed to induce or further the sexual exploitation of the children and were therefore enough to support the Section 6318 convictions, even though each statement was made in the middle of the very assault it supposedly induced.

The Court also rejected the defendant’s argument that a Section 6318 communication has to be temporally separated from the assault itself. It read recent Superior Court cases, including one where a defendant screamed at his daughter to come into a trailer before assaulting her, and another where a defendant told a teenage passenger to sit in the front seat of his car before allegedly assaulting her, as standing for the proposition that any communication that places a victim in position for an assault is enough, regardless of when it is made.

Why This Reading of Strunk Is a Problem

The whole point of Strunk was that Section 6318 is not supposed to be a free additional count tacked on to every sexual assault of a child. The statute is meant to capture the kind of conduct that precedes and sets up the assault—grooming, inducement, manipulation, getting the victim alone or in a particular place. That kind of conduct is genuinely separate from the act of assault itself, and that separation is what makes Section 6318 something more than a redundant add-on to the underlying sex offense.

A statement made during the assault such as telling a child to lie down at the moment the assault is happening, or demanding oral sex as part of the act, does not fit that description. It is the offense, not a communication designed to facilitate the offense. As the defendant pointed out in his supplemental brief, if the verbal demand to perform oral sex is enough to support a separate Section 6318 conviction, then so is every other utterance during every sexual assault, and the statute really does become the add-on offense Strunk said it was not. That argument deserved more weight than the Superior Court gave it.

There is a meaningful difference between the cases the Superior Court cited and what happened in Smith. The screamed directive to come into a trailer and sleep in the defendant’s bed at least occurred before the assault began and arguably moved the victim into a place where the assault could happen, and sleeping in the bed is potentially sexual. A statement made in the middle of penetrating a child is not facilitating anything; it is part of what is being done. The Superior Court is treating those two situations the same, and in doing so it is collapsing the line that Strunk tried to draw.

The Supreme Court Should Take Another Look

The Supreme Court warned in Strunk itself that the decision did not resolve every question about what communications qualify under Section 6318, and the Court invited the lower courts to develop the doctrine. The Superior Court’s answer so far has been to read Strunk as narrowly as possible. The court is preserving Section 6318 essentially intact in any case where a defendant said anything at all to a victim. That cannot be what the Supreme Court meant. The right rule, and the one that actually follows from Strunk, is that the communication has to be separate from the assault. It must be a step taken to bring the assault about, not the assault itself.

Until the Supreme Court takes one of these cases and says so clearly, defense counsel should keep pressing the point. Strunk is still useful: where there is no communication at all, Section 6318 still does not apply. And where the only “communication” the Commonwealth can point to is something the defendant said in the middle of the physical act, the sufficiency argument is a real one, even if, for now, the Superior Court is not buying it.

Facing Criminal Charges? We Can Help.

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.