Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

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.

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