Unlawful Contact with a Minor – Required element of “Communication”
Commonwealth v. Strunk, 2023 WL 119395 (Pa. Super. 2023) (unreported), allocatur granted Oct. 17, 2023, appeal docket 96 MAP 2023
Strunk was convicted of committing three separate assaults on a girl who was 16 and 17 years old at the time (Victim). At issue in this case is his conviction for the crime of “unlawful contact with a minor,” a crime that requires “communication by any means” with the minor for the purpose of engaging in a sexual offense.
Appellant, who was Victim’s mother’s paramour, was living with Victim and Victim’s mother at the time. In the first incident, Victim aa asleep and awoke as a result of Appellant’s fondling of her breast, but she did not speak and pretended to still be asleep. In the second, Victim was medicated after having her wisdom teeth removed and tried to scream during the assault but could not because her mouth was full of gauze. In the third, Victim pretended to be asleep and the assault ended when her mother entered the room.
On appeal to the Superior Court, Appellant argued that the evidence at trial was insufficient to convict him of unlawful contact with a minor because there was no evidence that he communicated with Victim to accomplish any of the sexual assaults. Acknowledging that it has in previous cases stated that the crime of “unlawful contact with a minor” is best understood as “unlawful communication with a minor” Superior Court summarized the law concerning the “contact” element of the crime:
The Crimes Code provides that a person commits the crime of unlawful contact with a minor
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, 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:
(a) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
18 Pa.C.S. § 6318(a). The statute defines the contact required as an element of this offense as:
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).
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. Commonwealth v. Davis, 225 A.3d 582, 587 (Pa. Super. 2019); Commonwealth v. Leatherby, 116 A.3d 73, 79-81 (Pa. Super. 2015).
Even though the statute is titled “unlawful contact with a minor,” it is best understood as “unlawful communication with a minor.” By its plain terms, the statute prohibits the act of communicating with a minor for enumerated sexual purposes.
Commonwealth v. Rose, 960 A.2d 149, 152-53 (Pa. Super. 2008).
This element of communication is sufficiently proven to support an unlawful contact with a minor conviction where there is evidence that the defendant engaged in nonverbal communication with the minor to bring about the sexual contact or evidence that he engaged in physical contact with the minor separate from the sex crime itself to facilitate the sex crime. Leatherby, 116 A.3d at 80-81 (not responding to minor’s knock on door so that she would enter and find him naked constituted nonverbal communication sufficient to support unlawful contact with minor conviction); Commonwealth v. Velez, 51 A.3d 260, 267 (Pa. Super. 2012) (evidence that minor was naked from the waist down and had her knees up was sufficient to prove verbal or nonverbal communication to cause minor to be in that position and state of undress)….
Slip op. at 3-4.
Applying this standard, Superior Court agreed with Strunk that “there was no evidence that Appellant verbally communicated anything to Victim or gave her nonverbal signals to bring about the sexual contact.” Id. at 4. However, relying on its previous decision in Velez, where evidence that minor was naked from the waist down and had her knees up was deemed sufficient to prove verbal or nonverbal communication to cause minor to be in that position and state of undress, Superior Court held that the facts in Strunk’s assaults were sufficient to find the element of communication:
Victim, however, testified that Appellant removed or pulled down her clothing in order to commit the sexual assaults and aggravated indecent assault. Id. at 60-62, 68-69, 75-76, 117. That evidence that Appellant engaged in physical contact with Victim beyond the assaults themselves to facilitate his sexual contact with Victim is sufficient to prove the element of communication. Velez, 51 A.3d at 267; Copeland, No. 2452 EDA 2021, at 6-9. Because communication is the only element of unlawful contact with a minor that Appellant contends that the Commonwealth failed to prove and Appellant’s acts of removing or pulling down Victim’s clothing to facilitate his assaults were sufficient to satisfy that element, Appellant’s claim of insufficiency of the evidence fails.
Id.
The Supreme Court granted allocatur to address the element of “communication.” The issue, as stated by petitioner, is:
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.
For more information, contact Kevin McKeon or Dennis Whitaker.