Com. v. Smith, J.

J-A07016-23

                               2026 PA Super 69



 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMES SMITH                             :
                                         :
                   Appellant             :   No. 115 EDA 2022

    Appeal from the Judgment of Sentence Entered November 15, 2021
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0001692-2021,
                        CP-51-CR-0002286-2020

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMES SMITH                             :
                                         :
                   Appellant             :   No. 116 EDA 2022

    Appeal from the Judgment of Sentence Entered November 15, 2021
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0001692-2021,
                        CP-51-CR-0002286-2020


BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY McLAUGHLIN, J.:                         FILED APRIL 10, 2026

     This case returns to us upon remand from the Supreme Court of

Pennsylvania. On September 25, 2025, the Supreme Court vacated in part

this Court’s decision affirming James Smith’s judgment of sentence, and

remanded this case to us to consider Smith’s challenge to the sufficiency of
J-A07016-23



the evidence for his unlawful contact with a minor convictions 1 in light of

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

v. Smith, 343 A.3d 1062, 1079-80 (Pa. 2025). Upon review, we affirm the

judgment of sentence.

       The trial court summarized the facts in this case as follows: 2

       Under docket CP-51-CR-0002286-2020, M.B. (born December 3,
       2011) testified to the following facts. M.B. lived with her mother[];
       her grandfather []; her sister, [J.]; and her younger brother, [L.].
       At one point, M.B.’s friend A.G. and A.G.’s mother also lived in the
       same house. [Smith] frequently visited the home. M.B. knew
       [Smith] as a close friend of her mother’s and called him, “Uncle
       James.” [Smith] often took M.B., his son, A.G., and [L.] to the
       park and to the store alone.

             M.B. recalled the first time [Smith] made her feel
       uncomfortable. [Smith] played games with the children, one of
       which involved physically lifting up the kids and throwing them
       onto the couch. When [Smith] lifted M.B. into the air, he did not
       throw her on the couch, but instead touched her vagina. [Smith]
       repeated this pattern of behavior throughout the house.

              On a separate occasion, [Smith] grabbed M.B. from the
       living room and led her into the kitchen. [Smith] laid M.B. on top
       of a freezer and pulled down her pants. [Smith] then took off his
       pants and inserted his penis into her vagina. M.B. testified that
       she felt pain when [Smith] inserted his penis into her vagina, but
       neither M.B. nor [Smith] said anything to each other.

             On several occasions, [Smith] performed oral sex on both
       M.B. and A.G. in the basement of the house. One day, [Smith]
       followed M.B., A.G., [L.], and his children to the basement to
____________________________________________


1 At the time of Smith’s offense and trial, the subsection of the unlawful
contact statute under which Smith was convicted was codified at 18 Pa.C.S.A.
§ 6318(a)(1). It has since been renumbered as 18 Pa.C.S.A. § 6318(a)(1.2).
There was no substantive change to the text of the provision.

2 Smith adopted the court’s factual summary for purposes of this appeal. See

Smith’s Br. at 6.

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     watch the kids play basketball. M.B. and A.G. sat on a three-to-
     four-foot-high black table. [Smith] approached the young girls
     and pulled down their pants. [Smith] proceeded to take his pants
     off and performed oral sex on both girls. Neither girl[] nor [Smith]
     spoke to one another. M.B. testified that this happened several
     times, and on one occurrence, [Smith] inserted his penis inside
     M.B.’s vagina. On another occasion, [Smith] inserted his penis into
     A.G. while M.B. sat next to her on the table. M.B. further testified
     that this happened several times.

            [Smith’s] last attempted incident with M.B. occurred on
     A.G.’s eighth birthday. On A.G.’s eighth birthday, M.B.’s mother
     left the house to run errands, leaving M.B., [L.], [J.], and [J.]’s
     friend behind in the house. [Smith] came to the house, picked up
     M.B. and led her upstairs to her mother’s room. [Smith] closed
     the door and tried to pull down M.B.’s pants. M.B. kicked [Smith]
     away from her and told him to stop. M.B. told [Smith] that she
     was going to call her mom to which he replied, “I’ll tell her for
     you.” M.B. went into her room, grabbed her phone, and cried as
     she texted her mother to tell her about [Smith’s] actions.

            Under docket CP-51-CR-000169-2021, A.G. (born March
     19, 2012) testified to the following facts. For some time, A.G. lived
     . . . with her mother, M.B., M.B.’s mother, M.B.’s grandfather,
     M.B.’s sister, and M.B.’s brother. A.G. lived at the house until she
     turned eight years old. A.G. and M.B. are best friends, describing
     their relationship as “like sisters.” While A.G. lived at the house,
     [Smith], who A.G. also identified as “Uncle James,” often visited
     the home. A.G. said [Smith] treated her like his own niece, even
     though [Smith] was not related to her. When [Smith] visited the
     house, he played with A.G. by picking her up in the air and playing
     hide-and-seek with her.

           A.G. remembered that [Smith] started to do things that
     made her feel uncomfortable and that she did not understand.
     These things took place in the basement of the house, in M.B.’s
     grandfather’s room, and M.B.’s mother’s room. In the living room,
     [Smith] threw A.G. into the air and performed oral sex on her.
     This happened several times.

           On another occasion, A.G. recalled being in the basement
     watching the other children play basketball. While both girls sat
     on his lap, [Smith] touched their vaginas, and penetrated A.G.’s
     vagina with his finger. A.G. remembered another time when
     [Smith] told her to get onto the black table, where she laid down


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J-A07016-23


      on her stomach. [Smith] then pulled A.G.’s pants down and
      performed anal sex on her. During another time in the basement,
      [Smith] asked and tried to put his penis into A.G.’s mouth.

             A.G. testified that she saw [Smith] also do these things to
      M.B. More than once, A.G. saw [Smith] insert his penis into M.B.’s
      vagina while M.B. laid on her back on the basement table. A.G.
      also testified that [Smith] tried to make M.B. perform oral sex on
      him. [Smith] took his penis out of his pants and “would just show
      it.” [Smith] then told M.B. to lick his penis.

            On A.G.’s eighth birthday, A.G. and her mother went to
      M.B.’s house where they saw police outside. After going inside of
      the house, A.G.’s mother came back to the car and asked A.G.
      whether [Smith] touched her. A.G. answered “yes.”

Trial Court Opinion, filed June 1, 2022, at 1-4 (citations to trial transcript and

footnote omitted).

      After a jury trial, Smith was convicted of, among other crimes, two

counts of unlawful contact with a minor. He was sentenced to an aggregate

term of 30 to 60 years’ incarceration followed by 10 years’ probation. Smith

appealed and challenged the sufficiency of the evidence to sustain his

convictions for unlawful contact with a minor. We affirmed, but the Supreme

Court vacated and remanded the matter to this Court to consider the issue in

light of Strunk. The Court explained:

            Subsequent to the Superior Court’s opinion, we decided
         Strunk, which held that Section 6318 “was intended to
         criminalize behavior not otherwise covered by the Crimes
         Code.” Strunk, 325 A.3d at 532. We explained that Section
         6318 “does not criminalize inappropriate touching of
         minors; other statutes accomplish that goal.” Id. at 542.
         We stated that it “is perhaps best described as an anti-
         grooming statute” although this description is imperfect. Id.
         We concluded that Section 6318 “is intended to criminalize
         and punish communication designed to induce or otherwise
         further the sexual exploitation of children.” Id. at 543. Far


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J-A07016-23


          from black letter law, Strunk’s application of Section 6318
          was bound by the facts of that case, and it left unanswered
          questions regarding the scope of Section 6318. For
          example, the Court’s reference to Section 6318 as an “anti-
          grooming statute” left open the question of what
          communications, in context, constitute the act of grooming
          prohibited by the statute. We leave it to the lower courts to
          apply and further elucidate the meaning of Section 6318’s
          prohibition with the benefit of briefing post-Strunk. Given
          our refinement of the sufficiency of the evidence required
          for convictions under Section 6318, we vacate the Superior
          Court’s decision on this issue and remand for it to address
          the sufficiency challenge in light of Strunk.

Smith, 343 A.3d at 1079-80 (footnote omitted). 3

       Upon remand, this Court issued a briefing schedule for the parties to

submit supplemental briefs addressing Strunk. See Order, filed 12/30/25.

The parties complied and filed supplemental briefs. We now address the merits

of Smith’s sufficiency of the evidence challenge.

       Smith argues that the Commonwealth did not meet its burden to sustain

either of his unlawful contact convictions involving M.B. and A.G. Smith’s

Supp. Br. at 6. He states that the Court in Strunk “narrowed the scope” of

Section 6318 and “conclude[ed] that it was in essence an anti-grooming

statute.” Id. In Smith’s view, to prove a violation of Section 6318, the

Commonwealth must show two things: “there was a communication that is

not otherwise a crime in the Crimes Code,” and “it was made to facilitate a
____________________________________________


3 Justice Mundy issued a concurring and dissenting opinion, in which she
analyzed the facts of the case and concluded that there was “no basis to
remand this case for application of Strunk when it is abundantly clear that
verbal communication for the purpose of furthering an assault – like that which
occurred in this case – is sufficient to establish communication.” Smith, 343
A.3d at 1082-84 (Mundy, J., concurring/dissenting).

                                           -5-
J-A07016-23



sexual assault.” Id. Smith argues that the only communication he had with

M.B. was one time when he “took his penis out and told her to lick it.” Id. at

5. He further argues that he only spoke to A.G. on two occasions – once when

he “told [A.G.] to get on a table, where he then had anal sex,” and once when

“he asked A.G. to put his penis in her mouth, and tried to do it.” Id. Smith

maintains that these communications were not “intended to facilitate a later

sexual assault” because each victim “had been sexually assaulted several

times before any of the communications were made here.” Id. at 6. According

to Smith, “the statements here were obviously non-grooming because they

were made during one incident after each child had been abused many times.”

Id. at 13.

      Smith further argues that the Strunk Court observed that “[t]he history

of the statute demonstrates . . . it was intended to criminalize communicative

behavior not otherwise covered by the Crimes Code.” Id. (quoting Strunk,

325 A.3d at 531). As to M.B., Smith argues that when he took his penis out

and told M.B. to lick it, he “committed an attempted involuntary deviate sexual

intercourse [(‘IDSI’)] offense,” which is otherwise covered by the Crimes

Code. Id. at 13-14. Smith points out that he was, in fact, convicted of IDSI

with respect to M.B. Id. at 14. As to A.G., Smith argues that his attempt to

have A.G. put his penis in his mouth was “legally insufficient to sustain a

conviction for the same reasons as in M.B.” Id. Regarding his instruction to

A.G. to get on a table, Smith argues that this statement “was part of the

criminal offense, not a statement made before to facilitate a later sexual

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J-A07016-23



offense, as required by Strunk[.]” Id. at 15. According to Smith, “[i]f this

statement immediately preceding and connected to the physical attack is

considered to be sufficient evidence to sustain a conviction, it truly is an

impermissible add[-]on offense that is inconsistent with the statute[.]” Id. He

believes that such a ruling “would mean that every physical attack would have

this additional offense if anything was said to the victim.” Id.

      The Commonwealth counters that unlike the defendant in Strunk,

Smith made several verbal communications to the victims for the purpose of

sexually abusing them. Commonwealth’s Supp. Br. at 5. It points out that the

defendant in Strunk “made no verbal communications to the victim, who was

either asleep, feigning sleep, or intoxicated when [he] sexually assaulted her.”

Id. at 6. The Commonwealth emphasizes that Smith conceded that he made

verbal requests to the victims to perform oral sex on him and verbally

instructed A.G. to lie on a table for the purpose of sexually abusing her. Id.

at 8-9. The Commonwealth concludes that Smith’s verbal communications

were the type of communications contemplated by Section 6318, and Strunk

does not bar Smith’s convictions for unlawful contact with a minor. Id. at 5,

8.

      We review a challenge to the sufficiency of the evidence de novo. “[O]ur

scope of review is limited to considering the evidence of record, and all

reasonable inferences arising therefrom, viewed in the light most favorable to

the Commonwealth as the verdict winner.” Commonwealth v. Rushing, 99

A.3d 416, 420-21 (Pa. 2014). “Evidence will be deemed sufficient to support

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J-A07016-23



the verdict when it establishes each material element of the crime charged

and the commission thereof by the accused, beyond a reasonable doubt.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The trier of fact

is free to believe, all, part, or none of the evidence presented when making

credibility determinations. Commonwealth v. Beasley, 138 A.3d 39, 45

(Pa.Super. 2016). “[T]his Court may not substitute its judgment for that of

the factfinder, and where the record contains support for the convictions, they

may not be disturbed.” Commonwealth v. Smith, 146 A.3d 257, 261

(Pa.Super. 2016).

       The crime of unlawful contact with a minor is defined, in relevant part,

as intentional contact with a minor “for the purpose of engaging in” certain

prohibited activity:

       (a) Offense defined.-- A person commits an offense if the
       person is intentionally in contact with a minor, or a law
       enforcement officer acting in the performance of duties who has
       assumed the identity of a minor or of another individual having
       direct contact with children, as defined under 23 Pa.C.S. § 6303(a)
       (relating to definitions), for the purpose of engaging in an activity
       prohibited under any of the following provisions under this title,
       and either the person initiating the contact or the person being
       contacted is within this Commonwealth:

                                           ***

          (1.2) Any of the offenses enumerated in Chapter 31
          (relating to sexual offenses).

18 Pa.C.S.A. § 6318(a)(1.2).4

____________________________________________


4 See supra note 1.


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      The statute defines “contacts” as “[d]irect or indirect contact or

communication by any means”:

      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 [sic], 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.A. § 6318(c).

      In Strunk, our Supreme Court addressed whether “contact” as set forth

in the statute “includes conduct that is not communicative in nature.” 325

A.3d at 531. There, the minor victim testified about three instances where she

awoke to the defendant sexually abusing her. Id. at 531-32. During each

encounter, the victim continued to feign sleep. Id. During the second incident,

the defendant whispered something into the victim’s ear. Id. at 532. The

victim could not recall what he said but she denied it was a threat. Id. The

victim testified about another incident, in which she was lying on the couch

recuperating after having several teeth removed and was under the influence

of painkillers, when the defendant sexually assaulted her. Id. The defendant

was eventually convicted of, among other crimes, unlawful contact with a

minor. He appealed and this Court affirmed his conviction.

      Our Supreme Court granted review and found that there was insufficient

evidence that the defendant communicated with the victim to further his

sexual assaults to support his conviction of unlawful contact with a minor. The

Court reviewed the legislative history of the statute and concluded that

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         the Superior Court has been consistently correct in
         recognizing the communicative focus of Section 6318.
         Section 6318 does not criminalize inappropriate touching of
         minors; other statutes accomplish that goal. 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.

Id. at 542.

      The Court emphasized that there was no evidence that the defendant

there had communicated with the victim:

         The victim testified that [the defendant] manipulated her
         clothing while she pretended to sleep. Further, the victim
         testified [he] did not communicate with her, either verbally
         or non-verbally, while he was removing her clothing.
         Because this is the only evidence about how the assaults
         occurred, it would be rank speculation for the jury to infer
         [the defendant] communicated with the victim based solely
         on evidence that the assault[s] occurred.

Id. at 543. The Court further found that this Court had “conflated verbal,

written, and other forms of non-verbal communicative efforts to mean any

form of physical contact.” Id.

         That is not the purpose or intent of Section 6318. Rather,
         Section 6318 is intended to criminalize and punish
         communication designed to induce or otherwise further the
         sexual exploitation of children. As the record before us
         cannot establish that [the defendant] communicated with
         the victim to facilitate his assaults, his conviction for
         unlawful contact with a minor cannot stand. Thus, we vacate
         [the defendant’s] conviction for unlawful contact with a
         minor.

Id. (footnote omitted).


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      This Court has applied Strunk and addressed the meaning of Section

6318’s prohibition in at least two published opinions. First, in Commonwealth

v. Clegg, 342 A.3d 63 (Pa.Super. 2025), the Supreme Court, like it did here,

remanded to this Court to apply the holding of Strunk. There, the minor victim

and her family, including her father – the appellant – were staying in a two-

bedroom camper at a campground for a weekend. 342 A.3d at 64. The victim

had planned to sleep in the living room with her brother and cousin. Id. At

some point in the evening, the victim’s parents got into an argument and her

mother drove off. Id. The victim was at a neighbor’s campsite because of her

parents fighting. Id. After the victim’s mother left, the appellant “scream[ed]”

at the victim to come inside the trailer. Id. at 65. Once the victim was inside,

the appellant directed her to sleep in the master bedroom with him and her

baby brother. Id. The victim laid down on the bed with the appellant and her

baby brother. Id. After she fell asleep, the victim awoke to someone touching

her vagina. Id. She kept her eyes closed until the touching ceased. Id. When

she opened her eyes, she saw the appellant. Id.

      This Court concluded the evidence was sufficient under Strunk. We

explained:

         [The a]ppellant communicated to [the victim] when he
         screamed at her to come inside the trailer and directed her
         to sleep in bed with him in the front bedroom. [The victim]
         did what [the a]ppellant told her to do. She was then
         sexually assaulted. [The a]ppellant’s oral communication
         induced [the victim] to sleep in a different location than she
         planned and was intended to further the commission of a
         crime, i.e., rape of a minor. Thus, under the statutory
         definitions provided in [S]ection 6318(a), and in accordance

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         with our Supreme Court’s holding in Strunk, [the
         a]ppellant’s conviction of unlawful contact with a minor
         must be upheld.

Id. at 67.

      Next, in Commonwealth v. Reyes, ___ A.3d ____, 2025 WL 3706328,

at *1 (Pa.Super. filed Dec. 22, 2025), we likewise found that the evidence was

sufficient to sustain the appellant’s conviction of unlawful contact with a minor.

There, the minor victim was at her boyfriend’s house and the two got into a

fight. 2025 WL 3706328, at *1. After the victim’s boyfriend hit her, the

boyfriend’s mother called the appellant – the mother’s brother – to come over

and drive the victim home. Id. After the appellant arrived, the victim opened

the back door of the appellant’s car to get into the back seat. Id. The appellant

told her not to sit in the back seat because there were things back there and

it was messy. Id. The victim thought it was “weird” that the appellant wanted

her to sit up front, but she did so anyway. Id. At some point during the drive,

the appellant put his hand on the victim’s thigh. Id. The appellant then

stopped the car near a corner one or two houses away from the victim’s house

and sexually assaulted the victim. Id.

      The appellant was convicted of, among other crimes, unlawful contact

with a minor. On appeal, he challenged the sufficiency of evidence to support

his conviction. He argued that the communication between himself and the

victim was not sufficient to sustain his conviction because he did not say

anything sexual to her. Id. at *3. He also emphasized that the arranging of

the car ride was done by his sister, not himself. Id.

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      We found that the evidence was sufficient. Citing Strunk and Clegg,

we found that “there was direct communication from [the a]ppellant to the

[victim] that induced her to change her location, contrary to her intention, to

a location that made it easier for [the a]ppellant to commit a sexual offense”

and the appellant’s direction to the victim to sit in the front seat “was

communication designed to induce or otherwise further the sexual exploitation

of a minor.” Id. at *6 (cleaned up). We explained:

            At trial, the [victim] testified to direct communication
         between her and [the a]ppellant that caused her to sit in the
         front seat next to him[.]

                                      ***

            [The a]ppellant’s spoken direction to the [victim] caused
         her to feel “weird.” There was the suggestion of a ruse
         behind the statement, as the [victim] said she “could have
         sat in the back,” even though there was stuff in the back
         seat. [The a]ppellant’s communication thereby caused the
         [victim] to sit within arm’s reach of him, contrary to her
         preference, and close enough for his subsequent attempts
         to touch and seduce her to succeed “without impediment.”

                                      ***

            [The a]ppellant’s ruse to get the [victim] in the front seat
         of the car, thereby facilitating sexual contact, furthered the
         underlying sexual offense. [The a]ppellant communicated
         with [the victim] as the potential for a sexual assault was
         unfolding, caused her to relocate within arm’s reach of him,
         and occurred within circumstances that permitted the
         inference that his intent was to sexually exploit her.
         Therefore, the evidence was sufficient to sustain [the
         a]ppellant’s [unlawful contact with a minor] conviction.

Id. at *5-7 (citations omitted).




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        Applying Strunk to the facts of this case, we find that there was

sufficient evidence to convict Smith of two counts of unlawful contact with a

minor. Unlike the defendant in Strunk, who made no verbal communications

to the victim, Smith made several verbal statements to the victims. By his

own admission, Smith told both M.B. and A.G. to perform oral sex on him and

told A.G to lay on a table immediately before sexually assaulting her. These

verbal requests to the victims placed the victims in these positions to facilitate

Smith’s sexual assaults. They thus constituted “communication designed to

induce or otherwise further the sexual exploitation of children.” Strunk, 325

A.3d at 543. Furthermore, “a communication does not need to explicitly state

an intention of having sexual or otherwise unlawful contact to be sufficient

under [S]ection 6318(a).” Commonwealth v. Meyer, No. 530 MDA 2025,

2026 WL 381859, at *5 (Pa.Super. filed Feb. 11, 2026) (unpublished mem.)

(citing Clegg; Reyes). Therefore, pursuant to the statutory definitions

provided in Section 6318(c), and in accordance with our Supreme Court’s

holding in Strunk, we affirm Smith’s convictions for unlawful contact with a

minor.

        Judgment of sentence affirmed.

Judge McCaffery did not participate in the consideration or decision of this

case.




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Date: 4/10/2026




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