holding that pursuant to statute, the grading of a conviction of unlawful contact with a minor for sentencing purposes is predicated upon the defendant’s conviction of an underlying offense and the defendant may - 14 - J-S28019-20 not be acquitted of the underlying offense upon which the conviction of unlawful contact with a minor is based
How later courts described this case
- holding that pursuant to statute, the grading of a conviction of unlawful contact with a minor for sentencing purposes is predicated upon the defendant’s conviction of an underlying offense and the defendant may - 14 - J-S28019-20 not be acquitted of the underlying offense upon which the conviction of unlawful contact with a minor is based
- stating that “a defendant need not be successful in completing the purpose of his communication with a minor in order to be found guilty of” unlawful contact with a minor and that the defendant need not have even been charged with the underlying substantive offense
- clarifying that for purposes of section 6318(a)(1), a defendant need not be separately convicted of, or even charged with, the Chapter 31 offense for which he contacted the minor
- finding evidence insufficient to support higher grading of unlawful contact with minor where the jury found the defendant not guilty of the predicate offense for that grading
Written by the judges who cited it.
The opinion
Justice EAKIN,
dissenting.
I respectfully dissent. This conviction is not infirm and should stand.
A conviction of attempted unlawful contact with a minor requires the offense to be “the same grade and degree as the most serious underlying offense ... for which [appellee] contacted the minor....” 18 Pa.C.S. § 6318(b)(1). Nothing requires the underlying offense to be charged, and there need be no proof that it was committed or even attempted. Appellee clearly contacted the party he thought to be a minor with the intent to commit the offense of rape. He gave instructions to skip school, and drove to a pre-determined location “to meet *647 [her] and have physical contact that could have led to sex.” Majority op., at 634, 9 A.3d at 1141. Appellant was interrupted in his purpose, resulting in counts of attempt to rape rather than accomplishment of rape, but he nonetheless attempted the contact for the purpose of rape.
The jury was given two crimes relevant here, which I will abbreviatedly call attempted contact and attempted rape. Acquittal of the latter certainly does not preclude conviction of the former, for they are distinct offenses. The latter required proof of a substantial step toward accomplishing the actual rape. The former, however, required only proof that he took a substantial step toward contacting the minor for the purpose of rape, not a step toward the rape itself. As there was no actual minor, and as actual attempt at sex was interrupted by appellee’s arrest, it is not difficult to understand the finding he did not take a substantial step toward actual commission of rape. Such a result does not matter to the attempted contact count, as the contact with relevant intent was already attempted and complete by this time.
Acquittal of attempted rape does not mean the jury found appellee’s purpose in contacting her was not rape — indeed, that is exactly what it did find his purpose to have been. The jury never found he attempted contact without the intent to have sex with her — it only means the prosecution did not prove he took a further step toward accomplishing the rape. He unquestionably took a substantial step toward contacting her for purposes of rape, even though he did not take a substantial step toward actually raping her — for purposes of determining the grade of crime, this is all that is required.
Commonwealth v. Magliocco, 584 Pa. 244 , 883 A.2d 479 (2005), dealt with a statute where commission of the underlying offense was required. Such accomplishment is not needed here though — only proof of attempted contact with requisite intent, not proof of a further step toward accomplishment after contact. Accordingly, I must respectfully dissent.
Justice McCAFFERY joins this opinion.