dissenting.
The introductory clause of Section 3126 coupled with subsection (1) sets forth the traditional crime of indecent assault. This crime traditionally required an assault and battery, including the elements of force and absence of consent. The essence of the offense was the taking of indecent liberties against the will of the victim.
The majority correctly states the concern of the drafters in enacting subsection (1) of Section 3126.
Section 3126 is derived from section 213.4 of the 1962 Model Penal Code. An earlier draft of that provision made indecent contact punishable in any instance where the prosecution could show absence of consent of the victim. See section 207.6, Tentative Draft No. 4 (1955). The American Law Institute rejected this absence of consent standard because it “seem[ed] too strict a standard of criminality, considering the frequency with which tentative sexual advances are made without explicit assurance of consent.” The provisions of section 3126(1) reflect this concern for possible prosecution of “[a]cts commonly expressive of familial or friendly affection” which are “as consistent with the overfamiliar friendship as with lust.” Comment, section 207.6, Tentative Draft No. 4 (1955). See also Commonwealth v. Reuhling, 232 Pa.Super. 378, 334 A.2d 702 (1975); Commonwealth v. Smith, 227 Pa.Super. 355, 324 A.2d 483 (1974).
Although recognizing the potential problem raised in the area the majority has ignored the intended solution. For a conviction to stand under the instant provision it must be shown that not only was the contact nonconsensual but also that the actor was willing to accomplish the offensive touch*557ing over the objection of the offended party. The majority’s interpretation of subsection (1), which attaches criminal responsibility for sexual contact solely upon a finding of an absence of consent, fails to recognize the significance of the additional requirement of a showing of the willingness of the actor to persist in the conduct against the will of the victim. This omission permits the “too strict standard of criminality” which the drafters of the Model Code were intending to avoid. It also represents a significant departure from prior law which required this additional element for the offense.1
The deficiency in the Commonwealth’s evidence is the failure to show that appellant intended to accomplish the acts against the will of the victim. To the contrary, all of the testimony pointed to his attempts to secure the consent of the victim to the acts. There were no threats or coercion; there was no force employed; the victim complied without protest or complaint. The Commonwealth’s evidence tended to negate rather than to establish the element of force. Instead of pointing to a willingness to act against the will of the victim, the evidence pointed to a belief on the part of the actor, either that he had so disguised the nature of the conduct that the victim was not aware of its offensiveness or that he had induced the victim to willingly participate. In either event, appellant evidenced no intent to act against the will of the victim. To the contrary the appellant proceeded upon the basis that he had secured the victim’s *558consent. Thus a conviction under the theory of subsection (1) should not be sustained.
A long recognized exception to the requirement of an intent to act against the will of the victim is where the actor attempts to deceive the victim of the true nature of the conduct. See Commonwealth v. Gregory, 132 Pa.Super. at 515-16, 1 A.2d 501. This element in such cases was satisfied by the use of fraud and artifice and any consent secured thereby was invalidated. Id. This exception to the basic rule requiring an intent to overcome the victim’s will has been codified in subsection (3) of Section 3126. I agree with the majority that the evidence supports a conviction under the fraud and deceit exception provided for in subsection (3). The Commonwealth presented evidence of the use of a ruse by appellant — a physical examination and initiation to join a club — to gain the victim’s willing participation. This testimony coupled with the disparity of age and experience between appellant and the victim would support the finding that these acts were accomplished because “the other person [was] unaware that an indecent contact [was] being committed.”
However, the jury was allowed to return the guilty verdict under the theory of subsection (1) as well as subsection (3). Since a general verdict was rendered, we have no way of discerning which theory was accepted by the jury as the basis for its result. For the verdict to stand, under these circumstances, it is therefore necessary to find that the record would support the finding under either theory.2 As *559the verdict rendered was dependent upon the sufficiency of the evidence to sustain a finding under either section of 3126 the verdict of guilty on this indictment should not be permitted to stand.
I therefore respectfully dissent.
. Whether considered as a distinct common law crime, 33 Temp.L.Q. 425 (1960), or as a species of the statutory crime of assault as defined in the 1939 Penal Code, 18 P.S. § 4708, indecent assault comprehends an assault and battery, Commonwealth v. Gregory, 132 Pa.Super. 507, 1 A.2d 501 (1938) including the elements of force and absence of consent. Commonwealth v. Shrodes, 354 Pa. 70, 74, 46 A.2d 483 (1946); Commonwealth v. Carpenter, 172 Pa.Super. 271, 94 A.2d 74 (1953). Thus the prior statement of the elements of the offense, i. e., the taking of indecent liberties against the will of the victim — is still viable under section 3126 as it was written at the time of this incident. Commonwealth v. Shrodes, supra; Commonwealth v. Blauvelt, 186 Pa.Super. 66, 140 A.2d 463 (1958); Commonwealth ex rel. Robinson v. Maroney, 175 Pa.Super. 529, 107 A.2d 188 (1954); Commonwealth v. Carpenter, supra; Commonwealth v. Gregory, supra.
. This principle is a basic axiom of our jurisprudence although our cases have only referred to it by implication. In Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977), we were presented with a situation in which the jury could have found the defendant guilty of murder in the first degree under either the theory of felony murder or a willful, deliberate and premeditated murder. “Since there is no way of knowing on which theory the jury proceeded, we must consider appellant’s contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable." Id., 471 Pa. at 502, 370 A.2d 718. See also Commonwealth v. Thomas, 448 Pa. 42, 48, 292 A.2d 352 (1972) (Court required to determine sufficiency of the evidence of rape where defendant was charged with a premeditated or a felony mur*559der); Commonwealth v. Mount, 416 Pa. 343, 345 — 47 & n.2, 205 A.2d 924 (1965) (although defendant apparently conceded guilt as to premeditated murder, he disputed evidence of rape, and Court was compelled to determine whether he could be convicted of felony murder). Here, as in Sparrow, we do not know on which theory — either 18 Pa.C.S.A. § 3126(1) or (3) — the jury proceeded, forcing consideration as to the sufficiency of the evidence to sustain convictions under both subsections.