dissenting:
¶ 1 The Majority finds that Appellant’s unsuccessful attempt to kiss M.A. on her lips and his non-consensual acts of rubbing her shoulders, back and stomach constitute an indecent assault under section 3126 of the Crimes Code. I disagree and write separately due to the fact that section 3126 as written, does not explicitly prohibit such contact.
¶ 2 The offense of indecent assault, as the majority pointed out, is defined in pertinent part as follows:
§ 3126. Indecent Assault
(a) Offense defined. — A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if:
(1) the person does so without the complainant’s consent.
18 Pa.C.S.A. § 3126(a)(1). Section 3101 of the Crimes Code defines “Indecent Contact” as: “Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.” 18 Pa.C.S.A. § 3101.
¶ 3 Words of a statute must be construed according to their common and accepted usage. 1 Pa.C.S.A. § 1903; Bankers Trust Co. v. Foust, 424 Pa.Super. 89, 621 A.2d 1054, 1057 (1993). A court interpreting a statute must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. §§ 1921,1922; Bankers Trust Co., supra. Moreover, our rules of construction provide that penal statutes must be strictly construed. 1 Pa.C.S.A. § 1928.
¶4 First, it is clear from section 3101’s plain meaning that “indecent contact” occurs when there is proscribed contact with the female or male genitals. Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996); In re J.R., 436 Pa.Super. 416, 648 A.2d 28 (1994). The statute is less dear, however, with respect to its definition of “other intimate parts.” The legislature has failed to provide the courts with any guidance whatsoever as to what parts of the body are to be construed as “other intimate parts.”
¶ 5 In determining the common usage for this term, I turn to the dictionary for assistance. In Webster’s, the word “intimate,” when used in a sexual context, is defined as “engaged in or marked by sexual rela-tions_” Webster’s Third New International Dictionary 1184 (1981). From this definition it can be inferred that the term “other intimate parts” refers only to those parts of the body that are the subject of sexual contact or relations.
¶ 6 Our legislature derived section 3126 from section 213.4 of the Model Penal Code (MPC). Commonwealth v. Mumma, 489 Pa. 547, 552, 414 A.2d 1026, 1029 (1980). It is, therefore, important to consider the MPC in interpreting the term “other intimate parts.” Although MPC section 213.4 does not define the term “sexual or other intimate parts,” the MPC’s commentary explains why such language was ultimately included in the wording of the offense under the MPC. As the Official Comment explains, an earlier draft of section 213.4 “specifically excluded ‘acts commonly expressive of familial or friendly affection.’ ” Model Penal Code § 213.4, n. 11 (1962) (quoting Model Penal Code § 207.6, T.D. 4, at 293-94 (1955)). Also, the previous draft failed to limit the proscribed contact to the touching of sexual or other intimate parts of the victim; rather, it covered any contact initiated for the purpose of sexual gratification. Id. The drafters of 213.4 recognized that “premising liability on a kiss or a hug would place too much weight on the ability of the judge or jury to distinguish affection from passion” and, therefore, restricted the offense only to contact with sexual or other intimate parts. Id. (citation omitted). To exemplify this, the commentary states in pertinent part that “sexual misbehavior should not be based on wholly equivocal conduct. This provision therefore requires some more demonstrative act, such as fondling of a woman’s breast, manipulation of male genitals, or digital penetration of vagina or anus.” Id.
¶ 7 Additionally, a review of the case history surrounding section 3126 reveals that in cases where this court and our supreme court have found indecent contact on the part of a defendant, the parts of the anatomy involved were clearly sexual in nature. See, *1130e.g., Commonwealth v. Gordon, supra (defendant rubbed penis against complainant’s buttocks); Commonwealth v. Richter, 450 Pa.Super. 383, 676 A.2d 1232 (1996) (defendant fondled victim’s breasts before forcing his penis into her vagina); In re J.R., supra (defendant licked victim’s vaginal area); Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988) (defendant rubbed penis against victim’s jaw); Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985) (defendant ejaculated on victim’s breast).
¶ 8 Based upon the common usage of the terms, an evaluation of the MPC, and a review of the current precedent surrounding the application of the statute, I conclude that “indecent contact” is contact with a person’s sexual parts including the penis, vagina or anus; and “other intimate parts” limited exclusively to the breasts. If this result, or that reached by the majority, is not what the legislature intended, then I call upon our legislature to explicitly define “other intimate parts.”
¶ 9 In the present ease, I do not condone Mr. Capo’s conduct; in fact, I believe that other relevant sections of the Crimes Code may have been more applicable.2 I cannot, however, agree with the majority that “indecent contact” includes grabbing a person by the upper arm, unsuccessfully attempting to kiss a person on the mouth, or rubbing with one’s hand, a person’s shoulder, back and stomach area. To interpret “other intimate parts” to include the touching of those areas would expand the crime of indecent assault to encompass almost any non-consensual contact with another’s person.
¶ 10 Accordingly, I would reverse Capo’s conviction for the crime of indecent assault.
. Presently, Capo's conduct may have been proscribed under other relevant criminal statutes such as Simple Assault, 18 Pa.C.S.A. § 2701; and/or Criminal Attempt, 18 Pa.C.S.A. § 901.