concurring and dissenting:
I have no dispute with the Majority’s determination that the prosecution is afforded the right to appeal the trial court’s arrest of judgment, since such a ruling is an appeal-able order. See Dissenting Opinion by Popovich, J. in Commonwealth v. Williams, 360 Pa.Super. 23, 519 A.2d 971 (1986), citing United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) for an identical proposition. Nor do I find fault with the affirmance of the judgment of sentence for attempted rape.
*211However, on the question of whether the conduct by the appellee upon the victim (cunnilingus) falls within the perimeters of 18 Pa.C.S. § 3123 (Involuntary Deviate Sexual Intercourse), I am not convinced it does.
§ 3123 makes specific reference to the act(s) proscribed, e.g., deviate sexual intercourse. This term of art is defined in the Crimes Code at § 3101 to encompass: “Sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal.” Further, in the same section, “sexual intercourse” is described to constitute: “In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.”
The Majority’s efforts to extrapolate the inclusion of the proscribed conduct charged against the appellee from a recitation of the historical basis for the Crimes Code, i.e., the Penal Code of 1939 and the Model Penal Code of the American Law Institute, is detrimental as much as it is beneficial to its objective.
For instance, the referred to § 213.2 of the Proposed Official Draft of the Model Penal Code, and the applicable definitional provisions (§ 213.0), along with the earlier mentioned § 3123 of the Crimes Code and the relevant definitional terms there do not make any reference to the conduct sought to be included within § 3123. The Majority does not dispute this.
Its reference to the predecessor to § 3123 is unavailing since that statute (18 P.S. § 4501 — Sodomy) was more broadly worded by the inclusion of the terms “carnal knowledge” as the catch-all phrase, and its subsequent interpretation to include cunnilingus was not repugnant to the principles associated with statutory construction, i.e., give effect and meaning to the laws enacted by the Legislature when possible and do not find them to be, e.g., unconstitutionally void for vagueness absent evidence that is clear on the subject.
*212However, instantly, the statute in question is more narrowly circumscribed by definitional language, which, when viewed in toto with the remainder of Chapter 31 covering “Sexual Offenses”, would result in the appellee’s acts of sexual conduct to be violative of the indecent assault statute, 18 Pa.C.S. § 3126. It reads in relevant part:
A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
(1) He does so without the consent of the other person; In turn, “indecent contact” is elaborated upon as to its meaning by the Legislature, again, in the definitional provision of the Crimes Code to include: “Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.”
Giving the statutes their reasonable and common sense meaning leads this writer to conclude that the appellee’s conduct falls squarely and more logically within the ambit of § 3126. This is accomplished without any strained analysis of the law and its historical antecedent.
Accordingly, finding that the Majority’s trek through the preceding law and its underpinnings is unwarranted and unconvincing, I cannot embrace its logic. To do so would overlook the obvious proscription of the appellee’s conduct by § 3126. One need not proceed any further in determining under which provision of the law the appellee’s acts were violative of. The Commonwealth, having failed to charge the accused with such a violation, the jury’s verdict should not stand. Thus, I would affirm the trial court’s arrest of judgment on the offense of involuntary deviate sexual intercourse.
Nonetheless, the factual scenario under scrutiny here, in light of the indecent assault statute, leads me to conclude, under a lesser-included-offense analysis, that the trial court would have the authority to find the accused guilty of such a lesser charge. See, e.g., Commonwealth v. Adams, 333 *213Pa.Super. 312, 482 A.2d 583 (1984); Commonwealth v. Temple, 258 Pa.Super. 269, 392 A.2d 788 (1978).
The appellee could not complain that he was not put on notice by the charge of involuntary deviate sexual intercourse of his potential liability under the indecent assault statute since the facts, albeit do not rise to the level of “intercourse”, they unquestionably establish indecent contact done for the purpose of arousing or gratifying sexual desire.
Thus, although I do not join in the affirmance of the sentence for involuntary deviate sexual intercourse, the appellee could be found guilty of indecent assault. The fact that the lesser offense (indecent assault) is subsumed by the greater offense (involuntary deviate sexual intercourse) would discount any argument proffered by the accused that he was not put on notice of the potential liability under the former. Thus, both notice and subsumption of the lesser charge by the greater charge are present to justify such a result.
Accordingly, finding that I can only join in a portion of the majority’s opinion, I respectfully dissent in part.