Dissenting Opinion by
Hoffman, J.:Appellant challenges his conviction under §2709 of the Crimes Code1 that proscribes “Harassment.” I agree that the evidence presented at trial was insufficient to sustain appellant’s conviction.
The essential facts are not disputed: On May 9, 1974, Deborah Hartman, a student at the University of Pennsylvania, was studying in the lounge of a university dormitory. At about 1:00 a.m., appellant, not a student at the university, entered the lounge and asked Ms. Hartman how to use the hot plate. After appellant boiled some water, he left. Thereafter, at about 3:30 a.m., Ms. Hartman, who had fallen asleep on a couch in the lounge, woke up with appellant leaning over the couch, his face in close proximity to hers. Appellant then asked if Ms. Hartman would do him a favor by allowing him to *550engage in cunnilingus. Ms. Hartman asked appellant to leave. He repeated his request three or four times before he departed. Ms. Hartman did not report the incident at that time due to the lateness of the hour and her desire to continue studying. She did, however, report the incident to her resident adviser shortly after 6:00 a.m.
Appellant was arrested during the same day and was charged with criminal trespass and criminal solicitation. On May 16, 1974, the Municipal Court judge discharged appellant on those charges, but found him guilty of “harassment,” a summary offense, §2709, supra, and imposed a fine of $100. Appellant exercised his right to trial de novo in the Court of Common Pleas. On October 8, 1974, appellant was tried and found guilty of harassment and sentenced to pay a fine of $100 by the judge of the Court of Common Pleas.
Appellant raises three contentions: (1) that the evidence was insufficient to prove appellant’s criminal intent and to prove a “course of conduct”; (2) that §2709 is violative of appellant’s First Amendment rights2; and (3) that §2709 is unconstitutionally vague and overbroad.
Section 2709 provides that “[a] person commits a summary offense when, with intent to harass, annoy or alarm another person: ...
“(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” The section attempts to proscribe behavior that is frightening *551or unpleasant, but that does not constitute an assault or disorderly conduct. See Jarvis, Pennsylvania Crimes Code and Criminal Law, Law and Commentary, §2709; People v. Smolen, 69 Misc. 2d 920, 331 N.Y.S. 2d 98 (1972).3 In trying to proscribe such behavior, the General Assembly must avoid criminalizing verbal conduct protected by the First Amendment or petty nastiness that simply does not rise to criminal conduct.4 See Jarvis, supra; cf. Crimes Code, supra, 18 Pa. C.S. §312.
In a series of cases presenting a similar issue, the United States Supreme Court has made clear that a statute must be limited in application “ ‘... to punish only unprotected speech’ and not be ‘susceptible of application to protected expression.’ Gooding v. Wilson, [405 U.S. 518 (1972)].” Plummer v. City of Columbus, Ohio, 414 U.S. 2, 3, 94 S.Ct. 17 (1973). See also, Cason v. City of Columbus, Ohio, 409 U.S. 1053, 93 S. Ct. 565 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972); Lewis v. City of New Orleans, 408 U.S. 913 (1972); Brown v. Oklahoma, 408 U.S. 914 (1972). The statute in Plummer (Columbus City Code, §2327.03) provided that “[n]o person shall abuse another by using menacing, insulting, slanderous, or profane language.” Id. The Court in Plummer, on authority of Gooding, supra, refused to give the statute a *552narrowing construction.5 As stated in Gooding, supra, 405 U.S. at 520, 92 S.Ct. at 1105: “Only the [state] courts can supply the requisite construction, since of course ‘we lack jurisdiction authoritatively to construe state legislation.’ [citation omitted] ...” It follows that this Court must read §2709 so that it does not prohibit protected expression.6
I do not question the annoying nature of appellant’s request. Women, in particular, are frequently subjected to “cat-calls” and sexual suggestions. Frankly, such behavior is reprehensible, and I cannot condemn it too strongly. But something more than a mere indecent request is necessary to come within §2709.7 I do not believe that the Commonwealth proved more: the Commonwealth admits that the whole episode was brief; there was no evidence that Ms. Hartman was placed in apprehension for her safety; that she was cornered by appellant; that he menaced her in any way.8 Her *553annoyance, although justifiable, was not sufficient to make the act criminal; appellant’s words were not sufficiently continuous and persistent to amount to a “course of conduct” under the Act.9
Absent introduction of evidence of menacing behavior, the Commonwealth’s evidence is insufficient to sustain a conviction for harassment. Because the Commonwealth failed to do so in the instant case, I would reverse.
. Act of December 6, 1972, P.L. 1482, §1; 18 Pa. C.S. §101, et seq.
. In a well-researched brief, appellant’s counsel, the Philadelphia Defenders Association, raises an important issue of whether the government can constitutionally limit unpleasant verbal contact among its citizens. See, e.g., Breard v. Alexandria, 341 U.S. 622 (1951); Free Speech v. Right to Privacy, 48 Wash. L. Rev. 667 (1973); Is There a Right Not To Be Spoken To, 67 Nw. U. L. Rev. 153 (1972). But see, Ginzburg v. United States, 383 U.S. 463 (1966). The issue is one of more than academic interest; because I would read the statute narrowly so that more than speech must exist for there to be a prosecution, I do not reach this issue.
. See Rosenfeld v. New Jersey, 408 U.S. 901, 906, 92 S. Ct. 2479, 2481 (1972): “The Model Penal Code, proposed by the American Law Institute, also recognizes a distinction between utterances which may threaten physical violence and those which may amount to a public nuisance, recognizing that neither category falls within the protection of the First Amendment. See Model Penal Code §250.2(1) (a) and (b). (Proposed Official Draft 1962).”
. There are several persuasive reasons for such a principle: (1) the state runs the risk of criminalizing generally accepted behavior, leaving the actor without reasonable notice that his conduct is criminal: (2) such incidents are too frequent for a justice system to handle them efficiently; (3) courts cannot be expected to arbitrate what are frequently personal disputes by use of the criminal process. Criminal sanction is too severe, too great a stigma, too costly to all parties, to allow the law to become a “Big Brother.”
. It is conceivable, for instance, that the state court may have narrowed the statute by declaring that “menacing ... language” implied some kind of assaultive behavior.
. Although I find appellant’s suggestion to be lewd and one that clearly represented an annoyance to Ms. Hartman, the request does not fall into an unprotected area such a “fighting words.” See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Cf. Commonwealth v. Piper, 221 Pa. Superior Ct. 187, 289 A. 2d 193 (1972), aff’d 458 Pa. 307, 328 A. 2d 845 (1974), dissenting opinion by HOFFMAN, J.; the Supreme Court affirmed on the ground that all issues were waived and did not reach the issue raised in the dissenting opinion.
. Given society’s increasing sexual permissiveness, it is unclear whether the suggested act is still considered “indecent.” See, e.g., State v. Elliot, 88 N.M. 187, 539 P. 2d 207, 17 C.L.R. 2333 (1975) (“police power does not extend to sodomitic acts between consenting adults”); Crimes Code, supra, 18 Pa. C.S. §3126 (excluding married couples from the prohibition against committing “indecent assault,” basically sodomitic acts.).
. There was testimony that appellant’s face was close to that of Ms. Hartman when she woke up. There is no evidence that he touched her or that he continued the close physical proximity.
. The New York Supreme Court, the state trial division, has addressed similar problems under §240.25 of the New York Code, also derived from the Model Penal Code. In People v. Smolen, supra, the court reversed the defendant’s conviction for harassment because the offensive speech was not accompanied by a battery and was not sufficiently continuous, repetitive and abusive to amount to a “course of conduct.” In People v. Hotchkiss, 59 Misc. 2d 823, 300 N.Y.S. 2d 405 (1969), the court held that a single utterance did not amount to a “course of conduct.” The court compared the demand of the statute of a course of conduct to the “Boy Who Cried Wolf” to indicate that some settled, continuous behavior was necessary.