Appeal
from the Judgment of Sentence Entered June 2, 2017 In the
Court of Common Pleas of Dauphin County Criminal Division at
No: CP-22-CR-0003615-2013
BEFORE: STABILE, NICHOLS, and RANSOM, [*] JJ.
OPINION
STABILE, J.
Appellant,
Graham B. Spanier, appeals from the judgment of sentence of
four to twelve months of incarceration, imposed June 2, 2017,
following a jury trial resulting in his conviction for one
count of endangering the welfare of a child
("EWOC").[1] We affirm.
Appellant
is the former President of the Pennsylvania State University
("PSU"), and served in that capacity from 1995
through 2011.[2] The charges against him arise from his
response to allegations of sexual misconduct against Gerald
"Jerry" A. Sandusky, who was the defensive
coordinator for the Penn State football team and founder of a
non-profit charity for troubled youth, The Second Mile
("TSM").
In May
1998, the mother of an eleven-year-old boy who was a
participant in Sandusky's charity program contacted PSU
Police. She informed a detective that Sandusky had
bear-hugged her son while both were naked in the shower. An
investigation commenced, and various PSU officials were
informed, including Tom Harmon, PSU's Chief of Police,
Gary Schultz, PSU's Vice President for Finance and
Business, and Tim Curley, PSU's Athletic Director.
Schultz and Curley corresponded regularly by email regarding
the investigation. Appellant was a carbon-copy recipient of
some of those emails. Ultimately, no criminal charges were
filed, and the investigation closed in June 1998. The
university took no further action regarding Sandusky at that
time.
On the
evening of February 9, 2001, Michael McQueary, a graduate
assistant with the PSU football team, went into the Lasch
Building. He heard noises and, upon investigating, observed
Sandusky sexually assaulting a ten-to twelve-year-old boy in
the shower. McQueary left the building but informed his
father about the incident later that night. On February 10,
2001, McQueary told head football coach Joe Paterno about
what he had seen. On February 11, 2001, Paterno contacted
Curley, who in turn informed Schultz.
On
February 12, 2001, following a routine president's
council meeting, Curley and Schultz met privately with
Appellant to discuss Sandusky. They discussed the recent
incident and the 1998 incident, which Appellant remembered.
They devised a three-part plan: 1) speaking with Sandusky
about appropriate use of facilities; 2) contacting the
director of TSM; and 3) contacting the Department of Public
Welfare ("DPW"). Appellant put Curley in charge of
executing the plan and keeping Schultz informed.
On
February 17, 2001, Curley informed Schultz that he had not
begun to implement the plan. The next week, Curley and Shultz
met with McQueary. He did not describe the incident in
detail, but stated that Sandusky's conduct was sexual and
"over the line." On February 25, 2001, Curley and
Schultz informed Appellant of McQueary's account. The
next day, Schultz sent Curley an email requesting he execute
the three-step plan.
On
February 27, 2001, Curley emailed Schultz and Appellant to
say that he was no longer comfortable with the original plan.
Instead, Curley wanted to speak only with Sandusky at first
to advise him to seek professional help, and to tell him he
could no longer bring underage boys to PSU facilities. If
Sandusky cooperated, Schultz, Curley, and Appellant would
inform only TSM; otherwise, they would inform both TSM and
DPW. Appellant supported Curley's plan, though he
observed that if Sandusky did not cooperate, they would be
vulnerable for not having reported the incident.
Sandusky
denied any wrongdoing when Curley spoke to him. Nevertheless,
Curley told him that he could no longer bring children into
PSU athletic facilities and that the director of TSM, Jack
Raykovitz, would be informed. Curley spoke to Raykovitz and
expected Raykovitz to enforce the limits on Sandusky's
use of PSU facilities, but Curley did not offer Raykovitz any
direction on how to proceed. After speaking with Sandusky and
Raykovitz, Curley informed Appellant and Schultz that he had
done so. Curley never contacted DPW, Children and Youth
Services, or the police. Further, Curley did not inform
campus police that Sandusky was not permitted to bring
children into the facilities, or inform any other PSU
personnel that they should enforce this rule. McQueary
continued to observe Sandusky in the Lasch Building after
hours.
Sandusky
subsequently abused at least four more young boys, including
one in the Lasch Building shower in the summer of
2002.[3] In 2011, Sandusky was arrested and
charged with forty-nine counts arising from his alleged abuse
of ten child victims. A jury found Sandusky guilty on
multiple counts. Appellant was removed as PSU president while
the charges against Sandusky were pending.
On
November 1, 2012, Appellant was charged with one count of
perjury, two counts of endangering the welfare of children
("EWOC"), one count of obstruction of justice,
three counts of conspiracy, and one count of failure to
report suspected child abuse.[4] Appellant filed pre-trial
motions seeking to preclude the introduction of the testimony
of Cynthia Baldwin[5] and quash charges against him based
upon violation of attorney-client privilege. The trial court
denied those motions, and Appellant timely filed an
interlocutory appeal. A prior panel of this Court determined
that Ms. Baldwin had breached attorney-client privilege and,
therefore, was incompetent to testify as to her confidential
communications with Appellant. See Commonwealth v.
Spanier, 132 A.3d 481, 482 (Pa. Super. 2016).
Accordingly, this court quashed the charges of perjury,
obstruction of justice, and conspiracy to commit
perjury.[6] Id.
Following
remand, Appellant filed an omnibus pre-trial motion and a
habeas corpus petition requesting dismissal of the
failure to report and child endangerment charges, asserting
that they were time-barred. The Commonwealth responded that
the charges were not time-barred because Appellant had
engaged in a course of conduct and the statute of limitations
did not commence until the course of conduct was complete.
The trial court dismissed the failure to report charge as
time-barred but denied Appellant's request to dismiss the
EWOC charges.
The
case proceeded to jury trial in March 2017.[7] The jury
found Appellant guilty of EWOC, 18 Pa.C.S.A. §
4304(a)(1), not guilty of EWOC, 18 Pa.C.S.A. §
4304(a)(2)[8], and not guilty of conspiracy to
endanger the welfare of children. Additionally, the jury
found Appellant had not engaged in a course of conduct with
respect to the EWOC conviction, resulting in a conviction for
a misdemeanor rather than a felony. 18 Pa.C.S.A. §
4304(b)(1)(ii).
On June
2, 2017, the court sentenced Appellant to four to twelve
months of incarceration followed by two years of probation.
This timely appeal followed. Appellant raises the following
questions for our review:
1. The Commonwealth bears the burden of proving that this
prosecution, which was commenced on November 1, 2012, was
brought within the two-year statute of limitations for
endangering the welfare of children. The only argument the
Commonwealth made before or at trial that the charge was not
time barred was that [Appellant] endangered the welfare of
children through a course of conduct. Where the only evidence
presented at trial regarding this charge involved conduct in
February 2001, and the jury specifically found that
[Appellant] did not engage in a course of conduct,
did the trial court err in not entering judgment of
acquittal?
2. The Commonwealth was required to prove beyond a reasonable
doubt that [Appellant] was supervising the welfare of a minor
child to whom [Appellant] owed a duty of care, protection, or
support. The duty of care, protection, or support must exist
in law. A person supervising the welfare of a child is
someone who provides permanent or temporary care,
supervision, or control of a child in lieu of parental care,
supervision, and control. Where the Commonwealth presented no
evidence of a statutory, contractual, or common-law duty of
care that [Appellant] owed any minor child or that he had any
direct interaction with minor children or was the point
person for abuse allegations or supervised the individual who
abused minor children on campus, did the trial court err in
not entering a judgment of acquittal?
3. The state and federal constitutions prohibit the
government from imposing punishment for conduct that was not
criminal at the time of the conduct but was later
criminalized. In 2001, when the alleged conduct at issue here
occurred, the child-endangerment statute did not encompass
someone who was employing or supervising someone else who was
supervising the welfare of a minor child; this
"employing or supervising" provision was added to
the statute in 2007. To the extent [Appellant]'s
child-endangerment conviction was based on his alleged
employment or supervision of someone else who was supervising
the welfare of a child, did the trial court err in not
entering a judgment of acquittal?
4. A jury in a criminal case must be given a fair, accurate,
and complete statement of the law. A new trial should be
ordered where there is an omission from the charge amounting
to a fundamental error.
a. Where [Appellant] argued before trial that the
child-endangerment charge was time-barred and requested that
the jury be instructed on this issue, did the trial court err
in denying this request and denying [Appellant's] motion
for a new trial due to that error?
b. Where the only conduct at issue here occurred in 2001, did
the trial court err in denying [Appellant's] request to
instruct the jury on the 2001 version of the
child-endangerment statute rather than the 2007 version and
denying his motion for a new trial due to that error?
c. Where the standard jury instructions for child
endangerment do not reflect a complete statement of the law,
as interpreted by this Court and the Supreme Court, did the
trial court err in using that instruction and in denying
[Appellant's] requested instruction on child endangerment
and denying his motion for a new trial due to that error?
Appellant's
Brief at 4-6 (answers omitted).
We
first consider Appellant's argument that the EWOC
prosecution is barred by the statute of limitations. This
raises a question of law, for which our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Vega-Reyes, 131 A.3d 61, 63 (Pa.
Super. 2016) (en banc). The trial court
reasoned that the statute of limitations was timely pursuant
to 42 Pa.C.S.A. § 5552(c)(3). See Trial Court
Opinion, 9/22/17, at 9-10.[9] Section 5552 creates exceptions to
the two-year statute otherwise made generally applicable
under 5552(a):
(a) General rule.--Except as otherwise
provided in this subchapter, a prosecution for an offense
must be commenced within two years after it is committed.
[…]
(c) Exceptions.--If the period prescribed in
subsection (a), (b) or (b.1) has expired, a prosecution may
nevertheless be commenced for:
[…]
(3) Any sexual offense committed against a minor who is less
than 18 years of age any time up to the later of the period
of limitation provided by law after the minor has reached 18
years of age or the date the minor reaches 50 years of age.
As used in this paragraph, the term "sexual
offense" means a crime under the following provisions of
Title 18 (relating to crimes and offenses):
[…]
Section 4304 (relating to endangering welfare of children).
[…]
42 Pa.C.S.A. § 5552(a), (c).
At
trial the Commonwealth sought a felony conviction for EWOC
under § 4304(b)(1)(ii), which requires proof that the
perpetrator engaged in a course of conduct.[10] Had the
Commonwealth succeeded, the statute of limitations presumably
would have commenced when the course of conduct ended.
See 42 Pa.C.S.A. § 5552(d). The jury, however,
found no course of conduct and therefore found Appellant
guilty of the lesser-included misdemeanor offense under 18
Pa.C.S.A. § 4304(b)(1)(i). Well-settled law permits
this.
Established Pennsylvania law states a defendant can be
convicted of a crime that was not actually charged when the
uncharged offense is a lesser-included offense of the charged
crime. As long as the conviction is for a lesser-included
offense, the defendant will have been put on notice of the
charges against him and can adequately prepare a defense.
Commonwealth v. Houck, 102 A.3d 443, 449-50 (Pa.
Super. 2014) (citing Commonwealth v. Sims, 919 A.2d
931 (Pa. 2007)).
Pursuant
to Houck, Appellant was on notice that he was liable
to be convicted of misdemeanor EWOC. Attendant to that,
Appellant was on notice of the applicability of §
5552(c)(3), which expressly applies to offenses under §
4304. The Commonwealth filed its complaint against Appellant
on November 1, 2012, more than eleven years after the
February 9, 2001 offense and well outside of the general
two-year limitations period of § 5552(a). Thus, it was
plainly evident when the Commonwealth filed its complaint
that § 5552(c)(3) would govern the limitations period
for a misdemeanor EWOC prosecution.
We are
cognizant that § 5552 was amended since the 2001
offense. On February 9, 2001, § 5552(c)(3) provided
that, for a sexual offense committed against a minor less
than 18 years of age, prosecution could be commenced within
two years after the victim's 18th birthday.
1990 Pa. Laws 1341, No. 208, § 1. The 2001 version of
§ 5552(c)(3) identified § 4304 as a sexual offense
(as we will discuss below, it still does). Id.; 42
Pa.C.S.A. § 5552(c)(3). Pursuant to the version of
§ 5552(c)(3) extant at the time of the 2001 offense,
therefore, the Commonwealth had until two years after the
victim's 18th birthday to commence this
prosecution against Appellant.
The
grand jury presentment, attached to the criminal complaint as
"Exhibit A," stated that the victim of the 2001
offense was a prepubescent boy. Criminal Complaint, 11/1/12,
Exhibit A at 15.[11] At trial, the Commonwealth presented
unchallenged evidence that the victim was 10 to 12 years old
at the time of his February 9, 2001 sexual assault.
Therefore, on January 29, 2007, when the current version of
§ 5552(c)(3) took effect, the victim was no more than 18
years old. Because the existing statute had yet to expire at
the time of its amendment, the amended statute applies to
this prosecution. Commonwealth v. Harvey, 542 A.2d
1027, 1030-31 (Pa. Super. 1988) (en banc). Section
5552(c)(3), as amended in 2007, permitted the Commonwealth to
commence this prosecution any time prior to the victim's
50th birthday. 42 Pa.C.S.A. § 5552(c)(3). The
victim would have been in his early twenties on November 1,
2012, when the Commonwealth commenced this prosecution. In
summary, Appellant's notice of the applicable limitations
period was "sufficiently specific so as to allow
[Appellant] to prepare any available defenses."
Sims, 919 A.2d at 939. This prosecution was timely.
Appellant
offers several bases for avoiding this result, none of which
we find availing. Appellant asserts the prosecution was
untimely, since the only argument the Commonwealth ever made
to surmount the limitations bar was that Appellant engaged in
a course of conduct continuing until after November 2010. The
jury expressly rejected that theory, thus defeating the
Commonwealth's sole statute of limitations argument.
While it is true the jury's rejection of a course of
conduct defeated the Commonwealth's attempt to secure a
conviction for EWOC as a felony, Appellant's argument
that the rejection of a course of conduct finding rendered
this prosecution untimely is misplaced. The argument ignores,
as previously stated, that Appellant was convicted of EWOC as
a misdemeanor not dependent upon a course of conduct finding.
Likewise,
we cannot conclude, as Appellant urges, that the Commonwealth
waived its ability to rely upon § 5552(c)(3) because it
sought a conviction based upon a course of conduct. As
explained, Appellant was always on notice of his potential
liability for misdemeanor EWOC. Houck,
supra.
Appellant
argues further that the Commonwealth cannot avoid the
limitations bar through the trial court's after-the-fact
reliance on § 5552(c)(3), which the Commonwealth never
raised nor addressed at trial. Appellant points out that
nowhere in its criminal complaint, presentment, information,
pre-trial motion briefing, proposed jury instructions, or
arguments at trial did the Commonwealth invoke the statute of
limitations exception at § 5552(c)(3). Appellant argues
that the Commonwealth was required to provide notice of its
intent to "toll" the statute of
limitations under § 5552(c)(3) and is prohibited from
doing so for the first time post-verdict, let alone on
appeal. In support of this proposition Appellant cites
Commonwealth v. Bethlehem, 570 A.2d 563 (Pa. Super.
1989), abrogated in part, Commonwealth v.
Gerster, 656 A.2d 108 (Pa. 1995), which he maintains is
directly on point. We disagree.
In
Bethlehem, the defendant was convicted of various
sexual crimes committed against his young niece during family
visits to the victim's former residence where she lived
with her parents on or before May 17, 1982. The complaint
against the defendant was filed June 3, 1987, after the
longest applicable statute of limitations already had
expired. In response to defense motions arguing that the
charges were barred by the applicable statute of limitations,
the Commonwealth made no attempt to argue that any applicable
statute of limitations was tolled under §
5554(3)[12]. Rather, the
Commonwealth
incorrectly maintained only that time elements were not
controlling in cases involving minors. In response to post-
verdict claims, the Commonwealth attempted for the first time
to argue that the statute of limitations was tolled by the
parent or guardian exception under § 5554(3). This Court
held that the Commonwealth's post-verdict claim that
proof of the applicable exception came too late. At no time
pre-trial was the defendant given notice, actual or
constructive, of the Commonwealth's intent to claim
tolling of the statute of limitations under § 5554(3).
The rationale for this conclusion is grounded in due process.
When the Commonwealth seeks to toll the statute of
limitations by establishing one of the tolling exceptions, it
must allege the exception in the indictment. Commonwealth
v. Stockard, 413 A.2d 1088 (Pa. 1980).[13] The
purpose of this rule is to apprise a defendant that he must
defend not only against the crime itself, but also against
the limitation of prosecution. Id. A defendant must
have some reasonable time before trial to be apprised of the
fact(s) the Commonwealth will seek to prove to toll the
statute of limitations in order to satisfy the due process
requirements of notice. Id. The Commonwealth's
failure in Bethlehem to apprise the defendant of
facts it intended to prove to toll the applicable statute
violated due process. Unlike Bethlehem, the
Commonwealth here did not attempt to invoke any of the
exceptions under § 5554 to toll the statute of
limitations. More importantly, the prosecution for
misdemeanor EWOC was not dependent upon proof of any facts
outside those already alleged in the complaint. Thus, unlike
Bethlehem, notice requirements under due process
were not violated here.
Likewise,
we find Commonwealth v. Goldhammer, 489 A.2d 1307,
1312 (Pa. 1985), also cited by Appellant not persuasive. In
Goldhammer, the Pennsylvania Supreme Court held that
the Commonwealth could not rely on § 5552(c)(1) to
salvage the timeliness of a prosecution. That section applies
to offenses for which fraud or breach of fiduciary duty is a
material element, and it permits commencement of prosecution
within one year of discovery of the fraud or
breach. 42 Pa.C.S.A. § 5552(c)(1). While acknowledging
that when the Commonwealth seeks to toll the statute of
limitations it must allege the exception in the information
or otherwise apprise the defendant within a reasonable time
that it intends to toll the statute, the Court concluded the
discovery provision under § 5552(c)(1) did not apply
because neither fraud nor breach of fiduciary duty was a
material element of theft by unlawful taking. Id. at
1312-13.
Bethlehem
and Stockard are easily distinguishable from
Appellant's case in that they construe the statutory
tolling provision, currently codified at 42 Pa.C.S.A. §
5554. Section 5554 does not set the applicable limitations
period for any offense, and that section is not at issue in
this case. Likewise, under § 5552(c)(1), at issue in
Goldhammer, the Commonwealth must give notice of its
intent to prove that the prosecution commenced within one
year of the discovery of fraud or breach of fiduciary duty.
42 Pa.C.S.A. § 5552(c)(1). In other words, the
Commonwealth must give notice of its intent to establish that
the applicable limitations period did not commence until its
discovery of a pertinent fact. In this respect, §
5552(c)(1) is similar to § 5554 because the Commonwealth
has to allege and provide a defendant notice of facts
regarding its discovery of the offense. Instantly, no
additional facts beyond those in the complaint were necessary
to place the defendant on notice of that which he would be
required to defend against at trial.
Simply
put, this case does not involve "tolling" wherein
the Commonwealth would have had an obligation to apprise the
Appellant of additional facts to defend against in response
to his statute of limitations defense. The Commonwealth
alleged no facts that forestalled the commencement of the
limitations period or interrupted its running. Per
Sims and Houck, Appellant was on notice of
his potential criminal liability for misdemeanor EWOC. No
limitations period other than § 5552(c)(3) applied to
that offense in this case. The complaint and the attached
grand jury presentment apprised Appellant of the facts
relevant to the applicable limitations period in order to
defend against the lesser-included offense of EWOC as a
misdemeanor. Bethlehem, Stockard, and
Goldhammer are inapposite, as they, unlike the
instant case, required that the defendant be given notice of
additional facts the Commonwealth intended to prove in order
to comply with due process. Appellant has failed to establish
that the Commonwealth violated due process by failing to
notify him that § 5552(c)(3) set the limitations period
for the misdemeanor EWOC prosecution. Both the misdemeanor
offense of EWOC and its applicable statute of limitations
were known to the Appellant prior to trial.
Appellant
also seeks to avoid the application of § 5552(c)(3) by
arguing that he did not personally commit a sexual offense.
This argument fails because § 5552(c)(3) expressly and
unambiguously identifies § 4304 as one of the sexual
offenses to which § 5552(c)(3) applies. 42 Pa.C.S.A.
§ 5552(c)(3) ("As used in this paragraph, the term
'sexual offense' means a crime under the following
provisions of Title 18 (related to crimes and offenses):
[…] Section 4304 (relating to endangering welfare of
children))." Furthermore, § 4304, by its clear
terms, does not require sexual misconduct on the part of the
perpetrator.[14] Because § 5502(c)(3) clearly
lists EWOC as a sexual offense, and because EWOC does not
require the perpetrator to be the person committing sexual
abuse, Appellant's argument fails. Appellant would have
us find statutory ambiguity where none exists, a course of
action not permissible under the rules of statutory
construction. 1 Pa.C.S.A. § 1921(b) ("When the
words of the statute are free and clear from all ambiguity,
the letter of it is not to be disregarded under the pretext
of pursuing its spirit."). For all of the foregoing
reasons, we reject Appellant's argument that the
prosecution was untimely.
Next,
Appellant argues that the evidence for his conviction under
§ 4304 is insufficient because he owed no duty of care
to the victim of the February 9, 2001 assault.[15]
Our
Supreme Court has addressed proper construction of the EWOC
statute:
Generally speaking, under the rule of lenity, penal statutes
are to be strictly construed, with ambiguities resolved in
favor of the accused. In the peculiar context of EWOC,
however, we have held that the statute is protective in
nature, and must be construed to effectuate its broad purpose
of sheltering children from harm. Specifically, the purpose
of such juvenile statutes is defensive; they are written
expansively by the legislature to cover a broad range of
conduct in order to safeguard the welfare and security of our
children. In the context of protective juvenile legislation,
therefore, we have sanctioned statutes that, rather than
itemizing every undesirable type of conduct, criminalize
instead the conduct producing or tending to produce a
[c]ertain defined result[.] We have accordingly observed:
The common sense of the community, as well as the sense of
decency, propriety and the morality which most people
entertain is sufficient to apply the statute to each
particular case, and to individuate what particular conduct
is rendered criminal by it.
Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015)
(internal citations and quotation marks omitted). Further,
when "legal issues are premised on the sufficiency of
the evidence, the record is read in the light most favorable
to the Commonwealth as verdict winner, with the benefit of
all reasonable inferences therefrom." Id. at
818.
"The
objective [of § 4304] is to confine criminal punishment
for endangering the welfare of children to consequential acts
violative of some settled obligation springing from the
supervisory relationship of actor to child."
Commonwealth v. Taylor, 471 A.2d 1228, 1230 (Pa.
Super. 1984) (quoting Model Penal Code § 230.4 comment
(Official Draft and Revised Comments 1980)). "'Duty
of care, protection, and support' are not esoteric;
rather, […] they are easily understood and given
...