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Commonwealth v. Spanier

Superior Court of Pennsylvania

June 26, 2018


          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



          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 ...

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