J-A04034-18

                                  2018 PA Super 184



    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    GRAHAM B. SPANIER

                             Appellant                  No. 1093 MDA 2017


          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 BY STABILE, J.:                                  FILED JUNE 26, 2018

        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


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*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. § 4304(a)(1).

2  We have relied on the trial court’s opinion for our recitation of facts. See
Trial Court Opinion (TCO), 9/22/17, at 1-9.
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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


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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


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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


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3 The victim, John Doe, testified at Appellant’s trial that in the summer of
2002, when he was approximately twelve or thirteen years old, Sandusky
sexually assaulted him in the shower at the Lasch Building. See Notes of
Testimony (N.T.), 3/22/17, at 404-08.



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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



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4 18 Pa.C.S.A. §§ 4902, 4304, 5101, 903, and 23 Pa.C.S.A. § 6319,
respectively.

5 Ms. Baldwin was the general counsel of PSU, and a former Justice of the
Pennsylvania Supreme Court.

6   A count of conspiracy to endanger the welfare of children remained.



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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

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7Prior to Appellant’s trial, Schultz and Curley each pleaded guilty to a single
misdemeanor child endangerment charge.

8Respectively, Appellant was found guilty of violating a duty of care and not
guilty of preventing, in an official capacity, the making of a report of suspected
child abuse. See 18 Pa.C.S.A. §§ 4304(a)(1), (2).

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J-A04034-18


     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

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J-A04034-18


              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.

                                           […]


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9  The Dissent states that the trial court reasoned the statute of limitations
was “tolled” by the exception at § 5552(c)(3). Dissenting Opinion, at 1. We
find this to be in error, as the trial court never mentioned or relied upon any
tolling provision to conclude the prosecution for misdemeanor EWOC
commenced within the statutorily prescribed limitations period under
§ 5552(c)(3). As we explain infra, this distinction is important. A statute of
limitations may be “tolled” (or stopped from running) under 42 Pa.C.S.A.
§ 5554 when the Commonwealth can prove additional facts that qualify to toll
a limitations period. Due Process requires that a defendant be apprised prior
to trial of facts the Commonwealth intends to establish to toll a limitations
period. No such notice was required here where the complaint put Appellant
on notice of all facts that support the application of § 5552(c)(3).

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J-A04034-18


       (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



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10   The Pennsylvania Crimes Code defines EWOC in relevant part as follows:

       (a) Offense defined.--

             (1) A parent, guardian or other person supervising the
       welfare of a child under 18 years of age, or a person that employs
       or supervises such a person, commits an offense if he knowingly
       endangers the welfare of the child by violating a duty of care,
       protection or support.

                                           […]

       (b) Grading.--




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J-A04034-18


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

____________________________________________


             (1) Except as provided under paragraph (2), the following
       apply:

              (i) An offense under this section constitutes a misdemeanor
              of the first degree.

              (ii) If the actor engaged in a course of conduct of
              endangering the welfare of a child, the offense constitutes a
              felony of the third degree.

18 Pa.C.S.A. § 4304.


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J-A04034-18


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



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11  See, e.g. Commonwealth v. Morrow, 682 A.2d 347, 349 (Pa. Super.
1996) (noting that where the Commonwealth’s complaint averred the victim’s
age but did not reference the statute of limitations, the defendant was
sufficiently on notice of the applicable statute of limitations), appeal denied,
693 A.2d 587 (Pa. 1997).

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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


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J-A04034-18


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


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J-A04034-18


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

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12   Section 5554, titled “Tolling of statute,” provides:

       Except as provided by section 5553(e) (relating to disposition of
       proceedings within two years), the period of limitation does not
       run during any time when:

       (1) the accused is continuously absent from this Commonwealth
       or has no reasonably ascertainable place of abode or work within
       this Commonwealth;

       (2) a prosecution against the accused for the same conduct is
       pending in this Commonwealth; or

       (3) a child is under 18 years of age, where the crime involves
       injuries to the person of the child caused by the wrongful act, or
       neglect, or unlawful violence, or negligence of the child’s parents
       or by a person responsible for the child’s welfare, or any individual
       residing in the same home as the child, or a paramour of the
       child’s parent.

42 Pa.C.S.A. § 5554.




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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.




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13 Stockard was decided under 18 Pa.C.S.A. § 108(f), the statutory
predecessor to current 42 Pa.C.S.A. § 5554.

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J-A04034-18


      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


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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




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J-A04034-18


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




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14 There is no dispute that the victim suffered sexual abuse. We therefore
need not consider the applicability of § 5552(c)(3) to an EWOC prosecution in
which the victim is not alleged to have been the victim of a sex crime.




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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




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15   The following governs our review of this issue:

             A motion for judgment of acquittal challenges the sufficiency
       of the evidence to sustain a conviction on a particular charge, and
       is granted only in cases in which the Commonwealth has failed to
       carry its burden regarding that charge.

              The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying the above test, we
       may not weigh the evidence and substitute our judgment for the
       fact-finder. In addition, we note that the facts and circumstances
       established by the Commonwealth need not preclude every
       possibility of innocence. Any doubts regarding a defendant's guilt
       may be resolved by the fact-finder unless the evidence is so weak
       and inconclusive that as a matter of law no probability of fact may
       be drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the trier of fact while passing upon the
       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567, (Pa. Super. 2017)
(quoting Commonwealth v Hutchinson, 947 A.2d 800, 805-06, (Pa. Super.
2008)), appeal denied, 173 A.3d 255 (Pa. 2017).

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      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



                                      - 20 -
J-A04034-18


1980)). “‘Duty of care, protection, and support’ are not esoteric; rather, […]

they are easily understood and given context by the community at large.”

Lynn, 114 A.3d at 818 (quoting Commonwealth v. Mack, 359 a2d 770, 772

(Pa. 1976)).

      In Lynn, the defendant was a “high-ranking official in the Archdiocese

of Philadelphia” who was “specifically responsible for protecting children from

sexually abusive priests.” Id. at 798. Our Supreme Court concluded that

sufficient evidence supported Lynn’s conviction even though he did not directly

supervise any children.      The conviction stood because “that which is

supervised is the child’s welfare.” Id. The Court found the statute to be “plain

and unambiguous on that point.” Id. at 823. “By requiring supervision of the

child’s welfare rather than of the child, the statute endeavors to safe-guard

the emotional, psychological, and physical well-being of children.”         Id.

“[S]upervision is routinely accomplished through subordinates, and is no less

supervisory if it does not involve personal encounters with the children.” Id.

at 824.

            Like [defendant], school principals and managers of day
      care centers supervise the welfare of the children under their care
      through their management of others. Depending upon the facts,
      they could be criminally liable for endangering the welfare of
      children under their supervision if they knowingly place sexually
      abusive employees in such proximity to them as to allow for the
      abuse of these youth.

Id.




                                     - 21 -
J-A04034-18


      Lynn permitted a priest to live in the rectory of St. Jerome’s Church,

which had an attached grade school, despite allegations of the priest’s sexual

abuse of children, despite the priest’s acknowledgement that the alleged

abuse “must have” happened, and despite recommendations from the staff of

a mental health hospital that the priest be kept away from minors. Id. at

799-805. Subsequently, the priest sexually abused an altar boy at St. Jerome.

      Lynn’s conduct predated the 2007 amendment of the EWOC statute. As

applicable to Lynn, § 4304 read, “A parent, guardian, or other person

supervising the welfare of a child under 18 years of age commits an offense if

he knowingly endangers the welfare of the child by violating a duty of care,

protection or support.” Id. at 807. An investigating grand jury therefore did

not recommend criminal charges, concluding that the statute was written too

narrowly to sustain criminal charges against high-level Archdiocesan officials.

In response, the General Assembly amended § 4304 in 2007 to add the bolded

clause: “A parent, guardian, or other person supervising the welfare of a child

under 18 years of age, or a person who employs or supervises such a

person, commits an offense if he knowingly endangers the welfare of a child

by violating a duty of care, protection or support. 18 Pa.C.S.A. § 4304(a)(1)

(emphasis added).

      Despite the grand jury’s recommendations, the Philadelphia District

Attorney’s office commenced prosecution against Lynn. The Commonwealth

argued to the Supreme Court that the language of the pre-2007 EWOC statute


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J-A04034-18


plainly encompassed persons supervising others who had contact with minors.

Id. at 816. The Supreme Court agreed, holding that “[b]y its plain terms, the

[pre-2007 statute] encompasses all forms of supervision of a child’s welfare.”

Id. at 824. The Court continued:

             Further, as the Commonwealth correctly argues,
       supervision is routinely accomplished through subordinates, and
       is no less supervisory if it does not involve personal encounters
       with the children. Like [the defendant], school principals and
       managers of day care centers supervise the welfare of the children
       under their care through their management of others. Depending
       upon the facts, they could be criminally liable for endangering the
       welfare of the children under their supervision if they knowingly
       place sexually abusive employees in such proximity to them as to
       allow for the abuse of these youth.

Id.

       Appellant argues, based on a litany of factual distinctions between this

case and Lynn, that he owed no duty of care.16 Appellant notes, correctly,

that Lynn was specifically responsible for protecting children from sexual

abuse and investigating allegations of sexual abuse by clergy. Id. at 798-99.

Appellant notes, again correctly, that the instant record contains no evidence

from which we could conclude that Appellant owed a general duty of care to

all minors on Penn State’s campus at any time for any reason. Appellant’s

Brief at 45.


____________________________________________


16 Though the Lynn Court did not address duty of care, instead analyzing
whether the defendant actually supervised the welfare of minors (see Lynn,
114 A.3d at 823), both parties treat Lynn as instructive on the question of
duty.


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J-A04034-18


       However, our focus is limited to a university president’s duty in the face

of knowledge of allegations of on-campus sexual abuse of minors, in this case

by a high-status former employee with access to campus facilities. Here, as

in Lynn, Appellant was aware of specific allegations of sexual abuse. Here,

as in Lynn, Appellant occupied a position of high authority with respect to the

site of the alleged abuse. Here, as in Lynn, Appellant oversaw his institution’s

response. In his own words in an email, Appellant noted to Curly and Schultz

that the three could become vulnerable for not reporting Sandusky to

authorities if his behavior continued.17 Appellant, like the defendant in Lynn,

had sufficient information and authority to take action.        Indeed, he was

uniquely positioned to do so.

       Appellant relies heavily on the fact that the Lynn defendant was

specifically responsible for handling sex abuse allegations against clergy. In

fairness to Appellant, the Lynn Court also emphasized that fact, citing it in its

opening paragraph. Instantly, we do not have direct evidence that Appellant

was specifically responsible for handling allegations of on-campus sex abuse

of minors. The record does establish, however, that Appellant was university

president, that people working under him apprised him of the alleged abuses


____________________________________________


17 To prove the defendant’s intent, the Commonwealth must establish: (1)
that the accused was aware of his or her duty of care; (2) that the accused
was aware the child was in threatening circumstances; and (3) that the
accused failed to act or took action “so lame or meager that such actions
cannot reasonably be expected to protect the child’s welfare.”
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012).

                                          - 24 -
J-A04034-18


in 1998 and 2001, and that, in 2001, he oversaw and approved the university’s

woefully deficient response. Thus, the lack of evidence that Appellant was the

“point man” in the case of alleged on-campus abuse of minors, or that he was

“specifically responsible” for addressing all such cases does not undermine or

preclude a conclusion that he was supervising the welfare of a child. The facts

remain that Appellant was the school’s highest authority and that he

personally oversaw PSU’s response to the 2001 allegations.

      Appellant also distinguishes Lynn on ground that he did not supervise

persons who interacted directly with the minor in question, as did the Lynn

defendant or as would a school principal or daycare manager. Again, we find

the distinction unpersuasive.   The Lynn Court held that it is the child’s

welfare that is supervised under § 4304. The facts before us establish that

Appellant, a university president, supervised his school’s response to repeated

allegations of on-campus abuse of a minor by a high-status former employee

with access to campus facilities. He was clearly supervising a child’s welfare

pursuant to Lynn.

      The Lynn Court, however, did not address the duty of care question.

The extent to which “supervision of a child’s welfare” and “duty of care”

overlap has, as the Lynn Court noted, been the subject of varied

interpretation by this Court.    In Bryant, we noted that “[o]n multiple

occasions, we have extended a duty of care to non-relatives who exercise

some supervisory role over children.” Bryant, 57 A.3d at 197. Thus, Bryant


                                    - 25 -
J-A04034-18


can be read to hold that a duty of care follows the supervisory role. In Brown,

however, we explained that supervision of welfare and duty of care are distinct

elements, one governing the class of persons subject to the law and the other

governing the proscribed conduct. Brown, 721 A.2d at 1107-08.

      This case, in the words of Bryant, presents a non-relative in a

supervisory role, and thus precedent exists for extending a duty of care in this

case. From there, we consider our Supreme Court’s repeated directive that

we must construe § 4304 to “effectuate its broad purpose of sheltering

children from harm” and keep in mind the “common sense of the community”

in determining which conduct is criminal under § 4304. Lynn, 114 A.3d at

818. To hold that Appellant was not supervising a child’s welfare when he

oversaw PSU’s response to the Sandusky allegations, or to hold that he owed

no duty of care in his exercise of that supervisory authority, would plainly not

effectuate the purpose of sheltering children from harm. Similarly, we cannot

believe that the common sense of the community would find that Appellant

owed no duty of care in discharging his supervisory role. See Lynn, 114 A.3d

at 818 (“‘Duty of care, protection, and support’ are not esoteric; rather, […]

they are easily understood and given context by the community at large.”)

On the facts before us therefore, we conclude that Appellant was supervising

the welfare of a child and owed a duty of care to the child. We need not decide

whether and to what extent the supervisory role and the duty of care overlap

in all cases.


                                     - 26 -
J-A04034-18


      Next, we consider Appellant’s argument that the version of § 4304

extant in 2001 did not apply to him because he did not supervise children

directly. The Lynn Court wrote: “A subsequent change in language does not

retroactively alter the legislative intent that is apparent in the plain language

of the prior version of the statute.” Id. at 827. Thus, the Lynn Court upheld

the defendant’s conviction under the pre-2007 version of EWOC even though

the pre-2007 did not expressly apply to a person “who employs or supervises”

someone supervising the welfare of a child. Appellant would distinguish Lynn

because the defendant there was supervising priests who directly interacted

with children. Here, in contrast, there is no evidence that Appellant supervised

anyone who interacted directly with Sandusky’s minor victims. As we have

already explained above, the Lynn Court held that § 4304 applies to persons

who supervise a child’s welfare, not persons who supervise a child. The

absence of direct interaction between Appellant, Shultz, or Curley and

Sandusky’s victims therefore does not preclude Appellant’s conviction under

the pre-2007 version of § 4304 as construed in Lynn.

      Finally, Appellant claims the trial court erred in refusing to instruct the

jury on the statute of limitations, and that the trial court erred in instructing

the jury on the 2007 version of EWOC. “[A] trial court has broad discretion in

phrasing its instructions, and may choose its own wording so long as the law

is clearly, adequately, and accurately presented to the jury for its

consideration. Only where there is an abuse of discretion or an inaccurate


                                     - 27 -
J-A04034-18


statement of the law is there reversible error.”           Commonwealth v.

Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (quoting Commonwealth

v. Trippett, 932 A.2d 188, 200 (Pa. Super. 2007)), appeal denied, 95 A.3d

275 (Pa. 2014).

      Prior to trial, Appellant submitted a proposed jury instruction for child

endangerment that reflected the language of the 2001 statute and the

Pennsylvania Supreme Court’s interpretation of that statute, and he requested

an instruction on the statute of limitations. The trial court stated that it would

give the standard jury instruction on child endangerment and would charge

the jury according to the 2007 version of the statute. Given our analysis of

the statute of limitations and of the Lynn Court’s treatment of the pre-2007

version of § 4304, we discern no reversible error.

      Specifically, concerning the applicability of § 5552(c)(3), we have

rejected Appellant’s argument that the prosecution was “facially time-barred.”

Appellant’s Brief at 57.       Rather, the applicability of § 5552(c)(3) to

misdemeanor EWOC was evident from the complaint and grand jury

presentment, and the Commonwealth’s evidence as to the victim’s age went

unchallenged. Given these circumstances, we find no reversible error in the

absence of a statute of limitations instruction.         Regarding the EWOC

conviction, we have concluded that the language added in 2007 or, more

appropriately, the language not included in the pre-2007 version, does not

alter the result here. On the facts of this case, the trial court’s instruction on


                                     - 28 -
J-A04034-18


the 2007 version of the EWOC statute did not result in an inaccurate statement

of the law.

      Appellant’s final argument, that the trial court’s EWOC instruction failed

to apprise the jury of all of the elements of that offense, rests largely on

Appellant’s contentions that the instant case is factually distinguishable from

Lynn, and that those factual distinctions preclude a conviction here.       Our

disagreement with the latter contention, explained above, leads us to find no

reversible error in the trial court’s instruction.

      For all of the foregoing reasons, we conclude that Appellant’s assertions

of error lack merit. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Nichols joins the opinion.

      Judge Ransom files a dissenting opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2018




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