Commonwealth v. Spanier, 304 MDA 2015

Citation132 A.3d 481
Decision Date22 January 2016
Docket NumberNo. 304 MDA 2015,304 MDA 2015
Parties COMMONWEALTH of Pennsylvania, Appellee v. Graham B. SPANIER, Appellant.
CourtPennsylvania Superior Court

Jeffrey B. Wall, Washington, DC, for appellant.

Amy Zapp, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

OPINION BY BOWES

, J.:

Graham B. Spanier appeals from the order denying his pre-trial motions to preclude the introduction of testimony of Cynthia Baldwin1 and quash certain criminal charges against him based on violations of the attorney-client privilege.2 We find that Ms. Baldwin breached the attorney-client privilege and was incompetent to testify as to confidential communications between her and Spanier during her grand jury testimony. Accordingly, we reverse the trial court's determination otherwise, and quash the charges of perjury, obstruction of justice, and conspiracy related to those counts.

The Commonwealth has charged Spanier with perjury, failure to report suspected child abuse, obstruction of justice, and conspiracy to commit perjury, conspiracy to commit obstruction of justice, conspiracy to commit endangering the welfare of a child ("EWOC"), and two counts of EWOC.3 The charges stem from: 1) his treatment of allegations of sexual misconduct against Gerald "Jerry" A. Sandusky, the former defensive coordinator for the Penn State football team and founder of a non-profit charity serving underprivileged youth, the Second Mile; 2) his testimony pertaining to his handling of those matters before an investigating grand jury, and 3) the testimony of Cynthia Baldwin.4

Spanier is the former President of the Pennsylvania State University ("Penn State" or "University"). In 2009, the Pennsylvania Office of Attorney General ("OAG") began investigating allegations that Sandusky sexually abused children over an extended period. As part of the investigation, the OAG convened a statewide investigating Grand Jury. During the course of the investigation, the OAG learned of sexual misconduct by Sandusky that occurred while he was on the campus of Penn State in 2001, as well as an incident involving inappropriate behavior with a minor in 1998.

The grand jury investigation revealed the following regarding the 1998 matter. That incident involved an eleven-year-old boy. See Thirty–Third Statewide Investigating Grand Jury Sandusky Presentment, 11/4/11, at 18 (hereinafter Sandusky Presentment). Sandusky transported the victim from the victim's home to Penn State. Sandusky Presentment at 18. On the way to the University, Sandusky placed his right hand on the boy's thigh on multiple occasions. Id. The pair lifted weights for approximately twenty minutes before playing a game with a tape ball and cups. Id. Sandusky then wrestled with the victim, before instructing the boy to shower. Id.

The youngster attempted to shower away from Sandusky, but Sandusky beckoned him closer and told him that he warmed up a shower for the child. Id. at 18–19. Sandusky grabbed the boy from around his waist, lifting him into the air. Id. at 19. He also washed the boy's back and bear hugged the child from behind, before rinsing the child's hair. Id.

When Sandusky returned the child to the boy's home, the child's mother noticed that his hair was wet and became upset when she discovered that he had showered with Sandusky. Id. She reported the matter to University Police, who initiated an investigation. Id. University Police conducted a wiretap on Sandusky, with the permission of the boy's mother, recording two conversations. Id. Sandusky admitted to showering naked with the child and at one point stated that he wished he were dead. Id. at 20. He later told police that he hugged the child in the shower and admitted that it was wrong. Id. No charges were ultimately filed.

The grand jury investigation also revealed that in 2001, former Penn State assistant football coach, Michael McQueary, who had been a quarterback at Penn State, witnessed Sandusky commit a sexual assault against a minor in a locker room shower on the main campus of the University in February of 2001. Id. at 6. McQueary, then a graduate assistant, reported this incident to head football coach Joe Paterno the next day, a Saturday. Id. at 7. Paterno, in turn, reported the matter to Athletic Director Tim Curley the following day. Id. Within two weeks of the shower incident, McQueary met with Curley and Vice President of Finance and Business Gary Schultz.5 Id. McQueary, who testified before the grand jury prior to January 12, 2011, stated that he told the pair that he believed he saw Sandusky having anal sex with a minor boy. Id.

In contrast, Curley testified that they were only told of inappropriate conduct and that there was no indication that Sandusky had engaged in anal sex. Conversely, Schultz testified that he had been present for a meeting with Paterno and Curley regarding the incident as well as a later meeting with only Curley and McQueary. Schultz and Curley apprised Spanier that Sandusky had been observed in the shower of the football building with a child and that the person who witnessed the pair was uncomfortable. Spanier acknowledged that meeting in his own grand jury testimony and testified that he had been told that Sandusky had been witnessed in horseplay in the shower with a child.

Spanier advised Curley and Schultz that "something like that could be misconstrued and probably we wanted to discourage people bringing younger kids into our facilities." N.T., Grand Jury Proceeding, 4/13/11, at 16. Hence, he instructed them to inform Sandusky not to bring children into the locker room and to contact the chair of the Second Mile foundation. No other action was taken.

As part of the criminal investigation into Sandusky, the OAG subpoenaed Schultz, Curley, and Paterno in December 2010. In addition, Ms. Baldwin was served with a subpoena duces tecum, Grand Jury Subpoena 1179, for University documents referencing or related to Jerry Sandusky after 1997. Although the University was served with that subpoena in December 2010, it was not until April 2012 that relevant documents were turned over. Although Ms. Baldwin maintained that she informed Spanier of the subpoena and asked if he, Schultz, and Curley had any documents, to which they responded in the negative, she did not follow University protocol in ensuring compliance with that subpoena.6

After Ms. Baldwin alerted Spanier to the University subpoena and informed him of the subpoenas for Curley, Paterno, and Schultz, she agreed that she would represent each of them before the grand jury. Paterno, however, elected to retain his own attorney. Ms. Baldwin met independently with Curley on January 3, 2011, and later met with Schultz on January 5, 2011, to explain the grand jury process. She attended pre-grand jury testimony interviews conducted by the OAG with Curley and Schultz on January 12, 2011. She also was present for the grand jury testimony of both Curley and Schultz on that same date.

Spanier was summoned to testify before the grand jury on April 13, 2011. Before his grand jury testimony, Spanier was interviewed by the OAG in March of 2011. Ms. Baldwin was present for that interview. Prior to Spanier's April testimony, but on the same day of that testimony, Ms. Baldwin objected to the scope of Subpoena 1179 before Judge Barry Feudale, the grand jury supervising judge.

After she left the room, and outside of Spanier's presence, the OAG represented to Judge Feudale that the recollections of Curley and Schultz pertaining to the 2001 incident were inconsistent. The OAG further noted that, based on the testimony of Paterno and McQueary, it believed that the testimony of Curley and Schultz lacked credibility. The OAG also indicated that Spanier, in his interview, had provided a story, similar to Curley's, that he had only been told of nonsexual horseplay. These representations were made in discussions over the scope of Subpoena 1179, which had not yet been complied with by Ms. Baldwin and the University. Hence, it was clear at that point to both Judge Feudale and the OAG that the grand jury was investigating the actions of high-ranking Penn State officials, including Curley, Schultz, and Spanier.

During this exchange, Judge Feudale referred to Ms. Baldwin as counsel for Spanier, setting forth to Deputy Attorney General Jonelle Eshbach, "It appeared that counsel for Mr. Spanier initially expressed concern about recent disclosures and didn't get specific about that and then indicated that there was a broad amount of materials that were subpoenaed[.]" N.T., Grand Jury Subpoena/Colloquy Proceeding, 4/13/11, at 17. Thereafter, the OAG averred, with respect to Spanier testifying, "We're not going to ask him about anything related to the subpoena. I didn't hear Attorney Baldwin object to his testimony yet." Id. at 22. The court then brought Ms. Baldwin back into the room. At one point, Judge Feudale stated to Ms. Baldwin, "I also learned that evidently the testimony of your witness today could proceed without the discussions, especially since you didn't file a written motion to quash and wasn't [sic] very specific with regard to what it is that you felt was inappropriately subpoenaed or whatever concerns you were having with regard to compliance with the subpoena." Id. at 23.

Subsequently, after discussions regarding compliance with the Subpoena 1179 were coming to a close, Judge Feudale inquired, "Cindy, [Ms. Baldwin] just for the record, who do you represent?" Id. at 28. Outside the presence of Spanier, and for the first time on the record, Ms. Baldwin responded, "The university." Id. Judge Feudale followed up, "The university solely?" Ms. Baldwin answered, "Yes, I represent the university solely." Id.

Immediately after this questioning, Spanier was brought into the room. Judge Feudale then colloquied Spanier, with Ms. Baldwin present, as follows.

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6 cases
  • Spanier v. Dir. Dauphin Cnty. Prob. Servs.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 1, 2020
    ...interlocutory appeal regarding whether the testimony of Penn State's former general counsel was admissible. See Commonwealth v. Spanier , 132 A.3d 481, 482 (Pa. Super. Ct. 2016). What transpired during that time is not relevant to the issues we address in this appeal.2 Spanier was acquitted......
  • Commonwealth v. Spanier
    • United States
    • Pennsylvania Superior Court
    • June 26, 2018
    ...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......
  • Office of Disciplinary Counsel v. Baldwin
    • United States
    • Pennsylvania Supreme Court
    • February 19, 2020
    ...all of the perjury, obstruction of justice and related conspiracy charges. Curley , 131 A.3d at 1007 ; Schultz , 133 A.3d at 328 ; Spanier , 132 A.3d at 498. The Superior Court concluded that Respondent, during her grand jury testimony, had breached the attorney-client privilege. Curley , 1......
  • In re Fortieth Statewide Investigating Grand Jury
    • United States
    • Pennsylvania Supreme Court
    • August 21, 2018
    ...administrators who were called before the grand jury. See Commonwealth v. Curley , 131 A.3d 994 (Pa. Super. 2016) ; Commonwealth v. Spanier , 132 A.3d 481 (Pa. Super. 2016) ; Commonwealth v. Schultz , 133 A.3d 294 (Pa. Super. 2016).As to Justice Donohue's assertion that these circumstances ......
  • Request a trial to view additional results
1 books & journal articles
  • Focus on Ethics & Civility
    • United States
    • Utah State Bar Utah Bar Journal No. 31-3, June 2018
    • Invalid date
    ...to testify as to confidential communications between her and Spanier during her grand jury testimony.” Commonwealth v. Spanier, 132 A.3d 481, 482 (Pa. Super. 2016). The court threw out perjury charges that were based on Ms. Baldwin’s testimony. Id. at 482, 498. The same concerns can arise w......

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