Commonwealth v. Spanier

Decision Date26 June 2018
Docket NumberNo. 1093 MDA 2017,1093 MDA 2017
Citation192 A.3d 141
Parties COMMONWEALTH of Pennsylvania, Appellee v. Graham B. SPANIER, Appellant
CourtPennsylvania Superior Court

Bruce P. Merensein, Philadelphia, for appellant.

Gregory J. Simatic, PA Office of the Attorney General, Pittsburgh, for Commonwealth, appellee.



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 Baldwin5 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

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6 cases
  • Spanier v. Libby, CIVIL ACTION NO. 3:19-CV-523
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • April 30, 2019
    ...1-1; Doc. 23-9). The Superior Court affirmed Spanier's conviction in a written opinion on June 26, 2018. (Doc. 1-1); Commonwealth v. Spanier, 192 A.3d 141 (Pa. Super. 2018). In a 2 to 1 decision, the Superior Court found that Spanier's statute of limitations argument was unavailing, as he w......
  • Spanier v. Dir. Dauphin Cnty. Prob. Servs.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 1, 2020
    ...brought § 5552(c) into play. On appeal, the Superior Court relied on Lynn to affirm Spanier's conviction. Commonwealth v. Spanier , 192 A.3d 141, 150-54 (Pa. Super. Ct. 2018). The Court also rejected Spanier's statute of limitations argument, concluding that there was no due process vio......
  • Commonwealth v. Martz
    • United States
    • Pennsylvania Superior Court
    • April 28, 2020 this case expired prior to the effective date of its successor, Appellant may not prevail on this claim. See Commonwealth v. Spanier , 192 A.3d 141, 147 (Pa.Super. 2018), appeal denied , 203 A.3d 199 (Pa.Super. 2019) (holding where the existing statute of limitations had yet to expire at......
  • Commonwealth v. Hemingway
    • United States
    • Pennsylvania Superior Court
    • June 26, 2018
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