Spanier v. Libby, CIVIL ACTION NO. 3:19-CV-523

Decision Date30 April 2019
Docket NumberCIVIL ACTION NO. 3:19-CV-523
PartiesGRAHAM B. SPANIER, Petitioner, v. CHAD LIBBY, Director of Dauphin County Probation Services, et al., Respondents.
CourtU.S. District Court — Middle District of Pennsylvania



In March 2017, Petitioner, Graham B. Spanier, was convicted in the Dauphin County Court of Common Pleas of one misdemeanor count of endangering the welfare of a child pursuant to 18 Pa. C.S.A. § 4304(a)(1). Spanier now brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asking this Court to set aside that conviction as it violates his rights guaranteed under the United States Constitution, and in particular, that the conviction runs afoul of the Ex Post Facto and Due Process clauses of the Constitution.

The crux of Spanier's argument is that he is entitled to habeas relief because he was charged and tried on the basis of a statute that came into effect six years after the conduct at issue. The state courts, relying upon the Pennsylvania Supreme Court's decision in Com. v. Lynn, 114 A.3d 796 (Pa. 2015), concluded that the retroactive application of the 2007 statute to Spanier's 2001 conduct was not unconstitutional. Spanier submits that this retroactive application is unreasonable and far more extensive than anyone in 2001 would have been able to reasonably foresee. The Court agrees. For the reasons set forth below, the Court finds that the Pennsylvania state courts unreasonably expanded the scope of the pre-amendment child endangerment statute in such a way that it would have been unforeseeable to Spanier in 2001 that his conduct could result in criminal culpability under § 4304, and in a manner which violates bedrock constitutional principles of due process. For these reasons, the Court grants the petition for writ of habeas corpus.


Spanier seeks federal review via the provisions of 28 U.S.C. § 2254. Specifically, he submits that his conviction violates his rights under the United States Constitution because (1) it was based on a criminal statute not in effect at the time of the alleged criminal conduct; (2) the jury was instructed that it could convict Petitioner on the basis of the later-enacted criminal statute; and (3) the conviction was upheld on the basis of a statute-of-limitations exception not raised by the Commonwealth before or during trial.


In February 2001, Spanier, as President of the Pennsylvania State University, became aware of and responded to allegations of sexual abuse of a minor child by Jerry Sandusky, the former defensive coordinator for the Penn State football team.1 On November 1, 2012, eleven years after the alleged conduct occurred, Spanier was charged in Dauphin County with eight criminal counts - 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.2, 3

Throughout the course of pretrial litigation, all but three of these counts were dismissed - Endangering the Welfare of Children (violating a duty of care, protection, or support); Endangering the Welfare of Children (in an Official Capacity, preventing or interfering with the making of a report of suspected child abuse); and Conspiracy to commit endangering the welfare of children. (Doc. 1-2, at 3). At the conclusion of a jury trial in March 2017, Spanier was convicted of one misdemeanor count of endangering the welfare of a child pursuant to 18 Pa. C.S.A. § 4304(a)(1). He was acquitted of the other charges against him. Importantly for this Court's analysis, he was acquitted of having engaged in a "course ofconduct" of child endangerment; instead, the jury found him guilty of one count stemming from his conduct in February 2001. (Doc. 1-2, at 3). In June 2017, Spanier was sentenced to 4 to 12 months of incarceration. He is scheduled to report for his sentence on May 1, 2019.

Throughout the trial, Spanier maintains that he objected to the use of the EWOC Statute because it charged him under the 2007 version of the statute (the "2007 statute"), instead of under the 1995 version of the statute (the "1995 statute") in effect during his alleged conduct. (Doc. 23, at 7). However, the Commonwealth asserted that the application of the 2007 statute did not violate Spanier's constitutional rights, as they had charged him "with a course of conduct that stretched from February of 2001 until 2012," and thus brought him under the purview of the amended statute. (Doc. 23, at 7). Spanier also filed proposed jury instructions, which excluded the language added in the 2007 version of the amended EWOC statute and sought an instruction on the applicable statute of limitations. (Doc. 23, at 7). However, the trial court used the proposed jury instructions provided by the Commonwealth, which reflected the language articulated in the 2007 statute, and declined to instruct the jury on the statute of limitations issue raised by Spanier. (Doc. 23, at 8).


Spanier filed a post-sentence motion on June 8, 2017, which was subsequently denied by the state trial court on July 5, 2017. (Doc. 1-2, at 3). Thereafter, Spanier filed a notice of appeal, as well as a Rule 1925(b) statement, on July 17, 2017. (Doc. 1-2, at 3). After the trial court filed its opinion on September 22, 2017, Spanier appealed his conviction to the Superior Court of Pennsylvania, raising the following grounds:

(1) "Where the prosecution was commenced in November 2012, and the only evidence presented, at trial regarding the charge of conviction involved conduct in February 2001, and the jury rejectedthe only argument the Commonwealth made for an exception to the two-year statute of limitations—that Dr. Spanier engaged in a course of conduct—did the trial court err in not entering judgment of acquittal?"
(2) "Where the Commonwealth presented no evidence of a duty of care that Dr. Spanier 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 judgment of acquittal?"
(3) "Where the 2001 version of the child-endangerment statute only imposed liability on a parent, guardian, or other person supervising the welfare of a child, and Dr. Spanier was convicted for employing or supervising someone else who was supervising the welfare of a child—a category added to the statute in 2007—did his conviction violate the Due Process and Ex Post Facto Clauses of the state and federal constitutions?"
(4) "Where Dr. Spanier requested that the jury be instructed on the statute of limitations, did the trial court err in denying this request?"
(5) "Where the only conduct, at issue occurred in 2001, did the trial court err in denying Dr. Spanier's request to instruct the jury on the 2001 version of the child-endangerment statute rather than the 2007 version?"
(6) "Where the standard jury instructions for child endangerment are not a complete statement of the law, did the trial court err in using them?"
(Doc. 1, at 3-4; Doc. 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 was "on notice of his potential criminal liability for EWOC," and was thus, in essence, on constructive notice that the statute of limitations exception set forth under 42 Pa.C.S.A. § 5552(c)(3) was applicable to him—even if not expressly invoked by theCommonwealth before or during trial. (Doc. 1-1, at 11). Judge Ransom, however, disagreed on this point, and stated in a dissenting opinion that Spanier's due process rights were violated when the Commonwealth failed to apprise him that they would seek to toll the statute of limitations under § 5552(c)(3). (Doc. 1-1, at 22). According to the dissent, absent proper notice that the Commonwealth would invoke § 5552(c)(3), the requirements of due process were not met because Spanier prepared his defense based on the Commonwealth's express reliance on the course of conduct exception. (Doc. 1-1, at 22).

The Superior Court further found that the evidence was sufficient to convict Spanier under the EWOC statute. (Doc. 1-1). Specifically, relying on the Pennsylvania Supreme Court decision in Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015), the Superior Court noted that the 1995 statute "encompasses all forms of supervision of a child's welfare," and that "supervision is routinely accomplished by subordinates." (Doc. 1-1, at 12). Accordingly, based on the facts before the Superior Court, it concluded that the evidence was sufficient to find Spanier was supervising a child's welfare in accordance with the holding in Lynn. (Doc. 1-1, at 13). The Superior Court also determined that Spanier owed a duty of care to the child victimized by Sandusky in 2001. (Doc. 1-1, at 14). Thus, the "absence of direct interaction between [Spanier], Shultz, or Curley and Sandusky's victims" did not preclude Spanier's conviction "under the pre-2007 version of § 4304 as construed in Lynn." (Doc. 1-1, at 14). The Superior Court similarly rejected Spanier's arguments regarding the jury instructions, holding that given its "analysis of the statute of limitations and of the Lynn Court's treatment of the pre-2007 version of § 4304" there was no reversible error. (Doc. 1-1, at 14).

After a request for re-argument was denied, Spanier filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. (Doc. 1, at 4). The Supreme Court, however, denied Spanier's petition on February 21, 2019. (Doc. 1, at 4).


Having challenged his conviction in Pennsylvania state courts, Spanier filed...

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