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 

____________________________________________

* 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 tento 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 

____________________________________________

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 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 

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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 

____________________________________________

7 Prior to Appellant’s trial, Schultz and Curley each pleaded guilty to a single 

misdemeanor child endangerment charge.

8 Respectively, 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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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 childendangerment 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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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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(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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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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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 

____________________________________________

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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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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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.

____________________________________________

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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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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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 

____________________________________________

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

 

____________________________________________

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 
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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. 
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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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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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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). 
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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 
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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. 
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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 
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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 
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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