
    COMMONWEALTH of Pennsylvania, Appellee v. Graham B. SPANIER, Appellant
    No. 1093 MDA 2017
    Superior Court of Pennsylvania.
    Argued February 7, 2018 Filed June 26, 2018 Reargument Denied September 7, 2018
    Bruce P. Merensein, Philadelphia, for appellant.
    Gregory J. Simatic, PA Office of the Attorney General, Pittsburgh, for Commonwealth, appellee.
    BEFORE: STABILE, NICHOLS, and RANSOM, JJ.
    
      
      Retired Senior Judge assigned to the Superior Court.
    
   OPINION BY STABILE, J.:

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"). We affirm.

Appellant is the former President of the Pennsylvania State University ("PSU"), and served in that capacity from 1995 through 2011. 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. 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. Appellant filed pre-trial motions seeking to preclude the introduction of the testimony of Cynthia Baldwin 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. 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. 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) , 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 for a new trial due to that error?
c. Where the standard jury instructions for child endangerment do not reflect a complete statement of 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.

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.
[...]
(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. Had the Commonwealth succeeded, the statute of 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 , 591 Pa. 506, 919 A.2d 931 (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 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. 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 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 , 374 Pa.Super. 289, 542 A.2d 1027, 1030-31 (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 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 , 391 Pa.Super. 162, 570 A.2d 563 (1989), abrogated in part , Commonwealth v. Gerst n er , 540 Pa. 116, 656 A.2d 108 (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 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) . 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 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 , 489 Pa. 209, 413 A.2d 1088 (1980). 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.

Likewise, we find Commonwealth v. Goldhammer , 507 Pa. 236, 489 A.2d 1307, 1312 (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 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 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. 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 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.

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 , 631 Pa. 541, 114 A.3d 796, 818 (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 , 324 Pa.Super. 420, 471 A.2d 1228, 1230 (1984) (quoting Model Penal Code § 230.4 comment (Official Draft and Revised Comments 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 , 467 Pa. 613, 359 A.2d 770, 772 (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.

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 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. 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.

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. 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 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 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. Commonwealth v. Brown , 721 A.2d 1105, 1107-08 (Pa.Super. 1998).

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.

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 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 , 626 Pa. 681, 95 A.3d 275 (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 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.

DISSENTING OPINION BY RANSOM, J.:

I respectfully dissent from the Majority opinion affirming Appellant's conviction. In my view, the Commonwealth violated Appellant's due process rights when it failed to inform him of its intent to rely upon an exception to the statute of limitations at a reasonable time before trial. Moreover, in my view, this issue is dispositive. Accordingly, I would reverse Appellant's conviction and vacate his judgment of sentence.

The Majority Opinion aptly disposes of the facts and procedural history in this case. However, I would emphasize that, in its Pa.R.A.P. 1925(a) opinion, the trial court reasoned that the statute of limitations was tolled by the exception outlined in 42 Pa.C.S. § 5552(c)(3). This marks the first, and only, mention of the exception at the trial court level. See TCO at 9-10.

Most of Appellant's claims aver that the court erred in denying his post-sentence motion for a judgment of acquittal. "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." Commonwealth v. Foster , 33 A.3d 632, 635 (Pa. Super. 2011).

First, Appellant claims that the court erred in denying his motion for a judgment of acquittal on the child endangerment charge. See Appellant's Brief at 28. According to Appellant, the prosecution, commenced on November 1, 2012, was not brought within the two-year statute of limitations applicable for endangering the welfare of children. See Appellant's Brief at 28-29. Essentially, he raises two arguments: first, that there was no course of conduct because silence is not a course of conduct, and the jury rejected this argument; and second, that the Commonwealth has waived any consideration of the exception provided by 42 Pa.C.S. § 5552(c)(3) by not raising this issue prior to trial. Id. at 28-29, 32-40.

With regard to Appellant's first argument, he contends that 1) silence alone cannot constitute a course of conduct, so the statute of limitations was never tolled, and 2) that the Commonwealth has not presented any evidence that Appellant owed the children in question a duty of care, or had a relationship requiring that he owe such a duty in 2001. See Appellant's Brief at 28, 31 (citing in support Commonwealth v. Popow , 844 A.2d 13, 17 (Pa. Super. 2004).

In response, the Commonwealth contends that Appellant's conviction was a crime of nonfeasance. See Commonwealth's Brief at 14-15. The Commonwealth responds that Appellant's "one action" of failing to inform the Department of Welfare or the police of Sandusky's actions created an ongoing danger to children encountered by Sandusky, and that this failure to report was a violation of Appellant's duty of care. Id. (citing in support Commonwealth v. Stitt , 947 A.2d 195 (Pa. Super. 2008) (finding that two-year limitations period was never triggered due to defendant's continuing violation of failing to register as a sex offender) ). Thus, according to the Commonwealth, Appellant's ongoing inaction of failing to report Sandusky's actions constituted a course of conduct, and the limitations period did not terminate until Sandusky's arrest. Id. Further, the Commonwealth avers that it appropriately informed Appellant of its intent to toll the statute in such a manner in the criminal information. Id.

With regard to the application of the statute of limitations,

[this] is a question of law. Thus, our standard of review is de novo and scope of review is plenary. Statutes of limitations are of course liberally construed in favor of the defendant and against the Commonwealth.

Commonwealth v. Succi , 173 A.3d 269, 279 (Pa. Super. 2017), reargument denied (Dec. 12, 2017) (internal citations and quotations omitted).

A statute of limitations defense is properly raised prior to trial in an omnibus motion to dismiss the charges. See Commonwealth v. Corban Corp. , 909 A.2d 406, 411 (Pa. Super. 2006). The Commonwealth bears the burden of establishing that a crime as charged was committed within the applicable limitations period. Id.

A prosecution for endangering the welfare of children must be commenced within two years after it is committed. See 42 Pa.C.S. § 5552(a). Except as otherwise provided by the general rules, a prosecution is commenced either "when an indictment is found or an information under section 8931(b) (relating to indictment and information) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without unreasonable delay." See 42 Pa.C.S. § 5552(e). The limitations period normally begins to run on the day after every element of a charge occurs. See 42 Pa.C.S. § 5552(d). However, "if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated, time] starts to run on the day after the offense is committed." Id.

In this case, the EWOC statute reflects a legislative purpose to prohibit a continuing course of conduct as it places a heavier penalty upon such an offense. The statute provides that a defendant engaging in a course of conduct, as opposed to a single instance of the crime, commits a felony of the third degree rather than a misdemeanor of the first degree, and is accordingly subject to a longer term of incarceration. See 18 Pa.C.S. § 4304(b)(1)(i)-(ii). Accordingly, the statute would run on the date that the conduct or complicity of the defendant ends. Thus, I must determine whether Appellant's inaction was actionable in 2011, when charges were filed against him.

To convict a defendant of EWOC, the Commonwealth must prove beyond a reasonable doubt that "[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 ... knowingly endanger[ed] the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S. § 4304(a).

I will first address whether Appellant owed a duty of care to the children. The exact nature of this duty is malleable. The comments to 18 Pa.C.S. § 4304 note that the section "consolidates and simplifies the various provisions concerning crimes endangering the welfare of children. The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction." See 18 Pa.C.S. § 4304cmt. Pennsylvania courts have held that the Commonwealth must prove that the defendant: 1) was aware of his duty to protect the child; 2) was aware that the child was in circumstances that could threaten the child's physical or psychological welfare; and 3) has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare. See Commonwealth v. Pahel , 456 Pa.Super. 159, 689 A.2d 963, 964 (1997).

Appellant relies largely upon Commonwealth v. Taylor , 324 Pa.Super. 420, 471 A.2d 1228 (1984), to argue that he did not owe a duty of care to the child victim in this case. See Appellant's Brief at 40-41. He claims that Taylor held that 1) the duty cannot be the duty owed by all citizens to one another or that a stranger may owe a minor child, and 2) the duty must arise from contractual obligation, settled principles of tort or family law, or from other legal sources. Id. at 41. However, this is an inaccurate statement of the law: Taylor does not support Appellant's claims.

In Taylor , a father drove drunk with his minor daughter and her friend in the car. Id. at 1229. Later that night, still drunk, he took both girls to a motel room, where he made sexual advances towards them and choked them. Id. The panel examined the relevant law regarding the duty of care, examining the Model Penal Code and noting that such a duty need not be stated in the code, but may arise from contractual obligations, settled principals of tort or family law, or other legal sources. Id. at 1230-31 (emphasis added). Further, the court reiterated that 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." Id. at 1231.

Ultimately, this Court found that the evidence was sufficient to permit a jury to find that the defendant had violated a duty owed to children in his custody. Id. at 1231. However, the panel granted the defendant a new trial because the court had permitted a conviction based on a theory of criminal liability which had never been alleged by the Commonwealth or substantiated by proof. Id. at 1231-32. Accordingly, Taylor did not hold that the duty must arise from the enumerated sources, but merely noted that the duty may arise from those sources, and "others." Id. at 1230-31. Additionally, I find it of import to note that the court reiterated the common sense of the community is sufficient to apply the statute to individual cases. Id.

Other statutes are helpful in examining whether a duty was owed. In our view, the duty in the instant case is comparable to that imposed by the statutory provisions criminalizing the failure to report child abuse. As noted, supra , the Commonwealth's contention is that Appellant's failure to report the sexual abuse of children on his campus to the police or the Department of Welfare was a violation of his duty of care. The Domestic Relations Code provides that a school employee must report suspected child abuse if the person has reasonable cause to suspect that a child is a victim of child abuse. See 23 Pa.C.S. § 6311(a). The statute penalizes the failure to report suspected child abuse or make a referral to the appropriate authorities if the person or official willfully fails to do so. See 23 Pa.C.S. § 6319. Further, the offense is graded as a felony where the person or official 1) willfully fails to report, or 2) has direct knowledge of the nature of the abuse. Id. Additionally, any person is encouraged to report suspected child abuse if that person has reasonable cause to suspect that a child is a victim of child abuse. See 23 Pa.C.S. § 6312 (emphasis added). The statute imposes an affirmative duty to report such cases on mandated reporters, and encourages the affirmative duty in cases of those who are not mandated reporters. It punishes the lack of action or willful failure to report in those who are mandated reporters.

Here, the common sense of the community and an individual sense of decency and morality would compel any reasonable person, but particularly a school official, to recognize and accept an affirmative duty, in a case of credible allegations of child abuse, to report the incident to the Department of Welfare or the police. This, Appellant did not do. Accordingly, he violated a duty of care owed to the child victim in the 2001 incident.

Equally instructive in failure to report cases is that criminal liability for this failure to report is also subject to a statute of limitations. Like the statute for EWOC, failure to report is subject to a two-year statute of limitations. See 42 Pa.C.S. § 5552. Unlike EWOC, however, there is no course of conduct exception, meaning that the discreet incident of failure to report does not continue beyond the period provided by the statute. Indeed, Appellant was charged with the failure to report suspected child abuse under this statute, but this charge was dismissed as it was beyond the statute of limitations.

With these principles in mind, I must determine whether Appellant's violation of his duty of care was actionable outside of the two-year period and whether the Commonwealth could legally bring such an action based upon the course-of-conduct exception. In Popow , this Court held that the logical interpretation of the statutory language of 18 Pa.C.S. § 4304(b) is "that it is designed to punish a parent who over days, weeks, or months, abuses his children, such as repeatedly beating them or depriving them of food ... the statute was clearly not designed for an event that occurs within minutes, or, perhaps in a given case, even hours." Id. at 17. Since deciding that case, our Court has further noted that it is multiple acts, not the duration of time between the acts which is the operative concern. Commonwealth v. Kelly , 102 A.3d 1025, 1030-31 (Pa. Super. 2014).

The Commonwealth, on the other hand, employs a rather tortured argument to suggest that Appellant's inaction was a continuing course of conduct and that his "one action" created an ongoing danger to any child brought onto the campus or encountered by Sandusky. The sole authority cited in support of its contention is Commonwealth v. Stitt , 947 A.2d 195 (Pa. Super. 2008).

In Stitt , a convicted sex offender was charged with failure to register pursuant to 42 Pa.C.S. § 9795.2(a)(2)(i). Id. at 196. This crime also carried a two-year statute of limitations. Id. at 197. Stitt argued that the Commonwealth had two years from the date of the crime-his failure to register his change of residence on July 14, 2002-to file a criminal information. Id. Thus, according to the appellant, the Commonwealth should have commenced prosecution by July 2004. Id. However, the Commonwealth did not file its information until May 18, 2005, almost a year later. Id. Our Court rejected the argument, finding that the course of conduct exception applied, because

[w]hile compliance with this statute is accomplished with the discrete act of appearing at the proper place and informing the proper authorities of one's residence, the failure to register represents the ongoing act of preventing the purpose of registration. Thus, it would be the termination of failing to register that triggers the running of the statute of limitations.
If Stitt had registered with the authorities in September, 2002-two months late-the Commonwealth would have had until September, 2004 to prosecute him for the late registration. But Stitt did not register tardily, thus triggering the running of the statute of limitations. Stitt did not register at all-his absolute failure to register represents the ongoing violation of section 9795.2. Thus, the statute of limitations did not begin to run and so could not have been violated.

Stitt , 947 A.2d at 197-98.

The sex offender statute places an affirmative duty to register upon the defendant, and the termination of that crime-either by arrest, or by late registration-triggers the statute. Id. The failure to register is in itself the crime, and that crime continues until the action is ended. Id. In the instant case, however, there is no such ongoing obligation enshrined in the statute. A defendant endangers the welfare of a child by violating a duty of care, protection, or support , and unless there is a course of conduct or some other exception applicable, the statutory period ends at two years. See 18 Pa.C.S. § 4304(a)(1) ; 42 Pa.C.S. § 5552(a).

Here, the actions alleged as a violation are that Appellant, Curley and Schultz, entered into an agreement not to report the 2001 incident to the police or DHS, in exchange for Sandusky's promise to stay out of campus facilities and not to bring children into the facilities. As noted above, case law defining a course of conduct notes that the logical interpretation of the legislative language is that it should punish continuing conduct of multiple instances of abuse. Popow , 844 A.2d at 17. Similarly, parents who withheld critical medical services due to their religious beliefs engaged in a course of conduct where 1) their pattern of inaction led to the death of their son and 2) they were aware that the child was in circumstances threatening his life, and their "lame and meager" actions could not have been expected to protect his welfare. See Commonwealth v. Foster , 764 A.2d 1076, 1081-83 (Pa. Super. 2000).

Here, once Appellant agreed to the plan, while he may have violated his duty of care, his involvement ended with his February 27, 2001 email, agreeing to the revised plan not to report Sandusky to DPW. The Commonwealth has introduced no additional evidence to show that Appellant was aware of any incidents involving Sandusky after 2001 nor his active involvement in any further actions involving Sandusky. Accordingly, the course of conduct exception is inapplicable as a matter of law, where Appellant endangered the welfare of a child by failing to report suspected child abuse, and where the charges were not brought within the statute of limitations.

Finally, Appellant takes issue with the manner in which the trial court applied the statute of limitations. In its Pa.R.A.P. 1925(a) opinion, the trial court noted that the legislature had amended the statute of limitations relating to sexual offenses against children, including EWOC. See TCO at 9-10 (citing in support 42 Pa.C.S. § 5552(c)(3) ). For such crimes, the statute of limitations begins "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." See 42 Pa.C.S. § 5552(c)(3). The trial court noted that the child victim in the 2001 incident was ten to twelve years old; thus, the statute would run in approximately 2039. Id. at 10. Appellant asserts that reliance on this section of the statute was procedurally improper where this provision was never raised before or at trial. Id. at 32 (citing in support Commonwealth v. Bethlehem , 391 Pa.Super. 162, 570 A.2d 563, 565-67 (1989) (noting that a post-verdict basis for applying an exception is unsustainable, where the facts of the case did not permit application of the tolling provisions in the first instance), abrogated on other grounds by Commonwealth v. Gerstner , 540 Pa. 116, 656 A.2d 108 (1995) ).

I reject the trial court's reliance upon this section. Moreover, I find the Majority's attempt to rationalize this belated reliance unpersuasive. As I will explain, infra , the Commonwealth's failure to invoke the exception violated the due process requirements of notice.

Historically, where the Commonwealth sought to toll the statute, it was required to allege the exception to the statute in the indictment itself. See Commonwealth v. Bender , 251 Pa.Super. 454, 380 A.2d 868, 870 (1977) (reversing judgment of sentence and discharging defendant where the indictment did not notify defendant that Commonwealth sought to toll the statute of limitations). The Commonwealth must "apprise the defendant that he must defend not only against the crime itself but also against the limitation of prosecution." Commonwealth v. Cody , 191 Pa.Super. 354, 156 A.2d 620, 623 (1959). Cody also provides further guidance as to the reasoning behind this holding:

[The defendant] should be informed before trial why the statute of limitation has no application. The opportunity to prepare a defense against such allegation should be given to the same extent as the opportunity to defend against the accusation of crime itself. Were it otherwise, no attack, preliminary to trial, could ever be made on this ground, and if made during or subsequent to trial, an accused would be faced with the well-established rule that an attack on an indictment will not be considered after a plea is entered and the jury is sworn.

Cody , 156 A.2d at 623 (emphasis added) (citing, inter alia , Blackm a n v. Commonwealth , 124 Pa. 578, 17 A. 194 (1889) ). Thus, proper notice was deemed essential because it informs a defendant not only of the facts alleged but also a specific reason why, despite a delay in prosecution, such prosecution may nonetheless commence. Id. at 623. Absent such notice, a defendant suffers prejudice. Id.

In one of the seminal cases discussing this issue, the Pennsylvania Supreme Court's conception of prejudice evolved. According to the Court, the Commonwealth was not required to include any notice of tolling or exceptions to the statute of limitations in the criminal information; rather, any pretrial notice was sufficient. See Commonwealth v. Stockard , 489 Pa. 209, 413 A.2d 1088, 1092 (1980).

In Stockard , the defendant was charged with and convicted of five counts of theft by failure to make required disposition of funds received, 18 Pa.C.S. § 3927, and five counts of violating Section 1-401(b) of the Pennsylvania Securities Act of 1972, 70 P.S. § 1-401(b). Stockard , 413 A.2d at 1089. Prior to trial, the defendant filed a motion to dismiss the criminal complaint with respect to the Section 3927 charges, averring that the two-year statute of limitations had expired prior to the time prosecution commenced and because the Commonwealth did not inform him in the indictment that it would seek to toll the statute. Id. at 1092.

Ultimately, the Court concluded that the statute had been tolled within the limitations period, and because the Commonwealth informed the defendant of its intent to toll the statute in the answer to the motion to dismiss the complaint, the due process requirements of notice were satisfied. See Stockard , 413 A.2d at 1092-93. Since Stockard , as I will discuss infra , our Courts have used the concept of "tolling" the statute in reference to both the specific section regarding tolling cited in Stockard -now enshrined at 42 Pa.C.S. § 5554 -as well as to other codified exceptions to the statute of limitations.

In conclusion, although Stockard relaxed the requirements of due process, granting the Commonwealth greater flexibility in the timing of its notice to a defendant of its intention to toll the statute of limitations, the Court reaffirmed the ancient rule that allegations of fact alone did not provide a defendant with an opportunity to challenge the tolling of, or some other exception to, the statute of limitations. Id. ; see also Cody , 156 A.2d at 623 ; Blackm a n , 17 A. at 194.

Subsequent case law has consistently applied this standard. In Commonwealth v. Bidner , 282 Pa.Super. 100, 422 A.2d 847, 849-50 (1980)superseded by statute as recognized by Commonwealth v. Nypaver , 69 A.3d 708, 713-14 (Pa. Super. 2013), the defendant was charged with entering a false address on a Voter's Registration Affidavit. See Bidner , 422 A.2d at 853. The trial court found that the information had not been brought within the statute of limitations and dismissed the charges. Id. Although the Commonwealth did not inform the defendant that it would seek to apply the exception, it specifically averred in the information that the crime contained a material element, fraud, which constituted an exemption from the limitations period under the applicable statutes. Id. at 854-55. Thus, this Court found that the information was not fatally defective and reversed. Id.

In contrast to Bidner , in Commonwealth v. Eackles , the defendant was convicted of multiple counts of forgery, theft by unlawful taking, and conspiracy. See Commonwealth v. Eackles , 286 Pa.Super. 146, 428 A.2d 614, 616 (1981). The question in this case was whether fraud was a material element of theft by unlawful taking, such that the Commonwealth could "toll" the statute of limitations using the fraud exception then codified at 18 Pa.C.S. § 108(c)(1). Id. at 618. The panel concluded that fraud was not a material element of theft by unlawful taking. Id. The panel also, citing Stockard , noted that "where the Commonwealth seeks to toll the statute under this section" with an exception, it must inform the defendant of said intention within a reasonable time so the defendant may defend against it. Id. Thus, because the information did not allege that the theft was accompanied by fraud or that fraud was a material element to the theft, the Commonwealth could not later rely upon this exception to commence prosecution. Id.

In Commonwealth v. Cruz , the defendant was charged with escape for failing to return to prison after his furlough and for absconding to Puerto Rico and then Chicago. See Commonwealth v. Cruz , 355 Pa.Super. 176, 512 A.2d 1270, 1270-71 (1986). The applicable statute of limitations was two years. Id. The majority, citing Stockard , concluded that because the facts were received in the arrest warrant affidavit, and because the defendant was aware of the alleged facts, he was not prejudiced. Cruz , 512 A.2d at 1272. However, the majority noted further, despite this implicit notification, that the defendant had waived any challenge to the legitimacy of the information by failing to raise the limitation issue pre-trial. Id.

The Cruz dissent is instructive, noting specifically that the majority found waiver and suggests, therefore, that any further substantive analysis is dicta. Cruz , 512 A.2d at 1272-73 (finding factual notice insufficient because defense counsel does not routinely receive the affidavit submitted in a request for an arrest warrant).

In Commonwealth v. Bethlehem , the defendant was convicted of rape, statutory rape, and involuntary deviate sexual intercourse as a result of the sexual abuse of his niece. See Commonwealth v. Bethlehem , 391 Pa.Super. 162, 570 A.2d 563, 564 (1989), abrogated on other grounds by Commonwealth v. Gerstner , 540 Pa. 116, 656 A.2d 108 (1995). Prior to trial, the defendant sought to dismiss the charges. Id. At that time, the Commonwealth did not raise an applicable statutory exception; its sole argument was that "time elements were not controlling in cases involving minors,"

relying upon an unpublished decision of this Court. Id. at 564-65. Instead, the trial court accepted the Commonwealth's post-verdict assertion that 42 Pa.C.S. § 5554(3) applied to toll the limitations period. Id. at 565.

Our Court reversed for two reasons. First, it noted that the law "requires that any allegation that the running of a statute of limitations period was tolled by an applicable statutory exception must be made in the complaint itself, or at the latest, a reasonable time before trial." Bethlehem , 570 A.2d at 565 (citing in support Cruz , supra , and Eackles , supra ) (emphasis added). There was no pretrial notice, either actual or constructive, that the Commonwealth sought to apply an exception to the statute. Id. Second, the post-verdict basis was unsustainable on the merits. Id. at 565-66 (concluding that "person responsible for the child's welfare," as used in statute tolling limitations period, was not synonymous with the legal term in loco parentis ). Essentially, the Commonwealth's reliance upon an erroneous statement of law did not give the defendant sufficient notice that the Commonwealth sought to evade the statute of limitations with an enumerated exception. Id.

In Commonwealth v. Morrow , the defendant was charged with indecent assault of a victim under the age of eighteen. See Commonwealth v. Morrow , 452 Pa.Super. 403, 682 A.2d 347, 348 (1996). In an omnibus pre-trial motion, the defendant sought to dismiss the charges as being beyond the applicable statute of limitations. Id. At a hearing on the motion, the Commonwealth notified the defendant in writing of its intent to toll the statute under 42 Pa.C.S. § 5554(3). The trial court rejected this argument and dismissed the charges. On appeal, the Commonwealth argued that the court erred in dismissing the charges because under 42 Pa.C.S. § 5552(c)(3), the charges were exempt from the limitations period. Id.

Citing favorably to Stockard , Bidner , and Cruz , the panel held that the defendant was on notice that a statutory exception applied, where the complaint specifically averred that the victim was under fourteen years of age. Id. at 349. Further, the Commonwealth had satisfied due process by informing the defendant of its intent to toll the statute with its response to the defendant's pretrial motion to dismiss. Id. Again, Morrow emphasizes that factual notice is required, but this requirement is distinct from the equally important notice that an exception to the normal running of the statute of limitations is applicable. See Morrow , supra .

In Commonwealth v. Russell , 938 A.2d 1082 (Pa. Super. 2007), the defendant was charged with second degree murder and several other felonies perpetrated in connection with the murder. Russell , 938 A.2d at 1087-89. All of the non-murder crimes were beyond their respective statutes of limitations, but the Commonwealth commenced prosecution based upon the "any felony alleged to have been perpetrated in connection with a murder" exception. Id. ; see also 42 Pa.C.S. § 5551(4). Ultimately, the defendant was acquitted of the murder but convicted of several other crimes, including arson endangering persons, arson endangering property, risking a catastrophe, and cruelty to animals. Id.

On appeal, the defendant argued that to toll the statute of limitations, the Commonwealth must state in the criminal information the exception to the statute of limitations on which it relied. Russell , 938 A.2d at 1088. The defendant argued that because the Commonwealth had relied upon 42 Pa.C.S. § 5551(4) (no limitations applicable for any felony alleged to have been perpetrated with murder of first or second degree), and the jury had acquitted her of murder, her conviction for arson could not stand, as it was commenced beyond the statute of limitations. Russell , 938 A.2d at 1088. The panel held that, pursuant to Stockard , the Commonwealth satisfied its notice requirement where it apprised the defendant of its intent to rely upon 42 Pa.C.S. § 5551(4) to bypass the statute of limitations at a reasonable time prior to trial, in this case, at the hearing to resolve the defendant's motion to dismiss. Id. Thus, as the defendant was expressly aware of the Commonwealth's intention to rely on the exception, the defendant incurred no prejudice. Id.

As this line of cases makes clear, the law remains well settled. Essentially, provided the defendant, at some reasonable time prior to trial is apprised that the Commonwealth will seek to toll the statute, the due process requirements of notice are met. See Stockard , 413 A.2d at 1092 ; Cruz , 512 A.2d at 1272-73 ; Morrow , 682 A.2d at 349 ; Russell , 938 A.2d at 1088 ; Cody , 156 A.2d at 623. The notice itself, and accordingly the opportunity to defend, is the operative and most important aspect: this is the due process concern that must be satisfied. Id.

The Majority contends that, pursuant to Morrow and Commonwealth v. Houck , 102 A.3d 443, 449-50 (Pa. Super. 2014) (noting that a defendant may be convicted of a crime not actually charged when the uncharged offense is a lesser-included offense; he will have been put on notice of the charges against him), the Appellant was constructively aware of the applicable statutory provision, as there was testimony that the victim was ten to twelve years old. This argument falls flat in the face of the Commonwealth's continued reliance upon the course of conduct exception, which I have rejected supra. As noted in Bethlehem , "there is a fundamental difference between knowledge of the existence of a statutory provision and receipt of notice that the prosecution will seek application of a given provision in a particular case with sufficient time prior to trial to prepare to challenge application of the provision." Bethlehem , 570 A.2d at 565 n.1 ; see also Stockard , 413 A.2d at 1092 ; Cody , 156 A.2d at 623.

Here, similarly, Appellant prepared his defense in response to the Commonwealth's express reliance upon the course of conduct exception. See , e.g. , Cruz , 512 A.2d at 1272-73 ; see also Morrow , 682 A.2d at 349. Appellant was unsuccessful in this challenge before the trial court, and the matter proceeded to trial. Unlike the situation in Morrow , the Commonwealth did not notify Appellant of its intention to toll the statute here, based upon its assertion that the course of conduct exception applied. See Morrow , 682 A.2d at 349. In fact, it did not inform Appellant of its intention at all. Absent proper pretrial notice, the requirements of due process were not met.

Accordingly, I cannot accept the trial court's assertion that 42 Pa.C.S. § 5552(c)(3) operates to extend the statute of limitations or any reliance by the Commonwealth upon this provision. The first instance of reliance upon this statute was in the court's 1925(a) opinion. As it was not raised prior to trial by the Commonwealth and Appellant did not have the opportunity to defend himself against it, I am constrained to find that Section 5552(c)(3) does not operate to extend the statute of limitations. See Morrow , 682 A.2d at 349 ; Stockard , 413 A.2d at 1092.

The Commonwealth supplies no additional authority to support its contention that we should expand the EWOC statute of limitations in such a manner, and I can find none. Accordingly, based on the above, I cannot agree that the course of conduct or the sexual offenses against minors exceptions toll the statute in this case, and I would reverse Appellant's conviction and vacate his judgment of sentence. Thus, I dissent. 
      
      18 Pa.C.S.A. § 4304(a)(1).
     
      
      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.
     
      
      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.
     
      
      18 Pa.C.S.A. §§ 4902, 4304, 5101, 903, and 23 Pa.C.S.A. § 6319, respectively.
     
      
      Ms. Baldwin was the general counsel of PSU, and a former Justice of the Pennsylvania Supreme Court.
     
      
      A count of conspiracy to endanger the welfare of children remained.
     
      
      Prior to Appellant's trial, Schultz and Curley each pleaded guilty to a single misdemeanor child endangerment charge.
     
      
      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).
     
      
      The Dissent states that the trial court reasoned the statute of limitations was "tolled" by the exception at § 5552(c)(3). Dissenting Opinion, at 155. 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).
     
      
      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.-
      (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.
     
      
      See, e.g. Commonwealth v. Morrow , 452 Pa.Super. 403, 682 A.2d 347, 349 (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 , 548 Pa. 616, 693 A.2d 587 (1997).
     
      
      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.
     
      
      Stockard was decided under 18 Pa.C.S.A. § 108(f), the statutory predecessor to current 42 Pa.C.S.A. § 5554.
     
      
      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.
     
      
      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 , --- Pa. ----, 173 A.3d 255 (2017).
     
      
      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.
     
      
      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).
     
      
      This section provides that, "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)." See 42 Pa.C.S. § 5552(c)(3). Endangering the welfare of a child is one of the enumerated sexual offenses. Id.
     
      
      The question regarding course of conduct was posed to the jury as a question to determine grading. Pursuant to the statute, the offense is a misdemeanor of the first degree unless the actor engaged in a course of conduct of endangering the welfare of a child, which would result in grading the offense as a felony of the third degree. See 18 Pa.C.S. § 4304(b)(1)(ii). The jury determined that Appellant had not engaged in a course of conduct such that the offense would be graded as a felony.
      Additionally, 42 Pa.C.S. § 5552(d) provides an exception to the statute of limitations by stating that an offense is committed either whenever every element occurs, or if there is a legislative purpose to prohibit a continuing course of conduct, then the offense is committed at the time when the course of conduct is terminated. See 42 Pa.C.S. § 5552(d).
     
      
      In so doing, Appellant references subsequent sections of his argument. See Appellant's Brief at 31.
     
      
      At the time of the offense, 42 Pa.C.S. § 5552(c)(3) provided that for a sexual offense against a minor, prosecution could be commenced within two years after the victim's eighteenth birthday. 1990 Pa. Laws 1341, No. 208, § 1. The statute was amended January 29, 2007. See 42 Pa.C.S. § 5552(c)(3). Where a limitation period has begun to run before the statute repealing the statute takes effect, the time which is already run is deemed part of the time prescribed by the limitation. See 1 Pa.C.S. § 1975 ; Commonwealth v. Riding , 68 A.3d 990, 994-96 (Pa. Super. 2013). Thus, the court contends that the prosecution was timely commenced because the amendment to the statute took place prior to the victim's eighteenth birthday. See TCO at 9-10. Regardless, based upon our analysis infra , the timing of the filing is of no moment.
     
      
      At the time of the defendant's arrest, the Crimes Code provided that "[t]he period of limitation does not run ... during the time when the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth." 18 Pa.C.S. 108(f) (1973); see also Stockard , 413 A.2d at 1092.
     
      
      The fraud exception may now be found, with nearly identical wording, at 42 Pa.C.S. § 5552(c)(1). At the time, 18 Pa.C.S. § 108(c)(1) provided that a prosecution could be commenced beyond the expiration of the statute of limitations where "any offense a material element of which is ... fraud ... within one year after discovery of the offense by an aggrieved party or by a person who has legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years." Eackles , 428 A.2d at 618.
     
      
      The dissent offered its own analysis of Stockard , finding that the case requires
      more than simply that a defendant be aware of the facts on which the Commonwealth might base an allegation; it holds that due process requires pre-trial notice that the Commonwealth will allege the exception. Without that specific notice, in a document which the defendant will receive, the defendant is denied his due process right to an opportunity to defend against the allegation.
      Cruz , 512 A.2d at 1273.
     
      
      "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 ... 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." See 42 Pa.C.S. § 5554(3).
     
      
      I note that, in its brief, the Commonwealth declines even to address its failure to properly notify Appellant at all. See Commonwealth's Brief at 13-20.
     
      
      I note with disfavor the lackadaisical manner in which the Commonwealth brought this case to trial and in not preserving all potential exceptions to the statute, if appropriate. As Appellant notes in his brief, the Commonwealth did not prove that the child in the shower was underage. See Appellant's Brief at 37-38. I note, with equal disapproval, that it was Appellant's own inaction that prevented the Commonwealth from proving anything about the child's identity or age.
     
      
      There is nothing in the current statute or case law that permits a finding of course of conduct based upon inaction. This may be an issue for the legislature to address in the future, but as noted supra , this Court is constrained by the current state of the law.
     