Commonwealth v. Yockey

J -A01017-17
2017 PA Super 87

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JACOB ALLEN YOCKEY,

Appellant No. 107 WDA 2016

Appeal from the Judgment of Sentence of October 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012979-2014

BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

OPINION BY OLSON, J.: FILED APRIL 04, 2017

Appellant, Jacob Allen Yockey, appeals from the judgment of sentence

entered on October 21, 2015, as made final by the denial of Appellant's

post -sentence motion on December 17, 2015. We affirm.

The Commonwealth charged Appellant with involuntary deviate sexual

intercourse ("IDSI"), unlawful contact with a minor, corruption of minors,

and two counts of indecent assault;' the charges arose out of Appellant's

repeated sexual abuse of a minor male victim (herein identified as "the

' 18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 6301(a)(1)(ii), 3126(a)(2), and
3126(a)(8), respectively.

*Retired Senior Judge assigned to the Superior Court.
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Victim"), when the Victim was 14 and 15 years old.2 Commonwealth's

Information, 10/17/14, at 1-2.

Appellant's case proceeded to a jury trial. During trial, the Victim

testified that Appellant first abused him on May 31, 2013, which was the

night before the wedding between Appellant and the Victim's cousin, JY.

N.T. Trial, 7/14/15, at 38-39. As the Victim testified, he was asked to be a

groomsman in Appellant's June 1, 2013 wedding to JY and, on the night

before the wedding, the Victim slept over at the house that belonged to

Appellant and JY. Id. at 38. Also sleeping in the house that night were the

other groomsmen and Appellant; JY was not present that night, as she was

with her bridesmaids at a bridal party. Id. The Victim testified:

Everyone basically was up for a while and went to sleep.
There was nowhere else to sleep. It was a relatively small
house. So I just slept in the same bed with [Appellant]
because I knew him obviously and then like toward the
middle of the night he woke me up and asked to show me
something. . I said, "What?" And he said to take off my
. .

pants. And I got very nervous and very scared and my
mind went blank. I just did it and he started touching me.
Id. at 38-39. According to the Victim, Appellant touched the Victim's penis

with his hand until the Victim ejaculated; after the Victim ejaculated,

Appellant touched himself until he also ejaculated. Id. at 39-40.

2 During Appellant's trial, the Victim testified that he was born in February
1999. N.T. Trial, 7/14/15, at 39.

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Afterwards, Appellant told the Victim "don't tell anyone" and that "it was

normal." Id. at 40.

The Victim recalled that Appellant next molested him "a few months

later," inside of Appellant and JY's house. According to the Victim:

I was getting ready to go into the shower and [Appellant]
came in and all I had was my underwear on and he picked
me up and threw me onto his bed and started wrestling with
me. And he took my underwear and said, "If you want to
win the underwear back, you have to win the game."

I didn't know what the game was or how to win. I just kept
trying to get my underwear back and I grew tired and he
started touching me.
Id. at 42. The Victim testified that Appellant again touched him on his

penis. Id. The Victim testified: "I just continued to be really scared, but

then he took off his clothes and pulled my hand to touch him. .

[Appellant] kept holding my hand [on Appellant's penis] and holding it up

and down until he ejaculated." Id. After this occurred, Appellant again told
the Victim "don't tell anyone." Id. at 43.

The third occurrence of sexual abuse happened in the following

manner:

The next incident was another one where we were, like,
wrestling again.

. .It was just like it sort of started about the same way
.

where I was getting ready to do something. He would pick
me up and continue to take my clothes off and I would just
not know what to do -- be doing. I was like scared almost,
but because I didn't know what was going to happen
afterward, but he just continued to touch me and I got very
nervous, almost shut down.

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Id. at 43-44. The Victim testified that Appellant again touched "on my

private area" and again told the Victim "don't tell anyone." Id. at 44.

With respect to the fourth time that Appellant molested the Victim, the

Victim testified:

There was another incident where I was getting ready to go
to work. At the time I worked in Wilkinsburg and
[Appellant] offered to give me a ride, but the only way I
would get a ride there was if I were to spend the night at
his house and I was very reluctant to go to his house. But I
though [JY] would be there, but she was not.

And when I went there everything was fine at night, but in
the morning right around the time when I woke up he just
started wrestling with me again and he started to take my
clothes off, but I just kept trying to push him away and he
wasn't moving and he started tickling me and I sort of grew
weaker and I just fell limp.

I kept saying stop and no and no and no, but he just kept
going. . He just continued to touch me and I just felt so
. .

weak. I just went blank for a while and he continued to
touch me and touch me and I just got sick again and he
drove me to work.
Id. at 44-45. As the Victim later specified, during this time Appellant

touched the Victim on the Victim's "privates." Id. at 45.

Appellant's final act of molestation occurred over Labor Day weekend

of 2014. The Victim testified:

I was, again, over at their house and also I did think [JY]
would be there, but she was not. I went to bed[, wearing
pajama pants and underwear]. Nothing happened. But as I
was starting to wake up, I saw this object under the covers
and I was wondering what it was. At first I thought it was

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the cat and then I realized it was too big to be a cat. Then I
thought it was a pillow and it was moving up and down.
. . .

Id. at 45-46. As the Victim testified, when he saw the movement

underneath the covers, he felt "like a scratching between [his] legs" and a

wetness on his "private parts." Id. The Victim testified that the object then

"disappeared." Id. However, when the Victim fully woke, he realized that

he was naked - even though he was wearing "black pajama pants with

underwear underneath" when he went to sleep. Id.

The Victim testified:

I was very in shock so I went to the bathroom and did what
I normally do, which is run my hands under scalding hot
water. And I was very reluctant to talk about it, but I asked
[Appellant] about it and he said he was asleep the whole
time and had no idea what I was talking about.
Id. at 46-47.
Nevertheless, the Victim testified, he knew that Appellant was

underneath his covers because "there [were] no other moving objects in that

house besides the cats and [Appellant]" and the object was "too big to be a

cat." Id. at 47. The Victim also testified that the "wetness" he felt was

Appellant's mouth around his penis. Id.

One week after the fifth act of molestation occurred, the Victim told his

mother what had happened and the Victim's mother informed the police.

Id. at 50.

The Commonwealth presented testimony from the Victim's mother and

JY and rested its case. Appellant then presented testimony from Russell

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Brown, Justin McIntyre, Juan Ortiz, and Christopher Johns - all of whom

were groomsmen at Appellant's July 1, 2013 wedding and all of whom slept

over at Appellant's house on the night before the wedding, when, the Victim

testified, Appellant first abused him. Each groomsman testified that: on the

night before the wedding, they met at a rehearsal dinner; after the dinner,

Appellant and the groomsmen (including the Victim) went back to

Appellant's house; Appellant, the Victim, and the groomsmen slept over at

Appellant's house that night; and, Appellant, the Victim, and the groomsmen

were the only individuals in Appellant's house that night. However, some of

the groomsmen offered slightly different testimony about what occurred at

Appellant's house and where the events occurred.

Russell Brown testified that, when everyone went back to Appellant's

house, they "just watched a movie [and] played some video games." N.T.

Trial, 7/15/15, at 117. Mr. Brown testified that, after Juan Ortiz went to bed

in the basement, "everybody else went upstairs" and went to bed. Id. at
125. According to Mr. Brown: he slept in the living room; Justin McIntyre

and Chris Johns also slept in the living room; Juan Ortiz slept in the

basement; Appellant slept in the master bedroom; and, the Victim slept in

the separate, guest room. Id. at 118-119. According to Mr. Brown: he saw

the Victim enter the guest room to go to sleep; he saw the Victim close the

door to the guest room; he saw Appellant go into the master bedroom to

sleep; he awoke once in the middle of the night to go to the bathroom and

saw Appellant's bedroom door open and the guest room door closed; he

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never heard any noise coming from Appellant's bedroom during the night;

and, when everyone awoke in the morning, the Victim did not appear to be

"distressed" or "unnerved." Id. at 119-121.

Justin McIntyre testified next. As Mr. McIntyre testified, on the night

before the wedding, Appellant and the groomsmen arrived at Appellant's

house and everyone played the videogame "Mario Party" in the living room.

Id. at 139 and 148. Mr. McIntyre testified that, after they finished playing

the videogame, everyone went to sleep. According to Mr. McIntyre: he

slept on the floor in the living room; Chris Johns and Russell Brown also

slept in the living room; he saw the Victim enter the guest room; and, after

he saw the Victim go into the guest room, he saw Appellant enter the master

bedroom. Id. at 139-140 and 152.

During the Commonwealth's cross-examination of Mr. McIntyre, the

following questions, testimony, objection, and exchanges occurred:

Q: What games were you playing?

A: Mario Party.

Q: Who is all playing these games? Was everybody playing
those games?

A: Yes, sir.

Q: Did you watch a movie?

A: I don't remember.

Q: You don't remember if you watched a movie?

A: I don't think I watched a movie.

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Q: Okay. If
I told you that Russell [Brown] said that you
watched a movie, would he be telling the truth or lying?

[Appellant's Counsel]: Judge, I object. He just said he
didn't remember.

[The Commonwealth]: Judge, this is cross-examination.

[Appellant's Counsel]: How can he -
[Trial Court]: All right. It is cross-examination. He can
answer the question.

A: He was probably telling the truth. I don't recall watching
one. I probably did.

Id. at 148.

Mr. McIntyre's testimony continued:

Q: Now, you said that you were all in the living room
[playing videogames and watching the movie], is that right?

A: Yes, sir.

Q: Okay; and what floor of the house is that on?

A: The first floor.

Q: The first floor; and you said that [Juan Ortiz] slept in the
basement?

A: Yes, sir.

Q: If I told you that Russell [Brown] told everybody that
everybody hung out in the basement first, then went
upstairs, would that be the truth or would he be lying?

A: I don't know.

Q: Well, you're saying that everybody hung out upstairs, is
that correct?

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A: Yes, sir.

Q: And Russell said everybody was downstairs. So are you
lying?

A: The -- it could be upstairs or downstairs. I'm pretty sure
it was upstairs, because the TV was upstairs, and there's
ample room upstairs; plus, we have had a game downstairs
in the basement in the past.

Q: So you don't know where you were that night?

A: We were upstairs.

Q: So then Russell [Brown] was lying?

[Appellant's Counsel]: Judge, let me interject. He's
saying, then Russell was lying. He's just explained --

[Trial Court]: This is cross-examination. The witness
answered fine just for the last time. He can answer this
time.

A: I guess so.

Id. at 149-150.
Juan Ortiz next testified for Appellant. Mr. Ortiz testified that, when

they arrived at Appellant's home, everyone went into the basement, where

they played the videogame "Super Smash Brothers" and watched the movie

"Ghostbusters". Id. at 156-157 and 162-163. After the movie, Mr. Ortiz

testified, he stayed in the basement to sleep and everyone else went

upstairs. Id. at 163.

Christopher Johns then testified. According to Mr. Johns, after the

rehearsal dinner, everyone arrived at Appellant's house and "just relax[ed],

[hung] out in the living room, [and] play[ed] some games . . . in the living

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room." Id. at 166 and 171. Mr. Johns testified: he slept in the living room

with Russell Brown and Justin McIntyre; he saw Appellant go to sleep in "his

own bedroom;" and, he saw that the Victim "had his stuff set up in the guest

bedroom," saw the Victim "go down the hall towards his room," and

"assumed that [the Victim] would go into his room where all his stuff was

set up." Id. at 167. Mr. Johns also testified that it took him a long time to

fall asleep and, while he was awake, he did not "hear any doors closing,

opening, or any other sounds that drew [his] attention." Id. at 168.

Appellant testified on his own behalf. According to Appellant, on the

night before the wedding:

We got in [to my house]. We sat up. We played some
videogames. We watched a movie. I didn't specifically
know which video games. I heard today, but I didn't
specifically know then. We watched ["]Ghostbusters["], I
did remember that; and then afterwards we pretty much
went to bed.

There was a blow-up mattress in the basement for [Juan
Ortiz,] which is where he slept. I'd offered the futon to
Justin McIntyre. I don't know if he actually slept there. I
heard today he didn't.

I went to bed after I had showed [the Victim] to his room,
which [is where] he had stuff set up, which was the spare
bedroom; and then [Russell Brown] slept on the small
couch. There's this larger couch. He always sleeps on the
weird, like, love seat for some reason. Then Chris [Johns]
typically sleeps on the floor.
Id. at 186-187.
Appellant testified that he went to sleep in the master bedroom and

that the Victim did not go into the bed with him. Id. at 188.

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Appellant testified that, after that night, the Victim visited Appellant's

house "at least two" other times and, when the Victim slept over, Appellant's

wife was always home and the Victim slept in the basement. Id. at 193.

Appellant denied ever sexually molesting or abusing the Victim. Id. at
196-212.

After Appellant's testimony, the Commonwealth presented two rebuttal

witnesses and the evidentiary portion of the trial ended. During the

Commonwealth's closing argument, the Commonwealth told the jury the

following:

Now, think about [the Victim's] testimony. If he didn't
know the answer to the question, he told you, he didn't
know. If he didn't remember the answer to the question,
he told you, he didn't remember. If he was lying, he would
have an answer for everything. He didn't; and he didn't
because he was telling you the truth; and the truth is that
this man, and I don't even know if he should be dignified
with that "man" title, abused a 14 year old, abused a 15
year old, took advantage of the relationship he built; and he
took advantage of it by, first, the defendant using his hands
to rub the victim's penis.
N.T. Trial, 7/16/15, at 301. Appellant did not immediately object to the

above statement. Rather, Appellant waited until the Commonwealth had

finished its closing statement to approach the bench. There, the following

exchange occurred:

[Appellant's Counsel]: Judge, I just want to place an
objection on the record to one remark that was made by the
prosecution. He referred to [Appellant] as a person that
does not . . deserve the title of a man; and in that
.

implication, reducing him to something other than a man,
and, quite frankly, I think it's prejudicial for his remark that
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he is less than human. I think it prejudices the jury, and
ask you to instruct them to disregard his remark about him.
You can't refer to somebody as less than human.

[Trial Court]: I think that is perfectly within his purview in
the form of argument in a case like this.

[Appellant's Counsel]: My objection is on the record.

[Trial Court]: So noted.
Id. at 309.
The jury found Appellant guilty of corruption of minors and two counts
of indecent assault.3 N.T. Trial, 7/17/15, at 2. On October 21, 2015, the

trial court sentenced Appellant to serve an aggregate term of nine -and -a -

half to 19 months in jail, followed by five years of probation, for his

convictions Appellant filed a timely post -sentence motion on Monday,
November 2, 2015, which the trial court denied on December 17, 2015.

Appellant filed a timely notice of appeal and now raises three claims to this

Court:

1. Whether the trial court erred and/or abused its discretion
in allowing the prosecutor to ask an improper question
concerning whether one witness would know the state of
mind of another witness, i.e. whether that witness was
lying?

2. Whether the trial court erred and/or abused its discretion
in failing to sustain an objection as to the prosecutor's
comment that reduced Appellant to something other than a
man?

3
The jury found Appellant not guilty of IDSI and unlawful contact with a
minor. N.T. Trial, 7/17/15, at 2.

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3. Whether the sentence prohibiting Appellant from having
access to the internet was illegal?

Appellant's Brief at 7.4

Appellant first claims that the trial court erred when it allowed the

Commonwealth to question one of Appellant's witnesses about the credibility

of another one of Appellant's witness. This issue challenges an evidentiary

ruling by the trial court. We have explained:

[Our] standard of review for a trial court's evidentiary
rulings is narrow. The admissibility of evidence is solely
within the discretion of the trial court and will be reversed
only if the trial court has abused its discretion. An abuse of
discretion is not merely an error of judgment, but is rather
the overriding or misapplication of the law, or the exercise

4 The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Trial Court Order, 1/15/16, at 1. Appellant complied
and, within his Rule 1925(b) statement, Appellant listed the following,
relevant issues:

[1.] Whether the trial court erred and/or abused its
discretion in allowing the prosecutor to ask an improper
question concerning whether one witness would know the
state of mind of another witness, i.e. whether that witness
was lying (TT, Vol. II, 150).

[2.] Whether the trial court erred and/or abused its
discretion in failing to sustain an objection as to the
prosecutor's comment that reduced Appellant to something
other than a man? (TT, Vol. II, 309). See (TT, Vol. II, 301).

Appellant's Rule 1925(b) Statement, 2/5/16, at 1.

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of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill -will or partiality, as shown by the
evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (internal

quotations and citations omitted). "To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party." Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.

Super. 2012) (internal quotations and citations omitted). "A party suffers

prejudice when the trial court's error could have affected the verdict."

Commonwealth v. Tyack, 123 A.3d 254, 257 (Pa. Super. 2015) (internal

quotations and citations omitted).

Contrariwise, "an erroneous ruling by a trial court on an evidentiary

issue does not require us to grant relief where the error was harmless."

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). Our Supreme

Court has held:

Harmless error exists where: (1) the error did not prejudice
the defendant or the prejudice was de minimis; (2) the
erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Id. (internal quotations and citations omitted). "An error will be deemed

harmless where the appellate court concludes beyond a reasonable doubt

that the error could not have contributed to the verdict." Id. at 528. "If
there is a reasonable possibility that the error may have contributed to the

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verdict, it is not harmless. The burden of establishing that the error was

harmless rests upon the Commonwealth." Id. (internal citations omitted).
According to Appellant, the trial court erred when, over objection, it

permitted one of Appellant's witnesses (Justin McIntyre) to testify as to the

veracity of another one of Appellant's witnesses (Russell Brown).

By way of background, during Russell Brown's testimony, Mr. Brown

testified that, on the eve of Appellant's wedding, the group went back to

Appellant's house and "just watched a movie [and] played some video

games." N.T. Trial, 7/15/15, at 117. Moreover, during Mr. Brown's

testimony, Mr. Brown testified that the group watched the movie and played

the videogames in the basement. See id. at 125.

Justin McIntyre testified a little differently than did Mr. Brown.
Specifically, Mr. McIntyre testified that, when the group arrived at

Appellant's house on the eve of the wedding, the group played a videogame

in the living room of the house - not in the basement. See id. at 150. Mr.

McIntyre also testified that he could not remember whether the group also

watched a movie that night. Id. at 148. Then, during the cross-

examination of Mr. McIntyre, the Commonwealth asked Mr. McIntyre: 1)

whether Russell Brown was "telling the truth or lying" when Mr. Brown

testified that the group also watched a movie that night and 2) whether Mr.

Brown "was lying [when he testified that] . . . everybody was downstairs."

Id. at 148 and 150.

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Within Appellant's brief to this Court, Appellant claims that the trial

court erred when it overruled his objections to both questions. See

Appellant's Brief at 17-27. However, within Appellant's Rule 1925(b)

statement, Appellant only claimed that the trial court erred when it overruled

his objection at page 150 of the trial transcript. See Appellant's Rule

1925(b) Statement, 2/5/16, at 1 ("[w]hether the trial court erred and/or
abused its discretion in allowing the prosecutor to ask an improper question

concerning whether one witness would know the state of mind of another

witness, i.e. whether that witness was lying (TT, Vol. II, 150)") (emphasis
added). As noted above, the objection and ruling on the question of

whether Russell Brown was "telling the truth or lying" when Mr. Brown

testified that the group watched a movie occurred on page 148 of the trial

transcript; the objection and ruling on the question of whether Mr. Brown

"was lying [when he testified that] . . . everybody was downstairs" occurred

on page 150 of the transcript. Since Appellant's Rule 1925(b) statement

specified error only in regard to the latter issue, Appellant's claim with

respect to the former issue is waived. Pa.R.A.P. 1925(b)(4)(vii) ("[i]ssues

not included in the [Rule 1925(b) s]tatement . . . are waived"). We will now

consider whether the trial court erred when, over objection, it permitted

Justin McIntyre to testify that Mr. Brown "was lying [when he testified that] .

. . everybody was downstairs." We conclude that the trial court erred in its

evidentiary ruling, but that the error was harmless beyond a reasonable

doubt.

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At the outset, the Pennsylvania Supreme Court has consistently held

that "expert testimony is not permissible as to the question of witness

credibility." Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014). As

our Supreme Court explained, this is because

The veracity of a particular witness is a question which must
be answered in reliance on the ordinary experiences of life,
common knowledge of the natural tendencies of human
nature, and observations of the character and demeanor of
the witness. As the phenomenon of lying is within the
ordinary capacity of jurors to assess, the question of a
witness's credibility is reserved exclusively for the jury.
Id. at 761 (internal quotations, citations, and corrections omitted).

Further, this Court has held that lay witnesses are generally not

permitted to opine upon the credibility of a defendant. Commonwealth v.

McClure, 144 A.3d 970 (Pa. Super. 2016). In McClure, the defendant was
on trial for assaulting a five -month -old baby. During the defendant's trial,

the trial court permitted the investigating detective to testify that "neither he

nor [a Children and Youth Services] employee believed Appellant" when

Appellant told them that "she had tripped while carrying [the victim] and

fell, hitting [the victim's] head on a car seat." Id. at 973 and 977. On

appeal, the defendant claimed that the trial court erred when it "permitt[ed

the detective] to express opinions about [the defendant's] credibility." Id.
at 977. This Court agreed with the defendant and held that such testimony

was inadmissible, as it was irrelevant and impermissibly encroached upon

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the exclusive province of the jury to determine the defendant's credibility.5

Id.
Moreover, as the Supreme Court of Colorado cogently explained, there

are a number of additional reasons why it is generally impermissible to

question one witness about his opinion concerning the veracity of another

witness:

First, . asking a witness to comment on the veracity of
. .

another witness offers little or no probative value. This kind
of question seeks information beyond the witness's
competence. And, where the witness expresses a belief as
to the veracity of another witness, that statement of belief
is simply irrelevant; it does nothing to make the inference
that another witness lied any more or less probable. . . .

Second, this form of questioning ignores numerous
alternative explanations for evidentiary discrepancies and
conflicts that do not involve lying. There may be differences
in opinion, lapses or inaccuracies in memory, differences in
perception, a misunderstanding, or any other number of
wholly innocent explanations for discrepancies between one
witness's testimony and another's. By asking a "were they
lying" type of question, the possibilities are often falsely
reduced to deliberate deception on the part of one or more
witnesses. . . .

Third, these questions infringe upon the province of the
fact -finder and risk distracting the fact -finder from the task
at hand. Credibility determinations are to be made by the
fact -finder, not by the prosecutor or a testifying witness. A
"were they lying" type of question infringes upon this role
by asking the witness to make a credibility assessment and

5 The McClure Court also held that the error in its case was prejudicial.
Therefore, the Court reversed and remanded for a new trial. McClure, 144
A.3d at 977.

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by the credibility assumptions built into the question itself.
Moreover, while it is appropriate to juxtapose conflicting
accounts of the facts and ask the fact -finder to resolve the
dispute, it is not appropriate to compound that task by
implying that the fact -finder must determine one or more of
the witnesses is lying. This effectively distorts the
government's burden of proof. In the criminal setting, this
is particularly problematic as the fact -finder may assume
that an acquittal turns upon finding that the other witness
or witnesses lied.

Finally, asking "were they lying" questions is argumentative.
These questions set one witness against another and call for
the inference that someone is deliberately deceiving the
court. . In responding to this line of questioning, the
. .

witness risks alienating the jury by appearing antagonistic
or accusatory.
Liggett v. People, 135 P.3d 725, 731-732 (Colo. 2006) (en banc).

The holding of McClure and the convincing analysis from the Liggett
Court lead us to conclude that "were they lying" questions are generally

prohibited in Pennsylvania. Further, we conclude that the trial court erred

when it overruled Appellant's objection and allowed Justin McIntyre to

answer the question asking whether Russell Brown "was lying [when he

testified that] . . . everybody was downstairs" playing videogames on the

eve of Appellant's wedding. N.T. Trial, 7/15/15, at 150.

Nevertheless, the error in this case was harmless beyond a reasonable

doubt. First, the question of whether Appellant, the Victim, and the

groomsmen played videogames and watched a movie "in the living room" or

"in the basement" before going to bed on the eve of the wedding is relevant

only insofar as it completed the story regarding the group's activity on the

night in question and tested the witnesses' recollection of the night's events.

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In other words, the question concerned a wholly collateral issue. Second

(and on a related note), Appellant, the Victim, and the groomsmen all

testified that nothing untoward occurred "in the living room" or "in the

basement" while they were playing videogames and watching the movie.

Finally, the value of Russell Brown's testimony to Appellant was limited to

his recollection of the sleeping arrangements - and Justin McIntyre,

Christopher Johns, and Appellant all testified in an essentially identical

manner to Russell Brown on this issue. Specifically, Russell Brown, Justin

McIntyre, Christopher Johns, and Appellant all testified that, on the night in

question: Russell Brown, Justin McIntyre, and Christopher Johns went to

sleep in the living room; Juan Ortiz went to sleep in the basement; Appellant

went to sleep in the master bedroom; and, the Victim went to sleep in the

separate guest room. N.T. Trial, 7/15/15, at 118-119, 139-140, 152, 167-
168, and 186-187. Thus, the only valuable portion of Russell Brown's

testimony was cumulative of the testimony from Justin McIntyre,

Christopher Johns, and Appellant.

Therefore, we conclude that the trial court's evidentiary error was

harmless beyond a reasonable doubt, as the error did not prejudice

Appellant. Chmiel, 889 A.2d at 521.

Second, Appellant claims that the trial court erred when it overruled

his objection to the Commonwealth's closing argument, where the

Commonwealth declared, in reference to Appellant: "and the truth is that

this man, and I don't even know if he should be dignified with that 'man'

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title." Appellant's Brief at 28; N.T. Trial, 7/16/15, at 301. Again, we

conclude that the trial court erred in overruling Appellant's objection, but

that the error does not require a new trial.

Our Supreme Court has held:

A prosecutor has great discretion during closing argument
and is free to present his or her closing arguments with
logical force and vigor. Thus, [the Supreme Court] will
allow vigorous prosecutorial advocacy if there is a
reasonable basis in the record for the prosecutor's
comments. Stated differently, prosecutorial comments
based on the evidence or reasonable inferences therefrom
are not objectionable, nor are comments that merely
constitute oratorical flair. In reviewing an allegation of
prosecutorial misconduct, we will find that comments by a
prosecutor constitute reversible error only where their
unavoidable effect is to prejudice the jury, forming in their
minds a fixed bias and hostility toward the defendant such
that they could not weigh the evidence objectively and
reach a fair verdict.
Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016) (internal

citations, quotations, and corrections omitted). The trial "court must discern

whether misconduct or prejudicial error actually occurred, and if so, . . .

assess the degree of any resulting prejudice." Commonwealth v. Judy,
978 A.2d 1015, 1019 (Pa. Super. 2009). "Our review [] is [then]

constrained to determining whether the court abused its discretion." Id.
As noted above, during the Commonwealth's closing, the

Commonwealth argued to the jury the following:

Now, think about [the Victim's] testimony. If he didn't
know the answer to the question, he told you, he didn't
know. If he didn't remember the answer to the question,
he told you, he didn't remember. If he was lying, he would

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have an answer for everything. He didn't; and he didn't
because he was telling you the truth; and the truth is that
this man, and I don't even know if he should be dignified
with that "man" title, abused a 14 year old, abused a 15
year old, took advantage of the relationship he built; and he
took advantage of it by, first, the defendant using his hands
to rub the victim's penis.
N.T. Trial, 7/16/15, at 301.
Appellant objected at the conclusion of the Commonwealth's closing

and argued:

Judge, I just want to place an objection on the record to
one remark that was made by the prosecution. He referred
to [Appellant] as a person that does not . . deserve the
.

title of a man; and in that implication, reducing him to
something other than a man, and, quite frankly, I think it's
prejudicial for his remark that he is less than human. I
think it prejudices the jury, and ask you to instruct them to
disregard his remark about him. You can't refer to
somebody as less than human.
Id. at 309.
The trial court overruled Appellant's objection and refused to give the

requested curative instruction.6 Nevertheless, when court reconvened, the

6 Although Appellant waited until the end of the Commonwealth's closing
argument to object, the delay does not result in waiver of the claim on
appeal. Commonwealth v. Rose, 960 A.2d 149, 154 (Pa. Super. 2008)
("we note that Rose's counsel did not object immediately; rather, he waited
until the end of the prosecutor's closing argument to object and to request a
mistrial. Our Supreme Court has held that such a delay does not result in
waiver so long as: (1) there is no factual dispute over the content of the
prosecutor's argument (e.g., the argument was recorded and available for
review at trial); and (2) counsel objects immediately after closing argument
with sufficient specificity to give the court the opportunity to correct the
prejudicial effect of the improper argument. Commonwealth v. Adkins,
364 A.2d 287, 291 (Pa. 1976). Such is the case here. Accordingly, we
(Footnote Continued Next Page)

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trial court instructed the jury: "I caution you not to allow sympathy,
prejudice, or any emotion to influence your decision. It is your duty to base

your decision strictly on the evidence." Id. at 310-311.

Appellant now claims that the trial court's ruling is erroneous and that

the error requires a new trial. We agree that the trial court should have

sustained Appellant's objection, but that the error does not warrant a new

trial.

Initially, we conclude that the trial court erred when it overruled

Appellant's objection to the Commonwealth's closing argument. To be sure,

the Commonwealth's statement - that Appellant possibly did not deserve to

be called a "man" - did not constitute a comment upon the evidence, was

not a fair response to a point made by Appellant in his closing, and was not

permissible "oratorical flair." The comment simply had no place in this case

and is not condoned by this Court.

However, the Commonwealth's passing reference to Appellant as

possibly not deserving the title "man" does not warrant a new trial. Indeed,

the objectionable comment was a single, passing reference in a closing

argument that spanned 16 transcript pages; the comment was phrased as a

"possibility;" the comment "was not of such a nature that it would seriously

(Footnote Continued)

conclude that the issue is not waived for failure to timely object") (internal
footnote and some internal citations omitted).

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affect the jury's objectivity or deprive Appellant of a fair trial;" and, the trial

court specifically instructed the jury "I caution you not to allow sympathy,

prejudice, or any emotion to influence your decision. It is your duty to base

your decision strictly on the evidence." Commonwealth v. Gruff, 822 A.2d

773, 783 (Pa. Super. 2003); N.T. Trial, 7/16/15, at 310-311. Moreover, as

the Commonwealth notes, Appellant only objected to the comment after the

Commonwealth finished its closing argument - and, Appellant only

requested that the trial court issue a curative instruction and order that the

jury "disregard [the] remark about [Appellant]." N.T. Trial, 7/16/15, at 309.
However, if the trial court were to have done as Appellant wished, the trial

court would have necessarily had to repeat the objectionable comment or

remind the jury of the comment. Practically speaking, given Appellant's late

objection, the trial court's actual instruction to the jury - "I caution you not

to allow sympathy, prejudice, or any emotion to influence your decision. It
is your duty to base your decision strictly on the evidence" - was more

favorable to Appellant than was Appellant's requested form of relief.
Therefore, we conclude that the Commonwealth's objectionable

comment did not cause Appellant prejudice. Appellant's claim on appeal

fails.

Finally, Appellant superficially claims that "the trial court imposed an

illegal sentence by [imposing a condition of probation that] prohibit[s]

Appellant from access to the internet." Appellant's Brief at 33 and 35.

However, within the argument section of Appellant's brief, Appellant merely

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claims that "[t]here was no evidence presented [at trial] to show that

[Appellant] used the internet or his computer to gain access to sexually

explicit material and/or to communicate with children to develop

inappropriate relationships" and, thus, the restriction is not "reasonably

related to Appellant's rehabilitation." Id. at 35 (internal quotations and

citations and some capitalization omitted) (emphasis added). This is a

challenge to the discretionary aspects of Appellant's sentence - not to the

legality. See Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super.

2006) (as a condition of probation, the trial court ordered that the defendant

was prohibited from using a computer, accessing the internet, and owning a

cell phone; the defendant appealed, claiming that the conditions were "not
reasonably related to [his] rehabilitation, are incompatible with [his]

freedom of conscience, and are unduly restrictive;" this Court held that the

defendant's claim was a challenge to the discretionary aspects of his

sentence); Commonwealth v. Houtz, 982 A.2d 537, 539-540 (Pa. Super.

2009) (the defendant claimed that the trial court erred in prohibiting his use

of a computer and access to the internet because the prohibition was "not

tailored to the offense committed since there is no record that [the
defendant] ever used the computer to access inappropriate materials or

otherwise acted in such a way that would justify such dramatic restrictions;"

this Court held that the claim was a "challenge[ to] the discretionary aspects

of sentencing, not the legality of the sentence imposed"); but see

Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013) (a claim that the trial

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court did not have statutory authority to impose a particular
condition of probation is a challenge to the legality of a sentence).

Appellant did not preserve his discretionary aspects of sentencing

claim at sentencing or in a post -sentence motion. Therefore, the claim is

waived! Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) ("[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal").

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

/
J seph D. Seletyn,
Prothonotary

Date: 4/4/2017

Appellant also waived the claim because he did not include the claim in his
Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii) ("[i]ssues not included in
the [Rule 1925(b) s]tatement are waived").
. . .

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