J

### -A01017-17 2017 PASuper 87

COMMONWEALTH OF PENNSYLVANIA,

v. JACOB ALLEN YOCKEY, Appellee



### Appellant IN THE SUPERIORCOURT OF PENNSYLVANIA

No. 107 WDA2016 Appeal

### from theJudgmentofSentence

### ofOctober21, 2015 Inthe CourtofCommon Pleas of

### Allegheny County Criminal Division at No(s): 

### CP-02-CR-0012979-2014
BEFORE: BOWES, OLSON and STRASSBURGER,* JJ. OPINION BYOLSON, J.: 

### FILED

### APRIL04, 2017 Appellant, Jacob Allen Yockey, appeals 

### from the

### judgment ofsentence 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 SeniorJudge assigned tothe Superior Court.J

### -A01017-17


### 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. Asthe 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 nightwere the 

### other groomsmen and 

### Appellant; JYwas not 

### present

### that night, as she was 

### with her bridesmaidsat 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 

### offmy pants. And I got 

### very nervous and 

### very scared and my mind 

### went blank. I

### just did it and he 

### startedtouching me. 

### Id. at 

### 38-39. According to the

### Victim, Appellanttouched 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. 

## -2J

### -A01017-17
Afterwards, Appellant told the Victim 

### "don't tell 

### anyone" and 

### that 

### "it was 

### normal." 

### Id. at40. The 

### Victim recalled 

### that Appellant next molested him "a few 

### months 

### later," insideof

### Appellant and JY's house. According to

### theVictim: 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 meonto his bed and 

### started wrestling with me. And he 

### took my 

### underwear and said, 

## "If you 

### want to win the underwear back, you have towin the 

### game." I

### didn't know

### whatthe gamewas or howto 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: 

### "Ijust 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. Afterthis occurred,Appellant again told the Victim 

### "don'ttell 

### anyone." 

### Id. at43. 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 aboutthe same way where I was 

### getting ready to do 

### something. He would pick me up and 

### continue to 

### take myclothes

### off and I would

### just not know

### whatto do -- be doing. I was like scared 

### almost, but because I 

### didn't know 

### what was going to happen 

### afterward, but he

### justcontinued to touch me and I 

### got

### very nervous, 

### almostshut down.

## -3J

### -A01017-17


### Id. at 

### 43-44. The 

### Victim testified 

### that Appellant again touched 

### "on my 

### private area"and againtold the

### Victim

### "don'ttell 

### anyone." 

### Id. at44. With respect tothe

### fourthtime

### thatAppellant molested the

### Victim, the Victim 

### testified: There was 

### another incidentwhere I was 

### getting readyto 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 reluctantto go to his house. But I 

### though [JY] would be

### there, butshewas 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

### sortofgrew weaker and I

### justfell limp.

I kept saying stop and no and no and no, but he

### just kept going.

. . . He

### just continued to touch me and I

### justfelt 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 meto

### work. 

### Id. at 

### 44-45. As the Victim later specified, during this 

### time Appellant touched theVictim onthe

### Victim's

### "privates." 

### Id. at45. 

### Appellant's final act of 

### molestation occurred over Labor Day weekend of2014. 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. Butas I was 

### starting to wake up, I saw 

### this object underthe covers and I was 

### wondering what itwas. 

### At

### first I 

### thought it was 

## -4J

### -A01017-17
the catand then I realized it wastoo big to be a cat. Then I 

### thought itwas a pillow and itwas 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 

### thatthe 

### objectthen 

### "disappeared." 

### Id. However, when 

### the Victim 

### fully woke, he realized 

### that he was naked 

## - even 

### though he was wearing 

### "black pajama pants 

### with underwearunderneath" when he

### wentto sleep. 

### Id. TheVictim

### testified: I was 

### very in shock so I

### wentto the bathroom and did

### what I 

### normally do, which is run my hands under scalding hot 

### water. And I was

### very reluctantto

### talkabout 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 

### objectwas 

### "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

### afterthe

### fifth act of

### molestation occurred, theVictim told his 

### mother what had happened and the 

### Victim's mother informed the police. 

### Id. at 50. The 

### Commonwealth presented 

### testimonyfrom the

### Victim's mother and JY and rested its case. 

### Appellant then presented 

### testimony from Russell


## -5J

### -A01017-17
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
overatAppellant's house on the 

### night before the wedding, when, the 

### Victim testified, Appellant

### firstabused him. Each 

### groomsmantestified 

### 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,theVictim, 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 wherethe events occurred. Russell Brown 

### testified 

### that, when 

### everyone went backto 

### 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, afterJuan Ortiz

### wentto 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

- 6 -J

### -A01017-17

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 thevideogame "Mario Party" in the living room. 

### Id. at 139 and 148. Mr. 

### McIntyre testified 

### that, after theyfinished 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 

### enterthe guest room; and, 

### after he sawtheVictim go into

### theguest room, he saw 

### Appellantenterthe 

### 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 gameswereyou playing? A: Mario Party. Q: Who is all playing these games? Was 

### everybody playing those games? A: Yes, sir. Q: Did youwatch a movie? A: I

### don't remember. Q: You 

### don't rememberifyouwatched a movie? A: I

### don't

### think Iwatched a movie.

- 7 -J

### -A01017-17

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 answerthe question. A: He was 

### probablytelling the

### truth. I 

### don't recall 

### watching one. I 

### probablydid. 

### Id. at 148. Mr. 

### McIntyre's

### testimonycontinued: Q: Now, you said 

### that you were all in the living room 

### [playing videogamesand

### watching the 

### movie], is

### that right? A: Yes, sir. Q: Okay; and

### whatfloor ofthe house is

### that on? A: The

### firstfloor. Q: The

### firstfloor; 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 bethe

### truth orwould he be lying? A: I

### don't know. Q: Well, 

### you're saying 

### that everybody hung 

### out upstairs, is 

### thatcorrect? 

## -8J

### -A01017-17

A: Yes, sir. Q: And Russell said 

### everybodywas 

### downstairs. So are you lying? A: The 

### -- it could be 

### upstairs or

### downstairs. 

### I'm prettysure it was 

### upstairs, because the TV was 

### upstairs, and 

### there's ample room 

### upstairs; plus, we have had a game 

### downstairs in

### the basement inthe past. Q: Soyou 

### don't knowwhere you were

### that night? A: Wewere 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

### justforthe last 

### time. He can answerthis 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 

## -9J

### -A01017-17

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, hesaw

### thatthe Victim "had his

### stuffset up inthe 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 

### timeto fall asleep and, 

### while he was awake, he did not 

### "hear any doors closing, opening, or any

### othersounds

### thatdrew 

### [his] 

### attention." 

### Id. at 168. 

### Appellant testified on his own behalf. According to 

### Appellant, on the 

### night beforethe 

### 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 

### wentto 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] 

### typicallysleeps on thefloor. 

### Id. at 

### 186-187. Appellant testified 

### that he 

### went to sleep in 

### the master bedroom and 

### thattheVictim did not go intothe bed

### with him. 

### Id. at 188.

- 10 -J

### -A01017-17
Appellant testified 

### that, after that night, theVictim visited Appellant's house

### "at least

### two"othertimes and, whenthe Victim sleptover, 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. 

### AfterAppellant's

### testimony, the Commonwealth presentedtwo 

### 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, hetold 

### 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 

### yearold,

### took advantageofthe relationship he 

### built; and he 

### tookadvantage ofit by,

### first, the defendant using his hands to rubthe

### 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 exchangeoccurred: 

### [Appellant's Counsel]: Judge, I 

### just want to place an 

### objection on the record to one 

### remark

### thatwas made bythe 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

### thatJ

### -A01017-17

he is less than human. I 

### think it prejudices the

### jury, and askyou to 

### instructthem to disregard his 

### remarkabout him. You 

### can'treferto somebody as less

### than human. [Trial 

### Court]: I 

### thinkthat is 

### perfectlywithin his 

### purview in theform of

### argument in a case likethis. 

### [Appellant'sCounsel]: 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. 

### Whetherthe

### trial courterred 

### 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. 

### Whetherthe

### trial courterred 

### and/or abused its 

### discretion in failing to sustain an 

### objection as to the prosecutor's 

### comment

### that reduced 

### Appellant to 

### something 

### otherthan 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.

- 12 -J

### -A01017-17

3. 

### Whether the sentence 

### prohibiting Appellant from having accessto the 

### internetwas illegal? 

### Appellant's Briefat 7.4 

### Appellant 

### first claims 

### that the 

### trial court erred when it allowed the Commonwealth to question one of

### Appellant's witnesses 

### aboutthe

### credibility of 

### another one of 

### Appellant's witness. This issue challenges an 

### evidentiary ruling bythe

### 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 

### otherthan a man? (TT,Vol. 

### II, 309). See (TT,Vol. 

### II, 301). Appellant's Rule 

### 1925(b) Statement, 

### 2/5/16, at 1.

- 13 -J

### -A01017-17
of

### judgmentthat is 

### manifestly unreasonable, or

### the result of bias, 

### prejudice, ill

### -will or 

### partiality, as shown by 

### the evidence

### of record. 

### Commonwealth v. 

### Mendez, 74A.3d 256, 260 (Pa. Super. 

### 2013) 

### (internal quotations and 

### citations 

### omitted). "To 

### constitute reversible 

### error, an 

### evidentiary ruling 

### must not only be

### erroneous, butalso 

### 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 quotationsand 

### 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 

### errorexistswhere: (1) the 

### errordid 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 ofthe 

### error was so 

### insignificant by comparison 

### that the 

### error could not have 

### contributed tothe

### 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

- 14 -J

### -A01017-17
verdict, it is not harmless. The burden of establishing 

### that the 

### error was harmless rests upon the 

### Commonwealth." 

### Id. (internal citationsomitted). 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'switnesses (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 

### thatthe group watchedthe movie and played thevideogames 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 onthe eve ofthe 

### wedding, the group played a 

### videogame in the living room ofthe 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 

### thatthe 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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### -A01017-17

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, Appellantonly claimed

### thatthe

### trial courterred 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 

### prosecutorto ask an 

### improper question concerning 

### whether one witness would know the state of mind of 

### another witness, i.e. 

### whether

### thatwitness 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]

. . . 

### everybodywas 

### 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 inthe [Rule 

### 1925(b) 

### s]tatement

. . . are

### waived"). Wewill now consider 

### whether the 

### trial court erred when, 

### over 

### objection, it 

### permitted Justin 

### McIntyre to

### testifythat 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.

- 16 -J

### -A01017-17

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 ourSupreme Courtexplained, this is because The

### veracity ofa 

### particularwitness is a questionwhich 

### must be answered in reliance on the 

### ordinary experiences of life, common knowledge of the natural tendencies of human 

### nature, and 

### observations ofthe 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 

### exclusivelyforthe

### jury. 

### Id. at 761 

### (internal quotations,citations, and 

### corrections

### omitted). Further, this Court has held 

### that lay witnesses are 

### generally not 

### permitted to opine uponthe 

### 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 detectiveto 

### testifythat"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 

### thatthe 

### 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

- 17 -J

### -A01017-17

the exclusive province of the

### jury to 

### determine the defendant's 

### credibility.5 

### Id. Moreover, as the Supreme Courtof 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 

### anotherwitnessoffers 

### little or no 

### probativevalue. This kind of question seeks 

### information beyond the witness's competence. And, where thewitness expresses a 

### belief as to the 

### veracity of another witness, 

### that statement of 

### belief is 

### simply 

### irrelevant; it does nothing to make the inference 

### thatanotherwitness lied anymore 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 

### "werethey lying" type of question, the possibilities are often falsely reduced to 

### deliberate deception onthe 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 prosecutoror a 

### testifying witness. A 

### "were they lying" type of question 

### infringes upon 

### this role by asking the witness to make a 

### credibilityassessment 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 at977.

- 18 -J

### -A01017-17 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

### thatthe

### 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 orwitnesses lied. Finally, asking 

### "werethey lying"questions is 

### argumentative. These questions setone witnessagainst 

### 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 analysisfrom 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
eveof

### Appellant'swedding. 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" beforegoing to bed on the eve 

### ofthewedding is 

### relevant only insofar as it completed the 

### story regarding the group's 

### activity on the 

### night in question and tested the

### witnesses' recollection ofthe night's events.

- 19 -J

### -A01017-17

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 inthe 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 separateguest 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, ChristopherJohns, 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, 889A.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'

- 20 -J

### -A01017-17


### 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 

### thatthe 

### error does not 

### require a new

### trial. OurSupreme 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

### fairverdict. 

### Commonwealth v. 

### Cash, 137 A.3d 1262, 1273 (Pa. 

### 2016) 

### (internal citations,quotations, and 

### corrections 

### omitted). The

### trial 

### "court mustdiscern 

### 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] constrainedto 

### determiningwhether the 

### courtabused its

### discretion." 

### Id. As noted above, during the 

### Commonwealth's closing, the Commonwealth argued to the

### jurythe

### 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, hetold 

### you, he 

### didn't remember. 

### If he was lying, he would

- 21 -J

### -A01017-17
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 

### yearold,

### took advantageofthe relationship he 

### built; and he 

### tookadvantage ofit by,

### first, the defendant using his hands to rubthe

### 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 bythe 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 askyou 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 ofthe 

### prosecutor's closing 

### argumentto 

### 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 ContinuedNextPage)

- 22 -J

### -A01017-17

trial court instructed the 

### jury: 

### "I caution you not to allow 

### sympathy, prejudice, orany 

### emotion to influence

### your decision. 

### It is

### yourdutyto base 

### your decision 

### strictly onthe

### evidence." 

### Id. at 

### 310-311. Appellant now claims 

### thatthe 

### 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

## - thatAppellant 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 

### forfailure to 

### timely object") (internal footnote and some 

### internalcitations 

### omitted).

- 23 -J

### -A01017-17

affectthe

### jury's objectivity or 

### depriveAppellant of a 

### fair

### trial;" and, the

### trial court specifically instructed the

### jury 

### "I caution you not to allow 

### sympathy, prejudice, orany 

### emotion to influence

### your decision. 

### It is

### yourdutyto base 

### your decision 

### strictly on the 

### evidence." 

### Commonwealthv. 

### Gruff, 822A.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 

### thatthe 

### trial court issue a 

### curative instruction and 

### order 

### thatthe 

### jury"disregard 

### [the] remarkabout 

### [Appellant]." N.T.

### Trial, 

### 7/16/15, at 309. However, ifthe 

### 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

### thecomment. 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 

### favorabletoAppellantthan was

### Appellant's requested 

### formofrelief. 

### 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

- 24 -J

### -A01017-17

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 ofprobation, the

### trial courtordered

### thatthe 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 

### thatthe

### 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

### thatwould

### justify such 

### dramatic 

### restrictions;" this Court held

### thatthe claim was a 

### "challenge[ to] thediscretionary 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

- 25 -J

### -A01017-17

court 

### did 

### not have 

### statutory authority to impose a 

### particular conditionofprobation is a challengetothe 

### legalityofa 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 

### courtarewaived and 

### cannot be raised 

### forthe

### firsttime on

### appeal"). Judgment ofsentence

### affirmed. Jurisdictionrelinquished. Judgment Entered. 

# /
J seph D. 

### Seletyn, Prothonotary

Date: 

### 4/4/2017

Appellant alsowaived the claim because he did not includethe 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").

- 26 -