Com. v. Benitez, E.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ENOCH L. BENITEZ :

:

Appellant : No. 2019 EDA 2024

Appeal from the Judgment of Sentence Entered February 7, 2024

In the Court of Common Pleas of Monroe County

Criminal Division at No: CP-45-CR-0002633-2018

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 30, 2025

Appellant, Enoch L. Benitez, appeals from the judgment of sentence

imposed by the Court of Common Pleas of Monroe County on February 7, 2024,

following a jury trial. Appellant challenges the sufficiency of the evidence to

support his convictions of indecent assault and disorderly conduct, as well as

the denial of a new trial based upon prosecutorial misconduct. Upon review,

we affirm.

The trial court summarized the facts as follows:

On July 29, 2018, [] two sisters were in a wave pool at a local

resort that was open to the public. Others were in the pool as

well. In separate incidents in different parts of the pool, each

sister was inappropriately grabbed by [Appellant], whom neither

knew.

The first sister stated that she was in the shallow end, separated

from her group because she could not swim well. At some point,

she noticed [Appellant] was lingering around her for an extended

period of time. [She described Appellant hoovering near her

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family for about ten minutes, even moving with their group to a

different area of the pool.] The wave pool was not crowded, so

she thought his proximity to her was unusual because typically

people are often moved around by the waves. She felt like she

had to keep an eye on [Appellant] while also trying to enjoy her

time in the wave pool. Eventually, she was hit by a wave when a

“very rough and aggressive hand” cupped her inner buttock and

upper thigh. She testified that the cup on her buttocks was a

painful and firm grab that lingered for two seconds. Immediately

afterwards, she turned around to find [Appellant] standing there

apologizing that it was an accident.

The second sister testified that, while apart from her group in the

deep end, a wave hit her, and she was moved by the water. She,

too, felt a “vicious and aggressive” grab between her inner

buttocks. She described the grab as a painful squeezing – “trying

to get a handful” – that lasted for two to three seconds. She

screamed out of shock and turned around to find [Appellant]

behind her immediately apologizing and stating that it was an

accident. Visibly upset, she went to tell her family, including her

sister, what happened. When she recounted the incident, her

sister stated that a man had inappropriately grabbed her buttocks

about five minutes earlier.

At this point, the sisters reported the physical interactions to a

lifeguard, who then wrote down a description of the man and gave

it to security. [The sisters also pointed Appellant out to the

lifeguards.] Based on the description, security removed

[Appellant] from the wave pool and questioned him regarding the

incidents. The police arrived to question the girls, and later

[Appellant]. In their statements to the police, each sister reported

that she had been aggressively grabbed on the buttocks and inner

thigh without her consent. Afterwards, they immediately left the

resort without finishing the birthday celebration with their family

due to feeling angry, unsettled, and uncomfortable.

Trial Court Opinion, 10/10/24, at 8-9 (citations to record omitted).

Appellant was charged with two counts each of indecent assault and

disorderly conduct. After failing to appear in court on July 8, 2019, a bench

warrant was issued for Appellant’s arrest. The bench warrant was resolved

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on May 19, 2023. Following a jury trial on October 6, 2023, Appellant was

found guilty on all counts. Sentencing was deferred for a pre-sentence

investigation and assessment by the Sexual Offenders Assessment Board

(“SOAB”). On February 7, 2024, Appellant was sentenced to an aggregate

two to four years’ incarceration and was classified as a Tier 1 sexual offender.

Appellant filed a post-sentence motion, which was denied by the trial court.

This appeal followed. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

Appellant raises three issues for our review:

1. Whether the trial court abused its discretion by not

setting aside the verdict where there was insufficient

evidence to convict the Appellant of indecent assault []

where the parties were in a wave pool and there was no

evidence any contact was done for the purpose of

arousing sexual desire?

2. Whether the trial court abused its discretion by not

setting aside the verdict where there was insufficient

evidence to convict Appellant of disorderly conduct where

the parties were in a wave pool and there was no

evidence that any contact that occurred was done with

the intent to cause public inconvenience, annoyance, or

alarm, or recklessly creating a risk thereof, created a

physically hazardous or physically offense condition by

an act which served no legitimate purpose of the actor,

and the intent of the Appellant was to cause substantial

harm or serious inconvenience, or that the Appellant

persisted in disorderly conduct after reasonable warning

or request to desist?

3. Whether the trial court abused its discretion by not

setting aside the verdict and granting a new trial after

allowing the Assistant District Attorney to repeatedly ask

the Appellant if witnesses were lying when that is for the

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fact finder to determine and prosecutorial misconduct for

the Assistant District Attorney to ask?

Appellant’s Brief, at 7-8 (unnecessary capitalization omitted).

For a challenge to the sufficiency of the evidence, our standard of review

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 finder 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. Smith, 206 A.3d 551, 557 (Pa. Super. 2019) (citation

omitted).

On appeal, Appellant challenges the sufficiency of the evidence to prove

that the contact with the victims was for the purpose of arousing or gratifying

sexual desire. See Appellant’s Brief, at 22. He claims that any contact was

purely accidental because they were in an overcrowded wave pool. Id. at 27.

Appellant argues that the trial court failed to consider the context in which the

contact occurred when it found that it was done for the purpose of arousing

or gratifying sexual desire. Id. at 26-27.

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Appellant was convicted under subsection (a)(1) of the indecent assault

statute, which provides:

(a) Offense defined. — A person is guilty of indecent assault if

the person has indecent contact with the complainant,

causes the complainant to have indecent contact with the

person . . . for the purpose of arousing sexual desire in the

person or the complainant and:

(1) the person does so without the complainant’s consent[.]

18 Pa.C.S.A. § 3126(a)(1). Indecent contact is defined as: “[a]ny touching of

the sexual or other intimate parts of the person for the purpose of arousing

or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101 (definitions).

We have explained:

The separate crime of indecent assault was established because

of a concern for the outrage, disgust, and shame engendered in

the victim rather than because of physical injury to the victim.

Due to the nature of the offenses sought to be proscribed by the

indecent assault statute, and the range of conduct proscribed, the

statutory language does not and could not specify each prohibited

act.

Commonwealth v. Gilliam, 249 A.3d 257, 267 (Pa. Super. 2021). In other

words, a person commits the crime of indecent assault when they have

indecent contact with another for the purpose of arousing or gratifying sexual

desire.

In determining whether contact was for the purpose of arousing or

gratifying sexual desire, our Supreme Court has explained:

[W]hether a part of the body was kissed, stroked, slapped, or

poked does not inform whether the body part is intimate, but does

speak to whether the touching was for sexual gratification. An

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example sharpens the point: if someone were to flick a bee off of

a woman’s breast, he would have touched what is reasonably

considered to be an intimate part of her body, but the manner and

purpose – a flicking done to prevent the person from being stung

– goes to whether the touching was for sexual gratification.

Commonwealth v. Gamby, 283 A.3d 298, 315 (Pa. 2022). “Intent can be

proven by direct or circumstantial evidence; it may be inferred from acts or

conduct or from the attendant circumstances.” Commonwealth v. Griffith,

305 A.3d 573, 577 (Pa. Super. 2023). Moreover, indecent contact may occur

outside the context of a sexual or intimate situation. Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (wrapping one's arms around

another person and inserting one's tongue into another's mouth clearly

involves the touching of an intimate part of that person even though done

outside of the context of a sexual or intimate situation).

Here, two sisters testified, in separate incidents, that Appellant

forcefully grabbed their inner buttocks which lasted two to three seconds. One

sister, L.M., noticed Appellant hovering near her family for about ten minutes

before the first incident. She felt it was unusual for Appellant to be so close

to her group because the wave pool was not that crowded. Shortly thereafter,

a wave hit L.M. and she simultaneously felt someone crash into her and grab

her inner buttock in a very rough and aggressive manner. She explained that

it was painful, firm and lingered for two to three seconds. When L.M. turned

around, Appellant was there and immediately apologized.

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Approximately five minutes later, unbeknownst to what happened to her

sister, F.M. was swimming in the deep end of the wave pool, somewhat

separated from her family. She, too, was aware that Appellant had been near

her family. She explained that Appellant “was always around. Whenever I

would turn around, he was there.” N.T. Trial, 10/6/23, at 49-50. F.M. was

overtaken by a wave when she felt someone viciously and aggressively grab

her inner buttocks. She described it as “something like squeezing and

intentionally trying to get a handful of a grab.” Id. at 51. It lasted two to

three seconds. F.M. screamed in shock and turned to find Appellant, who

immediately apologized and said it was an accident.

Based on the totality of the circumstances, the jury was free to conclude

that the grabbing and squeezing of the inner buttocks of each of the victims

constituted the touching of an intimate part of a person and that the grabbing

was done for the purpose of arousing Appellant’s sexual desire. Appellant

forcefully grabbed the inner buttocks and squeezed for two to three seconds

on each victim. It cannot be disputed that the buttocks area is an intimate

part of a person’s body. The jury most certainly could conclude that identical

acts committed on two victims in close proximity in time in the same wave

pool and under the same circumstances were more than mere coincidence.

This is especially so where the jury could find the acts were done intentionally

and in a similar manner, thereby refuting Appellant’s explanation that the acts

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of groping were an accident. Thus, we conclude there was sufficient evidence

to support Appellant’s convictions of indecent assault.

Appellant also argues that the evidence was insufficient to support his

disorderly conduct convictions. Specifically, he claims a lack of evidence to

prove (1) intent to cause public inconvenience as an element of the offense

and (2) intent to cause substantial harm or serious inconvenience to increase

the grading of the offense. See Appellant’s Brief, at 32.

Appellant was convicted under subsection (a)(4) of disorderly conduct,

charged as a misdemeanor of the third degree, which states:

(a) Offense defined. — A person is guilty of disorderly conduct

if, with intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof, he:

****

(4) creates a hazardous or physically offensive condition by

any act which serves no legitimate purpose of the actor.

(b) Grading. --An offense under this section is a misdemeanor

of the third degree if the intent of the actor is to cause

substantial harm or serious inconvenience, or if he persists

in disorderly conduct after reasonable warning or request to

desist. Otherwise disorderly conduct is a summary offense.

18 Pa.C.S.A. § 5503. We have explained:

It is well-settled that the offense of disorderly conduct is not

intended as a catchall for every act which annoys or disturbs

people and it is not to be used as a dragnet for all the irritations

which breed in the ferment of a community. Rather, the specific

and definite purpose of the disorderly conduct statute is to

preserve the public peace.

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Commonwealth v. Bertothy, 307 A.3d 776, 781 (Pa. Super. 2023)

(citations and quotation marks omitted).

Here, Appellant argues that there was no evidence to prove an intent to

cause public inconvenience because the only members of the “public” who

were inconvenienced, annoyed or alarmed were L.M. and F.M. See Appellant’s

Brief, at 36. Thus, he contends, that his actions did not jeopardize the “public

peace.” Id. at 36-37.

For purposes of disorderly conduct, “public” means “affecting or likely

to affect persons in a place to which the public or a substantial group has

access[.]” 18 Pa.C.S.A. § 5503(c). Our Supreme Court has explained:

Although Section 5503 as a whole is aimed at preventing public

disturbance, it accomplishes this aim by focusing upon certain

individual acts, which, if pursued with the intent to cause public

inconvenience, annoyance, or alarm, or recklessly creating a risk

thereof, constitute the offense of disorderly conduct. These

individual acts focus upon the offender’s behavior. One such

act . . . is “engaging in fighting or threatening, or in violent or

tumultuous behavior.”

Significant is the fact that the General Assembly did not require

that this prohibited act be directed at a certain number of persons

that could qualify as “the public.” Therefore, when an offender

engages in fighting or threatening, or in violent or tumultuous

behavior in a public arena, even when that conduct is directed

at only one other person, the offender may be subject to

conviction for disorderly conduct.

Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (citations

omitted; emphasis added).

Appellant’s argument that his actions did not disturb the public peace

because only the two sisters were harmed is misplaced. There is no question

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that the subject wave pool is a space in which the public has unimpeded access.

Appellant concedes that the victims were inconvenienced, annoyed and/or

alarmed. Therefore, we conclude that the Commonwealth presented sufficient

evidence to establish the elements of the underlying offense. 1

Appellant also contends that there was insufficient evidence to support

the finding that he intended to cause substantial harm or serious

inconvenience to increase the grading to a third-degree misdemeanor. See

Appellant’s Brief, at 37-39. He claims that “there was no public yelling or

disturbance,” that he was “entirely cooperative” and “did not resist arrest” to

warrant a finding that he intended to cause substantial harm or serious

inconvenience. Id. at 39. We disagree.

When imposing the higher grading, we focus on

the offender’s behavior, not directly upon the public impact on

that behavior. Thus, when the Commonwealth proves that an

offender intended to cause public inconvenience, annoyance or

alarm, or recklessly created a risk thereof . . . the next level of

inquiry, under Section 5503(b), is the degree of the offender’s

behavior. If the offender acted with intent to cause substantial

harm or serious inconvenience (and by doing so potentially

increased the threat to the public peace and safety), the offense

is graded as a third-degree misdemeanor.

****

Therefore, we hold that Section 5503(b) does not require that the

Commonwealth prove that an offender acted with intent to cause

substantial public harm or serious public inconvenience, but only

that the offender acted with intent to cause substantial harm or

1 Appellant does not challenge that his actions caused a hazardous or

physically offensive condition to the victims. His argument is limited to the

intent element of the offense.

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serious inconvenience, in order to sustain a conviction for

disorderly conduct as a misdemeanor of the third degree.

Fedorek, 946 A.2d at 101 (emphases in the original; footnotes omitted).

The circumstances in this case support the finding that Appellant

intended to cause substantial harm or serious inconvenience when he

assaulted the victims. Prior to the incident, Appellant hovered around the

victims and their family in the wave pool. F.M. and L.M. noticed Appellant

near their group and found it unusual. Under cover of the waves, Appellant

grabbed the inner buttocks of F.M. and L.M. in separate incidents,

approximately five minutes apart. Both victims said that Appellant was rough

and aggressive and described it as a “painful squeezing” that lingered for two

to three seconds. Even after Appellant apologized to the first victim, she was

weary of him and told her family to stay away from him. N.T. Trial, 10/6/23,

at 36. The second victim screamed after being assaulted and turned around

to find Appellant, who apologized.

The victims were at the waterpark for a birthday celebration. The

victims were so traumatized and disturbed by Appellant’s conduct that their

entire group decided to leave the waterpark. Id. at 37. After being assaulted

by Appellant, the victims felt violated and disgusting. Id. at 53. As Appellant’s

behavior showed he intended to cause substantial harm and serious

inconvenience to the victims, there was sufficient evidence to support his

third-degree misdemeanor disorderly conduct conviction.

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In Appellant’s third issue, he contends that the trial court erred when it

allowed the Commonwealth to question Appellant about the credibility of the

victims. See Appellant’s Brief at 40-53. Specifically, he contends that the

Commonwealth engaged in prosecutorial misconduct when Appellant was

asked whether the victims were lying when they testified that Appellant

apologized to them. Id.

Our standard of review for a trial court’s evidentiary ruling 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 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. Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017). “To

prevail on a prosecutorial misconduct claim, appellant must show the

prosecutor’s actions had the unavoidable effect of undermining the fact-

finder’s neutrality so as to preclude a true verdict.” Commonwealth v.

Philistin, 53 A.3d 1, 17 (Pa. 2012).

Although the holding of Commonwealth v. Judy, 978 A.2d 1015 (Pa.

Super. 2009) applies to claims of prosecutorial misconduct during closing

argument, we find its rationale to be instructive:

It is settled that it is improper for a prosecutor to express a

personal belief as to the credibility of the defendant or other

witnesses. However, the prosecutor may comment on the

credibility of a witness. Further, a prosecutor is allowed to

respond to defense arguments with logical force and vigor. If

defense counsel has attacked the credibility of witnesses in closing,

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the prosecutor may present argument addressing the witnesses’

credibility. Commonwealth v. Chmiel, 889 A.2d 501, 544 ([Pa.]

2005).

****

Our courts have explained that a prosecutor cannot intrude upon

the exclusive function of the jury to evaluate the credibility of

witnesses by broadly characterizing the testimony of a witness as

a “big lie.” Nonetheless, a prosecutor’s assertion that a

witness had lied does not warrant a new trial where the

statement was a fair inference from irrefutable evidence

rather than a broad characterization.

In cases where the outcome is controlled by credibility

determinations, a prosecutor is permitted to make comments

reinforcing the fact that the jury is presented with conflicting

accounts. Commonwealth v. Johnson, 588 A.2d 1303, 1307

([Pa.] 1991). A prosecutor’s contention that a defendant lied is

neither unfair nor prejudicial when the outcome of the case is

controlled by credibility, the accounts of the victim and the

defendant conflict, and defense counsel suggests that the victim

is fabricating. [Id.] at 1307.

Id. at 1020, 1024-25 (some citations omitted; emphases added).

The determination of the credibility of a witness is within the exclusive

province of the jury. Commonwealth v. McClure, 144 A.3d 970, 977 (Pa.

Super. 2016). Thus, both expert and lay witnesses are precluded from opining

on a defendant’s credibility and offering testimony that would bolster another

witness’s credibility. See id. (allowing a detective to opine on a defendant’s

credibility constitutes reversible error); see also Yockey, 158 A.3d at 1256

(“[I]t is generally impermissible to question one witness about his opinion

concerning the veracity of another witness.”).

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Neither of those situations are presented here. During the

Commonwealth’s case-in-chief, the victims testified that Appellant apologized

to them after each incident. Appellant testified on his own behalf and denied

apologizing to the victims. His testimony directly conflicted with the victims’

testimony. On cross-examination, the Commonwealth confronted Appellant

with inconsistencies between his testimony and the victims’ testimony.

Specifically, the prosecutor asked:

Q: Are you telling me [L.M.] is lying?

MR. CUTAIO: Objection.

****

Q: Was [L.M.] lying to Corporal Anglemyer?

MR. CUTAIO: Objection, Your Honor.

N.T. Trial, 10/6/23, at 81, 83.2

Appellant and the victims’ respective recollections of whether Appellant

apologized were inconsistent. The implication that one or the other was lying

was a reasonable inference that the jury could have reached. The prosecutor

was simply emphasizing those inconsistencies, not stating a personal belief as

to whether Appellant was lying. Nor did the prosecutor engage in improper

2 The Commonwealth asked two other similar questions – “Are you saying that

[F.M.] lied?” and “Are they telling the truth or are you telling the truth?” N.T.

Trial, 10/6/23, at 82. Those questions were not objected to; therefore, they

were not preserved for appellate review. See Pa.R.A.P. 302(a); see also

Commonwealth v. McFalls, 251 A.3d 1286, 1293 (Pa. Super. 2021) (party

must make timely and specific objection at trial to preserve an issue for

review).

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bolstering or vouching of Commonwealth witnesses. The mere act of

highlighting conflicting testimony did not hinder the jury in their ability to

determine credibility. See Judy, supra. The jury received extensive

instructions regarding the credibility of witnesses and conflicting testimony.

See N.T. Trial, 10/6/23, at 128-33. Notably, the court instructed the jury that

it was their duty to “judge the truthfulness and accuracy of each witness’s

testimony and decide whether to believe all or part or none of that testimony.”

Id. at 128-29.

Accordingly, we discern no abuse of discretion in the trial court

permitting the Commonwealth to question Appellant whether the victims were

lying when they testified that Appellant apologized to them.

Judgment of sentence affirmed.

Date: 10/30/2025

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