Commonwealth v. Nazeio

Decision Date15 November 2022
Docket Number1910 EDA 2020,J-S33006-22
CourtPennsylvania Superior Court


Appeal from the Judgment of Sentence Entered September 18, 2020, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0003018-2016.

Joseph D. Seletyn, Esq. Prothonotary




Mario Nazeio (a/k/a Mario Nazario)[1] appeals from the judgment of sentence entered following his conviction for unlawful contact with a minor, endangering the welfare of a child, and corruption of minors. We affirm.

Around 2:30 a.m. on March 5, 2016, Abigail Agin arrived home with her boyfriend Danny Borges. Agin had previously arranged for her five-year-old daughter A.R. to be home under the care of Agin's sister Jessica Pagan (A.R.'s aunt), who lived there with her husband Nazeio (A.R.'s uncle). Agin went upstairs to the living room area, where she saw Nazeio lying on the couch licking A.R.'s vagina. A.R.'s pants and underwear were at her ankles, and Nazeio was in his underwear. Agin screamed and hit Nazeio which prompted Borges to enter the room and hit Nazeio once Agin said what she saw. Agin woke up Jessica Pagan, who asked Nazeio what he did. He said he did not know. Agin promptly called the police, who arrested and charged Nazeio.

At 4:44 a.m., A.R. participated in an interview with Carolina Castano of the Philadelphia Children's Alliance. A.R. said that Nazeio played a game in which he licked her "cookie," meaning her vagina. She told Castano that he licked her on her panties, not on her skin.

At 9:50 a.m., A.R. underwent a physical examination that included collecting swabs from her vagina. Benjamin Levin, an expert in forensic DNA analysis, compared the swabs to samples from A.R. and Nazeio. He prepared a two-page DNA laboratory report concluding: "The DNA detected in samples 53675 and 53676 is consistent with originating from [A.R.] Mario Nazario is excluded as a source of the DNA detected in these samples." Exhibit C-17a.

After two mistrials, the case proceeded to a jury trial in February 2020. The testimony was consistent with the above history. A.R., age nine at trial, testified that Nazeio asked her, "Do you want to play a game," pulled down her pants and underwear, and licked her "cookie." She confirmed that he licked her skin, not her panties, and that her statement to Castano that he licked her panties was not true.

During trial, Levin testified as an expert in the field of forensic DNA analysis. Over objection, he explained that a negative result could be caused by the absence of DNA or by an insufficient amount of DNA, and that on a mucus membrane like the vagina, foreign DNA diminishes over time.

The jury found Nazeio guilty of unlawful contact with a minor, endangering the welfare of a child, and corruption of minors. The jury found him not guilty of involuntary deviate sexual intercourse. On September 18, 2020, the trial court sentenced Nazeio to an aggregate term of 8 to 20 years of incarceration followed by 5 years of probation. Nazeio did not file post-sentence motions.

Nazeio timely appealed. Nazeio and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

Nazeio presents three issues for review:

I. Did the trial court err when it permitted a DNA expert to give testimony that was beyond his expertise and not contained in his expert report?
II. Was the evidence insufficient to convict Mr. Nazeio on all charges?
III. Was the jury's guilty verdict against the weight of the evidence?

Nazeio's Brief at 7.

I. Expert Testimony

Nazeio's first argues that the trial court abused its discretion by permitting Levin to testify beyond his expertise and beyond the scope of his expert report. On direct examination, after testifying that Nazeio's DNA was not on A.R.'s vaginal swabs, Levin described how foreign DNA in a mucus membrane (like a vagina) naturally dissipates over time. He likened it to how immediately after eating a blueberry Popsicle, one's mouth is blue, and over time, the amount of color goes away.

Nazeio presents two issues with Levin's testimony, which we will address in turn. First, Nazeio argues that any testimony about collecting DNA samples was beyond the scope of expertise of Levin, who had only worked in analyzing samples that were already collected. Second, he challenges the admission of testimony beyond the expert report, which concluded only that Nazeio was excluded as a source of the DNA from A.R.'s vaginal swabs.

Expert testimony is admissible if a qualified "expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson" and will help the jury "to understand the evidence or to determine a fact in issue" and if "the expert's methodology is generally accepted in the relevant field." Pa.R.E. 702.

The admission of expert testimony is a matter of discretion for the trial court, and will not be disturbed absent an abuse of discretion. Commonwealth v. Walker, 92 A.3d 766, 772 (Pa. 2014). An abuse of discretion "is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused." Id. at 772-73.
Expert testimony is admissible in all cases, civil and criminal alike, "when it involves explanations and inferences not within the range of ordinary training knowledge, intelligence and experience." Id. at 788. Even where an expert's testimony arguably went beyond the scope of his or her report, the defendant still bears the burden of proving he suffered prejudice from the admission of the testimony. See Commonwealth v. Henry, 706 A.2d 313, 326-27 (Pa. 1997).

Commonwealth v. Poplawski, 130 A.3d 697, 718 (Pa. 2015).

Regarding the scope of expertise, our Supreme Court has "recognized that the standard for qualifying as an expert is a liberal one and the witness need only have 'any reasonable pretension to specialized knowledge on the subject matter under investigation' and the weight to be given to the expert's testimony is for the factfinder." Commonwealth v. Jones, 240 A.3d 881, 890 (Pa. 2020) (quoting Commonwealth v. Gonzalez, 546 A.2d 26, 31 (Pa. 1988)) (quotation marks omitted). For example, even if an expert witness does not have practical experience administering tests, this does not preclude testimony about those tests based on knowledge from other sources; the fact finder can consider the lack of experience in weighing the expert's opinion. Commonwealth v. Taylor, 209 A.3d 444, 450 (Pa. Super. 2019) (finding reversible error to exclude testimony about validity of field sobriety tests from a scholar who had not given those tests himself).

Here, the parties stipulated that Levin was an expert in the field of forensic DNA analysis. Levin's expert qualifications included working as a forensic scientist for 16 years, preforming over a thousand DNA analyses, and being involved in validation and training for new techniques and technologies.[2]Trial Court Opinion, 8/20/21, at 14. This provided a "reasonable pretention to specialized knowledge" about the likelihood that DNA would be found on a surface, including reasons that it could diminish and would not be detected in a sample. Jones, supra. As in Taylor, any deficiency in Levin's opinion from his lack of experience collecting samples himself was properly before the finder of fact and went to the weight, not the admissibility, of the testimony. As such, the trial court did not abuse its discretion in overruling Nazeio's objections based on the scope of Levin's expertise.

Relatedly, Nazeio contends that Levin testified beyond the scope of his report. Levin's report concluded that Nazeio was excluded as a source of the DNA samples from A.R.'s vagina. His testimony described the meaning of that conclusion and possible causes: either Nazeio's DNA was not there, or there was not enough of it there when the samples were taken. Levin also testified that the likelihood that foreign DNA will be found on a mucus membrane decreases over time. Nazeio asserts that the trial court's rulings caught counsel "by complete surprise."[3]

We need not decide whether Levin's testimony about the dissipation of foreign DNA in a mucus membrane exceeded the scope of his report, however, because even if it did, we find no prejudice under the facts of this case. The jury acquitted Nazeio of involuntary deviate sexual intercourse, the only offense that required the Commonwealth to prove that Nazeio's tongue touched A.R.'s skin. Levin's testimony was not relevant to whether Nazeio's tongue touched A.R.'s panties, which were not tested for DNA. Therefore, Nazeio has failed to prove that he was prejudiced by the admission of Levin's testimony beyond his report.[4] Poplawski, 130 A.3d at 718. Nazeio's first claim fails.

II. Sufficiency of the Evidence

Nazeio next argues that the evidence was insufficient to convict him of unlawful contact with a minor, 18 Pa.C.S.A. § 6318(a), because the Commonwealth did not prove that he committed involuntary deviate sexual intercourse. Nazeio's Brief at 28-30 (unnumbered). Because the jury acquitted him of involuntary deviate sexual intercourse, Nazeio claims that he could not be convicted of contacting A.R. for the purpose of engaging in involuntary deviate sexual intercourse. Id. (citing Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010)).

As a preliminary matter, this claim is waived. Nazeio failed to assert this claim in his Rule 1925(b) statement....

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