J-S33006-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARIO NAZEIO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1910 EDA 2020

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.

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 15, 2022

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 

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1 Nazeio first filed a notice of appeal with the spelling in parentheses, and 

then, per this Court’s per curiam order, an amended notice of appeal with the 

spelling from the trial court caption. See Pa.R.A.P. 904(b)(1) (“The parties 

shall be stated in the caption as they appeared on the record of the trial court 

at the time the appeal was taken.”). 
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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 
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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 postsentence 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 
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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).
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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 

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2 The trial court permitted limited testimony about Levin’s qualifications based 

on the stipulation as to his expertise. N.T., Trial Vol. II, 2/21/20, at 56. On 

cross-examination, Levin noted that in his continuing education, he read about 

“not just the DNA itself but also the origin of DNA from different tissues, from 

different surfaces, different materials.” Id. at 71.
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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 

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3 This overlooks the trial court’s identical rulings when the same issues arose 

at Nazeio’s first trial. See N.T., Jury Trial Vol. I, 12/14/17, at 120–147. The 

Commonwealth apparently shared Nazeio’s surprise by arguing in closing that 

“I don’t think me or the defense were anticipating” Levin’s testimony about 

insufficient quantities of DNA. N.T., Jury Trial, 2/24/20, at 30.
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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. There, he generally alleged, “The 

evidence was insufficient as a matter of law to convict Appellant of any 

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4

In this vein, we agree with the Commonwealth that any error would have 

been harmless. See generally Commonwealth v. Holt, 273 A.3d 514, 540 

(Pa. 2022) (citing Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978)) 

(explaining that the Commonwealth proves harmless error if the error did not 

contribute to the verdict, as when there is no prejudice); Commonwealth v. 

Green, 162 A.3d 509, 522 (Pa. Super. 2017) (finding de minimis prejudice 

from evidence based on an acquittal of charges supported by that evidence).
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charges.” Based on Nazeio’s blanket claim of insufficiency, the trial court did 

not address whether the Commonwealth had proven every element of 

unlawful contact with a minor. See Trial Court Opinion, 8/20/21, at 20–22 

(relying on closing arguments to guess which elements of which offenses 

Nazeio would challenge on appeal). Therefore, Nazeio waived his sufficiency 

challenge. See Commonwealth v. Bonnett, 239 A.3d 1096, 1105–07 (Pa. 

Super. 2020).

If Nazeio had preserved this claim, it would still fail. To sustain a 

conviction for unlawful contact with a minor, the Commonwealth must prove 

that the defendant intentionally contacted a minor “for the purpose of 

engaging in” a prohibited activity, not that he committed that activity. 18 

Pa.C.S.A. § 6318(a). Our Supreme Court emphasized that the underlying 

sexual offense is not a predicate offense of unlawful contact with a minor. 

Reed, 9 A.3d at 1146. “In other words, a defendant need not be successful 

in completing the purpose of his communication with a minor in order to be 

found guilty of [unlawful contact with a minor].” Id. Here, in prosecuting the 

unlawful contact with a minor charge, the Commonwealth was not required to 

prove that Nazeio committed the completed offense of involuntary deviate 

sexual intercourse.

Furthermore, Nazeio’s unlawful contact with a minor conviction was 

properly graded as a felony of the first degree. If the trial court properly 

instructs the jury—to convict the defendant of unlawful contact with a minor, 

you must find beyond a reasonable doubt that the contact was for the purpose 
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of engaging in involuntary deviate sexual intercourse—then the conviction for 

unlawful contact with a minor is graded as a felony of the first degree, even if 

the jury acquits the defendant of the underlying offense. Commonwealth v. 

Aikens, 168 A.3d 137, 143–44 (Pa. 2017) (distinguishing Reed). Here, the 

trial court properly instructed the jury. See N.T., Trial, 2/24/20, at 61–62. 

Therefore, there is no defect in Nazeio’s conviction for unlawful contact with a 

minor, graded as a felony of the first degree. This claim fails.

III. Weight of the Evidence

Last, Nazeio challenges the jury’s verdict as being against the weight of 

the evidence. He emphasizes inconsistencies between A.R.’s statements to 

Castano and her testimony at trial, as well as the negative DNA test result. 

Specifically, A.R. said in her interview with Castano that Nazeio licked her 

panties and at trial that he licked her “cookie.” As addressed above, Nazeio 

was excluded as a source of the DNA detected in the two swabs taken from 

A.R.’s vagina. Critically, Nazeio did not raise this issue prior to sentencing.

As an initial matter, a challenge to the weight of the evidence must 

be preserved either in a post-sentence motion, by a written 

motion before sentencing, or orally prior to sentencing. 

Pa.R.Crim.P. 607(A)(1)–(3). “The purpose of this rule is to make 

it clear that a challenge to the weight of the evidence must be 

raised with the trial judge or it will be waived.” Comment to 

Pa.R.Crim.P. 607. If an appellant never gives the trial court the 

opportunity to provide relief, then there is no discretionary act 

that this Court can review.

Commonwealth v. Mbewe, 203 A.3d 983, 988 (Pa. Super. 2019) (quoting 

Commonwealth v. Jones, 191 A.3d 830, 834–35 (Pa. Super. 2018)). Under 
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Rule 607, an appellant in a criminal case cannot preserve a weight claim by 

raising it for the first time in a Rule 1925(b) statement, even if the trial court 

addresses the merits of the claim in its Rule 1925(a) opinion. See In re J.B., 

106 A.3d 76, 96–98 (Pa. 2014) (tracing the Rule’s promulgation in response 

to Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997)).

Prior to filing his notice of appeal, Nazeio never gave the trial court the 

opportunity to rule on whether he should get a new trial based on the weight 

of the evidence. Nazeio’s written motion for extraordinary relief did not 

address the weight of the evidence.5 Nazeio did not file a post-sentence 

motion. The first time he asked the court to review the weight of the evidence 

was in his Rule 1925(b) statement. Accordingly, Nazeio has waived this claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2022

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5 Even if Nazeio had raised this issue in his motion, it would still be waived; a 

motion for extraordinary relief has no effect on issue preservation. 

Pa.R.Crim.P. 704(B)(3).