J-S16040-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL JOSE RODRIGUEZ : : Appellant : No. 1169 MDA 2024
Appeal from the Judgment of Sentence Entered April 16, 2024 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000742-2023
BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED: AUGUST 5, 2025
Daniel Jose Rodriguez (“Rodriguez”) appeals from the judgment of
sentence imposed following his convictions of possession of a firearm by a
prohibited person, possession with intent to deliver a controlled substance
(“PWID”), conspiracy to commit PWID, possession of a controlled substance,
and possession of drug paraphernalia.1 We affirm.
The trial court cogently set forth the factual history underlying
Rodriguez’s convictions as follows:
In December of 2022, Criminal Investigator Timothy Morris of the City of Reading Police Department (hereinafter referred to as “Investigator Morris”) began an investigation into . . . Rodriguez . . . , a man with the street name “Double D”, when he received some information that he was selling multiple types of narcotics
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1 18 Pa.C.S.A. §§ 903(a)(1), 6105(a)(1); 35 P.S. § 780-113(a)(16), (30),
(32). J-S16040-25
out of 507 North 14th Street. He also was provided with a cell phone number which was determined to belong to Rodriguez.
Using this cell phone number Investigator Morris arranged for three controlled buys. Prior to each controlled buy, Investigator Morris met with his confidential source and had him contact Rodriguez using the phone number registered to Rodriguez. The confidential source would make contact, then go to 507 North 14th Street to purchase the drugs. Prior to going to purchase the drugs the confidential source would be searched to ensure he had no drugs on him prior to going into the home. Investigator Morris would maintain physical surveillance on the confidential informant as he entered and exited the home. Each time he entered the home he went in through the basement door. After leaving the address he would meet up with Investigator Morris at a predetermined location and provide him with the marijuana he had purchased in the home. The money that would be exchanged for the marijuana would be discussed during the phone conversation prior to each buy. All three controlled buys used the same process. The same confidential source was used for all three controlled buys and the controlled buys took place from December 2022 into January 2023.
After the controlled buys, Investigator Morris obtained a search warrant for 507 North 14th Street, the body of Avery Putt (“Putt”), the body of . . . Rodriguez, as well as two cell phones. The search warrant was executed on January 18, 2023. While conducting the search the police found a plethora of drugs and drug paraphernalia, including but not limited to cocaine, methamphetamine, fentanyl, marijuana, scales, a press used to manufacture drugs, vacuum seals, stacks of U.S. currency, as well as [two] firearms. Inside the home police found Putt, [Jennifer] Lewis [(“Lewis”)], Rodriguez and a minor child. Putt, Lewis, and the minor were located on the second floor of the home in a storge area toward the back of the home and Rodriguez was located on the second floor in the hallway. When Rodriguez was found he was wearing shorts, no shirt, and no shoes. After the discovery of the drugs and drug paraphernalia in the home police arrested Rodriguez, Putt, and Lewis. When police went to take Rodriguez out of the home, he asked to grab his sweatshirt which was . . . in the basement.
Trial Court Opinion, 10/30/24, at 2-3 (citations to transcript omitted).
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Rodriguez’s issues both address the trial court’s ruling on a motion in
limine he filed immediately before trial began on Tuesday, January 16, 2024.
In his motion, Rodriguez requested the exclusion of evidence for violation of
the Commonwealth’s discovery obligations under Rule of Criminal Procedure
573. At oral argument on the motion prior to the selection of the jury,
Rodriguez informed the court that he “received . . . discovery . . . over the
weekend.” N.T. (Trial), Vol. I, at 7. The prosecutor responded that she “did
not have this information until Friday,” when the Commonwealth “received a
phone call from who would be considered an expert, Justin Morrow with the
Forensic Service Unit. He . . . indicated that upon his analysis and comparison
that . . . Rodriguez’s fingerprint did come back on two items.” Id. Specifically,
his fingerprints were discovered on a plate and the magazine of a firearm.
The prosecutor then “immediately emailed [defense counsel] and provided
him with that information and told him that a report would be forthcoming.”
Id. at 8. She received that report sometime “over the weekend,” and
“immediately forwarded it to” defense counsel. Id. Rodriguez then filed his
motion on the first business day following the three-day weekend.2
Rodriguez sought to exclude “any fingerprint reports or results” and any
expert testimony on that topic due to the late disclosure. Id. at 7.
Alternatively, Rodriguez asked “for a continuance” to “review this with [his]
expert.” Id. at 8. The trial court denied both requests on the basis that the ____________________________________________
2 The courthouse was closed on Monday, January 15, 2024, to observe Martin Luther King Jr. Day.
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Commonwealth did not violate its discovery obligations since, as Rodriguez
conceded, the prosecutor turned the material over immediately upon receipt.
See id. (“I want to make it clear I don’t believe that madam prosecutor has
withheld this from me. It [just] came to her as well.”).
At trial, the Commonwealth presented evidence as outlined by the trial
court above. The Commonwealth’s expert testified that regarding the match
of Rodriguez’s fingerprints to those left on items in the home at 507 North
14th Street. The jury convicted Rodriguez of the above-referenced offenses.
On March 12, 2024, the trial court imposed the aggregate sentence of
twenty-eight to fifty-seven years of incarceration. Rodriguez filed a timely
post-sentence motion for reconsideration on March 19,2024. The trial court
entered an amended judgment of sentence on April 16, 2024, and later held
a hearing on Rodriguez’s claim that the trial court imposed an excessive
sentence. The trial court denied the balance of the post-sentence motion on
June 28, 2024. Rodriguez thereafter filed a timely notice of appeal.3
Rodriguez and the trial court both complied with Pa.R.A.P. 1925.
Rodriguez presents two issues for our review.
1. Did the trial court commit an abuse of discretion and err as a matter of law in denying [Rodriguez]’s motion in limine to preclude the fingerprint evidence because the Commonwealth violated ____________________________________________
3 While the trial court denied the post-sentence motion on June 28, 2024, the trial court Clerk of Courts served the document on July 2, 2024. Rodriguez’s August 1, 2024 notice of appeal was therefore timely. See Pa.R.A.P. 108(a)(1) (stating that for purposes of calculating periods of time the date of entry of an order “shall be the day the clerk of the court . . . mails or delivers copies of the order to the parties”).
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Pa.R.Crim.P. 573(B)(1) and its introduction violated [Rodriguez]’s state and federal constitutional rights to a fair trial?
2. Did the trial court commit an abuse of discretion and err as a matter of law in denying trial counsel’s request for a continuance of the trial because of the delayed discovery disclosure resulting in prejudice to [Rodriguez]?
Rodriguez’s Brief at 3.
Both of Rodriguez’s issues address the trial court’s ruling that the
Commonwealth did not, as a matter of law, violate any discovery obligations.
Whether Rule 573 applies is a pure question of law, which we review de novo.
See Commonwealth v. Lopez, 280 A.3d 887, 894 (Pa. 2022) (“The proper
interpretation of a rule of criminal procedure is a question of law, for which
the standard of review is de novo and the scope of review is plenary.”). As to
remedies for discovery violations, the following principles apply to our review:
If a discovery violation occurs, the court may grant a trial continuance or prohibit the introduction of the evidence or may enter any order it deems just under the circumstances. Pa.R.Crim.P. 573(E) . . . . The trial court has broad discretion in choosing the appropriate remedy for a discovery violation. Commonwealth v. Johnson, . . . 727 A.2d 1089 ([Pa.] 1999). Our scope of review is whether the court abused its discretion in not excluding evidence pursuant to Rule 573(E). Id. (citing Commonwealth v. Jones, . . . 668 A.2d 491 ([Pa.] 1995)). A defendant seeking relief from a discovery violation must demonstrate prejudice. Id. (citing Commonwealth v. Counterman, . . . 719 A.2d 284 ([Pa.] 1998)). A violation of discovery “does not automatically entitle appellant to a new trial.” Jones, 668 A.2d at 513 (Pa. 1995). Rather, an appellant must demonstrate how a more timely disclosure would have affected his trial strategy or how he was otherwise prejudiced by the alleged late disclosure. Id. (citing Commonwealth v. Chambers, 599 A.2d 630, 636–38 ([Pa.] 1991) (no error in denial of mistrial motion for untimely disclosure where appellant cannot demonstrate prejudice)).
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Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003).
Rodriguez argues that the trial court erred as a matter of law in
determining that the remedial provisions of Rule 573 were not implicated. He
concedes that the rule by its plain text does not require the Commonwealth
to “have scientific testing performed at any particular time[.]” Rodriguez’s
Brief at 22. However, he observes that “[t]rial by ambush is contrary to the
spirit and letter of those rules and cannot be condoned.” Id. at 16 (citation
omitted). He submits that the Commonwealth ambushed him with the
fingerprint evidence and expert reports, stressing that the Commonwealth
could and should have obtained that material much sooner with proper
diligence. He cites the trial testimony of the officer who conducted the
fingerprint analysis; the officer stated that he received an email the week
before trial asking him to test the evidence. See N.T. (Trial), Vol. I, at 269
(“[Q.] When did the government reach out to you to process this? When did
the government ask you to start doing the fingerprinting collection? A. I got
an email last week.”). Therefore, the Commonwealth “was dilatory in
processing the fingerprint evidence and failing to turn over the reports until
the eve of trial.” Rodriguez’s Brief at 20.4
4 At times, Rodriguez distinguishes the “fingerprint cards,” referring to the physical manifestation of the fingerprints, from the expert’s testing and opinion that the fingerprints matched Rodriguez’s prints. However, the only plausible value of such evidence is the expert analysis linking the fingerprints to a particular individual, and Rodriguez does not suggest that he would have tested those fingerprints himself.
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Rodriguez’s issues differ only with respect to the trial court’s failure to
grant either of his requested remedies. His first issue claims that the trial
court should have excluded the fingerprint evidence and expert testimony
because the Commonwealth’s failure to have the evidence tested in a timely
fashion “was intentionally and recklessly undertaken to deprive [him] of a fair
trial.” Id. at 21-22. He argues that “[a] continuance would have been an
inappropriate remedy since it would have resulted in a significant additional
period of pre-trial confinement[.]” Id. at 22. Accordingly, the trial court
should have excluded the evidence. As it failed to do so, Rodriguez asserts
that this Court should “vacate the judgment of sentence and find that the
prosecutorial misconduct applies for double jeopardy purposes.” Id.
In his second issue, Rodriguez argues that the trial court should have
granted his alternative request to continue the trial for consultation with an
expert, as the typical remedy for late disclosure is a continuance to review the
material.
The trial court concluded that preclusion was not warranted on the basis
that no discovery violation occurred as “discovery is ongoing” and the
Commonwealth immediately supplied the information and report to Rodriguez.
N.T. (Trial), Vol. I, at 8. The trial court reiterated this conclusion in its opinion.
Trial Court Opinion, 10/30/24, at 13 (“[S]ince discovery is ongoing and the
fingerprint reports and results were not withheld by the Commonwealth but
were in fact turned over as soon as they were received, Rodriguez is not
entitled to relief.”).
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The threshold issue before this Court is whether the trial court erred in
finding that the Commonwealth did not violate its discovery obligations. For
the following reasons, we agree with Rodriguez that the trial court erred by
concluding that the prosecutor’s immediate disclosure of the fingerprint
evidence and expert report per se precluded a finding of a violation of Rule
573.
The Rules of Criminal Procedure require the Commonwealth to disclose
discovery on an ongoing basis and requires both parties to fulfill their
discovery obligations throughout trial. See Pa.R.Crim.P. 573(D). The
following provisions require mandatory disclosure of the fingerprint evidence
and expert report:
(e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; . . . .
Pa.R.Crim.P. 573(B)(1)(e)–(f).
There is no dispute that the Commonwealth immediately alerted
Rodriguez of its intent to offer expert testimony upon learning that their expert
matched Rodriguez’s fingerprints to two items. The trial court’s conclusion
that this was sufficient is facially supported with respect to the expert report,
as the relevant provisions of Rule 573 do not require the Commonwealth to
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generate expert reports in any particular timeframe.5 In response, Rodriguez
relies on precedents discussing “ambushing” an adversarial party with late
discovery violates the spirit if not the letter of the rule. The cases cited by
Rodriguez, however, concern situations in which the Commonwealth was in
possession of the evidence but failed to turn it over. For example, in
Commonwealth v. Hanford, 937 A.2d 1094, 1096 (Pa. Super. 2007), during
cross-examination of a defense witness, the Commonwealth introduced a
recorded jailhouse conversation between the witness and the defendant. We
held that the trial court erred by not excluding the evidence, as the
Commonwealth ambushed Hanford with the recordings. The Commonwealth
“could reasonably have predicted” that the availability of the recordings would
have factored into the defense’s strategy of calling the witness or changing
the line of questioning. Id. at 1101.
Rodriguez also discusses Commonwealth v. Gonzalez, 313 A.3d 154
(Pa. Super. 2024) (unpublished memorandum), in which the Commonwealth
appealed a trial court order precluding an expert’s opinion.6 There, the ____________________________________________
5 Our Supreme Court has asked the Criminal Procedure Rules Committee to
address this issue. See Commonwealth v. Dunn, 300 A.3d 324, 336–37 (Pa. 2023) (Opinion in Support of Affirmance) (Mundy, J.) (“We decline to prescribe a specific time frame for Rule 573 disclosures in this opinion, but refer this matter to our Criminal Procedure Rules Committee to consider whether adoption of an express time period or some alternative framework would clarify any uncertainty in the rule.”). We address the Dunn case in more detail within this memorandum.
6 Rodriguez fails to note that the case is unpublished and therefore not precedential. See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this Court filed after May 1, 2019, for their persuasive value).
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Commonwealth disclosed two weeks before trial an expert report setting forth
a Pennsylvania State Trooper’s conclusion that the defendant possessed drugs
with an intent to deliver and thus not for personal use. The trial court excluded
the report, and the Commonwealth appealed.
The Gonzalez case is similar in that it involves the Commonwealth’s
failure to timely disclose an expert report. However, the legal issues are
dissimilar. The Commonwealth as appellant in Gonzalez did not claim that
the trial court committed an error of law in applying Rule 573’s remedial
provisions. Instead, it claimed that two weeks “was far enough in advance of
trial that there was no prejudice” and “that the trial court abused its discretion
when it precluded [the] expert report . . . rather than granting a continuance.”
Id. at *11. Accordingly, the Gonzalez decision did not address the predicate
question of whether the trial court’s discretionary authority was implicated at
all.
As that issue presents a pure question of law and Rodriguez has
consistently framed his argument in terms of a trial by ambush, we address
our Supreme Court’s equally divided decision in Commonwealth v. Dunn,
300 A.3d 324 (Pa. 2023) (per curiam). In Dunn, the Commonwealth emailed
counsel for Ryan Dunn (“Dunn”) at 4:25 p.m., the day before his jury trial for
sexual abuse crimes was set to commence. The email advised Dunn that the
prosecution intended to call an expert to opine on the general behavior of
sexual victims and included a document discussing the general parameters of
the expert’s expected testimony. Dunn filed a motion arguing that the
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document was insufficient and seeking to compel the preparation of a
compliant expert report.
On appeal, this Court agreed with the trial court that “Rule 573 does not
specifically address the timing of disclosures and merely provides potential
remedies for noncompliance.” Commonwealth v. Dunn, 245 A.3d 1098 (Pa.
Super. 2020) (unpublished memorandum at *12). We therefore affirmed the
trial court’s order. Our Supreme Court granted Dunn’s petition for allowance
of appeal, and all six Justices agreed that, as a matter of law, the trial court
erred in finding no discovery violation. However, the Court split evenly on
whether Dunn was entitled to a new trial.
Justice Mundy, joined in full by Justice Brobson and in part by Chief
Justice Todd, authored the lead opinion in support of affirmance (“OISA”).
Justice Mundy explained that “this case does not concern the admissibility of
[the] expert testimony . . . but only whether the trial court erred in allowing
the Commonwealth to introduce the testimony in light of its belated
disclosure.” Dunn, 300 A.3d at 335 (OISA) (Mundy, J.). Justice Mundy
explained that Rule 573 does not “define[] a specific timeframe in which a
party calling an expert . . . must . . . provide the discovery materials[.]” Id.
The absence of a specific notice requirement was not dispositive.
Contrary to the Superior Court’s conclusion, however, we disagree that the lack of internal notice requirements equates to no notice requirements. Rule 573(d) imposes a continuing duty to disclose “additional evidence, material, or witnesses[,] subject to discovery or inspection[.]” Moreover, this Court has repeatedly emphasized that the purpose of Rule 573 is to “permit parties in criminal matters to be prepared for trial” and that “trial by ambush
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is contrary to the spirit and letter of those rules and will not be condoned.” Commonwealth v. Appel, . . . 689 A.2d 891, 907 ([Pa.] 1997) (reversed on other grounds) (citing Commonwealth v. Shelton, . . . 640 A.2d 892, 895 ([Pa.] 1994)). Thus, Rule 573 required the Commonwealth to promptly disclose its intent to call an expert under [the statute], as well as any expert reports in its possession.
Id. at 335 (OISA) (Mundy, J.) (footnote omitted).
It was “unclear exactly when the Commonwealth came into possession
of [the expert’s] letter, only that it was dated May 31, 2019.” Id. at 336. But
even if the Commonwealth had obtained the letter on June 3, 2019 — the day
before trial — and immediately turned it over, the disclosure was untimely
since “the Commonwealth was presumably aware of its intention to call [its
expert] and that such a letter was forthcoming.” Id. Moreover, the
Commonwealth “failed to advance any support or reasoning in defense of its
eleventh-hour notice or why it did not relay the information later provided in
a timely manner.” Id.
Justice Donohue, joined by Justices Wecht and Dougherty, penned an
opinion in support of reversal (“OISR”). Justice Donohue disagreed with the
conclusion that the document outlining the expert’s proposed testimony
qualified as an expert report and concluded that “the trial court abused its
discretion by failing to grant Dunn’s Motion to Compel a more detailed expert
report in compliance with Rule 573(B)(2)(b).” Id. at 344 (OISR) (Donohue,
J.). Justice Donohue also “agree[d] with the OISA that the Commonwealth
violated its duty to promptly disclose under Rule 573[.]” Id. Justice Wecht,
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joined by Justices Donohue and Dougherty, wrote a separate opinion in
support of reversal, largely addressing the remedy.
Therefore, all six Justices agreed that immediately providing an expert
report upon its receipt does not preclude discovery sanctions. As Justice
Mundy stated, “Rule 573 required the Commonwealth to promptly disclose its
intent to call an expert . . . as well as any expert reports in its possession.”
Id. at 335 (OISA) (Mundy, J.). We acknowledge the general rule that per
curiam orders affirming the order of the inferior tribunal are not binding
beyond the parties to the dispute. See Commonwealth v. Mosley, 114 A.3d
1072, 1082 n.11 (Pa. Super. 2015) (“When a judgment of sentence is affirmed
by an equally divided court . . . no precedent is established and the holding is
not binding on other cases.”). Nevertheless, we hold, in accordance with the
unanimous conclusion of the Supreme Court justices who addressed the issue
in Dunn, that the Commonwealth’s disclosure in this matter of an expert
report on the weekend before trial violated Rule 573.
As in Dunn, the Commonwealth obviously intended to determine
whether Rodriguez’s fingerprints appeared on items seized from the home.
Yet, as testified to by one of the investigating police officers, the
Commonwealth did not ask for any testing until one week before trial. See
N.T. (Trial), Vol. I, at 269. The only real distinction between this case and
Dunn is that the Commonwealth did not definitively intend to call an expert
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in this case until the fingerprint analysis generated a match.7 However, the
purpose of the discovery rules would be greatly undermined if the
Commonwealth could simply wait until close to trial to test evidence and then
ambush the defendant with the results. “The purpose of the discovery rules
is to permit the parties in a criminal matter to be prepared for trial. Trial by
ambush is contrary to the spirit and letter of those rules and cannot be
condoned.” Commonwealth v. Moose, 602 A.2d 1265, 1274 (Pa. 1992).
Affirming the trial court’s determination that no discovery violation occurred
would permit, if not encourage, prosecutors to impair a defendant’s
preparation for trial by manipulating the generation of expert evidence. We
therefore conclude that the trial court erred as a matter of law by determining
the Commonwealth did not violate Rule 573 simply because it immediately
turned over the expert report after its generation.8 ____________________________________________
7 We cannot fathom that our Supreme Court would have accepted a representation by the Commonwealth in Dunn that it realized on the eve of trial that expert testimony would have been useful. Comparably, the Commonwealth in this case knew, or at the least should have known, that whether Rodriguez’s fingerprints were present was a topic that likely would have come up at trial. If the Commonwealth had not requested the fingerprint analysis, Rodriguez would presumably have made that point on cross- examination or in his closing statement.
8 We confine our analysis to the instant facts and do not address scenarios
such as where a civilian witness supplies material to the Commonwealth shortly before trial or where the Commonwealth requests certain testing far in advance in trial, but the police failed to complete the testing in a timely fashion. As illustrated by Commonwealth v. Dodd, ___ A.3d ___, 701 MDA 2024 (Pa. Super. filed June 11, 2025), the analysis may differ in those situations. In Dodd, the trial court excluded photographs and text messages (Footnote Continued Next Page)
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We reiterate that the Commonwealth’s witness testified that fingerprint
processing was not requested until one week before trial. Rodriguez was
arrested in January of 2023, and the Commonwealth filed its criminal
information in March. The trial started approximately ten months later. The
Commonwealth offered no explanation for why it waited so long to follow up
on whether fingerprints linked Rodriguez to the items, nor did it offer any
argument at the pre-trial motion in limine for the delay. We recognize that
innocent reasons may explain its inaction.9 However, if the evidence were
crucial to its case, the Commonwealth could have requested a postponement
in advance of trial if needed. Rule of Criminal Procedure 600 affords the
supplied by the victim of domestic abuse to the prosecution approximately one week before trial. The trial court determined that the Commonwealth violated its due diligence obligations because it could have discovered the evidence much sooner by asking the victim relevant questions. We held that “Rule 573 . . . does not, itself, impose a duty of due diligence on the part of the Commonwealth.” Id. at 8. We thus concluded that the Commonwealth fulfilled its obligations by promptly turning over the material.
We need not discuss Dodd at length as expert reports and testimony present materially different considerations as addressed elsewhere within this decision. Furthermore, Dodd addressed the remedy of exclusion for a discovery violation and opined that “the overwhelming majority of authority throughout the Commonwealth provides that a continuance, not exclusion of relevant evidence, serves as the proper remedy” for late disclosures. Id. at 9. Thus, the Court in Dodd did not address a case where the trial court forced the defendant to proceed to trial without any opportunity to investigate or examine the material.
9 The officer who conducted the fingerprint analysis stated that the department had “a backlog of evidence” for processing. N.T. (Trial), Vol. I, at 269. Nevertheless, this explanation is in tension with the fact the testing was completed shortly after the Commonwealth’s request. See id.
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Commonwealth a full calendar year to marshal its evidence and bring the
defendant to trial. Cf. Commonwealth v. Mills, 162 A.3d 323, 324 (Pa.
2017) (holding that “time attributable to the normal progression of a case
simply is not ‘delay’ for purposes of Rule 600”).
We now turn to the question of remedy. We readily dispose on waiver
grounds Rodriguez’s claim that the failure to exclude the evidence requires
this Court to discharge his convictions and bar retrial. As Rodriguez himself
recognizes, his assertion that the inclusion of this evidence and the associated
expert testimony caused an unfair trial and warrants a bar on further
proceedings relies on double jeopardy concepts. See Rodriguez’s Brief at 15
(requesting that this Court “vacate his convictions, and hold that double
jeopardy bars retrial”). Our Supreme Court has extended “double jeopardy
protections under the Pennsylvania Constitution . . . to ‘misconduct which not
only deprives the defendant of his right to a fair trial, but is undertaken
recklessly, that is, with a conscious disregard for a substantial risk that such
will be the result.’” Commonwealth v. Kujawa, 332 A.3d 835, 839–40 (Pa.
Super. 2025) (quoting Commonwealth v. Johnson, 231 A.3d 807, 826 (Pa.
2020)).
However, Rodriguez did not ask the trial court to sanction the
Commonwealth on the basis that it intended to deprive him of his right to a
fair trial. Presently, he claims that the “Commonwealth waited until the
eleventh hour to request this testing. This action was intentionally and
recklessly undertaken to deprive [Rodriguez] of a fair trial.” Rodriguez’s Brief
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at 21–22. He could have raised this allegation with the trial court, which in
turn would have permitted credibility and factual findings regarding the
prosecutor’s conduct.10 See, e.g., Commonwealth v Smith, 955 A.2d 391,
395 (Pa. Super. 2008) (reversing trial court order dismissing charges for
discovery violation because “it is clear from the record that the
Commonwealth’s violation was not intended to provoke Smith into seeking a
mistrial or deprive him of a fair trial”). Because he did not argue this theory
to the trial court, he has waived it for appellate review. See Commonwealth
v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (“[T]his Court cannot review
a legal theory in support of that claim unless that particular legal theory was
presented to the trial court.”).
We now turn to the remaining issue of whether Rodriguez is entitled to
a new trial due to the trial court’s failure to grant a continuance. Notably, our
precedents place an initial burden on Rodriguez, as “a defendant seeking relief
from a discovery violation must demonstrate prejudice.” Counterman, 719
A.2d at 298. “[G]eneralized allegations of prejudice” do not suffice. Id. In
Commonwealth v. Jones, 668 A.2d 491 (Pa. 1995), the appellant sought to
exclude evidence on the basis the Commonwealth supplied it during trial in
10 The Johnson holding would authorize Rodriguez to pursue a claim that retrial should be barred due to the purported intentional or reckless failure to timely test the fingerprint evidence if he persuaded this Court to award a new trial. Rodriguez does not explain, however, how this Court could impose that remedy on appeal from a claim that sought a sanction following the untimely disclosure of mandatory discovery.
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violation of its discovery obligations. The record was not clear when the
Commonwealth turned over the evidence to the defense. However, our
Supreme Court held that “even if such a discovery violation occurred, it does
not automatically entitle appellant to a new trial.” Id. at 513. The defendant
in Jones did not establish his entitlement to relief, as he “fail[ed] to develop
how a more timely disclosure would have affected his trial strategy or how he
was otherwise prejudiced by the alleged late disclosure of” the evidence. Id.
Based upon our review, we conclude that Rodriguez is not entitled to
relief. We recognize that “[i]n many cases, ordering a continuance will be an
adequate remedy. This will be so where the undisclosed statement or other
evidence is admissible and the defendant’s only prejudice is surprise.”
Commonwealth v. Johnson, 456 A.2d 988, 993 (Pa. Super. 1983). While
it is without doubt that Rodriguez was surprised by the late disclosure of the
fingerprint match, he has not demonstrated how he would have used
additional time provided by a continuance to prepare for trial. Instead,
Rodriguez offers only a generalized allegation that he was unable to “properly
prepare for trial in light of the expert’s findings.” Rodriguez’s Brief at 14.
Absent from Rodriguez’s appellate argument is any contention that the
Commonwealth’s discovery violation prevented him from investigating the
fingerprint evidence or retaining a rebuttal expert.11
11 At the pre-trial hearing, Rodriguez stated that he had “a former state trooper” available for review of the fingerprint evidence. N.T. (Trial), Vol. I, (Footnote Continued Next Page)
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Rodriguez further claims that the fingerprint evidence “completely
derailed [his] defense that the guns and drugs belonged to convicted co-
defendants Putt and Lewis, both of whom had free range of the house given
their personal possessions were found in every place narcotics and firearms
were recovered.” Id. at 21. This is simply a complaint that the fingerprint
evidence was powerfully incriminating. Rodriguez does not point to any
deficiency in the testimony given by the Commonwealth’s expert or otherwise
suggest that the methodology employed was unreliable. That he has failed to
show on appeal how the expert testimony was flawed or ripe for cross-
examination underscores that his complaint is the existence of the evidence,
not the lateness of the disclosure. Accordingly, because Rodriquez has
“fail[ed] to develop how a more timely disclosure would have affected his trial
strategy or how he was otherwise prejudiced by the . . . late disclosure of” the
fingerprint evidence, we conclude that Rodriguez has not demonstrated
prejudice based upon the trial court’s denial of a continuance. Jones, 668
A.2d at 513.
Finally, we briefly address our Supreme Court’s discussion in Dunn of
whether the Commonwealth’s late disclosure of the expert report required a
new trial. Justice Mundy, joined by Justice Brobson, found that Dunn’s ____________________________________________
at 9. The trial court asked if the retired trooper was available to look at the fingerprint cards, and Rodriguez responded, “That . . . would make a lot of sense. That could be something that I could try to do today.” Id. at 10. It is not clear if Rodriguez consulted with the potential expert during or after trial, but he has not raised any argument relating to this potential expert in this appeal.
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arguments — that the “last-minute notice prevented him from conducting
independent research, developing a comprehensive cross-examination, [and]
making a knowing and intelligent decision about whether to hire his own
expert” — were “broad and non-specific” and thus “insufficient to demonstrate
the degree of prejudice necessary to warrant a new trial.” Dunn, 300 A.3d
at 338 (OISA) (Mundy, J.). Chief Justice Todd wrote separately to express
her view that Dunn, “having gone to trial and having seen [the expert’s] actual
testimony,” failed to “describe, in any detail, what he would have done
differently had he been given proper notice and what he viewed as a compliant
report.” Id. at 325 (OISA) (Todd, C.J.). While Dunn included arguments
along those lines in his reply brief, “that effort was too late.” Id.
Justice Donohue’s OISR agreed that the appellant must establish
prejudice but noted that the denial of a fair trial is one of “several different
modes of ascertaining whether prejudice resulting from discovery violations is
sufficient to warrant relief.” Id. at 350 n.13 (OISR) (Donohue, J.). She
concluded that Dunn met that standard because the Commonwealth’s late
disclosure “invariably affected trial counsel’s strategy” and deprived Dunn “of
the opportunity to make a reasonable, calculated decision” to retain his own
expert to “aid the defense in minimizing any negative effects [the
Commonwealth expert’s] testimony would have in this clash-of-credibility
case.” Id. at 351. Justice Wecht, writing separately in support of reversal,
disagreed with his colleagues that Dunn’s allegations of prejudice were
insufficient, noting that his counsel had identified a potential rebuttal expert
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and discovered numerous inconsistencies between the Commonwealth
expert’s testimony and the medical research on which she relied. See id. at
356 (OISR) (Wecht, J.).
While the remedial analysis in Dunn is not precedential, the various
opinions support our conclusion that no relief is due here. Rodriguez has failed
to offer any concrete explanation of how the late nature of the disclosure
prejudiced him or what he would have done differently if the trial court had
granted his request for a continuance. Unlike the appellant in Dunn,
Rodriguez has not identified any competing expert testimony he would have
presented or pointed to any flaw in the Commonwealth’s expert testimony. In
that regard, we note that the Dunn case involved a credibility battle whereas
the expert testimony here was of a binary nature: the fingerprints found on
the items either matched Rodriguez’s prints or they did not. Even with the
benefit of hindsight, Rodriguez has not articulated any reason to think that
the forensic testing conducted by the Commonwealth was unreliable or
questionable or that an earlier disclosure would have changed his strategy.
We therefore conclude that Rodriquez has failed to meet his burden of
demonstrating prejudice. No relief is due on his appellate issues, and we
affirm his judgment of sentence.12
Judgment of sentence affirmed.
12 Although we are sympathetic with Rodriguez’s claim regarding the Commonwealth’s late disclosure of the fingerprint evidence, we are bound by the relevant law and must conclude that his appellate issues merit no relief.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 8/05/2025
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