J-S47041-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : DAVID MORGAN ROTHHAAR : : Appellant : No. 64 EDA 2024
Appeal from the Judgment of Sentence Entered November 29, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003675-2022
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 27, 2025
I. Introduction
David Rothhaar appeals from the judgment of sentence imposing four
to eight years of incarceration, following his convictions for burglary, criminal
trespass, and possession of an instrument of a crime. 1 Rothhaar claims the
lower court should have granted his motion to suppress the Commonwealth’s
evidence or, alternatively, that the Commonwealth witness Russell Mitchell
should not have been allowed to testify. Because we find that the suppression
claims are waived and that his evidentiary issue has no merit, we affirm.
II. Factual & Procedural Background
On June 28, 2022, around 9:40 p.m., Rothhaar broke into the home of
Robert Capriotti. Mr. Capriotti heard Rothhaar making noise in the upstairs
rooms and running down the steps. Mr. Capriotti called 911 at 9:46 p.m. Mr. ____________________________________________
1 18 Pa.C.S.A. §§ 907(a), 3502(a)(1)(ii), 3503(a)(1)(ii), and 3921(a). J-S47041-24
Capriotti never saw Rothhaar in the house, but Rothhaar left his DNA on a
windowsill in Mr. Capriotti’s garage.
At 9:53 p.m., in response to the 911 call, a police sergeant drove into
Mr. Capriotti’s neighborhood. He saw Rothhaar crossing the street two doors
down from the Capriotti house. Rothhaar was the only person outside at that
hour of the night.
The sergeant suspected that Rothhaar might be the burglar, because he
carried a backpack in his hand. The sergeant knew, from many prior burglary
investigations, that burglars typically carry bags with them to hide their tools
and stolen goods. The sergeant stopped Rothhaar to investigate if he was
involved with the break-in. Police then learned of a warrant for Rothhaar’s
arrest, arrested him, and searched his backpack. Inside was a small crowbar,
a metal tool, and a pair of gloves. The gloves belonged to Mr. Capriotti.
Once at the police station, Rothhaar provided investigators with a DNA
sample, which matched the DNA found on Mr. Capriotti’s windowsill. The
Commonwealth charged Rothhaar with burglary and related offenses.
Rothhaar filed a motion to suppress the Commonwealth’s evidence. He
contended that the sergeant detained him “in violation of his rights as secured
to him by the Fourth and Fourteenth Amendment to the United States
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constitution[2] and Article I, § 8 of the Pennsylvania constitution [3].” Omnibus
Pre-Trial Motion at 2. Critically, the motion did not claim greater protection
under Article I, § 8 of the state constitution than the protections that the
Fourth Amendment confers. Nor did the motion claim the suppression court
should depart from federal jurisprudence in any manner. See id. at 2-3. In
other words, Rothhaar’s suppression motion treated the federal and state
constitutional protections as coextensive.
On January 9, 2023, the suppression court held an evidentiary hearing
on the motion. The Commonwealth presented testimonial and video evidence
revealing the above facts. A week later, the suppression court ruled that the
sergeant lacked reasonable suspicion to detain Rothhaar for an investigative
detention. It entered an order suppressing the Commonwealth’s evidence, as
well as Rothhaar’s various statements to the police.
The Commonwealth moved for reconsideration. Among other issues,
the prosecution contended the attenuation doctrine, as defined and applied in
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2 “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amnd. IV.
3 “The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures . . . .” Pa. Const. art. I, § 8.
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Utah v. Strieff, 579 U.S. 232 (2016)4, allowed for admission of the evidence,
even if the police lacked reasonable suspicion to detain Rothhaar.
Rothhaar filed nothing in opposition to the Commonwealth’s motion for
reconsideration. The suppression court granted reconsideration. On January
31, 2023, the court conducted a second suppression hearing, where it received
additional testimony and evidence.
At the close of the second hearing, the parties argued over admissibility
of a video from the sergeant’s dashboard camera, which the sergeant did not
realize existed until a day before the second hearing. See N.T., 1/31/23, at
73-81. The suppression court deemed the dashboard video to be inadmissible
under the discovery rules.
The Commonwealth also claimed that, even if there was no reasonable
suspicion to stop Rothhaar, the suppression court should refuse to exclude its
evidence, based on the attenuation doctrine and Strieff. See id. at 82-87.
The Commonwealth argued that the facts of Strieff were identical to this case.
Because Rothhaar had a valid arrest warrant when the sergeant detained him,
the Commonwealth suggested the warrant attenuated whatever constitutional
taint the evidence suffered from the unreasonable investigative detention.
4 See Utah v. Strieff, 579 U.S. 232 (2016) (holding that, under the Fourth
Amendment, evidence seized during a search incident to a suspect’s arrest is admissible, because the discovery of an outstanding arrest warrant for the suspect attenuated the connection between an unlawful investigative stop and the seizure of incriminating evidence during the search incident to that arrest).
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In response, counsel for Rothhaar said, “I don’t think Strieff affects this
court’s ruling.” Id. at 87. “[A]lthough [Strieff] is a United States Supreme
Court case, Pennsylvania typically provides greater protection for its citizens.
And it’s clear that Strieff has not yet been adopted in Pennsylvania.” Id.
But, instead of analyzing the multifactor test of Commonwealth v.
Edmunds, 586 A.2d 887 (Pa. 1991), and asking the suppression court to
depart from the Fourth Amendment jurisprudence as articulated in Strieff,
defense counsel argued that Strieff was distinguishable on its facts from
Rothhaar’s case. See id. at 87-91.
Furthermore, defense counsel never discussed Edmunds during her
argument to the suppression court. Instead, she referred the court to Hudson
v. Michigan, 547 U.S. 586 (2006) (holding that violation of the “knock-and-
announce” rule when executing search warrant does not require suppression
of evidence discovered during the unannounced search). See id. at 88.
Hence, like his Omnibus Pre-Trial Motion, Rothhaar’s post-hearing argument
on the attenuation doctrine treated the protections of the Fourth Amendment
and Article I, § 8 as coextensive.
The Commonwealth then rebutted defense counsel’s implication that
Pennsylvania courts needed to adopt Strieff in order for it to apply. In doing
so, the prosecutor made the only reference to Edmunds. He did so to explain
how the defense could have made a departure argument to the suppression
court, if she desired to present such a claim. The prosecuting attorney said:
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in terms of the Strieff case . . . the Fourth Amendment of the United States constitution is adopted by Pennsylvania. There would need to be a specific finding that Utah v. Strieff is not applicable under the Pennsylvania constitution, not that it does not apply. It has to be the other way around.
Their [i.e., the Supreme Court of the United States’] logic does not apply under the Pennsylvania constitution . . . that would implicate Commonwealth v. Edmunds . . . where, essentially, the court would have to go through an extensive analysis to find that under the Pennsylvania constitution, and based off of an extensive analysis looking at other states and other jurisdictions, and [rule that] under the Pennsylvania constitution you’re entitled to greater rights. It’s a substantial analysis. But, again, the Fourth Amendment of the U.S. Constitution is adopted by Pennsylvania. Your Honor can say, yes, I believe that [the] logic from Utah v. Strieff applied here. And the reason behind it, I think, is also reflected in other Pennsylvania cases where the analysis comes down to privacy interests versus reasonableness.
Id. at 91-92.
The Commonwealth then provided the suppression court with a case
from this Court, which the prosecutor believed was similar to Strieff. See id.
at 93 (citing Commonwealth v. Mullen, 267 A.3d 507 (Pa. Super. 2021)
(holding that parole agents had probable cause to enter the residence of a
third party to execute an arrest warrant against a defendant, notwithstanding
the heightened privacy interest of the third party in the residence)).
The hearing then ended. Neither party submitted a post-hearing brief.
Thus, Rothhaar made no argument that the heightened protections of Article
I, § 8 or the multifactor test of Edmunds required the suppression court to
depart from the holding of Strieff on any independent, state-constitutional
ground.
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On February 8, 2023, the suppression court issued an order vacating its
prior order and denying the motion to suppress. While the suppression court
reiterated its original conclusion that the sergeant lacked reasonable suspicion
to detain Rothhaar, the court ruled that Strieff exempted the evidence from
the exclusionary rule of the Fourth Amendment.
Admittedly, the suppression court mentioned Edmunds in its opinion
denying the motion to suppress, but the court did not analyze the Edmunds
factors. See Findings of Fact and Conclusions of Law, 5/1/23, at 7. Instead,
it merely observed that “appellate courts have neither expressly accepted nor
rejected the ruling in Strieff” as it relates to Edmunds. Id. The suppression
court did not consider whether there were adequate and independent state
grounds under Article I, § 8 that compelled it to depart from Strieff. Hence,
the suppression court, due to the lack of a departure argument by Rothhaar,
treated the Fourth Amendment and Article I, § 8 as coextensive and naturally
applied the Fourth Amendment jurisprudence as articulated in Strieff.
Eight months later, the Commonwealth tried Rothhaar by jury.
During the defense’s opening statement, Rothhaar’s counsel attempted
to concoct reasonable doubt as to why Rothhaar’s DNA was on Mr. Capriotti’s
windowsill. “More specifically, counsel argued to the jury in his opening
statement that [Rothhaar] helped a friend do construction work on Mr.
Capriotti’s home and then cross-examined Mr. Capriotti on the possibilities of
his contractor having a subcontractor.” Trial Court Opinion, 2/7/24, at 13. In
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other words, defense counsel insinuated that Rothhaar was the unidentified
subcontractor.
However, after Mr. Capriotti testified, the Commonwealth located
Russell Mitchell, the contractor who repaired Mr. Capriotti’s windows. That
evening, the Commonwealth prepared a witness report for Mr. Mitchell and
provided it to defense counsel at 9:48 p.m. See T.N., 10/11/23, at 6. When
the court reconvened the following morning, defense counsel objected to Mr.
Mitchell being called as a witness, because his report was “not provided in
initial discovery.” Id. He said, “I’m scared to give whatever theory I have at
this point to anyone at the DA’s office for fear that if I tell them, they’re going
to go out and do an investigation and close any potential holes that there may
be in their case . . . .” Id. at 7.
The Commonwealth responded that the defense opened the door for Mr.
Mitchell to testify. It said that, by suggesting to the jury that there was an
innocent reason for Rothhaar’s DNA to be on Mr. Capriotti’s windowsill, the
defense had injected a new issue of fact into the case that made Mr. Mitchell’s
testimony relevant. See id. at 7-9. Prior to the defense’s attempt to create
an innocent explanation for Rothhaar’s DNA being on Mr. Capriotti’s
windowsill, the Commonwealth had no reason to prove Rothhaar was not a
subcontractor at the home.
Defense counsel replied that he was able to come up with the claim that
Rothhaar may have been a subcontractor working on the house. Thus, in his
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mind, the Commonwealth should have predicted such a contention and sought
to disprove it during the pretrial investigation. See id. at 11-12.
The trial court answered, “the fact that you were able to think of that
doesn’t mean that the Commonwealth is required to anticipate that. They
thought the case was simple. You introduced it to the case . . . .” Id. at 12.
The court then deferred resolution of the objection for a few hours.
When the court adjourned for lunch, argument resumed on whether Mr.
Mitchell could testify. Defense counsel offered a case where the Supreme
Court of Pennsylvania reversed the denial of a mistrial, because DNA was
admitted after defense counsel contended in the opening statement that there
was no physical evidence of a rape. Thus, allowing Mr. Mitchell to testify would
make “defense counsel appear to be incredible and lose trust with the jury
. . . .” Id. at 115. The trial court overruled Rothhaar’s objection and allowed
Mr. Mitchell to testify. See id. at 133. Mr. Mitchell testified that he did not
use a subcontractor to replace Mr. Capriotti’s windows.
Ultimately, the jury convicted Rothhaar of burglary, criminal trespass,
and possession of an instrument of a crime. The court sentenced Rothhaar as
described above, and this timely appeal followed.
III. Analysis
Rothhaar raises two appellate issues as follows:
1. Did the [suppression] court err in denying [his] motion to suppress?
2. Did the trial court err in permitting the Commonwealth to present the testimony of Russell Mitchell?
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Rothhaar’s Brief at 14. We address each issue in turn.
A. Denial of Suppression
As his first issue, Rothhaar contends that the suppression court erred in
granting the Commonwealth’s motion to reconsider and vacating its order that
suppressed the Commonwealth’s evidence and Rothhaar’s statements to the
police. Rothhaar advances two arguments to support his first claim of error.
He has waived both arguments.
For his first argument, Rothhaar suggests the suppression court should
not have granted the motion for reconsideration, because “the Commonwealth
advanced a new legal theory after the [suppression] court issued an order
granting the motion to suppress.” Rothhaar’s Brief at 15. In other words, he
contends the Commonwealth committed waiver by failing to raise all of its
theories opposing his motion to suppress at the first suppression hearing, on
January 9, 2023. See id. at 17-22.
Rothhaar relies upon this Court’s decisions holding that, after issuance
of an order and opinion granting suppression, the Commonwealth cannot offer
new legal theories to oppose suppression in a motion for reconsideration. Id.
at 18-21 (citing Commonwealth v. Smith, 304 A.3d 35 (Pa. Super. 2023);
Commonwealth v. Skipper, 277 A.3d 617 (Pa. Super. 2022)). He contends
that the Commonwealth did what our precedents prohibit, and the suppression
court erred by considering whether the attenuation doctrine applied. See id.
at 21.
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The Commonwealth responds that Rothhaar waived this argument. It
claims that Rothhaar failed to object or argue below that the Commonwealth
should be precluded from raising the attenuation doctrine in its motion for
reconsideration. See Commonwealth’s Brief at 8-9. The Commonwealth
further notes that Rothhaar agreed to reopen the record because he wanted
to seek suppression of his DNA evidence collected with his consent while in
custody, which he failed to raise at the first suppression hearing. See id. at
8.
In reply, Rothhaar argues that he objected to and preserved this issue
at the second suppression hearing. See Rothhaar’s Reply Brief at 5-6. He
further contends that he did not agree to reopen the record. Instead, he
claims that he was responding to the suppression court’s indication that it was
inclined to grant the motion to reconsider. See id. at 4-7.
The issue of waiver presents a question of law; our standard of review
is de novo, and our scope of review is plenary. The Supreme Court of
Pennsylvania has said, “it is axiomatic that issues not raised in lower courts
are waived for purposes of appellate review, and they cannot be raised for the
first time on appeal.” Trigg v. Children’s Hosp. of Pittsburgh of UPMC,
229 A.3d 260, 269 (Pa. 2020) (emphasis added) (citing Pa.R.A.P. 320(a)).
The record reflects that Rothhaar waived this argument on two bases.
First, contrary to his claim, he did not raise it in the suppression court. He
made no objection or argument that the Commonwealth should not be allowed
to raise its alternative legal theory under the attenuation doctrine. See N.T.,
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1/31/2023. Indeed, the citations to the notes of testimony in Rothhaar’s Reply
Brief involve defense counsel’s objection to the Commonwealth’s belated
attempt to admit a dashcam video from a police vehicle. He made no objection
to the Commonwealth’s invocation of the attenuation doctrine or Strief,
supra.
After the second suppression hearing, the suppression court heard
argument from both parties regarding the attenuation doctrine. See id. at
81-94. Defense counsel argued the merits of why the attenuation exception
should not apply to this case. See id. at 87-91. The defense never objected
to consideration of the doctrine on procedural grounds, such as waiver by the
Commonwealth. Therefore, Rothhaar’s argument of Commonwealth waiver is
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”).
Moreover, Rothhaar failed to include this claim of Commonwealth waiver
in either of his 1925(b) Statements. Thus, he has waived his argument that
the Commonwealth waived reconsideration and the federal-attenuation-
doctrine exception to the exclusionary rule.
For his second argument, Rothhaar states, “there is no good faith
exception pursuant to Article I, § 8, of the Pennsylvania constitution, [thus,]
the trial court erred in applying the attenuation doctrine under the
Pennsylvania constitution.” Id. (citing Edmunds, supra). “A review of the
Edmunds factors makes clear that the Pennsylvania constitution provides
greater protections than the United States Constitution, rendering the
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attenuation doctrine untenable as a matter of Pennsylvania constitutional
law.” Id. at 15-16. Rothhaar accuses the suppression court of “reading the
attenuation doctrine, which focuses on good faith, into the Pennsylvania
constitution, where no such good faith exception has been found to exist.” Id.
at 26. He proceeds to provide this Court with an Edmunds analysis on the
multifactor test found in that landmark case. See id. at 27-37. Rothhaar has
also waived this argument.
Again, “Issues not raised in the trial court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). This is because “issue
preservation is foundational to proper appellate review.” In re F.C. III, 2
A.3d 1201, 1211 (Pa 2010). “Requiring issues to be properly raised first in
the trial court ensures that trial judges have the opportunity to consider a
potential appellate issue and correct any error at the first available
opportunity.” Trigg, 229 A.3d at 269.
As our review of the suppression-court record reveals, Rothhaar did not
argue any of the Edmunds factors in the suppression court. Nor did he
develop an argument as to why that court should depart from the federal
attenuation doctrine by pointing to any adequate, independent state grounds. 5 ____________________________________________
5 “Adequate and independent state grounds” refer to a jurisdictional dividing
line for the Supreme Court of the United States when it decides if it will issue a writ of certiorari to a state court. If the state court’s judgment rests on adequate, independent state law, the Supreme Court lacks federal-question jurisdiction and will refuse certiorari. See, e.g., Republican National Committee v. Burton, 455 U.S. 1301, 1302, (1982) (Rehnquist, J., stating (Footnote Continued Next Page)
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As a result, the suppression court never decided in the first instance the
question of whether the state constitution compels it to depart from Strieff,
supra, or the attenuation doctrine as a whole. Hence, there is no alleged
misapplication of the state constitution to correct, because the suppression
court did not decide the motion to suppress based on the state constitution.
We simply cannot decide whether the suppression court erred by refusing to
depart from the holding in Strieff, when Rothhaar never informed the
suppression court that it needed to depart from Strieff.
The suppression court only addressed the claim and argument that
Rothhaar made to it – i.e., whether the facts of Strieff applied to this case.
The suppression court concluded that they do, and Rothhaar elected not to
challenge that ruling on appeal.
Instead, Rothhaar wrongfully accuses the suppression court of
“reading” the federal attenuation doctrine into the state constitution. See
Rothhaar’s Brief at 26. In actuality, Rothhaar’s federal-law-only arguments
to the suppression court “read” the attenuation doctrine into the state
constitution, because he treated the protections of the two constitutions as
coextensive. See Omnibus Pre-Trial Motion at 2-3; see also N.T., 1/31/23,
at 87-88. As mentioned, the only case that Rothhaar relied upon at the second ____________________________________________
“this Court has no jurisdiction to review decisions based on adequate, nonfederal grounds.”) (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, (1977); Cramp v. Board of Public Instruction, 368 U.S. 278, 281 (1961)). Without adequate, independent state grounds, the state court’s decision rests on federal law, and the Supreme Court of the United States has final appellate jurisdiction over the case.
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suppression hearing to oppose application of the attenuation doctrine was
Hudson, supra, another Supreme Court of the United States case. His
argument to the suppression court was based exclusively on federal law. By
relying exclusively on federal law, Rothhaar conceded that Article I, § 8
afforded him no greater protection than the Fourth Amendment.
Rather than the suppression court reading the attenuation doctrine into
the state constitution, it was Rothhaar who did so by concession. He gave the
suppression court no opportunity to rule upon the Edmunds factors in the
first instance. He presented no argument regarding why any Edmunds factor
necessitated the suppression court’s departure from Strieff. Thus, Rothhaar
afforded the suppression court no opportunity to extend the heightened
protections of Article I, § 8 of the Pennsylvania constitution to him. He left
the suppression court with only the Fourth Amendment jurisprudence, which
included the attenuation doctrine as articulated in Strieff.
Indeed, the Supreme Court of Pennsylvania has recently held that an
appellant’s failure to preserve a departure claim for appellate review results
in waiver. Commonwealth v. Foster, 332 A.3d 1187 (Pa. 2025). The High
Court said:
[Appellant] Foster presents a second issue in his brief, arguing that, if we conclude he is not entitled to relief under the federal constitution, we should find Article I, § 9 of the Pennsylvania Constitution provides “greater protection than its federal counterpart” and “proscribes police from lying about the nature of their interaction” with a potential suspect. Foster’s Brief at 25 . . .
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Recognizing that [the Supreme Court of Pennsylvania] has not interpreted Article I, § 9 as providing “any greater protection than” the Fifth Amendment with regard to a defendant’s inculpatory statement, Foster engages in an Edmunds analysis. See Foster’s Brief at 25 n.4 . . . He argues: (1) this Court has previously held that, despite similar language, “Section 9 can provide greater protection than the Fifth Amendment;” (2) other states have determined that police misrepresentations about the nature of an interview may lead to an involuntary statement; and (3) the “risk of false confessions, and relatedly, wrongful convictions will necessarily decline” if we limit police manipulation in interviews. Foster’s Brief at 32-43 . . .
The Commonwealth, however, insists that Foster has waived this claim, and we agree . . . Although Foster cited Article I, § 9 in his suppression motion, and repeated the citation in his appellee brief before the Superior Court, he did not develop any argument (before either lower court) that the Pennsylvania constitution provides greater protection against self-incrimination than its federal counterpart . . . Thus . . . Foster has waived the claim here. See Commonwealth v. Bishop, 655 Pa. 270, 217 A.3d 833, 841-842 (2019) (concluding that, while appellant raised departure claim under Pennsylvania constitution in petition for allowance of appeal, appellant nevertheless waived claim when appellant did not argue issue before suppression court nor develop any reasoning before appellate court).
Id. at 1194 n.9 (some punctuation omitted).
Like the defendant in Foster, Rothhaar did not argue for departure from
the Fourth Amendment’s attenuation-doctrine exception to the exclusionary
rule in the suppression court. Thus, he failed to preserve this novel, state-
constitutional claim for our appellate review.
In addition, even if Rothhaar had argued for heightened protections at
the suppression hearing, he neglected to include this claim of error in either
his 1925(b) Statement of Errors Complained of on Appeal or his Supplemental
Statement of Errors Complained of on Appeal. Hence, Rothhaar’s failure to
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apprise the court of common pleas that he intended to argue for heightened
protections in this Court is another reason he waived the claim. See Pa.R.A.P.
1925(b)(4) (vii); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (“in order to preserve their claims for appellate review, Appellants must
comply whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a
1925(b) statement will be deemed waived.”).
Therefore, we dismiss Rothhaar’s claim for heightened protections under
Article I, § 8 of the state constitution as waived.
B. Admission of Testimony
For his second and final appellate issue, Rothhaar argues that the “trial
court abused its discretion in permitting the Commonwealth to present the
testimony of Russell Mitchell.” Rothhaar’s Brief at 38. At the outset of his
brief, Rothhaar correctly states, “Admissibility of evidence is within the sound
discretion of the trial court, and [appellate courts] will not disturb an
evidentiary ruling absent an abuse of that discretion.” Id. at 5 (quoting
Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017)). However, he
neglects to define an abuse of discretion. This proves fatal to this evidentiary
issue, because Rothhaar attempts to convince us that the trial court’s decision
to admit the testimony was incorrect, rather than an abuse of discretion.
As the Supreme Court of Pennsylvania has explained, “Importantly, an
appellate court should not find that a trial court abused its discretion merely
because the appellate court disagrees with the trial court’s conclusion.”
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Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019). “Indeed, when
reviewing the trial court’s exercise of discretion, it is improper for an appellate
court to ‘step into the shoes’ of the trial judge and review the evidence de
novo.” Id. (some punctuation omitted). “An appellate court will not find an
abuse of discretion based on a mere error of judgment, but rather where
the trial court has reached a conclusion which overrides or misapplies the law,
or where the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Id. at 466–67. (some punctuation
omitted) (emphasis added).
Here, Rothhaar disregards our deferential standard of review. He does
not identify which type of abuse of discretion the trial court supposedly
committed. Instead, Rothhaar reproduces – verbatim – his argument to the
trial court that the evidence should be excluded, as if our standard of review
were de novo. See Rothhaar’s Brief at 38-39. It is not. See Gill, supra.
Next, he reviews the case that he cited to the trial court in detail. See
id. at 40-41. Rothhaar then summarily declares that his defense “counsel’s
credibility with the jury . . . was undermined by the fact that the
Commonwealth was permitted to present the testimony of [a] surprise witness
and trial by ambush resulted.” Id. at 43. “This simply cannot be condoned.
As such, the trial court erred in permitting the Commonwealth to introduce
this evidence.” Id. (emphasis added).
These two sentences (the last of Rothhaar’s argument) assert that the
trial court “erred.” This claim of error – rather than of an abuse of discretion
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– reflects Rothhaar’s disagreement with the trial court’s judgment to admit
Mr. Mitchell’s testimony. He attempts to have us share his disagreement.
But, as our standard of review makes clear, “an appellate court should not
find that a trial court abused its discretion merely because the appellate court
disagrees with the trial court’s conclusion.” Gill, 206 A.3d at 467.
Notably, Rothhaar fails to discuss the trial court’s rationale for admitting
the testimony – namely, that defense counsel opened the door to Mr. Mitchell’s
testimony by insinuating to the jury that Rothhaar did repair work on Mr.
Capriotti’s home. In the trial court’s view, by insinuating a false version of
events, defense counsel made Mr. Mitchell’s testimony relevant to disprove
defense counsel’s factual insinuation in his opening statement.
The trial court opined that Rothhaar “opened the door” to Mr. Mitchell’s
testimony. Trial Court Opinion, 5/15/24, at 14-15 (quoting Commonwealth
v. McCabe, 498 A.2d 933, 934 (Pa. Super. 1985)). In the trial court’s view,
prior to the first day of trial, the Commonwealth had no reason to think it
would need to call Mr. Mitchell as a witness.
Rothhaar makes no contention that the foregoing logic was manifestly
unreasonable. He cites to no Rule of Evidence or Rule of Criminal Procedure
that the trial court allegedly overrode or misapplied by allowing Mr. Mitchell
to testify. Finally, Rothhaar makes no contention that the trial court’s decision
was the result of partiality, prejudice, bias or ill-will. Accordingly, he does not
develop a sufficient appellate argument that the trial court’s decision was an
abuse of discretion, much less persuade that such an abuse occurred.
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Hence, Rothhaar’s evidentiary issue affords him no appellate relief. We
dismiss his final issue as meritless.
Judgment of sentence affirmed.
Judge Sullivan files a Concurring Memorandum.
Judge Beck files a Concurring/Dissenting Memorandum.
Date: 10/27/2025
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