dissenting:
I respectfully dissent from the majority’s decision to reverse appellants’ convictions for violating state game laws. Appellants’ claim that law enforcement officers obtained a search warrant on the basis of stale information has not been preserved for appellate review. The only suppression issue that appellants raised in the trial court concerned the seizure of items not covered by the search *261warrant. This issue was correctly addressed by the trial court in the following portion of its opinion:
The defendants contend that the search of their residence, on January 30, 1988, exceeded the scope permitted by the search warrant which had been obtained by the police. Specifically, they contend that certain items were seized which were not identified as items to be searched for in the warrant itself. The defendants do not contest the fact that the Commonwealth had probable cause for the issuance of a warrant, nor do they attack the warrant itself. During the search, game officers and other law enforcement officials were intent upon seizing .30-06 rifles, owned by the defendant, any one of which might have been used by the defendant in the game violations alleged. While at the home, the police also seized certain .30-06 ammunition with the thought of using it for test firing purposes. Having thought better of this procedure, the ammunition was returned. The weapon seized, was, however, retained by the police, test fired, and shown ultimately to be the weapon whose expended rounds were found at the scene. The fact that items, outside a warrant, are taken does not necessitate suppressing those items which are legally seized. Commonwealth v. Stewart, 343 [Pa.Super.] 514, 495 A.2d 584 (1985)....
In this case, the only items which the Commonwealth sought to admit into evidence were those which were identified in the search warrant itself. The Commonwealth did not introduce into evidence any items seized which were not identified in the warrant. We see no basis, therefore, in suppressing evidence otherwise lawfully seized.
Trial Court Op. at 3-4 (emphasis added).
On appeal, appellants have shifted gears and attacked the issuance of the warrant. I would not reach the merits of this new issue. This court cannot review a case upon a different theory from that relied upon in the trial court. Commonwealth v. Mehalic, 382 Pa.Super. 264, 284, 555 *262A.2d 173 (1989). “A theory of error different from that presented to the trial jurist is waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief.” Commonwealth v. Gordon, 364 Pa.Super. 521, 543, 528 A.2d 631, 638 (1987). See, e.g., Commonwealth v. Harmes, 255 Pa.Super. 147, 153 n. 1, 386 A.2d 551, 553 n. 1 (1978); Commonwealth v. Waters, 248 Pa.Super. 123, 128-29, 374 A.2d 1348, 1351-52 (1977). I recognize that there may be exceptional circumstances in which a rigid and inflexible application of the waiver doctrine would be unreasonable and unfair. However, I can see no justification for reversing a judgment of sentence where, as here, the appellants rely on a theory that is substantially different from the theory presented to the trial court, the trial court was deprived of an opportunity to consider the new theory, and the only punishment imposed on the appellants was a fine.
Since appellants have waived their challenge to the search warrant, I would not reach the merits of their staleness claim. I conclude that appellants’ remaining issues are not meritorious, and I would therefore affirm the judgments of sentence.