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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C OMMONWEALTH OF PENNSYLVANIA ,

Appellee

v. MARTIN BROWN ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2794 E DA 201 9
Appeal from the PCRA Order Ente red August 23, 2019 i n the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0003080

- 2011 CP

- 51

- CR

- 0004214

- 2013 COMMONWEALTH OF PENNSYLVANIA ,

Ap pellee

v. MARTIN BROWN,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2795 EDA 2019
Appeal from the PCRA Order Ente red August 23, 2019 i n the Court of Common Pleas of Philadelphia C ounty Criminal Division at No(s): CP

- 51

- CR

- 0003080

- 2011 CP

- 51

- CR

- 0004214

- 2013 BE FORE: BENDER P. J. E. , STABILE , J. and STRASSBURGER , J. * MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2020
Martin Brown ( Appellant ) appea ls from the August 23, 2019 order dismissing without a hearing his petition filed pursuant to the Post

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. Upon review, we affirm. A prior panel of this Court summarized the factual and proce dural history as follows.

[ On May 27, 2014, f]ollowing a jury t rial, Appellant was convicted of offenses stemming from two consolidated cases. At Docket No. CP

- 51

- CR

- 0004214

- 2013, the jury found Appellant guilty of one count of third

- degree murder. At Docket No. CP

51

- CR

- 0003080

- 2011, the jury convicted Appellant o f one count each of possession of a firearm by a prohibited person, carrying a firearm without a license, carrying a firearm on a public street in Philadelphia, and possessing an instrument of crime. On August 1, 2014, the trial court sentenced Appellant to an aggregate term of thirty years to sixty years in prison. Appellant filed a timely post

- sentence motion challenging his third

- degree murder conviction, and the trial court denied the same on December 1, 2014. While Appellant filed a timely appeal i n that matter, he failed to do so in his case involving the firearms convictions. Ultimately, Appellant filed a [PCRA petition] on February 9, 2015, seeking reinstatement of his appeal rights nunc pro tunc

. The trial court granted Appellant’s PCRA petiti on on February 27, 2015, and Appellant filed an appeal that same day. Thereafter, the two appeals were consolidated. Pursuant to the trial court’s direction, on February 27, 2015, Appellant filed [a Pa.R.A.P 1925(b) statement]. Commonwealth v. Brown , 14 1 A.3d 598 1 (Pa. Super. 2016) (u npublished memorandum at 2

- 3) (footnotes omitted) . On February 19, 2016, this Court affirmed Appellant’s judgment of sentence. Id. Appellant did not file a petition for allowance of appeal with our Supreme Court.

_________________ __________ ______ ____ _______ 1 Identical unpublished memorandum at 141 A.3d 599.J

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On Apri l 14, 2016, Appellant pro se timely filed the instant PCRA petition at both lower court docket numbers. Nino V. Tinari, Esq. entered his appearance on beha lf of Appellant on July 27, 2016 . Thereafter, he filed an amended PCRA petition on March 1, 2017 , a nd a second amended petition on December 5, 2017

. Therein, Appellant asserted claims of ineffective assistance of trial counsel, and request ed discovery from the Commonwealth regarding police interviews of the victim. On July 11, 2019, the PCRA court
iss ued notice of its intent to dismiss Appellant’s PCRA petition without a hearing , pursuant to Pa.R.Crim.P. 907, because Appellant’s issues lacked merit. Appellant timely filed a response to the PCRA court’s Rule 907 notice on July 31, 2019 , requesting an e videntiary hearing concerning trial counsel’s ineffectiveness and time to hire an investigator to find a potential
witness. On August 23, 2019, the PCRA court dismissed Appellant’ s petition. On September 16 , 2019, Appellant timely filed separate notice s of appeal at each docket

. 2

_________________ __________ ______ ____ _______ 2 On September 17, 2019, pursuant to Pa.R.A.P. 1925(b)(2), the PCRA court directed Appellant to file a 1925(b) statement within 21 days, i.e. , by October 8, 2 019. Appellant filed his 1925(b) statement on October 10, 2019, and therein submitted a motion for a two

- day retroactive extension. On October 16, 2019, the PCRA court granted Appellant’s motion. Both Appellant and the PCRA court complied with the manda tes of Rule 1925. On December 5, 2019, this Court issued a rule to show cause based on Pa.R.A.P. 341, its Note, and our Supreme Court’s decision in Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018) (holding that “where a single order resolves issues arisin g on more than one docket, separate (Footnote Continued Next Page)J

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On appeal, Appellant presents a single question in his statement of questions involved for our review. Did the PCRA court commit legal error and abuse its discretion by dismissing the PCRA petition without an evidentiary hearing because due to recent landmark

- decisions in the area of search and seizure concerning police seizure of data from A ppellant’s cell phone activity because had A ppellant been able to testify at the May 19th, 2014 motion to suppress hearing his standing woul d have been established and the motion granted? Appellant’s Brief at 2 (designations altered)

. In reviewing an appeal from the denial of PCRA relief, “[w]e must examine whether the record supports the PCRA court’s determination, and whether the PCRA cour t’s determination is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Mikell , 968 A.2d 779, 780 (Pa. Super. 2009), quoting Commonwealth v. Lawrence , 960 A.2d 473, 476 (Pa. Super. 2008) (citations omitted). A PCRA petitioner is not automatically entitled to an evidentiary hearing. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008). “[I]f the PCRA court can determine
(Footnote Continued)

_____________ __ ________ notices of appeal must be filed for each one of those cases”). On December 6, 2019, Appellant filed a response, in which he stated that he complied with Walker . This Court discharged the rule to show cause and referred the issue to the merits panel for disposition. Pursuant to Commonwealth v. Johnson , Appellant has complied with Walker despite listing both docket numbers on his separately filed notices of appeal. __ A.3d __, 2020 WL 3869723 at *4 (Pa. Super. 2020) (hol ding that “[w]e should not invalidate an otherwise timely appeal based on the inclusion of multiple docket numbers, a practice that the Rules themselves do not expressly forbid”).J

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from the record that no g enuine issues of material fact exist, then a hearing is not necessary.” Id. We review the PCRA court’s decision to dismiss a petition without a hearing for an abuse of discretion. Commonwealth v. McGarry , 172 A.3d 60, 70 (Pa. Super. 2017) (citation omit ted). Before we address the merits of Appellant’s issue , we must determine whether he has preserved it for our review. A s the PCRA court noted, Appellant did not raise his claim in his PCRA petition. 3 See PCRA Court Opinion, 11/25/2019, at 5. The tria l court explained that Appellant “never argued in the PCRA court that [Appellant] should have testified in the hearing on the motion to suppress cellphone records,” and the issue is being raised for the first time on appeal. Id. We agree with the trial c ourt’s cogent reasoning. Accordingly, it is waived for failing to preserve it below.
See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); see also Commonwealth v. Fletcher , 986 A.2d 759, 778, 806

- 07 (Pa. 2009) (holding claims not raised in the PCRA court are waived and cannot be raised for the first time on appeal); Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) ( en banc ) (stating claims of PCRA counsel's ineffectiveness may not be raised for the first time on appeal).

_________________ __________ ______ ____ _______ 3 Although Appellant’s question on appeal is not identical to the issue he r aised in his Rule 1925(b) statement, we conclude it is subsumed therein. See Pa.R.A.P. 2116(a); see also In re G.D., 61 A.3d 1031, 1036 n.3, 4 (Pa. Super. 2013).J

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Even if it were not waived, Appellant has abandoned this claim by failing to present any argument related to this issue in his brief. In stead, in the argument section of his brief, Appellant argues that the P CRA court erred in dismissing his PCRA claim that trial counsel was ineffective for failing to
argue in his motion to suppress that the search warrant for Appellant’s cell phone records and data lacked probable cause

. Id. at 3

- 4 , 6

- 7. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived .”) (cit ations omitted). Accordingly, Appellant has waived his Pa.R.A.P. 1925(b) issue by failing to preserve it below and failing to present any meaningful argument in support ther e of on appeal . Additionally, Appellant has waived the issue he asserts in the arg ument section of his brief by failing to raise it in his Pa.R.A.P. 1925(b) statement. Thus, Appellant has failed to preserve any claims for our review, and we affirm the PCRA court’s order dismissing Appellant’s PCRA petition. Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/20