J-S24041-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

MARTIN BROWN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2794 EDA 2019

Appeal from the PCRA Order Entered August 23, 2019

in 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,

 Appellee

 v.

MARTIN BROWN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2795 EDA 2019

Appeal from the PCRA Order Entered August 23, 2019

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0003080-2011

CP-51-CR-0004214-2013

BEFORE: BENDER P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2020

Martin Brown (Appellant) appeals from the August 23, 2019 order 

dismissing without a hearing his petition filed pursuant to the Post 

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* Retired Senior Judge assigned to the Superior Court.
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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 procedural 

history as follows.

[On May 27, 2014, f]ollowing a jury trial, 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. CP51-CR-0003080-2011, the jury convicted Appellant of 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 in 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 petition 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, 141 A.3d 5981 (Pa. Super. 2016) (unpublished 

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.

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1

Identical unpublished memorandum at 141 A.3d 599.
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On April 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 behalf of Appellant on July 27, 2016. Thereafter, he filed an 

amended PCRA petition on March 1, 2017, and a second amended petition 

on December 5, 2017. Therein, Appellant asserted claims of ineffective 

assistance of trial counsel, and requested discovery from the Commonwealth 

regarding police interviews of the victim. On July 11, 2019, the PCRA court 

issued 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 evidentiary 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 notices of 

appeal at each docket.

2

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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, 2019. 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 mandates 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 arising on more than one docket, separate 

(Footnote Continued Next Page)
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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 Appellant’s 

cell phone activity because had Appellant been able to testify at 

the May 19th, 2014 motion to suppress hearing his standing 

would 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 court’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) (holding 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”).
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from the record that no genuine 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 omitted).

Before we address the merits of Appellant’s issue, we must determine 

whether he has preserved it for our review. As 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 trial 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 court’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).

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3 Although Appellant’s question on appeal is not identical to the issue he 

raised 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).
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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. Instead, in

the argument section of his brief, Appellant argues that the PCRA 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.”) (citations 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 thereof on appeal. Additionally, Appellant has waived the issue 

he asserts in the argument 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/20