J-S41045-20

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

SCOTT MICHAEL KIRCHNER, II,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 422 MDA 2020

Appeal from the PCRA Order Entered February 3, 2020

in the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001970-2017

BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.* 

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 17, 2021

Scott Michael Kirchner, II appeals from the February 3, 2020 order 

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

We derive the following facts from the record. Kirchner’s charges stem 

from a home invasion resulting in the death of Joseph Blanco and injury to his 

wife, Trudy Blanco, and Trudy’s sister, Tracey Kline.

In the early morning hours of September 25, 2017, Kirchner was at the 

home of Takia Pugh, along with co-defendant Charles Holloway. Kirchner and 

the two others were using illicit drugs. After an argument ensued, Pugh 

“kicked” Kirchner and Holloway out of her house. N.T., 9/25/2018, at 226. 

Kirchner and Holloway left on foot with Holloway following Kirchner. Kirchner 

stopped at an apartment building, where he changed into black clothing while 
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Holloway waited outside. Next, Kirchner and Holloway continued walking until 

they reached the Blancos’ home. The Blancos lived in a residential, singlefamily home along with their adult son Corey Blanco, Corey’s five-year old 

son, and Kline. Corey sold prescription opioid pain pills that had been 

prescribed to him, in addition to pills prescribed to his parents that he had 

stolen from them. His initially small operation grew fairly quickly. He started 

also selling other illicit drugs, and eventually people Corey did not know 

started to show up outside the house to buy various drugs.

At about 3:50 a.m. on September 25, 2017, Kirchner kicked in the side 

door of the Blancos’ home. Joseph, Trudy, and their grandson were sleeping 

in the same bed together in a second-floor bedroom when Trudy was 

awakened by a lamp falling on her. She saw a man, later identified as 

Kirchner, holding a gun and standing at the side of her bed asking, “[W]here 

is the money? Where is the medication? Where is the medicine?” Id. at 51.

After responding that she did not have either and did not know what Kirchner

was talking about, Kirchner went around to her husband Joseph’s side of the 

bed and also demanded medication and money. After he responded the same 

way as Trudy, Kirchner began to rummage through their belongings in the 

bedroom. Kirchner next moved toward the bedroom door, turned around, and 

shot Trudy in the hip. Joseph came around the bed, standing in front of Trudy.

Kirchner shot Joseph three times in the left chest, killing him. Kirchner went 
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downstairs and Trudy immediately called 911. The Blancos’ young grandson 

was in the second-floor bedroom during this incident.

Meanwhile, Kline had been awakened in her first-floor bedroom by a 

loud noise. Using her cellular phone to view the surveillance system in the 

home, she could see a smaller, thin man dressed in black, later identified as 

Kirchner, standing in the doorway of the first floor. She immediately called 

911. Kline heard Kirchner run upstairs and a short time later, she heard 

gunfire. Shortly after, Kirchner came downstairs and entered her bedroom. 

Kline remained on the line with 911, but hid her phone under her pillow to 

conceal it from Kirchner. Upon entering Kline’s room, Kirchner put a gun to 

her head, and yelled “[W]here is the money, where is the drugs[?]” Id. at 

35. When Kline stated she did not have either, Kirchner struck Kline in the 

face with the gun, causing her to bleed. Kirchner rummaged through Kline’s 

belongings in the bedroom and then returned upstairs. Kirchner next returned 

to Kline’s bedroom, where he put the gun to her head again, saying she was 

“going to get a bullet in [her] head if [she didn’t] give [him] the drugs and the 

money.” Id. at 37. Kirchner left Kline and she heard him run upstairs again.

Sergeant Bret Fisher, who was in the area, was dispatched to the scene.

He first approached the front door, which was locked. From a first-floor

window at the front of the house, he could hear a male voice yelling inside, 

asking where the pills are kept. He then radioed for assistance and went to 

the side of the house. He observed the side door, which had been kicked in 
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and had a broken door jam. Sergeant Fisher then encountered Holloway

walking out of the side door of the house and took him into custody; Holloway

was compliant and did not have a gun in his possession. Upon searching the 

home,1 police discovered a wide-open window in the second-floor bathroom, 

which faced the rear of the home. Immediately after the incident, Kirchner

was observed on video surveillance running from an alley behind the house.

Kirchner was apprehended the next day at Pugh’s house.

Based on the foregoing, Kirchner was charged with 16 offenses: criminal 

homicide, three counts of robbery, three counts of aggravated assault, one 

count of burglary, and eight counts of criminal conspiracy.

2 During a threeday trial held on September 25-27, 2018, the Commonwealth presented, 

consistent with the foregoing factual account, the testimony of 17 witnesses

and, inter alia, video surveillance recordings, audio recordings, text messages, 

photographs, drugs, and clothing. The parties also entered into five factual 

 

1 Corey was sleeping in his third-floor bedroom that night, along with his 

fiancée and two friends. Corey’s friend awoke to a loud noise downstairs, so 

the friend woke up Corey. Corey went to the top of the stairs on the third 

floor to investigate when he heard gunshots. He also heard a male voice 

yelling. Upon hearing the shots, Corey gathered his fiancée and friends and 

had them get in a closet on the third floor. Corey remained on the third floor 

of the house until police arrived. Police removed Corey, his fiancée, and 

friends from the home.

2 18 Pa.C.S.A. §§ 2501(a); 3701(a)(1)(i), (iii), and (iv); 2702(a)(i), (iv);

3502(a)(1)(i), and 903, respectively.
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stipulations relating to laboratory reports and Joseph’s autopsy. The jury 

found Kirchner guilty of first-degree murder, three counts of robbery, three 

counts of aggravated assault, one count of burglary, and four counts of 

criminal conspiracy, but not guilty of the remaining four counts of criminal 

conspiracy. On November 21, 2018, Kirchner was sentenced to an aggregate 

term of life without parole (LWOP).

3 Kirchner did not seek post-sentence relief 

or file a direct appeal.

On March 7, 2019, Kirchner filed pro se a timely PCRA petition seeking 

to have his appellate rights restored nunc pro tunc. PCRA counsel was 

appointed and Kirchner was granted leave to file two amended petitions

averring additional claims of ineffective assistance of trial counsel. The PCRA 

court held hearings on June 11 and September 30, 2019, at which Kirchner

and his trial counsel testified. The Commonwealth presented audio recordings

from a jail visit between Kirchner and his family members that took place 

during the evening of his first day of trial and related to Kirchner’s satisfaction 

 

3 Specifically, Kirchner was sentenced to a term of life without parole for firstdegree murder, to run consecutively to a term of incarceration of 10 to 20 

years each for the robbery and aggravated assault convictions related to Kline.

Five of the counts merged for sentencing, and the remaining sentences were 

run concurrently to the term of LWOP.
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with trial counsel.4 The PCRA court denied Kirchner’s petition on February 3, 

2020. 

This timely-filed appeal followed.5 On appeal, Kirchner argues that the 

PCRA court erred in dismissing his ineffective assistance of counsel claims.

Specifically, Kirchner argues trial counsel was ineffective for failing to: (1) file 

a direct appeal; (2) call two witnesses; (3) object to a reference in the 

Commonwealth’s closing argument to Kirchner’s wearing of gloves; (4) 

provide Kirchner with copies of certain discovery prior to trial; (5) crossexamine properly Kirchner’s co-defendant Holloway; and (6) obtain an FBI

analysis of a voice heard on the 911 call and Kirchner’s cellular phone location 

data. Kirchner’s Brief at 4-6 (combined and reordered for ease of disposition).

We review Kirchner’s claims mindful of the following. 

In reviewing the propriety of the PCRA court’s denial of a petition 

for relief, we are limited to determining whether the record 

supports the court’s findings, and whether the order is otherwise 

free of legal error. This Court grants great deference to the 

findings of the PCRA court if the record contains any support for 

 

4 Neither the disk nor transcript of the audio recordings admitted at the 

September 30, 2019 hearing was transmitted to this Court as part of the 

certified record or the notes of testimony. “Our law is unequivocal that the 

responsibility rests upon the appellant to ensure that the record certified on 

appeal is complete in the sense that it contains all of the materials necessary 

for the reviewing court to perform its duty.” Commonwealth v. Preston, 

904 A.2d 1, 7 (Pa. Super. 2006). For the reasons that follow, this omission 

does not hamper our review.

5 Kirchner complied with Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P. 1925(a) 

opinion, the PCRA court referred us to its February 3, 2020 opinion denying 

Kirchner’s petition.
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those findings. We give no such deference, however, to the court’s

legal conclusions.

The law presumes counsel has rendered effective assistance. An 

evaluation of counsel’s performance is highly deferential, and the 

reasonableness of counsel’s decisions cannot be based upon the 

distorting effects of hindsight. When asserting a claim of 

ineffective assistance of counsel, [an appellant] is required to 

make the following showing: (1) that the underlying claim is of 

arguable merit; (2) counsel had no reasonable strategic basis for 

his action or inaction; and, (3) but for the errors and omissions of 

counsel, there is a reasonable probability that the outcome of the 

proceedings would have been different. The failure to satisfy any 

prong of the test for ineffectiveness will cause the claim to fail.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations and quotation marks omitted).

Failure to file direct appeal

Kirchner first argues he “was denied his constitutionally-guaranteed 

right to effective representation when trial counsel failed to file an appeal on 

[his] behalf.” Kirchner’s Brief at 9. 

Our Supreme Court has held that where “there is an

unjustified failure to file a requested direct appeal, the conduct of

counsel falls beneath the range of competence demanded of

attorneys in criminal cases” and denies the accused the assistance 

of counsel that is guaranteed by the Sixth Amendment to the 

United States Constitution and Article I, Section 9 of the 

Pennsylvania Constitution. Commonwealth v Lantzy, [] 736

A.2d 564, 572 (Pa. 1999). Such an oversight constitutes prejudice 

and per se ineffectiveness under the PCRA. Id. However, 

“[b]efore a court will find ineffectiveness of trial counsel for failing 

to file a direct appeal,[an appellant] must prove that he requested

an appeal and that counsel disregarded this request.”

Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 

2001).
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Commonwealth v. Mojica, 242 A.3d 949, 955 (Pa. Super. 2020) (emphasis 

omitted).

Instantly, Kirchner and trial counsel presented differing accounts 

regarding this claim at the PCRA hearing. Kirchner testified that he had 

requested trial counsel to file a direct appeal on his behalf, while trial counsel 

testified that he had discussed filing an appeal with Kirchner, but they together 

decided against it because counsel did not believe Kirchner had any basis upon 

which to file a direct appeal. Kirchner testified as follows.

[PCRA COUNSEL:] ... Can you please tell the Court what type 

of discussions you had, whether they were written or oral, and 

when you had those discussions with your attorney.

[KIRCHNER:] Yes. It was exactly one day before I got 

sentenced. I told him that I would like him to file a direct appeal. 

He says - - he refused to file a direct appeal because he believed 

there’s no merit to my case.

***

[PCRA COUNSEL:] Where did you have this discussion with 

[trial counsel]?

[KIRCHNER:] In the Lebanon County Correctional Facility 

visiting room on the phones.

***

[PCRA COUNSEL:] What did you specifically tell [trial 

counsel] about wanting to appeal?

[KIRCHNER:] I think that the evidence was insufficient enough 

for a conviction. I think there was a lack of, you know, evidence 

for the proceeding to take place the way it did. I wanted it to be 

appealed. He told me that I have no merit for my claims.
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[PCRA COUNSEL:] After he told you that, that he does not 

believe you have merit for your claim, did you say, okay, I don’t 

want you to appeal it anymore, or did you tell him something 

different?

[KIRCHNER:] No. I told him I still wanted to appeal it. He said, 

well, I’m not going to appeal it. Down the road you can get a - -

take an appointed counsel for a PCRA petition. So I went upstate 

and had to file a PCRA petition myself because I was already time

barred to file an appeal.

N.T., 6/11/2019, at 5-6. 

In contrast, trial counsel testified as follows.

[DISTRCT ATTORNEY (D.A.):] Prior to the sentencing of 

[Kirchner], did the two of you discuss whether an appeal would or 

would not be filed in this case?

[TRIAL COUNSEL:] Yes, generally.

[D.A.:] What was the discussion you had with [Kirchner] as it 

relates to a direct appeal?

[TRIAL COUNSEL:] My recollection is actually inconsistent 

with his. I did go out prior to his sentencing. The purpose was to 

discuss the sentencing with him, and generally what his appeal

rights were afterwards. You know, I explained to him generally 

again the time within which he would have to file those rights, and 

that while he had a right to appeal, the question was whether 

there were issues. I didn’t see any issues based on our objections 

or anything that was made during trial, you know, that 

necessitated that. 

I explained to him what the process was for a PCRA, and 

things that he may want to discuss with PCRA counsel down the 

road about that, and that after the sentencing occurred at some 

point in the future, I would send him a letter regarding our 

discussion and attempting to facilitate the process so that he could 

obtain court-appointed counsel and that I could transition and 

provide the records to that counsel.
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[D.A.:] So you would have discussed with him your belief that 

there were no direct appeal issues that you believe had merit at 

that point in time.

[TRIAL COUNSEL:] That’s correct. 

[D.A.:] During those discussions did he seem onboard with 

your analysis and what you had suggested what the best way to 

approach this?

[TRIAL COUNSEL:] Yeah. That was my recollection. I don’t 

recall him directing me to ever file anything regarding an appeal.

[D.A.:] If [Kirchner] had requested you to file an appeal, 

regardless of the issues or that you thought there was no merit, 

would you have filed one?

[TRIAL COUNSEL:] Yeah. If he directed me to file an appeal, 

yes.

[D.A.:] His testimony this morning was that he told you he 

wanted to file an appeal regardless. Do you recall hearing that?

[TRIAL COUNSEL:] Yeah. I don’t recall that being our 

conversation.

[D.A.:] If that was his wish you would have filed the appeal 

to follow that wish?

[TRIAL COUNSEL:] Correct.

[D.A.:] Have you had other cases where you represented 

individuals and you thought there was no merit for appeal, but 

they wanted an appeal regardless?

[TRIAL COUNSEL:] Yes. I have had issues where in the last 

minute individuals, who have briefly communicated with me an 

interest in filing an appeal that wasn’t previously communicated 

to me, and I filed that appeal.

[D.A.:] So even after your discussions when [Kirchner] had 

reached out to you and said he changed his mind, would you have 

filed an appeal?
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[TRIAL COUNSEL:] Yes.

[D.A.:] Did [Kirchner] communicate anything to you at 

sentencing that made you believe that he had changed his mind?

[TRIAL COUNSEL:] No.

[D.A.:] Did [Kirchner] indicate anything after sentencing that 

made you believe he had changed his mind on the appeal?

[TRIAL COUNSEL:] He never directly communicated with me 

at any point.

Id. at 35-38.

Faced with this conflicting testimony, the PCRA court credited trial 

counsel’s testimony instead of Kirchner’s testimony. See PCRA Court Opinion, 

2/3/2020, at 7 (stating the PCRA court found trial counsel’s testimony 

“internally consistent and credible”); see also id. at 6-7 (referring to trial 

counsel’s testimony as credible). Kirchner’s argument amounts to an 

unsupported assertion that we should disregard the credibility determinations

of the PCRA court. See Kirchner’s Brief at 9-10. “However, we are bound by 

the credibility determinations of the PCRA court, particularly where, as here, 

those findings are supported by the record.” Mojica, 242 A.3d at 956 (citation 

omitted). Accordingly, Kirchner is not entitled to relief on this claim because 

he has failed to “prove that he requested an appeal and that counsel

disregarded this request.” See id., quoting Touw, 781 A.2d at 1254.

Failure to call witnesses
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Kirchner next claims trial counsel was ineffective for failing to present 

the testimony of his paramour, Kiyayla Rodriguez, and an unnamed

homeowner or landlord of a property located near the crime scene. Kirchner’s 

Brief at 17-20, 23-26. With respect to Rodriguez, he maintains her testimony 

would have provided an alibi by showing “that he was home with his paramour 

and children on the evening of this incident and therefore not present at the 

scene.” Id. at 18. As to the homeowner/landlord, Kirchner claims that had 

this witness testified, “the jury would have known the truth, that [Kirchner]

did not commit this crime, and therefore, did not enter [the 

homeowner/landlord’s] property to change his clothing since he had no reason 

for doing so.” Id. at 25. While not entirely clear, it appears Kirchner is 

claiming his co-defendant Holloway lied to police when he told them Kirchner 

had gone to this unnamed witness’s property to change his clothing and 

possibly obtain a gun. N.T., 6/11/2019, at 17. Kirchner argues that had trial 

counsel called this witness, he or she would have undermined Holloway’s 

credibility. Kirchner’s Brief at 25.

Regarding an ineffectiveness claim for failure to call a witness, we have 

stated the following. 

It is axiomatic that when a PCRA petitioner claims counsel was 

ineffective for failing to call a witness, he or she must establish 

(1) the witness existed; (2) the witness was available to testify 

for the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was willing to testify 

for the defense; and (5) the absence of the testimony of the 
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witness was so prejudicial as to have denied the defendant a fair 

trial.

Commonwealth v. Goodmond, 190 A.3d 1197, 1202 (Pa. Super. 2018)

(citation and internal quotation marks omitted).

With respect to Rodriguez, the PCRA court denied Kirchner’s claim 

because he failed to prove she was available and willing to testify on his behalf.

PCRA Court Opinion, 2/3/2020, at 16-17. In denying the claim as to the 

homeowner/landlord witness, the PCRA court reasoned that Kirchner had not 

only failed to identify the name of the witness to trial counsel, but also failed 

to prove he or she existed, was available, and was willing to testify on his 

behalf. Id. at 18.

Upon review, we agree with the PCRA court that Kirchner did not meet 

his burden with respect to his ineffectiveness claims for failure to call 

witnesses.

The record confirms that while Kirchner attempted to call Rodriguez as 

a witness at the PCRA hearing, and the PCRA court continued the hearing in 

order to allow Rodriguez to testify, she failed to appear. N.T., 6/11/2019, at 

34; N.T., 9/30/2019 at 3-4, 9-10. Thus, Kirchner failed to prove her 

availability and willingness to testify on his behalf at trial. See Goodmond, 

190 A.3d at 1202. Further, trial counsel testified at the PCRA hearing that he 

had discussed with Kirchner the possibility of calling Rodriguez as an alibi

witness, but decided against it because Rodriguez’s testimony would have 
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been inconsistent with Kirchner’s video statements to police that he had been 

“out walking around that night” and text message evidence indicating Kirchner 

was not at home with Rodriguez that night. N.T., 6/11/2019, at 47, 49. Trial 

counsel explained he believed Kirchner would “lose credibility with the jury” if 

he presented Rodriguez’s testimony in contradiction to the video statement 

and text message evidence. Id. at 49-50. Trial counsel also testified that he 

and Kirchner “were on the same page” with the decision not to call Rodriguez.

Id. at 48.

With respect to the unnamed homeowner/landlord witness, the record 

shows Kirchner failed to establish any of the required elements to prove this 

claim. Kirchner never provided the identity of this purported witness to trial 

counsel or presented any evidence at the PCRA hearing as to the witness’s

existence, availability, or willingness to testify on his behalf at trial. Id. at 

29; see Goodmond, 190 A.3d at 12. Accordingly, no relief is due on

Kirchner’s failure-to-call-witnesses claims.

Failure to object to prosecutor’s closing argument

Kirchner next argues that his trial counsel was ineffective for failing to 

object to the prosecutor’s closing argument pertaining to Kirchner’s wearing 

gloves. Kirchner’s Brief at 11. According to Kirchner, at trial “there was never 

any information testified to and/or presented that provided the fact regarding 

the perpetrator, or anyone, was wearing gloves.” Id. at 12. He argues he 

was prejudiced because trial counsel’s failure to object “allowed the 
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Commonwealth to essentially prove [its] point as to why [Kirchner]’s DNA was 

not present at the scene.” Id. at 13.

Preliminary, we observe that Kirchner has failed to cite to where in the 

record the prosecutor made such a statement. Further, the only case law set 

forth in his brief references general PCRA standards and requirements to 

establish ineffective assistance of counsel. See id. at 12-13. Kirchner’s brief 

cites to his testimony at the PCRA hearing, but a review of thereof shows no 

reference to where in the record the prosecutor referenced gloves. “It is not 

this Court’s responsibility to comb through the record seeking the factual 

underpinnings of an appellant’s claim.” Commonwealth v. Samuel, 102 

A.3d 1001, 1005 (Pa. Super. 2014) (citation omitted). Because Kirchner has

failed to develop and support this allegation of ineffectiveness by any citation 

to the record, we find it waived. See id.

Even if not waived, we find no basis to upset the PCRA court’s finding 

that Kirchner was not entitled to PCRA relief on this claim.

6 Our review of the 

record reveals two instances where the prosecutor referenced Kirchner’s 

wearing of gloves in his closing argument:

[T]his is a family’s worst nightmare. At home, in their own beds, 

sleeping in the middle of the night, woken up by a man dressed in 

all black, face covered, gloves on, shoving a gun in their faces 

saying where is [sic] the drugs?

 

6 See Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010)

(“It is well-settled that this Court may affirm on any basis.”).
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***

Let’s discuss how we’ve done that and how we have proven our 

case to you. First of all, uncontradicted. We know the assailant 

was a smaller man. All right. We know he was wearing all black. 

Trudy told you he was wearing gloves.

N.T., 9/27/2018, at 13, 16 (emphasis added).

The record confirms Trudy testified the assailant, who was later 

identified as Kirchner, was wearing gloves when he entered her bedroom. 

[D.A.:] Ma’am, you said when you looked up from laying in 

bed you saw this man standing over you with a gun. Was it dark 

in your room?

[TRUDY:] It was. It was dark, but there was light from the 

streetlights outside.

[D.A.:] So whatever light was coming through the window 

was from the streetlights outside?

[TRUDY:] Yes.

[D.A.:] What were you able to observe about this person, if 

anything?

[TRUDY:] They were covered with a ski mask, sunglasses, long 

clothes and gloves.

N.T., 9/25/2018, at 55 (emphasis added). 

Upon review, Kirchner’s argument as to this claim is refuted by the 

record. Thus, even if not waived, Kirchner failed to meet his burden of 

establishing that the underlying claim had merit as there was no basis for trial 

counsel to object to the prosecutor’s statement. No relief is due.

Failure to provide discovery
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Kirchner next argues that trial counsel was ineffective for failing to 

provide Kirchner with copies of certain discovery prior to trial. Specifically, he 

claims trial counsel failed to provide him with a copy of “text messages from 

victim’s cell phone, wiretap from prison recordings, and information regarding 

Alexy Torres-Figueroa”7 prior to trial.8 Kirchner’s Brief, at 14. According to 

Kirchner, without copies of the text messages and wiretap recordings, “he was 

unable to make a decision to testify at trial to elaborate on” this evidence. Id.

at 15. As to Torres-Figueroa, Kirchner claims “he did not know anything 

about” this Commonwealth witness until jury selection. Id. Without this 

discovery, Kirchner argues he was unable to defend himself properly. Id. at 

15-16.

The PCRA court concluded, and the record confirms, that Kirchner failed 

to substantiate these claims during the PCRA evidentiary hearings. First, we 

agree with the PCRA court that Kirchner failed to demonstrate prejudice for 

his claim that trial counsel failed to provide him with text messages and 

wiretap recordings. PCRA Court Opinion, 2/3/2020, at 13-15. Kirchner claims 

 

7 Torres-Figueroa was a jailhouse informant who testified at trial that Kirchner 

admitted to Torres-Figueroa that he had committed the crime.

8 Our review of the notes of testimony from the trial shows numerous exhibits 

admitted relating to Kirchner’s and Holloway’s phones, as well as multiple 

exhibits relating to recordings at the Lebanon County Correctional Facility.

See N.T., 9/25/2018, at 5-6. Kirchner fails to identify with any specificity the 

text messages and wiretap recordings to which he refers.
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he was prejudiced because he would have testified at trial had he been 

provided with this discovery. This claim fails because at the time Kirchner 

decided not to testify, the text message and wiretap evidence had already 

been presented at trial as part of the Commonwealth’s case-in-chief. See

N.T., 6/11/2019, at 27 (testimony from Kirchner confirming he knew about 

such evidence and testimony at the time he made his decision not to testify).

Trial counsel’s alleged failure to provide him with this discovery had no bearing 

on his decision to testify. Id. at 27-28 (Kirchner’s responding affirmatively 

when asked, “That evidence [of, text messages and wiretap recordings] had 

nothing to do with whether or not you decided to testify or not testify; is that 

correct?”). Thus, Kirchner has failed to prove prejudice.

Next, with respect to trial counsel’s not providing Kirchner with 

information about Commonwealth witness Torres-Figueroa, the record 

supports the PCRA court’s finding that Kirchner failed to show trial counsel’s 

action lacked a reasonable basis. PCRA Court Opinion, 2/3/2020, at 15. Trial 

counsel explained that this witness had not come forward until about two 

weeks before trial and counsel had discussed the witness’s testimony with 

Kirchner in-person at the jail on the Saturday before trial. N.T., 6/11/2019, 

at 44-45. Trial counsel also recalled discussing with Kirchner on the day of 

jury selection a note written by this witness, which contained his “wish list” in 

exchange for his trial testimony; the note had been found by an investigator 

in the witness’s jail cell. Id. at 45. Trial counsel described his strategy was 
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to cross-examine Torres-Figueroa at trial about the note in an attempt to show 

potential bias, which trial counsel in fact did. Id.; N.T., 9/26/2018, at 282, 

287-88. The PCRA court found trial counsel’s testimony credible. PCRA Court 

Opinion, 2/3/2020, at 15. Having determined counsel’s actions were 

reasonable, the PCRA court concluded Kirchner’s claim of ineffective 

assistance of counsel on this basis did not entitle him to relief. Id. We are 

bound by the PCRA court’s credibility determinations, Mojica, 242 A.3d at

956, and based on our review, we conclude the PCRA court’s conclusions are 

supported by the record.

Failure to cross-examine properly co-defendant

Kirchner next claims trial counsel was ineffective for failing to question

co-defendant Holloway about gunshot residue on his hands. Kirchner’s Brief 

at 20-23. According to Kirchner, “if the jury would have heard that line of 

questioning,” Kirchner would not have been found guilty. Id. at 21. 

“The examination and cross-examination of witnesses is a matter in the 

first instance clearly within the province of trial counsel.” Commonwealth

v. Fulton, 465 A.2d 650, 655 (Pa. Super. 1983). “Counsel cannot be held 

ineffective because he chose one reasonable course and not all possible lines 

of questioning.” Commonwealth v. Ly, 599 A.2d 613, 618 (Pa. 1991).

The PCRA court determined trial counsel’s strategy to not question 

Holloway about gunshot residue had a reasonable basis, pointing to lab report 

evidence admitted at trial which showed that Holloway did not have gunshot 
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residue on his hands. PCRA Court Opinion, 2/3/2020, at 17. The PCRA court 

found trial counsel “reasonably believed that there was no basis for believing 

that [] Holloway had residue on his hands and he and [Kirchner] had discussed 

this prior to trial. [Trial counsel] credibly testified that his trial strategy was 

to highlight the lack of evidence” against Kirchner. Id.

A review of the record confirms that the parties stipulated to the report 

prepared by the Pennsylvania State Police Crime Laboratory, which analyzed 

samples from Holloway’s hands. N.T., 9/25/2018, at 234-35, Ex. 32, 33.9 The 

parties stipulated that “the results indicate that there was no gunshot residue 

present on the hands of [] Holloway....” Id. at 235. Further, trial counsel 

testified at the PCRA hearing as follows: “[T]here was the report that was 

being introduced that, you know, was able to address that. I didn’t see the 

point in allowing [Holloway] to provide an explanation or some open-ended 

line of questioning that we have zero control over where the stipulation was 

completely controlled and we were able to utilize that in a manner in which 

we want.” N.T., 6/11/2019, at 66. We are bound by the PCRA court’s 

credibility determinations, Mojica, 242 A.3d at 956, and find the PCRA court’s 

conclusion supported by the record. No relief is due.

 

9 The lab report is not contained in the certified record on appeal. As noted 

supra, it was Kirchner’s responsibility to ensure the certified record is 

complete. Preston, 904 A.2d at 7. However, because the stipulation was 

read into the record, this omission does not hamper our review.
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Kirchner also claims trial counsel was ineffective for failing to question 

Holloway about an alleged inconsistent statement. Kirchner’s Brief at 26-27. 

Specifically, he claims trial counsel should have questioned Holloway “as to 

why he told the police that there was a lady in the front room who could state 

that he wasn’t there if his claim was that he wasn’t ever present and therefore 

[Holloway] wouldn’t know if someone was in the front room or not.” Id.

According to Kirchner, he was prejudiced because “if trial counsel would have 

properly cross-examined [Holloway] so [as] to bring to light that he was 

indeed the one present in the home at the time of the crime[,]” the outcome 

of his case would have been different. Id. at 28.

Our review of the record shows that Holloway admitted at trial to being 

inside the Blancos’ home at the time of the incident. Holloway testified that 

after Kirchner had already entered, Holloway “stepped into the house” through 

the “side door of the residence.” N.T., 9/25/2018, at 165. Once inside, 

Holloway said he “started looking around, just being nosey” in the kitchen 

when he heard Kirchner asking for the location of drugs. Id. at 165-66. 

Holloway testified that he next heard gunshots and “left out of the kitchen,” 

but when it “got quiet,” he went back inside through the side door again. Id.

at 166. Because Holloway admitted on direct examination to being inside the 

home, there is no merit to Kirchner’s claim that the outcome of his case would 

have been different had trial counsel elicited the same testimony on crossexamination, i.e., that Holloway was inside the home.
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Further, the record reflects that on cross-examination, trial counsel 

successfully impeached Holloway by eliciting testimony in which he conceded 

that he had made several statements to police that contradicted his direct 

examination testimony. N.T., 9/25/2018, at 182-86. With respect to his 

entering the house, Holloway responded affirmatively when trial counsel 

asked, “When you were initially questioned by the police, you attempted to 

tell them that you never even entered the residence. Isn’t that correct?” Id.

at 183. Moreover, trial counsel also cross-examined Holloway about his 

cooperation with police and Holloway’s admitted hope he would receive a 

“better plea deal” in his own criminal case. Id. at 186-89. Trial counsel 

testified at the PCRA hearing that this approach was an effort to undermine 

Holloway’s credibility so he could argue during closing arguments that 

Holloway’s testimony should be discredited by the jurors. N.T., 6/11/2019, 

at 54-56. Accordingly, this claim lacks merit because trial counsel did in fact 

cross-examine Holloway about whether he had entered the house. See

Commonwealth v. Chmiel, 889 A.2d 501, 541 (Pa. 2005) (“Trial counsel 

cannot be found ineffective for failing to do something that he, in fact, did.”).

Moreover, we agree with the PCRA court that trial counsel’s actions had a 

reasonable strategic basis of impeaching Holloway. See PCRA Court Opinion, 

2/3/2020, at 19-20. No relief is due.
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Failure to investigate evidence

Kirchner’s final claim is that trial counsel was ineffective for failing “to 

retrieve a copy of the 911 call analysis as it related to [Kirchner]’s voice 

identification from recordings at the prison” and “to obtain a copy of [] 

[Kirchner]’s cell phone ping report which would prove that [Kirchner] was not 

at the scene of the crime.” Kirchner’s Brief at 30. Kirchner argues “trial 

counsel had no basis for his inaction” and “should have known to look into and 

request a copy of this voice analysis based on his knowledge and 

understanding of the law.” Id. at 31. He argues he was prejudiced because 

“the jury couldn’t hear the truth, that [Kirchner] did not commit this crime.” 

Id.

With respect to the 911 call, the PCRA court provided the following 

analysis.

Kirchner testified that he wanted his counsel to obtain the 

results from the FBI analysis of the 911 call recording that 

contained the voice of the perpetrator. He testified he never 

received those results. He found out from his discovery packet 

that analysis had not taken place. [N.T., 6/11/2019, at 20.] 

Kirchner acknowledged he did not obtain any such reports in his 

preparation for PCRA proceedings. He did not know if a report 

existed or what it would have said. [Id. at 30.]

Trial counsel testified that there was no voice analysis that 

could be done by the FBI on that 911 recording. He testified that 

the lack of analysis was a helpful point in that no one could identify 

Kirchner as being on that recording. [Id. at 56.]

Here, trial counsel credibly testified that the FBI was not 

able to analyze the recording, or to identify Kirchner’s voice on it, 

which was helpful to Kirchner’s defense. Trial counsel had 
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sufficient reasonable basis in not obtaining a report from the FBI 

to identify the voices on that recording because, as the record 

indicates, the FBI did not identify Kirchner as being the person 

whose voice appeared on that recording. Trial counsel’s course of 

conduct was thus designed to effectuate Kirchner’s interests, and 

therefore, trial counsel had the reasonable basis sufficient to 

overcome the ineffectiveness challenged. See Commonwealth 

v. Miller, 431 A.2d 233, 234-[35]. Therefore, Kirchner’s 

argument is without merit because counsel had a reasonable basis 

for his actions. 

PCRA Court Opinion, 2/3/2020, at 20 (name designations altered).

With respect to the phone records, the PCRA court explained as follows.

Kirchner also testified that he wanted counsel to present his 

phone records to show that he was not anywhere near the crime 

at the time it happened. Kirchner testified that he believed it would 

help his alibi defense. [N.T., 6/11/2019, at 20-21.] Kirchner did 

not have any such records at his PCRA hearing that would show 

he was nowhere near the scene of the crime. Yet he testified he 

claims that the records would have resulted in a different verdict. 

[Id. at 30-31.] 

Trial counsel testified that the cell phone ping information is 

imprecise and would only indicate a general vicinity where the 

phone was located. Kirchner’s own statements put him in the 

general area of the homicide. [Id. at 57.] Trial counsel concluded 

that presenting such evidence could do more harm than good. 

[Id. at 58.]

***

Here, trial counsel acted with the purpose designed to 

effectuate his client’s interests by not further highlighting the 

information about Kirchner’s presence near the crime scene, 

which Kirchner had already discussed with police by admitting to 

the presence in the general area of the homicide. [Id. at 57.] Trial 

counsel credibly testified that the reason why he chose not to 

present any of the alleged phone information is because Kirchner’s 

own statements to police already put him in the vicinity of the 

homicide. Therefore, under those facts, trial counsel had sufficient 

reasonable basis for his action. 
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PCRA Court Opinion, 2/3/2020, at 20-21 (name designations altered). Based 

on our review, we determine these findings are supported by the record. As 

such, we may not disturb the PCRA court’s credibility determinations. Mojica,

242 A.3d at 956. We discern no error in the PCRA court’s conclusion that trial 

counsel acted reasonably. Accordingly, no relief is due.

Based on the foregoing, the PCRA court did not err in denying Kirchner’s

PCRA petition.

Order affirmed.

Judge Strassburger did not participate in the consideration or decision 

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2021