J-A29032-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH ROBERT SCHMOCKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 527 WDA 2021

Appeal from the PCRA Order Entered April 20, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0010612-2016

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 12, 2022

Keith Robert Schmocker (Schmocker) appeals from the order entered 

by the Court of Common Pleas of Allegheny County (PCRA court). Following 

a jury trial, Schmocker was convicted of indecent assault, 18 Pa.C.S. 

§ 3126(a)(1), and acquitted of three other related offenses. He was 

sentenced to a prison term of 6 to 23 months, followed by 30 days of 

probation. This Court affirmed on direct appeal, and Schmocker timely filed 

a petition for post-conviction relief, asserting that trial counsel was ineffective 

in failing to challenge the trial court’s erroneous jury instruction on indecent 

assault. The PCRA court denied Schmocker’s petition and he now seeks 

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* Retired Senior Judge assigned to the Superior Court.
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review. Because there is merit to Schmocker’s claim, the PCRA court’s order 

must be reversed.

I.

In Schmocker’s underlying criminal case, he was accused of sexual 

offenses against Erin Huttenhower. It was alleged that in 2016, Schmocker 

went out drinking with Huttenhower, his wife, and his sister-in-law. After 

several hours of socializing at a bar, Schmocker drove the women back to his 

nearby residence, as he was the designated driver for the evening.

Huttenhower fell asleep on a chair and ottoman in the living room, and 

when she woke up later that night at about 12:45 a.m., Schmocker was next 

to her. According to Huttenhower, she was woken up by the touch of 

Schmocker’s fingers inside her vagina. She yelled at Schmocker to get away 

from her, but he instead turned her on her stomach and said quietly that there 

was a bedroom upstairs.

Huttenhower yelled at Schmocker again and pushed him away as she 

left the residence to go back to her own home. After reporting the incident to 

police, Huttenhower went to a hospital for a sexual assault examination. At 

about 4:00 a.m., police interrogated Schmocker and collected a sample of his 

D.N.A.

Schmocker admitted that he had touched Huttenhower when she was 

asleep in his home. However, he denied that the touching was sexual, 
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insisting that he was only trying to readjust Huttenhower’s body because she 

was falling out of the chair she was sleeping in.

No forensic evidence corroborated the allegations against Schmocker. 

At trial, the testimonial evidence conflicted as to Huttenhower’s level of 

inebriation and the manner in which the touching occurred. Ultimately, the 

jury was forced to render its verdict by weighing the credibility of the 

witnesses’ disparate accounts of what had transpired.

The jury acquitted Schmocker of two counts of aggravated indecent 

assault (18 Pa.C.S. §§ 3125(a)(1), 3125(a)(4)) and one count of indecent 

assault with forcible compulsion (18 Pa.C.S. § 3126(a)(2)). As to the fourth 

count which is at issue here – indecent assault without victim consent (18 

Pa.C.S. § 3126(a)(1)) – the critical factual issues for the jury to resolve were 

whether Schmocker touched the victim as she alleged and, if so, whether 

Schmocker intended to touch the victim for sexual gratification. The jury was 

instructed on the elements of the latter offense as follows:

[Schmocker] has been charged at Count 3 with Indecent Assault. 

To find [Schmocker] of this offense, you must find that the 

following three elements have been proven beyond a reasonable 

doubt:

First, that [Schmocker] indecent contact with [the victim], or 

caused [the victim] to have indecent contact with him; Second, 

that the defendant had or caused this contact without the consent 

of [the victim]; And third, that [Schmocker] knowingly or at least 

recklessly regarding [the victim’s] non-consent.

I would like to explain some of the elements and terms I used 

when I gave you the elements. What do I mean by indecent 

contact? Two things are necessary for a defendant to have 
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or to cause indecent contact with the alleged victim of an 

indecent assault: First, that the defendant must bring 

about a touching of the sexual or other intimate parts of 

the body of one of them by the other: Or two, the 

defendant must bring about this contact for the purpose of 

arousing or gratifying his own or the victim’s sexual desire.

Trial Transcript, at pp. 693-95 (emphasis added).1

Schmocker’s trial counsel did not object to the trial court’s use of the 

word “or” instead of “and” when reading the elements of “indecent contact.” 

However, it is undisputed that the correct definition of “indecent contact” 

includes an improper touching and an intent to make such contact for the 

purpose of sexual gratification. See 18 Pa.C.S. § 3126(a)(1) (indecent assault 

statute); see also 18 Pa.C.S. § 3101 (defining “indecent contact” as “[a]ny 

touching of the sexual or other intimate parts of the person for the purpose of 

arousing or gratifying sexual desire, in any person.”).

Additionally, it is worth noting that the jury had required over a full day 

of deliberations before issuing its verdict, and during that time, the jury 

specifically requested a clarification of the elements of indecent assault. After 

a verdict was entered and Schmocker was sentenced, this Court affirmed the 

judgment of sentence in Commonwealth v. Schmocker, 673 WDA 2018

(Pa. Super. December 7, 2019); see also Commonwealth v. Schmocker, 

294 WAL 2019 (Pa. January 22, 2020) (denying further review).

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1 For unknown reasons, the written instructions provided to the jury do not

appear in the certified record.
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Schmocker timely filed a PCRA petition asserting that his trial counsel 

was ineffective in failing to object to the trial court’s erroneous instruction on 

indecent assault. At an evidentiary hearing, Schmocker’s trial counsel 

admitted that he had no reasonable basis for failing to object to the incorrect 

jury instruction. See PCRA Hearing Transcript, 2/11/2021, at pp. 20-23.

Nevertheless, the PCRA court found that Schmocker failed to establish 

prejudice and denied relief on that basis. The PCRA court ruled that 

Schmocker bore the burden of proof to establish his claim, and that since there 

was no showing of exactly what the written jury instructions contained, 

Schmocker had failed to carry that burden. See Trial Court Opinion, at 10-

11.

Schmocker timely appealed, arguing that the trial court erred in denying 

his post-conviction claim because all the elements of ineffectiveness had been 

met. In response, the Commonwealth conceded in its brief that the trial court 

read an incorrect instruction on indecent assault, but proposed that 

Schmocker could not show prejudice because the jury also received accurate 

written instructions as to that charge. The Commonwealth argued 

alternatively that Schmocker could not show prejudice because he had failed 

to prove that the written instructions were inaccurate. See Appellee’s Brief, 

at 10-11.

Schmocker, in turn, filed a reply brief pointing out that the written 

instructions were trial exhibits, making it the responsibility of the clerk of court 
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to enter them into the trial court’s record. He contended that the absence of 

the written instructions necessarily precludes a presumption that the error in 

the trial court’s oral instructions was cured.

II.

We begin our analysis by remarking on the Commonwealth’s somewhat

dubious argument for affirmance. Essentially, the Commonwealth admits that 

the trial court read an erroneous instruction to the jury on indecent assault 

which would have allowed Schmocker to be convicted of the offense without 

the jury finding that both central elements of the crime had been proven 

beyond a reasonable doubt. Rather than further concede that this was 

prejudicial to Schmocker, the Commonwealth echoes the trial court in arguing

that the error was cured by written jury instructions that do not appear in the 

certified record.

Following the Commonwealth’s suggestion to its logical conclusion would 

require us to assume (a) that the jury indeed received complete written 

instructions as to all the elements of indecent assault, (b) that these written 

instructions were correct, and (c) that the jury was not confused by the 

conflicting oral and written instructions, such that it was able to discern the 
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law correctly when arriving at its verdict.2 As the Commonwealth well knows, 

these are not assumptions that an appellate court is permitted to make.

“It is black letter law in this jurisdiction that an appellate court cannot 

consider anything which is not part of the record in this case.” Bennyhoff v.

Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (citation omitted). “Any 

document which is not part of the official certified record is considered to be 

nonexistent, which deficiency may not be remedied by inclusion in the 

reproduced record.” Eichman v. McKeon, 824 A.2d 305, 316 (Pa. Super. 

2003) (citing Id.; Pa.R.A.P. 1921).

This Court is, therefore, prohibited from adopting any of the 

assumptions advanced by the Commonwealth as grounds to affirm the denial 

of post-conviction relief in this case.

3

 Schmocker cannot be blamed or 

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2 The Commonwealth’s logical leap is made all the more precarious by the trial 

court’s directive to the jury not to “put any more emphasis or any less 

emphasis on these sections [of written instructions], simply because they are 

in writing[.]” Trial Transcript, 8/2/2017, at p. 734. So even if it were 

permissible for us to assume that the jury indeed received correct written 

instructions, the jury would have still been confused or misled by the 

instructions as a whole for lack of a specific clarification about the error in the 

oral version. See Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. 

Super. 2006) (“A jury charge will be deemed erroneous only if the charge as 

a whole is inadequate, not clear or has a tendency to mislead or confuse, 

rather than clarify, a material issue.”).

3 “[T]he record on appeal, including the transcript and exhibits necessary for 

the determination of the appeal, shall be transmitted to the appellate court 

within 60 days after the filing of the notice of appeal.” Pa.R.A.P. 1931(a)(1). 

This administrative task is to be carried about by the clerk of court, and the

appellant cannot be faulted for the failure of court staff to compile the record
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punished for the administrative breakdown that resulted in the loss of the 

written jury instructions. On appeal, we must presume that those written 

instructions do not exist, focusing this Court’s inquiry on whether trial 

counsel’s failure to object to incorrect oral instructions caused Schmocker 

prejudice for the purposes of the PCRA.4

For a claim of ineffective assistance of counsel, a petitioner has the 

burden of establishing three elements: (1) there is underlying merit to the 

claim of asserted error, (2) counsel has no reasonable basis for failing to 

remedy the error, and (3) counsel’s inaction or inaction caused prejudice. See 

Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). Prejudice in 

this context is defined as having a “reasonable probability” of affecting the 

trial verdict. See Commonwealth v. Mallory, 941 A.2d 686, 693-94 (Pa. 

2008); see also Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008)

(A “reasonable probability” is a degree of likelihood “sufficient to undermine 

confidence in the outcome of the proceedings.”).

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on appeal as the appellate rules require. In this case, although the written

jury instructions were marked as a court exhibit at trial, they were inexplicably

not made part of the court file.

4

If anything material to either party is omitted from the record by error or 

accident, this Court, on proper suggestion or of its own initiative, may direct 

that the omission be corrected and a supplemental record be certified and 

transmitted if necessary. See Pa.R.A.P. 1926. However, this rule is

unavailing in this case because it appears that the written instructions 

provided to the jury in Schmocker’s trial have been irretrievably lost.
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The reasonable probability “test is not a stringent one,” as it is “less 

demanding than the preponderance standard.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Where a jury has received 

incorrect instructions due to counsel’s ineffectiveness, a court must assess

PCRA prejudice by weighing the error “against the overwhelming strength of 

the evidence.” Commonwealth v. Spotz, 84 A.3d 294, 317 (Pa. 2014). “In 

reviewing the grant or denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283-84 (Pa. 2016). The PCRA 

court’s legal conclusions are reviewed de novo. See id.

The parties in this case agree that the jury in Schmocker’s trial received 

an erroneous instruction on indecent assault, and that there was no 

reasonable basis for trial counsel to allow that error to go unremedied. The 

only dispute here is whether the erroneous instruction caused Schmocker 

prejudice – we find that it did.

As previously discussed, the jury’s verdict necessarily hinged on 

whether it found beyond a reasonable doubt that Huttenhower’s accusations 

were credible. The jury could find Schmocker guilty only if it believed 

Huttenhower’s allegations about what he did on the night of the alleged 

offenses. Because the jury acquitted Schmocker of three of the four charges, 

it is clear that at least some of Huttenhower’s allegations were discounted. By 

the same token, the jury found Schmocker guilty as to the only count for which 
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it was incorrectly instructed, doing so after more than a day of deliberations

and after asking for clarification on the elements of that count. The weight of 

the evidence was by no means overwhelming.

On these facts, there was a reasonable probability that the erroneous 

oral jury instructions could have prejudiced Schmocker. “[T]he inclusion of 

an erroneous mens rea reducing the level of culpability required to find 

[petitioner] guilty . . . was a critical mistake that ‘could have reasonably had 

an adverse impact on the outcome of the proceedings.’” Commonwealth v. 

Domek, 167 A.3d 761, 766-67 (Pa. Super. 2017) (quoting Spotz, 84 A.3d at 

317). Thus, the PCRA court’s order denying Schmocker relief must be 

reversed.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/12/2022