J-S07020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

DANIELLE NICOLE PACKER

                            Appellant                         No. 1032 MDA 2015


            Appeal from the Judgment of Sentence January 23, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000360-2014


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                             FILED MAY 20, 2016

        Danielle Nicole Packer appeals from the judgment of sentence imposed

on January 23, 2015, in the Court of Common Pleas of Centre County, after

her conviction by jury on charges of murder of the third degree, aggravated

assault    and   aggravated      assault       with   a   deadly   weapon,   involuntary

manslaughter, simple assault, recklessly endangering another person, illegal

use of noxious substances, homicide by vehicle while driving under the

influence, homicide by vehicle,1 and a variety of traffic offenses.                 The

charges arose from a fatal automobile accident caused by Packer after she

“huffed” aerosol duster. Packer received an aggregate sentence of 10 – 20
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2502(c), 2702(a)(1) and (4), 2504(a), 2701(a)(1), 2705,
7303; 75 Pa.C.S. §§ 3735(a), and 3732(a), respectively.
J-S07020-16



years’ incarceration.      In this timely appeal, Packer claims the trial court

erred in: (1) denying her motion for acquittal on the murder and aggravated

assault charges, (2) improperly instructing the jury on the definition of

“knowingly” regarding third degree murder and aggravated assault with a

deadly weapon, and denying to use her request to read 18 Pa.C.S. §

302(b)(2)(ii) regarding both charges, and (3) denying her request to use a

specific   illustration    for    reasonable     doubt.   She   also   claims   the

Commonwealth committed a Brady2 violation in failing to turn over

exculpatory evidence regarding the Commonwealth’s expert testimony.

Following a thorough review of the submissions by the parties, relevant law,

and the certified record, we affirm.

        On the night of August 6, 2012, Packer and her then fiancé, Julian

Shutak, drove to the Walmart outside of State College, Pennsylvania. They

drove Packer’s mother’s Chevrolet Trailblazer.            At the Walmart, they

purchased a video game system, some games and two cans of 3M brand

aerosol dust remover.            It contains 1, 1-difluoroethane (DFE), a noxious

chemical3 that can be inhaled to obtain a brief, but dangerous, high.           See

N.T. Trial, 10/29/2014, at 338-41.             The method of inhaling the gas is

commonly called “huffing.”           Video surveillance from the Walmart shows
____________________________________________


2
    Brady v. Maryland, 373 U.S. 83 (1963).
3
 See 18 Pa.C.S. § 7303. It is mistakenly referred to throughout the record
as a “nauseous” chemical.



                                           -2-
J-S07020-16



Packer and Shutak leaving the store and entering the Trailblazer at

approximately 9:37 p.m. While in the car, and before driving away, the two

“huffed” the dust remover at least twice. After “huffing” but prior to driving,

Packer asked Shutak, “Do you trust me?” to which Shutak replied, “Am I

going to die tonight?” N.T. Trial, 10/29/2014, at 215. They then drove to

the Sheetz store, near the Walmart, located on the corner of Shiloh Road

and Benner Pike (Route 150).           Shutak purchased cigarettes at the Sheetz

store. With Packer driving, they left the Sheetz store, and at the stop light

at Shiloh and Benner, Packer “huffed” again. At approximately 9:42 p.m., 4

Packer, while in what Shutak described as a “zombielike state”, drove out of

her lane of traffic into the oncoming lane of traffic on Benner Pike.              The

Trailblazer narrowly missed one vehicle and then struck, head on, a Hyundai

Accent driven by Matthew Snyder. Packer did not slow down, or swerve to

avoid either vehicle. Although the Trailblazer was travelling under the speed

limit, the crash essentially demolished the Hyundai, killing Snyder.               The

force   of   the   collision   pushed    the   Hyundai   off   the   road   down   the

embankment.        At impact, the rear wheels of the Trailblazer lifted off the

ground; causing it to make a 180 degree turn, and come to rest facing the

opposite direction it had been travelling.
____________________________________________


4
  This time is taken from the accident reconstruction diagrams generated by
the Pennsylvania State Police and entered and admitted into evidence as
Commonwealth Exhibits 10, 11, and 12.




                                           -3-
J-S07020-16



        Packer called 9-1-1 to report the accident and during the conversation

with the dispatcher asked, three times, if she would be going to prison. 5 At

the accident scene, Packer spoke with both police and paramedics.            She

expressed concern that she would be arrested and explained to the police

that she was changing the radio station at the time of the accident and may

have blacked out just prior to the collision.       She also told the police that

prior to leaving the Walmart, she had used the aerosol duster to clean the

air vents in the Trailblazer.       Due to injuries she suffered in the accident,

Packer was taken to the hospital. The police obtained a warrant for a blood

draw and blood was taken from Packer approximately three hours post-

accident.     Packer was subsequently determined to have had a blood

saturation of .28 mcg/mL of DFE.

        Wendy Adams, forensic toxicologist, testified that .28 mcg/mL of DFE

is at the lowest range of detectible amounts. However, Adams also testified

that DFE is rapidly excreted from the body during exhalation and that it has

an approximately 23 minute half-life. Accordingly, the three hours between

the accident and the blood draw allowed for approximately seven half-lives,

meaning blood concentration at the time of the accident was several times

higher. Adams further testified DFE is a central nervous system depressant,

that produces a quick high and can produce such effects as confusion,


____________________________________________


5
    Commonwealth Exhibit 66, 67, audio recording of 9-1-1 calls.



                                           -4-
J-S07020-16



disorientation, loss of consciousness, seizures, impaired memory, ataxia,6

slurred speech, convulsions, and/or sudden death. N.T. Trial, 10/29/2014,

at 338.

       Shutak testified he had introduced Packer to “huffing” and they had

“huffed” on several prior occasions.           Further, Shutak claimed Packer was

familiar with the debilitating effects of “huffing” and testified Packer had

come close to passing out and had hallucinated on prior occasions of

“huffing.” Id. at 223, 229. When Packer gave a statement to the police,

she admitted to having “huffed” on prior occasions and that she had blacked

out from “huffing.” Id. at 299.

       Packer’s first argument is that the trial court erred in failing to grant

her motion for judgment of acquittal on the charges of third degree murder

and aggravated assault because the Commonwealth failed to prove she

acted with actual malice.

       Our standard of review for the denial of a motion for judgment of

acquittal is as follows:

       A motion for judgment of acquittal challenges the sufficiency of
       the evidence to sustain a conviction on a particular charge, and
       is granted only in cases in which the Commonwealth has failed
       to carry its burden regarding that charge.




____________________________________________


6
 Pursuant to the American Heritage Medical Dictionary, ataxia is the lack of
ability to coordinate muscle movement.



                                           -5-
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Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) (citation

omitted).

      Accordingly, the claim is essentially one of insufficient evidence.   In

that regard, we are reminded:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be established by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of a crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing on the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Quel, 27 A.3d 1033, 1037-38 (Pa. Super. 2011).

      As noted above, Packer argues the Commonwealth did not prove

beyond a reasonable doubt that she possessed the requisite malice needed

to convict her of third-degree murder and aggravated assault. Rather, she

maintains, the Commonwealth demonstrated her actions were merely

reckless.   See Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998)

(impaired driver, speeding, causing fatality was reckless, reprehensible, but

not malicious.)

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J-S07020-16



      Although most traffic accidents, even with an impaired driver, will not

provide evidence of malice sufficient to support either third-degree murder

or aggravated assault, See Commonwealth v. Kling, 731 A.2d 145 (Pa.

Super. 1999) (with heightened mens rea, motor vehicle crashes seldom give

rise to proof of malice), the facts attendant to this accident rise to the level

of malice.

      Malice exists where there is a “wickedness of disposition,
      hardness of heart, cruelty, recklessness of consequences, and a
      mind regardless of social duty, although a particular person may
      not be intended to be injured.” Commonwealth v. Pigg, 391
      Pa.Super. 418, 571 A.2d 438, 441 (1990), appeal denied, 525
      Pa. 644, 581 A.2d 571 (1990) (quoting Commonwealth v.
      Drum, 58 Pa. 9, 15 (1868)). Where malice is based on a
      reckless disregard of consequences, it is not sufficient to show
      mere recklessness; rather, it must be shown the defendant
      consciously disregarded an unjustified and extremely high risk
      that his actions might cause death or serious bodily injury. See
      Commonwealth v. Scales, 437 Pa.Super. 14, 648 A.2d 1205,
      1207 (1994), appeal denied, 540 Pa. 640, 6590 A.2d 559 (1995)
      (regarding third degree murder). A defendant must display a
      conscious disregard for almost certain death or injury such that
      it is tantamount to an actual desire to injure or kill; at the very
      least, the conduct must be such that one could reasonably
      anticipate death or serious bodily injury would likely and logically
      result. See [Commonwealth v.] O’Hanlon, supra, 653 A.2d
      [616] at 618 (regarding aggravated assault).

Commonwealth v. Kling, 731 A.2d at 147-48.

      Here, the evidence showed that Packer was driving a Chevrolet

Trailblazer while under the influence of a noxious gas. She was described by

her fiancé as being in a “zombielike” state immediately prior to the impact.

Because of her “zombielike” state, she took no evasive action prior to



                                     -7-
J-S07020-16


impact, rather she drove directly into Matthew Snyder after narrowly missing

the car in front of him.

      While driving impaired and causing a fatal accident alone may

demonstrate only a reprehensible recklessness, here, Packer’s own words

supply the proof needed to establish malice.     Immediately after “huffing”

and prior to driving, she asked Shutak if he trusted her.     This shows an

awareness of her impaired condition and the harm she might cause.       This

awareness was acknowledged by Shutak, who had been with her on prior

occasions when they “huffed”, and was concerned enough to ask if he was

about to die. Nonetheless, she did not wait for the effects to pass before

driving.   Indeed, while operating the vehicle, not more than minutes after

“huffing” at the Walmart, she “huffed” again. Packer’s debilitated state was

confirmed by Shutak who testified she was “zombielike”, showing no

awareness she was driving or was in immediate peril. She drove, without

slowing or taking any evasive action directly into Snyder’s vehicle. Then, in

confessing to the police, she admitted that she had blacked out after prior

occasions of “huffing.” This statement again confirmed Packer’s knowledge

of the effects on her that “huffing” produced.

      We believe there is a qualitative difference between knowingly driving

while impaired and knowingly driving when one is aware of a strong

likelihood of becoming unconscious. While impairment denotes a diminished

capacity for proper functioning, unconsciousness renders a person incapable


                                     -8-
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of functioning, thereby ensuring a person has no opportunity to avoid a

collision, and virtually guaranteeing some manner of accident.

      Accordingly, when Packer drove her vehicle immediately after “huffing”

at least three times, knowing the likelihood that she could black out and

become unconscious, she “disregarded an unjustified and extremely high

risk” that her actions “might cause death or serious bodily injury.”     Kling,

supra. Therefore, the evidence presented to the jury was sufficient to prove

she displayed the malice needed to support the conviction of third degree

murder.

      Similarly, those same actions displayed a “conscious disregard for

almost certain death or serious bodily injury” needed to demonstrate the

malice required to support her conviction of aggravated assault.            Id.

Therefore, Packer’s sufficiency challenge fails.

      Packer next claims that the trial court erred in instructing the jury, in

response to a question from the jury, with different culpability definitions of

“knowingly” as that word is applied to third degree murder and aggravated

assault. Packer argues that in its response to the question, the trial court

should have read 18 Pa.C.S. § 302(b)(2) in its entirety for both crimes.

Section 302(b)(2) states:

      (2) A person acts knowingly with respect to a material element
      of an offense when:

          (i) if the element involves the nature of his conduct or the
          attendant circumstances, he is aware that his conduct is of
          that nature or that such circumstances exist; and

                                      -9-
J-S07020-16



          (ii) if the element involves a result of his conduct, he is
          aware that it is practically certain that his conduct will
          cause such a result.

18 Pa.C.S. § 302(b)(2)(i)-(ii).

       This question regarding the definition of “knowingly” arose when,

during deliberations, the jury sent a question to the court, asking:

       (1) Count 2- “Knowingly” or “Recklessly”

           Count 3 – Practically certain[7]

       Please define “practically certain” - page 3[8] - & confirm or
       explain why the “or recklessly” – page 2 – is included in Count
       #2 but not Count #3.

       (2) Is the term “knowingly” – page 1 – as used in Count 1 [third
       degree murder] the same as “knowingly” as used in Count 3
       [aggravated assault with a deadly weapon] where it is defined
       with “practically certain that her conduct will cause such a result”

       If so, why is that definition not included

Court’s Exhibit 1, 10/29/2014. Question (2) is the only pertinent question to

this appeal.    To understand this question, it must be noted that the trial

court originally gave a verbatim third degree murder charge as found at



____________________________________________


7
 The note had an arrow pointing down from the word “knowingly” to the
words “practically certain.”
8
 The references to page numbers in the jurors’ note refer to pages in the 15
page packet of information given to the jurors before deliberating that
contains relevant portions of the law regarding the charges Packer faced.
See Court’s Exhibit 2, 10/29/2014.



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Pa.S.S.J.I. 15.2502(c) (Crim).        A printed copy of this charge was given to

the jury to refer to during deliberations.9

        In relevant part, the trial judge responded to the jury’s question as

follows:

              And then you ask about the word knowingly as used in
        Count 1, which is the murder three charge. Is it the same as the
        knowingly used in Count 3? No. It is not and I am going to first
        read to you out of the Crimes Code in a section titled general
        requirements of culpability.[10]

              With respect to Count 1, a person acts knowingly with
        respect to a material element of the offense when if the element
        involves the nature of her conduct – it’s the nature of the
        conduct – or the attendant circumstances – so that it’s either the
        nature or the circumstance based – she is aware that her
        conduct is of that nature or that such circumstances exist.

              So essentially it’s an awareness of the risk that she is
        creating, allegedly creating, and disregarding, okay? So with
____________________________________________


9
  The printed charge, that was submitted to the jury without objection,
stated, in relevant part:

        For murder of the third degree, a killing is with malice if the
        perpetrator’s actions show her wanton and willful disregard of an
        unjustified and extremely high risk that her conduct would result
        in death or serious bodily injury to another. In this form of
        malice, the Commonwealth need not prove that the perpetrator
        specifically intended to kill another. The Commonwealth must
        prove, however, that the perpetrator took action while
        consciously, that is, knowingly, disregarding the most serious
        risk she was creating, and that, by her disregard of that risk, the
        perpetrator demonstrated her extreme indifference to the value
        of human life.

Court’s Exhibit 2, 10/29/2014, at 1 (emphasis added).
10
     This refers to 18 Pa.C.S. § 302.



                                          - 11 -
J-S07020-16


     respect to that charge is an awareness. That’s the key. An
     awareness of the risk that is being created and that is being
     disregarded.

          Okay? I see you shaking heads. I feel like we are
     connecting here. That is good. Okay. Now interestingly –

           [Defense Counsel:] Your Honor, I would ask that the Court
     continue with that definition with the –

           The Court: I will.

          [Commonwealth:] I object to that.         That is not the
     knowingness that is required under the law.

           The Court: Well yeah. I understand that. I will use that
     but I am going to use that to define the deadly weapon charge,
     okay?

           Now interestingly that is the same definition for knowing,
     the one in murder three, as it is with the charge of aggravated
     assault causing serious bodily injury.      It’s an awareness.
     Awareness of the risk that is being created and being
     disregarded.

           Now for aggravated assault with a deadly weapon a person
     acts knowingly with respect to a material element of the offense
     when if the element involves a result of her conduct. She is
     aware that it is practically certain that her conduct will cause
     that result.

           So with a deadly weapon charge it’s result based. The
     other charge is awareness of the condition and disregarding it.
     With respect to deadly weapon it’s result focused. Looks like you
     understand.

           Okay. Get back to work.

N.T. Trial, 10/29/2014 at 435-37.




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     Packer’s counsel objected, claiming that portion of the charge relating

to results, 18 Pa.C.S. § 302(b)(2)(ii), was appropriate for both counts.

However, Packer’s request was properly denied by the trial court.

     For third-degree murder, the word “knowingly” clearly applies to the

nature of conduct. Specifically, as noted above, the charge states:

     The Commonwealth must prove, however, that the perpetrator
     took action while consciously, that is, knowingly, disregarding
     the most serious risk she was creating, and that, by her
     disregard of that risk, the perpetrator demonstrated her extreme
     indifference to the value of human life.

Court’s Exhibit 2, supra.    Therefore, only Section 302(b)(2)(i) applies.

Accordingly, the trial court provided the correct answer to the specific

question posed by the jurors regarding the use of the word “knowingly.”

     In the final claim of trial court error, Packer argues the trial court

improperly granted the Commonwealth’s motion in limine, precluding the

use of a specific illustration of reasonable doubt during closing argument.

See Commonwealth Motions In Limine, 10/22/2014, ¶¶ 18-22.

     Packer sought to use an illustration of an ice skater questioning, due to

weather conditions, the safety of ice on a pond before venturing onto that

ice. In seeking to preclude the use of that illustration, the Commonwealth

argued:

     There may be people on a jury who have who have an irrational
     fear of either “drowning in water,” “being buried alive” as well as
     fear of being cold, uncomfortable in water and perhaps freezing
     to death on a cold day. Any one of these fears is encompassed
     by defense counsel’s illustration. Furthermore, walking onto ice
     that covers a pond may seem for many people, a trivial benefit.

                                   - 13 -
J-S07020-16


       Wherefore, The Commonwealth respectfully requests this
       Honorable Court to use Pa.S.S.J.I. § 7.01 and prevent Counsel
       for the Defendant from using an illustration that plays upon fear.

       Commonwealth’s Motion In Limine, 10/22/2014, at ¶ 22.


       The    trial   court   granted     the   Commonwealth’s   request   without

explanation.11 However, other than claiming it was an abuse of discretion to

limit Packer’s explanation of reasonable doubt, there is no argument as to

the prejudice she might have suffered by this claimed error. Although Packer

can demonstrate no prejudice in this ruling, we are still concerned because

(1) there appears to be nothing invalid in defense counsel’s proposed

illustration and (2) the Commonwealth’s argument was based on nothing

more than speculation and the bald assertion that Packer’s counsel was

somehow playing on fears that might not even exist. Accordingly, while we

believe the trial court erred in precluding defense counsels use of his

preferred illustration, because Packer can demonstrate no prejudice the

error was harmless. Accordingly, Packer is not entitled to relief.

        In her final argument, Packer claims the Commonwealth committed a

Brady violation, withholding exculpatory evidence regarding an expert

evaluation of Packer’s DFE blood levels.
____________________________________________


11
  The trial court both read the standard jury instruction found at Pa.S.S.J.I.
§ 7.01, and precluded Packer from using counsel’s own example. There is
no concurrent claim that the trial court failed to properly instruct the jury on
the concept of reasonable doubt.




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     To establish a Brady violation, appellant must demonstrate: (1)
     the prosecution concealed evidence; (2) the evidence was either
     exculpatory or impeachment evidence favorable to him; and (3)
     he was prejudiced. [Commonwealth v.] Chmiel, [30 A.3d
     1111] at 1130 [(Pa. 2011)] (quoting Commonwealth v.
     Paddy, 609 Pa. 272, 15 A.3d 431, 450 (2011)). To establish
     prejudice, appellant must demonstrate a “reasonable probability
     that, had the evidence been disclosed to the defense, the result
     of the proceeding would have been different.” Commonwealth
     v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001).
     “Impeachment evidence[,] which goes to the credibility of a
     primary witness against the accused[,] is critical evidence and it
     is material to the case whether that evidence is merely a
     promise or an understanding between the prosecution and the
     witness.” Chmiel, at 1131 (quoting Commonwealth v. Strong,
     563 Pa. 455, 761 A.2d 1167, 1175 (2000)).

Commonwealth v. Treiber, 121 A.3d 435, 460-61 (Pa. 2015).

     As noted, Wendy Adams, a forensic toxicologist testified on behalf of

the Commonwealth. She explained the effects of DFE, the speed at which it

produces effects and at which it is excreted from the body. She explained

the half-life of the substance. She ultimately opined, based upon the timing

of when Packer “huffed” compared to the accident time and the dissipation

rate, DFE was a substantial factor in causing the collision. However, a prior

assistant district attorney submitted a limited number of facts to an

anatomical/forensic pathologist, Dr. Harry Kamerow.      At the hearing on

Packer’s post-sentence motion, Dr. Kamerow testified he was supplied only

with the .28 mcg/mL figure but not with the relevant clinical history. Based

upon the blood levels alone, Dr. Kamerow declined to give a formal opinion

and declined to become involved in the case.




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J-S07020-16


     Packer claims the Commonwealth withheld the information that Dr.

Kamerow believed DFE had no connection to the happening of the accident.

To disprove this allegation, we quote relevant testimony from Dr. Kamerow

on cross-examination by the Commonwealth:

     Dr. Kamerow: I did not even know there was a passenger. The
     same paragraph [of Wendy Adams’ expert report] that discusses
     this states there’s a three-hour interval. The half-life is 23
     minutes. You know, just do the multiples, right? I mean there
     are multiple, multiple half-lives. She said seven half-lives have
     passed, explaining the low concentration. I mean, the answer to
     your question is very low, so you need to have a really good
     clinical history, and I didn’t have it.

     Commonwealth: So for the purposes of what the Court needs to
     know today, Dr. Kamerow, is the fact that you had very little
     information to decide whether to do a report for us in any way
     indicative that you signaled to the District Attorney’s Office that
     you didn’t have confidence in our theory or that you felt that we
     were going in the wrong direction?

     A: I can answer that question eloquently. As I said, I do not
     remember all the details of the conversation [with the prior
     assistant district attorney], but I remember specifically saying to
     her, “Generically, I think you’re correct. I’m not comfortable
     with this case. If you can come up more information, maybe I’ll
     be comfortable, but at this point I’m not comfortable.” I would
     like to express that differently.

     Q: Okay.

     A: You can cut me off if you like.

     Q: Go ahead.

     A: Apparently, the defense attorney in this case gave an
     interview to a newspaper, and I was given an alarming
     communication from my partners, because obviously they were
     concerned that something was in error or errant in my report.
     So in responding to them, I guess I can tell you what I
     remember about this case.

                                   - 16 -
J-S07020-16



       About one to two weeks ago, I received an unsolicited phone call
       from the Public Defender’s Office asking if I had reviewed a
       huffing case from years ago. I said that I had a number of cases
       involving huffing in the past few years. This is a letter to my
       partners.

       Q: Okay.

       A: I asked if this was the case with the woefully unimpressive
       level, and the Assistant Public Defender said that it was – it was
       the case. I used the expression “woefully unimpressive” to
       simply jog my memory as the particular case in question. The
       next time I receive a call from Deborah Lux, I will ask Sally,
       Donna or Dana to simply gag me. Those are my secretaries.

       Q: Okay.

       A: I explained that I think the reviewed – I think that I reviewed
       the case and decided not to write a consult or bill for the review.
       In addition, I told the Public Defender that I would not discuss
       the case at all with her unless she contacted the District
       Attorney’s Office and the District Attorney or one of her
       assistants are allowed to listen to any discussions. I repeated
       my statement that I had no comments concerning the case at
       this juncture. I believe the Public Defender implied in her appeal
       for a new trial that I opined that the level did not justify the
       verdict.

       I said nothing of the sort, and this implication was a bold-faced
       lie.   Furthermore, the Public Defender quoted me in the
       newspapers totally out of context. The quote suggests I believe
       the volatile[12] did not cause the accident. In fact, I generically
       agreed with the Assistant District Attorney in terms of huffing
       causing the fatal accident on review a few years ago, but the
       nitty-gritty details of the toxicokinetics made me nervous about
       the case. I politely declined the offer to consult, and I suggested
       that she might consult a different pathologist or a toxicologist. I
____________________________________________


12
    In chemistry, a volatile is a substance “capable of being readily
vaporized.” American Heritage Medical Dictionary, 2007, Houghton Mifflin.
In this matter, the volatile was DFE.



                                          - 17 -
J-S07020-16


     neither wrote an opinion nor billed for the two hours I spent in
     café reviewing kinetic graphs.

     I suppose the only resolution at this juncture is that I will have
     to be called to a hearing and I will simply tell the truth. What a
     novel idea for the Public Defender, Deborah Lux, to simply tell
     the truth. Perhaps that can be a New Year’s Resolution.

     Q: So at worst you would have liked to have – you declined the
     consult, but you would have liked to see more information. It
     might have actually allowed you to be our expert?

     A: Rephrase that question.

     Q: You declined to consult, but not for any reason other than
     you like science better than clinical history? Is that a fair
     characterization?

     A: No. I did internal medicine. I worked as an ER doc for years.
     I have no problem aggregating information from a clinical history
     and making an assessment. What I was taught when I did my
     tox rotation and clinical chemistry in general was you never
     interpret laboratory values in isolation. You will go down a
     squirrely hole treating your patients. You will get in trouble. So
     everything is integrated into the clinical history, everything.

     Q: Okay.

     A: And so the answer is the clinical history I was supplied was
     not sufficient for me to be comfortable writing a statement that
     1, 1-difluoroethane caused this patient to be affected
     significantly and caused the accident at hand, and I left the
     conversation with the Assistant District Attorney that, if she can
     get back to me with a more persuasive clinical history, you know
     – I did not even know the three-hour transit time, the three-
     hour delay, and that was a critical factor, understand. What I
     had was a level and a few facts. And, in my opinion, anybody
     writing that consult with such few facts and not knowing that
     three-hour delay time, in my opinion, shouldn’t be writing a
     consult.

     Q: And from the report that we actually used, you can see there
     was certainly tons more clinical facts in this case that supported
     the opinion?

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      A: Yeah. If I had the affidavit, the depositions, the clinical
      history, the police report, the draw time, the accident time,
      yeah, I think that the clinical history of that review is perfectly
      adequate, and I would have written it and been happily working
      as an expert witness and being paid for my time. But, you
      know, we all have to – we all have to write that sentence at the
      end of those reports, and you have to get on the witness stand
      and believe what you’re saying, and in this case I was
      uncomfortable and declined the case.

N.T. Post-Sentence Motion Hearing, 4/20/2015, at 21-26.

      It is patently clear from reading the notes of testimony from the

hearing on Packer’s post-sentence motion, that Dr. Kamerow would not have

provided any exculpatory or impeachment evidence.            Accordingly, the

Commonwealth did not commit a Brady violation and Packer is not entitled

to relief on this issue.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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