J-S07020-16

2016 PA Super 143

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.*

OPINION BY OTT, J.: FILED JULY 06, 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,1and 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.
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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 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 Brady2violation 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. The aerosol dust remover contains 1, 1-

difluoroethane (DFE), a noxious chemical3that 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 

____________________________________________

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. 
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from the Walmart shows 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.,4Packer, 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.
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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 postaccident. 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.
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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.
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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.) 
J-S07020-16

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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 
J-S07020-16

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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 
J-S07020-16

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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
J-S07020-16

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(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.
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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.
J-S07020-16

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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.
J-S07020-16

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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 

proferred 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. 
J-S07020-16

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Packer claims the Commonwealth withheld the information that Dr. 

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

To reject this allegation, we need only 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.
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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.
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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 threehour 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: 7/6/2016