Com. v. Packer, D.

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,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
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*
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 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. The aerosol dust remover 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
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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.,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.
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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 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,
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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.
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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.)
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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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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
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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 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: 7/6/2016
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