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Commonwealth v. Packer

Supreme Court of Pennsylvania

August 22, 2017


          ARGUED: May 10, 2017

         Appeal from the Order of the Superior Court at No. 1032 MDA 2015 dated July 6, 2016 Affirming the Judgment of Sentence dated January 23, 2015 of the Centre County Court of Common Pleas, Criminal Division, at No. CP-14-CR-0000360-2014




         With the emergence of the use of new, powerful and immediate intoxicants, we granted allowance of appeal to reaffirm long established distinctions between ordinary recklessness and malice in the context of a death or serious bodily injury caused by driving under the influence of alcohol and/or a controlled substance. In the case before us, Matthew Snyder was killed in an automobile collision caused by Danielle Nicole Packer, who inhaled (or "huffed") difluoroethane ("DFE")[1] immediately before and while operating her vehicle. Based on Packer's history of losing consciousness after huffing DFE and her knowledge of the immediacy and intensity of the effect, we conclude that her conduct constituted the high degree of recklessness required for a finding of malice. We therefore affirm the decision of the Superior Court.

         The Commonwealth charged Packer with a litany of offenses, including, inter alia, third-degree murder, aggravated assault, aggravated assault with a deadly weapon, homicide by vehicle, homicide by vehicle while driving under the influence ("DUI"), and aggravated assault by vehicle while DUI.[2] A jury trial ensued on October 29, 2014. The evidence presented at trial, recited in the light most favorable to the Commonwealth, [3] is as follows. On the evening of August 6, 2012, Packer and her then-fiancé Julian Shutak drove to a Walmart near State College, Pennsylvania in a Chevrolet Trailblazer that Packer borrowed from her mother. They purchased a video game system, video games, two cans of Dust-Off brand compressed aerosol dust remover and some beverages. They made their purchases with a blank check that had been given to them by Packer's grandmother to purchase Christmas gifts. The two left the store at 9:33 p.m.

         Packer and Shutak returned to the Trailblazer ‒ Packer in the driver's seat and Shutak in the front passenger seat. Before driving out of the parking lot, Packer opened the newly purchased dust remover and both she and Shutak huffed, inhaling two to three times in five-to-ten second bursts each time. After huffing, Packer asked Shutak, "How much do you trust me?" to which he responded, "Am I going to die tonight?" N.T., 10/29/2014, at 210, 215. Shutak, who introduced Packer to huffing, was aware that Packer had previously lost consciousness and hallucinated while huffing. He estimated that she had huffed between ten and thirty times in the past.

         At 9:37 p.m., Packer drove from the Walmart to a nearby Sheetz, where Shutak purchased cigarettes. Packer then proceeded to drive north on Benner Pike, which had a posted speed limit of fifty-five miles per hour. While stopped at a red light at Shiloh Road, Packer and Shutak again huffed, each taking two two-second bursts. Packer proceeded to drive, but became unresponsive very shortly after this round of huffing. Shutak described her as "zombified, " driving with her eyes open and staring straight ahead, "but she wasn't really there." Id. at 225, 229. Packer's vehicle began to drift over to the southbound lane into oncoming traffic. She barely missed striking one vehicle. That vehicle honked its horn, but it evoked no response from Packer. A Hyundai Accent, driven by Snyder, was approximately ten to fifteen car lengths behind the first vehicle. Snyder braked extensively and steered away from Packer to try to avoid a collision. Despite his efforts, at 9:42 p.m., just five minutes after leaving the Walmart parking lot, Packer's vehicle struck Snyder's vehicle head on. The airbag module[4] recovered from the Trailblazer indicated that Packer did not engage the throttle or the brake in the five seconds preceding the accident and took no evasive measures to avoid Snyder's vehicle. She was traveling at a rate of forty-two miles per hour at the time of impact.

         The force of the collision sent Snyder's Accent airborne. It ultimately landed in a grassy field off the side of the roadway, facing the road. The Trailblazer spun 180 degrees and came to a rest in the southbound lane of Benner Pike. Snyder died within minutes of the crash.

         Packer remained unresponsive immediately after the collision and stated after the fact that she was unaware that an accident had occurred. Shutak was eventually able to rouse her by yelling that they had been in an accident. Packer called 9-1-1 to report the accident. During the call, Packer repeatedly asked the operator whether she was going to jail. She asked the same question to an eyewitness and to first responders who arrived at the scene.

         In separate conversations immediately following the accident, Packer told emergency medical personnel and a state trooper that the crash occurred while she was leaning down to adjust the radio. Packer also volunteered that she had used dust remover in the Walmart parking lot to clean her air vents ‒ a story concocted by Shutak to explain any duster that might be detected in Packer's system. Packer further asked an EMT if the police would be able to detect duster in her blood. None of the individuals who spoke with Packer at the scene of the collision observed any signs of intoxication.

         While speaking with police, Packer complained of pain in her chest. Thereafter, she was taken to the hospital by ambulance. Packer consented to the request by police for a blood test at the hospital. The blood draw occurred at 12:47 a.m., three hours after the accident. Subsequent testing of her blood revealed DFE at a concentration of 0.28 micrograms per milliliter.

         Packer and Shutak each provided police with two written statements, given on separate occasions. In each of their first written statements, given shortly after the accident, neither Shutak nor Packer mentioned anything about huffing that night. In his second written statement, Shutak admitted that he and Packer had huffed both prior to and while driving on the night of the accident. Packer provided her second written statement to police approximately three months later, in which she likewise admitted to huffing in the Walmart parking lot and while operating the vehicle at the red light on Benner Pike. She was aware that Dust-Off contained a bittering agent, stating that "she could taste it down the back of her throat." Id. at 298. She further admitted that she had read the label on the bottle and knew that inhaling the duster could have killed her. Id. at 299, 301.

         During this interview with police, Packer admitted that she had huffed in the past. She explained that in her prior experiences with huffing "she would black[] out." Id. As Packer explained it to police, "she would spray it [and] it would make her … pass[] out or black out." Id. at 299. She informed police that at the time of the collision she had "blacked out and was over the steering wheel." Id. at 299-300. Packer approximated that her typical high from huffing lasted between ten and fifteen minutes.

         Expert toxicologist Dr. Wendy Adams testified at trial that the level of DFE found in Packer's blood was on the low side of the detectable range, but explained that DFE has a very short half-life[5] ‒ only twenty-three minutes. According to Dr. Adams, DFE dissipates very quickly in the blood, and that the concentration of DFE in Packer's blood at the time of the collision three hours earlier would have been "several times higher." Id. at 344.

         Dr. Adams testified that DFE is a commonly abused substance, known for its euphoric effect when inhaled.[6] It is a central nervous system depressant, and its misuse in this manner can result in an individual experiencing dizziness, disorientation, confusion, poor coordination, sleepiness, memory loss, seizures, unresponsiveness, loss of consciousness, loss of muscle control, slurred speech, convulsions, or sudden death. Dr. Adams reported that DFE's effects "are potentially strongly impairing [but] are also exceptionally short lived." Id. at 341. "[P]eak effects and peak concentrations are reached within minutes following inhalation, " and "are frequently resolved by the time emergency responders arrive" at the scene of an accident where one of the participants had inhaled DFE. Id. at 340-41. It was Dr. Adams' opinion that Packer's intentional inhalation of dust remover was the "direct and substantial cause of the accident." Id. at 346.

         At the close the Commonwealth's case in chief, Packer orally moved for a judgment of acquittal on the charges of third-degree murder, aggravated assault and aggravated assault with a deadly weapon, arguing that the Commonwealth had not proven beyond a reasonable doubt that Packer acted with malice, a critical element of these crimes. The trial court denied the motion.

         The jury convicted Packer of all charges with the exception of aggravated assault with a deadly weapon. On January 23, 2015, the court sentenced Packer to an aggregate term of ten to twenty years of incarceration. Packer filed a timely post-sentence motion challenging, inter alia, the trial court's denial of her motion for judgment of acquittal, asserting that the Commonwealth did not satisfy its burden of proving that she acted with malice to permit her convictions of third-degree murder and aggravated assault. Following argument, the court denied Packer's post-sentence motion.

         Packer timely appealed to the Superior Court, challenging, in relevant part, the sufficiency of the evidence to support a finding of malice to sustain her convictions of third-degree murder and aggravated assault. In deciding this issue, the Superior Court, in an opinion authored by the Honorable Paula Ott, recognized that an impaired driver who causes the death of another does not typically act with the requisite malice to support convictions of third-degree murder and aggravated assault. Commonwealth v. Packer, 146 A.3d 1281, 1285 (Pa. Super. ...

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