ARGUED: May 10, 2017
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
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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") 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.
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. A jury trial ensued on October 29, 2014.
The evidence presented at trial, recited in the light most
favorable to the Commonwealth,  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.
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.
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 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
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.
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.
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
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
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.
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.
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 ‒ 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
Adams testified that DFE is a commonly abused substance,
known for its euphoric effect when inhaled. 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.
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.
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.
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. ...