Mathew Shirk’s attorney wants a new trial for his client, who was convicted of vehicular homicide and driving under the influence in May.
Brian Manchester argued Tuesday that Shirk, 31, formerly of Bellefonte, was prejudiced by the prosecution’s expert witness, Mount Nittany Medical Center pathologist Dr. Harry Kamerow. Kamerow testified to Shirk’s blood alcohol, which measured 0.196 two hours after the crash and was backtracked to estimate .226 at the time of the crash that killed Kelly Rider and injured Shirk and two other passengers.
Manchester’s objections were to other areas of Kamerow’s testimony, specifically that he testified in place of a doctor who was not in the courtroom.
“I can’t cross(-examine) a piece of paper,” he told Centre County Judge Jonathan D. Grine.
The emergency department doctor who treated Shirk when he was taken to the hospital on Dec. 20, 2011, was cited in some testimony, including the doctor’s opinions on Shirk’s intoxication.
“This statement of the doctor ... was used extensively in the (c)ommonwealth’s direct examination of Dr. Kamerow to bolster Dr. Kameros’s (sic) own opinion that defendant was impaired,” Manchester’s brief read.
The defense said this hearsay was inadmissible.
“I’d say not only error, but reversible error,” Manchester said.
District Attorney Stacy Parks Miller said the prosecution’s position was supported by the same case law Manchester was using as his grounds for appeal — that hearsay, with regard to medical records and the informed judgment of expert witnesses, had been permitted in courtrooms for 40 years.
She also pointed to defense witness Randall Tackett’s testimony being likewise built on his interpretations of some of the same data, while having “the unmitigated gall” to claim Shirk was not intoxicated at the time of the crash. Tackett is a pharmacologist at the University of Georgia.
“It’s a moot issue,” she said, calling the defense’s argument “blatantly false.”
Grine ordered the defense to submit briefs within 20 days, with the prosecution’s deadline set 15 days later.
Shirk was sentenced to up to 18 years in jail for the crash, The most serious charges were homicide by vehicle, homicide by vehicle while driving under the influence, three counts of aggravated assault by vehicle while DUI and three of accidents involving death or injury while not properly licensed. Other charges included DUI, DUI over 0.16 BAC, involuntary manslaughter, simple assault, reckless endangerment and a raft of summary traffic offenses.