J-A15007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELLIS FATTIZZI                             :
                                               :
                       Appellant               :   No. 2161 EDA 2019

            Appeal from the Judgment of Sentence of March 19, 2019
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0006167-2018


BEFORE:      LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 06, 2020

        Ellis Fattizzi appeals from the judgment of sentence, entered in the

Court of Common Pleas of Bucks County, after he was convicted, following a

non-jury trial before the Honorable Brian T. McGuffin, of driving under the

influence of a controlled substance (“DUI”),1 recklessly endangering another

person (“REAP”),2 possession of a controlled substance,3 and possession of

drug paraphernalia.4 Upon careful review, we vacate Fattizzi’s conviction for

REAP, affirm all other convictions, and remand for resentencing.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(2).

2   18 Pa.C.S.A. § 2705.

3   35 P.S. § 780-113(a)(16).

4   35 P.S. § 780-113(a)(32).
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     Judge McGuffin set forth the facts of this matter as follows:

     At approximately 9:00 p.m. on April 15, 2018, [Fattizzi] was found
     slumped over in the driver’s seat of a grey Hyundai Elantra with
     the engine running while the car was parked diagonally over two
     parking spots in the parking lot at Lakeview Terrace Apartments
     located off South Oaks Boulevard in Falls Township. [Fattizzi] was
     the only person in the vehicle. [Fattizzi] was unresponsive when
     Officer Ronald MacPherson attempted to alert [him] to police
     presence by identifying himself and knocking on the car windows
     more than twenty times. All of the car doors were locked.
     [Fattizzi’s] skin appeared pale, clammy, and kind of wet. A cell
     phone and clear Ziploc bag containing a pink wax paper bag were
     seen on [Fattizzi’s] lap, which in Officer MacPherson’s experience
     typically contains heroin.

     [Fattizzi] eventually responded to the knocking on the windows by
     revving the engine, which caused the car to shake, but not leave
     its parked position. Officer MacPherson responded by breaking
     the rear passenger[-]side window to unlock the car door for safety
     reasons. After the driver’s side door was opened, a cut straw [and
     used baggies were] discovered on the floor along the left side of
     the driver’s seat[.] A white powdery substance was inside the cut
     straw and [Fattizzi’s] left nostril. Officer MacPherson believed that
     [Fattizzi] had overdosed on heroin based on his observations.

     Officer Jason Blickley administered Narcan to [Fattizzi’s] left leg
     to revive him based on the apparent overdose. Officers Blickley
     and [Tom] Lundquist helped [Fattizzi] out of the car, during which
     time [Fattizzi] was swaying, had difficulty maintaining his balance,
     and needed assistance to be held up. [Fattizzi] was transported
     away from the scene in an ambulance. Officer MacPherson
     collected the drugs and related paraphernalia at the scene[,
     wearing] medical gloves to avoid potential contamination with
     fentanyl or carfentanil. Officer MacPherson was well aware of the
     potential risk of harm that is always present when people use
     heroin.     Based on his observations, Officer MacPherson
     determined that [Fattizzi] was under the influence “to a degree
     unacceptable to operate a motor vehicle.” [Fattizzi] received
     intranasal Narcan while in the ambulance.

     One of the EMTs who was taking care of [Fattizzi] in the
     ambulance, Bradley Woods, picked up one of [Fattizzi’s] phones
     (which was ringing at the time) while using gloves, to notify the

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        caller that [Fattizzi] was being transported to the hospital.
        [Woods] absentmindedly placed the cell phone between his
        shoulder and cheek, with his cheek coming into contact with the
        phone’s display screen.      Within minutes, [Woods] felt his
        respiration slow down and he became dizzy. [Woods] attempted
        to administer Narcan to himself in the back of the ambulance[,]
        but because he could not find the needle, he passed out until he
        regained consciousness in the hospital.         [Woods] suffered
        lingering symptoms such as tachycardia, and was required to
        follow up with a medical visit the day after the incidence[.] He
        has had no substantial follow-up since that time. Based upon
        direct testimony, extrapolation from other testimony in this case,
        and what happened to [Fattizzi] and to [Woods], [Woods] could
        have potentially suffered cardiac arrest and then death if he had
        not been administered Narcan.

                                           ...

        Three pink paper bags[,] stamped 4PE in blue [and] containing
        the white substance[,] were tested. The lab report revealed that
        the substance tested positive for fentanyl with a weight of .84g.
        No blood sample was taken from [Fattizzi] based on [his] inability
        to give consent.

Trial Court Opinion, 9/25/19, at 1-3.

        Judge McGuffin found Fattizzi guilty of the above offenses on March 13,

2019.     Sentencing was held on March 19, 2019, at which time the court

sentenced Fattizzi to 72 hours’ to 6 months’ incarceration for DUI, followed by

a consecutive period of 18 months of probation for REAP. Fattizzi filed a post-

sentence motion for judgment of acquittal on April 1, 2019,5 on which counsel

erroneously affixed the caption for Fattizzi’s other DUI matter. On April 3,

2019, Fattizzi filed a “Motion to Deem Timely the Late Filed Post-Sentence
____________________________________________


5The court and both parties state that the post-sentence motion was filed on
March 29, 2019. However, the docket indicates it was filed on April 1, 2019.
See Criminal Docket No. CP-09-CR-0006167-2018, at 6.


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Motions under the Above Captioned Nunc Pro Tunc,” which the court granted

on April 12, 2019. On June 28, 2019, the trial court denied Fattizzi’s post-

sentence motion. Fattizzi filed a motion for reconsideration of that order on

July 15, 2019, which the court never ruled upon. Fattizzi filed a timely notice

of appeal on July 29, 2019,6 followed by a court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.

       Fattizzi raises the following claim for our review:

       Where the [trial] court concluded that [Fattizzi] was guilty of
       [REAP], after he locked himself in his vehicle; ingested a
       controlled substance, which caused him to overdose; the police
       broke into his car; his family continuously called and texted him;
       and an emergency medical services paramedic ignored his training
       and experience and put [Fattizzi’s] phone against his cheek and
       answered it, was this foreseeable conduct and sufficient evidence
       to find guilt beyond a reasonable doubt? And should the [trial]
       court have disregarded the learned authority from the two leading
       toxicology associations in this country, and the Journal of the
       Emergency Medical Services, which all opined that it is impossible
       for such a person to have overdosed from skin contacting
       [Fattizzi’s] phone, in concluding the evidence was sufficient as a
       matter of law?

Brief of Appellant, at 2.


____________________________________________


6 The thirtieth day following the denial of Fattizzi’s post-sentence motion fell
on a Sunday. Thus, Fattizzi had until the following Monday to file a timely
notice of appeal. See 1 Pa.C.S.A. § 1908 (when computing 30–day appeal
period “[if] the last day of any such period shall fall on Saturday or Sunday .
. . such day shall be omitted from the computation.”). We also note that
Fattizzi erroneously stated that his appeal was from the order denying the
post-sentence motion. “In a criminal action, [an] appeal properly lies from
the judgment of sentence made final by the denial of post[-]sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc) (citation omitted). We have altered the caption
accordingly.

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      Fattizzi challenges the sufficiency of the evidence supporting his

conviction for REAP. A claim challenging the sufficiency of the evidence is a

question of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

As such, our standard of review is de novo, and our scope of review is plenary.

Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019).                In

reviewing such a challenge, we must determine 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.” Commonwealth v. Vetrini, 734 A.2d

404, 406 (Pa. Super. 1999) (citations omitted).

      In applying the above test, we may not [re-]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 resolved 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 the 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
      finder of fact[,] while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part or
      none of the evidence.

Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019).

      Fattizzi challenges his conviction for REAP.      A person commits the

offense of REAP “if he recklessly engages in conduct which places or may place

another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. §



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2705. Thus, to establish REAP, the Commonwealth must prove: (1) a mens

rea of recklessness; (2) a physical act; (3) causation; and (4) danger to

another person of death or serious bodily injury.          Commonwealth v.

Reynolds, 835 A.2d 720, 727-28 (Pa. Super. 2003).

      A person acts in a reckless manner when he

      consciously disregards a substantial and unjustifiable risk that the
      material element exists or will result from his conduct. The risk
      must be of such a nature and degree that, considering the nature
      and intent of the actor’s conduct and the circumstances known to
      him, its disregard involves a gross deviation from the standard of
      conduct that a reasonable person would observe in the actor’s
      situation.

18 Pa.C.S.A. § 302(b)(3).

      “Serious bodily injury” is “bodily injury which creates a substantial risk

of death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A.

§ 2301. To establish criminal causation, “the Commonwealth must prove that

the defendant’s conduct was so directly and substantially linked to the actual

result as to give rise to the imposition of criminal liability.” Commonwealth

v. Leaner, 202 A.3d 749, 768 (Pa. Super. 2019). Finally, the “mere apparent

ability to inflict harm is not sufficient [to support a REAP conviction]. Danger,

and   not   merely    the   apprehension    of   danger,   must   be   created.”

Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978)

(footnote omitted).

      Here, Fattizzi argues that the Commonwealth failed to satisfy any of the

four prongs necessary to establish REAP as set forth in Reynolds, supra.

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Fattizzi asserts that he did not possess the requisite mens rea of recklessness;

rather, he asserts that his actions rose no higher than negligence. He argues

that, rather than consciously disregarding a known risk, he “sought to insulate

himself from the outside world by locking his car doors, and . . . tried not to

create harm to others.” Brief of Appellant, at 22. Fattizzi further argues that

he took no affirmative action that would have placed another in danger, and

his conviction resulted from such a “convoluted set of circumstances” that it

would have been “virtually impossible” for him to foresee the resulting injury

to Paramedic Woods. Id.

       We agree with Fattizzi that, under the unique circumstances of this case,

his conviction for REAP cannot stand. Indeed, to affirm his conviction would

set a dangerous precedent whereby any individual who suffers an overdose of

opioids requiring the assistance of emergency medical personnel could risk

prosecution for REAP based solely on the presence of drugs and drug

paraphernalia in the vicinity of his or her unconscious body.

       We view the primary issue in this matter as one of foreseeability, which

is relevant to both the mens rea and causation elements of REAP. Inherent

to the concept of “recklessness” is that a person is aware of a substantial and

unjustifiable risk, yet consciously disregards it in proceeding to act.

“Recklessness      is    distinguishable   from    negligence    on   the   basis   that

recklessness requires conscious action or inaction which creates a substantial

risk   of   harm    to    others,   whereas      negligence     suggests    unconscious




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inadvertence.” Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1200

(Pa. Super. 2012).

      Similarly, with regard to the causation element of REAP, this Court has

previously characterized the issue as “a question of degrees of foreseeability.”

Commonwealth v. Baker, 429 A.2d 709, 710 (Pa. Super. 1981). “Where

the . . . result was an unnatural or obscure consequence of the defendant’s

actions, justice would prevent us from allowing the result to have an impact

upon a finding of the defendant’s guilt.” Commonwealth v. Leaner, 202

A.3d 749, 769 (Pa. Super. 2019) (addressing issue of causation in context of

second-degree murder sufficiency challenge) (citation omitted). Therefore,

the question we must answer is: “[W]as the defendant’s conduct so directly

and substantially linked to the actual result as to give rise to the imposition of

criminal liability[,] or was the actual result so remote and attenuated that it

would be unfair to hold the defendant responsible for it?” Commonwealth

v. Rementer, 598 A.2d 1300, 1304–05 (Pa. Super. 1991).

      Here, Fattizzi stopped his car in the parking lot of an apartment complex

and ingested opioids, which caused him to suffer an overdose and pass out.

As a result of those actions, it was foreseeable that Fattizzi might be observed

by passers-by, who, in turn, might alert authorities to his presence. It was

also foreseeable that he might overdose and require the assistance of

emergency medical personnel. We do not, however, believe that Fattizzi could

reasonably have foreseen the obscure chain of events that led to Paramedic

Woods’ exposure to opioids. As a trained paramedic, Woods would have been

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expected to observe proper safety precautions when assisting an overdose

victim. Indeed, Woods was well aware of the dangers attendant to accidental

exposure to opioid drugs and wore gloves to prevent “cross-contamination.”7
____________________________________________


7   Paramedic Woods testified as follows at trial:

        Q: Did you do anything, once you noticed that [Fattizzi’s phone
        was receiving numerous texts and calls]?

        A: Yes, with a gloved hand, I used my knuckle—I didn’t look for
        any specific one.

        I just held it, and I typed, call EMS. It occurred to me that
        somebody might actually care about this person, and I thought it
        would be best to let them know where he was going and what
        happened.

        Q: Is that something you would typically do with gloved hands?

        A: Gloved hands, yes.

        Q: Why gloved?

        A: I try not to touch anything with, you know, bare hands,
        especially when it comes to a potential drug user from
        cross-contamination.

N.T. Trial, 3/13/19, at 52-53 (emphasis added).


     Similarly, Officer Ronald MacPherson described his use of gloves when
removing drug and drug paraphernalia evidence from Fattizzi’s car:

        Q: What do you mean by handled safely with medical gloves?
        Why would you do that?

        A: Sometimes heroin is mixed with different drugs, such as
        [f]entanyl or [c]arfentanil. If those drugs make contact with your
        skin, your glands, or your pores, you can actually suffer an
        overdose, as an officer, just by touching the bags or the
        paraphernalia.



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N.T. Trial, 3/13/19, at 52. However, when—for the first time in his career as

a paramedic—Woods picked up his patient’s phone, he placed it against his

bare skin, contrary to his training and experience. While Woods’ efforts to

alert Fattizzi’s loved ones to his predicament were humane and admirable, we

are constrained to conclude that his injuries were so remote and attenuated

in relation to Fattizzi’s actions that it would be unfair to hold Fattizzi criminally

responsible. Rementer, supra. Accordingly, we vacate Fattizzi’s conviction

for REAP and remand the case to the trial court for resentencing.8

       Judgment of sentence vacated; conviction for REAP vacated; all other

convictions affirmed.         Case remanded for resentencing.           Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/20




____________________________________________



Id. at 29-30.

8 Because the court ordered Fattizzi’s probationary sentence for REAP to run
consecutively to his period of incarceration for DUI, the sentencing scheme is
upset and we must remand for resentencing. Commonwealth v. Thur, 906
A.2d 552, 569 (Pa. Super. 2006)

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