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

v.

ELLIS FATTIZZI

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 Br ian 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 co nviction 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).J

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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 Hyun dai 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 kin d 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 en gine, which caused the car to shake, but no t 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 ba ggies were] discovered on the floor along the left side of the drive r’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 t ime [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 [, weari ng] 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 [F attizzi’s] phones (which was ringing at the time) while using gloves, to notify theJ

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caller that [Fattizzi] was being transported to the hospital. [Woods] absentmindedly placed the cell phone betwe en his shoulder and cheek, with his cheek coming into conta ct 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 unti l 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 direc t 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 [,] stam ped 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 offense s 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

_________________ __________ ______ ____ _______ 5 The 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.J

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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 reco nsideration 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 rais es 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 re asonable 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 t o 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 f ell on a Sunday. Thus, Fattizzi had until the following Monday to file a timely notice of appeal. See 1 Pa.C.S.A. § 1908 (w hen computing 30

– day appeal period “[if] the last day of any such period shal l 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 pos t

- 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.J

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Fattizzi challenges the sufficiency of the evidence supporting his conviction for REAP. A claim challengin g the sufficiency of the evidence is a question of law. Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). As such, o ur 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 c rime beyond a reas onable 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 circu mstances 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 o f 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 reco rd 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. Commo nwealth v. Reed , 216 A.3d 1114, 1119 (Pa. Super. 2019).
Fatti zzi 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. §J

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

rea of recklessness; (2) a physical act; (3) ca usation; 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 th e 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 st andard of conduct that a reasonable pe rson 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 protract ed 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, t he “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 es tablish REAP as set forth in Reynolds , supra .J

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

r ather, he asserts that his actions rose no higher than negligence. He argues that, rather than consciously disregarding a know n 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 too k no affirmative action that would have placed another i n 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.
W e 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 ris k 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 a s one of foreseeability , which is relevant to both the mens rea and causation ele ments of REAP . Inherent to the concept of “recklessness” is th at a person is aware of a substantial and unjustifiable risk, yet consciously disregard s it in proceeding to act. “Recklessness is distinguishable from negligence on the basis that recklessnes s requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggest s unconsciousJ

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inadvertence.” Tayar v. Camelback Ski Corp., Inc. , 47 A.3d 1190, 1200 ( Pa. Super. 2012). Similarly, w ith regard to the cau sation 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 obscu re consequence of the def endant’ 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 s ufficiency challenge) (citation omitted). T herefore,
t he 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, i t was foreseeable that Fattizzi might be observed by passers

- by, who , in turn, might alert authorities to his presence. It was also foreseea ble that he might overdose and require the assistance of
emergenc y medical personnel. W e 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 para medic, Woods would have beenJ

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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 yo u do anything, once you noticed t hat [Fattizzi’s phone was receiving numerous texts and calls]? A: Yes , with a gloved hand, I used my knuckle

— I didn’ t look f or 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 t hem know where he was going and what happened. Q: Is tha t 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: Somet imes heroin is mixed with different drugs, such as [f] entanyl or [c] arfentanil. I f those drugs make contact with your skin, your glands, or your pores, you can actually suf fer an overdose, as an officer, j ust by touching the bags or the paraphernalia.J

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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 one s 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; c onviction for REAP vacated ; all other

c onvictions affirmed

. Case rem anded for resentencing. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/6/20

_________________ __________ ______ ____ _______
Id. at 29

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8 Because the court ordered Fattizzi’s probationary sentence for REAP to run consecutive ly 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)