J-A15007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELLIS FATTIZZI 

Appellant

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 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 Brian T. McGuffin, of driving under the 

influence of a controlled substance (“DUI”),1recklessly 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 postsentence 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.
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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 postsentence 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, 2019,6followed 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)