Com. v. Fattizzi, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.-6-
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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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