J-S24023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARLTON JAMES SOUTER, JR.

Appellant No. 1109 WDA 2016

Appeal from the Judgment of Sentence June 27, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0004878-2016

BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED JULY 10, 2017

Appellant, Carlton James Souter, Jr., appeals from the June 27, 2016 

judgment of sentence entered in the Court of Common Pleas of Allegheny 

County (“trial court”) sentencing him to a time served sentence following a 

stipulated non-jury trial. Upon review, we vacate and remand for further 

proceedings.

The facts and procedural history of the matter are undisputed.1 

Briefly, on December 4, 2009, Pennsylvania State Trooper Jeffrey Brautigam 

was conducting surveillance of a hotel room. During this surveillance, he 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 All facts come from the trial court’s October 31, 2016 opinion. See Trial 

Court Opinion, 10/31/16, at 1-6.
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observed Appellant, carrying a locked duffel bag, and walking out of the 

room. Trooper Brautigam approached Appellant, identified himself, and 

Appellant provided Trooper Brautigam with an expired California driver’s 

license. Appellant admitted that he had marijuana inside the duffel bag and 

opened the bag for Trooper Brautigam. At this point Trooper Brautigam 

attempted to arrest Appellant; however, Appellant fled. After a brief chase, 

which included Trooper Brautigam firing a Taser at Appellant, the Trooper 

stopped his pursuit and decided to file charges on a later date. 

On January 5, 2012, Trooper Brautigam filed a criminal complaint 

against Appellant and issued an arrest warrant. Eventually, Appellant was 

apprehended by the Chino, California Police Department on February 27, 

2016. On June 1, 2016, Appellant filed a motion to dismiss pursuant to 

Pa.R.Crim.P. 600. After a hearing on June 20, 2016, and June 27, 2016, the 

trial court denied Appellant’s Rule 600 motion on the grounds that 

Appellant’s flight from arrest rendered him unavailable for trial and therefore 

the Commonwealth was not required to exercise due diligence to bring him 

to trial. Following the hearing, the trial court held a stipulated non-jury trial 

after which Appellant was convicted and sentenced on all six counts.2

____________________________________________

2 Appellant was charged and convicted of persons not to possess, use, 

manufacture, control, sell or transfer firearms, firearms not to be carried 

without a license, escape, possession with intent to deliver, two counts of 

possession of a controlled substance, and possession of drug paraphernalia. 

18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 5121, 35 P.S. §§ 78-113(a)(16), 

and 780-113(a)(32), respectively. 
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On June 27, 2016, Appellant filed a notice of appeal. After requesting 

and receiving an extension of time, Appellant filed a Pa.R.A.P. 1925(b) 

statement on September 6, 2016. The trial court issued a Rule 1925(a) 

opinion on October 31, 2016. 

On appeal, Appellant raises one issue for our review: “Is the 

Commonwealth completely relieved of its duty to exercise due diligence by 

making reasonable efforts to apprehend a criminal defendant and bring him 

to trial within the parameters of Rule 600 simply because the defendant 

flees from the arresting officer?” Appellant’s Brief at 4. 

Our standard of review of a Rule 600 motion is well established.

In evaluating Rule [600] issues, our standard of review of a trial 

court’s decision is whether the trial court abused its discretion. 

Judicial discretion requires action in conformity with law, upon 

facts and circumstances judicially before the court, after hearing 

and due consideration. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill 

will, as shown by the evidence of the record, discretion is 

abused. 

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014) 

(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 

2007) (quoting Commonwealth v. Hunt, 858 A.2d 1234, 1238-39 (Pa. 

Super. 2004) (en banc))) (alteration in original). 

In Commonwealth v. Taylor, 489 A.2d 853 (Pa. Super. 1985), this 

Court held that the Commonwealth owed no duty to exercise due diligence 

when the appellant “committed a willful act in dereliction of a serious 
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societal duty after having been subject to process of court.” Id. at 857 

(emphasis added). In Taylor, the defendant was incarcerated in a federal 

facility while awaiting trial. Id. Taylor escaped from the federal facility and 

failed to appear on the previously set trial date. Id. “The Commonwealth is 

always obligated to exercise due diligence to bring the accused to trial after 

a warrant has been issued against him, at least until the accused is 

subjected to the process of the courts of this Commonwealth.” Id. at 858. 

Moreover, “[a]n accused, unaware that process has been issued against him, 

has no obligation to make himself available. Employing a due diligence 

criteria in such a situation provides the basis for attributing to the accused 

any delay that results in his apprehension.” Id. at 859 (quoting 

Commonwealth v. Cohen, 392 A.2d 1327, 1330 (Pa. Super. 1978)). 

In the matter sub judice, Appellant was never subjected to the process 

of the courts. While Appellant’s flight from Trooper Brautigam was 

improper, it does not remove the Commonwealth’s obligation to exercise due 

diligence to bring him to trial after he was charged. The trial court’s analysis 

pursuant to Taylor, improperly removed the Commonwealth’s obligation to 

exercise due diligence. Moreover, the trial court failed to conduct a due 

diligence analysis, thus, we are constrained to vacate the judgment of 

sentence and remand for the trial court to conduct such analysis pursuant to 

Rule 600(C) because we cannot determine whether the trial court abused its 

discretion in denying the Rule 600 motion. See Thompson, 93 A.3d at 486 

(citations omitted). 
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Judgment of sentence vacated and remanded for further proceedings. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2017