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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S24023-17



      Judgment of sentence vacated and remanded for further proceedings.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2017




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