Appeal from the Judgment of Sentence entered October 20, 2008 In the Court of Common Pleas of Clearfield County Criminal Division at No. CP-17-CR-0000684-2007.
The opinion of the court was delivered by: Bender, J.
BEFORE: BENDER, BOWES and CLELAND, JJ.
¶ 1 Matthew Alexander Basinger appeals the judgment of sentence imposed following his conviction of two counts of Driving Under the Influence of Alcohol (DUI) and the summary traffic offense of Vehicle Entering or Crossing Roadway. See 75 Pa.C.S. §§ 3802(a)(1), (b), 3324 (respectively). Basinger contends, inter alia, that the sentence the court imposed, which consisted of a period of probation conditioned on the defendant's completion of a flat term of incarceration, is not consistent with the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9721, et seq., and therefore is illegal. We concur in Basinger's assessment. Accordingly, we vacate the judgment of sentence and remand for re-sentencing.
¶ 2 Basinger's arrest in this case follows a traffic infraction shortly after midnight on May 19, 2007. Operating a red pickup truck, Basinger pulled out of the entrance of a National City Bank parking lot located in Dubois City, Clearfield County, directly in front of another vehicle and a Clearfield police patrol car driven by Office Dustin Roy. The driver of the other vehicle was able to avoid a collision only by slamming on his brakes and coming to an almost complete stop. Based on his observation of the incident, Officer Roy concluded that Basinger had failed to yield the right of way to oncoming traffic pursuant to 75 Pa.C.S. § 3324 and, accordingly, conducted the stop at issue here.
¶ 3 Upon approaching Basinger's vehicle, Officer Roy observed that Basinger had bloodshot eyes, smelled of alcohol and was hesitant to speak or look at him.*fn1 When the officer then confronted him "because he pulled out in front of a vehicle and almost caused an accident," Affidavit of Probable Cause at 1, Basinger responded "I know, I'm sorry," and acknowledged that he had consumed three beers at a nearby sports bar before leaving to go to the ATM at National City Bank. Officer Roy then directed Basinger out of his vehicle and administered two field sobriety tests, which Basinger failed. At Officer Roy's request, Basinger agreed to a blood draw, completed at Dubois Regional Medical Center, which revealed a blood alcohol content of 0.15%--almost twice the legal limit. Officer Roy then filed the complaint in this action based in part on the Basinger's BAC.
¶ 4 Following a preliminary hearing where all charges were held for trial, Basinger filed an omnibus pre-trial motion to suppress the evidence of his intoxication obtained as a result of the May 19 traffic stop. Following a suppression hearing and oral argument on the motion, the trial court determined that the stop was supported by reasonable suspicion of a traffic violation and therefore proper. Accordingly, the court denied the motion. Basinger waived his right to a jury and his case proceeded to a bench trial on May 21, 2008, following which the trial court found him guilty of both the DUI and Vehicle Code violations. At a subsequent sentencing hearing, the court imposed two years' probation on condition that Basinger serve ninety days in the county jail. Basinger filed a post sentence motion, which the court denied. Basinger then filed this appeal, raising the following questions for our review:
I. Whether the [trial] court erred in denying the appellant's pre-trial motion to suppress physical evidence seized by the police because the police lacked the requisite suspicion to initiate the traffic stop of Appellant's vehicle that ultimately resulted in Appellant's arrest for suspected driving under the influence of alcohol?
II. Whether the [trial] court erred in denying the appellant's post-sentence motion challenging his sentence as being illegal because pursuant to the Commonwealth of Pennsylvania's sentencing code a flat term of incarceration is not permitted to be a condition of a sentence of probation?
III. Whether the [trial] court erred in denying the appellant's post-sentence motion to reconsider and modify sentence because the sentencing judge committed an abuse of discretion by imposing as a condition of a sentence of probation a flat term of incarceration, which is contrary to the Commonwealth of Pennsylvania's sentencing code?
Brief for Appellant at 6.
¶ 5 Basinger's first question challenges the trial court's denial of his motion to suppress evidence of intoxication based upon the asserted inability of the officer to establish reasonable suspicion for the stop. Brief for Appellant at 14. Our analysis of this question begins with the presumption that "[w]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible." Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. 2006) (Opinion Announcing the Judgment of the Court) (quoting Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992)). If the trial court denies the motion, we must determine "whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error." Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super. 2000). In so doing, we may consider "only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. Maxon, 798 A.2d 761, 765 (Pa. Super. 2002). "Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts." McClease, 750 A.2d at 323-24.
¶ 6 Our Courts have recognized that "[b]ecause of the severe consequences of drunken driving in terms of roadway deaths, injuries, and property damage,... the government has a compelling interest in detecting intoxicated drivers and removing them from the roads before they cause injury." Commonwealth v. Sands, 887 A.2d 261, 271 (Pa. Super. 2005). Consistent with this recognition, the Pennsylvania Motor Vehicle Code prescribes "reasonable suspicion," rather than "probable cause" as the threshold for a lawful traffic stop:
§ 6308. Investigation by police officers
(b) Authority of police officer.--Whenever a police officer... has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b) (emphasis added).
¶ 7 "[T]o establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity." See Commonwealth v. Reppert, 814 A.2d 1196, 1203 (Pa. Super. 2002) (citing Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 677 (1999)). "The question of whether reasonable suspicion existed at the time [the officer conducted the stop] must be answered by examining the totality of the circumstances to determine whether the officer who initiated the stop had a 'particularized and objective basis' for suspecting the individual stopped." Id. (quoting In re D.M., 781 A.2d 1161, 1163 (Pa. 2001)) (emphasis in Reppert). Therefore, the fundamental inquiry of a reviewing court must be an objective one, "namely, whether 'the facts available to the officer at the moment of the [stop] warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Id. (quoting Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (2000)).
¶ 8 Although Basinger acknowledges that the reasonable suspicion test allows police officers to stop motorists based on less stringent criteria than probable cause, he argues nonetheless that Officer Roy's observations here were not sufficient to support reasonable suspicion of a traffic violation. Brief for Appellant at 15. The trial court concluded that Officer Roy did articulate ample observations to establish reasonable suspicion based upon the extent to which the second vehicle was compelled to brake, coming almost to a complete stop. Trial Court Opinion, 10/20/08, at 4. We find no error in the trial court's conclusion. Officer Roy observed the defendant from a distance of little more than one car length as he followed the second car while in the ordinary course of his patrol duties. The officer saw Basinger pull into the path of an oncoming car at such close proximity as to prompt his concern of an imminent collision. See Affidavit of Probable Cause at 1. Basinger's own admission at the scene of the stop conceded his own recognition of the infraction. Basinger's current assertions to the contrary, suggesting that a complete stop, skid marks laid by oncoming traffic, or evasive maneuvers are somehow necessary to sustain reasonable suspicion are entirely devoid of merit. Officer Roy's observations amply substantiated his suspicion that Basinger had violated the Motor Vehicle Code by failing to yield the right of way. The trial court did not err in so finding.
¶ 9 In support of his second question, Basinger contests the trial court's authority under the Pennsylvania Sentencing Code to impose a flat sentence of incarceration as a condition of a term of probation. This question challenges the legality of the sentence. See Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (characterizing "illegal sentence" as "a term of art that our Courts apply narrowly, to a relatively small class of cases," where the claimed error "implicate[s] the fundamental legal authority ...