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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM NOBBLEN

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3621 EDA 2017 Appeal from the Judgment of Sentence October 27 , 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0008332

- 2015

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J. MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 30 , 2019 William Nobblen (Nobblen) appeals from the judgment of sentence imposed by the Philadelphia County Court of Common Pleas (trial court) following h is conviction of Assault of a La w Enforceme nt Officer, two counts of Aggravated Assault , Firearms not to be Carried Without a License, Firearms Not to be Carried on the Streets of Philadelphia, Possession of an Instrument of a Crime (PIC) , and Persons not to Possess a Firearm

. 1 We affir m. We take the following pertinent facts and procedural history from the
tria l court’s July 20, 2018 opinion and our independent review of the certified record. On April 23, 2015, at approximately 10:00 p.m., Police Officer Daniel Kostick and his partner , Officer Thomas Howe, were on routine bicycle patrol

_________________ __________ ______ ____ _______ 1 18 Pa.C.S. §§ 2702.1 (a) , 2702, 6106, 6108, 907(a) , and 6105, respectively

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in West Philadelphia. They observed a minivan parked along the side of the
street with its engine running in front of a beer distributor occupied by Nobblen , who was sitting in the driver ’ s seat smoking marijuana. When Nobblen noticed the officers, he placed his v ehicle in drive, st arted accelerating towards them, then put the van in reverse, made an ill egal U

turn and drove away at a high rate of speed. The officers sent out a description of th e van over police radio and split up to pursue it individually to cover more ground

. Officer Kostick came into contact with Nobblen, who was then on foot, and immediately recognized him as the driver of the minivan

. After Officer Kostick asked Nobblen whe re he was coming from and what he was doing , Nobblen turned to face the officer and said “[I] didn’t want to have to do this[,]” as he pulled a semiautomatic firearm out of his waistband. (N.T. Trial, 3/31/17, at 52; see id. at 51). He shot Officer Kosti ck in the shoulder and the officer fired his firearm in return. Officer Kostick fl ed and radioed for
assistance

. Police located Nobblen hiding behind a wall smoking marijuana and bleeding from two gunshot wound s to his right arm

. At a jury trial in March 2017 , Nobblen was convicted of the above

mentioned offenses. The trial court sentenced Nobblen to an aggregate term of no t less than thirty

- five nor more than s eventy years of incarceration. After the trial court’s denial of Nobblen’s post

- sentence moti on, this timely appeal followed.J

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Nobb len raises four issues for our review in which he challenges the sufficiency of the evidence, the trial court’s refusal to give a requested jury instruction, the court’s decision regarding his claim of prosecutorial
mis conduct, and the court’s sentence. ( See Nobblen’s Brief, at 4).
A. We begin by addressing his sufficiency claim. 2 Nobblen contends that the evidence was insufficient to support his convictions of assault of a law enforcement offic er, aggravated assault a nd PIC because he claims he was acting in self

- defense on the night of the shooting

. In support of that claim, Nobblen points to the position of Officer Kostick’s bike on the sidewalk at the shooting and the position and presence of blood on fire d cartrid ge casings as evidence establishing his self

- defense claim. ( See id. at 17).

“ The use of force against a person is justified when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unla wful force by the other person.” Commonwealth v.

_________________ __________ ______ ____ _______ 2 “ Whether the evidence was sufficient to support the conv iction presents a matter of law; our standard of review is de novo and our scope of review is plenary

. ” Commonwealth v. Smyser , 19 5 A.3d 912, 915 (Pa. Super. 2018) (citation omitted). “ In conducting our inquiry, we examine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as v erdict winner, support the jury’ s finding of all the elements of the off ense beyond a reasonable doubt

. ” Id. (citation omitted). “ The Commonwealth may sustain its burden by means of wholly circumstantial evidence. ” Id. (citation omitted).J

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Ward , 188 A.3d 1301, 1304 (Pa. Super. 2018), appeal denied , 199 A.3d 341 (Pa. 2018) (citation omitted). “ When a defendant raises a claim of self

defense by identifying evidence that supports the claim, the Commonwealth has the burden of disproving self

- defense beyond a reasonable doubt. ” Id. (citation omitted). “ Although the defendant has no b urden to prove self

defense, . . . before the defense is properly in issue, there must be some evidence, from what ever source, t o justify such a finding.” Commonwealth v. Williams , 17 6 A.3d 298, 309 (Pa. Super. 2017), appeal denied , 187 A.3d 908 (Pa. 2018) (citation omitted). Here, the trial court determined that “ [ Nobblen ] failed to introduce any evidence of self

- d efense and thus the justification of self

- defense was never properly at issue before this court.” (Trial Ct. Op., at 6). In his appellate brief, Nobblen baldly claims that Officer Kostick’s bike position and the casings establish self

- defense, but he dis cusses no testim ony in the record supporting this theory or his allegation that Officer Kostick fired his weapon first . ( See Nobblen’s Brief, at 16

- 24). Although Nobblen refers to defense counsel’s opening statement and closing argument, it is well

- settled that an attorney’s argument is not evidence. See Commonwealth v. Page , 965 A.2d 1212, 1223 (Pa. Super. 2009), appeal denied , 74 A.3d 125 (Pa. 2013). In any event, the record reflects that Nobblen was the initial aggressor during both the ini tial
encounter with Officers Kostick and Howe where he accelerated his vehicle towards th em while they were on bicycles ; and during the later incident withJ

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Officer Kostick whe n he drew and fired his weapon after the officer asked him a few general question s. ( See N.T. Trial, 3/30/17, at 85, 89; see also N.T.
T rial, 3/31/17, at 48, 52

- 53). After review , we conclude that Nobblen’s sufficiency of the evidence claim lacks merit.
B. Nobblen next argues that the trial court erred in denying his request that it instruct the jury on the issue of self

- defense where the evidence warranted such instruction . ( See Nobblen’s Brief, at 25

- 27). 3

“ There is no requirement for the trial judge to instruct the jury pursuant
to ev ery request made to the court.” Phillips , supra at 110 (citation omitted )

. “Instructions regarding matters which are not before the court or which are not supported by the evidence serve no purpose o ther than to confuse the jury.” Id. (citation omitted). Instantly, as discussed above, the defens e theory of self

- defense lacked evidentiary support. We , therefore , discern no abuse of discretion or error of law in the trial court’s decision not to instruct the jury regarding self

- defense.

_________________ __________ ______ ____ _______ 3 “In deciding whether a trial court erred in refusing to give a jury instruction, we must determine whether the court abused its discretion or committed an error of law.” Commonwealth v. Phillips , 94 6 A.2d 103, 110 (Pa. Super. 2008) , appeal denied , 964 A.2d 895 (Pa. 2009), cert. denied , 556 U.S. 1264 (2009) (citation omitted)

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. Nobblen next contends that the prosecutor’s extensive misconduct during closing argument deprived him of a fair trial. ( See Nobblen’s Brief, at 28

- 34). 4 H e argues chiefly t hat the prosecutor made prejudicial references to his decision to remain silent and not testify and to his right to confront his

accuser s . ( See id. ). 5

“ [ I ] t is well settled that any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the c ontext in which it was offered.” See Jones , supra at 835 (citation omitted)

. “ Our revie w of

a prosecutor’ s comment and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. ” Id. (citation omitted). “ Thus, it is well settled that statements made by the prosecutor to the ju ry during closing argument will not form the basis for granting a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evid ence objectively and render a

_________________ __________ ______ ____ _______ 4 “ In reviewing a claim of improper p rosecutorial comments, our standard of review is whether the trial court abused its discretion.” Commonwealth v. Jones , 191 A.3d 830, 835 (Pa. Super. 2018) (citation omitted).

5 For example, Nobblen asserts that the prosecutor’s statement, “Who is behaving like a victim and who is behaving like a defendant?” when describing the actions of Officer Kostick and Nobb len on the night of the shooting was a comment on Nobblen’s silence at trial. (N.T. Tri al, 4 /06/17, at 42

- 44; see also Nobblen’s Brief, at 29).J

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true verdict. ” Id. (citation omitted). Counsel i s accorded reasonable latitude and may employ oratorical flair in arguing his or her version of the case to the jury. See i

d.
Here , the trial court concluded that the challenged statement s “served merely as a summary of the facts in the case and [ were] presented with permissible ‘oratorical flair [,] ’” and that none of the comments rose to such a level so as to require the grant of a new trial. (Trial Ct. Op., at 18 ; se e id. at 20 ). After reviewing the entirety of the prosecution ’s closing argument and considering the context in which the i ndividual

- challenged remarks were made , we cannot conclude that the “ unavoidable effect of such comments would be to prejudice the j ury [.]” Jones , supra at 835 (citation omitted). We also note that we disagree with Nobblen’s characterization of the challenged comments as improper references to his exercise of his constitutional rights. Therefore, his prosecutorial misconduct claim fails.
D. Lastly , Nobblen contends that the trial court misinterpreted 42 Pa.C.S. § 9719.1 to require imposition of a mandatory minimum sentence where the
statute instead mandates a mandatory maximum sentence . ( See Nobblen’ s Brief, at 35

- 45). 6

_________________ __________ ______ ____ _______ 6 “A trial court’ s application of a statute is a question of law, and our standard of review is plenary. Moreover, our review is limited to determining whether the trial co urt committed an error of law.” Commonwealth v. Lewis , 180 A.3d 786, 788 (Pa. Super. 2018) (citation omitted).J

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“ The principal objective of interpreting a statute is to effectuate the intention of the legislature and give effect to all of the provisions of the
statute. ” Lewis , supra at 788 (citation omitted). “ In construing a statute to determine its meaning, courts mu st first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. ” Id. (citation omitted).

“ When analyzing particular words or phrases, we must const rue them according to rules of grammar and according to their common and approved
usage. ” Id. (citation omitted). Regarding sentences for offenses committed against law enforcement officers, the Sentencing Code provides : (a) Mandatory sentence.

— A person c onvicted of the following offense shall be sentenced to a mandatory term of imprisonment as follows: 18 Pa.C.S. § 2702.1(a) (relating to assa ult of law enforcement officer)

— not less than 20 years. 42 Pa.C.S. § 9719.1 (emphasis added)

. This Court has determined that “ [t] he words ‘not less than’ used in [a] statute unambiguously connote a minimum term of imprisonment. It strains all notions o f common sense to suggest that ‘not less than’ can reasonably be interpreted as meaning ‘ maximum. ’” Commonwealt h v. O’ Brien , 514 A.2d 618, 620 (1986) , appeal denied , 527 A.2d 537 (Pa. 1987) ; see also Commonwealth v. Madeira , 982 A.2d 8 1, 84 (Pa. Super. 2009) , appeal denied , 987 A.2d 160 (Pa. 2009), cert. denied , 560 U.S. 914 (2010)J

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(reaffirming definition of “not less than” set forth in O’Brien and stating that “the phrase . . . refers to the minimum sentence that the trial court may impose. ” ). C onsistent with the foregoing, the trial court found that S ection 9719.1 required imposition of a twenty

- year min imum sentence. ( See N.T. Sentencing, 7/24/17, at 13). We discern no error of law in this decision. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/30/19