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Jovan Simon v. Michael Wenerowicz

December 8, 2011

JOVAN SIMON
PETITIONER
v.
MICHAEL WENEROWICZ, ET AL. RESPONDENTS



The opinion of the court was delivered by: J. William Ditter, Jr., Sr. J.

MEMORANDUM

Presently before this court is a pro se petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254 by Jovan Simon ("Simon") and the response thereto. Simon, who is currently incarcerated in the State Correctional Institution in Graterford, Pennsylvania, challenges his incarceration for possession with intent to deliver a controlled substance. For the reasons that follow, the petition will be denied.

FACTS AND PROCEDURAL HISTORY:

The state court summarized the relevant facts leading up to Simon's arrest as follows:

Philadelphia Police Officer Kevin McNamara testified that, on February 25, 2003 at around 7:30 p.m., he came into contact with [Simon] inside the living room of a residence located at 4027 Higbee Street in Philadelphia. The only other person inside the residence at the time were an adult female and two small children. [Simon] had a gunshot wound to his left leg. Philadelphia Police Officer Joseph Dalessio testified that an agitated [Simon] repeatedly told police "I want you out of my house."

Paramedics arrived a few minutes later and transported [Simon] to the hospital. Paramedic Daniel O'Reilly testified that he heard [Simon] several times refer to the residence as his house. In the ambulance, [Simon] called his brother using the paramedic's cell phone. Paramedic O'Reilly heard [Simon] tell his brother to go to his home, lock it up, and tell the police to leave. Paramedic O'Reilly also heard [Simon] tell his brother that he had things in his home that he did not want the police to see.

Police conducted a search of the premises later that day, recovering a bag of crack cocaine, a bag of marijuana, and a lidless pot containing cooked crack cocaine from the kitchen area. Also seized was a bag of cocaine and a scale to weigh the drugs from atop an entertainment center in the living room. The total weight of all the cocaine seized from the residence was 252.1 grams. Philadelphia Police Officer Walter Szamatowitz testified that it was his expert opinion that, in view of the quantity and the manner in which the drugs were divided, the drugs were possessed for distribution. Commonwealth v. Simon, 2567 EDA 2007, slip op. at 2 (Trial Ct, March 25, 2008) (unpublished memorandum) (emphasis in original) (citations omitted).

After a bench trial before the Honorable Joan A. Brown, Court of Common Pleas of Philadelphia County, Simon was found guilty of possession with intent to deliver a controlled substance. On January 29, 2004, Simon was sentenced to a mandatory term of 4 to 8 years of imprisonment.

Simon filed a direct appeal arguing that (1) the evidence was insufficient to prove that Simon possessed the drugs in the house and (2) the prosecutor acted improperly by eliciting testimony from police officers regarding prior criminal conduct by Simon.*fn1 The Pennsylvania Superior Court affirmed the judgment of sentence on March 3, 2009. Commonwealth v. Simon, No. 2567 EDA 2007 (Pa. Super. March 3, 2009) (unpublished memorandum). The Pennsylvania Supreme Court denied Simon's petition for allowance of appeal on September 22, 2009. Commonwealth v. Simon, No. 138 EAL 2009 (Pa. Sept. 22, 2009).

Simon filed a petition for a federal writ of habeas corpus on August 31, 2010,*fn2 claiming:

1) the evidence was insufficient to support his conviction for possession with intent to deliver a controlled substance; and

2) the prosecutor engaged in prosecutorial misconduct when he elicited testimony about Simon's prior criminal conduct.*fn3

Respondents have filed an answer to Simon's habeas petition asserting that Simon is not entitled to federal habeas relief ...


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