Commonwealth, Aplt. v. Herman, J.
2017 Pa. LEXIS 1210
| Pa. | 2017

Background

  • Appellee operated a York County smoke shop; undercover buys on Apr 17, May 30, and July 11, 2013 produced products testing positive for PB-22. Police seized additional PB-22 on July 15, 2013.
  • Commonwealth charged Appellee with delivery and possession with intent to deliver controlled-substance analogues (pre- and post-July 2, 2013 amendments) and with possession/possession with intent to distribute a designer drug under the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-101 et seq.).
  • Act 40 (July 2, 2013) revised Schedule I to list thirteen chemical designations and continued to include the term “analogues” without defining it; Act 37 (2016) later added PB-22 to the schedule.
  • At the habeas hearing the Commonwealth’s expert (Dr. Coyer) testified PB-22 is an analogue of JWH-018 using a four-part, largely two‑dimensional methodology; defense experts (Drs. Huffman and Harris) disagreed and testified there is no generally accepted scientific definition or method for determining analogue or “substantially similar” status.
  • The trial court granted habeas relief and dismissed all counts as the Act was unconstitutionally vague as applied to PB-22; Commonwealth appealed to this Court.

Issues

Issue Plaintiff's Argument (Commonwealth) Defendant's Argument (Herman) Held
1) Were pre-Act 40 analogue provisions vague as applied to PB‑22? Statutory terms should be given their common meaning; jury can resolve structural-similarity disputes using expert evidence. No accepted scientific definition or method for “analogue”; scientists disagree whether PB‑22 is an analogue of JWH‑018, so statute gives inadequate notice. Pre-Act 40 analogue provision is unconstitutionally vague as applied to PB‑22; dismissal of April and May 2013 counts affirmed.
2) Do Act 40 revisions make PB‑22 a prohibited analogue after July 2, 2013? (Implicit) analogue language remains enforceable; factual issue for jury. Statutory amendment confines Schedule I to specified chemical designations; PB‑22 is in a different class and thus not covered. Counts after July 2, 2013 dismissed because PB‑22 was not within the listed chemical designation for JWH‑018 (statutory ground); affirmed on statutory (non‑vagueness) basis.
3) Is the designer‑drug definition’s phrase “chemical structure substantially similar” unconstitutionally vague as applied to PB‑22? "Substantially similar" is a common concept juries can apply; scienter (knowing/intentional) narrows the statute and mitigates vagueness. Experts disagree on methodology and result; ordinary citizens lack the chemical expertise to get fair notice. Designer‑drug provision upheld: court rejects as‑applied vagueness challenge, concluding juries (with experts) can determine substantial similarity and scienter limits vagueness.
4) Should resolution be left to the jury (expert conflict)? Yes — structural similarity is a factual question for the jury after hearing experts. No — where scientific community lacks any accepted method, statute fails to give fair notice. For analogues (pre‑Act) lack of scientific consensus compelled invalidation; for designer drugs, disagreement does not render "substantially similar" vague as applied; jury question remains viable.

Key Cases Cited

  • Connolly v. Gen. Constr. Co., 269 U.S. 385 (statute invalid if people must "guess at its meaning and differ as to its application")
  • Grayned v. City of Rockford, 408 U.S. 104 (1972) (recognizing limits of vagueness doctrine but requiring fair notice)
  • Kolender v. Lawson, 461 U.S. 352 (1983) (vagueness doctrine guards against arbitrary enforcement)
  • McFadden v. United States, 135 S. Ct. 2298 (U.S. 2015) (scienter requirement narrows analogue prosecutions and mitigates vagueness concerns)
  • Klecker v. United States, 348 F.3d 69 (4th Cir. 2003) (two‑dimensional diagrams can show "considerable similarities" for substantial‑similarity inquiries)
  • McKinney v. United States, 79 F.3d 105 (8th Cir. 1996) (rejecting vagueness challenge to "substantially similar" language)
  • Commonwealth v. McBride, 528 Pa. 153 (1991) (prima facie sufficiency standard on pre‑trial habeas challenge)
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