Commonwealth, Aplt. v. Herman, J., Commonwealth, Aplt. v. Herman, J.

Background

Defendant Joey Wayne Herman was prosecuted under Pennsylvania’s designer-drug statute for possession/manufacture of PB‑22; the case reached the Pennsylvania Supreme Court as a concurrence/dissent by Justice Wecht.
The central statutory definition at issue: a “designer drug” includes a substance that has a chemical structure "substantially similar" to a scheduled controlled substance.
Expert testimony showed no scientific consensus or accepted methodology for determining whether two chemical structures are “substantially similar.”
The Commonwealth conceded PB‑22’s pharmacological effect was unknown, so classification depended solely on chemical‑structure comparison with JWH‑018.
The Majority invalidated the analogue provision but upheld the designer‑drug provision; Justice Wecht (joined by two Justices) concurred in part and dissented in part, arguing the designer‑drug definition is unconstitutionally vague as applied to PB‑22.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the designer‑drug definition is unconstitutionally vague as applied to PB‑22	Commonwealth: "substantially similar" is ordinary language; scienter (knowing/intentional) and expert proof narrow vagueness	Herman/Wecht: chemical‑structure comparison requires specialized, unsettled scientific judgment; ordinary people and officers lack fair notice	Justice Wecht: would hold the designer‑drug definition void for vagueness as applied to PB‑22 (dissent); Majority disagreed and upheld it (per the opinion context)
Whether scienter (knowing/intentional) cures vagueness	Commonwealth: mens rea mitigates vagueness, limits discretionary enforcement	Herman/Wecht: scienter does not give fair notice about how to identify chemical similarity; it cannot substitute for a definitional standard	Wecht: scienter insufficient to save the provision as applied; it may limit prosecution but not provide fair warning
Whether reliance on chemical diagrams provides adequate notice	Commonwealth: diagrams/chemical descriptions can inform comparisons; other jurisdictions have upheld similar language	Herman/Wecht: diagrams are technical, inaccessible to laypersons; no principled metric exists for "substantial similarity"	Wecht: diagrams and lay comprehension are inadequate; statute leaves subjective judgments to enforcement actors
Whether precedent from other jurisdictions compels upholding the provision	Commonwealth: many federal/state courts have rejected vagueness challenges to “substantially similar” language	Herman/Wecht: those cases (e.g., Granberry, McKinney) are thinly reasoned; Forbes supports finding vagueness where scientific methodology is unsettled	Wecht: does not defer to other jurisdictions where due‑process analysis shows statutory deficiency; would follow Forbes in finding vagueness as applied

Key Cases Cited

Kolender v. Lawson, 461 U.S. 352 (void‑for‑vagueness standard on fair notice and arbitrary enforcement)
Grayned v. City of Rockford, 408 U.S. 104 (vague laws may trap the innocent; fair warning requirement)
Hill v. Colorado, 530 U.S. 703 (void‑for‑vagueness analysis includes notice and enforcement concerns)
McFadden v. United States, 135 S. Ct. 2298 (mens rea may narrow vagueness concerns in analogue prosecutions)
Lanzetta v. New Jersey, 306 U.S. 451 (statute void for vagueness when ordinary people must guess meaning)
United States v. McKinney, 79 F.3d 105 (8th Cir.) (upheld "substantially similar" as not vague)
United States v. Granberry, 916 F.2d 1008 (5th Cir.) (declared federal analogue definition sufficiently specific)
United States v. Forbes, 806 F. Supp. 232 (D. Colo.) (found "substantially similar" problematic where scientific methodology was unsettled)
City of Chicago v. Morales, 527 U.S. 41 (mens rea may mitigate vagueness but does not always cure it)