161 A.3d 194
Pa.2017Background
- Appellee operated a smoke shop; undercover purchases (April, May, July 2013) and later seizures revealed packets containing PB-22. Laboratory testing identified PB-22; prosecution alleged it was either an "analogue" of scheduled JWH-018 or a "designer drug."
- Appellee was charged under the Controlled Substance, Drug, Device and Cosmetic Act with delivery and possession counts for controlled-substance analogues (35 P.S. § 780-113(a)(30)) and a designer-drug count (35 P.S. § 780-113(a)(36)).
- The General Assembly amended Schedule I by Act 40 (July 2, 2013), specifying thirteen chemical designations and referencing "analogues" without defining "analogue;" designer drug is defined using the phrase "substantially similar," also undefined.
- Expert testimony conflicted: Commonwealth expert (Dr. Coyer) testified PB-22 is an analogue/substantially similar; defense experts (Drs. Huffman and Harris) disagreed and testified there is no generally accepted scientific definition or methodology for determining "analogue" or "substantial similarity."
- The trial court granted habeas relief, dismissing all counts as unconstitutionally vague as applied to PB-22. Pennsylvania Supreme Court reviewed the record and addressed (a) pre-Act 40 analogue charges, (b) post-Act 40 analogue charges, and (c) the designer-drug "substantially similar" provision.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Herman) | Held |
|---|---|---|---|
| Whether pre-Act 40 analogue provision is void for vagueness as applied to PB-22 | Statutory terms are understandable; experts agree on structural similarities; jury can decide analogue status | No scientific consensus or methodology exists to determine analogue status, so statute gave no fair notice | Pre-Act 40 analogue provision is unconstitutionally vague as applied to PB-22 — reversed trial court only as to designer-drug count (affirmed dismissal of pre-amendment analogue counts) |
| Whether PB-22 falls within Schedule I under Act 40 (post-amendment analogue counts) | PB-22 is structurally similar enough to be analogue; jury question | Act 40’s chemical-designation scheme excludes PB-22 because it is a different structural class | PB-22 was not covered by the Act 40 Schedule I designation at the time; dismissal of post-July 2 controlled-substance counts affirmed (statutory, non-constitutional ground) |
| Whether the designer-drug definition’s phrase "chemical structure substantially similar" is void for vagueness as applied to PB-22 | Phrase is intelligible to ordinary persons; juries can apply it with expert aid; scienter (knowing/intentional) limits vagueness | Experts disagree on methodology and result; lack of consensus renders the standard vague | "Substantially similar" in the designer-drug provision is not unconstitutionally vague as applied; designer-drug dismissal reversed and remanded for further proceedings |
| Whether mens rea (knowing/intentional) in designer-drug statute mitigates vagueness | Scienter narrows scope, limits prosecutorial discretion, and alleviates notice concerns | Scienter does not supply the definitional standard or fair notice to ordinary citizens | Court adopts narrow reading consistent with McFadden: scienter requirement helps mitigate vagueness; supports upholding designer-drug provision |
Key Cases Cited
- Grayned v. City of Rockford, 408 U.S. 104 (U.S. 1972) (void-for-vagueness doctrine and recognition that perfect precision is not required in statutes)
- Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (vagueness doctrine protects against lack of fair notice and arbitrary enforcement)
- Connally v. General Construction Co., 269 U.S. 385 (U.S. 1926) (statute void for vagueness if people must guess at meaning and differ as to application)
- Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (U.S. 1982) (scienter may mitigate vagueness concerns)
- Papachristou v. City of Jacksonville, 405 U.S. 156 (U.S. 1972) (due process notice requirement in penal statutes)
- Commonwealth v. McBride, 528 Pa. 153 (Pa. 1991) (prima facie case standard in pretrial habeas)
- In re Fiori, 543 Pa. 592 (Pa. 1996) (constitutional avoidance; avoid deciding constitutional question if other grounds suffice)
- McFadden v. United States, 135 S. Ct. 2298 (U.S. 2015) (scienter interpretation in analogue context: government must prove defendant knew the features making the substance an analogue)