Commonwealth, Aplt. v. Herman, J.

[J-124-2016] [MO:Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 74 MAP 2016
:
Appellant : Appeal from the Order of the York
: County Court of Common Pleas,
: Criminal Division, at No. CP-67-CR-
v. : 0002400-2014 dated 2-10-2015.
:
: ARGUED: December 7, 2016
JOEY WAYNE HERMAN, :
:
Appellee :
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: May 25, 2017
I agree with the points adeptly articulated in Justice Donohue’s concurring and
dissenting opinion. Like Justice Donohue, I concur in the learned Majority’s disposition
of the issues regarding the classification of PB-22 as an “analogue” of JWH-018, both
before and after the Act 40 amendments to the Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. §§ 780-101, et seq. I depart from the Majority at the same
juncture as Justice Donohue, in that I conclude that the definition of a “designer drug”1
suffers from the same constitutional infirmity as the “analogue” provision, 35 P.S. § 780-
104(1)(vii), as applied to PB-22. Accordingly, I respectfully dissent.
1
See 35 P.S. § 780-102(b) (defining “designer drug,” in relevant part, as “a
substance other than a controlled substance that is intended for human consumption
and that either has a chemical structure substantially similar to that of a controlled
substance in Schedules I, II or III of this act or that produces an effect substantially
similar to that of a controlled substance in Schedules I, II or III”). As the Majority notes,
the Commonwealth concedes that the “effect” of PB-22 on the body is unknown, so we
here are concerned only with its “chemical structure.” Maj. Op. at 4-5 n.8, 11 n.14, 16.
As Justice Donohue highlights, the expert testimony presented in this case
revealed a significant problem: the scientific community recognizes no accepted
standard or methodology for determining whether two substances are “analogues” or
whether their chemical structures are “substantially similar” to each other. The inability
to discern an intelligible or predictable standard for applying these concepts strikes the
same constitutional blow to the definition of a designer drug that the Majority deems
fatal to the analogue provision. I join Justice Donohue’s opinion, and add the following.
“[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Commonwealth v. Mikulan, 470 A.2d 1339, 1342 (Pa.
1983) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Even more succinctly,
due process requires that a criminal statute must provide “reasonable standards by
which a person may gauge his future conduct.” Commonwealth v. Mayfield, 832 A.2d
418, 422 (Pa. 2003). A statute is unconstitutionally vague if it fails to satisfy either the
“fair warning” prong or the “arbitrary or discriminatory enforcement” prong. See Hill v.
Colorado, 530 U.S. 703, 732 (2000). In my view, as applied to PB-22 during the
relevant timeframe,2 the definition of a designer drug is deficient in both respects.
The Majority concludes that, unlike the statutorily undefined and “somewhat
nebulous” concept of a controlled substance analogue, Maj. Op. at 23, the definition of a
designer drug is not unconstitutionally vague because, inter alia, its operative
2
As the Majority notes, the definition of a designer drug specifies that “designer
drugs and controlled substances . . . are mutually exclusive categories.” Maj. Op. at 18
n.17. PB-22 has been added to the schedule of controlled substances. See Act of
June 8, 2016, P.L. 258, No. 37; Maj. Op. at 20-21, 22 n.20. Therefore, PB-22 is now a
controlled substance, not a designer drug. Accordingly, we today consider the definition
of a designer drug as it applied to PB-22 before the revision.
[J-124-2016] [MO: Saylor, C.J.] - 2
language—substantially similar—is not specialized or technical, and “the concept of
similarity is well known to persons of ordinary intelligence.” Id. With that much I
certainly agree. However, it is not the statute’s call for comparison that places it outside
the bounds of ordinary comprehension. It is the object of that comparison—chemical
structure—that is problematic. We can expect the average citizen to understand
common words like “substantial” and “similar.” But the law cannot fairly impart upon the
general populace a working knowledge of organic chemistry. As the United States
Court of Appeals for the Sixth Circuit has noted, “we do not impute specialized
knowledge to the ‘person of ordinary intelligence’ by whom we judge the statute’s
vagueness.” United States v. Caseer, 399 F.3d 828, 837 (6th Cir. 2005). To predicate
criminal punishment upon the application of such knowledge raises serious due process
concerns. Criminal laws apply to everyone. One must not be required to hold a
doctorate in chemistry in order to recognize the conduct that is forbidden by those
laws.3
In support of the contention that an ordinary citizen fairly may be asked to
compare the chemical structures of different molecules, on pain of committing a criminal
offense, the Majority relies upon United States v. McKinney, 79 F.3d 105 (8th Cir. 1996).
See Maj. Op. at 24. In McKinney, the United States Court of Appeals for the Eighth
Circuit rejected an argument that the term “substantially similar” in the federal definition
of a “controlled substance analogue,” 21 U.S.C. § 802(32)(A), is unconstitutionally
3
Moreover, in light of the expert testimony adduced in the instant case, it is clear
that, due to the lack of consensus in the scientific community, even possessing a
doctorate in a relevant scientific field and dedicating extensive study to the very
question at issue is not sufficient to allow one to reach a predictable or consistent
conclusion as to whether two chemical structures are “substantially similar.” See Maj.
Op. at 9-10, 23 n.21; Conc. and Diss. Op. at 2-3 (Donohue, J.) (discussing the expert
testimony of Michael Coyer, Ph.D., John Huffman, Ph.D., and Heather Harris, Ph.D.).
[J-124-2016] [MO: Saylor, C.J.] - 3
vague. In doing so, the McKinney court set forth the dubious proposition that “a
reasonable layperson could . . . have examined a chemical chart and intelligently
decided for himself or herself, by comparing their chemical diagrams, whether the
chemical structure of two substances were substantially similar.” McKinney, 79 F.3d at
108. A reproduction of the diagrams of the chemical structures at issue in the instant
case demonstrates the troublesome nature of this proposition:
Brief for Commonwealth at 14 (reproduced from Report of Dr. Coyer at 6).
Brief for Commonwealth at 15 (reproduced from Report of Dr. Huffman at 2).
[J-124-2016] [MO: Saylor, C.J.] - 4
Several difficulties with this approach plainly are apparent. First, to conclude that
such diagrams fairly apprise an ordinary citizen of the prohibited status of a chemical,
one must assume that an ordinary citizen is able to locate, interpret, and understand
these diagrams. Surely, the typical packet of “Winter Haze” or “V-8 Air Freshener” is
not labeled with an illustration of the chemical structure of PB-22 alongside potentially
“similar” controlled substances. Nor are such products sold with a chemistry textbook
that may aid a consumer in recognizing the nature of the various atoms, bonds, or
functional groups that, together, give the substance its identity. Second, even if the
ordinary citizen is presented with these diagrams, and can understand what they
represent, there remains no principled standard by which to compare them and to
ascertain their substantial similarity. Anyone can observe superficial similarities
between two chemical diagrams. Indeed, the above diagrams of PB-22 and JWH-018
contain comparable lines, symbols, and polygonal shapes that make them appear
similar at first glance. But does the additional “O” in the diagram of PB-22 make a
difference? Does the extra “N” substantially change its structure? Is it significant that
the two hexagonal shapes at the end seem to attach to the remainder of the structure in
a different place? Absent any accepted metric for comparison, we cannot assume that
a citizen’s determination that these substances are “substantially similar” is based upon
a reasoned analysis of “chemical structure,” rather than any number of inapt
considerations, such as the total number of atoms in the structure, the prevalence of
straight lines compared to angled lines, or each diagram’s degree of resemblance to
some other object.
From these two-dimensional diagrams of their chemical structures, today’s
Majority finds “considerable similarities” between PB-22 and JWH-018. Maj. Op. at 27
(quoting United States v. Klecker, 348 F.3d 69, 72 (4th Cir. 2003). Respectfully, I cannot
[J-124-2016] [MO: Saylor, C.J.] - 5
agree that these diagrams provide sufficient information to an ordinary citizen so as to
establish “fair warning” that PB-22 is a designer drug, unlawful to possess, manufacture,
or distribute. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“Vague laws
may trap the innocent by not providing fair warning.”); F.C.C. v. Fox Television Stations,
Inc., 567 U.S. 239, 132 S. Ct. 2307, 2317 (2012) (“A fundamental principle in our legal
system is that laws which regulate persons or entities must give fair notice of conduct
that is forbidden or required.”).
Because the chemical structure of PB-22 is the dispositive feature with regard to
the classification of that substance as a “designer drug” within the relevant time frame,
and because that feature patently is beyond the scope of knowledge attributable to a
citizen of ordinary intelligence, neither the commonly-understood concept of “similarity”
nor the fact that the chemical structures of PB-22 and JWH-018 can be rendered as
two-dimensional diagrams adequately cures the definition’s indeterminacy. What
remains is an overly broad description that lacks clear parameters by which an
individual may gauge whether conduct is lawful, and whereby an individual may be
guilty of a crime based upon a subjective determination for which there is no
ascertainably right or wrong answer. Consequently, the definition of a designer drug is
written in “terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application,” which “violates the first essential of due
process of law.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (quoting Connally v.
General Const. Co., 269 U.S. 385, 391 (1926)).
Not only does the definition of a designer drug fail to provide the general
populace with fair warning that PB-22 is a prohibited substance, but its imprecision also
runs afoul of another requirement of due process under the void-for-vagueness
doctrine. The definition allows for “arbitrary and discriminatory enforcement.” Kolender,
[J-124-2016] [MO: Saylor, C.J.] - 6
461 U.S. at 357. The same absence of recognizable standards that leaves an ordinary
citizen to guess whether PB-22 falls within the ambit of the definition also transforms the
duties of the police officer, the prosecutor, and the judiciary into guesswork. “A vague
law impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application.” Grayned, 408 U.S. at 108-09. The Supreme Court of
the United States further has recognized that, although the void-for-vagueness principle
focuses upon both fair notice and the potential for arbitrary enforcement, “the more
important aspect of vagueness doctrine ‘is not actual notice, but the other principal
element of the doctrine—the requirement that a legislature establish minimal guidelines
to govern law enforcement.’” Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415
U.S. 566, 574 (1974)). Rather than specifically delineating the necessary features of a
substance in a manner that provides guidelines to law enforcement and allows for
predictable application, the definition of a designer drug leaves the determination of the
substance’s prohibited status to the untrained discretion of the participants in the
criminal justice system.
Like the ordinary citizen, police officers, prosecutors, and judges are not
chemists. A prosecuting authority may deem a substance to be “close enough” to a
controlled substance in one circumstance, but, because there is no standard for
assessing whether that determination is accurate, the identical comparison in another
circumstance may result in a conclusion that the substances do not share a
“substantially similar” chemical structure. Both conclusions are as reasonable as they
are inconsistent. When determining whether a given substance is an actually-
scheduled controlled substance, law enforcement or prosecuting authorities may submit
that substance to a laboratory, which can return a “yes” or “no” answer as to whether
[J-124-2016] [MO: Saylor, C.J.] - 7
that substance is prohibited.4 By contrast, whether a given substance is a “designer
drug” is to be determined by an unprincipled judgment call, which allows for
enforcement that is, at best, exceptionally discretionary, and, at worst, arbitrary or
discriminatory.
The Majority relies upon the abundance of decisions from other jurisdictions that
have held that the term “substantially similar” is not unconstitutionally vague as applied
to various substances. See Maj. Op. at 25. Many of these decisions are lacking in
persuasive value. The Majority cites United States v. Granberry, 916 F.2d 1008 (5th Cir.
1990), upon which many federal and state courts rely in rejecting vagueness challenges
4
The Majority expresses concern that, if the incomprehensibility of the definition of
a designer drug to the ordinary citizen renders it unconstitutionally vague, “much of the
Act would be invalid because many drugs appearing in the schedules are listed by their
chemical formulae or technical descriptions.” Maj. Op. at 28. The Majority further
cautions that “it would be misguided to invalidate substantial portions of our controlled-
substance legislation on the basis that compounds subject to regulation or
criminalization are described by reference to technical formulae unintelligible to the
general public.” Id. But this misses the point. We are not here confronted with a
challenge to any provision that identifies particular substances by their chemical
formulae. Nor can the prospect of future challenges alter our analysis in this case.
Chief Justice John Roberts famously observed that, as an “umpire” of the law, “it’s my
job to call balls and strikes and not to pitch or bat.” Hearing Before the Senate Judiciary
Comm. on the Nomination of The Honorable John G. Roberts, U.S.C.J., to be the Chief
Justice of the United States, 109th Cong. (Sept. 12, 2005), http://washingtonpost.com/
wp-dyn/content/article/2005/09/13/AR2005091300693.html. As umpires in our own
right, we cannot call a strike as a ball simply because a strike would be the third, or
because it could change the outcome of the ballgame. But let us suppose for a moment
that our constitutional analysis should be influenced by a fear of the potential impact
upon other statutory provisions, a point I do not concede. Even so, the available
mechanisms for objectively determining whether a given substance is a scheduled drug
serve as an important point of distinction from the indeterminate definition of a designer
drug. Unlike the subjective determination of whether two substances share a
“substantially similar” chemical structure, for which the statute provides the authorities
no guidelines, law enforcement personnel readily can determine through chemical
testing whether a given substance is, for example, “N-ethyl-3-piperidyl benzilate.” See
Maj. Op. at 28. The statutory provision prohibiting that substance does not suffer from
the same absence of specificity that is inherent in the definition of a designer drug.
[J-124-2016] [MO: Saylor, C.J.] - 8
to the “substantially similar” language, including in a number of the other decisions that
the Majority cites. See, e.g., United States v. Turcotte, 405 F.3d 515, 531-32 (7th Cir.
2005); United States v. Fisher, 289 F.3d 1329, 1333-34 (11th Cir. 2002); State v. Srack,
314 P.3d 890, 896 (Kan. Ct. App. 2013); State v. Shalash, 13 N.E.3d 1202, 1209 (Ohio
Ct. App. 2014). However, Granberry, itself, applied the following reasoning to the
federal definition of a controlled substance analogue:
Despite Granberry’s contention to the contrary, the term “controlled
substance analogue” in § 813 is clearly and specifically defined, in terms
readily comprehensible to the ordinary reader. It provides adequate notice
of what conduct is prohibited. The statute makes plain that drugs which
have been chemically designed to be similar to controlled substances, but
which are not themselves listed on the controlled substance schedules,
will nonetheless be considered as schedule I substances if 1) they are
substantially similar chemically to drugs that are on those schedules, 2) if
they produce similar effects on the central nervous system as drugs that
are on those schedules, or 3) are intended or represented to produce
effects similar to those produced by drugs that are on those schedules.
There is nothing vague about the statute.
Granberry, 916 F.2d at 1010. The entirety of the Granberry court’s analysis entailed a
summary of the statutory definition, and a conclusory assertion that “[t]here is nothing
vague” about that definition. Id. Other courts may deem this discussion to be sufficient.
I am not so persuaded.
In other cases that the Majority cites, the courts relied heavily upon the federal
circuit courts’ consistent rejection of similar challenges. See, e.g., Turcotte, 405 F.3d at
531 (“The circuit courts considering this issue have unanimously held that
the . . . Analogue Provision is not unconstitutionally vague.”); State v. Alley, 318 P.3d
962, 973 (Idaho Ct. App. 2014) (“There is broad agreement in the federal circuit courts
that the statute is not unconstitutionally vague.”); Srack, 314 P.3d at 896 (“Other federal
Circuit Courts of Appeals have reached a similar conclusion.”); Shalash, 13 N.E.3d at
1209 (citing Turcotte and noting that “every federal circuit court that has addressed this
[J-124-2016] [MO: Saylor, C.J.] - 9
issue has ‘held that the . . . Analogue Provision is not unconstitutionally vague.’”).
Although uniformity in the federal circuit courts certainly is worthy of note, I find
significant that much of this consensus can be traced to thinly reasoned cases like
Granberry and McKinney. Where, as here, faithful application of due process principles
pursuant to the void-for-vagueness doctrine reveals clear deficiencies in a statute, I
would not yield to the contrary case law of other jurisdictions, absent persuasive
analysis.
The Majority notes that “Appellee has not drawn our attention to any court in any
jurisdiction which has held that the substantially-similar descriptor is unconstitutionally
vague[.]” Maj. Op. at 25. However, in its discussion of the analogue provision, the
Majority relies upon a decision which held precisely that. See Maj. Op. at 17 (applying
United States v. Forbes, 806 F. Supp. 232 (D. Colo. 1992)). The Majority implicitly
confines its application of Forbes to the term “analogue” only, but the court in Forbes
held that, “[a]lthough the ‘substantially similar’ language may be generally susceptible to
adequate definition, it runs afoul of the vagueness doctrine when it is applied to . . . the
circumstances of this case.” Forbes, 806 F. Supp. at 237. Of particular salience to the
instant case, the Forbes court noted that “[t]he scientific community cannot even agree
on a methodology to use to determine structural similarity.” Id. (emphasis added). The
Majority quotes a portion of this statement to suggest that the absence of recognized
standards precluded a determination of “analogue status.” Maj. Op. at 17. However,
the Majority overlooks the fact that it was the “substantially similar” descriptor that the
Forbes court found problematic. That descriptor was held to be unconstitutionally
vague in Forbes based upon precisely the same circumstance that was revealed in the
instant case—the scientific community cannot even agree on a methodology for
determining whether a substance “has a chemical structure substantially similar to that
[J-124-2016] [MO: Saylor, C.J.] - 10
of a controlled substance” so as to qualify as a designer drug. 35 P.S. § 780-102(b).
Forbes certainly supports the Majority’s conclusion that the analogue provision is
unconstitutionally vague, but it equally supports the same conclusion with regard to the
definition of a designer drug.
The Majority’s final reason for rejecting the vagueness challenge to the designer
drug definition is that “the designer drug provision has an express culpability
prerequisite whereby a defendant can only be convicted if the government proves he
acted knowingly or intentionally.” Maj. Op. at 26. To be sure, the Supreme Court of the
United States long has held that “the constitutionality of a vague statutory standard is
closely related to whether that standard incorporates a requirement of mens rea.”
Colautti v. Franklin, 439 U.S. 379, 395 (1979).
[T]he requirement of a specific intent to do a prohibited act may avoid
those consequences to the accused which may otherwise render a vague
or indefinite statute invalid. . . . The requirement that the act must be
willful or purposeful may not render certain, for all purposes, a statutory
definition of the crime which is in some respects uncertain. But it does
relieve the statute of the objection that it punishes without warning an
offense of which the accused was unaware.
Id. at 395 n.13 (quoting Screws v. United States, 325 U.S. 91, 101-102 (1945)
(plurality)). Today’s Majority draws support from the Supreme Court’s decision in
McFadden v. United States, __ U.S. __, 135 S. Ct. 2298 (2015), wherein the Court
determined that the scienter element of the statute at issue, which prohibits an
individual from knowingly manufacturing, distributing, or possessing with intent to
distribute a controlled substance analogue, does not require knowledge of the identity of
the substance, but does require either (1) knowledge that the substance is controlled, or
(2) knowledge of the features of the substance that make it a controlled substance
analogue. Id. at 2302. The McFadden Court also noted that the scienter requirement
[J-124-2016] [MO: Saylor, C.J.] - 11
“‘alleviate[s] vagueness concerns,’ ‘narrow[s] the scope of the [its] prohibition[,] and
limit[s] prosecutorial discretion.’” Id. at 2307 (quoting Gonzales v. Carhart, 550 U.S.
124, 149-50 (2007) (bracketed material in original)).
Although the relevance of a scienter requirement to the vagueness inquiry is
well-settled under the precedents of the Supreme Court of the United States, the Court
has been careful not to suggest that the presence of a mens rea element is dispositive.
Rather, the Supreme Court has stated that a scienter requirement may “mitigate,” City
of Chicago v. Morales, 527 U.S. 41, 110 (1999), “alleviate,” Gonzales, 550 U.S. at 149,
or “ameliorate,” Hill, 530 U.S. at 732, constitutional vagueness concerns.5 Even framed
as merely a factor to consider when confronting a vagueness challenge, the proposition
has not gone uncriticized, because it appears to create tension with the familiar maxim:
ignorantia juris non excusat (“ignorance of the law excuses not”). Professor Wayne R.
LaFave has noted:
One “knowingly” commits an offense when he knows that his acts will
bring about certain results (those defined in the statute in question), and
whether he knows that deliberately causing such results is proscribed by
statute is immaterial. Because it is knowledge of the consequences of
one’s actions and not knowledge of the existence or meaning of the
criminal law which is relevant, it seems clear that uncertain language in a
statute is not clarified by the addition of a scienter element.
1 W AYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 2.3 (2d ed. 2003) (footnotes omitted).
Another commentator has opined:
“Scienter” has frequently been found a component of the offense created
by the statute charged with indefiniteness, and on each occasion the
5
I acknowledge, however, that this Court has expressed the proposition in more
categorical terms. See Commonwealth v. Hendrickson, 724 A.2d 315, 319 (Pa. 1999)
(“[V]agueness challenges fail when a statute has a specific intent requirement because
a defendant cannot complain he did not understand the crime where he has been found
to have had the specific intent of doing what is prohibited.”).
[J-124-2016] [MO: Saylor, C.J.] - 12
statute has been sustained, in part on the notion that the requirement of
guilty knowledge clarified it. Yet it is evident that, unless the Court has
been fooling itself in these cases, the “scienter” meant must be some
other kind of scienter than that traditionally known to the common law—
the knowing performance of an act with intent to bring about that thing,
whatever it is, which the statute proscribes, knowledge of the fact that it is
so proscribed being immaterial. Such scienter would clarify nothing; a
clarificatory “scienter” must envisage not only a knowing what is done but
a knowing that what is done is unlawful or, at least, so “wrong” that it is
probably unlawful. One difficulty here is that it is uncertain whether the
courts which subsequently enforce the statutes which the Court sustains
will employ the same brand of “scienter” as the Court; if not, and if
“scienter” was essential to the Court’s holding, then of course the statute
which is constitutional is not being administered and the statute which is
being administered is not constitutional. In any event, “scienter” has
become a recognized element of the lore of vagueness, and represents at
its best, a tool to be designedly used in the service of other ends; at its
worst, a port of entry for the ethical predilections of the then sitting Court.
Anthony G. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court,
109 U. PA. L. REV. 67, 87 n.98 (1960) (citations omitted) (cited in Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 n.14 (1982)).
The Supreme Court, at least on one occasion, has invoked the proposition that a
scienter requirement reduces the threat of vagueness particularly as compared to the
dangers posed by strict liability offenses, which require no proof of mens rea to
establish guilt. See Colautti, 439 U.S. at 395-97. In Colautti, the Court expressed the
concept not only through the positive statement that the presence of a scienter
requirement mitigates constitutional vagueness concerns, but through the inverse, that
“[t]he lack of any scienter requirement exacerbates the uncertainty of the statute.” Id. at
401. The Court cautioned that, “[b]ecause of the absence of a scienter requirement in
the provision . . . the statute is little more than ‘a trap for those who act in good faith.’”
Id. at 395 (quoting United States v. Ragen, 314 U.S. 513, 524 (1942)).
Turning to the instant case, the Majority notes that the designer drug provision
prohibits the “knowing or intentional manufacture, distribution, possession with intent to
[J-124-2016] [MO: Saylor, C.J.] - 13
distribute, or possession of a designer drug.” 35 P.S. § 780-113(a)(36) (emphasis
added). The Majority explains that “[s]cienter requirements of this nature help alleviate
vagueness concerns, both with regard to the adequacy of notice of the proscribed
conduct and as a means of limiting prosecutorial discretion.” Maj. Op. at 26 (citations
omitted). As discussed above, there is certainly precedential support for this
proposition. However, if the scienter provision of 35 P.S. § 780-113(a)(36) helps to
rescue the definition of a designer drug from a finding of vagueness, the same logic
should apply to 35 P.S. § 780-113(a)(30) as it relates to the term “analogue,” which the
Majority concludes is unconstitutionally vague.
Admittedly, 35 P.S. § 780-113(a)(30) does not use the same scienter language
as its designer drug counterpart,6 but we never have held that the manufacture,
delivery, or possession with intent to deliver a controlled substance is a strict liability
offense. Indeed, construing the statute in Commonwealth v. Rambo, 412 A.2d 535, 537
(Pa. 1980), we relied upon the definition of “possession” provided by Subsection 301(c)
6
The crimes are defined, in relevant part, as follows:
(a) The following acts and the causing thereof within the Commonwealth
are hereby prohibited:
* * *
(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance . . . or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.
* * *
(36) The knowing or intentional manufacture, distribution,
possession with intent to distribute, or possession of a designer
drug. . . .
35 P.S. § 780-113(a)(30), (36).
[J-124-2016] [MO: Saylor, C.J.] - 14
of the Crimes Code, which defines the term as “an act, within the meaning of this
section, if the possessor knowingly procured or received the thing possessed or was
aware of his control thereof for a sufficient period to have been able to terminate his
possession.” 18 Pa.C.S. § 301(c). We held that “[s]uch knowledge is required by
statute and our case law in order to prove possession of a controlled substance.”
Rambo, 412 A.2d at 537; accord Commonwealth v. Valette, 613 A.2d 548, 549-50 (Pa.
1992) (“In drug possession cases, the Commonwealth must prove that a defendant had
knowing or intentional possession of a controlled substance . . . .”). Furthermore,
Subsection 302(c) of the Crimes Code provides a default scienter requirement where
such a term is not otherwise specified by a criminal statute. 18 Pa.C.S. § 302(c)
(“When the culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts intentionally, knowingly
or recklessly with respect thereto.”). Accordingly, 35 P.S. § 780-113(a)(30) does not
define the manufacture, delivery, or possession with intent to deliver a controlled
substance analogue as a strict liability offense—the statute requires proof of scienter. If
the scienter requirement of 35 P.S. § 780-113(a)(36) helps to “alleviate vagueness
concerns” with regard to the definition of a designer drug, Maj. Op. at 26, the fact that
35 P.S. § 780-113(a)(30) also requires proof of scienter should mitigate the vagueness
of the term “analogue” in the same manner.
Ultimately, even if the scienter requirement in the charging statute helps to
alleviate concerns about the vagueness of the definition of a designer drug, it does not
help enough. At most, the scienter requirement may constitute a “means of limiting
prosecutorial discretion,” Maj. Op. at 26, in that it makes the elements of the crime more
difficult to prove, particularly if it necessitates that a “defendant must know that the
chemical he possesses has a molecular structure substantially similar to that of a
[J-124-2016] [MO: Saylor, C.J.] - 15
scheduled drug.” Maj. Op. at 27. Nevertheless, the scienter requirement does not aid
in the provision of “fair warning” to the ordinary citizen that a given substance falls within
the definition. The statute must allow an individual to gauge the legality of conduct in
the first place, and the words “knowing” and “intentional” do not provide the standards
that are necessary for the definition to be made amenable to intelligible or consistent
application, by either those who are subject to it or those who seek to enforce it. A
mens rea term is not a Rosetta Stone that enables one to decipher a statute that is
inherently indeterminate. The problem remains that “chemical structure substantially
similar to that of a controlled substance,” 35 P.S. § 780-102(b), is an amorphous and
unduly subjective standard, which lies beyond the scope of knowledge attributable to an
ordinary citizen, and which cannot be ascertained reliably, even by the most qualified of
experts. Terms like “knowing” and “intentional” shed no additional light upon the
meaning of that definition. In the words of Justice Anthony Kennedy: “Scienter cannot
save so vague a statute as this.” Hill, 530 U.S. at 774 (Kennedy, J., dissenting).
I recognize that the designer drug statute is a product of the General Assembly’s
ongoing struggle to prohibit newly-developed and potentially dangerous intoxicants. To
be sure, this area of criminal law is in constant flux. I have little doubt that, in some
secluded laboratory somewhere, almost immediately after a substance is criminalized,
fiendish chemists set to work developing a substance similar in effect, but distinct in
identity. Undoubtedly, the designer drug statute targets such substances, even those
yet to be invented. I understand that the General Assembly sought to get ahead of
these manufacturers, rather than always playing catch-up to ever-changing technology.
Still, it is the General Assembly’s duty to define the law. Although “we can never expect
mathematical certainty from our language,” Grayned, 408 U.S. at 110, due process
requires clarity and specificity in the exercise of the legislative function, particularly in
[J-124-2016] [MO: Saylor, C.J.] - 16
regard to laws with penal effect. This Court may well be able to discern the purpose
underlying an enactment. But it is not our prerogative to fill in the gaps, to improve
creatively upon an unduly vague statutory standard, in order to “get us there.”
I appreciate the import of the legislative purpose that animates the designer drug
statute. I recognize as well the difficulty of drafting language sufficiently tailored to
achieve that worthwhile purpose. But importance of purpose and difficulty of drafting do
not relieve the General Assembly of its obligation to define criminal offenses in a
manner that enables ordinary people to gauge whether their conduct is lawful, and in a
fashion that does not encourage arbitrary or discriminatory enforcement. A statute
cannot leave the definition of criminality itself to the subjective determination of a police
officer, a prosecutor, a judge, or a jury.
Many years ago, Chief Justice Morrison Waite cautioned against the pernicious
effect of such a broad grant of legislative authority:
It would certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the courts to step
inside and say who could be rightfully detained, and who should be set at
large. This would, to some extent, substitute the judicial for the legislative
department of the government.
United States v. Reese, 92 U.S. 214, 221 (1875). Because 35 P.S. § 780-102(b)
defines a designer drug in an impermissibly vague manner, it casts such an overbroad
net. Therefore, I agree with the trial court’s determination that 35 P.S. § 780-102(b) was
unconstitutional as applied to PB-22, and I would affirm the trial court’s order in its
entirety. I respectfully dissent.
Justices Todd and Donohue join this concurring and dissenting opinion.
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