                            [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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