J-S24027-16

                              2016 PA Super 139

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

JOEY WAYNE HERMAN,

                         Appellee                  No. 479 MDA 2015


              Appeal from the Order Entered February 10, 2015
                In the Court of Common Pleas of York County
                         Criminal Division at No(s):
                          CP-67-CR-0002400-2014


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

OPINION BY BOWES, J.:                               FILED JUNE 29, 2016

     This is a Commonwealth appeal from the trial court’s order granting

Appellee’s motion for habeas corpus relief.   Since the trial court declared

some provisions of the Controlled Substance, Drug, Device and Cosmetic Act

(“the Act”), 35 P.S. §§ 780-101 et seq., unconstitutionally vague, we

transfer this appeal to our Supreme Court.

     This case concerns a chemical compound designated PB-22.           The

Commonwealth charged Appellee, Joey Wayne Herman, with, inter alia,

possession with intent to deliver a controlled substance (PB-22),1 and




1
  The Act prohibits “the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person not registered
under this act[.]” 35 P.S. § 780-113(a)(30).
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possession of a designer drug (PB-22).2 The Commonwealth alleged PB-22

constituted a controlled substance because it is an analogue of the

substance JWH-108 within the meaning of 35 P.S. § 780-104(1)(vii). That

part of the Act classifies certain compounds and their analogues, including

JWH-108, as Schedule I controlled substances.3

      Appellee filed an omnibus pre-trial motion, which included a request

for habeas corpus relief.   The trial court held a hearing and both sides

presented expert testimony as to whether the drugs in question were

controlled substances as defined by the Act. Relief was granted on February

10, 2015, by Order of court without an accompanying opinion.              The

Commonwealth filed a timely notice of appeal and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court authored its Rule 1925(a) opinion,

which made it abundantly clear that all charges were dismissed on the

grounds that several sections of the Act are unconstitutionally vague. The

court stated:

2
   The Act criminalizes the “manufacture, distribution, possession with intent
to distribute, or possession of a designer drug.” 35 P.S. § 780-113(a)(36).
3
    Two different versions of this statute were in effect at the time of the
alleged crimes. The current version became effective July 2, 2013. The
Commonwealth alleged Appellee delivered PB-22 both before and after that
date. Part of the arguments concerned whether PB-22 is a synthetic
cannabinoid analogue within the meaning of the statute at both, either, or
neither time period.



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J-S24027-16



    In this case, even the experts do not agree on a scientific definition
    of the term analogue. The Commonwealth’s expert testimony was
    completely devoid of any evidence of a commonly accepted
    definition of analogue. The Defendant’s experts, including the
    creator of JWH-018, testified that the scientific community does not
    agree on the definition of the term analogue or the method of
    determining whether two substances are analogues of each other.
    This begs the question: if the experts are unable to formulate a
    meaning of the term, how is the general public expected to be on
    notice that something is proscribed? The only logical conclusion
    that can be drawn from the evidence elicited in this case is
    that The Controlled Substance Act is unconstitutionally
    vague.

    Viewing the evidence in the light most favorable to the
    Commonwealth, the Commonwealth failed to prove a prima facie
    case that the Defendant committed an offense. After reviewing
    the evidence presented at the [h]abeas [h]earing and the
    briefs filed by both parties, the [c]ourt determined that the
    statute defining Schedule I controlled substances is
    unconstitutionally vague. The Commonwealth could not prove
    that the PB-22 sold or seized is a controlled substance prohibited by
    The Controlled Substance Act. Therefore, the [c]ourt did not err
    when it dismissed all charges.

Trial Court Opinion, 5/28/15, at 7-8 (emphases added).        The court also

determined that the definition of designer drug set forth in 35 P.S. § 780

102(b)4 is unconstitutionally vague since experts cannot “determin[e] the

similarities between the chemical structures and effects of PB-22 and JWH-

018.” Trial Court Opinion, 5/28/15, at 9.

    This appeal is a challenge to the grant of the pre-trial writ of habeas

corpus. Our review is de novo, as the question of whether the evidence is

4
  The relevant portion defines designer drug as “a substance other than a
controlled substance . . . that either has a chemical structure substantially
similar to that of a controlled substance . . . or that produces an effect
substantially similar to that of a controlled substance[.]”

                                    -3-
J-S24027-16



sufficient to establish a prima facie case of the charged crimes is a question

of law. Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005). However,

it is clear the trial court found that the Commonwealth could not meet its

burden due to the fact that the applicable provisions of the Act were

constitutionally defective. The trial court’s relief is inextricably tied to that

finding, and we do not have jurisdiction to review it. Rather:

    The Supreme Court shall have exclusive jurisdiction of appeals from
    final orders of the courts of common pleas in the following classes
    of cases:
    ...

    (7) Matters where the court of common pleas has held invalid as
    repugnant to the Constitution, treaties or laws of the United States,
    or to the Constitution of this Commonwealth, any treaty or law of
    the United States or any provision of the Constitution of, or of any
    statute of, this Commonwealth, or any provision of any home rule
    charter.

42 Pa.C.S. § 722. Thus, jurisdiction of the instant appeal properly lies in our

Supreme Court.     Where an appeal within the exclusive jurisdiction of a

tribunal is mistakenly filed in the wrong court, the proper course is to

transfer the appeal to the correct judicial body. The Judicial Code provides

that:

    A matter which is within the exclusive jurisdiction of a court or
    magisterial district judge of this Commonwealth but which is
    commenced in any other tribunal of this Commonwealth shall be
    transferred by the other tribunal to the proper court or magisterial
    district of this Commonwealth where it shall be treated as if
    originally filed in the transferee court or magisterial district of this
    Commonwealth on the date when first filed in the other tribunal.




                                      -4-
J-S24027-16



42 Pa.C.S. § 5103(a); See Commonwealth v. Noel, 857 A.2d 1283, 1285

(Pa. 2004) (Superior Court relinquished jurisdiction and transferred case to

the Pennsylvania Supreme Court upon Commonwealth appeal from trial

court’s finding that a statute was unconstitutionally vague).

      We   therefore   transfer   this    appeal   to   the   Supreme   Court   of

Pennsylvania. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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