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Commonwealth v. Herman

Supreme Court of Pennsylvania

May 25, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
JOEY WAYNE HERMAN, Appellee

          ARGUED: December 7, 2016

         Appeal from the Order of the York County Court of Common Pleas, Criminal Division, at No. CP-67-CR-0002400-2014 dated 2/10/15

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          SAYLOR CHIEF JUSTICE.

         This is a direct appeal by the Commonwealth in a case involving Appellee's alleged possession and delivery of a chemical compound claimed to be either a controlled substance or a designer drug. A central issue is whether the portions of the Controlled Substance, Drug, Device and Cosmetic Act under which Appellee was charged - relating to "analogues" of scheduled controlled substances, as well as "substantially similar" designer drugs - are unconstitutionally vague.

         I. Background

         At all relevant times, Appellee owned and operated a smoke shop in York County. On April 17, May 30, and July 11, 2013, undercover police officers entered the shop and purchased small packets of substances having brand names such as "Winter Haze" and "V-8 Air Freshener." Laboratory testing performed for the Commonwealth by Michael Coyer, PhD - a forensic toxicologist and the Commonwealth's eventual expert witness - revealed that these products contained the chemical PB-22, which the prosecution alleged to be either a controlled substance as an "analogue" of the known synthetic cannabinoid JWH-018, [1] or a designer drug. On July 15, 2013, the police executed search warrants at Appellee's residence and business. At each location they seized additional packets of substances containing PB-22. Appellee was charged, under the Controlled Substance, Drug, Device and Cosmetic Act (the "Act"), [2] with three counts of delivery of a controlled substance, one count of possession with intent to deliver a controlled substance, and one count of possession, or possession with intent to distribute, a designer drug. See 35 P.S. §780-113(a)(30), (36).[3]

         Before describing the procedural history, it is helpful to review the legislation, including a material revision made in early July 2013, between the second and third undercover purchases. See Act of July 2, 2013, P.L. 242, No. 40 ("Act 40"). In relevant part, the Act defines a controlled substance as a substance listed in Schedules I through V of the Act. See 35 P.S. §780-102.[4] These are known as "scheduled" drugs. See, e.g., 40 P.S. §908-1. It defines designer drug 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 . . . or that produces an effect substantially similar to that of a controlled substance in Schedules I, II or III." 35 P.S. §780-102.[5] The schedules are set forth in the Act, see 35 P.S. §780-104, although only Schedule I is relevant to this dispute.[6]

         Act 40 amended the description of Schedule I. In both the pre- and post-amendment timeframes, Schedule I included JWH-018 by name as a synthetic cannabinoid. See 35 P.S. §780-104(1)(vii)(4) (2011); id. §780-104(1)(vii)(2)(B) (2013). In the pre-amendment version, Schedule I encompassed all "analogues" of the named synthetic cannabinoids. See 35 P.S. §780-104(1)(vii) (2011) (subsuming within Schedule I "[s]ynthetic cannabinoids or any material, compound, mixture or preparation which contains . . . the following substances, including their analogues . . .: . . . (4) JWH-018"). With the Act 40 revisions, Schedule I now encompasses compounds which are synthetic cannabinoids falling into thirteen specified "chemical designations, " as well as analogues of those compounds. Thus, Schedule I now includes:

Synthetic cannabinoids, including any material, compound, mixture or preparation that is not listed as a controlled substance in Schedules I, II, III, IV and V, . . . which contains any quantity of the following substances [or] their . . . analogues, . . . whenever the existence of these . . . analogues . . . i[s] possible within the specific chemical designation . . .

35 P.S. §780-104(1)(vii) (2013) (emphasis added).[7] Only the second specified chemical designation is potentially relevant to this matter:

2. Naphthoylindoles or any compound containing a 3-(-1-naphthoyl) indole structure with substitution at the nitrogen atom of the indole ring whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. This shall include the following: . . . (B) JWH-018. . . .

Id. §780-104(1)(vii)(2)(B) (2013).[8] Notably, the Act has never provided a definition of "analogue" or, for the designer-drug provision, "substantially similar."

         Appellee filed an omnibus pre-trial motion which included a request for habeas corpus relief. See Commonwealth v. Hock, 556 Pa. 409, 414-15 & n.2, 728 A.2d 943, 945 & n.2 (1999) (noting that a pre-trial habeas petition tests whether the Commonwealth's evidence is sufficient to make out a prima facie case of guilt). Appellee made several discreet assertions in support of his habeas request.

         First, he argued that both controlled-substance charges relating to dates after July 2, 2013 - i.e., the third delivery count and the possession count - should be dismissed because PB-22 is not a controlled substance under the revised Schedule I. Appellee reasoned that JWH-018 is a naphthoylindole, whereas PB-22 is an ester.[9] As the two compounds fall into different structural classes, Appellee maintained, PB-22 could not be an analogue of JWH-018 for purposes of the amended Section 780-104(1)(vii), given that that version expressly classifies prohibited synthetic cannabinoids by "specific chemical designation." 35 P.S. §780-104(1)(vii) (2013). In this regard, Appellee proffered that the statutory phrase, "within the specific chemical designation, " id., should be understood to mean that the purported analogue must fall into the same structural classification. See Omnibus Pretrial Motion at 2-3. Notably, Appellee did not challenge the constitutional validity of the analogue provision in the revised statute.

         Appellee also advanced that the sole designer-drug charge should be dismissed for two reasons. First, he argued that the Commonwealth failed to offer any evidence that PB-22 has a chemical structure which is substantially similar to that of JWH-018, and that the Commonwealth's own evidence, including Dr. Coyer's lab reports, indicated that the physiological and toxicological properties of PB-22 are unknown - thus negating any claim that its effects are substantially similar to those of JWH-018. See Omnibus Pretrial Motion at 5. Alternatively, Appellee argued that the term "substantially similar" was void for vagueness as applied to the two compounds in question. See id.

         Finally, Appellee argued that, in the relevant scientific field, there is no consensus as to the definition of an "analogue" of a chemical compound, nor is there a generally-accepted methodology for determining whether one molecule is an analogue of another. As applied to this case, Appellee reasoned that, if scientists cannot agree on whether PB-22 is an analogue of JWH-018, the average citizen could not be on notice of such a relationship between the two chemicals and, therefore, that PB-22 is an illegal drug. That being the case, Appellee continued, it would offend due process, under the void-for-vagueness doctrine, for the Commonwealth to prosecute him under subsection 780-113(a)(30) for delivering PB-22 as an alleged controlled substance in the pre-July 2, 2013, timeframe. See id. at 3-4.[10]

         To summarize, then, Appellee made three essential contentions: (1) that Section 780-104(1)(vii) was vague as applied to PB-22 before July 2, 2013; (2) that PB-22 was not a prohibited substance under Section 780-104(1)(vii) after July 2, 2013; and (3) that the designer-drug provision, Section 780-113(a)(36), could not validly be applied to PB-22. Because subsection (a)(36) predicates culpability in the disjunctive on a substantially similar effect or chemical structure, this latter argument had two subparts: (a) since PB-22's effects were unknown, they could not possibly be proved to be substantially similar to those of JWH-018; and (b) either the Commonwealth did not satisfy its burden to demonstrate that PB-22 and JWH-018 shared a substantially similar chemical structure, or the term "substantially similar" was vague as applied to the structures of those two chemicals.

         The common pleas court held a hearing on the habeas motion at which Dr. Coyer testified as an expert for the Commonwealth and two expert witnesses testified on behalf of Appellee. Dr. Coyer opined, to a reasonable degree of scientific certainty, that PB-22 is an analogue of JWH-018. See N.T., Nov. 7, 2014, at 35. He conceded, however, that there was no definition of "analogue" in the relevant scientific field, but that he considered the term to mean a compound which "has a similar structure but may possess different properties." Id. at 36. In terms of methodology, Dr. Coyer indicated that he used a four-part process to arrive at this type of expert opinion: he visually compared two-dimensional diagrams of the molecules in question; he compared their potency or function; he reviewed his colleagues' unpublished reports, anecdotal evidence, and peer-reviewed articles, if any; and he drew upon his experience conducting chemical analyses in his capacity as a forensic toxicologist. See id. at 40-42. However, Dr. Coyer was unable to identify any peer-reviewed articles suggesting that his methodology was a generally-accepted means for determining whether one compound is an analogue of another. Finally, he clarified that his method did not employ a comparison of three-dimensional molecular illustrations. See id. at 51.

         Appellee's first expert witness was John W. Huffman, PhD, an organic chemist and professor emeritus at Clemson University who had been active in the cannabinoid field for decades. Dr. Huffman, for whom JWH-018 is named, created the compound when conducting federally-funded research into how such chemicals interact with the body's cannabinoid receptors. He agreed with Dr. Coyer that there was no scientific definition of "analogue" and that PB-22 and JWH-018 were in different structural classes. See id. at 61, 81-82. Therefore, Dr. Huffman opined that the two compounds were not analogues and did not have similar structures. See id. at 90-91. Referring to a peer-reviewed scientific paper, Dr. Huffman also noted, consistent with Dr. Coyer's lab reports, that scientists had no knowledge of PB-22's pharmacological or toxicological effects, or of whether the two chemicals have similar effects. That being the case, he continued, there was no agreement in the scientific community on whether PB-22 could properly be classified as a synthetic cannabinoid, see id. at 83-84, notwithstanding that one team of chemists had labeled it as such "a few years ago." Id. at 84. Dr. Huffman stated that he had never heard of anyone else using Dr. Coyer's four-part technique for discerning whether one molecule is an analogue of another. He testified that such methodology was not generally accepted in the scientific field, particularly as three-dimensional modeling, not two-dimensional diagraming, was the accepted standard for comparative analysis of molecular structures. See id. at 76-77, 81-82.

         Appellee also presented the expert testimony of Heather Harris, PhD, a forensic analytical chemist and chair of the Structure Subcommittee of the Advisory Committee for the Evaluation of Controlled Substance Analogues ("ACECSA"), a national scientific body. Dr. Harris explained that the mission of ACECSA - which also includes members of law enforcement agencies - is to develop methods for forensic chemists to use in discerning whether one chemical is an analogue of another. She testified that ACECSA had not yet developed such a methodology. See id. at 96. Dr. Harris also discussed an entity funded by the federal Drug Enforcement Agency called the Scientific Working Group for the Analysis of Seized Drugs ("SWGDRUG"), which publishes recommendations for chemists involved in testing controlled substances. She noted SWGDRUG includes an analogue subcommittee which had as yet been unable to devise a methodology for determining whether a particular chemical is an analogue of a controlled substance. See id. at 97-98. Dr. Harris additionally related that she had recently reviewed the scientific literature. Based on that review, she opined that Dr. Coyer's comparison methodology was not generally accepted in the scientific field. She added that she had been unable to locate any generally-accepted methodology. As well, Dr. Harris testified that there is also no commonly-accepted scientific definition of the phrase "substantially similar, " which she viewed to be a subjective term. Ultimately, she rendered her own professional opinion, to a reasonable degree of scientific certainty, that PB-22 and JWH-018 are not substantially similar. See id. at 102.

         The common pleas court granted Appellee's habeas motion and dismissed all charges against him.[11] In its Rule 1925(a) opinion, the court relied largely on the testimony of Drs. Hoffman and Harris. Based on such proofs, as well as portions of Dr. Coyer's testimony, the court determined that the public at large could not have been on notice that PB-22 was prohibited as either an analogue of JWH-018 or a compound with a chemical structure or effect substantially similar to that of JWH-018. The court thus found the relevant portions of the Act unconstitutionally vague as applied to PB-22. As such, it concluded that the Commonwealth had failed to make out a prima facie case because it could not show that the products in question were prohibited substances under the Act. See Commonwealth v. Herman, No. CP-67-CR-2400-2014, slip op. at 8-9 (C.P. York May 28, 2015). See generally Commonwealth v. McBride, 528 Pa. 153, 157-58, 595 A.2d 589, 591 (1991) (observing that, to make out a prima facie case, the government must demonstrate a crime was committed, probably by the accused).[12]

         The county court's decision is now on direct appeal to this Court. See 42 Pa.C.S. §722(7) (giving this Court exclusive appellate jurisdiction of common pleas court decisions ruling a statute unconstitutional).[13] At the heart of that decision is the court's holding that the Act is unconstitutionally vague as applied to PB-22.

         Presently, the Commonwealth argues that the common pleas court erred in granting relief based on a judicial finding that the terms "analogue" and "substantially similar" were unconstitutionally vague as applied. The Commonwealth maintains that the expert witnesses all confirmed that the two compounds, JWH-018 and PB-22, had structurally similar molecular components, albeit they differed regarding whether the two chemicals were sufficiently similar to meet statutory requirements. In the Commonwealth's view, whether they are sufficiently alike to be considered "substantially similar" or "analogues" is a question of fact for the jury to determine upon hearing expert testimony from both sides.[14] In this regard the Commonwealth urges that statutory words should be understood according to their common usage, see Brief for Appellant at 16 (quoting 1 Pa.C.S. §1903(a)), and that, here, the dictionary defines "analogue" as "[o]ne of a group of chemical compounds similar in structure but different in composition, " id. (quoting Random House Webster's College Dictionary 47 (2d ed. 2001)) - a definition that juries can comprehend and apply.

         Finally, the Commonwealth points to three unpublished United States District Court decisions rejecting a void-for-vagueness claim in situations where the defendants were charged under the federal Analogue Act, and the chemicals at issue were PB-22 and JWH-018, or some variant of them. See United States v. Hoyt, 2014 WL 5023093 (W.D. Va. Oct. 8, 2014), reprinted in Brief for Appellant at app. 27a; United States v. Bays, 2014 WL 3764876 (N.D. Tex. July 31, 2014), reprinted in Brief for Appellant at app. 34a; United States v. Johnson, 2014 WL 7330936 (D. Nev. Dec. 19, 2014), reprinted in Brief for Appellant at app. 47a.[15] It adds that a number of other jurisdictions have concluded that the terms "analogue" and "substantially similar" are not void for vagueness when applied to other controlled substances. See Brief for Appellant at 20-23 (citing cases). The Commonwealth maintains that these other decisions provide guidance and additionally militate in favor of reaching the same conclusion to maintain uniformity across jurisdictions. See id. at 18 (quoting 1 Pa.C.S. §1927 ("Statutes uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them.")).

         II. Analysis

         A. The void-for-vagueness doctrine

         The concept of unconstitutional vagueness arises from due process norms. See U.S. Const. amends. V, XIV; Welch v. United States, __U.S.__, __, 136 S.Ct. 1257, 1261-62 (2016) (observing that the void-for-vagueness doctrine is grounded in the Fifth Amendment with regard to the federal government, and the Fourteenth Amendment with regard to the States). It prevents the government from imposing sanctions under a criminal law that fails to give fair notice of the proscribed conduct. See Johnson v. United States, __U.S.__, __, 135 S.Ct. 2551, 2556 (2015) (citing Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858 (1983)); see also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843 (1972) ("Living under [the] rule of law entails various suppositions, one of which is that '[all persons] are entitled to be informed as to what the State commands or forbids.'" (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619 (1939) (second alteration in original))). Relatedly, the doctrine safeguards against arbitrary or discriminatory enforcement by the government, see FCC v. Fox Television Stations, Inc., 567 U.S. 239, __, 132 S.Ct. 2307, 2317 (2012), as well as jury verdicts "unfettered by any legally fixed standards as to what is prohibited by the statute." State v. Golston, 67 So.3d 452, 463 (La. 2011). Still, due process recognizes that because we are "[c]ondemned to the use of words, we can never expect mathematical certainty" in legislative draftsmanship. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300 (1972). Ultimately, the inquiry is whether the law "forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application[.]" Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127 (1926).

         Where, as here, a vagueness challenge does not involve First Amendment freedoms, it is "examined in the light of the facts of the case at hand, " United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319 (1975) (internal quotation marks and citation omitted), and "the statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1858 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 245 (1976). Thus, we consider the record developed in the common pleas court and evaluate whether Appellee met his burden to demonstrate that the statutory terms in question are unconstitutionally vague as applied to the chemicals JWH-018 and PB-22. In doing so, we bear in mind that statutes enjoys a strong presumption of validity and will only be declared void if they clearly and plainly violate the Constitution, with all doubts resolved in favor of a finding of constitutionality. See Commonwealth v. Bullock, 590 Pa. 480, 487, 913 A.2d 207, 211-12 (2006). See generally In re Adoption of E.M.A., 487 Pa. 152, 155, 409 A.2d 10, 11-12 (1979) (noting that this presumption pertains in an as-applied vagueness challenge), superseded by statute on other grounds, 23 Pa.C.S. §2701(7); In re Adoption of R.B.F., 569 Pa. 269, 281, 803 A.2d 1195, 1202 (2002). We defer to the common pleas court's findings of fact that are supported by the record, but we review questions of law - including the Act's constitutionality - de novo. See Commonwealth v. Davidson, 595 Pa. 1, 11, 938 A.2d 198, 203 (2007).

         B. The controlled-substance analogue counts prior to Act 40

         As most of the charges against Appellee involve the claim that PB-22 is a chemical analogue of JWH-018, and the bulk of the pre-trial hearing testimony related to the term "analogue, " we first question whether the Act's use of the term prior to the Act 40 amendments was unconstitutionally vague as applied to those two chemicals.[16] As an initial matter, although the federal Analogue Act defines "analogue" in terms of a substantially similar chemical structure, see 21 U.S.C. §802(32)(A)(i), and a number of our sister States have legislation containing a similar definition of a controlled substance analogue, see, e.g., Cal. Health & Safety Code §11401(b); Colo. Rev. Stat. §18-18-102(6); 720 Ill. Comp. Stat. 570/401; Kan. Stat. §§65-4101(g), 21-5701(b); La. Rev. Stat. §40:961(8); Ohio Rev. Code §3719.01(HH); Tex. Health & Safety Code §§481.002(6), 481.102, the Pennsylvania enactment provides no such definition or any other express guidance. Additionally, the Act defines designer drugs in such terms and clarifies that designer drugs are not within the set of chemicals which constitute controlled substances. See 35 P.S. §780-102. Thus, although many jurisdictions appear to equate controlled substance analogues with a certain group of compounds whose chemical structure is substantially similar to that of the controlled substance in question, this type of equivalence is not reasonably supported by the express terms of the Act.

         Such a lack of guidance would not be especially problematic if an accepted meaning of the word "analogue" existed within the relevant scientific community, or if there was general acceptance that PB-22 is, in fact, an analogue of JWH-018. However, the expert testimony for both parties at the habeas hearing confirmed that there is no widely accepted definition of the term "analogue" as applied to these types of organic molecules. See N.T., Nov. 7, 2014, at 34-35 (testimony of Dr. Coyer); id. at 82 (testimony of Dr. Huffman). The testimony also established that JWH-018 and PB-22 are in different structural classes, see supra note 9, and Dr. Huffman testified that chemicals in different structural classes are not analogues of one another - and that, specifically, PB-22 is not an analogue of JWH-018. See id. at 90-91. Dr. Huffman did clarify on cross-examination that the more particularized term "structural analogue" is sometimes used to refer to compounds that can be synthesized from a common parent molecule, and that the phrase can also refer to chemicals with the same basic molecular structure. See id. at 88. And Dr. Coyer opined that PB-22 is an analogue of JWH-018 insofar as its structure is concerned. See id. at 35-37. As to whether PB-22 is a synthetic cannabinoid in terms of mimicking the effects of known cannabinoids, however, Dr. Coyer was only able to state that some "initial testing may have been done" to ascertain its effects as such, id. at 37, and that in informal conversations some chemists group PB-22 together with JWH-018. See also id. at 38 (explaining that there was "a talk" focusing on whether a group of new compounds, including PB-22, were synthetic cannabinoids, but he did not wish to speak about that talk because it was only "a meeting").

         Particularly in light of the admitted lack of scientific studies as to PB-22's effects within the body, we find this type of evidence to be insufficient to establish that there is any agreement in the scientific community that PB-22 is a known synthetic cannabinoid. Moreover - and more to the point - it appears there is no scientifically accepted method for ascertaining whether PB-22 is an analogue of JWH-018. In this respect, Appellee's second expert, Dr. Harris, was in a unique position to know whether, from a legal perspective, scientists are aware of any methodology to determine whether a compound under investigation can be considered an analogue of a controlled substance. She belonged to ACECSA, a national scientific committee specially dedicated to discovering or fashioning such methods for law enforcement agencies to use. Dr. Harris testified that, as of the date of the hearing, ACECSA had not yet devised such a method. See id. at 96. She added that SWGDRUG's analogue subcommittee had been similarly unable to formulate any such methodology, ultimately concluding that "it comes down to a subjective determination dependent not only upon what you are evaluating, but also the experience within [sic] the molecule itself." Id. at 97.

         Under these circumstances, we find resonance in the argument Appellee made in his habeas motion suggesting that scientists in the relevant field have not been able to agree on a method to determine analogue status and cannot agree on whether PB-22 is an analogue of JWH-018 - and if that is true of scientists, it is difficult to see how the average citizen can be on notice of such status. The court in United States v. Forbes, 806 F.Supp. 232 (D. Colo. 1992), faced a similar situation with regard to alphaethyltryptamine ("AET"), which the government claimed was a controlled-substance analogue of the scheduled drugs dimethyltryptamine ("DMT") and diethyltryptamine ("DET"). After hearing pre-trial expert testimony from both sides not unlike that adduced in the present case, the court stated that "[t]he scientific community cannot even agree on a methodology to use" to determine analogue status under the federal statute. Id. at 237 (emphasis added). Thus, the court concluded, "a defendant cannot determine [such status] in advance of his contemplated conduct[.]" Id.

         The same observations apply to the question of whether PB-22 is an analogue of JWH-018 under the Act (at least prior to its Act 40 revisions). The average citizen would necessarily have to "guess at" PB-22's status and "differ as to [the] application" of the analogue prohibition contained in Section 780-104(1)(vii). Connally, 269 U.S. at 391, 46 S.Ct. at 127. Consequently, we agree with Appellee and the common pleas court that the pre-Act 40 statute was unconstitutionally vague as applied to PB-22 and JWH-018.[17]

         Nor are we persuaded by the Commonwealth's assertion that the vagueness question can be dispensed with by characterizing as a jury question whether PB-22 is an analogue of JWH-018. We need not address whether PB-22's analogue status could theoretically be a question for the fact-finder if the Act were constitutional. The point here is that the Commonwealth's argument starts from the assumption that the act is not vague as applied to PB-22, which is the very issue before this Court.

         We also differ with the government's suggestion that because the Act is part of a uniform law, Section 1927 of the Statutory Construction Act directs that it be construed uniformly with similar laws of other jurisdictions. Although the Act is based on the Uniform Controlled Substances Act of 1970, see 35 P.S. Ch. 6, Table, Section 1927 does not necessarily apply. For one thing, neither the Act's title nor its provisions suggest an intention to conform Pennsylvania's drug regulations to those of other jurisdictions. See Allegheny Cnty. v. Rendell, 580 Pa. 149, 166 n.6, 860 A.2d 10, 21 n.6 (2004) (explaining that Section 1927 only pertains where the substantive language of the enactment indicates that it is "part of a uniform enactment among several states"). Just as important, many states have now adopted a later version of the uniform act which was revised to include a definition of "controlled substance analog" which is expressed in terms of substantial similarity to a controlled substance, see Unif. Controlled Substances Act §101(3) (1990) - in other words, which tracks the Act's definition of a designer drug. See supra note 17. Other state decisions, such as those highlighted by the Commonwealth, are based on the 1990 definition and, as such, do not support the Commonwealth's uniformity argument relative to the Act's "analogue" provision. See, e.g., People v. Lucero, 381 P.3d 436, 440 (Colo.App. 2016); State v. Barnes, 64 P.3d 405, 408 (Kan. 2003); State v. Smith, 525 N.W.2d 264, 267 (Wis. 1995). See generally Richard L. Braun, Uniform Controlled Substances Act of 1990, 13 Campbell L. Rev. 365, 367 (1991) (confirming that the 1990 uniform act's controlled-substance analogue provision was drafted to encompass designer drugs).

         Finally, and as noted, the Commonwealth highlights several federal decisions, including three United States District Court opinions, which hold that, under the federal Analogue Act, PB-22 is an analogue of JWH-018. However, those disputes do not purport to address the salient issue before this Court because, as with the 1990 version of the uniform act, they relate to the federal Analogue Act's definition of a "controlled substance analogue" as a chemical having a substantially similar chemical structure to a scheduled drug. See 21 U.S.C. §802(32)(A)(i). Their present relevance, if any, is thus limited to the designer-drug charge (discussed below) as the Act defines designer drug in similar terms, but it provides no definition of "analogue."

         Accordingly, we hold that in the pre-Act 40 timeframe the analogue provision was unconstitutionally vague as applied to PB-22 as an alleged analogue of JWH-018. That being the case, the common pleas court acted properly in dismissing the charges lodged against Appellee based on the April and May 2013 undercover purchases.

         C. The controlled-substance analogue counts after Act 40

         Appellee was also charged with delivery of a controlled substance (PB-22) based on the July 11, 2013, undercover purchase, and with a possession with intent to deliver a controlled substance based on the July 15, 2013, packet seizures. Both of those charges were lodged pursuant to the Act as amended by Act 40. As explained, Appellee never claimed in his habeas motion that the amended statute's use of the term "analogue" was unconstitutionally vague as applied. Rather, he maintained that PB-22 was not a prohibited substance inasmuch as it was excluded from Schedule I due to the statute's use of specific chemical designations. He asserted, in this respect, that PB-22 is not in any of the listed designations, and specifically, is not the same chemical designation as JWH-018. See N.T., Nov. 7, 2014, at 32-33, 108-10 (reflecting defense counsel's repetition at the habeas hearing of this non-constitutional, interpretive basis for challenging the post-July 2 controlled-substance charges). On appeal, Appellee continues to forward this same argument as his only contention with regard to these charges. See Brief for Appellee at 4-8.[18]

         As described above, the statutory description of Schedule I cannabinoids as stated in the revised Act only prohibited certain chemicals and their analogues within thirteen enumerated chemical designations - the relevant one being naphthoylindoles inasmuch as it includes JWH-018, see 35 P.S. §780-104(1)(vii)(2)(B) (2013) - and a "catchall" category of CB1 agonists, which is not presently relevant. See supra note 8. The prosecution's expert confirmed that PB-22 is in a different chemical classification than JWH-018, and that it falls within a class of compounds known as indole carboxylic acids rather than naphthoylindoles. See N.T., Nov. 7, 2014, at 47. This has now been confirmed by the General Assembly in its most recent revision to the Act, see Act of June 8, 2016, P.L. 258, No. 37 ("Act 37"), in which the legislative body named PB-22 as a scheduled controlled substance under that very chemical designation. See 35 P.S. §780-104(1)(vii)(2.2) (2016) (listing PB-22 as one of a group of Schedule I controlled substances within the chemical designation "[i]ndole carboxylic acids").

         Accordingly, the Commonwealth failed to identify a valid statutory basis on which Appellee could be charged with delivery of a controlled substance, or possession with intent to deliver a controlled substance, based his conduct after July 2, 2013. We therefore affirm the common pleas court's dismissal of the relevant counts against Appellee, although we disagree with its analysis insofar as it suggested that the post-amendment Act's use of "analogue" is unconstitutionally vague.[19] See Commonwealth v. Flanagan, 578 Pa. 587, 611, 854 A.2d 489, 503 (2004) (explaining that "this Court has the ability to affirm a valid judgment or order for any reason appearing as of record"). By reaching our holding on these grounds, we not only resolve Appellee's claim on the terms in which he has framed it, we also "adhere to the sound tenet of jurisprudence that courts should avoid constitutional issues when the issue at hand may be decided upon other grounds." In re Fiori, 543 Pa. 592, 600, 673 A.2d 905, 909 (1996) (citing Rescue Army v. Mun. Court, 331 U.S. 549, 568-69, 67 S.Ct. 1409, 1419-20 (1947)); accord Threlkeld v. State, 558 S.W.2d 472, 474 (Tex. Crim. App. 1977) ("This Court will not pass on the [constitutional] validity of any part of the Controlled Substances Act which is not shown to have been violated[.]" (citation omitted)).

         D. The designer-drug count and the "substantially similar" descriptor

         Finally, Appellee was charged with a single count of possession with intent to distribute, or possession, of a designer drug. To review, the Act prohibits the "knowing or intentional . . . possession with intent to distribute, or possession[, ] of a designer drug, " 35 P.S. §780-113(a)(36); see supra note 3, which is defined in relevant part as "a substance other than a controlled substance that is intended for human consumption and that . . . has a chemical structure substantially similar to that of a controlled substance in Schedules I, II or III . . . or that produces an effect substantially similar to that of a controlled substance in Schedules I, II or III." Id. §780-102.[20]

         Before the common pleas court, Appellee claimed an entitlement to habeas relief on this charge solely on the basis that the "substantially similar" descriptor was vague. The common pleas court agreed with Appellee and expressed its rationale in succinct terms. The court found that "experts have been unable to reach an agreement on a method for analyzing and determining the similarities between the chemical structures . . . of PB-22 and JWH-018." Herman, No. CP-67-CR-2400-2014, slip op. at 9. It concluded that "[t]his disagreement renders the designer drug statute unconstitutionally vague." Id. In his appellate brief, Appellee only argues that that the effects of PB-22 are unknown, see Brief for Appellee at 8-9, which is not in dispute. Appellee appears to overlook that, unlike the federal CSA, the Act's definition of designer drug is phrased in the disjunctive. Thus, he may still be liable under Section 780-113(a)(36) if PB-22's chemical structure is substantially similar to that of JWH-018. The salient issue is whether that term - "substantially similar" - is vague as applied to the chemical structures of PB-22 and JWH-018.

         Although the bulk of the testimony at the habeas hearing focused on the term "analogue, " the county court's finding that experts disagree on a method for determining substantial similarity as between chemical structures is supported by the record.[21]Initially, the experts agreed that, although the overall molecular structures of the two chemicals were different, they had similar components. See N.T., Nov. 7, 2014, at 25, 38-39 (testimony of Dr. Coyer), 85-86 (testimony of Dr. Huffman). Dr. Coyer went further and opined that their components were "very similar, " id. at 25, and his testimony as a whole was acknowledged by Appellee as subsuming an expression that the overall molecular structures were substantially similar. See id. at 99. The defense experts disagreed. Dr. Huffman opined that the two molecules did not have "similar structures, " id. at 91; see also id. at 86 ("[T]he total structures are different."), and Dr. Harris indicated that they were not "structurally similar as a whole." Id. at 99. Just as important, both defense experts highlighted the importance of three-dimensional comparisons in reaching a conclusion on structural similarity. See id. at 77 (Dr. Huffman), 100 (Dr. Harris). Dr. Harris continued by expressing that "substantially similar" is not a scientific term and "substantial" means different things to different people. Id. at 101.

         We have difficulty, however, with the common pleas court's ultimate holding. While the term "analogue" may be somewhat nebulous (particularly in a scientific setting), the concept of similarity is well known to persons of ordinary intelligence, and we see no reason why such individuals would have difficulty applying it to evidence of the molecular structures of PB-22 and JWH-018. Accord United States v. McKinney, 79 F.3d 105, 108 (8th Cir. 1996) (rejecting a claim that the federal Analogue Act's use of "substantially similar" was vague, and explaining 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 structures of the two substances were substantially similar"), judgment vacated on other grounds, 520 U.S. 1226, 117 S.Ct. 1816 (1997). The fact that the parties' experts disagreed on the ultimate issue of substantial similarity in this case is not dispositive, particularly given the obvious visual similarities in the two-dimensional diagrams of the molecules.[22]Accord United States v. Klecker, 348 F.3d 69, 72 (4th Cir. 2003) (where diagrams of the two molecules at issue revealed "considerable similarities, " holding that the "substantially similar" standard was not vague as applied notwithstanding that the parties' experts disagreed on the question of whether they were substantially similar). The "substantial" qualifier speaks to the degree of similarity needed to bring a substance within the designer drug prohibition. Still, "substantial similarity" is not a scientific concept, accord Controlled Substance Analogues 4, and although that adjective may be qualitative, the Supreme Court has stressed that it does not "doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct" - noting, further, that "'the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree.'" Johnson, __U.S. at__, 135 S.Ct. at 2561 (quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781 (1913)); see 21 Am. Jur. 2d §17 (2017).

         We also observe that the vast weight of authority from other jurisdictions supports the conclusion that "substantially similar" is not a vague term per se when used in comparing two chemical compounds. The federal circuit courts which have examined this question have generally found that use of the "substantially similar" phraseology in the controlled substance arena does not suffer from unconstitutional vagueness.[23] This view is also held by most appellate courts in other states.[24] As applied specifically to PB-22 and JWH-018, moreover, Appellee has not drawn our attention to any court in any jurisdiction which has held that the substantially-similar descriptor is unconstitutionally vague; as noted above, the Commonwealth has included in its appendix three United States District Court decisions which have held that the federal ...


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