[J-124-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

JOEY WAYNE HERMAN,

Appellee

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No. 74 MAP 2016

Appeal from the Order of the York 

County Court of Common Pleas, 

Criminal Division, at No. CP-67-CR0002400-2014 dated 2/10/15

ARGUED: December 7, 2016

OPINION

CHIEF JUSTICE SAYLOR DECIDED: May 25, 2017

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
[J-124-2016] - 2

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

 

1 Synthetic cannabinoids are artificial compounds that mimic the effects of natural 

cannabinoids found in marijuana by interacting with the body’s cannabinoid receptors, 

denominated as “CB1” and “CB2.” See generally United States v. Hossain, 2016 WL 

70583, *1 (S.D. Fla. Jan. 5, 2016) (sentencing order) (discussing the operation of 

synthetic cannabinoids in the human body). Information in the record suggests that the 

CB1 receptor is responsible for the body’s psychoactive response, whereas the CB2 

receptor “is associated with the immune system and is responsible for some of the 

proposed therapeutic qualities of cannabinoids.” Report of Mark S. Erickson, PhD, at 1.

2 Act of Apr. 14, 1972, P.L. 233, No. 64 (as amended 35 P.S. §§780-101 to 780-144).

3

Those provisions state:

(a) The following acts and the causing thereof within the Commonwealth 

are hereby prohibited:

* * *

(30) . . . the . . . delivery, or possession with intent to . . . 

deliver, a controlled substance . . ..

* * *

(36) The knowing or intentional . . . possession with intent to 

distribute, or possession of a designer drug. . . .

35 P.S. §780-113(a)(30), (36).
[J-124-2016] - 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 postamendment timeframes, Schedule I included JWH-018 by name as a synthetic 

 

4

The Secretary of Health has authority to add compounds to the schedules via 

regulation. See 35 P.S. §780-103. The schedules as thus augmented are set forth in 

the administrative code. See 25 Pa. Code §25.72. The parties do not suggest that any 

administrative additions to Schedule I are relevant to this case.

5

The Commonwealth clarified at the preliminary hearing that, because controlled 

substances and designer drugs are mutually exclusive categories, its decision to lodge 

a designer-drug count against Appellee constituted a “fallback position” in the event PB22 was found not to be a controlled substance. N.T., Apr. 14, 2014, at 50.

6

The analogue and/or designer drug provisions in the Act appear to be a legislative 

response to underground laboratories which “have become adept at tinkering with the 

molecular structure of scheduled controlled substances while retaining the effects that 

those substances produce.” United States v. Carlson, 2013 WL 5125434, at *27 (D. 

Minn. Sept. 12, 2013) (internal brackets, quotation marks, and citation omitted); accord

Zunny Losoya, Comment, Synthetic Drugs – Emergence, Legislation, and the Criminal 

and Legal Aftermath of Broad Regulation, 66 SMU L. REV. 401, 403 (2013) (noting that 

synthetic drugs arise when chemists “slightly alter . . . existing banned drugs to evade 

the law and sell abusable drugs” (internal quotation marks and footnote omitted)).
[J-124-2016] - 4

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.”

 

7

The text states “if possible” rather than “is possible.” This is clearly a typographical 

error: “if possible” does not make grammatical sense, and all other subsections use the 

phrase “is possible,” see, e.g., id. §780-104(1)(i), as do counterpart statutes in other 

jurisdictions. See, e.g., 21 U.S.C. §812; KY. REV. STAT. §218A.050.

8

There is a fourteenth, “catchall,” classification defined as “[a]ny other synthetic 

chemical compound that is a cannabinoid receptor type 1 [i.e., CB1] agonist as 

demonstrated by binding studies and functional assays . . ..” Id. §780-104(1)(vii)(14).

(continued...)
[J-124-2016] - 5

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,” 

 

(...continued)

Appellee maintained before the county court that the word “analogues” in Section 780-

104(1)(vii) did not apply to the catchall category in light of the qualifier, “within the 

specific chemical designation.” We will assume that is true for decisional purposes, as 

the Commonwealth does not presently argue that the catchall category is implicated. 

To the contrary, it concedes that no studies on the effects of PB-22 have been 

undertaken, see Brief for Appellant at 10, and hence, PB-22 has not been shown to be 

a CB1 agonist – i.e., that it binds to the body’s CB1 receptor and triggers a response.

9 Both chemical types have common components, but PB-22 has an “oxygen bridge” 

(an extra oxygen atom bridging two of the main components), and two extra nitrogen 

atoms, which gives it different properties. See N.T., Nov. 7, 2014, at 22-26 (reflecting 

Dr. Coyer’s description of the molecular structures of JWH-018 and PB-22). See 

generally United States v. Johnson, 2014 WL 7330936, at *5 (D. Nev. Dec. 19, 2014), 

reprinted in Brief for Appellant at app. 51a (showing two-dimensional diagrams of PB-22 

and JWH-018). The parties’ experts agreed that the chemicals are in different structural 

classes. See N.T., Nov. 7, 2014, at 47, 61.
[J-124-2016] - 6

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

 

10 Appellee also sought a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. 

Cir. 1923), to test whether the method used by the Commonwealth’s expert to conclude 

PB-22 is an analogue of, and has a substantially-similar chemical structure to, JWH018, is generally accepted in the relevant scientific field. Although the hearing on the 

habeas motion delved into those questions, it was not a Frye hearing, as it did not 

pertain to the admissibility of the prosecution’s evidence. The issue before the court 

(continued...)
[J-124-2016] - 7

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 PB22. 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, 

 

(...continued)

was whether the provisions of the Act under which Appellee was charged were 

inapplicable under the circumstances or unconstitutionally vague as applied. Further, 

the court never made a preliminary finding that the science involved was novel. See

N.T., Nov. 7, 2014, at 45. See generally Commonwealth v. Puksar, 597 Pa. 240, 253, 

951 A.2d 267, 275 (2008) (observing that Frye only applies to “proffered expert 

testimony involving novel science” (internal quotation marks and citations omitted)).

This is not entirely a formal distinction. The proponent of novel scientific evidence has 

the burden of establishing all prerequisites to admission, including conformance with 

Frye, see Grady v. Frito-Lay, Inc., 576 Pa. 546, 558, 839 A.2d 1038, 1045 (2003), 

whereas the party advancing a constitutional challenge to a statute bears the burden of 

demonstrating a constitutional violation. See Clifton v. Allegheny Cnty., 600 Pa. 662, 

702, 969 A.2d 1197, 1221 (2009). Overall, however, the Commonwealth shoulders the 

burden to show evidentiary sufficiency for purposes of a pre-trial habeas motion. See 

Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 52, 479 A.2d 1073, 1074 (1984).
[J-124-2016] - 8

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 
[J-124-2016] - 9

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 threedimensional 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, 
[J-124-2016] - 10

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

 

11 Appellee had also been charged with criminal conspiracy and dealing in the proceeds 

of unlawful activities. See 18 Pa.C.S. §§903(a), 5111(a)(1). We need not discuss those 

counts separately as their viability depends on that of the drug charges at the center of 

this case.

12 The court also briefly discussed Frye and indicated that Dr. Coyer’s evidence was not 

generally accepted in the scientific community. See Herman, No. CP-67-CR-2400-

2014, slip op. at 10-11. This aspect of the opinion can be read to suggest that the court, 

in retrospect, viewed the proceeding as a Frye hearing, at least in part. As explained, 

though, the court did not find preliminarily that the scientific evidence was novel, nor did 

it indicate the admissibility of Dr. Coyer’s testimony was in issue. See supra note 10.

Separately, the court did not address Appellee’s statutory argument that PB-22 was 

legal under Act 40. As the court had already found “analogue” to be unconstitutionally 

vague – a question it could not avoid relative to charges based on conduct occurring in 

the pre-Act 40 timeframe – it may have seen no need to address that claim.
[J-124-2016] - 11

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 

 

13 The Commonwealth initially appealed to the Superior Court. Upon recognizing the 

underlying constitutional basis for the common pleas court’s decision, the intermediate 

court transferred the matter here. See Commonwealth v. Herman, 143 A.3d 392, 394 

(Pa. Super. 2016); Pa.R.A.P. 751 (relating to the transfer of erroneously-filed cases).

14 The Commonwealth’s designer-drug argument rests solely on the premise that a jury 

could find that the two compounds have a substantially similar chemical structure, rather 

than substantially similar effects. See supra note 8.
[J-124-2016] - 12

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.”)).

 

15 The federal Analogue Act is a 1986 addition to the Controlled Substances Act, 21 

U.S.C. §§801-971 (the “Federal CSA”), which prescribes that controlled substance 

analogues “shall, to the extent intended for human consumption, be treated, for the 

purposes of any Federal law as a controlled substance in schedule I.” Id. §813.

The Federal CSA defines a “controlled substance analogue” generally as a substance 

whose chemical structure is substantially similar to that of a schedule I or II controlled 

substance, and either: (a) “has a stimulant, depressant, or hallucinogenic effect on the 

central nervous system that is substantially similar to or greater than the stimulant, 

depressant, or hallucinogenic effect on the central nervous system of a controlled 

substance in schedule I or II,” or (b) “with respect to a particular person, which such 

person represents or intends to have a stimulant, depressant, or hallucinogenic effect 

on the central nervous system that is substantially similar to or greater than the 

stimulant, depressant, or hallucinogenic effect on the central nervous system of a 

controlled substance in schedule I or II.” Id. §802(32). See generally United States v. 

Turcotte, 405 F.3d 515, 522-23 (7th Cir. 2005) (construing the statute).
[J-124-2016] - 13

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).
[J-124-2016] - 14

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 
[J-124-2016] - 15

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 

 

16 If the common pleas court had found as a fact that PB-22 was not an analogue of 

JWH-018, we could potentially avoid this constitutional issue by deferring to that finding. 

However, the court made no such finding and, moreover, Dr. Coyer opined that PB-22 

was an analogue of JWH-018. See N.T., Nov. 7, 2014, at 35. That testimony must be 

accepted as true for the narrow purpose of ascertaining whether the Commonwealth 

made out a prima facie case. See Commonwealth v. MacPherson, 561 Pa. 571, 585, 

752 A.2d 384, 391 (2000). This, in turn, forecloses the possibility that we can affirm the 

court’s order based on an appellate finding that PB-22 is not an analogue of JWH-018.
[J-124-2016] - 16

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 
[J-124-2016] - 17

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 PB22 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 controlledsubstance 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 
[J-124-2016] - 18

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.

 

17 We pause to emphasize that the problem is made acute by the specific wording of the 

Act. Unlike legislatures elsewhere, the General Assembly has placed the substantialsimilarity test – which would ordinarily comprise the most probable standard for 

determining analogue status – within the designer drug provision, and has clarified that 

designer drugs and controlled substances (including analogues) are mutually exclusive 

categories. See supra note 5. It has done so, moreover, without delineating any 

substitute standard for determining what constitutes an analogue.
[J-124-2016] - 19

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 controlledsubstance 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 
[J-124-2016] - 20

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 

 

18 The common pleas court did not speak to this issue in its Rule 1925 opinion. Instead, 

it held that the term “analogue” was vague as applied without distinguishing between 

the pre- and post-amendment versions of the statute. Additionally, the Commonwealth 

does not address the claim in its brief, opting instead to limit its advocacy to the position 

that the terms “analogue” and “substantially similar” should not be deemed 

unconstitutionally vague.
[J-124-2016] - 21

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 postamendment 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 

 

19 That issue will have to await another dispute where its resolution is material to the 

outcome of the case.
[J-124-2016] - 22

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 

 

20 As of June 2016, PB-22 is not a designer drug because Act 37 made it a scheduled 

controlled substance. See 35 P.S. §780-104(1)(vii)(2.2) (2016). For present purposes, 

we apply the Act as it existed on July 15, 2013, when the PB-22 packets were seized.
[J-124-2016] - 23

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 

 

21 Dr. Harris’ testimony regarding efforts at the federal level to discover a methodology 

for ascertaining whether one chemical is an analogue of another can be construed as 

touching on the question of substantial similarity in light of the federal Analogue Act’s 

use of that term in its definition of a controlled substance analogue. However, it cannot 

be seen as addressing only chemical-structure similarity, since the federal definition 

also includes a requirement that the effects on the central nervous system be 

substantially similar. 
[J-124-2016] - 24

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 

 

22 The statute does not articulate a particular manner of proof. As such, it does not 

require that substantial similarity be proved by two-dimensional diagrams, nor does it 

preclude proof by three-dimensional diagrams, models, holograms, or indeed any other 

evidence pertinent to the issue. In this regard, some commentators have expressed 

that two-dimensional stick-and-letter chemical structure diagrams are an inferior type of 

evidence, as they omit relevant information such as atomic mass and the threedimensional structure. See Paul Anacker & Edward J. Imwinkelried, The Confusing 

World of the Controlled Substance Analogue (CSA) Criminal Defense, 42:6 CRIM. L.

BULL. ART. 4 (2006) (hereinafter, “Controlled Substance Analogues”); cf. Bays, 2014 WL 

3764876, at *8 (referring with approval to expert testimony suggesting that twodimensional chemical models are useful for determining core structure, whereas threedimensional models are helpful in identifying attached functional groups and seeing how 

they are similar). Whether evidentiary sufficiency to prove guilt can be predicated solely 

on comparing two-dimensional diagrams is not an issue presently before the Court.
[J-124-2016] - 25

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 Analogue Act – which, in relevant part, uses the same substantial-similarity 

standard as the designer drug provision presently under challenge – is not 

unconstitutionally vague as applied to these chemicals.

 

23 See Turcotte, 405 F.3d at 533; United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir.

2004); Klecker, 348 F.3d at 72; United States v. Granberry, 916 F.2d 1008, 1010 (5th 

Cir. 1990); United States v. Orchard, 332 F.3d 1133, 1138 (8th Cir. 2003); United States 

v. Fisher, 289 F.3d 1329, 1339 (11th Cir. 2002).

24 See People v. Silver, 281 Cal. Rptr. 354, 357 (Cal. Ct. App. 1991); State v. Alley, 318 

P.3d 962, 973 (Idaho Ct. App. 2014); abrogated on other grounds by State v. McKean, 

356 P.3d 368 (Idaho 2015); Hooper v. State, 106 S.W.3d 270, 277 (Tex. App. 2003); 

State v. Srack, 314 P.3d 890, 897 (Kan. Ct. App. 2013); State v. Beaudette, 97 So. 3d 

600, 603-604 (La. App. 2012); State v. Shalash, 13 N.E.3d 1202, 1209 (Ohio Ct. App. 

2014).
[J-124-2016] - 26

Additionally, unlike the controlled-substance analogue offense, 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. See 35 P.S. 

§780-113(a)(36). Scienter requirements of this nature help alleviate vagueness 

concerns, both with regard to the adequacy of notice of the proscribed conduct, see 

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.

Ct. 1186, 1193 (1982), and as a means of limiting prosecutorial discretion, see 

McFadden v. United States, ___ U.S. ___, ___, 135 S. Ct. 2298, 2307 (2015). The 

McFadden Court, which dealt with the federal Analogue Act, interpreted the scienter 

mandate as to controlled-substance analogues as meaning that the government must 

show that the defendant either knew that the substance was a controlled-substance 

analogue regardless of his knowledge of its identity, or knew that it satisfied the specific 

statutory prerequisites making it a controlled substance analogue. Those prerequisites 

include a substantially similar chemical structure to that of a scheduled controlled 

substance. See id. at ___, 135 S. Ct. at 2305 (quoting 21 U.S.C. §802(32)(A)). The 

Court concluded: “A defendant who possesses a substance with knowledge of those 

features knows all of the facts that make his conduct illegal[.]” Id.; see also Hoffman 

Estates, 455 U.S. at 499 & n.14, 102 S. Ct. at 1193 & n.14 (reciting that the Supreme 

Court “has recognized that a scienter requirement may mitigate a law’s vagueness, 

especially with respect to the adequacy of notice to the complainant that his conduct is 

proscribed,” and citing cases); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 

342, 72 S. Ct. 329, 331-32 (1952) (indicating that a “knowingly” mens rea requirement 

“does much to destroy any force in the argument” that enforcement of the regulation in 

question would violate due process on vagueness grounds); United States v. Novak, 

841 F.3d 721, 728-29 (7th Cir. 2016) (summarizing the McFadden scienter analysis, 
[J-124-2016] - 27

including the mandate that the government prove the accused knew the chemical 

structure was substantially similar to that of a scheduled controlled substance); cf. 

Tiplick v. State, 43 N.E.3d 1259, 1265 (Ind. 2015) (relying on an express scienter 

requirement in rejecting a vagueness challenge to a counterfeit-controlled-substance 

statute).

There is no issue of statutory construction presently before this Court relating to 

the scope of the scienter requirement contained in Section 780-113(a)(36). 

Nevertheless, the Supreme Court’s analysis in McFadden bears upon the vagueness 

issue in the following way. Under the canon of constitutional avoidance, if a statute is 

susceptible of two reasonable constructions, one of which would raise constitutional 

difficulties and the other of which would not, we adopt the latter construction. See MCI 

WorldCom, Inc. v. PUC, 577 Pa. 294, 311, 844 A.2d 1239, 1249 (2004). Although the 

designer drug provision does not expressly state that, to be culpable, the defendant 

must know that the chemical he possesses has a molecular structure substantially 

similar to that of a scheduled drug, a narrow construction along those lines would be 

reasonable. See 18 Pa.C.S. §302(d) (providing generally that where the law prescribes 

a particular level of scienter, it applies to all elements of the offense in question); see 

also id. §107(a) (specifying that Title 18’s preliminary provisions – including Section 302 

– apply to offenses defined in any statute). If a broader interpretation of the statute 

would render it vague as applied, the court would be obligated to adopt the narrower 

construction delineated above because, under McFadden, such a construction would 

alleviate vagueness concerns.

Dissenting from the above, Justice Wecht initially suggests that an offense based 

on a substantial similarity of chemical structures fails to give adequate notice of the 

prohibited conduct as required by due process, because most citizens are not organic 
[J-124-2016] - 28

chemists and the substances they purchase ordinarily are not accompanied by 

chemistry books or comparative chemical-structure diagrams. See Concurring and 

Dissenting Opinion, slip op. at 3-7.

While we certainly understand the concern, we are not convinced that an 

ordinary citizen’s lack of expertise in organic chemistry constitutes a viable basis to 

conclude that the statute is unconstitutionally vague. If it were, much of the Act would 

be invalid because many drugs appearing in the schedules are listed by their chemical 

formulae or technical designations. See 35 P.S. §780-104 (listing such scheduled 

drugs as “N-ethyl-3-piperidyl benzilate,” “Delta-6 cis or trans tetrahydrocannabinol and 

their optical isomers,” and “2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C)”). A 

large part of the federal Controlled Substances Act would likewise fall. See 21 U.S.C.

§812 (enumerating many controlled substances by chemical formulae). See generally 

United States v. Niemoeller, 2003 WL 1563863, at *4 (S.D. Ind. Jan. 24, 2013) 

(observing that “it takes a chemist to understand many of the compounds on schedule I 

under the Controlled Substances Act”). More generally, any offense which is predicated 

on an act or circumstance, the understanding of which involves specialized knowledge, 

would be at risk of invalidation under the vagueness doctrine.

That doctrine has not developed so strictly as to impose a blanket prohibition 

along these lines, and we believe 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. Accord, e.g., State v. Heinrichs, 845 N.W.2d 450, 

455 (Iowa Ct. App. 2013) (“[W]e decline to find the schedule of controlled substances is 

constitutionally defective because it uses scientific terms that are obscure to persons of 

ordinary intelligence lacking in specialized knowledge. ‘The use of scientific or technical 
[J-124-2016] - 29

terminology or terms of art common in a regulated field does not automatically render a 

statute unconstitutionally vague.’” (quoting United States v. Caseer, 399 F.3d 828, 836-

37 (6th Cir. 2005))). As one federal court noted more generally:

When dealing with legislation on complex or technical matters – whether it 

concerns intricate corporate tax issues, the details of electronic securities 

transactions, or international trade in “dual use” technologies – Congress 

can expect a person who wishes to engage in the activity to acquire the 

necessary specialized knowledge to conform the person’s conduct to law. 

Similarly, when dealing with the distribution of organic chemical 

compounds for human consumption and with intended or hoped-for 

central nervous system effects, Congress could reasonably expect and 

require persons engaged in that activity to possess or obtain the 

specialized knowledge needed to conform their conduct to law.

Niemoeller, 2003 WL 1563863, at *4; accord State v. Shalash, 13 N.E.3d 1202, 1210 

(Ohio Ct. App. 2014). In our view the above proceeds from a reasonable conception of 

the scope of discretion the legislative branch retains when it seeks to regulate activity 

that is potentially harmful to the public, and such activity can only be described using 

technical terminology understandable to individuals with specialized training.

As discussed, moreover, an available interpretation of the designer drug statute 

incorporates a mens rea whereby defendants are only criminally liable if they act

knowingly or intentionally with regard to all elements – including, for purposes of the 

present as-applied challenge, the alleged circumstance that PB-22’s chemical structure 

is substantially similar to that of JWH-018. This limitation helps ensure the statute does 

not become a trap for unwitting members of the public who have no expertise in organic 

chemistry. Instead, the statute is quite reasonably aimed at those who traffic in novel 

compounds which are essentially the same as scheduled controlled substances but 

contain minor differences designed to evade the statutory schedules. The General 

Assembly can “reasonably expect and require persons engaged in that activity to 
[J-124-2016] - 30

possess or obtain the specialized knowledge needed to conform their conduct to law.” 

Niemoeller, 2003 WL 1563863, at *4.

In a separate line of attack, Justice Wecht acknowledges the Supreme Court’s 

recent guidance in McFadden, as well as Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 

675 (1979), where a statute’s lack of a scienter requirement contributed to the Supreme 

Court’s finding that it was vague. See id. at 401, 99 S. Ct. at 688. Further, he 

recognizes that the Supreme Court has issued other decisions containing language 

similar to McFadden’s, indicating that scienter requirements mitigate, alleviate, or 

ameliorate vagueness concerns. See Concurring and Dissenting Opinion, slip op. at 

11-12 (citing cases). He also highlights a decision of this Court stating that “vagueness 

challenges fail when a statute has a specific intent requirement because a defendant 

cannot complain he did not understand the crime . . ..” Id. at 12 n.5 (quoting 

Commonwealth v. Hendrickson, 555 Pa. 277, 284, 724 A.2d 315, 319 (1999)). 

Nevertheless, Justice Wecht offers that the concept that a scienter prerequisite can help 

alleviate vagueness difficulties has been criticized by commentators, and that it is in 

tension with the maxim that ignorance of the law is not an excuse. See id. at 12.

Because the void-for-vagueness doctrine is grounded on federal due process 

norms, we believe the Supreme Court’s pronouncements are particularly germane to

the resolution of the matter before us, notwithstanding the thoughtful contributions of 

learned commentators. As far back as 1979, the Supreme Court stated it “ha[d] long 

recognized that the constitutionality of a vague statutory standard is closely related to 

whether that standard incorporates a requirement of mens rea.” Colautti, 439 U.S. at 

395, 99 S. Ct. at 685. McFadden, in particular, is highly relevant since it dealt with a 

federal statute prohibiting knowing or intentional conduct – including possession with 

intent to distribute – relative to a controlled-substance analogue which, under the 
[J-124-2016] - 31

federal system, is defined using the same substantially-similar-chemical-structure 

phraseology as Pennsylvania’s designer drug statute. See 21 U.S.C. §§802(32)(A) 

(defining “controlled substance analogue” in terms of a chemical structure “which is 

substantially similar to the chemical structure of a controlled substance in schedule I or 

schedule II”), 841(a) (reflecting an express “knowingly or intentionally” mens rea); 

accord McFadden, ___ U.S. at ___ n.2, 135 S. Ct. at 2305 n.2 (reflecting that the 

government had to prove, inter alia, that the substance in question was “substantially 

similar in chemical structure to a controlled substance”).25

Further, if the law being enforced only prohibits knowing or intentional conduct, 

any ignorance by a defendant which could defeat culpability would not be offered as an 

excuse. See generally 18 Pa.C.S. §302(h). It would be advanced as a basis to 

conclude that the Commonwealth failed to prove an element of the offense. Thus, any 

perceived tension with the legal maxim involving ignorance of the law is illusory. See, 

e.g., United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 561-62, 91 S. Ct. 

1697, 1700 (1971); Staples v. United States, 511 U.S. 600, 622 n.3, 114 S. Ct. 1793, 

1805 n.3 (1994) (Ginsburg, J., concurring) (“The mens rea presumption requires 

knowledge only of the facts that make the defendant’s conduct illegal, lest it conflict with 

the related presumption . . . that . . . ignorance of the law . . . is no defense . . ..”

(emphasis added)); United States v. Elias, 1999 WL 1204529, at *1 (D. Idaho Apr. 20, 

1999) (explaining that Staples and two other Supreme Court decisions “have not altered 

the traditional rule that ignorance of the law is no excuse, but have only stated that 

knowledge is required where the statute specifically imposes that type of requirement”); 

cf. Winget v. Rockwood, 69 F.2d 326, 332 (8th Cir. 1934) (in a civil setting,

 

25 Although 21 U.S.C. §841(a) facially applies to controlled substances, under the 

federal Analogue Act the term subsumes controlled substance analogues, see 21 

U.S.C. §813, the very category of chemicals at issue in McFadden.
[J-124-2016] - 32

distinguishing ignorance of the law from ignorance of certain facts); Ciesielski v. 

Prudential Ins. Co. of Am., 416 Pa. 146, 148, 205 A.2d 42, 43 (1964) (same).

26

Finally, we differ with any suggestion that we are treating the analogue provision 

and the designer drug statute in a logically inconsistent fashion. See Concurring and 

Dissenting Opinion, slip op. at 14-15 (Wecht, J.). Although a chemical analogue of a 

controlled substance would most naturally be understood as a molecule with a 

substantially similar chemical structure, as noted above the General Assembly has 

precluded that meaning by specifying that analogues and designer drugs are mutually 

exclusive categories – and has done so without providing any substitute standard for 

understanding what it intended to signify by the word “analogue.” See supra note 17.

In summary, then, the common pleas court did not account for the difference 

between the concepts of analogue and substantial similarity, the latter of which is more 

readily apprehensible to the lay citizen in the context of comparing chemical structures; 

nor did it recognize that, unlike the controlled-substance provision, the designer drug 

provision includes a narrowing scienter specification. Moreover, like the federal 

appellate court in Klecker, we find in this case that there are “considerable similarities” 

as between the two molecules based on their two-dimensional diagrams. Klecker, 348 

F.3d at 72; see Johnson, 2014 WL 7330936, at *5 (concluding that “the readily apparent 

similarities between the chemical structures of 5F-PB-22 [a variant of PB-22] and the 

scheduled substances JWH-018 and AM-2201 [as reflected in two-dimensional 

diagrams], are enough to put a reasonable person on notice that 5F-PB-22 and JWH018 are substantially similar”).

 

26 We note parenthetically that ignorance of the law can constitute a basis to escape 

liability if the applicable legislation specifies that, to be guilty, the defendant must have 

intended to violate the law. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 149, 114 

S. Ct. 655, 663 (1994).
[J-124-2016] - 33

In light of the foregoing, we conclude that predicating criminal liability on a jury 

determination – perhaps assisted by expert evidence – as to whether JWH-018 and PB22 have substantially similar chemical structures does not give rise to a circumstance in 

which the average citizen must necessarily guess at the types of behavior that are 

proscribed by Section 780-113(a)(36). For the same reasons – particularly those 

relating to the scienter provision – the discretion of government agents is adequately 

circumscribed to guard against arbitrary or discriminatory prosecutions. That being the 

case, this provision withstands the present void-for-vagueness challenge.

27

 

27 Appellee claims that the Commonwealth waived the issue of whether PB-22 has 

substantially similar effects to those of JWH-018 by not including a claim along these 

lines in its Rule 1925(b) statement of matters complained of on appeal. See Brief for 

Appellee at 8-9. As previously noted, that question is not presently in dispute.

To the extent Appellee’s brief may be understood as asserting waiver more generally in 

regard to the constitutionality of the designer drug charge, it should be noted that the 

order appealed from, issued on February 10, 2015, provided no explanation for its 

dismissal of all charges. In addition, by order dated March 13, 2015, the court directed 

the Commonwealth to file its Rule 1925(b) statement within 21 days, or no later than 

April 3, 2015. Notably, the court did not issue its opinion until May 28, 2015, long after 

the deadline for the Commonwealth’s filing had passed, and even longer after the court 

had stated that it would issue an opinion. See Commonwealth v. Herman, No. CP-67-

CR-2400-2014, Order (C.P. York Feb. 3, 2015) (indicating that the court would issue an 

opinion within 30 days, or by March 5, 2015).

Under these unusual circumstances, and particularly where the habeas petition in 

question implicates multiple issues, the normal waiver rules concerning the specificity of 

the contents of an appellant’s concise statement are relaxed. See Ryan v. Johnson, 

522 Pa. 555, 560, 564 A.2d 1237, 1239 (1989); Hess v. Fox Rothschild, LLP, 925 A.2d 

798, 804 (Pa. Super. 2007). See generally Commonwealth v. Hess, 570 Pa. 610, 619 

n.9, 810 A.2d 1249, 1255 n.9 (2002) (citing Ryan for the position that the rule requiring 

an appellant to file a 1925(b) statement upon the court’s directive “may not be employed 

as a trap to defeat appellate review”). Here, the Commonwealth filed a timely statement 

and alleged, generally, that the county court had erred in granting Appellee’s habeas

petition. This satisfied the dictates of Ryan.
[J-124-2016] - 34

Accordingly, we reverse the holding of the court of common pleas as respects 

the designer-drug charge.

III. Conclusion

For reasons given above, we affirm in part, reverse in part, and remand for 

further proceedings consistent with this opinion.

Justices Baer, Dougherty and Mundy join the opinion.

Justice Donohue files a concurring and dissenting opinion in which Justices Todd 

and Wecht join.

Justice Wecht files a concurring and dissenting opinion in which Justices Todd 

and Donohue join.