vagueness challenge in Pennsylvania

1985In reviewing an identical claim of vagueness asserted against the corresponding portion of the death penalty statute of the State of Florida, which employed virtually identical language, the Supreme Court of the United States rejected the vagueness claim, noting that a jury's evaluation of the aggravating and mitigating circumstances as enumerated, requires no more line drawing than is commonly required of a factfinder in any lawsuit. *338 Proffit v. Florida, 428 U.S. 242, 257 , 96 S.Ct. 2960, 2969 , 49 L.Ed.2d 913, 925-926 (1976).

1985In reviewing an identical claim of vagueness asserted against the corresponding portion of the death penalty statute of the State of Florida, which employed virtually identical language, the Supreme Court of the United States rejected the vagueness claim, noting that a jury's evaluation of the aggravating and mitigating circumstances as enumerated, requires no more line drawing than is commonly required of a factfinder in any lawsuit. *338 Proffit v. Florida, 428 U.S. 242, 257 , 96 S.Ct. 2960, 2969 , 49 L.Ed.2d 913, 925-926 (1976).

2017Where, 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 , 46 L.Ed.2d 228 (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 , 100 L.Ed.2d 372 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5 , 354 A.2d 244, 245 (1976).

2017Where, 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 , 46 L.Ed.2d 228 (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 , 100 L.Ed.2d 372 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5 , 354 A.2d 244, 245 (1976).

2021A statute will survive a vagueness challenge if it “define[s] the -8- J-S10033-21 criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006).

2021A statute will survive a vagueness challenge if it “define[s] the -8- J-S10033-21 criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006).

2017Where a vagueness challenge does not allege that the statute infringes First Amendment freedoms, “the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.” Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa. 2003). 9 Significantly, “the violator whose conduct falls clearly within the scope of [the statutory] standard has no standing to complain of vagueness,” Commonwealth v. Heinbaugh, 354 A. 2d 244, 246 (Pa. 1976), or to assert “the vagueness of the law as applied to the conduct of others.” Village of Hoffman Estates v. Flipside, 4

2015Where a vagueness challenge does not allege that the ordinance infringes First Amendment freedoms, “the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.” Commonwealth v. Mayfield, 574 Pa. 460 , 832 A.2d 418, 422 (2003); Commonwealth v. Heinbaugh, 467 Pa. 1 , 354 A.2d 244, 245 (1976); Oppenheim, 459 A.2d at 1315 .

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2024The rule of lenity has been described as “a sort of junior version of the vagueness doctrine.” United States v. Lanier, 520 U.S. 259, 266 (1997) (internal quotation marks and citation omitted).

2021A statute will survive a vagueness challenge if it “define[s] the -8- J-S10033-21 criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006).

2021A statute will survive a vagueness challenge if it “define[s] the -8- J-S10033-21 criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006).

2024Notably, the vagueness doctrine is predicated on a “rough idea of fairness” and does not “convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning . . . .” Commonwealth v. DeFrancesco, 393 A.2d 321, 327 (Pa. 1978) (quoting Colten v. Kentucky, 407 U.S. 104, 110 (1972)).

2005While we appreciate that it may not be within any person’s ability to determine with specificity what their BAC may be at any given moment, the vagueness doctrine is not designed “to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. ...” Commonwealth v. DeFrancesco, 481 Pa. 595, 608 , 393 A.2d 321, 327 (1978) (citing Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972))

2024Further, “[w]here, 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, and the statute is judged on an as-applied basis.” Commonwealth v. Herman, 161 A.3d 194, 204-05 (Pa. 2017) (cleaned up).

2024Further, “[w]here, 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, and the statute is judged on an as-applied basis.” Commonwealth v. Herman, 161 A.3d 194 , 204-05 (Pa. 2017) (cleaned up).

2017Where, 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 , 46 L.Ed.2d 228 (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 , 100 L.Ed.2d 372 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5 , 354 A.2d 244, 245 (1976).

2017Where, 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 , 46 L.Ed.2d 228 (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 , 100 L.Ed.2d 372 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5 , 354 A.2d 244, 245 (1976).

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2024Thus, the Majority reaches for Section 105 of the Crimes Code as an instrument to refute 19 Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (cleaned up). 20 See United States v. Bass, 404 U.S. 336, 348 (1971) (describing the rule of lenity as advancing two purposes: first, ensuring that statutes afford “fair warning” “in language that the common world will understand, of what the law intends to do if a certain line is passed”; and, second, to ensure that it is legislatures, and not courts, that “define criminal activity”). 21 Commonwealth v. Smith, 221 A.3d 631 , 639 (Pa. 2019) (quoting Du

2023Hendrickson, 724 A.2d at 318 (emphases added).12 ____________________________________________ 12 Although Appellant does not raise a vagueness challenge on appeal, we note that the Hendrickson Court also determined the statute was not unconstitutionally vague.

2023See Hendrickson, 724 A.2d at 319 (holding language of statute, read in context, was sufficiently specific for defendant to understand what was prohibited, and jury’s determination that he acted with specific intent undercuts any argument that he did not understand the crime). - 18 - J-S12025-23 As stated supra, Appellant first insists that we are not bound by the decision in Hendrickson because Subsection (a)(7) was not included in the prior statute.

2008We again upheld § 9711(d)(7) against a vagueness challenge in Commonwealth v. Wharton, 530 Pa. 127 , 607 A.2d 710, 723 (1992).

2008We again upheld § 9711(d)(7) against a vagueness challenge in Commonwealth v. Wharton, 530 Pa. 127 , 607 A.2d 710, 723 (1992).

2024Notably, the vagueness doctrine is predicated on a “rough idea of fairness” and does not “convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning . . . .” Commonwealth v. DeFrancesco, 393 A.2d 321, 327 (Pa. 1978) (quoting Colten v. Kentucky, 407 U.S. 104, 110 (1972)).

2005While we appreciate that it may not be within any person’s ability to determine with specificity what their BAC may be at any given moment, the vagueness doctrine is not designed “to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. ...” Commonwealth v. DeFrancesco, 481 Pa. 595, 608 , 393 A.2d 321, 327 (1978) (citing Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972))

2002The United States Supreme Court, in Smith, supra, recognized, however, that the more important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” 415 U.S. at 574 , 94 S.Ct. at 1247-48 .

2002The United States Supreme Court, in Smith, supra, recognized, however, that the more important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” 415 U.S. at 574 , 94 S.Ct. at 1247-48 .

2017Where a vagueness challenge does not allege that the statute infringes First Amendment freedoms, “the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.” Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa. 2003). 9 Significantly, “the violator whose conduct falls clearly within the scope of [the statutory] standard has no standing to complain of vagueness,” Commonwealth v. Heinbaugh, 354 A. 2d 244, 246 (Pa. 1976), or to assert “the vagueness of the law as applied to the conduct of others.” Village of Hoffman Estates v. Flipside, 4

2003DEP responds that in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982), the Court noted that the degree of vagueness that is constitutionally tolerable depends in part on the nature of the enactment; specifically, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow and businesses may be expected to consult relevant legislation in advance and to clarify meaning through inquiry or through an administrative process. 6 DEP notes that Petitioners have not shown that business

2012It has been similarly held that one of the two ways that a vagueness challenge can be presented is that the language of the statute is “vague regarding the particular conduct of the individual challenging the statute.” Commonwealth v. Nesbitt, 575 A.2d 633, 635 (Pa.Super. 1990); Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.”); U.S. v. Mazurie, 419 U.S. 544, 550 (1975)(“[V] agueness challenges to statutes which do no

1989United States v. Mazurie, 419 U.S. 544 , 95 S.Ct. 710 , 42 L.Ed.2d 706 (1975); Commonwealth v. Dodge, 287 Pa.Super. 148 , 429 A.2d 1143, 1146 (1981) (where a vagueness challenge does not implicate First Amendment freedoms of speech, association, or assembly, the definiteness of a statute will be decided in light of the conduct in which the party challenging the statute has engaged.) In order to pass constitutional muster “a criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction.” Commonwealth v. Wescott, 362 Pa.Super.

2017Rather, the Supreme Court has stated that a scienter requirement may “mitigate,” City of Chicago v. Morales, 527 U.S. 41, 110 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999), “alleviate,” Gonzales, 550 U.S. at 149 , 127 S.Ct. 1610 , or “ameliorate,” Hill, 530 U.S. at 732 , 120 S.Ct. 2480 , constitutional vagueness concerns. 5 Even framed as merely a factor to consider when confronting a vagueness challenge, the proposition has not gone uncriticized, because it appears to create tension with the familiar maxim: ignorantia juris non excusat (“ignorance of the law excuses not”).

2017Rather, the Supreme Court has stated that a scienter requirement may “mitigate,” City of Chicago v. Morales, 527 U.S. 41, 110 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999), “alleviate,” Gonzales, 550 U.S. at 149 , 127 S.Ct. 1610 , or “ameliorate,” Hill, 530 U.S. at 732 , 120 S.Ct. 2480 , constitutional vagueness concerns. 5 Even framed as merely a factor to consider when confronting a vagueness challenge, the proposition has not gone uncriticized, because it appears to create tension with the familiar maxim: ignorantia juris non excusat (“ignorance of the law excuses not”).

2017Where, 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 , 46 L.Ed.2d 228 (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 , 100 L.Ed.2d 372 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5 , 354 A.2d 244, 245 (1976).

2017Where, 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 , 46 L.Ed.2d 228 (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 , 100 L.Ed.2d 372 (1988); Commonwealth v. Heinbaugh, 467 Pa. 1, 5 , 354 A.2d 244, 245 (1976).

2024Since this presents a question of law, “our standard or review is de novo and our scope of review is plenary.” Commonwealth v. Berry, 167 A.3d 100, 104 (Pa.Super. 2017) (citation omitted).

2024Since this presents a question of law, “our standard or review is de novo and our scope of review is plenary.” Commonwealth v. Berry, 167 A.3d 100 , 104 (Pa.Super. 2017) (citation omitted).

2017Co., 269 U.S. 385, 391 , 46 S. Ct. 126, 127 (1926). [J-124-2016] - 13 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).

2017Co., 269 U.S. 385, 391 , 46 S. Ct. 126, 127 (1926). [J-124-2016] - 13 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).