J-E02002-16

2017 Pa Super 352

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEVEN MCCULLOUGH

No. 1755 WDA 2014

Appeal from the Order Entered October 6, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013438-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., 

BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., 

and OTT, J.

OPINION BY PANELLA, J. FILED NOVEMBER 9, 2017

Under Megan’s Law II, the Commonwealth required individuals 

convicted of indecent assault to register as sexual offenders for a period of 

ten years. See 42 Pa.C.S.A. §§ 9791-9799.7 (expired December 20, 2012). 

The registration provisions specifically applied to “individuals incarcerated or 

convicted on or after the effective date of this act,” which a prior panel of 

this Court interpreted to exclude offenders incarcerated due to revocation of 

their probation. See Commonwealth v. Rivera, 10 A.3d 1276 (Pa. Super. 

2010). 

At the time Megan’s Law II was enacted, Appellee, Steven McCullough, 

was incarcerated following the trial court’s revocation of his probation on his 

underlying conviction of indecent assault. After his release, McCullough 
J-E02002-16

- 2 -

began registering as a sexual offender. He was later prosecuted for his 

failure to register under the Sexual Offender Registration and Notification Act 

(“SORNA”), which ultimately replaced Megan’s Law II. See 42 Pa.C.S.A. §§ 

9799.10-9799.41 (effective December 20, 2012). Relying on Rivera, the 

trial court ordered that McCullough be removed from the sexual offender 

registry. 

The Commonwealth appealed, on the theory that Rivera was 

incorrectly decided. Though this case came before us in order to resolve 

conflicting applications of Rivera, we find we must instead decide 

McCullough’s case based on the Pennsylvania Supreme Court’s recent 

disposition in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). 

Therefore, we affirm the trial court’s order removing McCullough from the 

sexual offender registry.

During the pendency of this appeal, our Supreme Court issued its 

decision in Muniz. Muniz challenged SORNA’s increase in required 

registration length for certain offenses, when the registrable offense 

occurred prior to the imposition of SORNA. Muniz was convicted of indecent 

assault of a person under 13 years of age, which carried a ten-year 

registration requirement under Megan’s Law II at the time he committed the 

act and was convicted. Before the trial court sentenced Muniz, SORNA 

became law in Pennsylvania. Under SORNA, Muniz was subject to lifetime 

reporting requirements as a sexual offender based on his previous 

conviction. The Muniz Court held that Pennsylvania’s SORNA is an 
J-E02002-16

- 3 -

unconstitutional ex post facto law when applied retroactively to those sexual 

offenders convicted of applicable crimes before the act’s effectiveness date 

and subjected to increased registration requirements under SORNA after its 

passage. 

Instantly, McCullough was convicted in 1994 of indecent assault 

involving a victim over 13 years of age, 18 Pa.C.S.A. § 3126. He was 

sentenced to five years of probation. At that time, defendants with indecent 

assault convictions were not subject to sexual offender registration 

requirements. The trial court revoked McCullough’s probation in 1997, and 

sentenced him to nine to twenty-three months’ incarceration, followed by an 

additional three years of probation. The court revoked McCullough’s 

probation again on November 17, 1999, and sentenced him to a further 

eleven and a half to twenty-three months’ incarceration, followed by another 

consecutive three years of probation.1 On July 10, 2000, while McCullough 

was still incarcerated for his second probation violation, Megan’s Law II was 

enacted. The law required defendants convicted of indecent assault to 

register as sexual offenders for ten years. 

Following his incarceration, McCullough began registering as a sexual 

offender under Megan’s Law II. The affidavit of probable cause lists April 7, 

2004, as the start date of McCullough’s ten-year registration period under 

____________________________________________

1 The record indicates McCullough’s incarceration for his second probation 

violation began on March 6, 2000. 
J-E02002-16

- 4 -

Megan’s Law II. See Criminal Complaint, filed September 3, 2013. 

McCullough stipulated to the information contained in the affidavit of 

probable cause and does not dispute this date on appeal. 

Even if we found that McCullough was properly subject to Megan’s Law 

II and his registration period began on April 4, 2004, McCullough’s ten-year 

registration period under Megan’s Law II would have ended on April 7, 2014. 

The Commonwealth’s appeal relies upon SORNA’s inclusion of McCullough as 

a registrable offender for an increased total of twenty-five years, because 

McCullough had not completed his registration requirements on SORNA’s 

effective date of December 20, 2012. However, we need not determine 

whether McCullough was properly subject to Megan’s Law II and thus 

presently subject to registration under SORNA, as he is no longer required to 

register as a sexual offender based on the holding in Muniz. 

At first blush, it may appear that Commonwealth v. Demora, 149 

A.3d 330 (Pa. Super. 2016), still procedurally controls this case. It does not. 

Demora held that the Pennsylvania State Police (“PSP”) must be joined as 

an indispensable party in an action for removal from the sexual offender 

registry. The panel in Demora found that failure to join the PSP in such an 

action deprived the trial court of subject matter jurisdiction. However, our 

Supreme Court’s decision in Muniz undercuts the reasoning of Demora in 

two ways. First, it implicitly overrules Demora by removing Muniz from the 

sexual offender registry despite his failure to join the PSP in his removal 
J-E02002-16

- 5 -

action. Second, it holds that registration is a criminal sanction, subject to ex 

post facto considerations, which abrogates our holding in Demora. The 

rationale behind Demora was based on prior cases holding that registration 

was ancillary to sentencing and not part of the criminal sentence. Thus, to 

avoid any confusion, we now explicitly recognize Muniz overrules Demora. 

Consequently, we affirm the trial court’s order removing McCullough from 

the sexual offender registry. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2017