J-S12026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KIRK KAPEACE GILLUMS

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1601 EDA 2019

Appeal from the Judgment of Sentence Entered May 13, 2019

In the Court of Common Pleas of Bucks County Criminal Division at 

No(s): CP-09-CR-0001985-2019

BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 22, 2021

Kirk Kapeace Gillums (Appellant) appeals pro se from the judgment of 

sentence entered in the Bucks County Court of Common Pleas, following his 

entry of a negotiated nolo contendere plea to indecent assault1 and other 

offenses. This appeal returns to this panel after we remanded, on April 13, 

2020, for the trial court to conduct a Grazier2 hearing. The trial court has 

determined Appellant may proceed pro se on appeal, and both parties have 

filed new briefs in this Court. Appellant now: (1) presents several claims of 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3126(a)(1).

2 See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (when waiver 

of right to counsel is sought at appellate stage, on-the-record determination 

should be made that waiver is knowing, intelligent, and voluntary).
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both ineffective assistance of counsel and challenges to the discretionary 

aspect of sentencing; (2) argues his sentence is illegal because the trial court 

failed to award sentencing credit and because the prison is unsafe due to the 

COVID-19 pandemic; and (3) contends his SORNA registration requirements 

are unconstitutional. We affirm.

The trial court summarized the underlying facts as follows:

In early August of 2017, the victim, [L.B.], contacted Schneider 

Moving and Storage via an on-line inquiry to provide long distance 

moving services from her current apartment . . . in Newtown 

Township, Bucks County, to her new home . . . in Winter, 

Wisconsin. [T]he victim was given a quote and was informed that 

Kirk[, (Appellant’s first name),] was her account manager and that 

she should contact him directly on his cell phone. The victim never 

got a last name or any other identifying infowrmation.

In the following weeks Kirk and the victim had several text

conversations about the details[.] On August 17th, 2017, [L.B.] 

received a text from Kirk informing that the original quote was 

broad and with an in-home visit he may be able to reduce it by as 

much as 20 percent. They decided the visit would occur on August 

29th of 2017.

On the 29th of August, [s]hortly after 10:00 a.m., a black male[, 

Appellant,] arrived on the property as a rear passenger inside a 

sedan. The male came to the door introducing himself as Kirk, 

and the victim invited him into the apartment. The victim and 

[Appellant] had coffee while affirming details[.]

They then walked around the apartment to assess the work, 

during which the victim felt Kirk brush up against her bottom 

several times. Once they were done the walk-through they 

negotiated an amount. The victim, based on prior conversations, 

said that the down payment was going to be $1,100 in cash, but 

Kirk said it was now $1[,]440. The victim provided Kirk with cash 

of $1[,]440, and he said he would [e-mail a receipt] to her.

As they walked to door, Kirk asked for a hug. The victim thought 

it was odd but also thought that he seemed like a nice man, so 
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she gave him a hug. While doing so, Kirk began roughly grabbing 

her vaginal area and sliding his fingers around while whispering in 

her ear, “I want to fuck your pussy.” Kirk also kissed her while 

inserting his tongue into her mouth, and she pulled away. Kirk

then turned and walked out the door.

The victim began crying and had her son call 911.

Minutes after Kirk left the house, the victim received a text from 

Kirk’s cell that contained a digital image of [Appellant] sitting 

behind a desk that said, “Why don’t you take a road trip to my 

house you Wicked Witch.” The text was followed by a digital 

image of a black penis.

The victim complained of vaginal pain and went to Aria-Bucks 

Hospital, where she underwent a sexual assault exam. [T]he 

medical staff described abrasions to the vaginal area that were 

also digitally photographed.

[In the investigation, the police identified Appellant] with the cell 

phone number provided as the probable possessor of it, with [an] 

address in New York. [The police] prepared a [photo] line-up for 

the victim, who immediately identified [Appellant] as the 

individual who assaulted her.

[The police] contacted . . . Schneider Moving and Storage and 

confirmed that Kirk had been employed there; however, had not 

been for two weeks for similar actions. The move that was 

scheduled with the victim did not take place.

Trial Ct. Op., 7/20/20, at 1-3 (footnote omitted).

On May 13, 2019, Appellant entered a negotiated nolo contendere plea 

to indecent assault, simple assault, and theft by unlawful taking.3 He was 

represented by Bucks County Assistant Public Defender Bradley Bastedo, Esq. 

The trial court immediately imposed the sentences negotiated by the parties: 

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3 18 Pa.C.S. §§ 2701(a)(1), 3921(a).
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(1) two consecutive terms of one to two years’ imprisonment, for indecent 

assault and simple assault; (2) a consecutive three years’ probation for theft 

by unlawful taking; and (3) restitution of $2,264.12.4 N.T., Nolo Contendere 

Plea & Sentencing H’rg, 5/13/19, at 7-8, 31. The aggregate sentence was 

thus two to four years’ imprisonment and three years’ probation, and was to 

be served concurrently with any other sentence “he might be serving, 

particularly that in Connecticut.” Id. at 31-32. Finally, the court ordered 

Appellant to comply with SORNA registration for a period of 15 years.5 Id. at 

18. We note that at the time of this hearing, Appellant was serving a sentence 

in Connecticut, and would be remanded to the Connecticut prison. Id. at 20, 

29. 

On May 28, 2019, Appellant, although represented by counsel, filed a 

timely pro se notice of appeal. Attorney Bastedo subsequently averred he was 

not aware Appellant would file a pro se notice of appeal.6 In any event, we 

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4 The restitution amount included the $1,440 cash that Appellant took from 

the victim, as well as the cost of the flight and hotel for the victim — who had 

moved to Wisconsin — to appear at the sentencing hearing. N.T. at 27-28.

5 Pennsylvania Sex Offender Registration and Notification Act, 42 Pa.C.S. 

§§ 9799.10 to 9799.42. See 42 Pa.C.S. §§ 9799.14(b)(6) (classifying 

indecent assault as Tier I offense), 9799.15(a)(1) (requiring Tier I offender to 

register for 15 years).

6 Appellant’s Petition for Extension of Time to File Docketing Statement, 

6/19/19, at 1; Appellant’s Petition for Extension of Time to File Statement of 

Matters Complained of on Appeal, 6/19/19, at 1.
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note Appellant did not file any post-sentence motion. The trial court properly 

entered the pro se notice of appeal on the docket, forwarded notice to Attorney 

Bastedo,

7 and directed Appellant to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal. The ensuing procedural history was set forth 

in detail in this Court’s April 13, 2020, memorandum, and we need not repeat 

it.

8

 At this juncture, we summarize the following salient points: no Rule 

1925(b) statement was ever filed. Attorney Bastedo advised both the trial 

court and this Court that he had attempted, unsuccessfully, to communicate 

with Appellant in the Connecticut prison. Nevertheless, Appellant continued 

to file pro se documents in this Court.9 Upon this Court’s October 15, 2019, 

per curiam order, the trial court conducted a Grazier hearing and permitted 

Appellant to proceed pro se. Thereafter, Appellant filed a pro se brief. This 

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7 See Pa.R.Crim.P. 576(A)(4) (if represented criminal defendant submits for 

filing a written notice that has not been signed by his attorney, clerk of courts 

shall accept it for filing, and copy of time-stamped document shall be 

forwarded to defendant’s attorney and Commonwealth within 10 days). This 

Court likewise entered the notice of appeal on our docket. See Superior Ct. 

O.P. § 65.24 (pro se notice of appeal received from trial court shall be 

docketed, even where appellant is represented by counsel). 

8 See Commonwealth v. Gillums, 1601 EDA 2019 (unpub. memo. at 3-5) 

(Pa. Super. Apr. 13, 2020).

9 On August 29, 2019, this Court sent a Jette letter to counsel, enclosing the 

pro se documents received from Appellant. See Commonwealth v. Jette, 

23 A.3d 1032, 1044 (Pa. 2011) (proper response to any pro se pleading is to 

refer pleading to counsel, and to take no further action on pro se pleading 

unless counsel forwards a motion).
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panel concluded, however, Appellant’s issues would be waived for Attorney 

Bastedo’s failure to comply with the trial court’s Rule 1925(b) order.10 We 

thus remanded, on April 13, 2020, for the trial court to conduct a second

Grazier and to allow Appellant, whether pro se or with counsel, to file a Rule 

1925(b) statement nunc pro tunc.

The trial court has conducted the Grazier hearing and determined 

Appellant may proceed pro se. Appellant filed a Rule 1925(b) statement, the 

trial court issued an opinion, and both parties have filed new briefs in this 

Court.

Preliminarily, we note deficiencies in Appellant’s pro se brief. He has 

failed to include a statement of questions involved in his brief. See Pa.R.A.P. 

2111(a)(4) (appellant’s brief shall include, separately and distinctly entitled, 

a statement of the questions involved); 2116(a) (“The statement of the 

questions involved must state concisely the issues to be resolved, expressed 

in the terms and circumstances of the case but without unnecessary detail.”). 

The argument section of his brief, entitled “Memorandum of Law,” does not 

include headings. See Pa.R.A.P. 2119(a) (“The argument shall be divided into 

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10 See Commonwealth v. Parrish, 224 A.3d 682, 693 (Pa. 2020) (“[A]ll 

appellants must file a Rule 1925(b) statement, if ordered to do so by the trial 

court, enumerating all issues they wish to have the appellate court consider, 

or those issues will be deemed waived for appellate review.”) The 

Commonwealth acknowledged, in its brief, that the failure to file a Rule 

1925(b) statement does not appear to have been caused by any fault of 

Appellant.
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as many parts as there are questions to be argued; and shall have at the head 

of each part — in distinctive type or in type distinctively displayed — the 

particular point treated therein, followed by such discussion and citation of 

authorities as are deemed pertinent.”). Furthermore, the argument itself, 

rather than being organized by issues, jumps from claim to claim, and some 

claims are discussed, to varying degrees, over different pages. These defects

are amplified by Appellant’s general lack of meaningful discussion. See id.; 

Appellant’s Brief at 5-15. As a result, Appellant’s argument is a disorganized 

assortment of prolix bald accusations.

We remind Appellant that “pro se defendants are subject to the same 

rules of procedure as are represented defendants,” “pro se status confers no 

special benefit upon a litigant, and a court cannot be expected to become a 

litigant’s counsel or find more in a written pro se submission than is fairly 

conveyed in the pleading.” See Commonwealth v. Blakeney, 108 A.3d 

739, 766 (Pa. 2014). Nevertheless, because we may discern the gist of 

Appellant’s claims, we will address them. Briefly, Appellant’s issues are: (1) 

claims of ineffective assistance of counsel; (2) challenges to the discretionary 

aspects of his sentence; (3) an illegal sentence claim due to the court’s failure 

to award sentencing credit; (4) the unconstitutionality of SORNA registration 

requirements; and (5) an illegal sentence due to unsafe COVID-19 conditions 

at the prison.
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First, Appellant raises multiple claims of plea counsel’s alleged 

ineffective assistance. Appellant avers counsel was unavailable “following 

Appellant’s sentencing hearing” and “did not file a post-sentence motion, 

PCRA[11] application or direct appeal,” and thus “Appellant, a layman at 

matters of law, had to file his Notice of Appeal, pro se, on May 28th, 2019.” 

Appellant’s Brief at 5, 7. Appellant also alleges counsel: (1) “did not have a 

reasonable basis for advising [him] to plead nolo contendere to . . . Indecent 

Assault;” (2) “failed to fully explain the risks and ramifications” relating to 

SORNA; and (3) did not raise “an objection to the Court’s failure to entertain 

mitigating factors[12];” and (4) lacked sufficient “knowledge of the Jail-Time 

Credit Act as [counsel] failed to advise Appellant that his nolo contendere plea 

was in exchange for a definite sentence with a specific start date, absent time 

served.” Id. at 6, 10.

We conclude these ineffective claims are waived, as Appellant did not 

raise them before the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in 

the trial court are waived and cannot be raised for the first time on appeal.”).

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11 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9545.

12 Appellant provides no further explanation for this reference to “mitigating 

factors,” aside from a citation to Commonwealth v. Tigney, 730 A.2d 968

(Pa. Super. 1999). Appellant’s Brief at 6. We note Tigney addressed a claim 

that “trial counsel was ineffective for not raising an objection to the trial court’s 

failure to inform him of his right of allocution pursuant to [former] 

Pa.R.Crim.P. 1409(C)(1),” now renumbered as Pa.R.Crim.P. 704(C)(1). Id.

at 969. Tigney did not, however, make any mention of “mitigating factors.”
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Furthermore, we agree with the trial court that claims of ineffective 

assistance of counsel are generally “not eligible under direct appeal, but 

should be brought instead under the” PCRA. See Trial Ct. Op. at 5. The 

Pennsylvania Supreme Court has explained:

[W]here the defendant seeks to litigate multiple or prolix claims 

of counsel ineffectiveness . . . on post-verdict motions and direct 

appeal, we repose discretion in the trial courts to entertain such 

claims, but only if (1) there is good cause shown, and (2)

the unitary review so indulged is preceded by the 

defendant’s knowing and express waiver of his entitlement 

to seek PCRA review from his conviction and sentence, including 

an express recognition that the waiver subjects further collateral 

review to the time and serial petition restrictions of the PCRA.

Commonwealth v. Holmes, 79 A.3d 562, 564 (Pa. 2013) (emphases added 

and footnotes omitted). As Appellant did not raise any ineffectiveness claims 

before the trial court, he likewise did not show “good cause” why pre-collateral 

review is proper, nor did he waive his PCRA rights. See id. Accordingly, we 

conclude no relief is due, without prejudice to Appellant to properly raise these 

issues in PCRA proceedings.

Next, Appellant raises the following various challenges to his sentence: 

“The Court colloquy was inadequate, insofar [as] the sentencing judge did not 

place on the record the reasons for dispensing with the pre-sentence 

investigation report[.]” Appellant’s Brief at 7. The trial court miscalculated 

his prior record score and offense gravity score, and “neglect[ed] to consider 

mitigating factors or the incongruousness of Appellant’s out-of-state record.” 

Id. at 7-8. At the preliminary arraignment, his counsel and the 
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Commonwealth “agreed to a sentence of two to four years.” Id. at 8. “[T]he 

offenses served as the sole basis for determining the sentence.” Id. We 

conclude these claims are waived.

These claims go to the discretionary aspects of sentencing. See 

Commonwealth v. Sunealitis, 153 A.3d 414, 421 (Pa. Super. 2016) (claim 

of improper calculation of offense gravity score); Commonwealth v. 

Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003) (challenge to calculation 

of prior record score); Commonwealth v. Goggins, 748 A.2d 721, 727-28

(Pa. Super. 2000) (en banc) (claim that sentencing court failed to state

adequate reasons for dispensing with a pre-sentence report). 

As stated above, Appellant entered into a negotiated nolo contendere

plea, and received the sentence agreed upon: two consecutive terms of one 

to two years’ incarceration, to be followed by three years’ probation. N.T. at 

7-8, 31. Accordingly, he may not now challenge the discretionary aspects of 

his sentence. See Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. 

Super. 2017) (“It is well settled when . . . the plea agreement contains a 

negotiated sentence which is accepted and imposed by the sentencing court, 

there is no authority to permit a challenge to the discretionary aspects of that 

sentence.”). Additionally, these sentencing claims are waived, as Appellant 

did not raise them at sentencing or in any post-sentence motion. See 

Sunealitis, 153 A.3d at 420 (to preserve an appellate challenge to the 
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discretionary aspects of a sentence, an appellant must, inter alia, preserve 

the issue at sentencing or in a motion to reconsider and modify sentence).

Third, Appellant contends his sentence is illegal because the trial court 

did not grant him sentencing credit, from March 20 to May 13, 2019, when he 

was “in custody” as a result of the instant criminal charges. Appellant’s Brief 

at 9. He avers: (1) “Although [he] was officially detained in Connecticut prior 

to sentencing, [he] is entitled to [this] credit[;]” (2) the fact that Connecticut 

“was the first to arrest Appellant was immaterial, as the doctrine of primary 

jurisdiction does not determine how credit is allocated when two or more 

sovereigns imposed sentences;” and (3) “Appellant’s pretrial incarceration 

was attributable to both the CT detainer and the new criminal charges.” Id.

at 9-10. He then reasons that the Connecticut “incarceration was not already 

credited to his CT detainer, because the PA Court did not have the discretion 

to give Appellant ‘double credit’ for time already served concurrently.” Id. at 

11. No relief is due.

We note Appellant did not raise the issue of sentencing credit before the 

trial court. However, this claim goes to the legality of his sentence and thus 

cannot be waived. See Commonwealth v. Druce, 868 A.2d 1232, 1235 (Pa 

Super. 2005). “[T]he issue of whether a sentence is illegal is a question of 

law; therefore, our task is to determine whether the sentencing court erred 

as a matter of law and, in doing so, our scope of review is plenary.” Id. at 

1236. 
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Section 9760 of the Sentencing Code provides:

After reviewing the information submitted under section 9737 

(relating to report of outstanding charges and sentences) the 

court shall give credit as follows:

(1) Credit against the maximum term and any minimum 

term shall be given to the defendant for all time spent in 

custody as a result of the criminal charge for which 

a prison sentence is imposed or as a result of the 

conduct on which such a charge is based. Credit 

shall include credit for time spent in custody prior to trial, 

during trial, pending sentence, and pending the 

resolution of an appeal.

42 Pa.C.S. § 9760(1) (emphasis added). Credit may not be awarded for time 

served on charges unrelated to the sentence for which a defendant seeks 

credit. See Taglienti v. Dep’t of Corr., 806 A.2d 988, 991-92 (Pa. Cmwlth. 

2002) (“It is clear that the first three [subsections of] Section 9760 do not 

permit a sentencing court to provide a prisoner with credit for time served on 

another unrelated offense.”); Doria v. Pa. Dep’t of Corr., 630 A.2d 980, 982 

(Pa. Cmwlth. 2002) (“[T]he rule in Pennsylvania is well settled that credit for 

pre-sentence custody time cannot be earned against criminal charges 

pending in a different county.”).

13

Although the trial court did not address the merits of this claim, see

Trial Ct. Op. at 8, the Commonwealth points out — and Appellant’s own 

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13 “While decisions of the Commonwealth Court are not binding upon us, they 

may serve as persuasive authority.” Commonwealth v. Simmons, 56 A.3d 

1280, 1284 n.1 (Pa. Super. 2012).
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argument concedes — that he was incarcerated in Connecticut on Connecticut 

charges during the 54-day period for which he now demands credit. See

Commonwealth’s Brief at 15; Appellant’s Brief at 9 (“Although [he] was 

officially detained in Connecticut prior to sentencing, [he] is entitled to [this] 

credit.”). A careful review of Appellant’s brief reveals the absence of contrary 

argument that would support his claim for sentencing credit; Appellant does 

not aver his detention in Connecticut was solely a result of the instant 

charges, nor does he claim he did not receive credit for that time on his 

Connecticut charges. Thus, we agree with the Commonwealth that “Appellant 

has provided no argument or legal authority . . . why he is entitled to this 

credit as he was serving another sentence in Connecticut during that same 

time period.” See Commonwealth’s Brief at 15. We reiterate that we “cannot 

be expected to become a litigant’s counsel or find more in a written pro se

submission than is fairly conveyed in the pleading.” See Blakeney, 108 A.3d 

at 766. For the foregoing reasons, no relief is due.

Fourth, Appellant argues the trial court’s “application of the SORNA 

statute was an abuse of discretion” and the imposition of SORNA registration 

requirements “without a jury trial is unconstitutional.” Appellant’s Brief at 12. 

He also “avers the disconnect between sexually violent predators (‘SVPs’) and 

misdemeanor indecent assault with no sexual element is so broad as to 

constitute judicial overreach.” Id.
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These challenges to Appellant’s registration requirements are waived 

because they were not raised before the trial court. See Pa.R.A.P. 302(a); 

Commonwealth v. Resklink, 2020 WL 7415959 at ** 3-4 (Pa. Super. 2020)

(defendant waived appellate challenge to SORNA registration where he did not 

raise them “before the trial court, in a motion to bar application of SORNA, or 

in post-sentence motions,” and instead raised them “for the first time on 

appeal”). Furthermore, Appellant is mistaken that the trial court had 

discretion to choose whether to impose the provisions of SORNA, or that a 

jury trial was required before SORNA was applied. Instead, the provisions, 

whenever invoked by the fact of a defendant’s conviction, are mandatory. See

42 Pa.C.S. § 9799.23(b)(1) (“All sexual offenders must register in accordance 

with this subchapter. . . . Failure by the court to provide the information 

required in this section, to correctly inform a sexual offender of the sexual 

offender’s obligations or to require a sexual offender to register shall not 

relieve the sexual offender from the requirements of this subchapter.”).

Appellant’s final claim is that his sentence is illegal because unsafe 

COVID-19 conditions exist at his prison, SCI-Chester. Appellant’s Brief at 13. 

He cites “[t]he potential outbreak of COVID-19 in facilities housing adult 

offenders” and the “inadequate” action by the Pennsylvania Department of 

Corrections (DOC) “to mitigate the potential of an institutional health crisis.” 

Id. Appellant maintains he is 57 years old, is African American, and has 

“preexisting medical conditions and an immune deficiency.” Id. He avers 
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that continued incarceration during the “pandemic may subject [him] to illness 

or death and a violation of his right to due process and not to be subject to 

cruel and unusual punishment.” Id. No relief is due.

We note that whereas Appellant was sentenced on May 13, 2019, the 

COVID-19 pandemic in Pennsylvania did not begin until the spring of 2020. 

The pandemic is not related to the trial court’s authority to impose the 

sentence, and thus cannot be the basis of any alleged illegality. Furthermore, 

as the trial court points out, any issue relating to safety conditions of the 

prison are not proper in a direct appeal, see Trial Ct. Op. at 8, but instead 

would be properly addressed to the Department of Corrections.

As we conclude none of Appellant’s claims merit relief, we affirm the 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/21