J-S28005-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEVIN SMALLER,

Appellant No. 699 EDA 2013

Appeal from the Judgment of Sentence January 29, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): 

CP-51-CR-0005562-2011

CP-51-CR-0006602-2009

CP-51-CR-0006605-2009

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 01, 2016

Kevin Smaller1appeals from the judgment of sentence of twelve and 

one-half to thirty years imprisonment followed by five years probation. The 

sentence was imposed after Appellant tendered a nolo contendere plea at 

four criminal actions. We affirm. 

Appellant was charged at four separate criminal cases with numerous 

offenses relating to his sexual abuse of children. At criminal case 6602 of 

2009, the Commonwealth averred that between 2003 and 2008, when the 

____________________________________________

1 We note that Appellant’s name is spelled as Kevin K K. Smaller as well as 

Kevin K. Smaller in various documents of record. Appellant, however, omits 

any middle initial when he executes documents. 
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victim M.B. was ten to fifteen years old, Appellant attempted to rape the girl. 

He repeatedly exposed his penis to the complainant, touched her thighs and 

vagina, and attempted to penetrate her anus and vagina with his penis. At 

case number 6605-2009, Appellant was accused of sexually abusing I.S. 

when she was eight to eleven years old. As was the case with M.B., 

Appellant exposed his penis to I.S., touched her legs, thighs, and vagina, 

and attempted to penetrate the child’s anus and vagina with his penis. At 

criminal action 5562-2011, Appellant abused M.C. when he was between the 

ages of seven and nine years old by repeatedly and forcibly penetrating the 

boy’s anus with his penis. At the case number 1645 of 2010, Appellant was 

accused of repeatedly raping I.C. vaginally and anally. The girl was five to 

nine years old when the sexual abuse occurred. 

The four matters were consolidated for trial, and a jury was selected. 

Just before the trial was to begin, Appellant tendered a negotiated nolo 

contendere plea encompassing all four cases. At numbers 6602-2009 and 

6605-2009, Appellant pled nolo contendere to two counts each of attempted 

rape and unlawful contact with a minor. At number 1645 of 2010, Appellant 

tendered a nolo contendere plea to one count of rape. On the fourth matter, 

case number 5562 of 2011, Appellant’s plea was to a single count of 

involuntary deviate sexual intercourse. 

Appellant indicated that no one forced or threatened him in any way to 

plead nolo contendere, that the decision was his and his alone, and that he 
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was satisfied with the services of his attorney. N.T. Trial (Jury), 1/29/13, at 

15. The trial court accepted the guilty plea and imposed the negotiated 

sentence of twelve and one-half to thirty years followed by five years 

probation. Sentence was imposed on three cases, numbers 6602-2009, 

6605-2009, and 5562-2011. However, the trial court did not impose a 

sentence at number 1645 of 2010, as it wanted to order a presentence 

report, a mental health evaluation, and a Megan’s Law assessment for 

purposes of that action. The Commonwealth formally waived certain 

mandatory minimum sentences that were applicable in all the cases, and the 

matter was concluded. Appellant did not orally move to withdraw his plea 

during the January 29, 2013 proceeding. At that time, Appellant was 

represented by Richard L. DeSipio, Esquire. 

Thereafter, on February 28, 2013, W. Fred Harrison, Jr. Esquire, filed 

the present appeal at criminal cases 6602-2009, 6605-2009, and 5562-

2011. Our review of the public docket sheet for case number 1645-2010 

reveals that Appellant was permitted to withdraw his nolo contendere plea 

therein and, on September 8, 2014, the Commonwealth nolle prossed that 

case. In its brief filed herein, the Commonwealth reports that its withdrawal 

was premised upon the fact that it had no effect on sentencing since 

Appellant already received the sentence negotiated in exchange for his nolo 

contendere plea. 
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We have carefully reviewed the dockets and certified records of the 

three actions involved in the present appeal. Appellant failed to file a motion 

to withdraw in any case. On November 7, 2014, present counsel, Charles A. 

Klein, filed an entry of appearance on Appellant’s behalf in these actions. On 

January 7, 2015, the trial court ordered the filing of a Pa.R.A.P. 1925(b) 

statement, Appellant complied with this directive, and this appeal is now 

ready for resolution. Appellant raises these issues: 

A. Did the trial court abuse its discretion in accepting 

appellant's pleas of nolo contendere, where appellant's proffered 

pleas were null and void ab initio, as they were not made 

knowingly, intelligently and voluntarily where: a) trial counsel 

threatened to and attempted to withdraw from case if appellant 

did not accept the Commonwealth's sentencing recommendation 

offer and b) the trial court unreasonably pressured appellant to 

decide on whether to accept the plea agreement or go to trial?

B. Did Trial Counsel render ineffective assistance by 

pressuring appellant Defendant to plead nolo contendere to the 

above-charges even though defendant had steadfastly 

maintained his innocence?

C. Did Trial Counsel render ineffective assistance of 

counsel by failing to file a post-sentence motion to withdraw 

appellant's nolo contendere pleas within ten (10) days from the 

imposition of sentence?

D. Did First Appellate Counsel render ineffective assistance 

of counsel by failing to timely file a motion in the Superior Court 

requesting a remand to the trial court for the purpose of 

conducting a hearing on whether appellant should be permitted 

to withdraw his pleas of nolo contendere?

Appellant’s brief at 3. 
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Appellant’s first challenge is to the validity of his nolo contendere plea, 

which he claims was procured by coercion from the trial court and trial 

counsel. Initially, we note that, in terms of its effect on a case, a nolo 

contendere plea is considered the equivalent of a guilty plea. 

Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (“It is well 

established that a plea of nolo contendere is treated as a guilty plea in terms 

of its effect upon a given case.”). We conclude that Appellant’s first 

challenge is waived due to his failure to raise it orally at sentencing or in a 

post-sentence motion. As we have observed, 

Appellant's [challenges to the validity of his guilty plea] are 

waived because Appellant failed to file a post-sentence motion 

seeking to withdraw his guilty plea. “Issues not raised in the 

lower court are waived and cannot be raised for the first time on 

appeal.” Pa.R.A.P. 302(a), 42 Pa.C.S.A. Where an appellant fails 

to challenge his guilty plea in the trial court, he may not do so 

on appeal. Commonwealth v. Watson, 835 A.2d 786, 791 

(Pa.Super. 2003). In order to preserve an issue related to the 

guilty plea, an appellant must either “object at the . . . colloquy 

or otherwise raise the issue at the sentencing hearing or through 

a post-sentence motion.” Commonwealth v. D'Collanfield,

805 A.2d 1244, 1246 (Pa.Super. 2002).

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006). 

As Appellant neither objected at the plea colloquy/sentencing nor filed a 

post-sentence motion to withdraw his guilty plea, his challenge to the 

validity of his guilty plea is waived. 

Appellant’s remaining claims relate to ineffective assistance of counsel. 

He avers that trial court was ineffective for coercing him into accepting a 
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plea and for failing to file a motion to withdraw it. He also accuses prior 

appellate counsel of rendering ineffective assistance of counsel by failing to 

seek a remand for a hearing on whether Appellant should have been 

permitted to withdraw his plea. 

Our Supreme Court announced in Commonwealth v. Grant, 813 

A.2d 726 (2002), that allegations of ineffective assistance of counsel will no 

longer be entertained on direct appeal. Rather, such claims are to be 

pursued pursuant to the provisions of the Post-Conviction Relief Act, 42 

Pa.C.S. §§ 9541, et seq. Our Supreme Court more recently articulated, 

“[W]e hold that Grant's general rule of deferral to PCRA review remains the 

pertinent law on the appropriate timing for review of claims of ineffective 

assistance of counsel[.]” Commonwealth v. Holmes, 79 A.3d 562, 563 

(Pa. 2013). 

Appellant is aware of this precept and, in connection with his final 

three contentions on appeal, states the following: “Constrained by 

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), appellant reserves 

the right to more fully develop his claims of ineffective assistance of trial 

counsel [for pressuring him to enter a nolo contendere plea] for future 

proceedings after the direct appeal has been ‘finally decided.’” Appellant’s 

brief at 17; Accord Appellant’s brief at 18 (“Constrained by 

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), appellant reserves 

the right to more fully develop his claims of ineffective assistance of trial 
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counsel and his first appellate counsel” in connection with their neglect to file 

a motion to withdraw his guilty plea and ask for a hearing on the request to 

withdraw “for future proceedings after the direct appeal has been ‘finally 

litigated.’”); Appellant’s brief at 19 (same). Accordingly, Appellant’s final 

three claims, which pertain to ineffective assistance of counsel, are deferred 

to collateral review. 

Judgment of sentence affirmed. 

Judge Lazarus Joins the memorandum.

Judge Platt Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/1/2016