J-S11009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HAKEEM LATEEF RAK SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1282 EDA 2022

Appeal from the Judgment of Sentence Entered April 12, 2022

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

No(s): CP-15-CR-0003637-2018

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 31, 2023

Appellant, Hakeem Lateef Rak Smith, appeals from the judgment of 

sentence entered on April 12, 2022 in the Criminal Division of the Court of 

Common Pleas in Chester County, as made final by the denial of Appellant’s 

post-sentence judgment on May 12, 2022. We affirm.

The trial court has aptly summarized the historical and procedural facts 

as follows.

On September 13, 2018, [] Samuel Algarin went to work, took his 

children to martial arts class, and then went for pizza with his 

mother and children. After that, at approximately 9:30 [p.m.] to 

9:40 p.m., his mother dropped him off at Starbucks, where his 

vehicle, a GMC Terrain, was parked. [] Algarin’s body was 

subsequently discovered near the side of the road close to the 

Starbucks with a single gunshot wound. His [mobile telephone] 

was found in a field approximately two miles from where his body 

was found.

Video from an unrelated event shows [Appellant near] Starbucks 

[on the evening of September 13, 2018]. [Appellant ] was walking 
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northbound on Route 10, the same direction [] Algarin was 

driving. Surveillance video from a Turkey Hill [convenience] store 

near the Starbucks also shows [Appellant] driving [] Algarin’s 

vehicle at 9:49 p.m. that night. He pulled up to the gas pumps, 

but did not know [on which side of the vehicle the gas tank was 

located]. He had to get back into the vehicle and reposition it so 

that the gas tank was on the correct side closest to the gas pump. 

The vehicle was found in Westtown Township, and [Appellant’s] 

palm print was discovered on the vehicle. In addition, 

[Appellant’s] fingerprint was found on [] Algarin’s [mobile 

telephone], and [] Algarin’s [genetic material] was found on 

[Appellant’s] pants. There was also video of [Appellant] wiping 

down [Algarin’s] vehicle, which tends to show [] consciousness of 

guilt. Moreover, [Appellant] sent photograph’s of [] Algarin’s 

vehicle to a friend, Kassemah Chapman, and also confessed to her 

that he killed someone to [obtain] money. [Appellant also 

conducted] Google searches of [] Algarin’s murder.

[Based upon the foregoing evidence, Appellant] was charged with 

first-degree murder [(18 Pa.C.S.A. § 2502(a))], second-degree 

murder [(18 Pa.C.S.A. § 2502(b))], robbery – inflict[s] serious 

bodily injury [(18 Pa.C.S.A. § 3701(a)(1)(iv))], robbery of a motor 

vehicle [(18 Pa.C.S.A. § 3702(a))], and theft by unlawful taking 

[(18 Pa.C.S.A. § 3921(a))]. [On December 9, 2021, a jury found 

Appellant not guilty of first-degree murder, but convicted him] of 

all other charges. On April 12, 2022, [Appellant received a 

sentence of life imprisonment], which is the mandatory [] 

sentence for second-degree murder.

Appellant thereafter filed a notice of appeal on May 5, 2022. On 

May 12, 2022, [the trial court ordered Appellant to file a concise 

statement of errors] complained of on appeal, which was received 

on August 4, 2022. See Pa.R.A.P. 1925(b). The trial court issued 

its Rule 1925(a) opinion on November 16, 2022. This appeal 

followed.1]

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1 Counsel for Appellant filed a timely post-sentence motion on April 13, 2022. 

While that motion remained pending, counsel - on May 5, 2022 – filed a notice 

of appeal stating that the appeal challenged Appellant’s December 9th, 2021 

conviction together with the sentence imposed on April 12, 2022. Although 

counsel filed a notice of appeal before resolution of a timely post-sentence 

motion, we shall treat the notice as timely filed.

(Footnote Continued Next Page)
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Trial Court Opinion, 11/16/22, at 1-2.

Appellant’s brief raises the following questions for our review.

Whether the trial court erroneously instructed the jury that 

whether [Appellant] killed [Algarin], “was not an issue in this 

case,” where there was no evidence presented that [Appellant] 

had conceded, admitted to, or presented evidence suggesting that 

he had killed [Algarin]?

Whether the trial court erroneously permitted color photographs 

of the autopsy, and of the victim’s body at the crime scene, to be 

displayed to the jury?

Whether the evidence was insufficient to prove beyond a 

reasonable doubt that [Appellant] was guilty as charged, as there 

was no direct evidence that [Appellant] had committed a robbery, 

and insufficient evidence of the requisite intent to second-degree 

murder?

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If a timely post-sentence motion has been filed in a criminal case, the notice 

of appeal should be filed within 30 days of the entry of an order that disposes 

of the motion. See Pa.R.Crim.P. 720(A)(2)(a); see also Pa.R.A.P. 903(a) 

(notice of appeal must be filed within 30 days of entry of order from which 

appeal is taken). Our Supreme Court has held that a premature appeal, or 

one that is filed before the resolution of a timely post-sentence motion, does 

not divest the trial court of jurisdiction to act upon the timely post-sentence 

motion and should be treated as if it were filed after the denial of the pending 

motion in accordance with Pa.R.A.P. 905(a)(5). See Commonwealth v. 

Cooper, 27 A.3d 994, 1008 (Pa. 2011); Pa.R.A.P. 905(a)(5) (“A notice of 

appeal filed after the announcement of a determination but before the entry 

of an appealable order shall be treated as filed after such entry and on the 

day thereof.”).

Here, counsel filed a notice of appeal while a timely post-sentence motion was 

pending. Hence, counsel’s notice was premature. Nevertheless, the trial court 

denied the post-sentence motion on May 12, 2022, and we may consider the 

notice timely filed on that date in accordance with Pa.R.A.P. 905(a)(5).
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Whether the trial court erroneously declined to instruct the jury 

on [Appellant’s] requested instruction regarding “a witness 

subject to special scrutiny”?

Whether the sentence of life imprisonment, a for a second-degree 

murder conviction, is unconstitutional, on these particular facts, 

with no direct evidence of a robbery?

Appellant’s Brief at 8.

In his first issue, Appellant asserts that the trial court improperly 

instructed the jury regarding the elements of second-degree murder. To 

support this claim, Appellant cites the following portion of the court’s 

instructions:

[THE COURT]: To find [Appellant] guilty of [second-degree 

murder], you must find the following three elements to be proven 

[] beyond a reasonable doubt. First, [Appellant] killed Samuel 

Algarin. That’s not an issue in this case.

N.T. 12/9/21, at 221-222 (emphasis added). Citing the bolded text, Appellant 

claims that in advising the jury that Appellant’s killing of Algarin was “not an 

issue in the case,” the trial court usurped the function of the factfinder and 

essentially directed it to find that the first element of second-degree murder 

had been proven. See Appellant’s Brief at 14. Appellant failed to preserve 

this claim for appellate review.

Claim preservation is central to appellate review. “Issues not raised in 

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

Pa.R.A.P. 302(a); see also Pa.R.A.P. 302(b) (requiring specific exception to 

preserve challenges to jury instructions). Moreover, timely submission of a 

court-ordered Rule 1925(b) statement is required to preserve merits review
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on appeal; hence, when a concise statement under Rule 1925(b) is ordered, 

appellants must comply or accept default on omitted claims. See 

Commonwealth v. Lane, 81 A.3d 974, 979-980 (Pa. Super. 2013), appeal 

denied, 92 A.3d 811 (Pa. 2014). Appellant did not object to the trial court’s 

instruction concerning the first element of the offense of second-degree

murder and Appellant omitted this claim from his concise statement. In view

of these circumstances, Appellant waived appellate review of his opening 

claim.

In his second claim, Appellant asserts that the trial court abused its 

discretion by permitting color photographs of the murder victim to be 

published to the jury, when black and white photographs were available. One 

photograph was taken of the victim’s body at the crime scene and a second 

photograph, which focused on the victim’s gunshot wound, was captured at 

the autopsy. Appellant concedes the relevance of the challenged photographs, 

but suggests, without elaboration, that the risk of inflaming the passions of 

the jury outweighed the evidentiary value of the pictures. See Appellant’s 

Brief at 17.

The following principles govern the admission of photographs depicting 

homicide victims.

The admission of evidence is solely within the discretion of the 

trial court, and a trial court's evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion. Commonwealth 

v. Reid, 99 A.3d 470, 493 (Pa. 2014). An abuse of discretion will 

not be found based on a mere error of judgment, but rather occurs 

where the court has reached a conclusion that overrides or 
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misapplies the law, or where the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will. 

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014).

When the Commonwealth seeks to introduce photographs of a 

homicide victim into evidence, the trial court must engage in a 

two-part analysis. First, the trial court must examine whether the 

particular photograph is inflammatory. Commonwealth v. 

Murray, 83 A.3d 137, 156 (Pa. 2013). If the photograph is not 

inflammatory, it may be admitted if it is relevant and can serve to 

assist the jury in understanding the facts of the case. Id. If the 

photograph is inflammatory, the trial court must determine 

whether the photograph is of such essential evidentiary value that 

its need clearly outweighs the likelihood of inflaming the minds 

and passions of the jurors. Id.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).

The trial court did not abuse its discretion in admitting the challenged 

photographs. The court accepted the Commonwealth’s explanation that the 

pictures were needed to visually demonstrate for the jury several features of 

the corpse that would be addressed in the testimony of the Commonwealth’s 

witnesses, including the position of the victim’s body, the state of his clothing, 

and the lack of blood. The court allowed a color photograph of the victim’s 

bullet wound to be published to the jury because its probative value 

outweighed its prejudicial effect. See Trial Court Opinion, 11/16/22, at 7, 

citing N.T., 12/2/21, at 7. The court instructed the Commonwealth to 

substitute a black and white version for the second photograph and to block 

out the victim’s face to reduce the inflammatory nature of the submission. 

Also, the trial court gave the jury a cautionary instruction addressing how the 

photographic evidence should be viewed, and we presume that a jury follows 
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instructions of the court. See Commonwealth v. Spotz, 896 A.2d 1191, 

1224 (Pa. 1999). Appellant is entitled to no relief on this claim.

In his third claim, Appellant maintains that the evidence was insufficient 

to sustain a conviction for second-degree murder since there was no direct 

evidence that Appellant committed a robbery and since there was no direct 

evidence that Appellant fatally shot the victim. Appellant stresses that the 

evidence was equally consistent with a scenario in which Appellant elected to 

take the victim’s vehicle and mobile telephone only after coming upon an 

individual who received mortal wounds at the hands of another attacker. See 

Appellant’s Brief at 19.

In reviewing a challenge to the sufficiency of the evidence, our standard 

of review is as follows:

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable to 

the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it establishes 

each material element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. Any doubt about the defendant's guilt is 

to be resolved by the fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances.

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. Accordingly, [t]he fact that the evidence 

establishing a defendant's participation in a crime is circumstantial 

does not preclude a conviction where the evidence coupled with 

the reasonable inferences drawn therefrom overcomes the 

presumption of innocence. Significantly, we may not substitute 

our judgment for that of the fact finder; thus, so long as the 
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evidence adduced, accepted in the light most favorable to the 

Commonwealth, demonstrates the respective elements of a 

defendant's crimes beyond a reasonable doubt, the appellant's 

convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa. Super. 2019) 

(internal quotations and citations omitted). When the jury evaluates the 

weight and credibility of the evidence and the testimony of each witness, the 

jury is free to believe all, part, or none of the evidence. See Commonwealth 

v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). Evidence may be sufficient to 

establish guilt even if it is not absolutely incompatible with innocence or it 

does not prove guilt beyond a moral certainty. See In Interest of J.B., 189 

A.3d 390, 409 (Pa. 2018) (citation and quotation omitted).

Under these principles, it is evident that no relief is due. Neither the 

circumstantial nature of the evidence offered by the Commonwealth, nor the 

fact that innocent scenarios withstand the prosecution’s proof, compel 

acquittal. Hence, we reject Appellant’s third claim.

Appellant’s next issue asserts that the trial court erred or abused its 

discretion in refusing his request to instruct the jury to receive the testimony 

of his former girlfriend, Kassemah Chapman, with special care and scrutiny. 

Appellant argues he was entitled to a “special scrutiny” charge because 

Chapman’s testimony was analogous to perjury given that she “admitted to 

testifying falsely in her direct testimony[.]” Appellant’s Brief at 20-21. This 

claim merits no relief.
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We employ the following principles in reviewing a challenge to the trial 

court's refusal to give a specific jury instruction:

[I]t is the function of this [C]ourt to determine whether the record 

supports the trial court's decision. In examining the propriety of 

the instructions a trial court presents to a jury, our scope of review 

is to determine whether the trial court committed a clear abuse of 

discretion or an error of law which controlled the outcome of the 

case. A jury charge will be deemed erroneous only if the charge 

as a whole is inadequate, [unclear] or has a tendency to mislead 

or confuse, rather than clarify, a material issue. A charge is 

considered adequate unless the jury was palpably misled by what 

the trial judge said or there is an omission which is tantamount to 

fundamental error. Consequently, the trial court has wide 

discretion in fashioning jury instructions. The trial court is not 

required to give every charge that is requested by the parties and 

its refusal to give a requested charge does not require reversal 

unless the appellant was prejudiced by that refusal.

Commonwealth v. Brown, 911 A.2d 576, 582-583 (Pa. Super. 2006) 

(quotation marks omitted).

Generally, the trial court must give instructions that are both requested 

and supported by the evidence. See Commonwealth v. Hairston, 84 A.3d 

657, 668 (Pa. 2014). However, “[i]nstructions regarding matters which are 

not before the court or which are not supported by the evidence serve no 

purpose other than to confuse the jury.” Commonwealth v. Patton, 936 

A.2d 1170, 1176 (Pa. Super. 2007).

Prior to deliberation, counsel for Appellant asked the trial court to 

instruct the jury to receive Chapman’s testimony with special care. During an 

exchange, counsel pointed out that Chapman “basically admitted that she 

gave one statement [during her] grand jury testimony and another statement 
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[at Appellant’s jury trial].” N.T., 12/9/21, at 76-80. The Commonwealth 

responded that the “special scrutiny” instruction didn’t apply since Chapman 

had not admitted perjury and no perjury occurred at a related trial. The trial 

court agreed with the Commonwealth, rejected counsel’s request, and noted 

that it was prepared to instruct the jury about “false in one, false in all,” prior 

inconsistent statements, and crimen falsi. See id. At the conclusion of the 

exchange between the court and the attorneys, counsel for Appellant indicated 

he was satisfied so long as the court included a charge covering prior 

inconsistent statements. See id. 

Although the trial court was alerted to Appellant’s request for a jury 

instruction concerning “special scrutiny” of a witness’s testimony,2 nowhere 

does Appellant assert that counsel lodged a specific objection or exception to 

the instruction that was, in fact, given. This failure to object to the court’s 

instruction is fatal to Appellant’s claim that the trial court erred in its charge 

to the jury. Under our Rules of Criminal Procedure, the mere submission and 

subsequent rejection of proposed points for charge do not preserve an issue

for appellate review; a specific objection or exception to the charge or the trial 

court's ruling is needed. Commonwealth v. Pressley, 887 A.2d 220, 225 

(Pa. 2005); Pa.R.Crim.P. 603, 647(B), and 647(C) (“No portions of the charge 

nor omissions from the charge may be assigned as error, unless specific 

____________________________________________

2 Appellant does not cite to the location within the record that contains his 

request for a particular instruction.
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objections are made thereto before the jury retires to deliberate.”); Pa.R.A.P. 

302(b) (“A general exception to the charge to the jury will not preserve an 

issue for appeal. Specific exception shall be taken to the language or omission 

complained of.”). Hence, this claim is waived.

Even if a specific objection were lodged, this claim still fails. The 

requested instruction reads as follows:

4.06 CERTAIN TESTIMONY SUBJECT TO SPECIAL SCRUTINY

You should examine closely and carefully and receive with caution 

the testimony of [name of witness] [any witness] if you find that 

he or she [was previously hypnotized] [admitted that he or she 

committed perjury at another trial] [give specific situation].

Pa.SSJI (Crim) § 4.06. “This instruction may be appropriate when the court 

wishes to caution the jury about testimony that falls into a category subject 

to special scrutiny, [e.g., previously hypnotized witness; admitted perjurer at 

another trial, paid informer, child witness, and accomplice]. It should not be 

used with a category for which this manual gives a more specific instruction[.] 

Id. at Subcommittee Note.

The record supports the trial court’s conclusion that the “special 

scrutiny” instruction was unwarranted. Chapman did not admit to perjury 

during her testimony and Appellant forwards no argument that she fell within 

any other category listed under Section 4.06. Our review of the record shows 

that the jury instruction, viewed as a whole, was sufficient to instruct the jury 

as to how to assess the credibility of the witnesses in this case. Consequently,

Appellant’s fourth claim merits no relief.
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In his final claim, Appellant asserts that his sentence of life 

imprisonment without parole for second-degree murder violates due process. 

Appellant explains that “if his conviction for felony-murder cannot stand, due 

to insufficient evidence of a robbery, or a lack of proof that felonious intent 

was formed before the alleged shooting by [A]ppellant, then the mandatory 

sentence of life imprisonment cannot stand, either.” Appellant’s Brief at 

21-22. 

Because the precise focus of Appellant’s laconic, half-page argument is

difficult to grasp, we view the instant claim as analogous to those raised 

recently in Commonwealth v. Rivera, 238 A.3d 482 (Pa. Super. 2020), 

appeal denied, 250 A.3d 1158 (Pa. 2021), and Commonwealth v. Lee, 2023 

WL 3961802 (Pa. Super. 2023), where Rivera and Lee challenged their

mandatory life sentences under the Eighth Amendment to the United States 

Constitution, arguing that the penalties imposed upon them inflicted cruel and 

unusual punishments since the felony-murder rule did not account for 

diminished culpability or the blameworthiness and mental state of a defendant

who allegedly had caused the death of another person. We rejected the claims 

raised in those cases and, as we remain bound by those decisions, we reject 

the claims raised by Appellant. See Rivera, 238 A.3d at 501-503 (rejecting 

appellant's claims that his sentence of life in prison without the possibility of 

parole for second-degree murder “constitutes cruel and unusual punishment 

because under the felony-murder rule, no regard is given to the culpability or 
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the mental state of a defendant who causes the death of another person, and 

thus the rule dictates a punishment that is without proportionality between 

the crime and has little legitimate deterrent or retributive rationale”) 

(quotation marks, citations, and corrections omitted); see also Lee, 2023 

WL 3961802 at *3 (Pennsylvania's mandatory scheme of punishment for 

second-degree murder does not run afoul of the Constitution simply because

it differs from that of other States; there is no authority which raises doubts 

about the constitutional validity of any specific feature of the challenged 

scheme; and, no case has ever concluded that an individual, charged with 

homicide and who has attained the age of majority, may be viewed as having 

categorically-diminished culpability for purposes of considering whether the 

Eighth Amendment proscribes the imposition of a life-without-parole 

sentence). Accordingly, we conclude Appellant is not entitled to relief on his 

final claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2023