J-S38030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LATIFF HADI,

                            Appellant                 No. 1402 EDA 2016


          Appeal from the Judgment of Sentence November 26, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005036-2012


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 18, 2017

       Appellant, Latiff Hadi, appeals from the November 26, 2013 judgment

of sentence following his conviction by a jury of third-degree murder,

conspiracy to commit aggravated assault, and endangering the welfare of a

child on September 27, 2013. We affirm.

       The trial court thoroughly summarized the facts of this horrific crime

as follows:

             On March 20, 2012, codefendants Tina Cuffie [(“Cuffie”) 1]
       and [Appellant] were arrested and charged with murder and
       related charges in the death of their son, Khalil Wimes.1 . . .
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   This Court affirmed the judgment of sentence of Appellant’s co-defendant,
Tina Cuffie, on February 2, 2015. Commonwealth v. Cuffie, 120 A.3d
365, 3597 EDA 2013 (Pa. Super. 2015) (unpublished memorandum).
J-S38030-17


           1
             [Appellant] is also known as Floyd Wimes. [N.T.,
           9/25/13, at 22].

                                    * * *

           Alicia Nixon was approached in 2006 to raise the child
     victim in this case, Khalil Wimes, who was not yet born but
     whose parents [Appellant and Cuffie] had three children under
     the supervision of Philadelphia’s Department of Human Services
     (“DHS”). [Appellant’s] mother initially asked if [Nixon] and her
     husband would take in the unborn child, and then a week after
     he was born, [Appellant], who is Nixon’s cousin, asked if [Nixon]
     were [sic] still willing to take [in the baby]. When Nixon said
     yes, [Appellant, Cuffie, Appellant’s mother], and a representative
     of DHS came with Khalil to her home. The DHS permitted
     [Appellant and Cuffie] to see Khalil, but not to take custody of
     him because their home was unfit for a child.

            For a time, this arrangement was agreeable to all parties,
     and [Appellant and Cuffie] saw Khalil during the day several
     times a week but always returned him to Nixon’s home at night.
     Eventually, however, [Appellant] exchanged words with Nixon as
     he was picking Khalil up for the day, and threatened not to
     return him to her that evening. Nixon became worried that he
     would follow through on his threat, and called the police,
     directing them to meet her at a supermarket where [Cuffie]
     worked and where [Appellant, Cuffie,] and Khalil frequently
     spent time together during the day. The police made sure that
     Khalil was returned to Nixon’s care, but shortly thereafter Nixon
     initiated legal proceedings to gain permanent custody of Khalil.
     [Appellant and Cuffie] contested custody, and were temporarily
     awarded custody of Khalil shortly after he turned [one], in
     February of 2007. One week later, Khalil was returned to
     Nixon’s custody, because [Appellant and Cuffie] had failed to
     obtain necessary asthma medication and had not followed an
     appropriate diet for [Khalil], and he had to be hospitalized within
     a week.

           During his first three years when he lived with Nixon,
     Khalil thrived. He reached early milestones like holding his
     bottle, crawling, and walking on or ahead of schedule. By the
     time he was three, he was learning both English and Arabic, and
     could read certain words and write his name with assistance. He
     was also a healthy eater. Nixon addressed Khalil’s early issues

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J-S38030-17


     with asthma and eczema with diet and skin cream, and both
     cleared up. Nixon kept many photographs she had taken of
     Khalil, and in those photographs he appears to have a healthy
     weight, clear, unscarred skin, and a bright demeanor. After
     March of 2009, when Khalil was removed from [Nixon’s] care
     and returned to [Appellant and Cuffie], who did not allow Nixon
     any visitation, Nixon did not see [Khalil] again until his funeral.

            At approximately 1:00 a.m. on March 20, 2012, Gary
     Hines, a social worker with DHS, received a hotline call from the
     Children’s Hospital of Philadelphia, (“CHOP”) about a child who
     had recently come to the hospital and was dead. He went to the
     hospital, as the call indicated that there were other small
     children in the deceased child’s family. There he spoke to the
     child’s parents, [Appellant and Cuffie]. Cuffie told him that Khalil
     had fallen getting out of the tub. She also told him that [Khalil]
     would not eat regular food, so they fed him primarily fast food,
     and that [Khalil] was constantly vomiting. [Appellant] told him
     that he received a call that Khalil was injured, and then he went
     to the house and immediately arranged for an elder son to drive
     them to the hospital.

            Hines also observed the body of [Khalil], who at the time
     of his death was six years of age but appeared to be three years
     of age and was extremely thin. Hines saw a knot on [Khalil’s]
     forehead and lesions in his mouth, as well as marks up and down
     his body on both sides. Hines also examined the parents’ other
     minor child, M.W., and saw no evidence of abuse.

           Kiwan DaCosta, a social worker at [CHOP], met with
     [Appellant and Cuffie] at the hospital on the night that Khalil
     died. [Cuffie] told her that Khalil had fallen during his morning
     bath and injured his face, but had otherwise had a normal day,
     and that when she went to check on him in the evening he was
     not breathing.      When DaCosta saw Khalil’s body, she
     immediately noticed that he was emaciated and covered with
     scars and injuries. Although he was six years old, he looked to
     her as if he was only three. When [Appellant and Cuffie]
     indicated to [DaCosta] that they were about to leave the
     hospital, DaCosta called the police to make sure that they were
     on their way and would arrive soon. The police arrived before
     [Appellant and Cuffie] left the hospital.




                                    -3-
J-S38030-17


           Philadelphia Detective Mark Webb took a statement from
     [Appellant] on March 20th, 2012. In that statement, [Appellant]
     said that Khalil was accident-prone, and that he and [Cuffie] had
     trouble keeping [Khalil’s] weight up because of his vomiting.
     Philadelphia Detective Michael McGoldrick took a statement
     from [Cuffie] on March 20th, 2012 at 4:35 a.m. In it, [Cuffie]
     said that Khalil fell getting out of the bath the prior morning and
     landed on his face. She also said that Khalil tended to fall
     frequently and “marked easily.”

            Philadelphia Detective Gregory Santamala took a second
     statement from [Appellant] on March 21, 2012 at 2:30 a.m. In
     it, [Appellant] indicated an awareness that if a doctor saw
     Khalil’s pre-death physical condition, “yes, you would get in
     trouble.” [Appellant] acknowledged that he would “tap him on
     his butt” but denied using a belt on him. He said that sometimes
     Khalil was punished by withholding his food from him.
     [Appellant] also said that he intended to find housing with his
     [new] girlfriend, . . . and move Khalil in with them at that time.

            Philadelphia Detective Howard Peterman took a statement
     from [Cuffie] on March 21, 2012, at 11:35 a.m., in which she
     said that as Khalil was getting out of the bathtub on the morning
     of the day he died, she “popped him in the back of his head and
     knocked him to the floor,” causing [Khalil] to hit his face and
     split his lip. She also reported that for the rest of the day, Khalil
     seemed weak, wobbly, and disoriented. When asked if she had
     hit Khalil in the past, [Cuffie] said she had done so, with her
     hand and with a belt. When asked how often she would hit him
     with a belt, [Cuffie] said “it wasn’t every day but it was often
     enough.”

            Officer Tiffany Richardson of the Philadelphia Police
     Department’s Crime Scene Unit went to [Khalil’s] home on March
     21st, 2012, to examine where [Khalil] received the injuries that
     led to his death. She saw, and photographed, several blood-
     spatter stains on the wall in the main hallway across from the
     bathroom, in [Khalil’s] bedroom, in the bathroom, and on a
     child’s toilet in another bedroom, as well as a hook-and-loop lock
     at the top of the outside of [Khalil’s] bedroom. Subsequent
     testing revealed that at least one of the blood spatter samples
     collected from [Appellant’s] apartment walls matched Khalil’s
     DNA, as did a sample from the child’s toilet; other samples were


                                     -4-
J-S38030-17


     inconclusive or did not contain DNA or sufficient DNA for a
     positive test.

            Aaron Cuffie, [Cuffie’s] 28-year-old son and Khalil’s half-
     brother, had been told by [Appellant and Cuffie] that they
     installed the latch on Khalil’s door in order to keep him from
     getting food from the kitchen during the night. [Cuffie] told
     Aaron that the marks and bruises on Khalil’s face and body were
     from fights with his younger sister, M.W., and from times when
     he would “hurt himself” while he was being spanked. Aaron saw
     Khalil the day before he died, when he looked sick and
     repeatedly passed out. Aaron told [Cuffie] that she should take
     Khalil to the hospital, and [Cuffie] replied that she was going to
     do that eventually. The next day, when he came to Cuffie’s
     home and saw that Khalil was unresponsive and appeared not to
     be breathing, he drove [Appellant and Cuffie] to the hospital
     with Khalil.

           After he found out that Khalil had died, Aaron became very
     angry with both [Appellant and Cuffie]. At the hospital, [Cuffie]
     told [Aaron] that she was sorry and [Appellant] told him not to
     say anything to anybody.

           Khalil had been home-schooled by [Cuffie], and at one
     point [Appellant] told Aaron that this was because [Appellant
     and Cuffie] did not want anyone to see Khalil and call DHS.
     Aaron saw Khalil being disciplined by being forced to run up and
     down the hallway in the family’s apartment, and said that
     [Khalil] would frequently fall while he was running. Aaron said
     that Khalil frequently vomited after eating, and that [Appellant
     and Cuffie] would become angry at [Khalil] and punish him when
     this happened. On the day before he died, Khalil was made to
     run up and down the hallway as punishment for vomiting, and
     when he fell and hit his head, [Cuffie] helped him back up and
     then directed him to continue running.

           Kevin Cuffie, the 20-year-old son of [Appellant and
     [Cuffie], had seen Khalil being sent to stand in a corner for
     approximately two hours as punishment for transgressions such
     as getting food from the kitchen without permission.        In
     December of 2011, [Kevin] noticed that Khalil was listless and
     weak. [Kevin] mentioned this to [Cuffie], who claimed that she
     was taking him to see a doctor.       Kevin also noticed the
     accumulating scars and bruises on Khalil’s body, and saw them

                                   -5-
J-S38030-17


     multiply in the months before his death. [Kevin] saw both
     [Appellant and Cuffie] hit Khalil on various parts of his body as a
     form of discipline.

           Wanda Byrd dated [Appellant] . . . for approximately nine
     months. Their relationship ended shortly after Khalil’s death. In
     the months prior to [Khalil’s] death, Byrd understood [Appellant]
     to be living with a friend of his near 21st and Mifflin Streets in
     Philadelphia, and separated from [Cuffie]. [Appellant] told her
     that Khalil was homeschooled because he was afraid that if Khalil
     went to school, he and [Cuffie] would get into trouble again with
     DHS due to Khalil’s issues with vomiting and wetting himself.
     She gave [Appellant] $20 to take Khalil to see someone about
     his medical issues, but to her knowledge he did not follow
     through. [Appellant] was with Byrd when [Cuffie] called to tell
     him that Khalil was unresponsive, at which time he left to join
     [Cuffie].

            Randee Cuffie Shaw, [Cuffie’s] 26-year-old daughter and
     [Appellant’s] step-daughter, testified for [Cuffie]. [Shaw] lived
     with her mother from July, 2011, to January, 2012. During that
     time, she observed her mother hit Khalil with her hand and with
     a belt on various occasions, sometimes on his head. She also
     observed [Appellant] hit [Khalil] with a phone charger cord and
     with his hand, including at least once on his head. She noticed
     marks that she thought were made with an extension cord on
     Khalil’s limbs, and said that she has the same marks on her
     arms, inflicted by [Appellant].      Shaw also saw [Appellant]
     withholding food from Khalil, and would sometimes sneak Khalil
     extra food while she lived with him.

            Dr. Sam Gulino, Chief Medical Examiner for the City of
     Philadelphia, gave expert testimony as to the cause and manner
     of Khalil’s death, which he attributed to starvation and physical
     abuse, including a serious recent blow to the head. [Dr. Gulino]
     described numerous scars from a looped weapon, such as an
     electrical cord, which covered Khalil’s torso, and head and brain
     injuries in various states of healing. He also described Khalil’s
     extreme state of starvation, as demonstrated by, for instance,
     loose folds of skin around his buttocks where fat was once
     stored.




                                    -6-
J-S38030-17


Trial Court Opinion, 2/10/14, at 1–8 (internal citations and footnotes

omitted).2

       Following the denial of a pretrial motion to suppress, Appellant

proceeded to a bench trial with Cuffie on September 25–27, 2013. The trial

court adjudged both Appellant and Cuffie guilty of third-degree murder,

conspiracy to commit aggravated assault, and endangering the welfare of a

child.3 On November 26, 2013, the trial court sentenced both Appellant and

Cuffie to serve terms of twenty to forty years of imprisonment for third-

degree murder followed by a consecutive term of ten to twenty years in

prison for conspiracy to commit aggravated assault.

       Appellant filed a post-sentence motion on December 9, 2013, three

days beyond its due date of December 6, 2013.           Pa.R.Crim.P. 720 (“[A]

written post-sentence motion shall be filed no later than 10 days after

imposition of sentence.”).       The trial court denied the motion on December

11, 2013.     Appellant filed a notice of appeal to this Court on January 9,

2014. We quashed the appeal, which was filed forty-four days after the trial

court imposed sentence, as untimely on February 4, 2015, holding that

“Appellant was thus required to file his notice of appeal ‘within 30 days of
____________________________________________


2
   In its Pa.R.A.P. 1925(a) opinion filed on May 24, 2016, the trial court
attached and incorporated its original Rule 1925(a) opinion filed on
February 10, 2014.
3
   18 Pa.C.S. §§ 2502(c), 903(a) and 2702(a)(1), and 4304(a)(1),
respectively.



                                           -7-
J-S38030-17


imposition   of   sentence’—or,   by   December     26,   2013.     Pa.R.Crim.P.

720(A)(3); Pa.R.A.P. 903(a).” Commonwealth v. Hadi, 120 A.3d 368, 377

EDA 2014 (Pa. Super. filed February 4, 2015) (unpublished memorandum at

2).

      Appellant filed a pro se petition for collateral relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, on March 24,

2015. New counsel was appointed, who filed an amended PCRA petition on

April 6, 2016. The PCRA court reinstated Appellant’s appeal rights nunc pro

tunc on April 28, 2016.     Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following two issues in this appeal:

      A. Whether the evidence was insufficient as a matter of law to
         sustain Appellant’s conviction for murder in the third
         degree[?]

      B. Whether the evidence was insufficient as a matter of law to
         sustain Appellant’s conviction for conspiracy to commit
         aggravated assault[?]

Appellant’s Brief at 6.

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. Commonwealth v. Sanchez, 614 Pa. 1,
      36 A.3d 24, 37 (2011).

             “In reviewing the sufficiency of the evidence, we must
      determine whether the evidence admitted at trial, and all
      reasonable inferences drawn from that evidence, when viewed in
      the light most favorable to the Commonwealth as verdict winner,
      was sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt.” Commonwealth v. Fears, 575

                                       -8-
J-S38030-17


         Pa. 281, 836 A.2d 52, 58–59 (2003). The Commonwealth may
         sustain its burden by means of wholly circumstantial evidence.
         Commonwealth v. Spell, 611 Pa. 584, 28 A.3d 1274, 1278
         (2011). Further, the trier of fact is free to believe all, part, or
         none of the evidence. Commonwealth v. Martin, 627 Pa. 623,
         101 A.3d 706, 718 (2014).

Commonwealth v. Woodard, 634 Pa. 162, 129 A.3d 480, 489–490

(2015), cert. denied sub nom. Woodard v. Pennsylvania, 137 S.Ct. 92

(2016).

         Appellant asserts that the evidence supporting third-degree murder is

insufficient because it showed he was “more inept than . . . cruel.”

Appellant’s Brief at 19. Appellant suggests he “lacked the hardness of heart

and the malice required for third degree murder,” without citing to the

evidence that supports that claim.         Id. at 19–20.     With regard to his

conviction of conspiracy to commit aggravated assault, Appellant contends

that while he was neglectful, his “conduct and . . . agreement or joint action

[with Cuffie] did not rise to the level of intent required under the law.” Id.

at 20.

         Third degree murder is a killing committed with malice.           Malice

consists of “wickedness of disposition, hardness of heart, wantonness,

cruelty, recklessness of consequences, or a mind lacking regard for social

duty.” Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011)

(quoting Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super.

1998)).     The malice required for third degree murder does not require a

specific intent to kill. It “is an intentional act, characterized by malice, that

                                        -9-
J-S38030-17


results in death, intended or not.”   Commonwealth v. Fisher, 80 A.3d

1186, 1191 (Pa. 2013).

      Conspiracy to commit aggravated assault encompasses the following:

      § 2702. Aggravated assault

      (a) Offense defined.—A person is guilty of aggravated assault
      if he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life;

18 Pa.C.S. § 2702.

      Criminal conspiracy is governed by Section 903 of the Crimes Code:

      (a) Definition of conspiracy.—A person is guilty of conspiracy
      with another person . . . to commit a crime if with the intent of
      promoting or facilitating its commission he:

            (1) agrees with such other person . . . that they or
            one or more of them will engage in conduct which
            constitutes such crime or an attempt or solicitation
            to commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an
            attempt or solicitation to commit such crime.

18 Pa.C.S. § 903; Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa.

Super. 2017).

      In response to these claims, the trial court stated the following, in

pertinent part:

            Here, ample physical and eyewitness evidence established
      that both defendants routinely struck and otherwise abused their
      child victim with their hands and with belts and cords, and that

                                   - 10 -
J-S38030-17


     both defendants were complicit in denying him food, thus
     weakening him, and keeping him away from school and from
     medical care in order to cover up their own abuse. This latter
     point shows not only that they placed their own concerns before
     the very real medical and developmental needs of their child
     victim, but it also demonstrates their consciousness of their
     culpability and their conspiracy to hide their victim, thus
     prolonging the time during which they might beat and starve
     him.

           The defendants worked in concert to perform, over time,
     three separate courses of action that each establishes their
     extreme and hardhearted indifference to Khalil’s life and well-
     being. First, they starved him so severely that he appeared to
     be a child of half his age and thereby, for all practical purposes,
     utterly   arrested    his   normal    physical    and    intellectual
     development. In doing so, they went so far as to punish him by
     withholding food and putting a lock on his door so that he could
     not obtain food on his own. Second, knowing the weakened
     state into which they had reduced him, they nevertheless beat
     him ruthlessly, covering his diminished body with scars. They
     did not spare his head, despite the fact that it is obviously a vital
     area. Third, they withheld medical care, in order that their
     behavior might not be subject to scrutiny and in order that they
     might continue to treat him in this appalling and obviously
     malicious manner.       It is beyond cavil that their behavior
     establishes the requisite legal malice to support their convictions
     for Third Degree Murder, and this argument is meritless.

                                     * * *

           In Commonwealth v. Geiger, 944 A.2d 85 (Pa. Super.
     2008), alloc. denied, 964 A.2d 1 (Pa. 2009), the Superior Court
     upheld a conviction for Conspiracy to Commit Third Degree
     Murder where the defendant and her boyfriend both routinely
     beat four young girls entrusted to their care, and failed to
     provide adequate food to them.         The youngest of them
     succumbed to a particularly harsh beating carried out almost
     exclusively by the defendant’s boyfriend.       The defendant’s
     conviction was upheld, as “the law is well-settled that
     conspirators are responsible for the actions of their cohorts,
     whether such conduct is planned by the consortium or engaged
     in by a conspirator without prior approval of the group.” Id. at
     92. There, as here, any codefendant quibbles over who was the

                                    - 11 -
J-S38030-17


       primary abuser of the child are irrelevant, both to the murder
       charge and to the charge of Conspiracy to Commit Aggravated
       Assault. This is especially true where, as here, both defendants
       acknowledged either to their adult children or to police that they,
       in concert, avoided permitting Khalil to go to school or taking
       him to see a doctor because they were afraid of getting into
       trouble.   The evidence is more than sufficient to support
       [Appellant’s] conviction[] for Conspiracy, and this argument is
       meritless.

Trial Court Opinion, 2/10/14, at 10–12.

       We have reviewed the complete record and considered the arguments

of the parties and the applicable law. The record fully supports the existence

of ample and sufficient evidence to uphold the verdicts of third-degree

murder and conspiracy to commit aggravated assault.4

____________________________________________


4
   We are compelled to comment on the apparent failure by Philadelphia
Department of Human Services to intervene in this case. Detective Michael
McGoldrick presented a statement from Cuffie dated March 20, 2012, in
which Cuffie stated that DHS closed Khalil’s case on March 6, 2009. N.T.,
9/27/13 at 132. Ms. Nixon, who raised Khalil the first three years of his life,
testified she “begged” DHS to permit visitation with Khalil after he was
thrust into Appellant’s and Cuffie’s care in 2009, but they refused, and
eventually, “stopped tak[ing her] calls anymore.” N.T., 9/26/13, at 63.

   It is noteworthy that no one from DHS testified at trial. Instead, on
September 27, 2013, the final day of trial, all counsel stipulated to
presentation of the structured progress notes prepared by Courtnei Nance,
DHS caseworker for five of Appellant’s and Cuffie’s eight children, who had
been removed from their care in 1995. N.T., 9/26/13, at 103; 9/27/13, at
99–102.     These notes, prepared on April 4, 2012, and admitted into
evidence as Collective Exhibit C-88, N.T., 9/27/13, at 102, are not included
in the record certified to us on appeal. The progress notes stated that Ms.
Nance had “face-to-face” visits at Appellant’s and Cuffie’s home on
November 26, 2011, and December 27, 2011, at ARC on February 4, 2012,
at the home on February 18, 2012, and at ARC on March 3, 2012. N.T.,
9/27/13, at 99–102. Khalil was present at all of the meetings. Id.
(Footnote Continued Next Page)


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J-S38030-17


      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




                       _______________________
(Footnote Continued)

   Recalling that Khalil died on March 20, 2012, these meetings occurred in
the sixteen months preceding Khalil’s tragic death and as recently as mere
weeks before the child’s murder. All family witnesses at trial testified to the
drastically changed appearance of this little boy. All family witnesses
testified there was an obvious latch on the outside of the child’s bedroom
door. All witnesses testified to the bruises and scars readily apparent all
over Khalil’s emaciated body. In Appellant’s March 20, 2012 statement to
Detective Mark Webb of the Special Victims Unit, Appellant revealed,
admittedly without providing a date, that “the DHS caseworker asked us if
[Khalil] was okay because he would throw up and do stuff while she was
there.” N.T., 9/26/13, at 108. All of these facts raise the unsettling
question of whether our child welfare system failed this six-year-old boy as
he was starved and tortured during the latter half of his life.



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