Memorandum On Appeal

 

REPUBLIC OF THE PHILIPPINES FOURTH JUDICIAL REGION BR. 76, REGIONAL TRIAL COURT SAN MATEO, RIZAL

PEOPLE OF THE PHILIPPINES, Complainant-Appellee,

-vs.-

CRIM CASE No. 7959-05 For: Grave Threats

TOTONG GABRINAO Accused-Appellant. x--------------------------------------------------------------x

MEMORANDUM ON APPEAL

COMES NOW accused-appellant, by counsel, unto this Honorable Court respectfully submits his Memorandum, a copy of the court’s order requiring the filing of Memoranda was received by Appellant on March 30, 2005, to respectfully states that:

I. PREFATORY STATEMENT ---

1.0. In criminal criminal prosecution, prosecution, the accused accused has the right to be presumed innocent innocent until the contrary is proved beyond reasonable doubt.1  In cases of prosecution for violation of acts declared by law as a crime, it is incumbent upon the prosecution to demonstrate that culpability lies. “The burden of proof rest upon the prosecution and unless the State succeeds in proving his guilt beyond reasonable doubt, the accused is entitled to the  presumption of innocence in his favor, because the conscience of the court must be satisfied that on the accused could be laid the responsibility of the offense charged 2. There is need therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused;

1 2

 Sec. 14, Article III of the Constitution; Rule 115, Section 1 of the Revised Rules of Criminal Procedure  Herrera, Remedial Law, vol. VI, p. 25-26

1

 

II. STATEMENT OF THE CASE ---

2.0. In Criminal Case No. 126-02 of the Metropolitan Trial Court of San Mateo Rizal, Totong Tot ong Gabrin Gabrinao( ao(als also o known known as Julian Julian Gabrin Gabrinao) ao),, Eddie Eddie Gabrin Gabrinao, ao, Julio Julio Gabrin Gabrinao, ao, Janning Gabrinao, Mario Munoz, Alias Ading and alias Bornok, were charged with the crime of grave threats under Article 282, paragraph 2 of the Revised Penal Code, allegedly committed as follows:

“That on or about the 21th day of August, 2001 in the Municipality of San Mateo, Province of Rizal Philippines and within the jurisdiction of this Honorable Court, the ab above ove-n -nam amed ed ac accu cuse sed, d, consp conspir irin ing g an and d confe confeder derat atin ing g together with alias “Ading” and alias “Bornok”, armed with fire firear arms ms move moved d by pe pers rson onal al re rese sent ntme ment nt whic which h th they ey ente enterrta tain in agai agains nstt one one RI RICA CAR RDO DELA DELA VEG VEGA Y ADUANA ADU ANA,, did then then and there there willf willfull ully, y, unlawf unlawfull ully y and feloniousl felon iously y threaten threaten said complainant complainant with the infliction infliction against his person of a wrong amounting to a crime of  homicide, that is, by then and there ordering to come out the said complainant and uttering the following words, to wit: “BOY LUMABAS KA RIYAN AT TATADTADIN KITA  NG BALA AT MARAMI MARAMI KA NG ATRASO ATRASO SA AKIN”  (UNDERSCORING SUPPLIED);

2.1. When arraigned, all the accused pleaded not guilty, after which trial on the merits ensued wherein the prosecution and defense adduced their respective evidence;

2.2. At the trial, the prosecution presented one (1) witness, to wit: herein ComplainantAppellee Ricardo Dela Vega, the lone witness whose testimony merely confirms his Sworn Statement alleging how the crime charged was committed, the Sworn Statement states in part that:

“Ganito po yon, higit kumulang po sa alas 8:30 po ng gabi petsa 21 ng Agosto 2001, kami po ay nasa loob ng aking tahanan at nanonood po kami ng T.V. ng aking asawa at mga anak at ilang minuto po ay may narinig po akong tatlong beses na kalabog ng yero na galing sa bubong ng aking  bahay, kaya ang ginawa ko po ay nakiramdam po ako ak o at pinatay ko po ang aking TV, maya-maya po ay narinig ko na nagsasalita itong si Totong Gabrinao at sinabi niya na “Boy lumabas ka riyan at tatadtarin kita ng  bala, at marami ka silong nang atraso ang po ay  pumasok po ako sa (Ilalim)sangakin” akingkaya bahay sa ginawa tapat ngkobandang likuran at dito ko po nakita itong si Totong Gabrinao na may dalang Baril

2

 

na Shotgun na kasama sina alyas Ading na dalang Armalite, Mario Munoz na may may dal dalang ang Carb Carbiine, ne, at @ Born Bornok ok na may dala dalang ng Shot hotgun, gun, samantalan saman talang g itong si Janning Janning Gabrinao Gabrinao at Nanding Nanding Gabrinao Gabrinao ay nakatayo nakatayo lang po sa bandang kaliwa ng aking bahay at itong si Julio Gabrinao at may kasama pang isang lalaki na hindi ko kilala ay nakatayo rin po sila sa  bandang kanang bahagi ng aking bahay at sa bandang bandan g bakod ko po sa may  patolahan ay may isang lalaki rin na di ko po kilala na nakatayo po at nesesenyasan po sila, hanggang sa ako po ay hindi na nagsalita at lumabas ng aking bahay, subalit nagsalita nagsalita po ang aking asawa at sinab sinabii po niya na “Ang mga bata baka tamaan” at sumagot po itong si Totong Gabrinao na “Walang bata-bata sa akin, raratratin ko kayo” at matapos magsalita ni Totong ay unti-unti na silang nagsisilayasan at nagiwan pa sila ng salitang “MGA NPA KAMI””

2.3. On the other hand, the defense presented the accused Dianito, Totong (Julian) and Julio, all surnamed Gabrinao, who executed their Pinagsanib Na Sinumpaang Salaysay as their direct testimony stating that:

“6 “6.. Ang dahil dahilan an kung kung ba baki kitt kamin kaming g magk magkak akapa apati tid d ay naisipang sampahan ng walang katotohanang demanda ni Ricardo Dela Vega ay sapagka’t nais niya at kanyang amo na si Sand Sandrra Sal Salbani banitto Reyes eyes na kami kami ay ma mattakot akot manirahan sa aming lugar at aming tuluyang lisanin ito upang sila ay makapasok at makapamosesyon sa lupang  pag-aari ng Hobart Realty; 7. Noon pang Pebrero 2001 ay hinangad at tinangka na ni Sandra Salbanito Reyes na pasukin ang lupang pag-aari ng Hobart Realty ngunit hindi ito pinahintulutan ni Dianito Gabr Ga brin inao, ao, ba bagay gay na lubh lubhang ang kina kinaga gali litt ni Sa Sandr ndraa at ng kanyang alalay na si Ricardo Dela Vega. Ang pangyayaring ito ay aming inireport sa barangay ng pintong Bocauae, San Mateo Rizal; 8. Kami ay dapat na magsasampa ng demanda kay Ricardo Dela Vega sapagka’t noong Abril 6, 2002, nagpadala sila ni Sandra Reyes ng mga taong armado ng iba’t ibang kalibre ng baril at pinasok kami sa aming mga bahay banding 1:00 ng madaling araw at si Julio Gabrinao at ang aming kapatid na si Reyn Reynal aldo do Gabr Gabrin inao ao ay kani kanila lang ng sinakt naktan an,, sa  pamamagitan ng pambubugbog, pagkulata ng dulo ng baril sa lalamu lalamunan nan.. Nakita Nakita naming naming si Ricard Ricardo o Dela Dela Vega Vega na kasama ng grupong ito at nakatayo sa may labas ng kusina ni Di Diani anito to Gabr Gabrin inao ao.. Hi Hind ndii naman naman it ito o na nair irekl eklam amo o sa awtori awt oridad dad sapagk sapagka’s a’s kami ay binant binantaan aan ng taong taong ito na kami ay papatayin sakaling kami ay magsumbong at sinabi rin nila na mabuti pang kami ay umalis na lang sa aming tirahan. Ipinagmamalaki rin ni Ricardo dela Vega sa buong  barangay namin na siya ay malakas ang koneksyon sa mga matata mat ataas as at makapa makapangya ngyari rihang hang opisya opisyall ng gobyern gobyerno o at hindi siya pwedeng kalabanin ng sino man.”;

3

 

2.4. The defense also presented Mario Munoz who executed his Sinumpaang Salaysay as his direct testimony substantially declaring that:

“3 “3.. Ang Ang ta tang ngin ing g al alam am kong kong da dahi hila lan n kung kung bakit bakit ak ako o is isin inas asan angk gkot ot ni Rica Ricard rdo o de dela la Vega Vega sa ka kaso song ng it ito o sapagka’t ako ay malapit na kamaganak at kasamahan mgaa magka mg magkaka kapat patid id na Gabr Gabrin inao ao at ak ako o ay nakat nakatir iraa

ay ay ng sa

lupa lupang ng pa pagg-aa aari ri ng Hoba Hobart rt Real Realty ty & Deve Develo lopm pmen entt Corporation; 4. Si Ricardo dela Vega at ang kaniyang among si Sandra Sa Salb lban anit ito o Reye Reyess ay na nais is na kamka kamkami min n at pasuki pasukin n an ang g lupang pagmamay-ari nh Hobart Realty at ito ay hindi nila maisakatupa maisa katuparan ran hanggang si Dianito Dianito Gabrinao Gabrinao na katiwala katiwala ng Hoba Hobart rt Real Realty ty,, sa samp mpu u ng ka kani niya yang ng mga mga ka kapa pati tid d ay nananatilin nakatira at nagbabantay sa lupang ito. 5. Ang kasong ito ay isinampa sa amin upang kami ay matakot at tuluyang lisanin naming ang nasabing lugarat makapasok sila sa lupa ng Hobart Realty & Development Corporation.”;

2.5. Likewise, Edito Gabrinao testified stating that:

“3. Noong Agosto 21, 2001 sa oreas ng 8:30 ng gabi, ako ay nasa Silang, Cavite kasama ng aking pamilya kung saan kami ay duon nakatira ng panahong iyon kaya kami ay imposible ang kanyang paratang na tinakot ko siya sa oras at petsang iyon. Lumipat lamang kami ng aking pamilya sa San Mateo nitong Mayo, 2002; 4. Ang Ang da dahi hila lan n ku kung ng ba baki kitt ka kami ming ng magk magkak akap apat atid id ay si sina namp mpah ahan an ng ka kaso so ni Rica Ricard rdo o de dela la Vega Vega ay upan upang g iwanannamin ang lugar na aming tinitirhan ngayon. Kung ito ay lilisanin naming ay mawawalan na sila ng sagabal sa  pagpasok nila ng kanyang among si Sandra Reyes sa lupang pagmamay-ari ng Hobart Realty na  pinangangalagaan ng aming kapatid na si Dianito Gabrinao.”;

2.6. After trial, the court a quo promulgated its decision on January 25, 2005 acquitted all the accused on ground that “ prosecution failed to establish any wrong doing  except   except for  Totong Gabrinao who was convicted of the crime of grave threats, the body of the aforesaid judgment is patially quoted as follows:

“Alibi is one of the weakest defense an accused can invoke, and the courts have always look upon it with caution, if not

4

 

suspicion, not only because it is inherently unreliable but likewise because it is rather easy to fabricate [see People vs. Azuque, 268 SCRA 711) Furthermore, in People vs. Diaz, 259 SCRA 441, the Supreme Court states that greater weight must generally  be given to the positive testimonies of the prosecution witnes wit nesses ses than to the denial [alibi] [alibi] of the defendant defendant in weighing contradictory declarations and statements. Thus,, as bet Thus between ween the lone one tes esttimony mony of the complainant, pointing to the accused Totong Gabrinao, as the person who uttered the threatening words against him, versus an alibi, the former should be given better credence. However,, upon carefu However carefull scruti scrutiny ny of the evidenc evidencee  presented, it appears appe ars that the complainant could only point to accused Totong Gabrinao, at the person whou uttered the thre threat aten enin ing g word wordss ag agai ains nstt him. him. In th thee “s “sin inum umpa paan ang g salaysay” of Ricardo dela Vega on August 22, 2001, he states: xxx. It sh shoul ould d al also so be ob obse serv rved ed th that at in th thee ut utte tera ranc ncee allegedly made by accused Totong Gabrinao was worded in si sing ngul ular ar form form.. He utte uttere red d “Boy “Boy lu luma maba bass ka ri riya yan n at tatadtarin kita ng bala at marami ka ng atraso sa akin.” The word “kita” was used, which connotes only “one” person as the doer. The word “sa akin” was also used also implying one person. Hence, it can be inferred inferred that there is only one actor in the commission of the crime.   In effect, the complainant admitted that it was only the accused Totong Gabrinao who threatened him, while the rest of the accused were merely standing in front of the ho hous use, e, al alth thou ough gh carry carryin ing g ar arms ms,, to sh show ow of offf fo forc rcee and strength. Thus, even if the Court would conclude that all the other accused were at the same place of the incident, they were not not equally equally criminally criminally liable liable for grave grave threat. threat. Their presence shall be treated as a “generic aggravating ci circ rcum umst stan ance” ce” whic which h ha hass the the ef effe fect ct of in incr crea easi sing ng th thee  penalty to be imposed upon Totong Gabrinao. Article 14 of the Revised Penal Code provide: “The following are aggravating circumstances: 1. x x x 8. That That cr crim imee be co comm mmit itte ted d wi with th aid of armed armed men men or   persons who insure or afford impunity 9. x x x” With all the foregoing observations, coupled by the fact that the prosecution failed to establish any wrongdoing commit com mitted ted by Eddie Eddie Gabrin Gabrinao, ao, Mario Mario Munoz, Munoz, Jannin Janning g Gabrinao, and Julio gabrinao, except for having arms and  being there at the place of the incident, the court finds no

5

 

sufficien suffic ientt ground ground to convic convictt all the accuse accused d except except for  Totong Gabrinao who should be liable for Grave Threat.” 3

 2.7. The dispositive portion of the judgment reads:

“WHERE “WHE REFO FORE RE,, taki aking int into ac acco coun untt one one gene generric aggravating circumstance of “with the aid of armed men”,  judgment is hereby rendered finding the accused TOTONG GABR GA BRIN INAO AO,, GUIL GUILTY TY be beyo yond nd re reas ason onab able le do doub ubtt of  committing the crime of Grave Threat. Consequently, he is hereby sentenced to suffer a severe penalty of  imprisonment of six (6) months of “arresto mayor” and a fine of P500.”4 

2.8. Aggrieved with the decision of the court a quo, Appellant filed his Notice of Appeal, on matter of facts and law, on February 1, 2005;

III. STATEMENT OF THE LAW ---

3.0. The crime of grave threats under Article 282 of the Revised Penal Code is committed as follows:

“Art. 282. Grave threats. --- Any person who shall threaten an anot othe herr wi with th the the infl inflic icti tion on up upon on th thee perso person, n, honor honor,, or   property of the latter or of his family of any wrong amounting to a crime, shall suffer: 1. The penalty next lower in degree than that prescribed by law for the crime he threatened to commit, if the offender  shall have made the threat demanding money or imposing any other other conditi condition, on, eventho eventhough ugh not unlawf unlawful, ul, and said said offender shall have attained his purpose. If the offender  shall not have attained his purpose, the penalty lower by two degrees shall be imposed. If the threat be made in writing or through a middleman, the penalty shall be imposed in its maximum period.   2. The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition.”5   3.1. The grave threat punishable under Article 282, paragraph 2 of the Revised Penal Code --- the crime that Appellant allegedly committed --- is not subject to any condition 3

 Judgment dated November 3, 2004, pp. 3-4  Ibid, p. 4 5  Luis B. Reyes, The Revised Penal Code, Book Two, 13th ed.  ed.,, pp. 508-509 508-509 4

6

 

or demand, lawful or unlawful, by the offender, and the following are the elements, to wit: a. a.)) That That the the offe offend nder er thre threat atens ens an anot othe herr pe pers rson on wi with th th thee infliction upon the latter’s person, honor, or property, or upon that of the latter’s family, of any wrong;  b.) That such wrong amounts to a crime; c.) That the the threat threat is not not subject subject to a condition condition6. 3.2. Thus, in order that a person may be held guilty of the crime of grave threats under  Ar Arti ticl clee 28 282, 2, pa para ragr graph aph 2 of the the Revi Revise sed d Penal Penal Code, Code, it is in indi disp spen ensa sabl blee for for th thee  prosecution to establish beyond reasonable doubt that a person threatens another with the infliction upon the latter’s person, honor, or property, or upon the latter’s family, any wrong amounting to a crime and that the threat is not subject to condition;

IV. EVIDENCE FOR THE PROSECUTION ---

4.0. The Evidenc Evidencee for the prosec prosecuti ution, on, upon which the judgme judgment nt of convict conviction ion of  Appellant was anchored are enumerated as follows:

1.) Sworn Statement/Salaysay of Ricardo Dela Vega on August 22, 2001 taken by PO3 Rolando Santos at the Police Station of San Mateo, Rizal 7, conveying the material facts how the crime was allegedly committed, to wit: “Ganito po yon, higit kumulang po sa alas 8:30 po ng gabi petsa 21 ng Agosto 2001, kami po ay nasa loob ng aking tahanan at nanonood po kami ng T.V. ng aking asawa at mga anak at ilang minuto po ay may narinig po akong tatlong beses na kalabog ng yero na galing sa bubong ng aking  bahay, kaya ang ginawa ko po ay nakiramdam po ako ak o at pinatay ko po ang aking TV, maya-maya po ay narinig ko na nagsasalita itong si Totong Gabrinao at sinabi niya na “Boy lumabas ka riyan at tatadtarin kita ng  bala, at marami ka nang atraso sa akin” kaya ang ginawa ko po ay  pumasok po ako sa silong (Ilalim) ng aking bahay sa tapat ng bandang likuran at dito ko po nakita itong si Totong Gabrinao na may dalang Baril na Shotgun na kasama sina alyas Ading na may dalang Armalite, Mario Munoz na may dalang Carbine, at @ Bornok na may dalang Shotgun, samantalang itong si Janning Gabrinao an Nanding Gabrinao ay nakatayo lang po sa bandang kaliwa ng aking bahay at itong si Julio Gabrinao at may kasama pang isang lalaki na hindi ko kilala ay nakatayo rin po sila sa  bandang kanang bahagi ng aking bahay at sa bandang bandan g bakod ko po sa may  patolahan ay may isang lalaki rin na di ko po kilala na nakatayo po at ne negs gses esen enya yasa san n po si sila la,, hangg hanggang ang sa ak ako o po ay hi hind ndii na na nags gsal alit itaa at lumabas ng aking bahay, subalit nagsalita po ang aking asawa at sinabi po 6 7

 Ibid, p. 512  Exhibit A, A-1 and A-2

7

 

niya na “Ang mga bata baka tamaan” at sumagot po itong si Totong Gabrinao na “Walang bata-bata sa akin, raratratin ko kayo” at matapos magsalita ni Totong ay unti-unti na silang nagsisilayasan at nagiwan pa sila ng salitang “MGA NPA KAMI”” 2. Police Indorsement dated September 7, 20018; 3. Referr Referral al letter letter from from the Nation National al Headqua Headquart rters ers Philip Philippin pinee Nation National al Police to PSUPT. Ramon Domengues, San Mateo Police Station, San 9

Mateo, Rizal dated August 22, 2001 ; and, 4. Testimony of the sole prosecution witness, herein complainant Ricardo Dela Vega, taken on January 23, 2003 which is only a reiteration of his Sworn Statement/Salaysay.10   4.1. Aside Aside from from the evidenc evidencee enumera enumerated ted above, above, no other other object objective ive,, documen documentar tary, y, testimonial, corroborating or cumulative evidence proving the guilt of Appellant were  proffered by the prosecution;

V. ON CROSS-EXAMINATION ---

5.0. On cross-examination, Ricardo Dela Vega confirmed/affirmed that he still resides at the place where the alleged incidenct took place; there was no electricity in their place; and, he was only using a butotoy (gasera) as the only light illuminating the aforestated  place, to wit: “Q. Mr. Witness, you went to Camp Crame on August 22, 2002 not August 21, 2001? A. Yes, sir . Q. And, Mr. Janing Gabrinao is the neighbor of yours, Mr. Witness? A. Yes, sir. Q. Since the time of the incident up to the present you and your family transfer residence, Mr. Witness? A. We still reside there in our place, sir.

 

Q. Was there any electricity in your place Mr. Witness? A. None, sir. Q. What kind of lights were you using at that time, Mr. Witness? A. A butotoy, sir.

8

 Exhibit B  Exhibit C 10  TSN dated January 23, 2003 9

8

 

Q.Th Q.That at is the the sa same me bu buto toto toy y you you ment mentio ione ned d in yo your  ur  Affidavit, Mr. Witness? A. Yes, sir.”11

5.1. Ricardo Dela Vega in his Sworn Statement described how he was able to identify all the accused in Criminal Case No. 126-02 of the Metropolitan Trial Court of San Mateo Rizal, to wit: 10 10.. T: Ma Mali liwa wana nag g ba sa lugar lugar na kung kung sa saan an ay ik ikaw aw ay kanilang kanil ang pinalalabas ng iyong bahay at binabantaan binabantaan nitong mga taong iyong tinutukoy?   S: Maliwanag po ang ilaw ko sa apoy ng aking Butotoy (gasera) at doon ko sila nakilala. 12

VI. ON RE-DIRECT & RE-CROSS EXAMINATION ---

6.0. On re-direct examination, Ricardo Dela Vega pronounced:

“Q. Is that butotoy is the only light you use, Mr. Witness? A. Yes, Yes, but aside aside from from that that pe peopl oplee can us usee pe petr trom omax, ax, carbdide and flourecent 10 watts or volts, sir. Q. Mr. Witness, earlier you identified 4 or 5 persons and this incident took place at around 8:30 in the evening how were you able to recognized these persons when according to you it was dark during that time because you only using a butotoy? A. “Maliwanag po ang aming butotoy at may kadiliman po sa aming lugar kaya po dumikit ka lang sa dingding ng aming bahay ay makikilala mo at pinalalabas po nila ako, at sinabihan po nila ang asawa ko na ilabas mo ang iyong asawa at malinaw pos a aking pandinig ang mga boses nila, sir” Q. So how many persons did you see during that night, Mr. Witness? A. They were many, sir. Q. Approximately, Mr. Witness, how many were there? A. There were four at the back of my house, sir. Q. And you recognized four of them Mr. Winess? A. Yes, because they went near and peeping to us, sir.”13  6.1. On re-cross, Ricardo Dela Vega exposed a grudge regarding lands, stating that: 11

 TSN, page 10-11, January 23, 2003  Exhibit A 13  TSN, January 23, 2003, pp. 11-12 12

9

 

“Q. Mr. Witness, do you have any grudge misunderstanding with the accused regarding the land? A. Yes Yes, sir sir.”14

or  

VII. EVIDENCE FOR THE DEFENSE ---

7.0. The evidence for the defense are enumerated as follows: 1. Pinagsanib na Sinumpaang Sinumpaang Salaysay” duly executed by Dianito, Dianito, Julian and Julio, all surnamed Gabrinao as their direct testimony to belie and disprove dispr ove complainant’ complainant’ss baseless baseless an incredible incredible allegations, allegations, providing providing in 15  part as follows: “6 “6.. Ang dahil dahilan an kung kung ba baki kitt kamin kaming g magk magkak akapa apati tid d ay naisipang sampahan ng walang katotohanang demanda ni Ricardo Dela Vega ay sapagka’t nais niya at kanyang amo na si Sand Sandrra Sal Salbani banitto Reyes eyes na kami kami ay ma mattakot akot manirahan sa aming lugar at aming tuluyang lisanin ito upang sila ay makapasok at makapamosesyon sa lupang  pag-aari ng Hobart Realty; 7. Noon pang Pebrero 2001 ay hinangad at tinangka na ni Sandra Salbanito Reyes na pasukin ang lupang pag-aari ng Hobart Realty ngunit hindi ito pinahintulutan ni Dianito Gabr Ga brin inao, ao, ba bagay gay na lubh lubhang ang kina kinaga gali litt ni Sa Sandr ndraa at ng kanyang alalay na si Ricardo Dela Vega. Ang pangyayaring ito ay aming inireport sa barangay ng pintong Bocauae, San Mateo Rizal; 8. Kami ay dapat na magsasampa ng demanda kay Ricardo Dela Vega sapagka’t noong Abril 6, 2002, nagpadala sila ni Sandra Reyes ng mga taong armado ng iba’t ibang kalibre ng baril at pinasok kami sa aming mga bahay banding 1:00 ng madaling araw at si Julio Gabrinao at ang aming kapatid na si Reyn Reynal aldo do Gabr Gabrin inao ao ay kani kanila lang ng sinakt naktan an,, sa  pamamagitan ng pambubugbog, pagkulata ng dulo ng baril sa lalamu lalamunan nan.. Nakita Nakita naming naming si Ricard Ricardo o Dela Dela Vega Vega na kasama ng grupong ito at nakatayo sa may labas ng kusina ni Di Diani anito to Gabr Gabrin inao ao.. Hi Hind ndii naman naman it ito o na nair irekl eklam amo o sa awtori awt oridad dad sapagk sapagka’s a’s kami ay binant binantaan aan ng taong taong ito na kami ay papatayin sakaling kami ay magsumbong at sinabi rin nila na mabuti pang kami ay umalis na lang sa aming tirahan. Ipinagmamalaki rin ni Ricardo dela Vega sa buong  barangay namin na siya ay malakas ang koneksyon sa mga matata mat ataas as at makapa makapangya ngyari rihang hang opisya opisyall ng gobyern gobyerno o at hindi siya pwedeng kalabanin ng sino man.”;   2. Sinumpaang Salaysay duly executed by Mario Munoz as his direct testimony test imony to belie and disprove disprove complainant complainant’s ’s baseless baseless and incredible incredible 16 allegations, providing in part as follows: 14

 Ibid, p. 13  Exhibit No. 1, 1-A et seq. to 1-B 16  Exhibit No. 2,2-A & 2-B 15

10

 

“3 “3.. Ang Ang ta tang ngin ing g al alam am kong kong da dahi hila lan n kung kung bakit bakit ak ako o ay is isin inas asan angk gkot ot ni Rica Ricard rdo o de dela la Vega Vega sa ka kaso song ng it ito o ay sapagka’t ako ay malapit na kamaganak at kasamahan ng mgaa magka mg magkaka kapat patid id na Gabr Gabrin inao ao at ak ako o ay nakat nakatir iraa sa lupa lupang ng pa pagg-aa aari ri ng Hoba Hobart rt Real Realty ty & Deve Develo lopm pmen entt Corporation; 4. Si Ricardo dela Vega at ang kaniyang among si Sandra Sa Salb lban anit ito o Reye Reyess ay na nais is na kamka kamkami min n at pasuki pasukin n an ang g lupang pagmamay-ari nh Hobart Realty at ito ay hindi nila maisakatupa maisa katuparan ran hanggang si Dianito Dianito Gabrinao Gabrinao na katiwala katiwala ng Hoba Hobart rt Real Realty ty,, sa samp mpu u ng ka kani niya yang ng mga mga ka kapa pati tid d ay nananatilin nakatira at nagbabantay sa lupang ito. 5. Ang kasong ito ay isinampa sa amin upang kami ay matakot at tuluyang lisanin naming ang nasabing lugarat makapasok sila sa lupa ng Hobart Realty & Development Corporation.”; 3. Sinumpaang Salaysay duly executed by Edito Gabrinao as his direct testimony test imony to belie and disprove disprove complainant complainant’s ’s baseless baseless and incredible incredible 17 allegations, providing in part as follows: “3. Noong Agosto 21, 2001 sa oreas ng 8:30 ng gabi, ako ay nasa Silang, Cavite kasama ng aking pamilya kung saan kami ay duon nakatira ng panahong iyon kaya kami ay imposible ang kanyang paratang na tinakot ko siya sa oras at petsang iyon. Lumipat lamang kami ng aking pamilya sa San Mateo nitong Mayo, 2002; 4. Ang Ang da dahi hila lan n ku kung ng ba baki kitt ka kami ming ng magk magkak akap apat atid id ay si sina namp mpah ahan an ng ka kaso so ni Rica Ricard rdo o de dela la Vega Vega ay upan upang g iwanannamin ang lugar na aming tinitirhan ngayon. Kung ito ay lilisanin naming ay mawawalan na sila ng sagabal sa  pagpasok nila ng kanyang among si Sandra Reyes sa lupang pagmamay-ari ng Hobart Realty na  pinangangalagaan ng aming kapatid na si Dianito Gabrinao.”; 4. Certified True Copy of TCT No. 395118 in the name of Hobart Realty & Dev. Corp., Register of Deeds for Marikina City, proving the ownership and possession of the property where the alleged incident took place; 18 5. Certified True Copy of Tax Declaration No. 00-SM-012-0235. in the na name me of Hoba Hobart rt Real Realty ty Dev. Dev. Corp Corp., ., San Mate Mateo, o, Ri Riza zal, l, pr prov ovin ing g th thee ownership and possession of the property where the alleged incident took   place;19 6. Certified True Copy of TCT No. 395119 in the name of Hobart Realty & Dev. Corp., Register of Deeds for Marikina City, proving the ownership and possession of the property where the alleged incident took place; 20

17

 Exhibit 3-A & 3-B  Exhibit No. No. 3, 4& 4-A 19  Exhibit No. 5 & 5-A 20  Exhibit No. 6 & 6-A 18

11

 

7. Certified True Copy of Tax Declaration No. 00-SM-012-0234. in the na name me of Hoba Hobart rt Real Realty ty Dev. Dev. Corp Corp., ., San Mate Mateo, o, Ri Riza zal, l, pr prov ovin ing g th thee ownership and possession of the property where the alleged incident took   place;21 8. Author Authoriza izatio tion n dated dated Februa February ry 22, 2001, 2001, iss issued ued by Juan Juan T. Gar Garcia cia,, President Presi dent of Hobart Hobart Realty Realty and Dev. Corporation, Corporation, proving the ownership ownership and possession of the property where the alleged incident took place; 22 23

9. Testimonies of Edito Gabrinao and Mario Munoz dated June 19, 2003; 10. Testimony of Janito Gabrinao dated October 21, 2003.24

VIII. GROUNDS FOR THIS APPEAL ---

8.0. This Appeal is made on the following grounds, to wit:

I. THE MASS OF EVIDENCE PROFFERED BY THE PROSECUTION DOES NOT MEET THE QUANTUM OF PROOF NECESSARY TO CONVICT THE ACCUSED-APPE CONVICT ACCUSED-APPELLANT LLANT BEYOND BEYOND REASONABLE REASONABLE DOUBT. II. THAT THE TRAIL COURT ERRED IN GIVING FULL FAITH AND CREDENCE CREDE NCE TO THE TESTIMONY TESTIMONY OF THE SOLE SOLE PROSECUTION PROSECUTION WITN WI TNES ESS S DESP DESPIT ITE E EXIS EXISTI TING NG SERI SERIOU OUS S IN INCO CONS NSIS ISTE TENC NCIE IES, S, GLARING ILL-MOTIVE CREATING DOUBT REGARDING THEIR  TRUTHFULNESS AND CREDIBILITY.

III. IN LIGHT OF THE EVIDENE ON RECORD THE COURT A QUO ERRED ERRE D IN CONV CONVIC ICTI TING NG APPE APPELL LLAN ANT T ON GROU GROUND ND THAT THAT POSITI POS ITIVE VE TESTIM TESTIMONI ONIES ES OF THE PROSEC PROSECUTI UTION ON WITNES WITNESSES SES HAS GREATER WEIGHT THAT ALIBI OF DEFENDANT.

IX. DISCUSSION ---

THE MASS OF EVIDENCE PROFFERED BY THE PROSECUTION ION DOES NOT MEET THE QUANTUM OF PROOF NECESSARY TO CONV CO NVIC ICT T THE THE APPE APPELL LLAN ANT T 21

 Exhibit No. 7 & 7-A  Exhibit No. 8 23  TSN dated June 19, 2003 24  TSN dated October 21, 2003 22

12

 

BEYOND DOUBT.

REASONABLE

A.) Non of the documentary evidence (Exhibits A, A-1 and A-2, B, C) proffered by the prosecution es esta tabl blis ish h that that a cr crim imee of gr grav avee thre threat atss ha had d been been comm commit itte ted d or proves the guilt of Appellant.

On January 23, 2003, after the lone prosecution witness testified in court, the prosecution formally offered their entire documentary evidence, Exhibits A, A-1, A-2, B and C, the transcript of stenographic notes provides that:

“COURT: Witness may step down.   Fiscal, do you have other witnesses to present. Fiscal Macapagal: He is a lone witness your honor. COURT: Can you make your formal offer now. Fiscal Macapagal: Yes, your honor. COURT: Okey proceed, considering that they are only two or three exhibits I think. Fiscal Macapagal: Yes, your honor. We ar aree off offer eriing  Exhibits A with submarkings for the  purpose of proving that on August 22, 2001 200 1 the accused in this case threatened and armed with firearms complainant   Ricardo dela Vega and uttered the words “ “Boy Boy lumabas ka riyan tatadtarin kita ng bala….. bala ….. Exhibi Exhi bitt B – whic which h is the the  Indorsement Letter of Police Superin Supe rinten tenden dentt Ramon Ramon Doming Dominguez uez dated dated Septemb September er 7, 2001 addressed 2001  addressed to the San Mateo Provincial Prosecutor’s Office. Exhibit C – The  Memorandum Letter executed by the  Police Superintendent Baronia of Camp Crame, Quezon Cityy dated Cit dated August August 22, 2001 addressed to the San Mateo Police Station.”25  (underscoring supplied)

Contrary to the position of the prosecution, the Sworn Statement of Ricardo Dela Vega doess not in an doe any y way way su suff ffic icee as proof proof be beyo yond nd re reas asona onabl blee doubt doubt th that at cu culp lpab abil ilit ity y of  Appellant and his co-accused lies as assereted by the prosecution --- accused in this case threatened and armed with firearms complainant Ricardo dela Vega and uttered the

25

 TSN, January 23, 2003, p. 13-14

13

 

wor ord ds

“Boy

luma umabas

ka

riyan

tatad adttarin

kita

ng

bala .

---

Rather,

the

declarations/allegations in the Sworn Statement of Ricardo Dela Vega, unsuppo unsupported rted by any corroborotave or cumulative evidence, is not a fact but mere mere self serving serving assertions

and cannot arrive at a conclusion that the crime of grave threats had been committed  precisely by the Appellant and his co-accused justifying their conviction;

The prosecution’s evidence pertaining to the Memorandum dated August 22, 2001 by Police Senior Superintendent Rolando U. Paronia of the National Headquarters of the PNP, Police Community Community Relat Relations ions Group, Camp Crame Quezon City likewise does not establish that the abovementioned elements of grave threats are present. Just by glancing at the aforesaid Memorandum would reveal that it was merely a referral letter addressed  to PD. PRO 4, PSUPT. RAMON DOMINGUEZ of San Mateo Police Station requesting  investigation of Ricardo Dela Vega’s complaint against Appellant and his co-accused  and if evidenc evidencee warran warrants, ts, to file file appropr appropriat iatee charge charge.. The aforstated Memorandum is  partly quoted: “ xxx

2. Resp Respect ectfu full lly y re reff ffer ered ed to yo your ur go good od of offi fice ce is he here rein in attached complaint of Mr. Ricardo Dela Vega of the above given address against a certain Totong Gabrinao, Ading, Bornok and 5 others, for alleged Grave Threats. 3. Complainant alleged than on 21 August 2001 at about 8:30 8:30 in the the ev eveni ening ng the the af afor orem ement entio ioned ned su susp spec ects ts were were armed arm ed with with shotgu shotgun, n, Armali Armalite te and Carbin Carbine, e, whe when n they they arrived at their residence and instructed him to get out. When complainant heard and seen the suspects cocked their  firearms, he immediately escaped at the back of his house.

2. 2. In  In this connection, please cause the investigation of the  same and to file appropriate charges against the suspect if  evidence warrants.” warrants.” (underscoring supplied)

Likewise the police referral letter dated September 7, 2001 neither proves that the crime of grave threats had been committed nor it proves the guilt of Appellant and his coaccused accu sed.. For the aforem aforement ention ioned ed indors indorseme ement nt merely merely indica indicates tes that that the Philip Philippin pinee  National Police of San Mateo Rizal had taken the statement of Ricardo Dela Vega and 

14

 

nothing more. Exhibit more. Exhibit B does not even show that operatives of PNP of San Mateo, Rizal conducted an actual investigation such as taking the statement of Appellant and his coaccused or they went to the alleged crime scene to gather sufficient evidence warranting the institution of criminal complaint;

B.) B.) The The unco uncorr rrob obor orat ated ed lone lone te test stim imon ony y of the the pros prosec ecut utio ion n witne itnesss Rica icardo Dela Vega cannot prevail over the positive testimonies of Appellant and his four co-accused together with the defense’s supporting documentary evidence.

It is likewise worth emphasizing that aside from the abovementioned (three) documentary evidence proffered by the prosecution, no other testimonial, documentary and object evidence corroborates the testimony by the Ricardo Dela Vega; Contrarily, the defense presented five witnesses namely Dianito, Julian and Julio, all surnamed Gabrinao, Mario Munoz and Edito Gabrinao whose testimonies did not only attack the credibility but also and imputed ill-motive againsts the sole prosecution witness Ricard Ric ardo o Dela Dela Vega. Vega. Additi Additional onally, ly, the testi testimoni monies es of the abovenam abovenamed ed person personss were were suppor sup ported ted by docume documenta ntary ry eviden evidence ce provin proving g the owners ownership hip and posses possessio sion n of the  property where the alleged incident took place (enumerated under section VII);

From the Sworn Statement and testimony of Ricardo Dela Vega it appears that there was another witness to the crime allegedly committed. According to Ricardo Dela Vega, his wife and childred were inside the house watching television when the purported incident  happened , to wit: “Ganito po yon, higit kumulang “Ganito kumulang po sa alas 8:30 po ng gabi  petsa 21 ng Agosto 2001, kami po ay nasa loob ng aking tahanan at nanonood po kami ng T.V. ng aking asawa at  mga anak   at ilang minuto po ay may narinig po akong tatlong beses na kalabog ng yero na galing sa bubong ng aking bahay, xxx”26 

26

 Exhibit A

15

 

Likewise, in his testimony Ricardo Dela Vega stated:

“Q. Can you tell us, what was that incident happen, Mr. Witness? A. While we were watching television I television  I heard two sounds, as if it was stoning our house and after that I heard Totong Gabrinao shouting :Boy lumbas ka diyan at tatadtarin kita ng bala marami ka ng atraso sa akin”, sir”27 

If so, why did not the prosecution presented Ricardo dela Vega’s wife as corroborating witness, instead of relying on the testimony of the sole prosecution witness Ricardo Dela Vega; --- and later on it would be shown that aforesaid testimony was tainted with  suspicion   an  suspicion and d co comp mpla lain inant ant had  grudge/misunderstanding   with Appellant and his coaccused regarding the land owned by Hobart Realty making his testimony suspicious;

While no prejudicial inference can arise against a party who fails to call a witness where the only purpose is of presenting him/her would be to produce corroborative evidence, in the case at bar and considering the number of witnesses and documentary evidence  proffered by the defense versus the evidence for the prosecution, Ricardo Dela Vega’s testimonies, from which the court a quo anchored its decision, does not suffice to create a conclusion that a crime of grave threats had been committed and that Appellant may be held liable thereof;

THAT TH AT THE THE TRAIL RAIL COUR COURT T ERRED IN GIVING FULL FAITH FAIT H AND AND CREDEN CREDENCE CE TO THE TH E TEST TESTIM IMON ONY Y OF THE THE SOLE PROSECUTION WITNESS DESPITE EXISTING SERIOUS INCONSISTENCIES, GLARING ILL-MOTIVE CREATING DOUBT REGARDING THEIR   TRUTHFULNESS AND CREDIBILITY.

A.) Ricardo Dela Vega’s assertion that he was able to identify Appe Ap pell llan antt and and his his co-a co-acc ccus used ed carrying arms despite darkness in 27

 TSN dated January 23, 2003, p. 3

16

 

th thee plac lace where the incide ident alle allege gedl dly y ha happ ppen ened ed cast cast doub doubtt upon his credibility as witness.

In Ricardo Dela Vega’s Sworn Statement and testimony he claims that on August 21, 2001, at around 8:30 in the evening , while he was watching television together with his wife and children he heard two sounds as if someone was throwing stones at his house. Suddenly Suddenl y he allegedly allegedly heard Totong Gabrinao Gabrinao uttering the words “boy lumabas lumabas ka dyan at tatadtarin kita ng bala marami ka ng atraso sa akin.” After he allegedly heard Totong Gabrinao uttered the threatening words, he turned off his television and went to the  basement or silong of his house --- he did not go out of his house. From the basement of  his house which is allegedly five arms length (limang dipa) away from the position of the accused, he allegedly saw and identified Totong Gabrinao armed with shot gun, alias  Ading armed with armalite, Mario Muñoz armed with carbine and Bornok armed with  shotgun and positively identified all other co-accused in this case; case;28

During cross-examination of Ricardo Dela Vega, he declared that there was no electricity in their place where the incident allegedly happened and he was only using a butotoy (gasera) at the time the alleged threat was committed, to wit:

“Q. Was “Q. Was ther theree any el elec ectr tric icit ityy in your your pl plac acee Mr. Mr. Witness?   A. None, sir.

  Q. What kind of lights were you using at that time, Mr. Witness?   A. A butotoy, sir.

 

Q. That is the same butotoy you mentioned in your   Affidavit, Mr. Witness A. Yes, sir”29 

On re-direct examination, Ricardo Dela Vega admitted that he was able to identify all the accused in this case only because b ecause of the light produced by his butotoy (gasera), to wit: Q. Is that butotoy is the only light you yo u use, Mr. Witness?  A. Yes, but aside from that people can use petromax, cabdide and flourecent 10 watts or volts, sir. 28

 Exhibit A and TSN dated January 23, 2003

29

 TSN, page 10 to 11, Jan. 23, 2003 17

 

Q. Mr. Witness, earlier you identified 4 or 5 persons and this incident took place at around 8:30 in the evening how were you able to recognized these persons when according to you it was dark during that time because you only using a butotoy? A. “Maliwanag po ang aming butotoy at may kadiliman po sa aming lugar kaya po dumikit ka lang sa dingding ng aming bahay ay makikilala mo at pinalalabas po nila ako, at sinabihan po nila ang asawa ko na ilabas mo ang iyong asawa at malinaw pos a aking pandinig ang mga boses nila, sir” Q. So how many persons did you see during that night, Mr. Witness? A. They were many, sir. Q. Approximately, Mr. Witness, how many were there? A. There were four at the back of my house, sir. Q. And you recognized four of them Mr. Winess? A. Yes, because they went near and peeping to us, sir.” 30  (underscoring supplied)

Similarly, in Ricardo Dela Vega’s Sworn Statement stated what light he was using at the time the alleged incident happened:

“10. T: Maliwanag ba sa lugar na kung saan ay ikaw ay kanilang pinalalabas ng iyong bahay at binantaan nitong mga taong iyong tinutukoy? S: Maliwa Maliwana nag g po an ang g ilaw ko sa apoy  apoy   ng aking  butotoy (gasera) at doon ko sila nakilala.” (underscoring supplied)

From the basement of Ricardo Dela Vega’s house , it was very difficult, if not impossible, to identify seven persons persons31 who was approximately five arms length (limang dipa) away from him and allegedly surrounding his house, much less the firearms they are carrying, whom he claims to have committed the crime of grave threats considering the place where the incident allegedly took place was covered with darkness --- that there were no other lights illuminating the place --- and Ricardo Dela Vega was only using a gasera at that time;

30

 TSN, January 23, 2003, pp. 11-12  Totong Gabrinao, Eddie Gabrinao, Mario Munoz, Janning Gabrinao, Julio Gabrinao alias Ading and alias Bornok  31

18

 

B.) Ricardo Dela Vega was harborin harb oring g grudge grudge or ill-mot ill-motive ive agains aga instt all the the ac accus cused ed in this this case thus casting doubt as to the credibility of his testimony.

Dianit Dia nito o Gabrin Gabrinao, ao, Julian Julian Gabrina Gabrinao o and Julio Julio Gabrin Gabrinao ao execut executed ed their their Pinags Pinagsani anib b na Sinumpaang Salaysay” as their direct testimony stating the ill-motive Ricardo Dela Vega had over Appellant and his brothers, to wit: 32

“6.  Ang dahilan kung bakit kaming magkakapatid ay naisipang sampahan ng walang katotohanang demanda ni  Ricardo Dela Vega ay sapagka’t nais niya at kanyang amo na si Sand Sandra ra Sal Salbani banito to Reye Reyess na ka kami mi ay mat matakot  akot  manirahan sa aming lugar at aming tuluyang lisanin ito upang sila ay makapasok at makapamosesyon sa lupang   pag-aari ng Hobart Realty; Realty; 7. Noon pang Pebrero 2001 ay hinangad at tinangka na ni Sandra Salbanito Reyes na pasukin ang lupang pag-aari ng Hobart Realty ngunit hindi ito pinahintulutan ni Dianito Gabr Ga brin inao, ao, ba bagay gay na lubh lubhang ang kina kinaga gali litt ni Sa Sandr ndraa at ng kanyang alalay na si Ricardo Dela Vega. Ang pangyayaring ito ay aming inireport sa barangay ng pintong Bocauae, San Mateo Rizal; 8. Kami ay dapat na magsasampa ng demanda kay Ricardo Dela Vega sapagka’t noong Abril 6, 2002, nagpadala sila ni Sandra Reyes ng mga taong armado ng iba’t ibang kalibre ng baril at pinasok kami sa aming mga bahay banding 1:00 ng madaling araw at si Julio Gabrinao at an gaming kapatid na si Reyn Reynal aldo do Gabr Gabrin inao ao ay kani kanila lang ng sinakt naktan an,, sa  pamamagitan ng pambubugbog, pagkulata ng dulo ng baril sa lalamu lalamunan nan.. Nakita Nakita naming naming si Ricard Ricardo o Dela Dela Vega Vega na kasama ng grupong ito at nakatayo sa may labas ng kusina ni Di Diani anito to Gabr Gabrin inao ao.. Hi Hind ndii naman naman it ito o na nair irekl eklam amo o sa awtori awt oridad dad sapagk sapagka’s a’s kami ay binant binantaan aan ng taong taong ito na kami ay papatayin sakaling kami ay magsumbong at sinabi rin nila na mabuti pang kami ay umalis na lang sa aming tirahan. Ipinagmamalaki rin ni Ricardo dela Vega sa buong  barangay namin na siya ay malakas ang koneksyon sa mga matata mat ataas as at makapa makapangya ngyari rihang hang opisya opisyall ng gobyern gobyerno o at hindi siya pwedeng kalabanin ng sino man.”; (underscoring supplied)   Mario Munoz also executed his Sinumpaang Salaysay likewise declaring the ill-motive Ricardo Dela Vega had over Appellant and his brothers:33

32 33

 Exhibit No. 1, 1-A et seq. to 1-B  Exhibit No. 2, 2-A & 2-B

19

 

“3 “3.. Ang Ang ta tang ngin ing g al alam am kong kong da dahi hila lan n kung kung bakit bakit ak ako o ay is isin inas asan angk gkot ot ni Rica Ricard rdo o de dela la Vega Vega sa ka kaso song ng it ito o ay sapagka’t ako ay malapit na kamaganak at kasamahan ng mgaa magka mg magkaka kapat patid id na Gabr Gabrin inao ao at ak ako o ay nakat nakatir iraa sa lupa lupang ng pa pagg-aa aari ri ng Hoba Hobart rt Real Realty ty & Deve Develo lopm pmen entt Corporation; 4. Si Ricardo dela Vega at ang kaniyang among si Sandra Sa Salb lban anit ito o Re Reyes yes ay nais nais na kamka kamkami min n at pasuk pasukin in ang  lupang pagmamay-ari nh Hobart Realty at ito ay hindi nila mais ma isak akat atup upar aran an ha hang ngga gang ng si Di Dian anit ito o Gabr Gabrin inao ao na ka kati tiwa wala la ng Hoba Hobart rt Re Real alty ty,, sa samp mpu u ng kaniy kaniyang ang mga mga kapatid kapati d ay nananatilin nananatilin nakatira nakatira at nagbabantay nagbabantay sa lupang  ito. 5.  Ang kasong ito ay isinampa sa amin upang kami ay matakot at tuluyang lisanin naming ang nasabing lugarat  makapasok sila sa lupa ng Hobart Realty & Development  Corporation.”; Corporation. ”; (underscoring supplied)   Furthe Fur thermo rmore, re, Edito Edito Gabrin Gabrinao ao also also execut executed ed his Sin Sinump umpaan aang g Salays Salaysay ay as his direct direct testimony to expose the grudge Ricardo Dela Vega had over Appellant:34

“3. Noong Agosto 21, 2001 sa oreas ng 8:30 ng gabi, ako ay nasa Silang, Cavite kasama ng aking pamilya kung saan kami ay duon nakatira ng panahong iyon kaya kami ay imposible ang kanyang paratang na tinakot ko siya sa oras at petsang iyon. Lumipat lamang kami ng aking pamilya sa San Mateo nitong Mayo, 2002; 4.  Ang dahilan kung bakit kaming magkakapatid ay  sinampahan ng kaso ni Ricardo dela Vega ay upang  iwanan namin ang lugar na aming tinitirhan ngayon. Kung  ito ay lilisanin naming ay mawawalan na sila ng sagabal   sa pagpasok nila ng kanyang among si Sandra Reyes sa lupang pagmamay-ari ng Hobart Realty na  pinangangalagaan ng aming kapatid na si Dianito Gabrinao.”; Gabrinao. ”; (underscoring supplied)

A Certified True Copy of TCT No. 395118 and Certified True Copy of TCT No. 395119 and their corresponding tax declarations in the name of Hobart Realty & Dev. Corp., Register of Deeds for Marikina City, and authorization letter dated February 22, 2001, issued by Juan T. Garcia, President of Hobart Realty and Dev. Corporation,  proving the ownership and possession of the property where the alleged incident took place were also presented and marked as exhibits during trial ; 34

 Exhibit No. 3, 3-A & 3-B

20

 

Confirming the existence of the above-mentioned ill-motive/grudge concerning the land was Ricardo Dela Vega himself in his testimony during his cross-examination which remains unrebutted, to wit:

“Q. Mr. Witness, do you have any grudge or   misunderstanding with the accused regarding the land?  A. Yes, sir.”35

Considering the aforequoted testimony, there is an indication that ill or improper motive can be attributed to the sole prosecution witness to point to Appellant and his siblings as the perpetrator of the crime charged. His testimony can not but be considered with grave suspicion;

It is clear from the records that the defense has evidence disclosing that Ricardo Dela Vega was indubitably harboring grudge with the Appellant at the time of the alleged commission of the crime charged. The fact of the matter is that Ricardo Dela Vega wanted Appellant to leave the lot --- which is owned by Hobart Realty --- he is occupying so that Ricardo Dela Vega could enter and usurp the aforesaid property. The prosecution eyewitness was driven by ill-motive to testify against all the accused which should have the effect of weakening his testimony;

C.) Ri Rica cardo rdo Dela Dela Vega’ Vega’ss claim claim that they were watching television at the crime allegedly happened when in fact there is no elec lectricit icity y in th theeir place indicates his lack of credibility.

The Sworn Statement/Salaysay of Ricardo Dela Vega taken on August 22, 2001 at the Police Station of San Mateo, Rizal asserts that they were watching television when the alleged crime took place: 36 

35 36

 TSN, page 13, Jan. 23, 2003  Exhibit A, A-1 and A-2

21

 

“Ganito po yon, higit kumulang “Ganito kumulang po sa alas 8:30 po ng gabi  petsa 21 ng Agosto 2001, kami po ay nasa loob ng aking  tahanan at nanonood po kami ng T.V.  T.V.   ng aking asawa at mga anak at ilang minuto po ay may narinig po akong tatlong beses na kalabog ng yero na galing sa bubong ng aking bahay, xxx” Likewise, in his testimony Ricardo Dela Vega stated: “Q. Can you tell us, what was that incident happen, Mr. Witness? A. While we were watching television I television  I heard two sounds, as if it was stoning our house and after that I heard Totong Gabrinao shouting :Boy lumabas ka diyan d iyan at tatadtarin kita ng bala marami ka ng atraso sa akin”, sir”

On his crosscross-exa examin minati ation on Ricard Ricardo o Dela Dela Vega Vega however however admitt admitted ed that that there there was no electricity in their place, stating that: “Q. Was there any electricity in your place, Mr. Witness? A. None, sir.”

The assertion of Ricardo Dela Vega that they were watching television inside his house when the crime crime of grave grave threat threatss allege allegedly dly happene happened d conside considerin ring g that that there was no electricity in their place coupled with the fact that he can only afford to use a gasera instead using petromax, cabdide and flourecent 10 watts or volts glaringly cast doubt  and suspicion on the credibility of Ricardo Dela Vega’s testimony; testimony ;   D.) The fact that Ricardo Dela Vega Ve ga and and hi hiss fami family ly did did not not tr tran ansf sfer er resi reside denc ncee afte afterr the the alleged alle ged incident incident took place place and the fact that Ricardo Dela Vega reported the alleged incident on August Aug ust 22, 2001 is inconsis inconsistent tent with his claim that he was threatened.

During the cross-examinat cross-examination ion of Ricardo Ricardo Dela Vega he declared declared that he did not transfer  transfer  residence and only went to Camp Crame on August 22, 2002 and not on the day the crime allegedly took place, to wit:

“Q. Mr. Witness, you went to Camp Crame on August 22, 2002 not August 21, 2001?

22

 

A. Yes, sir. Q. And, Mr. Janing Gabrinao is the neighbor  of   of yours, Mr. Witness? A. Yes, sir. Q. Since the time of the incident up to the present you and your family transfer residence, Mr. Witness? A. We still reside there in our place, place , sir.”37   Thee fore Th forego goin ing g admis admissi sion onss made made by Ri Rica card rdo o Dela Dela Vega Vega ar aree in inco cons nsis iste tent nt wi with th th thee allegation of Ricardo Dela Vega that he was threatened by Appellant and his co-accused while carrying firearms. If he was actually threatened by Appellant why is he residing in the same place where the alleged incident took place and still remains as neighbor of  Janning Gabrinao;

E.) On re-direc re-directt examinat examination, ion, Ricar Ric ardo do Dela Dela Vega Vega admit admitted ted that he only saw four persons at that night of August 21, 2001 which contradicts his declaration in his Sworn Statement.

Ricardo Dela Vega explained that he saw and recognized four persons at the time the alleged crime transpired, to wit:

Q. Mr. Witness, earlier you identified 4 or 5 persons and this incident took place at around 8:30 in the evening how were you able to recognized these persons when according to you it was dark during that time because you only using a butotoy? A. “Maliwanag po ang aming butotoy at may kadiliman po sa aming lugar kaya po dumikit ka lang sa dingding ng aming bahay ay makikilala mo at pinalalabas po nila ako, at sinabihan po nila ang asawa ko na ilabas mo ang iyong asawa at malinaw po sa aking pandinig ang mga boses nila, sir” Q. So how many persons did you see during that night, Mr. Witness? A. They were many, sir. Q. Approximately, Mr. Witness , how many were there? there? A. There were four were four at the back of my house, house, sir. Q. And you recognized four of them Mr. Winess? 37

 TSN, January 23, 2003. p. 10

23

 

A. Yes, because they went near and peeping to us, sir.” 38 (underscoring supplied)

In his Sworn Statement Ricardo Dela Vega claims that he was able to identify Appellant and all his co-accused which obviously oppose his declaration in the abovementioned testimony, the Sworn Stement provides:

“xxx ginawa ko po ay pumasok po ako sa silong (Ilalim) ng aking bahay sa tapat ng bandang likuran at dito ko po nakita itong si Totong Gabrinao na may dalang Baril na Shotgun na kasama sina alyas Ading   na dalang Armali Arm alite, te,  Mario Munoz   na may dalan dalang g Carb Carbin ine, e, at @  Bornok   na may da dala lang ng Sh Shot otgu gun, n, sa sama mant ntal alan ang g iton itong g si  Janning Gabrinao  Gabrinao  at  Nanding  Gabrinao Gabri nao ay nakatayo nakatayo lang po sa bandang kaliwa ng aking bahay at itong  si Julio Ju lio Gabrinao at may kasama pang isang lalaki na hindi ko kilala ay nakatayo rin po sila sa bandang kanang bahagi ng aking bahay at sa bandang bakod ko po sa may patolahan ay may isang lalaki rin na di ko  po kilala na nakatayo po p o at nesesenyasan po p o sila, sila , hanggang sa ako po ay hindi na nagsalita at lumabas ng aking bahay, subalit nagsalita po ang aking asawa at sinabi po niya na “Ang mga bata baka tamaan” at sumagot  po itong si Totong Gabrinao na “Walang bata-bata sa akin, raratratin ko kayo” at matapos magsalita ni Totong ay unti-unti na silang nagsisilayasan at nagiw nagiwan an pa si sila la ng sa sali lita tang ng “MGA “MGA NPA NPA KAMI KAMI”” ”” (u (und nder ersc scor orin ing g supplied)

F.) Even Even as assum sumin ing g argue arguendo ndo that the crime of grave threats had been been co comm mmitt itted ed,, the sole sole prosecu pros ecution tion witness witness has failed failed to establish with certainty and beyond bey ond reason reasonab able le doubt doubt the id iden enti tity ty of the the pres preson onss wh who o uttered the threatening words.

In criminal cases, the primary duty of the prosecution is not to prove the crime but to  prove the identity of the criminal. Because even if the commission of the crime can be established, in absence of proof of identity of the criminal beyond reasonable doubt, there can be no conviction 39;

Appella Appe llant’ nt’ss identi identific ficati ation on as the one who perpet perpetrat rated ed the cri crime me charge charged d by means means uttering the threatening words --- “BOY LUMABAS KA RIYAN AT TATADTADIN KITA NG BALA AT MARAMI KA NG ATRASO SA AKIN.” --- is doubtful and 38 39

 TSN, January 23, 2003, pp. 11-12  Tuason Vs. Court of Appeals, 241 SCRA 695

24

 

cannot be the basis of his conviction. It must be emphasized that based on the evidence and testimonies proffered during the trial, Ricardo Dela Vega identified Appellant as the alleged perpetrator of the crime by the mere sound mere  sound of his voice because voice because at the time the alleged crime was committed --- utterance of the threatening words --- Ricardo Dela Vega was inside his house watching television with his family. The prosecution witness testified:

Q. Mr. Witness where were you on August 21, 2001 at around 8:30 in the evening? A. Yes, sir. Q. Can you tell us, where were you then, Mr. Witness? Witness? A.  I was inside our house, sir. Q. Was there any unusual incident that happen on that night of August 21, 2002, Mr. Witness? A. Whil Whilee we were were watc watchi hing ng te tele levi visi sion on we heard heard tw two o sounds, as if it was stoning our house and after that I heard  Toton Tot ong g Gabr Gabrin inao ao sh shou outi ting ng “Boy “Boy lu luma maba bass ka dy dyan an at  tatadtarin kita ng bala marami ka ng atraso sa akin”, sir. Q. After you heard those words, Mr. Witness Witness what did you do? A.  I turn off the television and I went to the basement or   silong of my house, sir . (underscoring supplied)

Appellant recognizes that witness’ identification by mere sound of voice is sufficient and acceptable for the purpose of convicting an accused of the crime charged. However, in identifying an accused by mere sound of his/her voice, certain limitations and safeguards  provided by existing laws and jurisprudence have to be observed. A person is normally inca incapa pabl blee of ident identif ifyi ying ng anoth another er by mere mere so soun und d of voice voice unles unlesss so some me de degr gree ee of  familiarity is certainly shown. Identification by mere sound of voice is acceptable if the  prosecution established, with certainty and beyond reasonable doubt, that witness and accused have known each others personally and closely for several number of years;   In the case of People of the Philippines vs. Baligod, G.R. No. 97962, November 17, 1993 the Supreme Court gave the situation wherein identification by sound of the voice of the  person is sufficient and acceptable means of identification. The High Court held that  before the sound of voice may be considered sufficient to wit: 25

 

“Identif “Ident ifica icatio tion n by the sound of the voice of the person ident dentif ifie ied d is suff uffici cien entt and and acce accept ptab ablle mean meanss of  identification where it is established that the witness and  the accused had known each other personally and closely  for a number of years (U.S. vs. Manabat), 7 Phil. 209 [1906]).   It is no [1906]). nott disp disput uted ed that that Mild Mildre red d ha had d kn know own n appellant appell ant since 1977, or ten year prior to the assault, assault, when Mildred regularly rode appellant's Ford Fiera to and from school for a number of years. On these occasions, appellant used to engage Mildred in conversation, exchanging jokes with her and his other passengers. Mildred entertained no doub doubtts what whatssoeve oeverr as to the ident dentiity of appe appellla lant nt.. Immediately after the incident she told her brother that one of the masked men was appellant. When she went to the PC  barracks, and conversed with appellant and heard his voice, their conversation bolstered her conclusion that appellant was one of the masked men.”

A careful examination of the records shows that nothing whatsoever has been presented  by the prosecution proving or establishing any personal and a nd close acquaintance a cquaintance between Ricardo Dela Vega and Appellant Totong Gabrinao. Nothing from the records would indica ind icate te that that Ricard Ricardo o Dela Dela Vega could not have have been been mistak mistaken en when when he identi identifi fied ed Appellant who uttered the threatening words. A glaring doubt exist as to how sure was the prosecution witness that it was actually Appellant who uttered the threatening words and not one of the co-accused in MTC Criminal Case No. 126-02;

Hence, Appellant respectfully submits that the identification made Ricardo Dela Vega was a presumption/imagination and by no means can it be categorized as a fact properly established by evidence;

Moreover, the fact that prosecution has failed to identify the alleged perpetrator of the  purported crime is bolstered by the fact that even the MTC was not convinced and satisf sat isfied ied that that it was actually actually the Appell Appellant ant who commit committed ted the act of utt utteri ering ng the threatening words. In its judgment the court said:

  “However, “However, upon scrutiny scrutiny of the evidence evidence presented, presented, it ap appea pears rs that that the the co comp mpla lain inan antt co coul uld d on only ly po poin intt to th thee accused Totong Gabrinao, as the person who uttered the thre threat aten enin ing g word wordss ag agai ains nstt him. him. In th thee “s “sin inum umpa paan ang g salaysay” of Ricardo Dela Vega on August 22, 2001, he states:

26

 

Xxx   It should should also also be observ observed ed that that in the utt uttera erance nce alle allege gedl dlyy made made by the the ac accu cuse sed d To Toto tong ng Gabr Gabrin inao ao   was worded in singular form. He uttered “Boy lumabas ka riyan at tatadtarin kita ng bala at marami ka ng atraso sa akin.” Xxx.” (underscoring supplied)

In using the word allegedly it is indicative from the decision of the court a quo that it entertained reasonable doubt as to the guilt of the Appellant. Under our criminal justice system, the conscience of the court must be satisfied that on the accused-appellant could  be laid the responsibility of the offense charged. Otherwise, a mandatory acquittal is  proper;   Again, it is worth stressing stressing that courts are absolutely absolutely not permitted permitted to render judgments judgments upon guesses or surmises. Suspicion cannot give probative force to testimony which is in itself insufficient to establish or to justify an inference of a particular fact;   EVEN ASSUMIN ING G THAT APPELLANT IS GUILTY OF THE CRIME OF GRAVE THRE TH REAT ATS, S, TH THE E COUR COURT T A QUO ERRED IN APPRECIATING A GENERI GEN ERIC C AGGRAV AGGRAVATI ATING NG CIRCUMSTANCE WITH AID OF ARMED MEN.

The court court a quo promul promulgat gated ed its decision decision on Januar January y 25, 2005 convic convicti ting ng Totong Totong Gabrinao of the crime of grave threats with one generic aggravating circumstance of  “with aid of armed men” in effect effect sentencing sentencing him to suffer suffer the maximum maximum imprisonment imprisonment of six (6) months of arresto mayor and fine of P500. The judgment reads:

“In effect, the complainant admitted that it was only the accused Totong Gabrinao who threatened him, while the rest of the accused were merely standing in front of the ho hous use, e, al alth thou ough gh carry carryin ing g ar arms ms,, to sh show ow of offf fo forc rcee and strength. Thus, even if the Court would conclude that all the other accused were at the same place of the incident, they were t equally criminally liable for grave threat. Their   presence shall be treated as a “generic aggravating ci circ rcum umst stan ance” ce” whic which h ha hass the the ef effe fect ct of in incr crea easi sing ng th thee  penalty to be imposed upon Totong Gabrinao.

27

 

Article 14 of the Revised Penal Code provide: “The following are aggravating circumstances: 2. x x x 8. That crime be committed with aid of armed men or   persons who insure or afford impunity 9. x x x” With all the foregoing observations, coupled by the fact that the prosecution failed to establish any wrongdoing commit com mitted ted by Eddie Eddie Gabrin Gabrinao, ao, Mario Mario Munoz, Munoz, Jannin Janning g Gabrinao, and Julio gabrinao, except for having arms and  being there at the place of the incident, the court fids no suffic suf ficien ientt ground ground to convic convictt all the accuse accused d except except for  Totong Gabrinao who should be liable for Grave Threat.” WHEREFORE WHEREF ORE,, taking taking into into account account one generi genericc aggravating circumstance of “with the aid of armed men”,  judgment is hereby rendered finding the accused TOTONG GABR GA BRIN INAO AO,, GUIL GUILTY TY be beyo yond nd re reas ason onab able le do doub ubtt of  committing the crime of Grave Threat. Consequently, he is hereby sentenced to suffer a severe penalty of  imprisonment of six (6) months of “arresto mayor” and a fine of P500.”40

Other Oth er than than the Sworn Sworn Statem Statement ent execute executed d by the sole sole prosec prosecuti ution on witnes witnesss and his testimony, there was no evidence presented showing that Appellant and his co-accused carried firearms in the alleged commission of the crime. It must be noted that not even a single firearm was presented by the prosecution in court proving the charges that accused in this case had indeed carried carried guns as claimed claimed by Ricardo Dela Vega. Mere allegation allegation without any basis in evidence is not a fact;

In People vs. Oco, the Court held that in order that generic aggravating circumstance “with “wi th aid aid of arme armed d men” men” may may be appre appreci ciat ated ed,, it requires that the armed men are accomplices who take part in minor capacity, directly or indirectly .  41 In this case, all accused were charged for the crime of grave threats as principals and not as accomplices taking part in minor capacity only;

IN LIGHT OF THE EVIDENCE ON RECORD THE COURT A 40 41

 Judgment dated November 3, 2004, p.4  People vs. Oco, 412 SCRA 190

28

 

QUO ERRED IN CONVICTING APPE AP PELL LLAN ANT T ON GRO GROUND UND THAT POSITIVE TESTIMONIES OF THE PROSEC PRO SECUTI UTION ON WITNESS WITNESSES ES HAS GREATER WEIGHT THAN ALIBI OF DEFENDANT.

A.) The rule that alibi is inferior to positive testimony is inappli inap plicale cale where where the evidenc evidencee for the prosecution is weak.

The Judgment of the court dated November 3, 2004 found that positive testimony of  Ricardo Dela Vega should be given greater weight than the alibi of appellant and his coaccused, the decision states that:

“Alibi is one of the weakest defense an accused can invoke, and the courts have always look upon it with caution, if not suspicion, not only because it is inherently unreliable but likewise because it is rather easy to fabricate [see People vs. Azuque, 268 SCRA 711) Furthermore, in People vs. Diaz, 259 SCRA 441, the Supreme Court states that greater weight must generally  be given to the positive testimonies of the prosecution witnes wit nesses ses than to the denial [alibi] [alibi] of the defendant defendant in weighing contradictory declarations and statements. Thus,, as bet Thus between ween the lone one tes esttimony mony of the complainant, pointing to the accused Totong Gabrinao, as the person who uttered the threatening words against him. In the “sinumpaang salaysay” of Ricardo dela Vega on August 22, 2001, he states:” In the present case, as discussed above, the evidence of the prosecution falls short of that quantum of evidence which will justify the conviction of Appellant Totong Gabrinao for  grave threats. His guilt is not proven beyond beyon d reasonable doubt;

Settled is the rule that courts should not at once look with disfavor at the defense of alibi. In the old case of people vs. Omega,42 the Court held:

“Altho “Alt hough ugh al alib ibii is kn know own n to be th thee weak weakes estt of al alll th thee defenses for it it is is easy to concoct and difficult difficult to disrove, disrove, 42

 76 SCRA 262

29

 

neverthel nevert heless ess,, where where the evidenc evidencee for the prosec prosecuti ution on is weak and betrays lack of correctness on the question of  wether or not the accused committed the crime charged, the defense of alibi assumes importance xxx”

X. CONCLUSION ---

In the case at bar, the prosecution has failed to adduce the quantum of evidence necessary to warrant a conviction of herein accused-appellant. In the light of all documentary evidence and the testimony of the sole prosecution witness Ricardo Dela Vega and the entir ent iree evid evidenc encee pres presen ente ted d by the the de defe fens nsee disc disclo lose sess a we weakn aknes esss in th thee ca case se of th thee  prosecution and cast doubt on the guilt of the Appellant. The prosecution must fall on its own evidence.

PRAYER 

WHEREFORE, premises considered, it is respectfully prayed to this Honorable Court that the judgment promulgated on January 25, 2005 be REVESED and Appellant Totong Gabrinao be acquitted. Other relief just and equitable under the premises are also prayed for.

Respectfully submitted. May 6, 2005, Quezon City.  

PATRICK M. LEGASPI Suite 708 Landsdale Tower  Mother Ignacia Street corner Timog Avenue, Quezon City PTR # 6522462; 05-06-05; QC IBP # 650370; 04-20-05; PPLM Roll No.50850: May 4, 2005  Notification and Copy Furnished: Prosecutor Leonardo Gonzalez Office of the Provincial Prosecutor  San Mateo, Rizal  

30

 

 

31