DIOXENOS B. SULIT I-D 3/31/07 ATTY.

CHRISTINA ARIAS-SUMILONG LEGAL WRITING REPUBLIC OF THE PHILIPPINES COURT OF APPEALS DIVISION II, CITY OF MANILA PEOPLE OF THE PHILIPPINES, Plaintif-Appellee, -versusGA. G.R. No. 123456 PEDRO SARMIENTO Y TORDECILLA Accused-Appellant, x-----------------------------------------x APPELLEES BRIEF SUBMITTED BY OFFICE OF THE SOLICITOR GENERAL #234 Palack St, GSIS Building, Brgy. Vito Cruz, Manila, Philippines By Dioxenos Barreras Sulit Associate Solicitor General 1

SUBJECT INDEX Page No. 1 2 3 of Facts 5 6 14 Cases Cited (Order of Appearance) P eople v. Mendoza, 292 SCRA 168. People v. Ching, 240 SCRA 267. People v. Valdez, 150 SCRA 405. People v. Ancheta, 419 SCRA 307. People v. Abes, 420 SCRA 259. Pe ople v. Cabato, 160 SCRA 98. Aportadera v. Court of Appeals, 158 SCRA 695. Peopl e v. Tansiangco, L-128164. People v. Lachica, 382 SCRA 162. Law and Annotations Cited Reyes, Revised Penal Code Book 1, 16th Ed., 124(2006). Revised Penal Code, Art 14, Par. 6. Counter Arguments Discussion Prayer Contents Cover Page Subject Index Prefatory Statement Counter-Statement 2

REPUBLIC OF THE PHILIPPINES COURT OF APPEALS DIVISION II, CITY OF MANILA PEOPLE OF THE PHILIPPINES, Plaintif-Appellee, -versusPEDRO SARMIENTO Y TORDECILL A Accused-Appellant, x------------------------------------------x GA. G.R. No. 1 23456 APPELLEES BRIEF Plaintiff-appellee PEOPLE OF THE PHILIPPINES, represented by the Office of the Solicitor General in answer to the allegations raised by the accus ed-appellant in his Brief, respectfully states: PREFATORY STATEMENT Through this appeal, accused-appellant assails the judgment dated 30 November 2006 rendered by Judge Barabas Baldoza of the Regional Trial Court, 12 th Judicial Regional Br anch 15, Quezon City, finding him guilty beyond reasonable doubt of Robbery with Rape. COUNTER-STATEMENT OF FACTS Accused-appellant Pedro Sarmiento y Tordecilla together with co-accused Timeo Yhaap y Palparan and Antonio Olanne y Bergdugo w as charged before the Regional Trial Court, 12th Judicial Regional Branch 15, Qu ezon City of robbery with rape. The case was docketed as Criminal Case No. 12345 6. The accusatory portion reads: That on or about February 14, 2006, in Quezon City, Philippines, and within the j urisdiction of this Honorable Court, the above-named accused, armed with a knife , and gun, conspiring and confederating together, mutually aiding and assisting with one another, forced open the red Toyota Corrola Plate No. YHJ123 owned by W ANDA S. RIVERA, 3

and by means of violence against or intimidation of persons that is, at gun poin t, took, stole and carried away the following items: a Apple laptop computer, bl ack Nokia N91 cellphone, diamond engagement ring, green Lacoste handbag, and cas h, all estimated to be worth P150,000.00, all belonging to and taken against the will of said WANDA S. RIVERA, all to the latters damage and prejudice; that on t he occasion of means of force and intimidation, did then and there willfully and feloniously, have carnal knowledge of the said WANDA S. RIVERA, a 22-year old w oman against her will. CONTRARY TO LAW. Upon being arraigned all the accused including accused-appellant Sarmiento plead ed not guilty to the crime charged. The prosecution established the guilt of all the accused beyond reasonable doubt by presenting as evidence the testimony of the victim herself, WANDA S. RIVERA, and the other witnesses DR. MA. ANNA MAE QU INTO, DEMEK CATINDOYOK, and ANGELA CATINDOYOK. WANDA S. RIVERA, the private comp lainant testified that she was driving her way to her house passing through Luba yong Street, after working overtime when two of her tires blew. She got out of t he car to survey the damage when suddenly three men, two of which where armed, g rabbed her, forced her car open and took her personal belongings inside the said car. Thereafter the all the perpetrators removed their mask one of them pointed a gun at her, took her to a nearby grassy area then and there forcibly raped he r at gunpoint. She was able to identify Timeo Yhapp as the rapist and the accuse d-appellant Pedro Sarmiento as the one holding the knife and was jeering when sh e was being raped. DR. MA. ANNA MAE QUINTO was the Medico-Legal officer of the N ational Bureau of Investigation who examined Rivera on February 16, 2006 (about 10:30 a.m.), testified that the latter was positive of spermatozoa, vaginal lace ration, and there were also bruises on Wandas thighs indicating forced entry on h er vagina. Dr. Quinto presented the following report: Genitalia: external examination= abundant pubic hair, nulliparous outlet, no blee ding note. = hymen (+) complete, old healed .aceration at 4 and 7 oclock. Speculu m= vaginal wall no erosion/laceration. Cervix= pinkish, (+) whitish discharge. I nternal examination= admist 1 finger with ease, Cervix= closed, small midline, f irm, non-tender on wriggling, Uterus= small, Adnexae= negative for tenderness. 4

Positive for spermatozoa. Demek and Angela Catindoyok were the two couple who found the victim standing by the road around 11:00 p.m. of February 14, 2006 while walking home after celebr ating their first wedding anniversary. Mrs. Catindoyok even testified that befor e finding the victim they saw three men running towards them, one of them was ev en carrying a Laptop computer. They were able to identify them later in a police line up as the accused-appellant Pedro Sarmiento and two other co-accused, Time o Yhapp and Antonio Olanne. The accused denied the charges, claiming that they d id not know each other. All of them used the defense of alibi: Timeo Yhapp testi fied that during the commission of the crime he was reviewing in his house at Ma nggahan, Fairview, Quezon City; Antonio Olanne claimed that he was taking care o f his sick grandmother who was confined at the Philippine General Hospital; and Pedro Sarmiento claimed that he had slept early that night in his house somewher e in Cubao, Quezon City. All three presented their relatives as witnesses to cor roborate their respective alibis. On November 30, 2006 on the strength of the pr osecutions evidence the Regional Trial Court promulgated its decision. The dispos itive portion of the decision reads: WHEREFORE, the Court finds co-accused Timeo Yhapp, Antonio Olanne, and Pedro Sarm iento GUILTY BEYOND REASONABLE DOUBT of the crime of Robbery with Rape, committi ng with the use of deadly weapon and with aggravating circumstances of dwelling, nighttime, and treachery, without any mitigating circumstance to offset the sam e. Considering that there was conspiracy among the accused, they are hereby sent enced to suffer the penalty of DEATH and its actual damages; P75,000.00 as civil indemnity; P75,000.00 as moral damages; P30,000.00 as exemplary damages; and to pay the costs. Only one of the accused Pedro Sarmiento appealed the matter to the Court of Appe als raising his arguments in his Appellant Brief. COUNTER-ARGUMENTS Plaintiff-app ellee raises the following counter-arguments to the assignment of errors raised by the accused-appellant: I. The clear and convincing testimony of the private complainant is credible enough to establish the commission of the crime. 5

II. The testimony of the private complainant as well as testimonies of other pro secution witness clearly established the guilt of the accused beyond reasonable doubt. III. The testimonial evidence of the private complainant as well as applicable l aws and jurisprudence clearly established conspiracy among the accused-appellant s. IV. The testimony of the private complainant as well as the applicable laws a nd jurisprudence clearly established that the accused-appellant conspired with t he other accused in the commission of the crime. V. Positive identification by the private complainant as well as applicable jurisprudence clearly negates the accused-appellants defense of alibi even if corroborated by another witness. VI. The court correctly appreciated the aggravating circumstance of nighttime in the commission of the crime. VII. The pieces of evidence presented by the prosecution as well as the clear and credible testimony of the private co mplainant satisfied the crucible test of reasonable doubt to overthrow the Const itutional guaranty of presumption of innocence and clearly established the accus ed-appellants guilt beyond reasonable doubt. Discussion I. The clear and convinc ing testimony of the private complainant is credible enough to establish the com mission of the crime. It must be emphasized that the trial courts conviction of a ccusedappellant Sarmiento was based heavily on the victims testimony. In laying d own its decision, the trial court gave full weight and credence to the testimony of Wanda Rivera, the private complainant. In crimes were rape is involved, it i s a well-settled rule that conviction may stand on the credible and accurate tes timony of the victim alone.1 Ms. Rivera clearly testified that after she was rob bed then afterwards one of the accused took her to a grassy area and while point ing a gun successfully ravished her. 1 People v. Mendoza, 292 SCRA 168, July 9, 1998. 6

xxx xxx Atty. Makarate xxx Q: After they took your material possessions, what happened next? A: They remove d their mask, and then one of them pointed a gun at me. He then took me to the t alahib beside my car, removed my clothes and started to kiss me while caressing my breast. The others were cheering him on while he was raping me. I was so scar ed that I could not move my whole body.2 xxx xxx xxx (Italics supplied) Furthermore, no decent and sensible woman would ever publicly admit that she was raped since she would run the risk of public contempt, unless she was in fact a rape victim. 3 Ms. Rivera is a well known professional who did not have any cri minal records in the past. If she was not raped at all, she would not run the ri sk of public trial and admit that she was indeed a rape victim. Moreover, motive against the accused is out of the question since Ms. Rivera had never seen any of the accused before in her entire life. The court gives credence to testimony of the victim not only because it is corroborated by the testimonies of other wi tnesses, but also because the victim did not have any motive to falsely implicat e the accused.4 II. The testimony of the private complainant as well as testimon ies of other prosecution witness clearly established the guilt of the accused be yond reasonable doubt. It must be noted that the prosecution presented four (4) credible witnesses to prove the guilt of the accused beyond reasonable doubt. Th e findings of the trial court on the credibility of witnesses deserve the highes t respect,5 when there is nothing to point out that the witnesses had improper m otives against the accused.6 Sometimes even the most truthful witnesses make mis takes,7 but these minor 2 3 4 5 6 7 TSN dated March 12, 2006 pp. 18-19. People v. Ching, 240 SCRA 267. People v. Val dez, 150 SCRA 405. People v. Ancheta, 419 SCRA 307. People v. Abes, 420 SCRA 259 . People v. Cabato, 160 SCRA 98, April 15, 1988. 7

inaccuracies only strengthen the veracity of their testimonies on the ground tha t it erases the suspicion of a rehearsed testimony.8 The victim Wanda Rivera cle arly identified the accused-appellant as the one who was carrying a knife while the others took her belongings inside the car. According to her testimony the ac cused Sarmiento was also the one who held her while the other accused Yhapp was raping her. As what was declared in People v. Mendoza,9 a clear and accurate tes timony of the victim herself is enough to warrant a conviction of rape against t he offenders. Moreover, Ms Wandas testimony was corroborated by the testimonies b y the other prosecution witnesses the prosecution presented during the trial. Dr . Ma. Anna Mae Quinto positively affirmed in court that there was a presence of spermatozoa in Ms. Wandas genitalia several hours later after the incident occurr ed. The Doctor also submitted to the court, as evidence, her findings after medi cally examining Ms. Wanda after she was brought to the police station. The findi ngs states: xxx xxx Genitalia: external xxx examination= abundant pubic hair, nulliparous outlet, no bleeding note. = hymen (+) complete, old healed .aceratio n at 4 and 7 oclock. Speculum= vaginal wall no erosion/laceration. Cervix= pinkis h, (+) whitish discharge. Internal examination= admist 1 finger with ease, Cervi x= closed, small midline, firm, non-tender on wriggling, Uterus= small, Adnexae= negative for tenderness. Positive for spermatozoa.10 xxx xxx xxx (Italics supplied) The prosecution also presented as witnesses a couple, Demek and Angela Catindoyo k, who testified before seeing Ms. Rivera at the side of the road, saw three men running towards their direction and one of them was even carrying a laptop comp uter. As Mrs. Catindoyok stated in her testimony: xxx 8 9 xxx xxx Aportadera v. Court of Appeals, 158 SCRA 695. 292 SCRA 168. 10 TSN dated April 1 4, 2006 p. 27. 8

Atty Makarate: Q: What did you see at the road while walking on the night of Febr uary 15, 2007? A: While me and Demek were walking along the road, it was our fir st wedding anniversary then, we saw three men running towards us, the tall one w as even carrying a laptop computer. Then we continued walking and suddenly saw M s. Rivera on the side of the road walking weakly and breathing heavily. She cann ot speak then that is why we brought her to the police. Demek insisted that we f irst take her to the police but upon seeing her only wearing a skirt we took her to the hospital.11 xxx xxx xxx (Italics supplied) III. The testimonial evidence of the private complainant as well as applicable l aws and jurisprudence clearly established conspiracy among the accused-appellant s. The prosecution presented the victim, Ms. Rivera, who testified that the thre e accused were only using hand signals and head nods to give instruction to each and everyone of them during the robbery. Afterwards the one whom she identified as the apparent leader, Timeo Yhapp barked at the others telling them that she was too beautiful to be true and thus Yhapp must taste her. Upon kissing her the two (2) other accused jeered.12 Under Article 8 of the Revised Penal Code, when the crime is already committed, conspiracy will not be appreciated as a separat e offense but as a manner of incurring criminal liability, the act of one is the act of all, regardless of the extent of the participation of the other offender s.13 Furthermore, in a long line of cases it is declared that the existence of c onspiracy need not be expressed by direct evidence it may be implied from the ac ts of the accused although they dont even know each other, as what was declared i n People v. Aguilos: xxx xxx xxx Conspiracy need not be proven by direct evidence. After all, secrecy and concealm ent are essential features of a successful conspiracy. It may be inferred from t he conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design. 11 12 13 TSN dated March 31, 2006 p. 22. TSN dated March 12, 2006 p. 15. Citing Luis Reye s, Revised Penal Code Book 1, 16th Ed., 124(2006). 9

Conspiracy may be implied if it is proved that two or more persons aimed by thei r acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal associat ion and a concurrence of sentiment. There may be conspiracy even if an offender does not know the identities of the other offenders, and even though he is not a ware of all the details of the plan of operation or was not in on the scheme fro m the beginning. One need as only his 14 to own knowingly the contribute his of efforts his in cofurtherance of it. One who joins a criminal conspiracy in effect adopts criminal designs conspirators. xxx xxx xxx (Italics supplied) IV. The testimony of the private complainant as well as the applicable laws and jurisprudence clearly established that the accused-appellant conspired with the other accused in the commission of the crime. When the prosecution presented Ms. Wanda, the victim, she positively identified the accused-appellant Pedro Sarmie nto as the one who carried the knife while opening the door of the car, and also she identified Sarmiento as the one who held her hand while Yhapp was raping he r, and all the while the accused-appellant was jeering and clapping his hand.15 Since Robbery with Rape16 was committed, all those who committed robbery will al so be liable for the rape committed; the conspiracy to rob is all that is needed to punish them all as principals in the commission of the crime.17 Although the accused-appellant testified that he was not the one who committed the rape, he did not say that he prevented the commission of rape done by his companion.18 Th e accused to be exonerated of liability in the rape must prove that he prevented the commission of rape.19 The accused-appellant said in his testimony that he d id not know the other accused. Granting for the sake of argument that this is tr ue, 14 15 16 17 18 19 GR. 121828, June 27, 2003. TSN dated March 31, 2006 p. 23. Revised Penal Code, A rt 294. People v. Mendoza, July 9, 1998, 292 SCRA 168. TSN dated March 31, 2006 p. 24. People v. Mendoza, 292 SCRA 168. 10

under the Doctrine of Implied Conspiracy, the Honorable Supreme Court declared i n the Aguilos case,20 conspiracy may exist although the offenders do not know ea ch other as long as their acts show a common design. V. Positive identification by the private complainant as well as applicable jurisprudence clearly negates the accused-appellants defense of alibi even if corroborated by another witness. The accused-appellant used the defense of alibi. In his testimony, he said that he slept early that night in his house somewhere in Cubao, Quezon City. He also presented his uncle, Dominodor Burao, a s a witness to corroborate his alibi.21 But his allege uncles testimony is self s erving then after the victim positively identified him as one of the robbers aft er all of them removed their mask. As it was declared in People v. Corpuz,22 if the alibi of the accused can only be confirmed by his relatives, his denial of c ulpability deserves scant consideration, especially, in the face of affirmative testimony of the victim as to his presence in the crime scene. Furthermore, in o rder for the court to appreciate the accusedappellants defense of alibi, it must be physically impossible for him to be at the scene of the crime during its comm ission. 23 Sarmiento was only said he was at his house in Cubao which is only tw o (2) corners away from Lubayong Street, the area where the crime took place. Mo reover, it is a well settled rule that the defense of alibi is worthless in the face of positive identification of prosecution witnesses 24 or the offended part y.25 Ms. Rivera positively identified Mr. Sarmiento as the one holding the knife and as the one cheering Yhapp on while she was being ravished by the latter.26 VI. The court correctly appreciated the aggravating circumstance of nighttime in the commission of the crime. 20 21 22 23 24 25 26 GR. 121828, June 27, 2003 TSN dated March 31, 2006 p. 24. 240 SCRA 203, (1995). Ibid. People v. Tansiangco, L-128164, February 28, 1964. People v. Lachica, 382 SCRA 162. TSN dated March 12, 2006 p. 14. 11

Aside from the fact that the crime happened during the night the victim Ms. Rive ra, testified that she always passes by Lubayong Street on her way to work. Furt hermore it is well known that Lubayong Street is one of the busiest streets in t he Cubao area. This clearly implicates that the accused would not have been succ essful if they carried out their plan during the day time. That is why they wait ed for their victim at end of dusk to take advantage of the silence of the night . Under the Article 14 of the Penal Code,27 nighttime is appreciated when it was purposely sought for by the offenders. Furthermore when the offender took advan tage of nighttime or the same facilitated the commission of the crime, nighttime need not be specifically sought for.28 VII. The pieces of evidence presented by the prosecution as well as the clear and credible testimony of the private comp lainant satisfied the crucible test of reasonable doubt to overthrow the Constit utional guaranty of presumption of innocence and clearly established the accused -appellants guilt beyond reasonable doubt. The prosecution presented four (4) wi tnesses including the victim herself to prove the guilt of the accused beyond re asonable doubt withstanding the crucible test of reasonable doubt and overthrowi ng the presumption of innocence of the said appellant. The victim Wanda Rivera p ositively identified all of the accused when they removed their mask after robbi ng her.29 She also identified Yhapp as the one who raped her while the accused-a ppellant Sarmiento was jeering her. It is a well settled rule in this jurisdicti on that an accurate and convincing testimony of the rape victim alone is enough to warrant a conviction for rape since no decent woman would publicly admit that she was raped and face public contempt, unless she was in fact ravished.30 Alth ough the victims testimony is enough to warrant conviction it was even corroborat ed by the other witnesses presented by the prosecution. Dr. Quinto testified tha t Ms. Rivera was positive of fresh spermatozoa and vaginal laceration upon physi cal examination, after the latter was brought to her clinic. She positively stat ed in her affidavit that Ms. Rivera indeed had carnal knowledge during the time when she examined her.31 27 28 29 30 31 Revised Penal Code, Art 14, Par. 6. Citing Luis Reyes, Revised Penal Code Book 1 , 16th Ed., 364(2006). TSN dated March 12, 2006 p. 11. People v. Mendoza, July 9 , 1998, 292 SCRA 168. TSN dated March 12, 2006 pp. 8-9. 12

Moreover, the prosecution presented a couple, Demek and Angela Catindoyok that f ound Ms. Rivera traumatized by the side walk at Lubayong Street in Cubao.32 Ange la Catindoyok even testified that she saw the three men running towards their di rection and one of them was carrying a laptop as the place where they incidental ly met was illuminated by post lights in the said street.33 PRAYER 32 33 TSN dated March 12, 2006 pp. 14-15. Ibid. 13

VIEWED IN THE FOREGOING LIGHT, it is respectfully prayed for that the instant ap peal be DENIED for lack of merit. Other relief and remedies as are just and equi table, are likewise prayed for. March 31, 2006 Manila City, Philippines OFFICE OF THE SOLICITOR GENERAL #234 Palack St, GSIS Building, Brgy. Vito Cruz, Manila, Philippines By Dioxenos Barreras Sulit Associate Solicitor General Copy Furnished Atty. Zelpidio Paparan Epal Law Office LTA, Bldg. Salcedo Village , Makati Counsel of the Accused-appellant 14