Republic of the Philippines

COURT OF APPEALS
Manila

FORMER SPECIAL SIXTEENTH (16th) DIVISION

****
PEOPLE OF THE CA-G.R. CR NO. 38620
PHILIPPINES,
Plaintiff-Appellee, Members:

GONZALES-SISON, M.,
-versus- Chairperson
CRUZ, R. A.,and
L/CPL JOSEPH SCOTT INTING, H.J.P.B.,JJ.
PEMBERTON,
Accused-Appellant. Promulgated:
August 15, 2017
x --------------------------------------------------------------------------------- x
RESOLUTION
GONZALES-SISON, M.,J:

We resolve the Motion for Reconsideration filed by accused-

appellant L/Cpl Joseph Scott Pemberton (Pemberton) and Motion for
Partial Reconsideration filed by plaintiff-appellee People of the
Philippines represented by the Office of the Solicitor General (OSG)
of our Decision dated 3 April 2017 affirming with modification the 18
November 2015 decision of the Regional Trial Court of Olongapo
City, Branch 74 which found Pemberton guilty beyond reasonable
doubt of homicide.

On Pemberton's side, he prays from this Court his exoneration

from conviction and in the alternative, the appreciation of the
privileged mitigating circumstance of incomplete self-defense and
the ordinary circumstances of voluntary surrender and no intention
to commit so grave a wrong in the determination of the imposable
penalty. Finally, he seeks the reduction of damages for “loss of
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 2 of 10

income”. In support of said prayers, Pemberton raises the following

errors supposedly committed by this Court in its 3 April 2017
Decision, to wit:

I.

WITH DUE RESPECT, THIS HONORABLE COURT

COMMITTED GRAVE ERROR IN EXEMPTING THE
PROSECUTION FROM PROVING THAT THE CRIME
OF HOMICIDE WAS COMMITTED BEYOND
REASONABLE DOUBT AND SHIFTING THE
BURDEN ON PEMBERTON TO PROVE HIS
INNOCENCE. PEMBERTON CLEARLY TESTIFIED
THAT HE DID NOT KILL LAUDE, AND LAUDE WAS
ALIVE WHEN HE LEFT ROOM 1. IN INVOKING
SELF-DEFENSE, PEMBERTON IS REFERRING TO
THE NON-FATAL INJURIES HE INFLICTED ON
LAUDE WHILE THEY WERE FIGHTING.

II.

WITH DUE RESPECT, THIS HONORABLE COURT

CHERRY-PICKED EVIDENCE TO SUSTAIN THE
CONVICTION AND COMPLETELY IGNORED ALL
CONTRARY EVIDENCE.

A.

THIS HONORABLE COURT FOUND CREDENCE IN

THE TESTIMONIES OF ROSE, GALLAMOS AND DR.
DAVE ONLY INSOFAR AS THEY ARE
UNFAVORABLE TO PEMBERTON. THE COURT
DISREGARDED SUCH PORTIONS OF THEIR
TESTIMONIES THAT ARE CONSISTENT WITH
PEMBERTON'S INNOCENCE.
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 3 of 10

B.

THIS HONORABLE COURT DID NOT APPRECIATE

THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER WHEN THE EVIDENCE
ON RECORD CLEARLY SHOWS THAT PEMBERTON
VOLUNTARILY SURRENDERED TO THE
AUTHORITIES AT THE EARLIEST POSSIBLE
OPPORTUNITY.

C.

THIS HONORABLE COURT DID NOT APPRECIATE

THE MITIGATING CIRCUMSTANCE OF PRAETER
INTENTIONEM WHEN THE EVIDENCE ON RECORD
CLEARLY SHOWS THAT PEMBERTON NEVER
INTENDED TO KILL LAUDE, AS HE IN FACT DID
NOT KILL LAUDE.

D.

THIS HONORABLE COURT COMPLETELY

DISREGARDED EXTREMELY IMPORTANT PIECES
OF EVIDENCE CONSISTENT WITH PEMBERTON'S
INNOCENCE.

Meanwhile, the OSG maintains that Pemberton is not entitled

to be given full credit of the time he spent under preventive
imprisonment as he did not voluntarily agree in writing to abide by
the same rules imposed upon convicted prisoners. The OSG thus
raises this lone issue:

ACCUSED-APPELLANT CANNOT BE CREDITED

FOR THE FULL TIME HE HAS UNDERGONE
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 4 of 10

PREVENTIVE SUSPENSION (sic), AT MOST, HE CAN

BE CREDITED WITH ONLY FOUR-FIFTHS OF THE
TIME DURING WHICH HE WAS UNDER
PREVENTIVE IMPRISONMENT.

We deny both Pemberton's Motion for Reconsideration and

the OSG's Partial Motion for Reconsideration for lack of merit.

Ineluctably, the arguments raised by parties are nothing but a

rehash of the issues extensively covered in our Decision. Verily, the
state of things cannot be swayed to favor their respective positions by
simply repeating what has been discussed and resolved. Still, if only
to assuage their dissatisfaction, we opt, even in the face of
redundancy, to go over the facts and circumstances leading to our
Decision.

With respect to Pemberton's motion, we maintain our ruling

that his invocation of self-defense is an admission of the killing and
of its authorship. Pemberton's contention that he was only raising
complete and incomplete self-defense in the physical injuries he
inflicted upon Jerry Serdoncillo y Laude alias “Jennifer” (Laude) is
bereft of rhyme or reason as the former was not charged for any
physical injuries but of homicide.

By citing the elements of the justifying circumstance of self-

defense in his Appellant's Brief, it is unmistakable that Pemberton
was attempting to exculpate himself or to reduce his penalty from the
charge of homicide. Consequently, we reiterate that self-defense,
when invoked as a justifying circumstance implies the admission by
the accused that he committed the criminal act.1

However, self-defense is unavailing in this case as Pemberton

was not able to prove the existence of unlawful aggression as his life
was never in peril on that fateful night of the incident. The allegation
of Pemberton that he was slapped by Laude could not even be

1 People v. Gamez, G.R. No. 202847, 23 October 2013.

People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 5 of 10

corroborated by any medical findings. Worthy to note that according

to Pemberton, the slap he allegedly received made his ear ring which
if true should have prompted Pemberton to immediately seek
medical attention.

Further, if Pemberton was indeed only trying to defend himself,

he should have sought medical assistance for Laude as soon as the
latter was subdued and allegedly rendered unconscious. Instead, he
immediately left Celzone Lodge and went back to the ship in a
nonchalant manner. Even if he is suspicious of the people around the
motel, the moment he got a cab, he should have headed straight to
the nearest police station which he did not. Self-defense is not
credible in the face of the flight of the accused from the crime scene
and his or her failure to inform the authorities about the incident.2

Indeed, a plea of self-defense cannot be justifiably appreciated

where it is not only uncorroborated by independent and competent
evidence, but also extremely doubtful by itself. 3 Self-defense, like
alibi, is a defense which can easily be concocted4 as it is in this case.

Regardless of the defense of self-defense, the prosecution was

still able to prove beyond reasonable doubt that Pemberton is liable
for homicide. As discussed exhaustively in our Decision, through the
testimonies of Elias A. Gallamos (Gallamos) and Jacinto Miraflor
(Miraflor), it was established that Pemberton was the last person seen
with Laude inside Room No. 1 where the latter was later found
lifeless. In People v. Develles,5 a conviction for rape with homicide was
upheld where the accused was positively identified to be the last
person seen with the victim on or about the time she was killed at the
place where the latter was found dead.

The above finding is further complemented by the testimony of

L/Cpl Jairn Michael Rose (Rose) that Pemberton disclosed to him

2 People v. de Jesus, G.R. No. 186528, 26 January 2011.

3 Marzonia v. People, G.R. No. 153794, 26 June 2006.
4 People v. Cueto, G.R. No. 147764, 16 January 2003.
5 G.R. No. 97434, 10 April 1992.
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 6 of 10

that “he killed a he/she”. As already discussed, we find such

revelation as part of “res gestae” considering that Pemberton uttered
the same a few hours after the incident, without any opportunity to
divert his mind, restore his mental balance and fabricate a false
statement. Verily, in People v. Naranja,6 the accused was convicted of
murder based on the confession he made to the victim's wife
immediately after the killing.

Even if Rose has a flare for exaggeration, we could not conceive

any fathomable explanation for him to repeatedly use the phrase “he
killed a he/she”, in an open testimony before the trial court and
several months after the incident unless there is a ring of truth to it.

In addition, Pemberton's unexplained and immediate escape

from Celzone Lodge is an indicia of guilt. The Supreme Court has
repeatedly held that the flight of the accused from the scene of the
crime is an indication of a guilty conscience for as the maxim goes,
"the wicked fleeth, even when no man pursueth, whereas the
righteous is as brave as a lion.”7

Lastly, motive was clearly established in this case, as

Pemberton himself admitted to have felt disgusted upon discovering
that the person giving him oral sex was a man. Invariably, even with
such revolting experience, we have held that Pemberton is not
justified in killing Laude because the moment Pemberton pushed
away Laude, the latter immediately ceased performing fellatio on the
former. What Pemberton did to Laude was not in defense of his
honor and dignity but an act of vicious retaliation. To rule otherwise
would give Pemberton the license to seek Mark Clarence Gelviro y
Caguioa alias Barbie and inflict upon the latter the same aggression
and violence perpetrated against Laude.

These bits of evidence, pieced together, point to Pemberton as

the killer of Laude. Ostensibly, our rules make no distinction between
direct evidence of a fact and evidence of circumstances from which
6 G.R. No. L-13288, 30 June 1960.
7 People v. de Mesa, G.R. No. 137036, 14 March 2001.
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 7 of 10

the existence of a fact may be inferred.8 In fine, Pemberton's criminal

liability for homicide stands.

As to the veracity of the testimonies of the prosecution

witnesses, it is well to emphasize that Gallamos, Millaflor and Rose
have no plausible reason to testify against Pemberton for a grievous
crime. For this reason alone, their testimonies deserve full weight and
credit.

With respect to the cause of death, we stand pat on the finding

of Dr. Reynaldo Dave (Dr. Dave) that Laude died due to “asphyxia
by drowning” as he was the one who actually performed the autopsy
on Laude's cadaver and his medico-legal report carries with it the
presumption of regularity in the performance of his functions and
duties.

As to the inconsistencies and incongruities in the prosecution's

statements, these are minor ones and insubstantial and only tend to
buttress, rather than weaken their credibility for which reason, these
statements were aptly utilized by the trial court.

All told, we apply the well-entrenched doctrine that the

assessment of the credibility of witnesses lies within the province and
competence of trial courts. This doctrine is based on the time-
honored rule that the matter of assigning values to declarations on
the witness stand is best and most competently performed by the trial
judge who, unlike appellate magistrates, can weigh the testimony in
the light of the declarant’s demeanor, conduct and attitude at the trial
and is thereby placed in a more competent position to discriminate
between truth and falsehood.9 After a conscientious sifting of the
records, Pemberton fails to convince us to deviate from this doctrine.

Anent the issue of voluntary surrender, its elements are the

following:(1) the accused has not been actually arrested; (2) the
accused surrenders himself to a person in authority or the latter’s
8 Bacolod v. People, G.R. No. 206236, 15 July 2013.
9 People v. Soriano, G.R. No. 171085, 17 March 2009.
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 8 of 10

agent; and (3) the surrender is voluntary.10

Here, Pemberton claims that he was already under detention

before the filing of the Information against him, hence, he had no
opportunity to present himself before the court. However,
Pemberton's' assertion that he surrendered to his superior or
commanding officer is not borne by the records. The Report of
Investigation of the Naval Criminal Investigative Service (NCIS)
dated 1 November 2014 reveals that Pemberton was confined to the
brig aboard USS Peleliu and later transferred to a temporary
detention facility aboard Camp Aguinaldo but there was no mention
that he voluntarily surrendered.11 For this reason, the mitigating
circumstance of voluntary surrender cannot be appreciated in his
favor.

Moreover, the physical evidence on hand contradicts

Pemberton's assertion that he had no intention to commit so grave a
wrong. As proven by the prosecution, Pemberton did not leave
Laude merely unconscious, but ensured his death by submerging his
head inside the toilet bowl. Clearly, Pemberton intended the natural
consequence of his wrongful act.

With respect to the award of damages for loss of earning

capacity we maintain our ruling in view of People v. Garcia,12 that
actual proof of income in not necessary when there is a testimonial
evidence from Laude's mother that Laude was earning P5,000.00 per
week as a beautician. On this score, we uphold the award of
P4,320,000.00 to the heirs of Laude for loss of earning capacity.

As to the OSG's persistence that Pemberton should not be

credited with the same time he was under preventive imprisonment
we reiterate the ruling in the case of People v. Race13, thus:

10 People v. Placer, G.R. No. 181753, 9 October 2013.

11 Exhibit “Y-3”.
12 G.R. No. 135666, 20 July 2001.
13 G.R. No. 93143, 4 August 1992.
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 9 of 10

“Pursuant to People vs. Arenas, which involves the rape

of a mentally retarded woman, the indemnity to be paid should
be increased to P40,000.00. The four-fifths (4/5) credit, on the
other hand, is improper. Accused is entitled to be credited with
the full time of his preventive imprisonment under the first
paragraph of Article 29 of the Revised Penal Code and not
under paragraph two, which prescribes the four-fifths (4/5)
credit, since there is no evidence that he did not agree to abide
by the same disciplinary rules imposed upon convicted
prisoners.” (underscoring supplied)

The import of the above declaration is that there is a

presumption that the accused has agreed to abide with the
disciplinary rules imposed upon convicted prisoners and the burden
to disprove the same lies with the prosecution. Rightfully so, as it is
in consonant with the principle that penal laws are strictly construed
against the Government and liberally in favor of the accused. 14
Hence, in case of doubt, the doubt should be resolved in favor of
Pemberton.

As to the issues of the existence of another DNA, the missing

necklace and money, position of Laude's leg and faulty plumbing -
the same have already been fully discussed and resolved in our 3
April 2017 Decision. It is well to note that in this jurisdiction, proof
beyond reasonable doubt requires only a moral certainty or that
degree of proof which produces conviction in an unprejudiced mind;
it does not demand absolute certainty and the exclusion of all
possibility of error.15 The errors mentioned above which were cherry-
picked by Pemberton only refer to incidents that could have easily
occurred after the incident. Unless and until credible evidence is
presented proving that another person entered Room No. 1 after
Pemberton left, except for the hotel employees, Pemberton's third-
person-killer theory remains to be a pigment of one's creative and
wild imagination.

14 See People v. Bautista, G.R. No. 198113, 11 December 2013.

15 Yadao v. People, G.R. No. 150917, 27 September 2006.
People v. Pemberton Resolution
CA-G.R. CR No. 38620 Page 10 of 10

WHEREFORE, premises considered, accused-appellant L/Cpl

Joseph Scott Pemberton's Motion for Reconsideration and the Office
of the Solicitor General's Partial Motion for Reconsideration are both
DENIED for lack of merit and the assailed 3 April 2017 Decision
STANDS.

SO ORDERED.

MARLENE B. GONZALES-SISON
Associate Justice

WE CONCUR:

RAMON A. CRUZ HENRI JEAN PAUL B. INTING

Associate Justice Associate Justice