Dela Rosa, Bryan Lloyd L.

1-G

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS

CITY OF MANILA

PEOPLE OF THE PHILIPPINES

Plaintiff-Appellee

-versus- G.R. No. 12345

ROMYNICK C. PULLONA

Accused-Appellant

x------------------------------------------x

APPELLEE’S BRIEF

PREPARED AND SUBMITTED BY

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village,
Makati City, 1229

By

Bryan Lloyd L. Dela Rosa

Associate Solicitor General

SUBJECT INDEX

pg. 1
Page Number

1 Cover Page

2 Subject Index

3 Counter-Statement of
Facts

5 Counter-Arguments

6 Discussion on the credibility of the complainant

7 Reasonable Doubt and Elements of Robbery with Rape

9 On Conspiracy

10 Alibi as the weakest form of defense

11 Nighttime

13 Prayer

Cases Cited

1. People v. Coja, supra note 30 at 186

2. People v. Layco, Sr., G.R. No. 182191, 8 May 2009, 587 SCRA 803

3. People v. Palgan, G.R. No. 186234, 21 December 2009.

4. People v. Tan, G.R. No. 177566, March 26, 2008, 549 SCRA 489, 502;
citing People v. Baldogo, G.R. Nos. 128106-07

5. People vs Amper, G.R. No. 172708, 5 May 2010.

6. People vs Buntag, G.R. No. 123070, 14 April 2004.

7. Quidet vs People, G.R. No. 17028, 8 April 2010.

8. Sumbillo vs People, G.R. No. 167464, 21 January 2010.

Books Cited

Luis Reyes, Revised Penal Code, Book 1, 17th Ed. 2008.

COUNTER-STATEMENT OF FACTS
pg. 2
 Last August 20, 2010 at around 10:30 pm, while complainant Maricar G.
Jimenez was on her way home, driving her black Honda CRV with plate number XKY
232, her tire exploded. She was along C.P. Garcia where there was rarely any street
light. She went out of the car to check the damage and eventually she tried to call her
friend for help. She called the towing service insurance company, the Malayan
Insurance.
Out of nowhere, three (3) men appeared. One, who was identified as Albert
Cordero pointed the gun to the complainant. While he was doing that, his two (2) other
companions ransacked the car for whatever they can get.
After getting the valuable, the three were not satisfied. They forcefully dragged
the complainant to a nearby grassy part and the man who pointed the gun raped her.
She fainted and became conscious only at the hospital.
She stayed in the hospital from August 20, 2010 until August 25, 2010. After
she was cleared by the doctors, she immediately went to her lawyers.
Then, Maricar G. Jimenez,filed a complaint of robbery with rape against the three
(3) suspects namely: Romynick Pullona, Albert Cordero and John Carl Alvarado.
And on December 10, 2010, the Quezon City Prosecutor filed the information in the
Reginal Trial Court of Quezon City. The accusatory portion reads:
“That on or about 9:00 p.m. on August 20, 2010 in Quezon City,
Philippines, and within the jurisdiction 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 black Honda CRV with Plate No. XKY 232 owned by
Maricar G. Jimenez and by means of violence against or intimidation of
persons that is, at gun point, took, stole and carried away the following
items: a laptop computer Macbook Pro, iPhone cellphone, Louis Vuitton
Retiro PM bag and wallet, diamond earrings and tennis bracelet, all
estimated to be worth Php 200,000, and Php14,500 in cash, all belonging
to and taken against the will of said MARICAR G. JIMENEZ, all to the
latter's damage and prejudice; that on the occasion of the commission of
the above offense, said accused by virtue of their conspiracy, by means
of force and intimidation, did then and there willfully, unlawfully and
feloniously, have carnal knowledge of the said Maricar G. Jimenez, a 22-
year old woman, against her will.

CONTRARY TO LAW.”

The case was docketed as Criminal Case No. 12345.

The prosecution presented Maricar G. Jimenez, Dr. Ma. Melina Roque Aeron
Pagulayan, and Kaye Javier as their witnesses. Mr. Emmanuel Patrick Chan, the
representative of the Malayan Insurance.
pg. 3
 The complainant (victim) was able to identify the victims during a police line-up.
She finger-pointed Albert Cordero as the one who raped her, and John Carl Alvarado
and herein accused-appellant as the two who ransacked her car.

Meanwhile, Dr. Ma. Melina Roque testified about the results of her examination
of the body of Maricar G. Jimenez. She submitted the following report:

Genitalia: external examination = abundant pubic hair, nulliparous outlet,

no bleeding note.
= hymen (+) complete, old healed laceration at 4 and 7 o'clock.
speculum = vaginal wall no erosions/laceration.
cervix = pinkish, (+) whitish discharge.
Internal examination = admits 1 finger with ease,
cervix = closed, small midline, firm, non-tender on wriggling,
uterus = small,
adnexae = negative for tenderness.
Positive for spermatozoa1

The couple Kaye Javier and Aeron Pagulayan positively identified the three as the
persons who came out of the dimly lit grassy area near the car of the victim as soon as they
arrived. They testified that they were on their way to a prayer meeting when they saw an
abandoned car. They stopped at the rear side of the car. As soon as they stopped, three (3)
men went running from the grassy area. They positively identified all the accused during the
trial.

All the accused denied the charges against them. They claim that they do not know each
other. Romynick Pullona claimed that it was impossible for him to be at the scene of the crime
because he was reviewing for an exam in his house at Manggahan, Fairview, Quezon City.
Meanwhile, John Carl Alvarado insisted that he was taking care of her grandmother who was
confined at the Philippine General Hospital. And Albert Cordero claimed that he was already
asleep during the time of the incident somewhere in Cubao. All of them presented their relatives
to prove their claim.

On 21 May 2011, the Regional Trial Court rendered its decision. The
dispositive portion reads:
“WHEREFORE, the Court finds accused Albert Cordero, Romynick
Pullona, and John Carl Alvarado GUILTY BEYOND REASONABLE
DOUBT of the crime of Robbery with Rape, committed with the use of a
deadly weapon and with aggravating circumstances of dwelling,
nighttime, and treachery, without any mitigating circumstance to offset the
same. Considering that there was conspiracy among the accused, they
are hereby sentenced to suffer the penalty of DEATH and its accessory
penalties; to pay Maricar G. Jimenez the following amounts: P250,000.00

1
Records page 5
pg. 4
 as actual damages; P75,000 as civil indemnity; P75,000.00 as moral
damages; P30,000.00 as exemplary damages; and to pay the costs.”

Only herein accused-appellant filed his appeal on the matter in the Court of
Appeals.

COUNTER – ARGUMENTS

The plaintiff-appellee raises the following counter-arguments to negate the

allegations of the accused-appellant found in his brief.

I. That the complainant is a credible witness and minor mistakes as to

details does not overrule her testimony that establishes the
commission of the crime.

II. That the testimonies of the witnesses are enough to pass the test of
proof beyond reasonable doubt requirement in criminal cases.

III. That the Trial Court correctly appreciated that conspiracy was
present and that the accused-appellant, through his acts became a
co-conspirator.

IV. That direct identification of the witnesses negates the alibi of the
accused-appellant which was inconsistent and was rightly not given
credence.

V. That the Trial Court correctly appreciated the aggravating

circumstance of nighttime.

VI. That the prosecution was able to overthrow the constitutionally

guaranteed presumption of innocence of the accused-appellant
through the testimonies of the witnesses.

DISCUSSION

I. That the complainant is a credible witness and minor mistakes as to

details does not overrule her testimony that establishes the
commission of the crime.

It must be said that the Trial Court convicted the accused

clearly on the basis o f the testimonies of the witnesses. In his brief,
accused-appellant posits that the victim has a “propensity to lie”2
and her testimony should not be given credence. We disagree.

2
Records page 10
pg. 5
 In a prosecution for rape, the victim’s credibility becomes the
single most important issue. For when a woman says she was
raped, she says in effect all that is necessary to show that rape was
committed; thus, if her testimony meets the test of credibility, the
accused may be convicted on the basis thereof.3

xxx xxx xxx

“Atty. Dela Rosa:

Q: What happened after they robbed you of

your material possessions?

A: Sir, they forced me out of my car and they

took me to the grassy part near the road and then
raped me. The man who had the gun gave his gun to the other
and kissed me and held my breast. He took off my pants. I
was scared to death because the other has the gun
pointed in my head.”4

xxx xxx xxx (Italics supplied)

The fact also that the victim is an accomplished

professional should be borne in mind. She is an accountant and
recently promoted and will not go publicly and say that she was
raped if she was not. And no woman will allow her body to be
examined if her chastity was not abused.

The rule is settled that the trial court’s findings on the

credibility of witnesses and of their testimonies are entitled to the
highest respect and will not be disturbed on appeal, in the absence
of any clear showing that the court overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance
which would have affected the result of the case. This is because
the trial court, having seen and heard the witnesses themselves,
and observed their behavior and manner of testifying, is in a better
position to decide the question of credibility.5

The test has been passed in the case at bar.

3
People v. Layco, Sr., G.R. No. 182191, 8 May 2009, 587 SCRA 803, 808 citing People v. Coja, supra note 30 at
186

4
TSN dated November 9, 2010

5
People v. Palgan, G.R. No. 186234, 21 December 2009.
pg. 6
 Also, the minute detail missed by the complainant on the
color of the shorts the accused-appellant was wearing does not
negate her other testimonies.

II. That the testimonies of the witnesses are enough to pass the test of
proof beyond reasonable doubt requirement in criminal cases.

The accused-appellant espoused that his presumption of

innocence has not been overthrown because the evidence of the
prosecution is not enough to prove his guilt beyond reasonable
doubt.

However according to Cooley, the constitutional presumption

will not apply as long as there is “some reasonable connection
between the fact proved and the ultimate facts presumed, and the
inference of once fact from proof of another shall not be so
unreasonable as to be purely arbitrary mandate.” 6

In the case at bar, the prosecution has more than enough

evidence to overthrow the presumption of innocence and pass the
test of beyond reasonable doubt.

We look at the elements of the crime.

The elements of the complex crime of robbery with rape are

as follows: (1) the taking of personal property is committed with
violence against or intimidation of persons; (2) the property taken
belongs to another; (3) the taking is characterized by intent to gain
or animus lucrandi; and (4) the robbery is accompanied by rape.7

The first three (3) elements were proven by the complainant

who said that they threatened him if he will move from her position.

xxx xxx xxx

“Atty. Dela Rosa:

Q: What did they tell you as soon as you saw

them?

A: The man with the gun shouted at me. He

said that he will shoot me if I move or try to do

6
1 Cooley 639
7
People vs Amper, G.R. No. 172708, 5 May 2010.
pg. 7
 something. And so I just sit back on my car and watch
them get my things. They were even laughing like little
8
demons.(crying)”

xxx xxx xxx (Italics supplied)

The last element was proved by the testimony of the

complainant as corroborated by the results of the examination done by Dr.
Ma. Melina Roque.

xxx xxx xxx

“Atty. Dela Rosa:

Q: What were the results of your examination

of the body of Ms. Maricar Jimenez?

A: I furnished a copy sir. But the most

important finding I guess is the fact that
spermatozoa was found in her vagina”9

xxx xxx xxx (Italics supplied)

The prosecution was able to prove the crime contrary to the

what the accused-appellant is trying to invoke. The Trial Court is
correct in convicting the accused because their guilt has been
proven beyond reasonable doubt.

III. That the Trial Court correctly appreciated that conspiracy was
present and that the accused-appellant, through his acts became a
co-conspirator.

Presence alone does not establish conspiracy for conspiracy

transcends companionship. And similar to the physical act
constituting the act, the elements of conspiracy must be
proven beyond reasonable doubt.10 The elements of conspiracy
are: (1) That two or more persons came to an agreement; (2) That
the agreement concerned the commission of a felony; and (3) That
the execution of the felony be decided upon.

8
TSN dated November 30, 2010
9
TSN dated December 10, 2010
10
Citing Luis Reyes, Revised Penal Code, Book 1, 17th Ed., 130 (2008).
pg. 8
 However there are exceptions.

Conspiracy need not be proved by direct evidence of prior

agreement to commit the crime as it could be inferred from the
conduct of the accused before, during and after the commission of
the crime, showing that they acted in unison with each other
evincing a common purpose or design11. The concerted acts of the
accused to obtain a common criminal objective signify conspiracy.12

In the present case, it was clearly established that the

accused were directed to the same person, with the same
goal and intent making herein accused-appellant a co-principal of the
crime robbery with rape. The act of one is the act of all.13

Therefore, even though herein accused-appellant was not

the one who raped the complainant, he was held also a principal of
robbery with rape.

IV. That direct identification of the witnesses negates the alibi of the
accused-appellant which was inconsistent and was rightly not given
credence.

The Supreme Court has continued to rule that alibi is the

weakest form of defense and cannot prevail over the positive
identification by the witnesses of the prosecution.14 Even though
the alibi of the accused-appellant is corroborated by
their witnesses, it lacks merit because the same were made by their
own relatives. And at the same time, their alibi is inconsistent with
testimonies of their relatives.

xxx xxx xxx

“Atty. Azar:

Q: Where were you last August 20 2010?

A: I was at home reviewing or an exam the

next day.”

Q: Where exactly is your house located?

11
People v. Tan, G.R. No. 177566, March 26, 2008, 549 SCRA 489, 502; citing People v. Baldogo, G.R.
Nos. 128106-07
12
Quidet vs People, G.R. No. 17028, 8 April 2010.
13
People vs Buntag, G.R. No. 123070, 14 April 2004.
14
Sumbillo vs People, G.R. No. 167464, 21 January 2010.
pg. 9
 A: In manggahan sir. Manggahan, Fairview,
Quezon City.”15

xxx xxx xxx (Italics supplied)

xxx xxx xxx

“Atty. Dela Rosa:

Q: Ms. Kaye Javier, are the persons you and

your husband, Mr. Aeron Pagulayan, saw
during the night of the incident present today in this
room?

A: Yes sir.

Q: Can you finger point them?

A: (Points at the accused)”16

xxx xxx xxx (Italics supplied)

xxx xxx xxx

“Atty. Dela Rosa (on the witness of accused-

appellant):

Q: Where were you on the night of the

incident?

A: I was already asleep sir from 8pm because I

was not feeling well.

Q: But you testified to the fact that your cousin

is at your house at 10:30pm, is that correct?

A: Yes sir

Q: But you are asleep right?

A: (Did not answer)”17

xxx xxx xxx (Italics supplied)

15
TSN dated January 15, 2011
16
TSN dated January 30, 2010
17
TSN dated December 15, 2010
pg. 10
 The positive identification of the couple of the
accused negates the alibi of the accused-appellant. In the
case at bar, the Trial Court correctly disregarded the
alibi of the accused.

V. That the Trial Court correctly appreciated the aggravating

circumstance of nighttime.

Nighttime is aggravating when: (1) It facilitated the

commission of the crime; or (2) When especially sought for by the
offender to insure the commission of the crime or for the purpose of
impunity or (3) When the offender took advantage thereof for the
purpose of impunity.18

The accused-appellant claims that nighttime was not

specifically sought in the case at bar. We disagree.

However, even though their contention is correct, nighttime

is still correctly appreciated. It has been held that nocturnity, even
though not specifically sought, if it was used to the advantage of the
perpetrators to consummate the crime, it may be considered an
aggravating circumstance under Article 14 Paragaraph 6 of the
Revised Penal Code.19

In the case at bar, it has been settled that C.P. Garcia was
dimly lit and the nocturnity of the place was used to the advantage
of the accused. Therefore, nighttime is aggravating in the present
case.

VI. That the prosecution was able to overthrow the constitutionally

guaranteed presumption of innocence of the accused-appellant
through the testimonies of the witnesses.

The prosecution was able to present credible witnesses to

prove the guilt of the accused. The positive identification by
the complainant as corroborated by the testimonies of the other
witnesses should and was given more weight by the
Trial Court. However, the alibi of the accused-appellant is weak.
He was not able to prove that he was physically impossible to be
at the scene of the crime.

18
Citing Luis Reyes, Revised Penal Code, Book 1, 17th Ed., 364 (2008).
19
Citing Luis Reyes, Revised Penal Code, Book 1, 17th Ed., 333(2008).
pg. 11
 Dr. Ma. Melina Roque and her findings established the fact
that Maricar G. Jimenez was indeed raped bearing in mind
the spermatozoa found in the vagina of the said complainant.

Kaye Javier and Aeron Pagulayan testified that they are

certain that herein appellant was there at the scene of the
crime.

The pieces of the evidence complete the puzzle. Maricar G.

Jimenez was indeed raped and the testimonies of the couple
established that herein accused – appellant was part of the
team who ransacked the victim and later on raped her. Therefore,
he is rightfully convicted of robbery with rape.

PRAYER

Wherefore, the plaintiff-appellee humbly asks that the motion to appeal of

accused-appellant Romynick Pullona be dismissed by this Honorable Court because of
lack of merit.

March 31, 2011, City of Manila, Philippines.

pg. 12
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Legaspi Village,
Makati City, 1229

By

Bryan Lloyd L. Dela Rosa

pg. 13
 Associate Solicitor General

Copy Furnished

Atty. Gene Azar

Azar & Associates Law Offices

1234 Don Enrique Heights, Quezon City

Counsel of Accused-Appellant

pg. 14