FIRST DIVISION
G.R. No. 242883, September 03, 2020
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. GERWIN GUNDA1 AND ELMER T. REBATO, ACCUSED.
ELMER T. REBATO, ACCUSED-APPELLANT.
D E C I S I O N
PERALTA, C.J.:
For resolution of this Court is the appeal of accused-appellant Elmer T. Rebato seeking the reversal of the Court of Appeals (CA) Decision2 dated August 30, 2018, which affirmed with modifications the Decision3 of the Regional Trial Court (RTC), Branch 1, Borongan City, Eastern Samar, dated June 18, 2015, finding Rebato guilty of the crime of Murder under Article 248 of the Revised Penal Code (RPC).
The accusatory portion of the Information, docketed as Criminal Case No. 12002, states: ChanRoblesVirtualawlibrary
That on September 6, 2008, at about 11:30 o'clock (sic) in the evening, at Brgy[.] 05, Llorente, Eastern Samar, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together and with treachery and evident premeditation, willfully, unlawfully, and feloniously stabbed to death [Fredelindo Gura Remo].Upon arraignment, Rebato pleaded not guilty.
Contrary to law.4
WHEREFORE, all the foregoing premises considered, this Court finds accused Elmer T. Rebato GUILTY beyond reasonable doubt of the crime of MURDER, and thereby imposing upon him the penalty of reclusion perpetua, with the corresponding accessory penalties provided under Article 41 of the Revised Penal Code, and ordering accused Elmer T. Rebato to pay the heirs of victim [Fredelindo Remo] the following:The RTC ruled that the justifying circumstance of self-defense cannot be properly interposed because of the absence of the indispensable element of unlawful aggression on the part of the victim. The RTC held that Rebato fabricated his defense of self-defense when he testified that he only sustained injuries on his right elbow, left hand and back, despite being beaten alternately for several times using water pump pipes, by Remo and his two friends.10 The RTC also took into consideration the testimony of the doctor who examined Rebato's injuries, and who categorically declared that the injury could have probably been sustained from some other incident.11It appearing on record that accused has been detained on October 10, 2008, his period of detention shall be credited in the service of his sentence consisting of deprivation of liberty with the full time during which he has undergone preventive imprisonment pursuant to Article 29 of the Revised Penal Code.
- Civil indemnity for the death of [Fredelindo Remo] in the amount of P75,000.00;
- Moral damages in the amount of P50,000.00;
- Exemplary damages in the amount of P30,000.00; and
- Temperate damages in the amount of P25,000.00.
SO ORDERED.9
IN LIGHT OF ALL THE FOREGOING, the Court hereby AFFIRMS with MODIFICATlONS the assailed Decision dated June 18, 2015, of the Regional Trial Court (RTC), Branch 1, Borongan City, Eastern Samar, in Criminal Case No. 12002. Acc used-appellant Elmer T. Rebato is found guilty of the murder of [Fredelindo Gura Remo], and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the heirs of [Fredelindo Gura Remo] the amounts of Seventy Five Thousand Pesos (PhP75,000.00), as civil indemnity, Seventy Five Thousand Pesos (PhP75,000.00), as moral damages, Seventy Five Thousand Pesos (PhP75,000.00), as exemplary damages, and Fifty Thousand Pesos (PhP50,000.00) as temperate damages.The CA relied on the findings of the trial court regarding its appreciation of facts offered by both the prosecution and the defense.17 It ruled that Rebato did not act in incomplete self-defense, and that the prosecution was able to establish all the elements of Murder.18 It further ruled that the prosecution has sufficiently alleged treachery as a qualifying circumstance in the Information, without considering the absence of an explanation of the treachery therein.19
All monetary awards for damages shall earn interest at the legal rate of six percent (6%) per annum from the date of finality of this Decision until fully paid.
After the entry of judgment in this case shall have been made, let the original records be forthwith remanded to the trial court for appropriate action regarding the information against accused Gerwin Gunda.
SO ORDERED.16
The RTC found that Rebato's affirmative allegation of self-defense as fabricated. The RTC found it incredible that Rebato only sustained injuries on his right elbow, left hand and back, even if he was allegedly beaten up alternately for several times by Remo, and siblings Jimmy and Jomar.
Q: Mr. Witness, what parts of your body were hit when these three (3) people were attacking you? A: My right elbow, my left hand and on my back xxx. Q: Were all of them holding weapons, Mr. Witness? A: Yes, pipes, ma'am. Q: What injuries did you sustain from the attack? A: Right elbow, and left hand, bruises from the strike of the pipe. xxxx Q: About your back. A: Also on my back.28 QUESTIONS BY THE COURT: Q: By the way, you said that the three (3) persons attacked you by striking you with pipes and each of them have pipe[s] xxx and they were striking you simultaneously or alternately? A: One at a time, alternately. Q: Can you tell us how many times each one of these attacker[s] strik[ed] you with that pipe? A: So many times. Q: Of that so many times that the three (3) persons striking you, your injuries were only on your hand and elbow? A: Yes, Your Honor. Q: Are you saying the other strike did not hit you? A: Yes, Your Honor.29
Thus, it can be gleaned from the testimonies of Rebato and Dr. Grata that self-defense was not clearly and convincingly established by the defense.
Q: Madam Witness, in your medico-legal report, the nature of the incident is written "alleged mauling incident", was this the same information given to you? A: Yes, that is the same information given to me. xxxx Q: The findings on the patient granulation tissue 0.5 cm, the wound, what
does this mean[,] doctor? A: It means on the right elbow of the patient, I found out that there is a granulation tissue about a heal scar. Q: And the second findings, what does it mean[,] madam witness. A: That there is no granulation tissue on the scar, it is a clear scar about 0.5 cm in the middle finger, the right hand of the patient. Q: This granulation tissue, what could have been the cause of this injury, madam witness? A: Because I have examined the patient 6 days after the incident, it
could possible [be] due to the other incident not necessary that incident that was stated in the medico[-]legal report. Q: But the scar is almost heal[ed]? A: Yes, sir. Q: How about this linear scar? A: It was already [a] scar at the time of examination, 6 days after the incident. Q: Did you examine the other part of his body? A: Yes, I have examined the head, the chest and the other part of his body, and I have not found any other injury. xxxx Q: Do you affirm madam witness that these injuries which you found on the patient may also come from the same incident? A: Probably, but it could probably c[o]me from any other incident.30
[1] Actual or material unlawful aggression [is] an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor to cause the injury. [2] Imminent unlawful aggression [is] an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot.32Rebato's testimony provides that after he was struck with water pump pipes outside the bakery, he ran inside the bakery where Gunda handed him the dipang. There is nothing to show that Remo followed him inside the bakery: ChanRoblesVirtualawlibrary
When Rebato ran to the bakery where Gunda handed him the dipang, Remo did not follow him inside. Instead of remaining inside the baker to keep himself safe from Remo, Jimmy and Jomar, Rebato used the dipang handed to him to harm Remo. In this case, Rebato caused harm to Remo not as an act of self-defense, but as an act of vengeance. When Rebato went inside the bakery and Remo neither followed Rebato inside the bakery nor committed any acts of unlawful aggression, Remo did not anymore pose any imminent threat against Rebato. At this point, the unlawful aggression on Remo's part has already ceased.
Q: What were you doing xxx outside of xxx Joyan's Bake Shop? A: I was playing sounds of my MP4. Q: Was there any unusual incident that happened while you were there outside Joyan's Bake Shop and playing music in your MP4? A: Jimmy Cabanatan and Jamar, [Fredelindo] got near me and sa[id], "Let us kill him." xxxx Q: What was xxx your position when you were attacked by them? A: When they approached me, I was sitting, but when they attacked me, I escaped, I got up and tried to escape. xxxx Q: Did you come to know why they attacked you with what kind of pole? A: Water pump pipe. Q: Did you come to know why they attacked you? xxxx A: While striking me with that pipe, I heard them saying[,] "[L]et us kill him[."] Q: Of course, that time [Fredelindo] was still alive? A: Yes, he ran back. Q: What happened next after [Fredelindo] ran? A: I went inside the bakery. Q: What did you do to [repel] the attack on your person? A: While I was trying to escape from the strike, Gerwin Gunda approach[ed] me[,] who handed me a weapon. Q: After Gerwin Gunda gave you a weapon, who was then attacking you? A: [Fredelindo], Jimmy and Jomar.33
Rebato committed the crime of Murder, qualified by treachery. |
At1icle 248. Murder. - Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following attendant circumstances:The elements of the crime of murder are: (1) a person was killed; (2) the accused killed the person mentioned in number (1); (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and (4) the killing is not parricide or infanticide.34
- With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
xxxx
- With evident premeditation.
On the other hand, Dr. Grata testified on the Certificate of Death and Postmortem Report of Remo's death: ChanRoblesVirtualawlibrary
Q: Please inform and describe to the court what was the manner of Elmer Rebate, action, when he killed [Fredelindo Remo] because you said he was the one who killed, please tell the court. A: [Fredelindo Remo] was attacked from behind by Elmer Rebato (witness demonstrating). xxxx Q: I am asking whom did you first see, was it [Fredelindo Remo] or Elmer Rebato? A: Elmer Rebato. Q: What was Elmer doing? A: Getting near [Fredelindo Remo]. Q: What was [Fredelindo Remo] doing at that time? A: He was just passing by the bakery. xxxx Q: While [Fredelindo Remo] was walking, what did Elmer Rebato do? A: He suddenly attacked [Fredelindo Remo]. Q: When you say "hinibang", what do you mean? A: He stabbed twice [Fredelindo Remo], sir. Q: What portion of the body was stabbed by Elmer Rebato on [Fredelindo Remo]? A: [On] the right portion of the stomach and the left portion of the chest. xxxx Q: Did you notice if there was provocation on [the] part of [Fredelindo Remo]? A: None, sir. Q: What was the manner of [the] attack, was it sudden or what? A: That was sudden, sir. Q: Did you not notice whether [Fredelindo Remo] had the opportunity to defend himself insofar as you are concerned? A: No, sir. [H]e did not know that he was being hurt. xxxx Q: How about Gerwin Gunda, did he participate in the killing of [Fredelindo Remo]? A: Yes, sir. Q: In what way [was he] involved in the incident? A: He was the one who handed a weapon to [Rebato]. Q: How did it happen that Gerwin Gunda tended a weapon to Elmer Rebato, how were you able to see that? A: It was sudden. When [Gunda] handed the weapon to Elmer, he attacked [Fredelindo Remo]. xxxx Q: When Gerwin Gunda handed th[e] weapon to Elmer Rebato, where was [Fredelindo Remo]? A: Timely, he was passing by on his way home. Q: Was he alone? A: Yes, Your Honor. xxxx Q: He was just an innocent passer-by? A: Yes, Your Honor.36 Q: What was [Fredelindo Remo] doing when he was stabbed by Elmer Rebato? A: Walking. Q: Who was with [Fredelindo Remo] when he was stabbed? A: He was alone. Q: Where did the accused enter xxx the scene? A: On the side. Q: What did the accused do when he saw [Fredelindo Remo]? A: He stabbed, sir. Q: Did you observe whether [Fredelindo Remo was] doing something against Elmer Rebato? A: Nothing. Q: Insofar as you are concerned, was [Fredelindo Remo] aware when he was attacked by [the] accused? A: No, sir.37
Dr. Grata testified as to the nature of the wounds inflicted on Remo, and that the stabbing was frontal.
Q: Will you please state your examination and findings stated in the Post-Mortem Report? A: It is stated in my Post-Mortem Report the pertinent doctor's findings, that there was a stab wound about 1.5 cm. in diameter. The first wound that I found during the Post-Mortem examination was about 2 cm. in diameter below the right nipple of the midclavicular line. Q: Was that wound fatal? A: The stab wound was penetrating to the chest cavity. Q: Was that wound fatal? A: It could be fatal. Q: What other wound that you found out? A: Another wound that I found during the Post-Mortem examination was a stab wound with the same size about 1.5 cm. in diameter also penetrating the abdominal cavity located at the left lower quadrant of the abdomen. Q: Was that wound fatal also? A: It was fatal because it is [a] penetrating wound. xxxx Q: Madam witness[,] these two (2) wounds sustained by the victim were in front of the body of the victim? A: Yes, sir. Q: So in other words the assailant must be in front of him? A: Yes, sir. Q: Or in other words they were facing each other, the assailant and the victim? A: Yes, sir.38
Rebato has waived his right to question the defect in the Information filed against him. |
The afore-mentioned principle is in accordance with the well-settled principle that an information which lacks certain essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein.43 In effect, the failure to object is a waiver of the constitutional right to be informed of the nature and cause of the accusation.44
- Any Information which alleges that a qualifying or aggravating circumstance - in which the law uses a broad term to embrace various situations in which it may exist, such as but are not limited to (1) treachery; (2) abuse of superior strength; (3) evident premeditation; (4) cruelty - is present, must state the ultimate facts relative to such circumstance. Otherwise, the Information may be subject to a motion to quash under Section 3 (e) (i.e., that it does not conform substantially to the prescribed form), Rule 117 of the Revised Rules of Criminal Procedure, or a motion for a bill of particulars under the parameters set by said Rules.
Failure of the accused to avail any of the said remedies constitutes a waiver of his right to question the defective statement of the aggravating or qualifying circumstance in the Information, and consequently, the same may be appreciated against him if proven during trial.
Alternatively, prosecutors may sufficiently aver the ultimate facts relative to a qualifying or aggravating circumstance by referencing the pertinent portions of the resolution finding probable cause against the accused, which resolution should be attached to the Information in accordance with the second guideline below.42
Proper penalty and award of damages. |
Endnotes:
1 Accused Gerwin Gunda is one of those charged in the subject in formation for Murder. He is at large. There are two pending orders for his arrest, one dated November 25, 2009 (Records, p. 81) and the other dated June 29, 2011 (id. at 145).
2Rollo, pp. 4-23. Penned by Associate Justice Pamela Ann Abella Maxino, and concurred in by Associate Justices Louis P. Acosta and Dorothy P. Montejo-Gonzaga.
3 CA rollo, pp. 43-60. Penned by Presiding Judge Elvie P. Lim.
4 Records, p. 2.
5Id. at 166.
6 CA rollo, p. 45.
7Id. at 46.
8Id.
9Id. at 60; emphases supplied.
10Id. at 49.
11Id. at 50.
12Id. at 52.
13Id. at 55.
14Id.
15Id. at 56.
16Rollo, p. 22; emphases supplied.
17Id. at 12.
18Id. at 9.
19Id. at 17.
20People v. BBB, G.R. No. 232071, July 10, 2019.
21People v. Racal, G.R. No. 224886, September 4, 2017, 838 SCRA 476, 487.
22People v. Tica, G.R. No. 222561, August 30, 2017, 838 SCRA 390, 397.
23Id.
24Johnny Garcia Yap v. People, G.R. No. 234217, November 14, 2018.
25Id.
26Id.
27Id.
28 TSN, Criminal Case No. 12002, March 2, 2010, p. 5; emphasis supplied.
29Id. at 18; emphases supplied.
30 TSN, Criminal Case No. 12002, August 10, 2010, pp. 6-8; emphases supplied.
31 677 Phil. 168 (2011).
32Id. at 177-178.
33 TSN, Criminal Case No. 12002, March 2, 2010, pp. 3-5; emphasis supplied.
34People v. Racal, G.R. No. 224886, September 4, 2017, 838 SCRA 476, 488-489.
35Id. at 489.
36 TSN dated June 15, 2011, Criminal Case No. 12002, pp. 5-14; emphases supplied.
37 TSN dated July 6, 2011, Criminal Case No. 12002, p. 4; emphases supplied.
38 TSN dated October 25, 2011, Criminal Case No. 12002, pp. 4-5, 8.
39People v. Joseph A. Ampo, G.R. No. 229938, February 27, 2019.
40People v. Gerry Agramon, G.R. No. 212156, June 20, 2018.
41 G.R. No. 225595, August 6, 2019.
42Id.; emphases supplied.
43Id.
44Id.
45 Article 63 of the RPC.
46People v. Jugueta, 783 Phil. 806, 853 (2016).
47Id. at 826.
48Nacar v. Callery Frames, et al., 716 Phil. 267, 280-281 (2013).chanRoblesvirtualLawlibrary