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REPUBLIC OF THE PHILIPPINES

OFFICE OF THE CITY PROSECUTOR


MANILA

Jojo Marie Chan,


NPS No. AC-17-DAR-23H-2617
-versus- (Criminal Case No. 171234)
Qualified Trespass to Dwelling
Grace Pitong Gatang,

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

COUNTER-AFFIDAVIT
OF THE RESPONDENT GRACE

THE UNDERSIGNED RESPONDENT respectfully states:

ADMISSIONS AND DENIALS.

Respondent-Appellant Grace Pitong Gatang, through undersigned counsel, unto


this Honorable Office, respectfully interposes this appeal:

1. I am a person who is charged with a crime of qualified trespass to dwelling


pending before the Office Prosecutor.

2. I have rented an apartment located at Vito Cruz, Manila. Living on the same
floor as the complainant Jojo.

3. Around midnight, while I was studying, the complainant, with his 4 foot
speakers played loud music in his apartment. For 3 hours, the complainant
did not stop playing loud music. It was agonizing to study while someone is
playing loud music near your apartment.

4. In order to stop him from disturbing his neighbors, I knocked on his door;
asked him to stop playing loud music due to the disturbance caused; and
that I am also studying for my exams that day. Instead of saying anything
and without closing his door fully; he immediately stepped back into his
room. I then went back to my apartment to resume my intensive studying.

5. After a lapse of about 15 to 20 minutes. I went back to his apartment; since


it was already open, I went inside to talk to him.

6. Because of his lack of respect and sensitivity to other people’s privacy, I was
outraged, and punched him.

7. The filing of the said complaint of qualified trespass to dwelling is


unjustifiable, as there was no intent, on my part, to trespass the said dwelling
of the complainant; instead, it was because of his disrespectful actions that
I decided to punch the complainant.

8. I am voluntarily executing this affidavit to attest the truthfulness of the


foregoing facts and to support the outright dismissal of the complaint filed
against me.

ARGUMENTS & DISCUSSION

The relevant provisions of the Revised Penal Code1 on qualified trespass


to dwelling are as follows:

Art. 280. Qualified trespass to dwelling. — Any private person who


shall enter the dwelling of another against the latter's will, shall be punished
by arresto mayor not and a fine not exceeding 1,000 pesos.

If the offense be committed by means of violence or intimidation, the


penalty shall be prision correccional in its medium and maximum periods
and a fine not exceeding 1,000 pesos.

The provisions of this article shall not be applicable to any person who
shall enter another's dwelling for the purpose of preventing some serious
harm to himself, the occupants of the dwelling, or a third person, nor shall it
be applicable to any person who shall enter a dwelling for the purpose of
rendering some service to humanity or justice, nor to anyone who shall enter
cafes, taverns, inns, and other public houses, while the same are open.

X x x.

1 “REVISED PENAL CODE,” Article 280


The elements of Qualified Trespass to dwelling under Article 280, of the Revised
Penal Code are:

(a) That the offender is a private person.

(b) That he enters the dwelling of another.

(c) That such entrance is against the latter’s will.

Qualifying circumstance

(d) The offense committed by means of violence or intimidation.

X x x.

Accused did not enter the apartment against the latter’s will.

The third element of Qualified Trespass to dwelling under Article 280 of the
Revised Penal Code is that the offender enters the dwelling of another against
the latter’s will.

In the case of People vs De Peralta2, the court ruled that in order for the
crime of Trespass to dwelling may exist, it is necessary that the entrance should
be against the express or presumed prohibition of the occupant.

There was no presumed prohibition on the part of Jojo when Grace


entered his apartment. Jojo, opened his door when he found out that someone
had knocked on it. If it was his intention to prohibit anybody from entering his
apartment; he would have immediately closed his door, instead he left it open for
about six inches. He even went outside his apartment to check and see if someone
had wanted to come in. He even turned the volume of his speakers down as he
was expecting that the person who knocked on his door would eventually come
around and talk to him about the issue or concern. Nor can the defense sustain
that there was an expressed prohibition on his part. Jojo, did not expressly
prohibit Grace from entering his apartment. Grace was already in his apartment
when Jojo asked her to leave. Jojo, asking Grace to leave, had no correlation
with her being in the apartment. Rather, it was an act of impulse on his part. He
saw how outraged Grace was of his actions, that he had uttered those words. Not
because Jojo prohibits her entrance, but because he was startled by Grace’s

2 People of the Philippines vs De Peralta, G.R No. L-17332, August 18,1921


reaction. There was neither presumed nor expressed prohibition in this case.
X x x.

Qualifying circumstance of violence or intimidation are not


present in the case.

The commission of trespass to dwelling under Article 280 of the Revised


Penal Code can be classified into two; (1) A simple case of trespass to dwelling,
and the other; considered as (2) A qualified trespass to dwelling. The former,
is said to have been consummated when a private person, enters the dwelling of
another without the consent of the latter3. In qualified trespass to dwelling, the
offender, commits the act of trespass by means of violence or intimidation4.

In this case, the complaint was filed under the crime of qualified trespass to
dwelling. The prosecution, has the burden of proving that Grace committed a
felonious act, and that she, employed means of violence or intimidation in entering
Jojo’s apartment. In criminal cases; the guilt of the accused must be proven
beyond reasonable doubt. If the prosecution failed to prove guilt beyond
reasonable doubt, penal laws shall be construed in favor of the accused.

In the case of Ramirez vs CA5; the legislative intent is said to be determined


principally from the language of a statute. Where the language of a statute is clear
and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where literal interpretation would be either
impossible, absurd, or would lead to an injustice. In this case, the qualifying
circumstance is clear and unambiguous. “What is punished by the law of qualified
trespass to dwelling is the act or commission of the offense, by means of violence
or intimidation.” First, Grace did not employ any means of violence or intimidation
in entering Jojo’s apartment, she was able to enter his apartment by merely
pushing his door wide open. Jojo’s door was already open for about six inches,
any abled- bodied person could have entered Jojo’s apartment without any need
of employing violence or intimidation.

Second, there was a lack of intent on the part of Grace to commit a felonious
act, the circumstances would clearly sustain Grace’s position. If there was any
indication of intent to forcibly enter Jojo’s apartment or to commit a felonious act
by means of violence or intimidation, she could have done so the first time she
knocked on Jojo’s door. All trespassers ordinarily have some motive to commit a

3 Marzalado Jr. vs People of the Philippines, G.R No. 152997, November 10, 2004
4 “REVISED PENAL CODE,” Article 280
5 Ramirez vs Court of Appeals, G.R No. 93833, September 28, 1995
felonious act6. Clearly, in this case, there was none. She knocked on Jojo’s door
assuming he would open; but he did not. There was no intention even after she
came back, the fact that the door was already opened; all Grace had to do was
enter Jojo’s apartment. Because of Jojo’s utter lack of sensitivity, Grace was
outraged, which led to her punching Jojo. Clearly, it was out of impulse that she
punched Jojo, there are no substantial pieces of evidence that would prove her
intent to commit the crime of qualified trespass to dwelling.

Third, “assuming, that there was indeed, a violation of trespass to dwelling;


it may very well be a case of a simple trespass to dwelling.” As stated in People
vs Lamahang7; the circumstances may show that the trespasser has the intention
to commit another crime, but if there is no overt act of crime intended to be done,
what is committed is only trespass to dwelling. Pieces of evidence, as well as
factual evidence, have proven our stand on the issue. Qualified trespass to
dwelling shall be deemed consummated only when the offender “employs means
of violence or intimidation in committing the felonious act.” In our case, nor violence
nor intimidation was employed as a means of entering into Jojo’s apartment. The
mere punching of the accused of said complainant cannot prove the intent of Grace
to use violence or intimidation as a means to trespass the dwelling of Jojo. In any
case, if a complaint lacks an essential element of the crime allegedly committed, it
shall be dismissed outright for lack of merit.

X x x. (underscoring supplied)

6 United States vs Barnedo, G.R No 12697, September 10, 1917


7 People of the Philippines vs Lamahang, G.R No. 43530, August 3, 1935
X x x.

By and large, the evidence for the prosecution failed to show the existence
of violence or intimidation to qualify the act as qualified trespass to dwelling, nor
were they able to prove that there was the commission of a simple trespass to
dwelling. which, according to the settled rule, must be shown beyond any
reasonable doubt. In the absence of any of the elements mentioned in Article 280
of the Revised Penal Code, the liability of the defendants would only be for the
damage caused thereby, and the consequences thereof. While the pieces of
evidence show that the appellant punched the complainant, it is, however, silent
as to the extent of the injury, in which case, the appellant should be held liable only
for slight physical injuries.

X x x. (underscoring supplied)

The respondent reserves the right to file a SUPPLEMENTAL AFFIDAVIT x x x.

The respondents reserve the right to file a REJOINDER-AFFIDAVIT.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the instant


criminal complaint be DISMISSED for lack of merit.

Further, the respondent respectfully prays for such and other reliefs as may be
deemed just and equitable in the premises.

X x x MANILA CITY x x x.

Xxx
GRACE PITONG GATANG

SUBSCRIBED and sworn to before me on March 28, 2016 in Manila City.

DAR AMBER R. CORONEL

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