REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila
Third DIVISION

PEDRO PENDUKO,
Accused-Appellant

- versus - CA-GR. No.

For: Rape

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee
x-------------------------------------x

BRIEF FOR APPELLANT

Accused-Appellant, by counsel, and to this Honorable Court

respectfully files his brief for the appellant.

PREFATORY STATEMENT

An obvious violation and disregard of the right to due process was

committed against the defendant-Appellant in this case.

The Honorable Court in its decision dated on September 19, 2012

find for the Plaintiff-Appellee based on mere allegations not supported
by evidence sufficient to draw a conclusion so as to comply with Sec.
14, Article VIII of the constitution.

The Honorable Supreme Court on this premise made

pronouncement in a case brought forth, thus:

“The court finds occasion to remind courts and

quasi-judicial bodies that “[a] decision should
faithfully comply with Section 14, Article VIII of
the Constitution which provides that no decision
shall be rendered by any court [or quasi-judicial
body] without expressing therein clearly and
distinctly the facts of the case and the law on
which it is based…. It is a requirement of due
process and fair play that the parties to a litigation
be informed of how it was decided, with an
explanation of the factual and legal reasons that
 led to the conclusions of the court [or quasi-
judicial body]. A decision that does not clearly
and distinctly state the facts and law on which it
is based leaves the parties in the dark as to how it
was reached and is especially prejudicial to the
losing party, who is unable to pinpoint the
possible errors of the court [or quasi-judicial
body] for review by a higher tribunal. 1

THE PARTIES

Pedro Penduko is the appellant as represented by Atty. Joseph Mon H.

Cuervo where process and notice from this court may be served at room
1994 Happy Building, Sambag Jaro, Iloilo City while THE PEOPLE of
the PHILIPPINES is the appellee as represented by the Iloilo Provincial
Prosecutors Office.

TIMELINESS OF THE APPEAL

Accused-appellant received on September 12, 2012 the Decision of the

Regional Trial Court dated September 8, 2012. A Notice of Appeal was
timely filed on September 17, 2012. Accused received on September 22,
2012 the Order from the Court of Appeals directing him to file his Appeal
Brief within fifteen (15) days from receipt. Hence, this timely
compliance.

I
STATEMENT OF FACTS

l.1 Pedro Penduko is a forty two (42) years old man who drives a
passenger jeep as a means of livelihood. The private complainant, Malia
Darna is the niece of the accused who was then studying at Sambag
Elementary School, Jaro, Iloilo City;

1.2 Private complainant alleged that she was raped by her uncle, accused-
appellant in the instant case, on two occasions, in the afternoon of May
24 and May 29, 2008 inside the passenger jeep being driven by the latter;

1.3 The passenger jeep was parked in a broad daylight in front of several
houses. The jeep had partially glass doors with the back door open and
the wind shield not covered where the offense charged was allegedly
committed by the accused-appellant;

1
Saballla vs. NLRC, ibid, citing Nicos Industrial Corp vs. CA, 206 SCRA 127
1.4 On the dates of the alleged commission of the offense charged, t he
accused-appellant was engaged with his usual work, transporting
passengers using his vehicle;

1.5 The Medical Report of the alleged rape was made on April 9, 2009,
a lapse of more than a year after the commission of the alleged offense
charged.

II
ASSIGNMENT OF ERRORS

The trial court committed the following errors:

1. The prosecution’s evidence is insufficient to prove the guilt

of the accused-appellant beyond reasonable doubt;

2. The Trial court erred on imposing the additional penalty of

civil indemnity and moral damages that is not supported by law
and the facts alleged by appellee.

III
ARGUMENTS

1. The prosecution’s evidence is

insufficient to prove the guilt of
the accused-appellant beyond
reasonable doubt;

It is the Constitutional right of the appellant that

“Every circumstance favoring the innocence of the accused must
be duly taken into account. The proof against him must survive
the test of reason” (Duran vs. Court of Appeals, 71 SCRA 68).
Thus it is the sole duty of the prosecution to present evidence
sufficient to prove the accused guilt beyond reasonable doubt. The
evidence presented by the prosecution however in this case, is
insufficient and has been clearly rebutted by countervailing proof
by appellant. The following facts are presented by appellant to this
honorable court which the lower court has failed to take credence.

a. Delay in Filing Complaint Renders Rape Charge

Doubtful.

The alleged rape was committed on May 24 and May

29, 2008, however, the appellant was arraigned only on
 October 24, 2009. Charges was only formally filed a year
after. Her affidavit was only executed on June 9, 2009
(Exhibit “A”). This creates much doubt as to the claim of
the alleged victim. The Supreme Court has already ruled that
the “delay in filing criminal proceedings for rape may result
in adverse inference against the complainant” (People vs.
Cueto, 84 SCRA 774).

b. Incredible.

With the presence at the premises and the alleged rape

was consummated on the front seats of the jeepney at a
public area on broad daylight, the opportunity to commit the
rape is hardly present. More than that the alleged rape was
committed at 3:00 o’clock in the afternoon, “the elements of
secrecy had been totally ignored of disregarded which is
quite unbelievable and incredible in such a crime of rape.”
(People vs. Leones, 117 SCRA 382). Especially the fact that
the rape was consummated on the front seats while the victim
was sitting is highly unnatural from rape cases, considering
the small space to allow quick movement, which at the cross
examination of prosecution witness Kuya Kim testified that
“When they returned after 4 minutes, accused and victim,
who were fully dressed, were still occupying the front seats”.
This testimony is incredulous, for how can the accused
remove his clothes, rape the victim on the front seat, and has
enough time for both of them to redress just in 4 minutes.

c. Long Silence Runs Counter to Natural Reaction.

Despite the availability of resources to speak to, the

victim slept on her rights on reporting the alleged rape.
“Needless to state, such conduct runs counter to the natural
reaction of an outraged maiden despoiled of her honor xxx.
In fine, the complainant’s testimony in the instant case lacks
that stamp of absolute truth and candor necessary to
overcome the constitutional presumption of innocence.”
(People vs. Romero, Jr., 117 SCRA 897).

d. Absence of defensive wounds, use of weapons and attempt

to ask for help.

The absence of defensive wounds on the medical

report of Dr. Willie Revillame, (Exhibit “D”) and the
absence of use of any deadly weapons runs counter to the
allegation of force and intimidation. The absence of any
 action on the part of the victim to call for help or shout for
assistance taking into consideration the allegedly rapes were
committed on a public area, which is in the direct access of
nearby civilians, runs much doubt as to the credibility of the
commission of the offense and against the basic norms of a
girl of good repute.

e. The inconsistency of the prosecution’s witness’

testimony.

The evidence of the prosecution is tainted with

inconsistencies, uncertainties and implausibility that scorn
the credence of this Court, it must be rejected as a feeble
concoction. In the testimony of the alleged victim she
narrated that she attended school on May 24, 2008. However
this was rebutted by the testimony of school teacher Mae
Navarro who presented Form 1 or School Register (Exhibit
“7”) were she narrated that she was absent on that day. This
was corroborated by the testimony of a schoolmate of the
alleged victim, Kris Aquino testified that she was absent for
the whole month of May, that she did not attend the
graduation rehearsal.

On the alleged rape on May 29, 2008, the victim stated

in her testimony that she and her nephews with the accused
drove the jeep towards the store of Mr. Cabangbang for
recharging of the accused’s battery. However, Han
Cabangbang testified that he was only able to purchase the
battery charger only at July 16, 2008 as evidence by Sales
Invoice (Exhibit “5”) issued by New Panay Merchandizing
and was only been able to begin the business only on the 19 th,
thus negating the plausibility of her testimony of a May 29
trip to Mr. Cabangbang store.

f. Alibi.

Accused was physically impossible to commit the

crime of rape. On May 24 he was busy engaged in driving
his passenger jeep, as a school service. This was
corroborated by Lennie Nava, mother of one of his
passengers who rode on the jeep on that same day. They
arrived at school around 2:00 p.m. and left at 5:30 p.m. at
the afternoon.
 g. Motive.

The Ramos ruling as appreciated by the trial court in

its decision cannot be taken credence for the complaint was
a concoction of a well-planned revenge of the family of the
alleged victim. As provided in the testimony of the
appellant, this began when the accused had an altercation
with the victim’s father regarding money matters. This
created a rift between them. Despite this, the accused
remained patient and kind to allow her niece, to play and
watch television in his residence. Plus, the victim had a
history of delinquency. Barangay Secretary Jan Remos
testified during trial that Grace Darna, victim’s sister
reported to him at the barangay hall that the victim went with
her classmate without asking permission from her parents
and she had not returned. This creates much doubt as to the
veracity of her reputation.

h. Sole assertion of the alleged victim is not more than

enough to overturn the burden of proof to prove the
accused guilt.

The Royeras ruling as stated in the trial court’s

decision, does not apply in the case at bar, for the facts
previously stated has created more than sufficient contrary
proof, to allow reversal of the trial court’s ruling.

2. The Trial court erred on imposing

the additional penalty of civil
indemnity and moral damages
that is not supported by law
and the facts alleged by appellee.

The trial court failed to consider the following articles:

a. Article 2234 of the Civil Code provides “that the plaintiff

must show that he is entitled to more xxx damages xxx before
the court may consider xxx.”

b. Article 66 of the Revised Penal Code provides: “In imposing

fines the courts may fix any amount within the limits
established by law xxx, but more particularly to the wealth
or means of the culprit.”

The trial court awarded moral damages on both counts of rape.

This award was rendered without being alleged, proved and prayed by
the appellee. Damages are never presumed but must be proven by
competent evidence, which the prosecution has failed to do. Also the
trial court imposed a civil indemnity on both counts, failing to consider
the fact that the accused is a 57 year old man whose main source of
income is manning his jeep as a school service. Thus the awards are both
contrary to law and from the basic norms of fair play and equity.

PRAYER

WHEREFORE, the accused-appellant respectfully prays that

Decisions of the trial court be reversed, set aside and nullified, and the
judgment be rendered in favor of the accused-appellant as prayed for in
his answer; to dismiss the two counts of rape for his guilt has not been
proven beyond reasonable doubt.

Accused-appellant further prays for such other relief as may be just

and equitable in the premises.

Iloilo City, Philippines

February 19, 2018.

ATTY. JOSEPH MON H. CUERVO

Counsel for Accused-Appellant
Cuervo Law Office
1994 Happy Building, Sambag Jaro, Iloilo City
Roll of Attorney No. 987654
PTR No. 0416666/ March 10, 2016/ Iloilo City
IBP No. 975555/ December 1, 2016/ Iloilo City
MCLE Compliance No.: III-0001999
REPUBLIC OF THE PHILIPPINES)
CITY OF ILOILO ) S.S.
x------------------------x

VERIFICATION/CERTIFICATION

I, PEDRO PENDUKO, of legal age, Filipino and a resident of

Barangay Sambag Jaro, Iloilo City after having been duly sworn to in
accordance with law, do hereby depose and say:

l. I am the accused-appellant in the foregoing Brief;

2. I caused the preparation of the foregoing pleading;

3. I have read the same and the allegations therein are true and
correct of my personal knowledge or based on authentic records.

4. I have not commenced any other action involving the same

issues in the Supreme Court or different divisions thereof or any
other tribunal or agency.

IN WITNESS WHEREOF, I have affixed my signature this 19 th

day of February 2018 at Iloilo City.

PEDRO PENDUKO
Affiant

SUBSCRIBED AND SWORN to before me this 19 th day of

February 2018 at Iloilo City, Philippines. Affiant exhibited to me his
Community Tax Certificate No. CC 555555 issued at Iloilo City on
January 09, 2018.

ATTY. PEARL DIAMOND E. SILLADOR

NOTARY PUBLIC
Notarial Commission Reg. No. 196
Valid until December 31, 2019
Sillador Law Office, Lopez Jaena St., Jaro, Iloilo City
Roll of Attorney No. 987654
PTR No. 0416909/ March 13, 2017/ Iloilo City
IBP No. 975555/ December 1, 2017/ Iloilo City
MCLE Compliance No.: III-0001906

Doc. No.:____;
Page no.:_____;
Book no.:____;
Series of 2018.
Copy Furnished:
Office of the Provincial Prosecutor
Iloilo City

EXPLANATION

Pursuant to Section II, Rule 13 of the 1997 Rules of Court, the

foregoing Brief is sent by registered mail due to lack of messengerial
personnel and time constraint in the filling thereof.

ATTY. JOSEPH MON H. CUERVO

Counsel for Accused-Appellant