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412 Phil. 505


[ G.R. No. 120630, June 28, 2001 ]




Another despicable case of incestuous rape, involving appellant Marcelo C. Palermo, has once more reached this Court.  He was convicted and was meted out the penalty of death by the Regional Trial Court, Branch 38, of Boac Marinduque in Criminal Case No. 60-94 for having raped his very own 14-year old daughter.

Hence, this automatic review.[1]

On September 9, 1994, an Information was filed with the said trial court, docketed as Criminal Case No. 60-94, charging Marcelo C. Palermo with the crime of rape.  The Information reads:

"The undersigned Provincial Prosecutor upon sworn complaint originally filed by Merly Palermo y Mandac before the Municipal Trial Court, accuses Marcelo Palermo y Carias, alias 'Celo', of the crime of Rape, committed as follows:

"That on or about the 2nd day of April, 1994 in the evening, in Barangay Nangka II, Municipality of Mogpog, Province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the accused, by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously lie and succeed in having carnal knowledge of his fourteen-year old daughter, Merly Palermo y Mandac, against her will and to her damage and prejudice.

"CONTRARY TO LAW, with the aggravating circumstances of (1) recidivism, accused having been convicted by final judgment of the crime of rape, on August 31 1994, a certified copy of the judgment is attached hereto as Annex "A" and forming part hereof; (2) abuse of confidence and moral ascendancy, the accused being the father and in custody of complainant; and (3) nighttime, which was purposely sought to insure the commission of the offense with impunity."[2]

Upon arraignment, Marcelo entered a plea of "not guilty."[3] Trial ensued thereafter.

The evidence for the prosecution is anchored on the testimony of complainant 14-year old Merly M. Palermo, then a high school student. Born on April 30, 1980,[4] Merly is the eldest of the five children of appellant Marcelo Palermo and Marilyn Mandac.[5] In the evening of April 2, 1994, Merly was with her only brother Marvin (12) and three sisters Maricel (9), Babylyn (6) and Marilyn (3) in their hut (kubo) at Barangay Nangka II, Municipality of Mogpog, Marinduque.[6] At that time, her mother was in Manila.[7] At about 10:00 o'clock in that same evening, Marcelo arrived. He then ordered Merly to spread a mat on the floor - which she complied - about four feet away from her brother and sisters who were already asleep at the adjacent section of the hut separated by a wall.[8] When Merly was about to lie down beside her brother and sisters, Marcelo asked her to sleep instead on the mat she had spread.[9] Merly tried to persuade him that she sleep with her brother and sisters, but failed.[10] Marcelo's vehement insistence by telling her, "Dine (referring to where the mat was spread) na tulog!"[11].was too strong a command to be disobeyed by his daughter. And so while she was lying on the mat and was about to sleep, she sensed that Marcelo was removing her shorts, including her panty.[12] Instinctively, she resisted his advances by boxing him and at the same time crying.[13] She struggled hard to prevent him from what he was doing to her.[14] Merly described her reaction, "Nagawala (sic) po ako."[15].as she clearly noticed that "Gusto po niya akong pagsamantalahan."[16].But Merly's fierce resistance suddenly ended when Marcelo boxed her on the belly, causing her to lose consciousness.[17]

When she regained consciousness at dawn of the following day, Merly found herself already beside her brother and sisters.[18] Her vagina was then aching and her panty splattered with blood.[19] Explaining what happened to her, Merly said bitterly, "Dahil pinagsamantalahan ako ng aking ama."[20].She admitted, though, that during her state of unconsciousness as a result of Marcelo's punching on her belly, she did not know what he did to her.[21] But Merly insisted that Marcelo boxed her "(d)ahil gusto po niya akong pagsamantalahan."[22].That early morning, Marcelo was already out of their hut gathering tuba (coconut wine).[23]

On June 17, 1994, or more than two (2) months after that sexual assault, Merly was confined at the Marinduque Provincial Hospital at Boac due to to profuse vaginal bleeding.[24] She was diagnosed to have an incomplete abortion, as indicated in the Medico-legal Certificate[25] issued by her attending physician, with the following findings:

"Vaginal bleeding, profuse; shocky with BP 0/0.Uterine enlarged to 2 months size.  Vagina admits 2 fingers; cervix admits tip. Curettage done, obtaining placental tissues.

"Diagnosis: Incomplete Abortion, completed by Dilatation and Curlettage."

Merly revealed that she was also raped by Marcelo three months back, or on March 13, 1994.[26] Thus, he was charged with rape in Criminal Case No. 48-94 to which he pleaded guilty.  He was sentenced to suffer the penalty of reclusion perpetua by the same trial court in its order dated August 31, 1994.[27]

Merly further testified that after the April 2, 1994 incident, Marcelo again succeeded in forcing her to have sexual intercourse with him against her will "about ten (10) more times" until she was confined at the hospital due to a miscarriage.[28] But Merly did not immediately report these sexual ravishments on her to anyone, not even to her mother, because Marcelo threatened to kill her if she did so.[29]

It was only after her discharge from the hospital, or on June 23, 1994, that Merly became undaunted in reporting to the authorities Marcelo's sexual assaults on her by executing a sworn complaint[30] before the Philippine National Police (PNP) of Mogpog, Marinduque.[31] This resulted in the filing with the court below of the corresponding Information for rape against him.

The prosecution rested its case after the trial court admitted its testimonial and documentary evidence which were formally offered without any objection from the defense.[32]

At the start of the presentation of evidence for the defense, the defense counsel, Atty. Diosdado Sotto, Jr., manifested in open court that he is "presenting the accused for the purpose of x x x denying the allegation in the Information regarding the alleged rape committed against Merly Palermo."[33]

But when Marcelo was asked the first direct examination question as to what he can say about the charge against him, he boldly and categorically admitted having raped his daughter, saying, "Nagawa ko po sa anak ko and panggagahasa ko kaya ako nakademanda."[34].This prompted the defense counsel to ask a follow-up question: "Are you in effect saying that you committed that alleged rape on April 2, 1994?"[35] Again, Marcelo gave an emphatic affirmative answer,[36] He also admitted that at the time of the rape incident on April 2, 1994 he "was drunk," having taken one-half (1/2) gallon of tuba.[37].In confessing he committed the crime, Marcelo stressed no one has threatened or coerced him.[38]

The public prosecutor, obviously, did not cross-examine Marcelo anymore.  But the court a quo, bearing in mind the imposable penalty of death for such crime under Republic Act No. 7659, asked him some questions to determine if he understood the consequences of his confession.  Thus, in reply to the query by the trial court, Marcelo further declared that he knew he will be penalized with death by reason of his confession, but despite such penalty he is not changing his avowal because, in his own words, "Ako po'y nagkasala kaya aaminin,"[39].He confirmed that Merly is truly his eldest daughter.[40] Long before this incident happened, he has been drinking tuba and consumes, one-half (1/2) gallon everyday.[41]

Upon formally offering Marcelo's lone testimony, the defense rested its case and prayed that his "judicial confession be considered as analogous to the mitigating circumstance of voluntary plea of guilty."[42]

The case was then considered submitted for decision.

On May 9, 1995, the trial court rendered its decision[43] convicting Marcelo of the crime charged.  The decision further states that "with the attendant aggravating circumstances of (1) recidivism, having been convicted for rape on August 31, 1994 in Crim. Case No. 48-94, arid (2) abuse of confidence and moral ascendancy, without any mitigating circumstance to offset the same, MARCELO PALERMO y CARIAS is hereby sentenced to suffer DEATH penalty prescribed under (Section 11 of Republic Act No. 7659)."[44] Concerning the matter of damages, the decision holds: "There being no declaration for moral damages, this court found no basis to award the same."[45]

In his brief filed with this Court, appellant Marcelo Palermo, thru counsel, claims that the trial court "erred in sentencing (him) the maximum penalty of death despite his voluntary admission of guilt."[46]

Appellant's counsel argues that "for being man enough to admit his guilt (and) for not giving the court a hard time to determine his culpability, the accused-appellant deserves a reduction of penalty for the sake of compassionate justice.  Reclusion perpetua would be good enough for him, to pay his wrongdoing to his daughter in particular and to society in general,"[47]

Thus, the only issue raised here by appellant is whether his confession of guilt, made in the course of his testimony and after the prosecution has rested its case, is a mitigating circumstance; and if so, whether the penalty of death can be reduced to reclusion perpetua.

Although this is the sole question appellant has presented before us for resolution, it is, nevertheless, a well-established rule that in a criminal case, an appeal to the Supreme Court throws the whole case open for review, and it becomes the duty of the Court to correct such errors as may be found in the appealed judgment, whether they are made the subject of assignments of error or not.[48]

Before resolving the said issue which pertains to the penalty imposed upon appellant, we deem it proper in this automatic review to first determine whether the judgment of the trial court finding him guilty of rape as charged is correct.

In rape cases, we have consistently held that the victim's lone testimony, if credible and free from fatal and material inconsistencies and contradictions, can be the basis of an accused's prosecution and conviction for such crime.[49] This is so because, by the very nature of the offense, only the offender and the victim can normally testify to its occurrence.[50] Consequently, the issue in cases of rape usually boils down to the credibility of the victim.[51]

After having meticulously examined the evidence presented by the prosecution and carefully weighed the testimony of Merly, the complainant-victim, we find her to be a credible witness and her story untainted with bias, inconsistencies and contradictions. In bravely telling the court her heart-rending tale of defloration - which we have scrupulously narrated earlier - she gave a positive, candid and straightforward account of how she, at a tender age of 14 years, was ravished by her very own father on April 2, 1994. Such a harrowing narrative coming from a very young and innocent barrio lass is, undoudtedly, reflective of an honest and unrehearsed witness.

Specifically, we have noted Merly's candidness when she admitted not having actually seen her father Marcelo ravished her during her unconscious state on the night of April 2, 1994.  But we accord full faith and credence on her insistence that no other man but her father had sexually assaulted her on that dreadful night.

The following chain of events as narrated by Merly lucidly and logically lead to the conclusion that appellant did have carnal knowledge of his daughter against her will: 1) Appellant did not allow her to sleep with her brother and sisters in the adjacent room of their hut on the night in question. 2) When Merly was about to sleep on the mat as ordered by appellant, she noticed him removing her shorts and panty, whereupon she boxed him to stop his advances. 3) But appellant, earnestly desirous to pursue his evil motive, instead punched Merly on her belly, rendering her totally unconcious. 4) Upon regaining consciousness, Merly felt her vagina was aching and noticed her panty was bloody. 5) Appellant threatened Merly that he would kill her if she reports the horrifying incident to anyone, including her mother. 6) Although he pleaded "not guilty" during arraignment, appellant, apparently conscience-stricken, categorically admitted having committed the crime charged when testifying for his defense.

The trial court itself likewise found Merly a trustworthy witness. And rightly so.  Its findings on the credibility of witnesses are even accorded great respect and weight on appeal as it is in a better position to decide the question of credibility, having seen and heard the witnesses themselves and observed their behavior and manner of testifying.[52]

Now to the penalty for the crime of rape committed by appellant.

The Information specifically alleges, inter alia, that in the evening of April 2, 1994, "Marcelo Palermo y Carias" had employed "force, violence and intimidation x x x and succeed(ed) in having carnal knowledge of his fourteen-year old daughter, Merly Palermo y Mandac, against her will and to her damage and prejudice."

The allegation in the Information concerning the minority of the victim (who was under 18 years of age at the time the crime was committed) and her relationship as daughter of the offender, are considered special qualifying circumstances[53].which would categorize the crime as qualified rape under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act NO. 7659,[54] the prescribed penalty of which is death.

These special qualifying circumstances of minority and relationship have been pleaded in the Information and duly proven by the prosecution. These were even admitted/confirmed by appellant himself.

While the penalty of death imposed on appellant is correct, since that is what the aforecited law prescribes, we disagree, however, with the trial court's reasoning in the dispositive portion of its decision that such penalty is likewise imposed because of the presence of "aggravating circumstances of (1) recidivism x x x and (2) abuse of confidence and moral ascendancy, without any mitigating circumstance to offset the same x x x."

It must be stressed that even assuming arguendo that aggravating (or even mitigating) circumstances have been proven in the instant case, the same should no longer be taken into account because the prescribed penalty for qualified rape is death, which is single and indivisible. This is clear in Article 63 (1st paragraph) of the Revised Penal Code, which provides: "In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed."[55]

Clearly, appellant's stance that his confession of guilt should mitigate his criminal liability and reduce his penalty to reclusion perpetua is seriously flawed.  In the first place, such incident is not even a mitigating circumstance within the contemplation of Article 13 (paragraph 7) of the Revised Penal Code. To be considered a mitigating circumstance, paragraph 7 of said Article 13 requires that the offender "had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution."  In the instant case, appellant did not only plead "not guilty" upon arraignment, but waited for the prosecution to rest its case. It was only during his turn to present evidence that he confessed having committed the crime charged.  Certainly, his confession of guilt was not spontaneous, which is what the law requires.

On the matter of damages, the dispositive portion of the trial court's decision did not award moral damages to the victim simply because there was "no declaration for moral damages x x x."

That pronouncement by the trial court is inaccurate.  The Information in the present case actually alleges that Merly was deflowered by appellant "against her will and to her damage and prejudice." Her testimony in court reveals that she was violently harmed when appellant punched her on the belly causing her to pass out; that it was then he mercilessly ravished her, and upon regaining consciousness, her vagina was aching and her panty stained with blood; that he ravaged her again more than ten (10) times from April 2, 1994; that she was later rushed to the hospital due to profuse vaginal bleeding as a result of a miscarriage; and that due to her great fear that he would kill her if she tells anyone about this incident, it took her awhile to report to the authorities his sexual assault on her. When Merly narrated her harrowing experience in open court, she, undoubtedly, exposed herself to public humiliation, disgrace and ridicule.

These undisputed facts are eloquent and sufficient proof to warrant the award of moral damages to the victim in this prosecution for rape. The trial court should not have simply brushed aside these facts especially because it correctly found the existence of rape.  It is plain from Merly's testimony that she has suffered physical injury, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury, which, under Article 2217 of the Civil Code, constitute the bases for awarding moral damages.  The said Article 2217 further provides that "(t)hough incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission."

The recent case law on rape, it must be stressed, even permits the automatic grant of civil indemnity and moral damages to the victim once the fact of rape has been established.  As we have held in People vs. Prades,[56] through Justice Florenz D. Regalado, "the conventional requirement of allegata et probata in civil procedure x x x should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such allegations can be made." The obvious reason for this ruling was eloquently stated in People vs. Villamor,[57] through Justice Flerida Ruth P. Romero, thus: "x x x the anguish and pain that the victim had to endure are so evident that it would be expecting too much for her to recite in detail traumatic experience, simply to obtain pecuniary restitution.  We need not belabor the fact that a rape victim is a victim many times over.  She is physically, socially, psychologically and emotionally scarred resulting in trauma which may last a lifetime.  Simply put (citing the ponencia of Justice Reynato S. Puno[58]), 'rape stigmatizes the victim worse than the perpetrator, as our culture puts premium into purity and virginity as virtues.' "

Accordingly, this Court, based on recent jurisprudence,[59] has adopted a new policy in cases of rape to the effect that the award of "civil indemnity is mandatory upon the finding of the fact of rape;" that "the indemnification for the victim shall be in the increased amount of P75,000.00.if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws;" and that moral damages may additionally be awarded to the rape victim "without need of pleading or proof of the basis thereof as has heretofore been the practice."

Thus, the victim in the case at bar should be awarded civil indemnity in the amount of P75,000.00,and moral damages of P50,000.00.Since the appellant is the father of the victim, he should likewise pay her exemplary damages which, pursuant to controlling, case law, has been fixed at P25,000.00.[60]

Finally, appellant's counsel pleads for "compassionate justice" by allowing the reduction of his penalty from death to reclusion perpetua.

Such plea is legally impermissible.

Compassionate justice is accorded only to one deserving of compassion within the bounds of the law. As perfectly stated in People vs. Malagar,[61] through Justice Jose C. Vitug, "(a) father is looked up to as the protector and x x x guardian of his family, remaining ever wary of even the slightest harm that might befall it.  It is difficult to thus imagine that any such man could instead stand as the predator of his own flesh and blood."

Appellant has shown his bestiality and deserves the supreme penalty, lest he might feast again on Merly's younger sisters to satisfy his insatiable greed for lust.

It may now be trite, but nonetheless apt, to restate the legal maxim "Hoc quidem per quam durum est sed ita lex scripta est." (The law may be exceedingly hard, but so the law is written.).[62] Appellant himself knows he is facing the death penalty for his crime, but he is ready for it because, as he, said, "Ako po'y nagkasala...."[63]

Four members of the Court maintain their position that Republic Act No.7659, insofar as it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the ruling of the majority members that the said law is constitutional and that the death penalty should be imposed in this case.

WHEREFORE, the Decision of the Regional Trial Court of Boac, Marinduque, Branch 38, in Criminal Case No. 60-94, convicting MARCELO PALERMO Y CARIAS of the crime of rape and sentencing him to suffer the penalty of DEATH, is AFFIRMED.  The appealed decision is MODIFIED insofar as the civil aspect of the case is concerned.  Appellant is thus ordered to PAY the offended party, Merly Palermo y Mandac, P75, compensatory damages; P50, moral damages; and P25, exemplary damages, with costs.

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No.7659, upon finality of this decision, let the certified true copy of the record of this case be forthwith forwarded to the Office.of the President for possible exercise of the pardoning power.


Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

[1] Article 47, Revised Penal Code, as amended by Section 22, Republic Act No. 7659; Section 3(d), Revised Rules of Criminal Procedure, as amended (effective December 1, 2000).

[2] RTC record of Criminal Case No. 60-94, p. 7.

[3] Ibid., p. 8.

[4] Exhibit "A-5" (Birth Certificate), RTC record of Criminal Case No. 48-94, p. 6.

[5] Transcript of Stenographic Notes (TSN), December 21, 1994, pp. 2-3, 7.

[6] Ibid., p. 7.

[7] Ibid., pp.10-11.

[8] Ibid., pp. 6-8, 15.

[9] Ibid., p. 8.

[10] Ibid., January 31, 1995, p. 6.

[11] Ibid., December 21, 1994, p.16.

[12] Ibid., p. 9; January 31, 1995, p. 6.

[13] Ibid., p. 14.

[14] Ibid..

[15] Ibid..

[16] Ibid., p. 9.

[17] Ibid., pp. 9-10, 14; January 31, 1995, p. 6.

[18] Ibid., December 21, 1994, p.10.

[19] Ibid..

[20] Ibid..

[21] Ibid..

[22] Ibid., pp.11-12.

[23] Ibid., p.11.

[24] Ibid., pp. 17-18.

[25] Exhibit "A-4", RTC record of Criminal Case No. 48-94, p. 4.

[26] TSN, December 21, 1994, pp.13-20.

[27] Exhibit "B", supra, pp. 22-23.

[28] TSN, supra, p. 20.

[29] Ibid., p. 17.

[30] Exhibit "A-2", supra, p. 2.

[31] TSN, supra.

[32] Ibid., April 11, 1995, p. 4.

[33] Ibid., p. 6.

[34] Ibid., p. 7.

[35] Ibid..

[36] Ibid..

[37] Ibid..

[38] Ibid..

[39] Ibid., p. 8.

[40] Ibid..

[41] Ibid. pp. 8-9

[42] Ibid., p. 9.

[43] Penned by Judge Romulo A. Lopez, RTC record of Criminal Case No. 60-94, pp. 33-37.

[44] Ibid., p. 37.

[45] Ibid..

[46] Rollo, p. 28.

[47] Ibid., p. 29.

[48] People vs. Calayca, 301 SCRA 192 (1999), citing People vs. Medina, 300 SCRA 98 (1998); People vs. Correa, 285 SCRA 679 (1998); People vs. Garcia, 281 SCRA 463 (1997); People vs. Borbano, 76 Phil. 702 (1946); and People vs. Olfindo, 47 Phil. 1 (1924), citing U.S. vs. Abijan, 1 Phil. 83 (1902).

[49] People vs. Gementiza, 285 SCRA 478 (1998), citing People vs. Rivera, et al., 242 SCRA 26 (1995); People vs. Plaza, 242 SCRA 724 (1995); People vs. Gasapan, 243 SCRA 53 (1995); and People vs. Dado, et al., 244 SCRA 655 (1995).

[50] People vs. Ching, 240 SCRA 267 (1995), cited in People vs. Gementiza, supra.

[51] People vs. Jaca, 229 SCRA 332 (1994),.cited in People vs. Gementiza, supra.

[52] People vs. Lakibul, 217 SCRA 575 (1993), cited in People vs. Ching, supra.

[53] People vs. Garcia, supra, cited in People vs. Calayca, supra.

[54] This amendatory law, entitled "AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL CODE, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES," took effect on December 31, 1993 (see People vs. Simon, 234 SCRA 555, 569 [1994]; People vs. Prades 293 SCRA 411 [1998]).

[55] See also People vs. Perez, 296 SCRA 17 (1998).

[56] Cited in Fn. 52.

[57] 297 SCRA 262 (1998).

[58] People vs. Ibay, 233 SCRA 15 (1994).

[59] People vs. Prades, supra, citing People vs. Caballes, et al., 274 SCRA 83 (1997); People vs. Gementiza, supra; People vs. Victor, 292 SCRA 186 (1998).  These cases were reiterated in People vs. Malapo, 294 SCRA 579 (1998); People vs. Mostrales, 294 SCRA 701 (1998); People vs. Perez, supra; People vs. Fuertes, 296 SCRA 602 (1998); People vs. Villamor, 297 SCRA 262 (1998); People vs. Emocling, 297 SCRA 214 (1998); People vs. Medina, supra; and People vs. Calayca, supra.

[60] People vs. Arillas, G.R. No.130593, June 19, 2000, cited in People vs. Elpedes, G.R. Nos. 137106-07, January 31, 2001.

[61] 238 SCRA 512 (1994).

[62] Lee, Jr., German G., Handbook Of Legal Maxims, Central Professional Books, Inc., Q.C., 2nd Revised Ed., 1998, p. 182.

[63] TSN, April 11, 1995, p. 8.

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