378 Phil. 828
"That on or about the 13th day of February, 1993, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping other persons whose true names, identities and whereabouts have not as yet been ascertained, with intent to gain and by means of violence and/or intimidation upon persons, did, then and there, willfully, unlawfully and feloniously rob the residence of one ERNESTO D. PAGADUAN located at Block 212 Lot 10, Phase III, North Fairview, this City, in the manner as follows: on the date and in the place aforementioned, the said accused, pursuant to their conspiracy, armed with handguns and bladed weapons, poked a gun at said Ernesto D. Pagaduan who was about to enter his residence and forcibly entered said residence and once inside, accused hog-tied all the members of his family and thereafter, took, robbed and carried away assorted valuables amounting to P 300,000.00 Philippine Currency; that on the occasion of said robbery, accused with lewd designs and by means of force, violence and intimidation and at the point of bladed instruments, did, then and there, willfully, unlawfully and feloniously had carnal knowledge upon the persons of JEHAN PAGADUAN and JACQUELINE PAGADUAN, 16 and 15 years of age, respectively both minors, all done against their will and without their consent, to the damage and prejudice of the said offended parties."When arraigned on April 4, 1994, appellants, with the assistance of counsel, entered a plea of not guilty. Trial ensued. On August 8, 1994, upon discovery that another case on the same incident was pending before another judge, the trial court issued an Order enjoining the defense to file the necessary motion. However, no such motion was submitted. Instead, Siervo's counsel filed a Demurrer to Evidence with leave of court, which was denied in a Resolution dated June 6, 1995. Subsequently, both appellants proceeded to present their respective sets of evidence. Thereafter, the lower court rendered its assailed Decision, the dispositive part of which reads:
"Upon the evidence, the Court finds the accused Arnulfo Siervo and Constancio Merino guilty as charged, the prosecution having proven their guilt beyond reasonable doubt.Siervo filed a Notice of Appeal and an Appellant's Brief. Although Merino did not file any notice of appeal, he subsequently submitted a Brief. In the interest of substantial justice, we will review the case and resolve the arguments raised by both appellants.
"Considering that the crime was committed during nighttime, the accused taking advantage of the darkness for the more successful consummation of their plan to prevent their being recognized so that the crime may be perpetrated unmolested so that they could escape more thoroughly as what actually happened in this case, both accused are sentenced to suffer the penalty of reclusion perpetua in accordance with Article 294, paragraph 2 of the Revised Penal Code.
"The two (2) accused are jointly and severally ordered to pay Jehan Pagaduan and Jacqueline Pagaduan the sum of Two Hundred Fifty Thousand Pesos (P250,000.00) each as and for civil damages. Likewise, both accused are ordered to pay the private complainants the sum of Twenty Thousand Pesos (P20,000.00) each as and for civil damages and to indemnify Ernesto Pagaduan Three Hundred Thousand Pesos (P300,000.00) for the personal properties taken by the accused during the incident." (citations omitted)
"Around 7:00 in the evening of February 13, 1993, the Pagaduans, namely: Lydia, Jacqueline, Vanessa and their grandparents, were having dinner at their residence at Blk. 212, Lot 10, Phase 8, North Fairview Subd., Quezon City. Not long after, Ernesto Pagaduan and Ian Pagaduan arrived in separate cars. Faustino Pagaduan opened the gate. Ian, who was with Mark Pagaduan and Jehan Pagaduan, a cousin and visitor of the Pagaduans, drove through the gate and parked his car in the garage. Ernesto Pagaduan followed. Right after parking their cars, six (6) men, two (2) of whom were identified later as appellants Arnulfo Siervo and Constancio Merino, alias `Kuta', barged into the premises. While Merino covered his nose and mouth with a handkerchief, the rest of the armed men did not hide their faces. Siervo ordered them to get out of their cars. Then appellants poked their guns and knives at them. The armed men entered the house through the kitchen. Once inside, Siervo announced a hold-up. They ordered the Pagaduans to lie on the floor face down. Because grandfather Faustino resisted, he was mauled and hit on the head with the butt of a gun. Mark Pagaduan shouted at the armed intruders telling them to stop beating his grandfather. A hysterical Jacqueline was slapped on the face by one of the armed men causing her to fall on the floor. The armed men then herded their terrified hostages to the sala.
"In the sala, the armed men tied the Pagaduans with extension cords and told them to surrender their jewelry. Ernesto and Lydia were brought inside a room where they were hogtied and forced to lie on the floor face down. From time to time the malefactors kicked Ernesto, stepped on him and poked their guns at the Pagaduans. Siervo forced Lydia to tell him where she kept their jewelry. When she refused, Siervo and the rest of the gang ransacked the house. One of the men asked Jacqueline to accompany him to where the jewelry were kept. Not satisfied with the jewelry he had already scooped up, the armed man kept asking where he could get some more.
"A little later, Siervo brought Jehan to the master's bedroom. Siervo told Jehan to undress. Because Siervo poked a fan knife on her chest, Jehan unwillingly obliged. Siervo then raped Jehan. After a while, Merino entered the room and said, `bilisan mo, baka may dumating na tao'.
"Back at the sala, which had a concrete divider, Jacqueline was accosted by one of the armed men whom she did not recognize and who asked her to switch off the light. Terrified, Jacqueline meekly obeyed. The man ordered Jacqueline to undress and lie down on the sofa. He started kissing Jacqueline, touched her breasts and asked her to spread her thighs. He kissed her private parts. Then, he raped her. When he was through, the man ordered Jacqueline to dress up. All this time, the man was armed with a knife. Another armed man whom Jacqueline failed to recognize and identify came. The first man told him `pare, baka gusto mo rin s'yang tikman.' The man sat beside Jacqueline, kissed her, ordered her to undress and spread her thighs. Not contented, he ordered Jacqueline to spread them some more threatening to kill her if she refused. As the man could not insert his organ, he ordered Jacqueline to do it for him but she refused. Finally, he succeeded in raping Jacqueline. Thereafter, he ordered her to dress up and join her relatives. She was hogtied again.
"The armed men took with them money, appliances, perfumes, bottles of liquor, jewelry and clothes of the Pagaduans having a total value of about P300,000.00. Merino left a warning that no one should get out of the house because they had planted a bomb there. At that time, Merino's face was uncovered. After the robbers left, Lydia, who was able to free herself, untied the others. They asked help from their neighbors. They then proceeded to Station 5 in Lagro to report the incident. Later, they filed a complaint with the NBI.
"On February 16, 1993, Jacqueline and Jehan were examined by Dr. Florante Baltazar, Medico-Legal Officer and Chief of the PNP-Crime Laboratory, CPD 4, Quezon City. The Medico-Legal Reports which Dr. Baltazar issued on Jacqueline and Jehan showed healed lacerations on their genitals and they were[in] `non-virgin state physically.'
"About a year later, or on March 5, 1994, Mark Pagaduan saw and recognized Siervo when Mark bought fruits from Siervo's fruit stand in Balara. Mark, accompanied by Ian Pagaduan, relayed the information to the NBI. A team of NBI agents, headed by Atty. Artemio Sacaguing, arrested Siervo and later Merino.
"The Pagaduans readily identified Siervo and Merino during a line-up at the NBI. They executed sworn statements before the NBI agents." (citations omitted)
"Arnulfo Siervo maintained that from 3 o'clock in the afternoon and the rest of February 13, 1993, he was home resting. In March 1994, several men apprehended him while he was in his stall. He was brought to the NBI where he was branded a robber and a rapist. He was interrogated without the assistance of counsel. He never pointed to Merino as his companion. He did not admit anything. At the NBI line-up, he noticed Atty. Sacaguing coaching witness to point at him. He never heard Merino utter anything. The NBI told him to hit Merino. The cartographic sketch of a man [did] not resemble him.In his scant four-page Brief, Appellant Merino mainly asserts that he was on duty at the MWSS Lagro station on February 13, 1993, and that he never left his post. Although he knew Appellant Siervo, he was not with him on that day. He also admits that he knew Danilo Pagaduan because they were erstwhile neighbors in Pansol, Balara.
"Constancio Merino maintained that he knew Ernesto and Lydia Pagaduan. He worked as a valve operator in Lagro, Quezon City. On February 13, 1993, between 2:00 o'clock in the afternoon up until 10:00 o'clock in the evening, he was at his place of work and never left the same. He [did] not know anything about the robbery incident. He was merely implicated because he refused to be a state witness. He and Siervo were not in good terms. At the NBI, Siervo punched him. Siervo thought he (Merino) was the one responsible for his apprehension. He could not retaliate because his hands were handcuffed.
"Roderick Capellan confirmed that on February 13, 1993, Merino was on duty from 3:00 o'clock in the afternoon until 10:00 o'clock in the evening but could not tell if Merino went anywhere else between those hours." (citations omitted)
"From the testimonies and documentary evidence presented by the prosecution, the Court is fully convinced that on the night of February 13, 1993, the private complainants were robbed by both accused Siervo and Merino [of] money, appliances, perfumes, liquor and jewelry. All private complainants who testified sufficiently narrated the facts and circumstances of the incident as well as established the identities of both accused. They all identified Siervo and Merino at the NBI when they were arrested. Not only that, this positive identification by the private complainants of the two accused was replicated in open court when they testified. There was no hesitation on their part to point to the accused as the culprits. The only question left is whether both accused raped Jehan Pagaduan and Jacqueline Pagaduan on the occasion of that robbery.
"According to Jehan Pagaduan, she was raped by accused in the room. Accused Merino followed them in the said room and even told Siervo, `bilisan mo, baka may dumating na tao'. Mark and Ian Pagaduan testified that they saw Siervo take [their] cousin Jehan to the bedroom and saw Merino follow them. Mark heard as if Siervo was abusing Jehan and heard the latter crying. Both likewise saw Siervo take Jehan outside of the room later.
"On the other hand, Jacqueline Pagaduan testified that she was also raped in the sala by Siervo whose face appears on Exh. B-1, which is the cartographic sketch of Siervo. She said she could not identify the second man who raped her. Mark and Ian Pagaduan saw a man take Jacqueline to the living room. Mark heard the same thing he heard when Jehan was taken by accused Siervo to the room. It was as if Jacqueline was [being] abused.
"Exhibits F and G, the Medico-Legal Reports No. M-0277A-93 and M-276A-93, respectively, conclusively show that the abr[a]ded vulvar mucosa suggests that there was recent sexual intercourse.
"The alibi put up by both accused does not inspire belief. Accused Siervo claims that he was home resting while his wife was preparing dinner, while accused Merino claims that he was on duty from 2:00 in the afternoon to 10:00 in the evening at Tank 5. However, on cross-examination, accused Siervo testified:"Further, Siervo admitted that he and Merino used to be neighbors at Blk. 81, Lot 49, Lagro Subd., Novaliches, Quezon City and that they were friends back in Samar. He said Merino helped him in vending fruits in Nawasa. Although Roderick Capellan, accused Merino's witness, categorically testified that he saw Merino leave at 2:00 p.m. and at 9:45 p.m. at Tank 5, he did not know the whereabouts of Merino between 2:00 and 9:30 p.m. and whether he went somewhere else in the interim.
`q: Did you meet your co-accused Constancio Merino in the evening of February 13, 1993? a: Yes, sir. We saw each other. q: In the evening of February 13, 1993? a: Yes, sir.'
"For alibi to be given credence, the following requisites must be present:1. that the accused was not at the scene of the crime at the time it was committed; and"It should be noted that these requisites are wanting in this case.
2. that it was physically impossible for the accused to be at the scene of the crime at the time of its commission.
"Despite both accused's protestations of innocence there can be no detracting from the fact that they were positively identified by the private complainants. The Supreme Court held in several cases that positive identification prevails over alibi.
"There is no question that both accused are liable as principals. Clearly, conspiracy has been proven beyond reasonable doubt. Both accused are the perpetrators with four other unidentified men who are still at large. They were the participants in this felonious and criminal misadventure." (citations omitted)
"1. The lower court erred in convicting the accused-appellant despite failure of the prosecution to prove his guilt beyond reasonable doubt;Appellant Siervo, in an equally anemic and disappointing effort, raises only two questions: the lower court's appreciation of the aggravating circumstance of nighttime and the award of civil damages.
2. x x x [G]ranting for the sake of argument that accused-appellant was with accused Siervo[,] he was not responsible for the rape of Jehan and Jacqu[e]line Pagaduan"
The trial court erred in appreciating the aggravating circumstance of nighttime.
The lower court erred in ordering appellants to indemnify Ernesto Pagaduan and to pay Jehan and Jacqueline, both surnamed Pagaduan, exorbitant civil damages."
The foregoing testimony was corroborated by Mark, Ian, Lydia, Ernesto, and Jacqueline, all surnamed Pagaduan, thereby proving beyond reasonable doubt the presence of Appellants Siervo and Merino at the locus criminis, as well as their participation in the crime.
"FISCAL: Q Will you tell the Honorable Court how the robbery happened? A At around about 7 o'clock p.m. on February 13, 1993, we just came from Pansol, Balara, sir. Q And after coming from said place, what happened? A We were aboard on two (2) cars. I was first who entered our garage and then my uncle followed us, sir. Q Upon entering your garage, followed by your uncle, what happened? A Somebody shouted `dumapa kayo, huwag kayong lilingon' and I saw my uncle who was being poked with a knife, sir. Q More or less how many persons were there? A I saw six (6) of them, sir. Q
After announcing what you said and poking [a] knife at your uncle, what happened after that?
A We were brought to our kitchen and we were asked to lie down face down and they brought us again [to] the hallway, sir. Q All of you? A Yes, sir. Q So, after bringing all of you to the sala, what happened? A They took [the] extension wire which they used in tying us except for my uncle and auntie, sir. Q Who among you were tied? A My grandfather, may grandmother, my three cousins and my younger sister, sir. Q What about you? A I was also tied, sir. Q
So, after tying you, what happened next?
A One of the men took me inside a room and he was asking me where the money was with a Visayan accent, sir. Q You said you were brought to a room, where is this room located? A Near my uncle's bedroom, sir. Q This person who took you into that room you said, spoke Visaya, did you recognize him? x x x x x x x x x A Yes, sir. Q Is he present in Court? A He is not here, sir. Q
After bringing you to that room and spoke that Visayan accent you said, what happened, what did he do?
A He took me back to the hallway and another one brought me inside another room next to the first room where I was brought and asked me where the money was, sir. Q Did you recognize this second guy? A Yes, sir. Q This second guy, is he present in Court? A Yes, sir. Q Will you point to him? INTERPRETER: Witness stepped down from the witness stand and in an arms-length pointed to accused inside the Court room who when asked answered that he is Arnulfo Siervo. Q
What did he do to you?
A He told me to undress, sir. Q And did you accede to his demand? A He pointed a fan knife at my chest, sir. Q After pointing the knife on your chest, what did he do next, if any? A He raped me, sir. Q Did you recognize him very well? A Yes, sir. Q So, after raping you as you said, what happened next? A Another man entered the room and said `bilisan mo, baka may dumating na tao' [be quick about it because somebody might arrive], sir. Q
Did you recognize this guy who went into that room and said be quick, somebody might come up?
A Yes, sir. Q Will you point to him? A There he is, sir. INTERPRETER: Witness pointed to a person beside Siervo and who when asked his name answered that he is Constancio Merino."
"All told, this Court is convinced that the appellants and their co-accused conspired and confederated together to rob the spouses Calixtro and Aprosa Rosario. There is also no doubt that its commission was accompanied by the rape, on two (2) counts, of Gemma Rosario, and the infliction of less serious physical injuries on Calixtro Rosario. Said injuries are only less serious because per the doctor's findings, the same "will heal in ten (10) days, barring complications." Conspiracy having been sufficiently established, all the accused are equally liable for the robbery, rape and physical injuries despite the fact that only Rostata, Jr. and Rotap committed the rape and Devio inflicted the injuries. Where conspiracy is established, the act of one is the act of all."(citations omitted)
"As regards appellant's alibi, the Court has time and again ruled that alibi is the weakest of defenses because it is easy to fabricate but difficult to prove. It cannot prevail over the positive identification of the accused by witnesses. For the defense to prosper, the requirements of time and place (or distance) must be strictly met: It is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate by clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime during its commission." (citations omitted)As correctly pointed out by the solicitor general, even if we were to assume that both appellants were in the places where they claim to be, "the possibility of their being at the crime scene cannot be totally discounted considering that they were all residing at Lagro which is adjacent to North Fairview, where the incident took place."