On automatic review is the Joint Decision of the court a quo finding accused-appellant FLORENCIO FRANCISCO y ALEJO guilty of the crimes of rape and acts of lasciviousness committed against his 11-year old daughter Ma. Coralyn Jucutan Francisco and imposing upon him the death penalty for the rape and an indeterminate prison term ranging from twelve (12) years and one (1) day of reclusion temporal as minimum to fourteen (14) years and nine (9) months of reclusion temporal as maximum for the acts of lasciviousness. 1
Ma. Coralyn lived with her parents Florencio Francisco and Isabelita Jucutan, eight (8) siblings and an aunt in a one-room tenement at Area B, Talanay, Fairview, Quezon City. Florencio was jobless. 2 Isabelita, common-law wife of Florencio, provided for the family by vending vegetables at the Balintawak market in the evening and returning home in the morning. 3
Coralyn’s torments started in the evening of April 1997. The Franciscos were all sleeping on the cement floor of the sala with Coralyn being situated nearest the doorway. Her mother had already left the house that evening to sell vegetables and was not expected home until early the following morning. While Coralyn was asleep she was suddenly jolted when someone removed her shorts and panty. It was her father Florencio. He fondled and caressed her and then licked her genitals. 4 She tried to resist him but he pinned her down and angrily warned, "Huwag kang malikot, papaluin kita." 5 His lewd misconduct was interrupted when Coralyn’s aunt, Maria Lourdes Ochavillo, unexpectedly arrived and opened the door. Seizing the opportunity, Coralyn pretended to be going to the toilet to urinate but went instead to her aunt and asked whether she could sleep with her. Afterwards Coralyn confided to her aunt what her father did to her. But her aunt advised her not to tell her mother as it would only cause trouble in the family. 6 Thus Coralyn decided to keep the incident to herself except her aunt.
Her father’s prurience had not run its full course. His sexual molestation was to be repeated in a more grievous and loathsome manner than Coralyn’s first experience. In the late evening of 27 June 1997 Coralyn was awakened when again her father slowly took off her shorts and panty. He then covered himself and Coralyn with a blanket and while underneath started licking and sucking her genitalia. Now unable to control his libido any longer, Florencio unzipped his maong pants and let loose his erectile penis. He mounted Coralyn and poked his penis several times against her genitalia while nudging her anus in the process. 7 She felt intense pain. She struggled to fend off his lecherous advances but to no avail. Her entreaties for filial pity were ignored. She could only whimper amidst her father’s assault on her virtue.
In the afternoon of 6 July 1997 Florencio went home after a drinking spree with friends. He was drunk. Fearing that her inebriated father might sexually violate her again, Coralyn mustered enough courage to relate her sad fate to her mother who immediately accompanied her to the Police Station at Batasan Hills, Quezon City. As no one attended to them there, Isabelita and Coralyn proceeded directly to the Department of Social Welfare and Development which promptly referred them to the National Bureau of Investigation (NBI).
Coralyn and Isabelita both executed a Sinumpaang Salaysay before the special investigators of the NBI. Dr. Annabelle L. Soliman, Medical Specialist I of the NBI, conducted a medico-legal examination on Coralyn as a matter of procedure. Dr. Soliman’s findings were that no extragenital physical injuries were noted on Coralyn’s body at the time of examination, that her hymen was intact, that its orifice was small, thus precluding complete penetration by an average sized Filipino adult male organ in full erection without producing any genital injury. 8
Thereafter, two (2) separate Informations were filed against Florencio Francisco y Alejo, one for rape 9 and another for acts of lasciviousness. 10 Thereafter the two (2) cases were tried jointly.
In his defense, the accused claimed that at the time of the incidents referred to in the Informations he was working as a mason in a construction site somewhere in Laguna, and that it was the brother of his common-law wife Isabelita, a certain Amoncio Jucutan, who sexually molested Coralyn; alibi and avoidance, in other words.
After trial, the court below found the accused guilty of both crimes of rape and acts of lasciviousness as charged. According to the court —
The positive testimonies of Coralyn in these two jointly heard cases against her father is (sic) difficult to reject. Coralyn is still young to concoct a lie about so grave a crime as she has posited here. She got on the witness’ chair on two, long separate occasions — Jan. 19, 1998 and April 12, 1998 — and was also coming during the scheduled hearings of a rape case . . . if her father the herein accused, were innocent, it appears improbable that Coralyn . . . would have shown such deep interest in the prosecution of these capital cases against their (sic) own blood . . .
Hence, this automatic review of the rape case where the trial court imposed the death penalty. But how about the case for acts of lasciviousness committed on a separate occasion?
At the outset, we address the threshold question: Does the automatic review of accused-appellant’s conviction for rape, for which the death penalty was imposed, include the automatic appeal of his conviction for the less serious crime of acts of lasciviousness?
In the 1983 case of People v. Panganiban 11 we ruled that an automatic review of the death penalty imposed by the trial court was deemed to include an appeal of the less serious crimes, not so punished by death, "but arising out of the same occurrence or committed by the accused on the same occasion, as that giving rise to the more serious offense." The ruling was based on Sec. 17, par. (1), RA 296, as amended (The Judiciary Act of 1948), which to date has not been repealed and continues to be good law 12 thus —
SECTION 17. The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or affirm on appeal, as the law or rules of court may provide, final judgments and decrees of inferior courts as herein provided, in —
(1) All criminal cases involving offenses for which the penalty imposed is death or life imprisonment; and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense, regardless of whether the accused are charged as principals, accomplices or accessories or whether they have been tried jointly or separately . . . (Emphasis supplied
Panganiban dealt with the types of cases where the facts and circumstances involved in a less serious crime were interlinked and closely interwoven with the facts in the capital cases subject of the automatic review, such that the findings of fact in the latter case would substantially affect the other cases. 13 In those instances it became procedurally sound to include even the less serious crime in the automatic appeal to enable the Court to review the facts as a whole and accordingly evaluate all the evidence for the capital offense as well as the less serious one. 14
In the instant case, however, it cannot be said that the acts of lasciviousness case "arose out of the same occurrence or committed by the accused on the same occasion" as that of the more serious crime of rape. The two (2) cases involved distinct offenses committed at an interval of two (2) months in point of time. The evidence reveals that the first crime was committed sometime in April 1997 while the second was perpetrated on 27 June 1997. In both cases, Accused
-appellant was animated by a separate criminal intent, although incidentally, both crimes were directed against the same victim. Moreover, the evidence presented by the prosecution in the rape case was not the same evidence they offered to prove the acts of lasciviousness case.
Inescapably, the penalty of reclusion temporal meted out to accused-appellant in Crim. Case No. Q-97-73696 (now G.R. No. 135202) for acts of lasciviousness is within the exclusive appellate jurisdiction of the Court of Appeals. 15 Upon the other hand, Crim. Case No. Q-97-73695 (now G.R. No. 135201) for rape, the penalty imposed therein being death, perforce falls within the jurisdiction of this Court on automatic review. 16
While we are not unmindful of the practical advantages of a single consolidated review of these two (2) criminal cases, we cannot array any legal justification therefor without infringing upon the jurisdictional boundaries so clearly delineated by our statutes. Hence, we have no other recourse but to recognize this as a case of split appellate jurisdiction. We cannot infuse new meaning into the provisions of our statutes apportioning appellate jurisdictions between this Court and the Court of Appeals because their mandates and terms are specific and unmistakable. Nor can we widen the scope of our appellate jurisdiction on the basis of the fact that the trial court heard two (2) distinct and separate cases simultaneously. Such procedure adopted by the trial court cannot and did not result in the merger of the two (2) offenses. In fact, a cursory reading of the assailed decision of the court a quo reveals with pristine clarity that each case was separately determined by the trial judge, as each should be separately reviewed on appeal. Appellate competence is circumscribed by statute, and not flux and ferment to be settled by the exigencies of trial proceedings.
In fine, it is obvious that accused-appellant’s conviction for acts of lasciviousness should have been appealed to the Court of Appeals, instead of elevating the case to this Court which has no jurisdiction over it. Consequently, being with the wrong forum, the appeal in Crim. Case No. Q-97-73696 for acts of lasciviousness erroneously brought to us is dismissed and the decision therein of the court a quo stands. With this result, we now limit our review to Crim. Case No. Q-97-73695 for rape where the trial court imposed the death penalty.
Accused-appellant Florencio Francisco asserts his innocence in the charge of raping his 11-year old daughter Coralyn. He challenges his conviction therefor by theorizing that his daughter’s testimonies contain material inconsistencies and that her forensic examination disclosed that she remained a physical virgin, her hymen being intact with no extragenital injury detected.
The Court is not at all swayed by the remonstrations of Accused-Appellant
. As we see it, his arguments boil down to the credibility of the victim’s testimony and the weight and sufficiency of the prosecution evidence. The determination of the credibility of witnesses rests largely with the trial court. As we have declared time and again, the trial judge’s assessment of the witnesses’ testimonies is accorded great respect on appeal in the absence of grave abuse of discretion on the part of the trial judge who has the advantage of actually examining both real and testimonial evidence including the demeanor of the witnesses. 17
A careful review of the records reveals no cogent reason to depart from the holding of the trial court that Coralyn’s positive testimony against her father "is difficult to reject," as she clearly narrated in detail how she was sexually assaulted by him. Her story surely bears the stamp of truth and candor. In a manner that is typical of an inexperienced young lass, she testified —
Q: You said that your father abused you, will you tell the Court how he abused you?
INTERPRETER: The witness is crying.
A: He would lay on top of me and would suck my private (sic) vagina.
Q: You said that your father would laid (sic) on top of you and lick your vagina, how many times did he do that on that evening?
A: Several times . . .
Q: You said he lay on top of you and he lick (sic) your vagina, what else did he do?
A: Tinutok (poked) po niya ang kanyang ari sa akin.
Q: Was he successful in "pagtutok ng kanyang ari sa iyo?"
A: Yes, sir.
Q: How many times?
A: Several times.
Q: And when you said he poked his penis in your vagina, where did it land?
A: Sometimes on my vagina, sometimes on my anus.
Q: How many times did it land to (sic) your vagina?
A: Several times.
Q: What about in your anus, how many times?
A: Several times also.
Q: What did you feel when your father did that?
A: It was painful, it hurts.
Q: Will you kindly tell us when did he "tutok" his penis to your vagina?
A: June 27, 1997.
Q: And what did you feel when he did that to you?
A: It hurts.
Q: Which was painful?
A: My vagina. 18
It is indeed extremely hard to disbelieve Coralyn’s testimony. She was only an 11-year old girl, guileless and innocent in the ways of the flesh. When asked how her father abused her, tears fell on her cheeks as she recounted the bestial act visited upon her by her own father. There can never be a more eloquent indicium of truthfulness than this public baring of grief. Young as she was, it is highly inconceivable that she would concoct such an intricate tale that could put her father to death and drag herself and her family to a lifetime of agony and shame. It is a natural instinct of the typical Filipina to protect her honor, and no Filipina of tender age like Coralyn would make of public knowledge that her own father attempted to rob her of her virtue and chastity unless motivated by a genuine desire to seek redress for the foul deed forced upon her and bring her aberrant father before the bar of justice. 19
Accused-appellant claims that the victim even slept beside him after the incidents. To him, this is contrary to human nature and that it is unlikely that an abused young girl would act thereafter in a natural fashion.
We are not persuaded. Behavioral psychology teaches us that, even among adults, people react to similar situations differently, and there is no standard form of human behavioral response when one is confronted with a startling or frightful experience. It must be stressed that this case involves a victim of tender years with limited schooling. With her simple, unsophisticated mind, she must not have fully comprehended at first the detestable nature of the acts committed against her. Besides, while she may be hurt physically, psychologically and emotionally, the thought must have been compelling that her assailant was still her own father. Instances are not few when daughters raped by their fathers stayed with the latter, choosing to keep in the deepest recesses of their hearts the evil deeds done even if the bitter memories would haunt them forever.
However, we disagree with the trial court’s conclusion that accused-appellant is guilty of consummated rape. A careful sieving and sifting examination of the evidence shows that as observed by the Solicitor General, and to which we agree, Accused
-appellant is merely guilty of attempted rape. We fail to discern from Coralyn’s testimony that accused-appellant attained some degree of penile penetration necessary to consummate the rape. In fact, on redirect examination by Fiscal Beltran, as if leading her to say that she was sexually penetrated by her father, she said —
Q: You said that "ang ari ng tatay mo ay hindi nakapasok ng tuluyan sa ari mo?"
A: Hindi po sa butas pero sa aking pepe lang.
Q: How many times?
A: Several times. 20
What Coralyn merely described, and clearly so, was the "hit and miss" character of accused-appellant’s pumping motions, wherein his wayward phallus blindly and aimlessly hammered the victim’s genitalia, likewise hitting the anus in the process. There is indeed serious doubt on the extent of the accused-appellant’s penis assaulting as to touch, if at all, the labia majora. Her testimony that "Hindi po sa butas pero sa aking pepe lang," is inconclusive as it is shrouded in ambiguity. What does pepe mean to an 11-year old child? Does it pertain to the external pudenda, the mons pubis and its environs, as distinguished from her other term butas, which would then logically refer to labia majora and labia minora, collectively? To be sure, the prosecution evidence provided no explanation, much less an answer to enlighten the Court on what crime indeed was perpetrated.
The medico-legal report is likewise unavailing to confirm the commission of rape. On the contrary, it seems to support the absence of penile-labial contact — no extragenital physical injuries were noted on the body of the subject and that the hymen is intact and its orifice small, as to preclude complete penetration by an averaged sized adult Filipino male organ in full erection. Thus, as explained by Dr. Soliman —
COURT:chanrob1es virtual 1aw library
There is nothing entered in the vagina (sic)?
WITNESS:chanrob1es virtual 1aw library
There is nothing entered in the hymenal (sic).
FISCAL AGARAN:chanrob1es virtual 1aw library
So are you telling us Doctor that there was no complete penetration in the vaginal canal of the person of Coralyn?
WITNESS:chanrob1es virtual 1aw library
There was no penetration.
COURT:chanrob1es virtual 1aw library
Not even incomplete?
WITNESS:chanrob1es virtual 1aw library
Yes, your honor.
In People v. Campuhan 21 we held that touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina or her mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are by their natural situs beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. But in the absence of any showing of the slightest penetration of the female organ, i.e., touching either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
The prosecution has the onus probandi of establishing the precise degree of culpability of the accused. It must demonstrate in sufficient detail the manner by which the crime was perpetrated. Certainly, the testimony of the victim to the effect that the accused repeatedly poked her vagina and that the she felt pain as a consequence thereof, would not be enough to warrant the conclusion that a consummated rape had indeed been committed. The quantum of evidence in criminal cases requires more than that. More so in the instant case where even the medico-legal certificate failed to back up the charge of consummated rape —
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. 22
The lacuna in the evidence engenders a cloud of doubt as to whether accused-appellant consummated the crime charged. Courts must ensure that verdicts of conviction rest firmly on sufficient and competent evidence, and not the results of passion and prejudice.
Under Art. 6, in relation to Art. 335, of The Revised Penal Code, rape is merely attempted when the offender commenced the commission of the crime directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. The penalty is two (2) degrees lower than the imposable penalty of death for the offense charged, which is qualified rape. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods.
In reality, the injury inflicted in rape of this nature is not on the unfortunate minor victim alone. It causes great consternation to her entire family and offends the sensibilities of society as a whole. The full force of the law must be weighed against accused-appellant if only to deter other Florencio Franciscos on the loose from pursuing their malevolent propensities and sexual proclivities against their innocent, defenseless daughters. Indeed, only an uncompromising judicial will can arrest the alarming upsurge of perverse sexual offenses perpetrated against the youth of the land.
Finally, we take judicial notice of the conviction of accused-appellant Florencio Francisco y Alejo on 6 February 2001 for raping his other minor daughter, Editha Jucutan Francisco, then fourteen (14) years old, where he was sentenced to reclusion perpetua for simple rape. 23 Actually, he was convicted by the trial court of qualified rape but was reduced by this Court to simple rape for the reason that his relationship to his victim was not properly alleged in the Information, which failure enabled this Court to snatch him from the throes of the death penalty imposed by the court a quo. His prior conviction for rape against his own daughter, then another minor, all the more demonstrates and emphasizes his detestable moral depravity. Whatever compassion this Court may feel for him is at once demolished by the nature and gravity of his unpardonable acts committed, almost unbelievably, against his very own flesh and blood.
WHEREFORE, the Decision of the Regional Trial Court of Quezon City in Crim. Case No. Q-97-73695 (now G.R. No. 135201) finding accused-appellant FLORENCIO FRANCISCO y ALEJO guilty of qualified rape and sentencing him to death, is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of ten (10) years, six (6) months and fifteen (15) days of prision mayor maximum as minimum, to sixteen (16) years, ten (10) months and twenty (20) days of reclusion temporal medium as maximum. He is also directed to pay his victim Coralyn Jucutan Francisco the sum of P30,000.00 as civil indemnity. 24
For being in the wrong forum, the appeal to this Court in Crim. Case No. Q-97-73696 (now G.R. No. 135202) for acts of lasciviousness is considered WITHDRAWN and the conviction of the accused therein by the court a quo stands. Costs de oficio.
Davide, Jr., C.J.
, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ.
1. Decision penned by Judge Jaime N. Salazar, Jr., RTC-Br. 103, Quezon City.
2. TSN, 19 January 1998, pp. 43-44.
3. Id., pp. 21-22.
4. Id., 19 March 1998, pp. 13-18.
5. Id., p. 18.
6. Id., 19 January 1998, pp. 59-60.
7. Id., pp. 11-21.
8. Exh. "2," Original Records, p. 104.
9. Crim. Case No. Q-97-73695.
10. Crim. Case No. Q-97-73696.
11. Nos. L-33822-23, 22 November 1983, 125 SCRA 595.
12. See Roman Catholic Archbishop of Manila v. Court of Appeals, Et Al., G.R. No. 111324, 5 July 1996, 258 SCRA 186, 197.
13. In the aftermath of the massacre of Generoso Panganiban, Victoria Panganiban and Anatalia Gunda Panganiban, Moises Panganiban was convicted by the trial court of Murder as charged in three (3) separate Informations, and sentenced to death in two (2) cases and to reclusion perpetua in one (1) case. All three (3) convictions were deemed automatically appealed, since the killings were committed on the same occasion.
14. See People v. Lasanas, Nos. L-48879-82, 7 July 1987, 152 SCRA 27.
15. See Sec. 17, R.A. 296, as amended, and Sec. 9, B.P. Blg. 129, taken conjointly with Sec. 3, Rule 122 of the Rules of Court. See also, Regalado, Remedial Law Compendium, Vol. II, 7th Revised Ed., pp. 472-473.
16. The second paragraph of Art. 47, The Revised Penal Code, as amended by Sec. 22, RA 7659 provides: "In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment of the court en banc . . ."cralaw virtua1aw library
Sec. 3, Rule 122 of the Rules of Court mandates: ". . . (e) In cases where the death penalty is imposed, the same shall be automatically reviewed by the Supreme Court as provided for in Section 10 of this Rule."cralaw virtua1aw library
17. See People v. Ramirez, G.R. No. 97920, 20 January 1997, 266 SCRA 335, 348.
18. TSN, 19 January 1998, pp. 10-17.
19. People v. Magpantay, G.R. Nos. 113250-52, 14 January 1998, 284 SCRA 96, 103.
20. TSN, 19 January 1998, pp. 76-77.
21. G.R. No. 129433, 30 March 2000.
23. People v. Francisco, G.R. No. 135200, prom. 6 February 2001.
24. People v. Cruz, G.R. No. 116728, 17 July 1996, 259 SCRA 109, 119, Citing People v. Lucas, G.R. Nos. 108172-73, 25 May 1994, 232 SCRA 537.