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[G.R. Nos. 100801-02.August 29, 2001]
PEOPLE vs. CONTINENTE, et al.
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated AUG 29 2001.
G.R. Nos. 100801-02(People of the Philippines v. Donato B. Continente and Juanito T. Itaas.)
Before us is appellant Juanito T. Itaas' Motion for Reconsideration 1 Rollo, pp. 649-665. of the Decision 2 Rollo, pp. 612-648. of this Court, promulgated on August 25, 2000, in G.R. Nos. 100801-02 which affirmed with modification the judgment 3 Rollo, pp. 11-18. of the Regional Trial Court of Quezon City, Branch 88, in Criminal Cases Nos. Q-89-4843 and Q-0-89-4844 finding appellant Juanita Itaas y Tura guilty beyond reasonable doubt, as principal, of the crimes of murder and frustrated murder, respectively.
The record shows that on April 21, 1989 at around 7:00 o'clock in the morning, U.S. Col. James N. Rowe was killed while his driver, Joaquin Vinuya, was wounded in an ambush at the corner of Tomas Morato Street and Timog Avenue in Quezon City. Police investigation resulted in the arrest of Donato B. Continente and Juanito T. Itaas who were subsequently charged in court together with other John Does with the crimes of murder and frustrated murder for having conspired in killing Col. Rowe and wounding his driver. After trial on the merits, the trial court found appellants Continente and Itaas guilty beyond reasonable doubt as charged and sentenced each of them to suffer the penalty of reclusion perpetua for killing Col. James N. Rowe, and ten (10) years and one day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one day of reclusion temporal, as maximum, for the crime committed against Joaquin Vinuya.
On appeal, we affirmed the judgment of the trial court insofar as it found the two (2) appellants guilty of murder for killing Col. Rowe but downgraded their criminal liability for wounding his driver to that of attempted murder. We found the evidence on record insufficient to support the alleged existence of conspiracy between the two (2) appellants; and we adjudged appellant Juanito T. Itaas guilty, as principal, of the crimes charged in the subject two (2) criminal cases while appellant Donato Continente was held liable as a mere accomplice. The dispositive portion of our decision reads:
WHEREFORE, the appealed Decision of the Regional Trial Court, Branch 88, in Criminal Cases Nos. Q-89-4843 and Q-89-4844 is hereby MODIFIED, as follows:
In Criminal Case No. Q-89-4843, appellants Juanito Itaas and Donato Continente are found GUILTY beyond reasonable doubt of the crime of murder, as principal and as accomplice, respectively. Appellant Itaas, as principal, is hereby sentenced to suffer imprisonment of reclusion perpetua. Appellant Continente as accomplice, is hereby sentenced to suffer imprisonment for twelve (12) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. Both appellant Itaas and Continente are ORDERED to pay jointly and severally the amount of P50,000.00 to the heirs of the victim, Col. James Rowe, by way of civil indemnity.
In Criminal Case No. Q-89-4844, appellants Juanito Itaas and Donato Continente are found GUILTY beyond reasonable doubt of the crime of attempted murder, as principal and as accomplice, respectively. Appellant Itaas, as principal, is hereby sentenced to suffer imprisonment for six (6) years of prision correccional, as minimum, to nine (9) years and six (6) months of prision mayor, as maximum. Appellant Continente, as accomplice, is hereby sentenced to suffer imprisonment of six (6) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum.
SO ORDERED.
Appellant Juanito T. Itaas, through counsel, raised the following grounds in support of his motion for reconsideration:
I
The Decision should have considered and resolved appellant's 6th Assigned Error - that the crimes of murder and frustrated murder are absorbed in the crime of rebellion.
II
The medico-legal evidence does not even establish the manner and cause of death of victim James Rowe.
III
The eyewitness testimony of Meriam Zulueta is not as candid and straightforward as may appear on the surface; her testimony is unreliable at best, or scripted at Worst.
IV
The appellant's extrajudicial confession should not have been admitted and given any probative value or weight.
In essence, movant-appellant Itaas states that the autopsy report 4 Exhibit "0". evidencing the cause and fact of death of the victim was inadmissible in evidence for being hearsay as Dr. Spencer, who prepared that report, was not presented during the trial to identify the same; and consequently he claims that the corpus delicti which is an essential element of the crime of murder was not established by the prosecution.
Appellant also attempts to cast doubt on the credibility of prosecution eyewitness, Meriam Zulueta, for her alleged failure to mention that she saw a gunman firing from behind the driver's seat and to describe his physical features in any of her written statements 5 Exhibits "I"; "J"; "K"; "L". taken prior to the arrest of the appellant on August 27, 1989 in Davao City. He argues that it was impossible for the said prosecution eyewitness to have seen the face of the gunman in view of her claim that the said gunman was holding a long firearm to his cheek while firing, which act lasted for five (5) seconds only.
He further argues that in the cases of People v. Pecardal 6 l45 SCRA 647, 652 (1986). and People v. Trinidad, 7 162 SCRA 714, 721-722 (1988). the one testimony of the appellant therein was held sufficient to establish torture by the police in securing his confession in the absence of any rebuttal evidence by the prosecution; that prosecution's rebuttal witness, CIS Investigator Virgilio Pablico, testified only on matters that transpired in Manila and not those that occurred in Davao City where the torture occurred; that Atty. Felimon Corpuz was not an independent counsel for having been a member of a military tribunal during martial law and an officer of the Judge Advocate General's Office (JAGO); that Atty. Corpuz failed to adequately inform him (appellant Itaas) of his constitutional rights during the custodial investigation. Hence, appellant Itaas concludes that his written extrajudicial confession is not admissible in evidence for having been obtained in violation of the constitution.
Movant-appellant Itaas further argues that even on the assumption that the evidence adduced was sufficient to prove his guilt, he cannot be legally convicted of the crimes of murder and attempted murder, citing the cases of People v. Hernandez, et al., 8 99 Phil. 515 (1956). Gumabon v. Director of the Bureau of Prisons 9 37 SCRA 420, 426-428 (1971). and Enrile v. Amin, 10 189 SCRA 573, 579-581 (1990). wherein it was held that common crimes are absorbed in the crime of rebellion. He claims that the decision of the trial court which was affirmed by the Supreme Court made factual findings relative to his membership in rebel organizations allegedly involved in the ambush of Col. Rowe and his driver, including the political motive of the attack.
The instant motion for reconsideration is not impressed with merit.
The autopsy report was not the only evidence on record that shows the cause and fact of death of Col. James N. Rowe on April 21, 1989. The driver, Joaquin Vinuya, testified during the trial, that Col. Rowe who was then seated at the back of his car, was hit during the shooting incident at the corner of Tomas Morato Street and Timog Avenue in Quezon City. 11 TSN dated May 9, 19 90, p. 7. At the V. Luna Medical Hospital where the victims were immediately taken, the attending physician, Dr. Walter Divers, declared Col. Rowe dead on arrival for the reason that he had no heartbeat and his respiratory system was not responding. 12 TSN dated June 1, 1990, p.4. The medical report 13 Exhibit "N". dated April 21, 1989 which was prepared and signed by Dr. Divers shows that Col. Rowe sustained a single gunshot wound on the left side of his head and abrasions on other parts of his body. Significantly, Dr. Divers was present when Dr. Spencer conducted the autopsy on the body of Col. Rowe. 14 TSN dated June 1, 1990, pp. 7-8. Prosecution witness Dr. Divers identified both the medical report and autopsy report.
While Meriam Zulueta's presence at the scene of the crime is not disputed by movant-appellant, 15 Motion for Reconsideration. Rollo, p. 658. he nonetheless attempted to cast doubt on her credibility based on her alleged failure to mention in her prior written statements that she saw any gunman, much less gave any physical description of him. Contrary to appellant's claim, Meriam Zulueta mentioned having seen the gunmen aboard a car shooting at a gray car after which the former vehicle headed toward the direction of Quezon Boulevard while being followed by a white Mitsubishi Lancer. 16 Exhibits "I"; "J".
The prosecution explained that during the investigation of the subject two (2) criminal cases, police investigators focused on the driver of the back-up vehicle for possible clue on the identity of the perpetrators of the crime due to Meriam Zulueta's claim that she had in fact seen him on two (2) previous occasions within the vicinity of the crime scene and that her description of the said driver of the back-up vehicle resembled that of a certain Raymond Navarro who is one of the principal police suspects in the case. The absence of description of any of the gunmen in her written statements, however, should not be misinterpreted to mean that Zulueta had not seen them inasmuch as she positively identified appellant Itaas in Camp Crame, after his arrest, as the very person sitting directly behind the driver of the car and whose body was half exposed while he was firing at the gray car with the use of a long firearm. Having thus exposed himself outside the car window, appellant Itaas was seen by prosecution witness Zulueta who witnessed the unfolding crime.
Movant-appellant's attempt to impugn his written confessions 17 Exhibits "B"; "B-7". on the basis of alleged torture and prejudice of his counsel is untenable. We have evaluated the apprisal (paliwanag) of movant-appellant's constitutional rights as made by Police Investigator Virgilio Pablico, during the custodial investigation, which are embodied at the beginning of his extrajudicial confessions 18 Exhibits ''B''; ''C". and we found the same to be in accordance with the standard set under the constitution. His allegation of torture immediately after his capture in Davao City are clearly self-serving. It has been established by the evidence that he failed to reveal the alleged torture he allegedly suffered to the physician who attended to him for a routine check-up upon his arrival in Manila nor did he lodge any complaint with the proper authorities when he had all the chances to do so. In any event, it should be pointed out that his written confessions were taken not in Davao City but in Manila where the said appellant was not subjected to any maltreatment. With regard to the alleged incompetence and bias of Atty. Felimon Corpuz, we have already ruled that the evidence on record is insufficient to support a finding that he was short of being a vigilant and effective counsel and that his past employment in the military was not enough to adjudge him as biased against the appellant.
Lastly, we reject, for being misplaced, appellant's reliance on our ruling in the case of People v. Hernandez, et al., 19 Supra. which was reiterated in the cases of Gumabon v. Director of the Bureau of Prisons 20 Supra. and Enrile v. Amin, 21 Supra. to support his argument that the common crimes of murder and frustrated murder are absorbed in the crime of rebellion. This argument of movant-appellant is obviously an afterthought and a desperate attempt to avoid responsibility for the crimes of murder and attempted murder in these two (2) cases.
Appellant Itaas adverted to certain portions of the trial court's decision noting his membership and that of his co-accused, Donato Continente, in a rebel organization. This was done by the trial court mainly to bolster its finding that conspiracy existed between the two (2) accused-appellants in the commission of the crimes charged in the Informations in the subject two (2) criminal cases. But the trial court's finding of conspiracy was overturned on appeal. Nevertheless, such membership of the appellant in a rebel organization, by itself, does riot automatically qualify his criminal acts as absorbed in the crime of rebellion which carries a lighter penalty under the law. The burden was on the appellant to demonstrate conclusively that his criminal acts were committed in furtherance of rebellion, 22 People v. Lovedioro, 250 SCRA 389, 395 (1995). but he failed to do so. In the earlier case of People v. Gempes, 23 83 Phil. 267, 274 (1949). this Court stressed that:
xxx Since this is a matter that lies peculiarly with their knowledge and since moreover this is an affirmative defense, the burden is on them to prove, or at least to state, which they could easily do personally or through witnesses, that they killed the deceased in furtherance of the resistance movement. xxx
In the cases at bar, the appellant failed to substantiate any alleged political motive behind the ambush that resulted in the death of Col. Rowe. It follows, therefore, that since no political motive was established or proved, appellant Itaas should be as in fact he was correctly convicted of the common crimes of murder and attempted murder, and not of rebellion. Significantly, in cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice. 24 People v. Lovedioro, supra.
WHEREFORE, the instant motion for reconsideration of appellant Juanito T. Itaas is hereby DENIED for lack of merit.
SO ORDERED.
Very truly yours,
(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court
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