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SECOND DIVISION

G.R. No. L-104954 December 13, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARIO FABRO Y ARQUIZA, Accused-Appellant.

The Solicitor General for plaintiff-appellee.chanrobles virtual law library

Public Attorney's Office for accused-appellant.

PUNO, J.:

On April 24, 1992, the Court of Appeals ¹affirmed the conviction of appellant MARIO FABRO Y ARQUIZA for the rape of private complainant, REBECCA SEGUANCIA. He now seeks his acquittal on the ground that the prosecution failed to prove his guilt beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles virtual law library

In the Information, the prosecution detailed the commission of the rape by appellant, as follows:

That on or about the 14th day of May, 1989, in Tamat, barangay Trenchera, municipality of Tayug, province of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused (appellant herein), by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with Rebecca P. Sequancia against her will and consent, to her damage and prejudice.

At the time of the incident, private complainant was working for Reyval Lopez as one of his five full-time, live-in maids. Among her co-workers was Janet Fabro, appellant's wife. Appellant previously worked for Lopez, but was no longer in his employ when the alleged rape took place.chanroblesvirtualawlibrarychanrobles virtual law library

As private complainant ²related it, her sad story began at around nine o'clock in the evening of May 14, 1989, when Lopez sent her to buy band-aids at a nearby store. Unable to make the purchase, she proceeded to the Alicia store located within the premises of the Tayug public market. ³On her way, she passed an Ihaw-Ihaw restaurant where she saw appellant. Without uttering a word, he started to trail her. She asked him to stop following her, but her words fell on deaf ears. ⁴chanrobles virtual law library

Finding the Alicia store already closed, private complainant headed back home to Lopez's house. Appellant suggested they go to his cousin to buy
band-aid. She ignored him. Suddenly, he grabbed her left hand and dragged her for about eight (8) to ten (10) meters to a dark, deserted area. He kissed her on the lips. ⁵ She struggled, ⁶ somehow managing to bite his hand. She tried to escape, but he was able to grab and pull her back. He wrapped his hands around her neck, as if to strangle her. It was then that she lost consciousness. She could not remember how long she passed out. ⁷chanrobles virtual law library

It took a gunshot of unknown origin to rouse private complainant back to consciousness. She found herself lying on the ground with appellant by her side, zipping up his pants. ⁸Her back and private parts hurt, and she discovered sticky matter on her sexual organ. She also realized that her pants were no longer on her. She silently located and put them back on. ⁹ Appellant fled when a good samaritan, one Jeffrey Cabrales, arrived. ¹⁰chanrobles virtual law library

Private respondent, accompanied by Cabrales, reached Lopez's residence at around ten o'clock that same night. ¹¹Immediately and tearfully, ¹²she reported to Lopez her violation by appellant. ¹³That same night, Lopez brought her to the police station, where she filed her complaint. ¹⁴They proceeded to the Eastern Pangasinan District Hospital (EPDH) where she underwent a physical and internal examination conducted by Dr. Leo Gerardo ¹⁵which yielded the following results:

MEDICAL CERTIFICATE

May 16, 1989
Date

83853 - 165
Record Number

TO WHOM IT MAY CONCERN:chanrobles virtual law library

According to the hospital REBECCA SEGUANCIA of Brgy. Toketec Tayug, Pangasinan was examined/treated in this hospital on May 15, 1989 with the following findings and/or diagnosis:

= Linear Abrasion, 5 cm. Anterior Aspect of (1) Elbow.
= Speculum/I.E. Findings:
- Vaginal orifice admits one finger with resistance.
- Nulliparous introitus.
- Contussions at the lateral aspect (one at each side) of the labia minora.
- No fresh hymenal lacerations.
- No vaginal lacerations.
= Vaginal smear for presence of spermatozoa requested. (see attached result).chanrobles virtual law library

REMARKS: patient would need medical attendance and/or incapacitation for . . . . days barring complications.chanrobles virtual law library

(sgd)
LEO GERARDO BAUTISTA, M.D.,
Attending physician
Lic. No. 61044 ¹⁶chanrobles virtual law library

The vaginal smear showed private complainant was negative for spermatozoa (Exh. 2). The following day, she returned to the police station and gave her formal statement and surrendered the denim pants and orange t-shirt she wore during the attack. ¹⁷chanrobles virtual law library

The 21-year-old appellant offered a different version of what transpired on that fateful night of May 14, 1989. According to him, he was visiting his wife at Lopez's store when private complainant dropped by. She asked him to accompany her to the public market. He was initially reluctant. Nonetheless, he accommodated the request when his wife told him to go. ¹⁸chanrobles virtual law library

On their way to the market, appellant and private complainant took the road leading to the Ihaw-ihaw restaurant. When they got to the market, she told him "to go home because we have no more to buy." ¹⁹Instead, he proposed they go to his Ninong Jesus Divia. She agreed. On their way, he kissed and started to undress her. She did not stop him, and even responded to his amorous advances by embracing him. ²⁰Appellant felt that private complainant was willing to completely give herself to him. They did not, however, consummate their love-making. They merely spent the night kissing each other. ²¹chanrobles virtual law library

Appellant affirmed that a gunshot was fired that night while he was lying with private complainant on the ground. Upon hearing the shot, they stood up, and she looked for her slippers. It was then that Jeffrey Cabrales appeared and accompanied private complainant home. Appellant also went home. ²²chanrobles virtual law library

On cross-examination, appellant admitted that, after he was charged with rape, he sent a letter to Lopez and his common-law wife, asking for their forgiveness. The letter reads as follows:

Dear Kuyang & Manang,chanrobles virtual law library

Una ay hayaan niyo munang batiin ko kayo ng magandang umaga o hapon po sa inyo, at sana'y datnan kayo ng sulat kong ito na nasa mabuting kalagayan.chanroblesvirtualawlibrarychanrobles virtual law library

Kuyang & Manang, hindi ko po alam kong paano ko sisimulan ang sulat ko sa inyo. Alam ko po na ako'y nagkasala sa inyo, at alam ko rin pong hindi lang basta-basta kasalanan. Ito'y halos wala ng kapatawaran. Ngunit nandito po ako ngayon sapagkat tinanggap ko naman ang aking pagkakasala - sa katunayang ito ay hindi ko naman tinalikuran o tinakbuhan bagkos ay hinintay ko po ang araw ng paghatol o pagkuha nila sa aking at taos puso't walang pagtutol na sumunod dahil alam kong ito ang nararapat. Sa kasalukuyan ay heto na ako, nagtitiis subalit walang halong pagdaramdam. At sa totoo lang po Kuyang & Manang, alam nang Diyos kung paano ko pinagsisisihan ito sa maniwala po kayo o hindi. Talaga pong hindi ko alam. Wala po talaga ako sa sariling pag-iisip o katauhan kung bakit at pa'no ko nagawa 'yon. Sila o siya pang itinuturing ko na mga kapatid lalo na sa inyo Kuyang & Manang na kahit noon pa ay nararamdaman ko ng kayo ang makapagbabago sa akin at heto nga po tinatanggap ko ang parusa. Naririto po ako nagtitiis alang-alang sa kapatawaran. Nagpapasalamat po ako ng taos sa aking puso sa ginawa ninyong ito sa akin sapagkat iminulat niyo ako sa aking mga kasalanan at itinuro sa tiyak na pagbabago. Nagbabago ako nang dahil sa inyo kayat Kuyang & Manang maraming-maraming salamat po sa inyo. Alam ko pong hindi kayo maniniwala ngunit alam ng Diyos at balang araw ito ay mapapatunayan niyo rin kaya't nagmamalik-tuhod po ako sa inyo na sana po ay patawarin niyo na po ako sa aking nagawang kasalanan.chanroblesvirtualawlibrarychanrobles virtual law library

Kuyang & Manang bigyan niyo pa po ako ng isa pang pagkakataon upang kami'y magbagong buhay. Alam ko po Kuyang may pamilya ka rin at mga anak at naranasan niyo na rin po kong paano ang hirap at sakit ng mawalay sa kanila. Matiis niyo po kaya Kuyang ang ganito lalo na nga't nasa maselang kalagayan ang asawa mo ? Higit malapit na pong manganak, matiis mo kayang wala ka sa tabi niya? Nasisiyahan po ba kayong mawasak ang isang pamilya lalo na sa oras na kailangang-kailangang ka nila kaya't luluhod po ako sa inyong harapan kung iyon ang paraan upang mapatunayan ang aking pagsisisi at pagbabago. Nasa inyo ang buhay ko. Pati na rin ang aking kalayaan ay nakasalalay po sa inyo. Kaya't Kuyang & Manang sa ikatatahimik, ikabubuo at ikabubuti ng isang pamilyang hawak mo, nagsusumamo po ako sa inyo na sana po ihulog mo na rin po sa amin ang inyong awa at habag alang-alang sa ikakalaya at sa ikakatiwasay nito. Kaya't maraming-maraming salamat sa inyong mag-asawa alang-alang sa magiging anak ko at pamilya. Huwag niyo na rin po sanang ipagkait ang isinasamba ko sa inyo lalung-lalo na ngayon higit nila akong kailangan dahil malapit na pong manganak ang asawa ko. Alang-alang po sa kanila luluhod at gagapang po ako sa harap ninyo kung iyon ang ibig niyo, makamit ko lamang ang pagpatawad niyo alang-alang sa pamilya ko. Gagawin ko ang lahat ipapangako ko po sa inyo dahil alam ko rin pong napamahal na sa inyo ang asawa ko. Kumusta na rin po yong dalawang bata si Marc at Kim. Sana naman malayo na sila ngayon sa mga sakit.chanroblesvirtualawlibrarychanrobles virtual law library

Sa inyo po ang aking buhay at kalayaang nakasalalay sa aking pamilya. Nagsisisi na po ako ngayon at naririto isinasamba at hinihingi ang pagpapatawad niyo ng dahil sa inyo nagbago ako. Kaya't maraming-maraming salamat po sa inyo Kuyang & Manang.

Lubos na Gumagalang at
humihingi ng tawad

Mario A. Fabro

He explained that he wrote the letter to his former employers because he was being charged with a crime he did not commit. ²³ He also denied any romantic relationship between him and private complainant. Allegedly, they were mere friends. ²⁴chanrobles virtual law library

After trial, the RTC of Tayug, Pangasinan, Branch 52, ²⁵convicted appellant for the crime of rape, thus:

In resume, the Court hereby finds accused Mario Fabro y Arquiza, GUILTY, beyond reasonable doubt, and hereby sentences accused to suffer the penalty of Reclusion Temporal in its maximum period, from 17 years, 4 months - 1 day to 20 years, but considering the Indeterminate Sentence Law, hereby imposes the penalty of Prision Mayor - 10 years, 1 day to 20 years Reclusion Temporal as maximum. Finally, accused is hereby ordered to pay the complainant Rebecca Seguancia the sum of P20,000.00 as moral damages with cost de oficio.chanroblesvirtualawlibrarychanrobles virtual law library

Accused being detained for failure to post his bail bond at the provincial jail in Lingayen, Pangasinan from the time of arrest on August 17, 1989 up to the rendition of the decision, is entitled to a preventive imprisonment of 1 year, 4 months and 22 days to be credited to him and deductible from his principal penalty.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

On April 24, 1992, the Court of Appeals affirmed appellant's conviction, but modified the trial court's judgment by imposing instead the penalty of reclusion perpetua.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant now forwards the following -

ASSIGNMENT OF ERRORS.

Ichanrobles virtual law library

THE COURT A QUO ERRED IN CONVICTING ACCUSED (APPELLANT) MARIO FABRO Y ARQUIZA DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THAT HE COMMITTED ACTS CONSTITUTING THE CRIME CHARGED AGAINST HIM.

IIchanrobles virtual law library

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.

IIIchanrobles virtual law library

THE HONORABLE COURT OF APPEALS ERRED IN INCREASING THE PENALTY OF ACCUSED (APPELLANT) TO RECLUSION PERPETUA FROM THAT IMPOSED BY THE TRIAL COURT WHICH IS AN INDETERMINATE PRISON TERM OF 10 YEARS AND 1 DAY OF PRISION MAYOR AS MINIMUM TO 20 YEARS OF RECLUSION TEMPORAL AS MAXIMUM.

We cannot exculpate appellant. The evidence proved his guilt beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles virtual law library

To establish rape under Article 335 (1) of the Revised Penal Code, two elements must be shown: that the accused had carnal knowledge of the offended party; and that coitus was done through the use of force or intimidation. This the prosecution was able to do in the case at bench.chanroblesvirtualawlibrarychanrobles virtual law library

The use of force by appellant on private complainant on the night of May 14, 1989 was set forth clearly in her testimony. She said that he grabbed his hand and dragged her for about ten (10) meters. When he struggled with him, he held her by the neck, choked her, and caused her to faint. Even appellant admitted private complainant's unconsciousness in his direct examination, thus:

xxx xxx xxx

Atty. Ferrer -chanrobles virtual law library

Q When she (referring to private complainant) testified, she stated that you strangled her by her neck and when you did that, she lost consciousness. What can you say about that?chanrobles virtual law library

A No sir, I did not do that.chanroblesvirtualawlibrarychanrobles virtual law library

Q Likewise, when she lost consciousness, that is when you unset her pants. What can you say about that?chanrobles virtual law library

A Yes, sir.

Q You mean to tell us that when she lost consciousness, that is the time you unset her pants? Is that what you mean?chanrobles virtual law library

Prosecutor Bince -chanrobles virtual law library

Leading, your Honor.chanroblesvirtualawlibrarychanrobles virtual law library

Court -chanrobles virtual law library

Reform your question.chanroblesvirtualawlibrarychanrobles virtual law library

Atty. Ferrer -chanrobles virtual law library

Q At what point and time did you unset the zipper of complainant Rebecca? Is it during the time she was unconscious or during the time she was conscious?chanrobles virtual law library

Witness -chanrobles virtual law library

A When she was still conscious, sir.

xxx xxx xxx ²⁶chanrobles virtual law library

Also, Reyval Lopez testified that when private complainant arrived home that night, her hair was in disarray and there were bruises on her arms. ²⁷Further, her medical examination revealed that she had a linear abrasion on the anterior aspect of her left elbow. All these establish the force and physical violence exerted on private complainant by appellant.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant, however, argues that the fact of sexual intercourse was insufficiently established by the prosecution. He pounds on private complainant's failure to give direct testimony on the matter, as well as the result of her physical examination. We are not persuaded.chanroblesvirtualawlibrarychanrobles virtual law library

As we held in the case of People v. Palapal, 114 SCRA 783 (1982) -

It is but to be expected that if the sexual assault was committed against the victim while the latter was in a state of unconsciousness, she would not be able to testify on the actual act of sexual intercourse. It is precisely when the sexual intercourse is performed when the victim is unconscious that the act constitutes the statutory offense of rape (e)specially when, as in the instant case, the loss of consciousness was the result of appellant's act of violence. . . .

We likewise ruled in the recent case of People v. San Pedro, 218 SCRA 384 (1993), viz.:

. . . Of course, an unconscious woman will not know who is raping her. If the defense theory were to be adopted, then it would be impossible to convict any person who rapes an unconscious woman, except only where a third person witnesses the crime. Henceforth, the clever rapist would simply knock his potential victim out of her senses before actually raping her, to be later immunized from conviction for insufficient identity.chanroblesvirtualawlibrarychanrobles virtual law library

In a situation like this, the identity of the rapist is determined by the events preceding or following the victim's loss of consciousness. . . .

In the same vein, a woman raped while unconscious will not be able to narrate to the court her defloration during that state. Nonetheless, her violation may be proved indirectly by other evidence.chanroblesvirtualawlibrarychanrobles virtual law library

In the case at bench, private complainant struggled with appellant until she fainted. When she came to, she was aching, naked from the waist down, and lying next to appellant who was zipping up his pants. She found her t-shirt soiled, and upon the nest of her maidenhood lay sticky matter. All these stand as mute testimony to her wicked fate at the hands of appellant while she was unconscious.chanroblesvirtualawlibrarychanrobles virtual law library

Furthermore, the results of private complainant's physical examination does not negate the commission of rape. While the doctor found no vaginal or hymenal laceration or spermatozoa in her private parts, appellant's acquittal does not follow. It is settled that neither complete penetration ²⁸nor ejaculation ²⁹is necessary to constitute rape. What is essential is that there be penetration of the female organ, no matter how slight. ³⁰chanrobles virtual law library

In the case at bench, as correctly found by the Court of Appeals, the "medico-legal findings showed contusions on each side of the labia minora which shows that an object was forced into the vaginal orifice. " ³¹The fact of such incomplete penetration may be culled, as well, from the testimony of appellant, when he declared to the court during direct examination that:

xxx xxx xxx

Q When she (referring to private complainant) opened everything according to you, what do you mean by that?chanrobles virtual law library

A That she will give, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What is that?chanrobles virtual law library

A That she will give herself to me, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Did she do that to you?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What did you do next when she surrendered her freedom to you ?chanrobles virtual law library

A I used her, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Court -chanrobles virtual law library

Continue.chanroblesvirtualawlibrarychanrobles virtual law library

Atty. Ferrer -chanrobles virtual law library

Q You said you used her, what do you mean by used her?chanrobles virtual law library

A That it will not enter, sir.

xxx xxx xxx ³²chanrobles virtual law library

By his own admission, appellant "used" private complainant, but "it will not enter." ³³Stated otherwise, he had coitus with private complainant, but his sexual organ would not enter hers completely.chanroblesvirtualawlibrarychanrobles virtual law library

Clearly, appellant had sexual intercourse with private complainant through the use of force. He was, thus, correctly convicted of rape by both the trial court and the Court of Appeals.chanroblesvirtualawlibrarychanrobles virtual law library

In addition, we note the ranting letter appellant wrote to Reyval Lopez and his common-law wife showing his guilt. Most telling is that line where he writes, "Wala po talaga ako sa sariling pag-iisip o katauhan kung bakit at pa'no ko nagawa 'yon. Sila o siya pang itinuturing ko na mga kapatid. . ." (I was not in my right mind that I did that to him/her or they who I consider siblings.) In his testimony, appellant admitted that private complainant was his barkada, his friend, and that he looked up to her like a sister. Clearly, he was writing about the dastardly deed he committed against her. Indeed, he could not offer any other sensible explanation for his letter.chanroblesvirtualawlibrarychanrobles virtual law library

Finally, the Court of Appeals was correct in modifying the penalty imposed on appellant by the trial court. As early as 1974, ³⁴this Court has held that for offenses on which the law prescribes the single, indivisible penalty of reclusion perpetua, it is the first paragraph of Article 63 of the Revised Penal Code, ³⁵and not the Indeterminate Sentence Law, ³⁶which applies. ³⁷Under Article 335 of the Revised Penal Code, "the crime of rape shall be punished by reclusion perpetua."chanrobles virtual law library

IN VIEW WHEREOF, the instant appeal is DISMISSED and the Decision, dated April 24, 1992, of the Court of Appeals in CA-G.R. CR No. 11030 convicting appellant MARIO FABRO Y ARGUIZA and sentencing him to reclusion perpetua is AFFIRMED IN TOTO. Costs against appellant.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Narvasa, C.J., Regalado and Mendoza, JJ., concur.

Endnotes:

1 Through its Tenth Division, composed of Associate Justices Fidel P. Purisima, Minerva P. Gonzaga-Reyes, and Consuelo Ynares-Santiago.chanrobles virtual law library

2 Private complainant stood as sole eyewitness to the rape. When she testified in May, 1990, she was seventeen (17) years old, single, and a resident of Brgy. Toketec, Tayug, Pangasinan. She was then unemployed. Her mother, Lolita Sequancia, Pfc. Hermelito Diaz, and Reyval Lopez corroborated her testimony.chanrobles virtual law library

3 TSN of May 10, 1990, p. 3.chanrobles virtual law library

4 Ibid., at p. 4.chanrobles virtual law library

5 Id., at p. 5.chanrobles virtual law library

6 Id., at p. 6.chanrobles virtual law library

7 Id.chanrobles virtual law library

8 Id.chanrobles virtual law library

9 Id., at p. 6.chanrobles virtual law library

10 TSN of May 10, 1990, pp. 6-7.chanrobles virtual law library

11 TSN of April 18, 1990, p. 10.chanrobles virtual law library

12 Ibid.chanrobles virtual law library

13 TSN of May 10, 1990, p. 7.chanrobles virtual law library

14 Ibid.chanrobles virtual law library

15 Testified on April 18, 1990.chanrobles virtual law library

16 Original Records, p. 9.chanrobles virtual law library

17 Id., at p. 8; TSN of May 17, 1990, pp. 6-8.chanrobles virtual law library

18 TSN of August 15, 1990, p. 11.chanrobles virtual law library

19 Ibid., at p. 12.chanrobles virtual law library

20 Id., at pp. 13-14.chanrobles virtual law library

21 Id., at p. 15.chanrobles virtual law library

22 Id., at pp. 16-17.chanrobles virtual law library

23 TSN of October 25, 1990, p. 6.chanrobles virtual law library

24 TSN of August 15, 1990, p. 19.chanrobles virtual law library

25 Presided by Executive Judge Pedro C. Cacho. The case was docketed as Criminal Case No. T-1009.chanrobles virtual law library

26 TSN of August 15, 1990, pp. 14-15.chanrobles virtual law library

27 TSN of April 18, 1990, p. 10.chanrobles virtual law library

28 See People v. Castro, 196 SCRA 679 (1991); People v. Bacalzo, 195 SCRA 557 (1991).chanrobles virtual law library

29 See People vs. Dabon, 216 SCRA 656 (1992); People vs. Pomentel, 216 SCRA 375 (1992); People v. Generalao, Jr., 213 SCRA 380 (1992); People v. Yambao, 193 SCRA 571 (1991); People v. Banayo, 195 SCRA 543 (1991).chanrobles virtual law library

30 See People v. Castillo, 197 SCRA 657 (1991) People v. Tongson, 194 SCRA 257 (1991); People v. Genores, 193 SCRA 263 (1991).chanrobles virtual law library

31 Decision of the Court of Appeals, dated April 24, 1992, p. 5.chanrobles virtual law library

32 TSN of August 15, 1990, p. 15.chanrobles virtual law library

33 The phrase "to use," when taken in the context of amorous activities, has a sexual connotation. It is a colloquial euphemism for sexual intercourse.chanrobles virtual law library

34 In People v. Amores, 58 SCRA 505 (1974).chanrobles virtual law library

35 It 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."

36 Act No. 4103, as amended, December 5, 1933.chanrobles virtual law library

37 See also People v. Rebulado, 206 SCRA 763 (1992); People v. Cruz, 203 SCRA 682 (1991); and People v. Galang, 174 SCRA 454 (1989).