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[ G.R. No. 113284. September 11, 2000]
EDUARDO SARMIENTO vs. CA, et al.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated SEPT 11 2000.
G.R. No. 113284 (Eduardo Sarmiento vs. Court of Appeals and the People of the Philippines.)
Eduardo Sarmiento (accused-appellant) moves for a reconsideration of the resolution of this Court, dated 14 November 1994, denying his petition for review on certiorari as it failed to sufficiently show that the Court of Appeals committed any reversible error n rendering the questioned judgment.
The CA affirmed in toto the decision of the Regional Trial Court, Branch 146 of Makati City convicting accused-appellant of the crimes of acts of lasciviousness (Criminal Case No. 6639) and robbery (Criminal Case No. 6640). Accused-appellant was sentenced to suffer the penalty of imprisonment from six months of arresto mayor as minimum, to two years, four months and one day of prision correccional as maximum in Criminal Case No. 6639 and from four years and two months of prision mayor, minimum period, as maximum in Criminal Case No. 6640. Both penalties included the accessory penalties of the law and accused-appellant was further ordered to indemnify the offended party the amount of P171,250.00 representing the value of the articles taken in Criminal Case No. 6640.
The grounds relied upon by accused-appellant in seeking reconsideration are as follows:
I
THE ALLEGED IDENTIFICATION OF THE ACCUSED VIOLATES HIS CONSTITUTIONAL RIGHT TO COUNSEL IN ALL STAGES IN THE INVESTIGATION INTO THE COMMISSION OF A CRIME.
II
FACTUAL FINDINGS OF THE LOWER COURT WHO TRIED THE CASE AND HEARD THE WITNESSES ARE NOT CONCLUSIVE IF A DIFFERENT JUDGE PENNED THE DECISION;
III
THE ACCUSED'S DEFENSE OF ALIBI WAS SUFFICIENTLY AND CREDIBLY ESTABLISHED;
IV
THE CRIME OF ACTS OF LASCIVIOUSNESS WAS NOT PROVEN BEYOND REASONABLE DOUBT; AND
V
THE CRIME OF ROBBERY WAS NOT PROVEN BEYONDREASONABLE DOUBT. 1 Rollo, p. 167.
The motion for reconsideration is bereft of merit.
The issue relating to the lack of counsel during the identification of accused-appellant is now only being raised for the first time. This objection is thus deemed waived for failure of accused-appellant to raise it at the opportune time, i.e., before he entered his plea. In any case, "the inadmissibility of a police line-up identification of an uncounseled accused should not necessarily foreclose the admissibility of an in-court identification."2 People vs. Lapura, 255 SCRA 85 (1996).2 In this case, when Odette Lacson (the offended party) took the witness stand, accused-appellant was not present. The parties then agreed to stipulate that had accused-appellant been present, he would have been positively identified by the witness as the perpetrator of the crimes in this case.3 TSN, 4 June 1985, p. 4.
Contrary to accused-appellant's assertion, the fact that the judge who tried the case was different from the judge who penned the decision does not in any way taint the same. It is well-settled that "the efficacy of a decision is not necessarily impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial, unless there is showing of grave abuse of discretion in the factual findings reached by him."4 People vs. Gementiza, 285 SCRA 478 (1998) There is no such showing in this case. In fact, the findings and conclusions arrived at by Judge Salvador S. Tensuan, the judge who penned the decision, were substantially based on and drawn from the factual findings of judge Jose L. Coscolluela Jr., the judge who presided at the trial. A perusal of the decision shows that accused-appellant's culpability was established only after a judicious consideration of the evidence presented by both parties during the trial.
Anent accused-appellant's claim that his alibi had been credibly established, suffice it to say that it cannot prevail over the positive identification of accused-appellant as the perpetrator of the crimes. Indeed, "positive identification, where categorical and consistent and without any showing of ill motive on the part of witnesses testifying on the matter, prevails over alibi and denial which if not substantiated by clear and convincing evidence are negative and self-serving evidence undeserving of weight in law."5 People vs. Enriquez, 292 SCRA 656 (1998)
Finally, the last two grounds raised by accused-appellant in his motion for reconsideration that his guilt for the crimes of acts of lasciviousness and robbery was not established beyond reasonable doubt are belied by the following findings and conclusions of the CA:
Under Article 336 of the Revised Penal Code, the crime of acts of lasciviousness is committed by a person who commits any act of lasciviousness or lewdness, under any of the following circumstances: a) by using force or intimidation; b) when the offended party is deprived of reason or otherwise unconscious; or c) when the offended party is another person of either sex. The motive or intension of the wrongdoer in the commission of the offense is of no importance, because by the very definition of the offense, the very essence of lewdness is inferred from the nature of the acts themselves and environmental circumstances (People vs. Bailoses, 2 Phil. 49; People vs. Balbay, 21 SCRA 1119). Thus, the intention of the offender need not be proved in order for the offender to be found guilty of the said crime. What is important to determine is whether the acts narrated by the complainant/offended party constitute acts of lasciviousness. In this case, the acts perpetrated by appellant in taking Odette to a vacant lot, in holding her by the chin to force her face to face him, in ordering her to kiss him and doing this for the second time when she evaded his face, and in slipping his right hand on her right breast are clear abuses directed against her chastity.
The defense argued that appellant could not have done those acts, because at the time when the incident happened, he was to be wed to a lady of beauty and prominence four days away; and that he could not have been actuated by any motive, because by committing those acts, he had nothing to gain but everything to lose. The arguments merit no serious thought. That the offender was not motivated by lewd designs is of no importance in crimes of acts of lasciviousness, motive of lascivious acts is unessential, since the essence of lewdness is the very acts themselves. Indeed, the very acts of lasciviousness, which are purely in one's mental process, is discernible by the overt acts committed.
The insistence of the defense that the acts of appellant may well fall under "unjust vexation" is not meritorious. As discussed earlier, the acts done by appellant, by themselves show the presence of lewd designs. For, at the expense of being repetitive, the offender, in the wee hours of the morning, brought Odette to a vacant lot located at a dead-end road which is poorly lighted, and, except for the security guard at the guard house of the nearby Ecology Village, whose presence the offender could not have known from the onset, there was no other person around. Under those settings, beyond public's view, the prosecution's evidence show that by means of violence and intimidation, appellant made advances on Odette inside his car with closed windows and locked doors. And proof that there were already intimidating acts by him on her before they reached the dead-end road, the offender in fact announced that it was a hold-up while they were about to turn right at Pasong Tamo. Trembling and in the verge of tears, her fears were further heightened when she saw him trying to reach for something on his left with his left hand giving the apprehension [sic] that he was armed. And when he saw her in tears, he said to her "Ayaw ko ng ganyan. Gawin mo na lang ang gusto ko, hindi ka masasaktan," otherwise, "Sasaksakin kita." Her fears and forebodings continued until they reached the dead-end road. All of them are discernible proof of his evil designs, not merely to satisfy a "silly whim," but to derive vicarious pleasures. Hence, the element committed is abusos dishonestos.
Guided by the light of the circumstances surrounding the incident, the trial court did not err in according weight and credit to Odette's testimony. Moreover, she would not have gone to camp Crame, drag herself to court and suffer humiliation on the witness stand merely for the purpose of implicating a person whom she did not even know before. On the other hand, for her courageous acts to come out and complain, to testify to and point to the accused, it must be for the sole end of vindicating the wrong done to her.
The accused was convicted of Robbery in Criminal Case 6640, for taking Odette's bag which contained her wallet and assorted jewelries. The loss, as found by the trial court, amounting to P171,250.00, finds sufficient basis in the testimonies of the taxi driver Pablo Go, security guard Jaime Trampe, Capt. Raul Gonzales, household helper Jocelyn Canillo and Odette Lacson. 6 CA Decision, dated 30 September 1993, pp. 11-12.
ACCORDINGLY, premises considered, the Motion for Reconsideration is hereby DENIED.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
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