ConsolidatedAppelleeBrief

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Republic of the Phil ippines

SUPREME.COURT

Mani la

G .R . N os. t41660~64

(C rim in al C ase N o. Q ~96~66684

FOR: MURDER

R egion al Trial C ourt

N ation al C ap ital Judicia l R egion

Branch lO3, Quezon City

P EO PL E O F THE PHIL IP PIN ES

Plaintiff-Appellee

~ ve rsus ~

SP02 'CESAR FO RTUNA V ABUDO ,

LE ONIDO LUMANDG V lUISTRO,

RAMESES DE JE SU S Y C ALMA,

JOEL DE JESUS V VALDEZ,

AUGUSTO SANTOS V GALANG

Accused-Appel lants

* * ~ * * * * * * * * * ** * * * * * * * * * * * * ** * * * * * * * * * * * * ** * * * * * * * * * * * * ** * * * * * * * * * * * ** * * * * * * * * ~ *

CONS.OLlDATED APPELLEE'S BRlEF* * * * * * * * * * * * * * * * * * * * * * * * * * * * * ~ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Sol ic ito r G e n era l ALFREDO l.BENIPAVO

A ss is ta nt S olic ito r G e ne ra l AMV C . LAZARO-JAVIER

Solicitor ROM EO R . RAM OlETE

O ffice of the Solic itor G en eral

'134 Amorsolo St., L ega sp i V il ta ge

M akati C ity

For th e A pp ellee

ATTY . SOLIM AN M . SANTOS, JR .

C oun se l for A pp ellan t L . Lumanog

18 M arip osa St., C ubao

1109 Quezon C ity

ATT Y. G RENALVN V. VIR TU SIO

C ounse l for A ccused app ellan t R. de Je sus

Suite 506 P a ci fi c P la za Condom i ni um

Pearl D rive , O rtigas Cen ter, P as ig C ity

A TT Y. A RLE NE G . lA PU Z-U RE TA

Counse l for Appellan t Cesar Fortuna y Abudo

Uni t 1241, City and Land M ega P la za

ADB A ve., cor. Garnet Road, Ortigas

Center , 1605 Pasig City



- , • •

SUBJECT INDEX

STATEM ENT OF THE CASE

COUNTERSTATEM ENT OF FACTS

Prosecution evidence

Defense evidence

ASSIGNM ENT O F ERRO RS

ARGUMENTS

The trial court did not err in

giving credence to Freddie

Alejo's identification of

appellants as the persons

who murdered Col. AbadiIla.

Appellants' alibi and denial

cannot prevail over theirpositive identification by

Freddie Alejo.

Appellants' conviction

rests on the positive

identification by

Freddie Alejo and not

on the alleged illegally

extracted confessions.

Ballistics examination

results are inconclusive

and cannot prevail over

the positive identification

made by Freddie Alejo.

The trial court correctly

appreciated the presenceof treachery and evident

premeditation.

Page No.

1

11

14

16

17

23

26

28

29

I;



Page No.

The constitutionality of the

death penalty had long beenjudicially settled. 32

CONCLUSION AND

RECOMMENDATION 33

PRAYER 36

AUTHOR IT IE S C ITED :

People vs. Obello

284 SCRA 79, 89 [1998] 22

People vs. Platilla

G.R. NO. 126123, March 9, 1999 23

People vs. Ballesteros

285 SCRA 438, 446 [1998] 24

Peoplevs. De Roxas

241 SCRA 695 [1995] 24

People vs. Castaneda

252 SCRA 247 [1996] 24

People vs. Waggay 25

218 SeRA 742 [1993]

People vs. Joya

227 SCRA [1993] 25

People vs. Villa blanca

316 SCRA 14 [1999] 26

Draculan vs. Donato 27

85 SCRA 267 [1978]

People vs. Dumdum 30

92 SCRA 198 [1978]

People vs. Rodico

249 SeRA 309.321 [1995] 30

Peop le v s. Ta\av

1 0 1 S e R A 3 3 2 1 1 9 8 2 ) 30



Page No.

People vs, Penones

200 SeRA 624 [1991] 31

People vs. Baway

350 SeRA 33 [2001J 32

People vs. Echegaray

267 SeRA 682 [1997J 32

People VS. Dones

254 SeRA 696 [1996] 33

Valenzuela vs. Court of Appeals

253 SeRA 303 [1996] 34

People vs. Teehankee Jr.

249 SeRA 54, 115 [1995] 35

People vs. Rabanes

208 SeRA 768 [1992} 36 .



REPUBLIC OF THE PHILIPPINES

SUPREME COURT

MANILA

En Bane

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus - G.R. NOS. 141660-64

(CRIM.CASENO. 96-66684,

Regional Trial Court ofQuezon City, Branch 103)

SP02 CESAR FORTUNA, ET AL.,

Accused -Appellants.

x=====~====================x

CONSOLIDATED

APPELLEE'S BRIEF

STATEMENT OF THE CASE

This is an automatic review of the Joint Decision dated

July 30, 1999 of the Regional Trial Court of Quezon City,

Branch 103, convicting SP02 Cesar Fortuna y Abudo,

Rameses de Jesus y Calma, Leonardo Lumanog y Luistro

(a.k.a. Leonida or Lenido), Joel de Jesus y Valdez, and

Augusto Santos y Galang of the crime of murder and

sentencing each to suffer the death penalty.



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Appellants were charged with murder in five (5) separate

Informations which uniformly read:

That on or about the 13th day of

June, 1996, in Quezon City, Philippines,

the above-named accused, conspiring,

confederating with several other persons'

whose true names, identities,

whereabouts and other personal

circumstances of which have not as yet

been ascertained, and mutually helping

one another, did then and there willfully,unlawfully and feloniously, with intent to

kill by means of treachery, and with

evident premeditation in consideration of

a price, reward or promise, and taking

advantage of superior strength, attack,

assault and employ personal violence

upon the person of COL. ROLANDO

ABADILLAYNOLASCOby then and there

shooting the latter. with the use of

different kinds of firearms, hitting him on

the different parts of his body, thereby

causing the instant and immediate cause

of his untimely death, to the damage and

prejudice of the heirs of the said COL.

ROLANDOABADILLAYNOLASCO.

CONTRARYTOLAW.

On arraignment, appellants pleaded not guilty.



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After joint trial, the lower court rendered the assailed

decision, the dispositive portion of which reads:

ACCORDINGLY,judgment is hereby

rendered as follows:

xxx xxx xxx

In Criminal Case No. Q-96-66684,

for Murder:

1. Accused Arturo Napolitano y

Caburnay is hereby ACQUITTED;

2. Accused SP02 Cesar Fortuna y

Abudo, Rameses de Jesus y Calma,

Leonardo Lumanog y Luistro (a.k.a.

Leonida or Lenido), Joel de Jesus y

Valdez, and Augusto Santos y Galang arehereby found GUILTYbeyond reasonable

doubt as co-principals of the crime ofMURDER as defined and penalized in theRevised Penal Code for the death of ex-

Col. Rolando Abadilla y Nolasco with the

aggravating circumstances of treachery

(absorbing abuse of superior strength)

and evident premeditation and they are

hereby each sentenced to suffer the

penalty of DEATH;

3. Accused Lorenzo de los Santos ydela Cruz is hereby ACQUITTED.



\

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People VS. SP02 Fortuna, et al.,

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On the civil aspect, accused SP02

Cesar Fortuna y Abudo, Rameses de

Jesus y Calma, Leonardo Lumanog y

Luistro (a.k.a. Leonido or Lenido), Joel deJesus y Valdez and Augusto Santos y

Galang are hereby ordered jointly and

solidarily to pay the heirs of the deceased

ex-Col. Rolando Abadilla y Nolasco the

following:

1. As actual damages, the sum of

P294,058.86;

2. As indemnity damages, the sumofP50,OOO.OO;

3. As moral damages, the sum of

P500,000.OO;

4. As exemplary damages, the sum

ofP500, 000.00.

The firearm, one (1) Smith &

Wesson .38 caliber revolver with Serial

No. 980974, subject of Case No. Q-96-

66680 is hereby ordered returned to

Lorenzo delos Santos y dela Cruz.

The firearm, one (1) Armscor .38

caliber revolver with Serial No. 21907,

subject of Case No. Q-96-66683 is hereby

ordered forwarded to the PNP Firearms

and Explosives Division, Camp Crame,

Quezon City for safekeeping in

accordance with law as said firearmbelongs and is licensed to accused

Leonardo Lumanog y Luistro (a.ka.

Leonido or Lenido) who has been

sentenced in Case No. Q-96-66684 for

4



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Murder, until further orders from thiscourt.

Costs against the accused.

Let the entire records of these casesbe transmitted forthwith to the Honorable

Supreme Court for automatic review, in

accordance with law and the Rules ofCourt.

SO ORDERED.

(Record, pp. 1027 to 1028)

On August 25, 1999, Leonido Lumanog filed a motion for

reconsideration. Pending resolution thereof, he also filed a

motion for new trial. Joel de Jesus followed suit and filed a

similar motion. The People opposed all their motions.

On November 25, 1999, Leonida Lumanog, through his

new counsel, Atty. Soliman Santos, filed a Supplement to his

Motion for Reconsideration advancing for the first ttrr.e the

theory that the killing of Col. Rolando N. Abadilla was

perpetrated by the Alex Boncayao Brigade (ABB). He

subsequently filed several other pleadings that were all



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People V5. SP02 Fortuna, et al.,

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intended to support the ABBtheory, such as an Addendum to

Supplement, Manifestation and Submission, Manifestation

and Motion, Memorandum toClarify Pending

Incidents/Motions, Memorandum on Nature of Proposed

Additional Evidence,' and Manifestation 'on the Posture and

Attitude of the Prosecution.

On January 19, 2000, UP Parish Priest Fr. Roberto P.

Reyes, assisted by counsel, although not a party nor a defense

witness in the case, filed a so-called 'Urgent Independent

Motion for Leave of Court to Present Vital Evidence' intended

also to bolster the ABBtheory.

By Order dated January 25,2000, the trial court denied

Leonida Lumanog's motion for reconsideration and all his

subsequent submissions; and considered' as abandoned or

withdrawn his motion for new trial. The trial court also denied

the motion for new trial filed by Joel de Jesus. It likewise

ordered the immediate transmittal of the record and the



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People V$. SP02 Fortuna, at aI.,

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Joint Decision dated July 30, 1999 for this Honorable Court's

automatic review.

In two (2) separate Orders dated January 26 and 28,

2000, the trial court further denied the Urgent Independent

Motion for Leave of Court to Present Vital Evidence filed by Fr.

Reyes.

On February 9, 2000, prior to the transmittal of the case

record to this Honorable Court, Leonido Lumanog filed two (2)

more pleadings maintaining the ABB theory, viz: "Final

Submiasion to this Court appending a letter of Gen. Jose M.

Calimlim of the AFP Intelligence Service relative to an alleged

unsuccessful operation of the ABB to kill Col. Abadilla" and

"Final Manifestation to the Court".

Dissatisfied with the trial court's Orders rejecting the

aforesaid motions for new trial, all the five (5) appellants

elevated the matter to this Honorable Court via a petition for

certiorari docketed as G.R. NO. 142065.



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In its Decision dated September 7,2001 (at pp. 7-9L this

Honorable Court dismissed the petition in this wise:

The instant petition for certiorari

under Rule 65 of the Rules of Court filed

by the petitioners on March 15, 2000 is

improper as the subject orders of

respondent trial judge may be

questioned only in the main case, that

is in Criminal Case No. Q-96-66684

which is already before the Supreme

Court, as of February 11, 2001., on

automatic review because of the deathpenalty imposed by the trial court on the

petitioners-accused for the killing of Col.

Abadilla.

The alleged responsibility of the

ABB in the killing of retired Col. Rolando

N. Abadilla was raised in the trial courtfor the first time on November 25, 1999

in petitioner-accused Lumanog's

Supplement to the Motion for

Reconsideration. Although denominated

as Supplement to the Motion for

Reconsideration, the same was actually a

motion for new trial as it prayed for the

reopening of the case for the introduction

of additional evidence.

Under Section 1, Rule 121 of the

Revised Rules of Criminal Procedure, amotion for new trial may be filed at any

.time before a judgment of conviction

becomes final, that is, within fifteen (15)



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days from its promulgation or notice.

Petitioner Lumanog filed his Supplement

to the Motion for Reconsideration, which

as aforesaid was actually a motion for

new trial, only on November 25, 1999 or

after the Joint Decision was promulgatedon August 11, 1999. It was denied in the

Order of January 25,2000.

The requisites for newly discovered

. evidence under Section 2, Rule 121 of the

Revised Rules of Criminal Procedure are:

(a) the evidence was discovered after the

trial; (b) such evidence could not have

been discovered and produced at the trialwith reasonable diligence; and (c) that it

is material, not merely cumulative,

corroborative or impeaching, and is of

such weight that, if admitted, will

probably change the judgment.

A perusal of the pieces of evidence,

except the Omega wristwatch, which are

sought to be presented by the petitioners

in a new trial are not newly discoveredevidence because they were either

available and could have been presented

by the defense during the trial of the case

with the exercise of diligence, such as

the alleged newspaper reports and

AFPjPNP intelligence materials on Col.Abadilla. The wristwatch allegedly

belonging to the late CoL Abadilla is

immaterial to the case of murder whilethe testimony of Fr. Roberto Reyes on the

turnover of the said wristwatch by an

alleged member of the ABB whopurportedly knows certain facts about

the killing of Col. Abadilla would be



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hearsay without the testimony in court of

the said alleged member of the ABB. xxx

Petitioners' alternative prayer that thisCourt itself conduct hearings andreceive evidence on the ABBangle is

not well taken for the reason that the

Supreme Court is not a trier of facts.

Finally, the petitioners' allegation of

bias and partiality on the part of

respondent judge can be taken up and

discussed by the herein petitioners in

their brief to be filed in G.R. Nos.

141660-64 pending before this Courtrelative to the automatic review of the

Joint Decision of the trial court in

Criminal Case No.Q-96-66684.

In view of the foregoing, it is our

view and we hold that the respondentjudge did not commit grave abuse of

discretion in issuing the subject Orders

dated January 25, 26 and 28, 2000 in

Criminal Case No. 96-66684.

This Honorable Court denied appellants' motion for

reconsideration with finality in its Resolution dated November

20, 2001 and directed that entry of judgment be made

thereon.



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In a subsequent Resolution dated September 17, 2002,

this Honorable Court also denied for lack of merit the motion

for new trial and related relief dated April 26, 2002 filed by

Leonida Lumanog.

The trial court thereupon elevated the entire case record

for this Honorable Court's automatic review.

COUNTERSTATEMENT OF FACTS

Prosecution's evidence:

On June 13, 1996, Freddie Alejowas posted as a security

guard of the premises located at No. 211 Katipunan Avenue,

Blue Ridge, Quezon City. His tour of duty was for twelve (12)

hours from 7 0 clock in the morning to 7 0 clock in the

evening (tsn, August 20, 1996, pp.13-14).

Between 7:30 and past 8 0' clock in the morning of the

same day, Freddie Alejo noticed two (2) men walking to and

from alongside Katipunan Avenue near his post (Id., pp. 15-



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G.R. NO. 141660-64


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16}. Around 8:40 in the morning, Alejo heard gunshots and

saw four (4) armed men shooting at the driver of a black car.

One of the two (2)persons who were walking to and from along

Katipunan Avenue pointed a gun at him (Id., p.39). Alejothen

saw one of the gunwielders grab the victim's clutch bag. Said

gunwielder also grabbed the victim by the neck, pulled him

out of the car and dumped him on the road (Id., p.44). Soon

thereafter, Alejoheard another gunshot (Id., p.45). One of the

gunmen ordered him: "dapa, walang makikialam". In

compliance, he sat clown and bowed his head (Id., p. 49).

When he later stood up, all the gunmen were gone. (Id., p. 68).

Freddie Alejo identified Joel de Jesus as the one who

ordered him "dapa, walang makikialam" (Id., p. 54); Leonida

Lumanog, . the gunman who shot, grabbed, dragged and

dumped the victim on the road and stole the victim's clutch

bag (Id., p. 56); Cesar Fortuna, the gunman on the right front

side (opposite the driver's seat) who also shot the victim (Id., p.

62); Augusto Santos, the gunman behind Cesar Fortuna (Id.,

p. 66); Rameses de Jesus, the gunman stationed behind



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Leonido Lumanog; and Lorenzo de los Santos, the man who

pointed a gun at Alejo and ordered him to step down ("baba")

from the guardhouse [Id., p. 59).

The victim turned out to be Col. Rolando N. Abadilla, a

well known personality during the Marcos regime. He

sustained a total of twenty nine (29)wounds, twenty three (23)

of which were gunshot wounds (tsn, September 10, 1996, pp.

13 and 19).

Col. Abadilla's widow, Susan, testified that she incurred

the total amount of P 294, 058.86 relative to her husband's

murder, viz:

1. ~ 17,820.00 (Exhibit T-3) for obituary

2. P 6,570.00 (Exhibit T-l) for burial plot

3. P 17,000.00 (Exhibit T-2) for burial plot

4. P 27,830.00 (Exhibit T-4) for marble supply

5. P 200,000.00 (Exhibit T-5) for funeral services

6. P 24,838.86 (Exhibit T-6) for repair of Honda

Accord

(tsn, January 27, 1977, p.3)



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Defense evidence:

Joel de Jesus invokes alibi alleging that in the mornin g of

June 13, 1996, he drove his tricycle on a special or chartered

trip for a passenger going to Roosevelt, Novaliches, Quezon

City. Itwas a round trip and he had to wait for his passenger

for quite sometime. He further claims that his extra-judicial

confession was forcibly extracted from him without the

assistance of counsel (tsn, August 26, 1998, p. 6-26).

Rameses de Jesus also invokes alibi, claiming that on

June 12, 1996, he, together with Leonido Lumanog and

RomeoCostibolo, went to Mabalacat, Pampanga, for a treasure

hunt in the yard of the Dinglao family, Leonido Lumanog's in-

laws. They rode in a Lancer Sedan Model 1996 owned by

Leonido Lumanog. They left Quezon City at 7 0' clock in the

evening and arrived in Mabalacat three (3) hours later. Their

diggings, however, proved to be fruitless. In the morning of

June 13, 1996, they helped in the preparations for the



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wedding anniversary of Leonido Lumanog's in-laws.

At 10 0' clock in the evening of June 14, 1996, they proceeded

to the West Fairview Polyrnedic in Fairview Subdivision,

Quezon City to see Romeo Costibolo's sick child. Itwas there

that he saw Leonido Lumanog and Romeo Costibolo being

handcuffed by several men who blindfolded and brought

Rameses de Jesus to a place where he was tortured to confess

to the killing of Col. Abadilla (tsn, March 9, 1999, p. 6-44).

For his alibi, Augusto Santos insists that on June 13,

1996, between 7 0 clock in the morning and 2 0clock in the

afternoon, he and his brother-in-law went to the Fabella

Hospital in Sta. Cruz, Manila to visit his sister who gave birth.

He also claims that his "Sinumpaang Salaysay" was forcibly

extracted from him (tsn, January 7, 1999, pp. 4-15).

SP02 Cesar Fortuna declares that in the whole morning

of June 13, 1996, he was at the Office of the Directorate for

Personnel in Camp Crame, Quezon City, following up the

reassignment papers of his fellow policemen in Cagayan de



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/

Oro. He narrates that on June 19, 1996, 11 0 clock in the

evening, while he was waiting for the mechanic of Rameses De

Jesus in the latter's shop, several armed men arrived and

asked him for the whereabouts of Rameses. Since he did not

respond, the men ordered him to come along with them.

Hewas brought to a PARACofficewhere he was again asked if

he knew where Rameses' house was. This time, SP02 Cesar

Fortuna informed them that Rameses had a house in Palmera

Subdivision, Novaliches. He was brought there but he was not

able to locate the house. Thereafter, he was blindfolded and

brought to an unknown place where he was interrogated on

his participation in the ambush-slay of Col. Abadilla, and

tortured until he was forced to make an admission (tsn,

September 16, 1998, pp. 8-60).

ASSIGNMENT OF ERRORS

In their respective briefs, appellants fault the trial court

for: (a) rejecting their respective alibis, (b) giving credence to



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eyewitness Freddie Alejo's testimony, and (c) admitting in

evidence their purportedly coerced/tortured extra-judicial

confessions. In addition, they assail the constitutionality of

the death penalty law.

ARGUMENTS

The trial court did not errin giving credence to

Freddie Alejo's

identification of

appellants as the persons

who murdered Col. AbadiUa.

In convicting appellants of murder, the trial court gave

credence to the testimony and identification made by

prosecution eyewitness, Freddie Alejo. From his guardhouse,

Freddie Alejo was able to witness closely how the crime was

committed by appellants every step of the way. He vividly

described their individual participation and how each

cooperated in ensuring Col. Abadilla's cold blooded murder.

He, thus, testified:



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Q. After you saw this incident that 4

persons shot at the driver of the black

car, what happened next, if any?

A. One of the 2 persons earlier walking

back and forth infront of me pointed a

gun at me, sir (sic).

Q. Where was that person who pointed a

gun at you positioned at that time? Put

number 5.

INTERPR.ETER:

Witness marking #5 on the

photograph.

Q. How did he point his gun at you?A. "Iniharap niya sa akin 811.g dulo ng

baril niya", ma'am.

Q. Please demonstrate how the gun was

at you.

INTERPRETER:

Witness demonstrating how the gunwas pointed at him by stretching his two

arms holding the gun pointing at him.

Q. What kind of gun was he holding if

you know?

A. Itwas a short gun, ma'am.



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Q. While this person pointed at you his

gun, what did he tell you, if any?

A. He told me to come down (baba).

Q. Did you come down?

A. No, ma'am, I did not.

Q. What else did you notice, if any, after

this person marked as #5 (identified as

Joel de Jesus) told you to come down?

A. I saw one of the suspect( s) standing to

the left grabbed the clutch bag of the

victim, ma'am.

Q. From these 4 persons, will you please

point to us who among those 4 persons

got the clutch bag of the victim by saying

the number?

A. The number 1 (identified as Leonido

Lumanog), ma'am.May we make it of record that the

witness pointed to the person positioned

on the driver side front door of the car.

Q. After your saw #1got the clutch bag of

the victim, what happened next, if any?

A. I saw him grabbed the victim by the

neck, ma'am.

Q. To whom are you referring to as the

person who grabbed the victim by the

neck?A. Number 1, ma'am.

Q. The same person who got the clutch

bag of the victim.

A. Yes, ma'am.



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Q. After this number 1 grabbed the

victim by the neck, what else did he do, ifany?

A. He pulled the victim out of the car,ma'am.

xxx

Q. After that, what happened next, if

any, after Number 1pulled out the victim

from the car, what happened next?A. He dropped the body of the victim on

the ground (road),ma'am.

Q. After he dropped the body of the

victim on the road, what else did he do

next, if any?

A. I heard another shot, ma'am.

Q. Where did the shot come from?

A. Itcame from number 1,ma'am.

Q. After you heard the shot, whathappened next, if any?

A. The person marked #5 (identified as

accused Joel de Jesus) shouted 'dapa

walang makikialam.'

Q. When this #5 shouted 'dapa walang

makikialam, ,what happened next, if any.

A. The suspects faced me, ma'am.

Q. To whom are you referring to amongthese 4 persons?



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21

INTERPRETER:

Witness pointing to numbers 2, 3

and 4 (identified as Rameses de Jesus,.

Cesar Fortuna & Augusto Santos).

Q. When these numbers 2, 3, and 4

faced you, what happened next, if any?

A. The companion of number 5 who were

(sic) earlier walking to and from in front

of me faced me and pointed his gun at,

me, rna am.

Q. Where was this person whom you arereferring to positioned at that time in

relation to this picture marked as Exhibit

H?

INTERPRETER:

Witness marking the photograph as

#6 to show the position of that person.

xxx

Q. After this #6 (identified as Lorenzo

de los Santos) faced you and pointed his

gun at you, what did you do, if any?

A. I come down (sic),ma'am.

Q. How did you come down?

A. I sat down with my head bow (sic),

ma'am,



CONSOLIDATED APPELLEE'SBRIEF

C.R. NO. 141660-64

PeopleVS.

SP02 Fortuna, et al.,x = = = = = = = = = = = = = = = = = = = = = x

22

Q. Where were you when you sat down

and bow(ed)your head?

A. I was inside the guard house, ma'am.

(tsn, August 20, 1996, pp. 38-48)

Despite a lengthy and exhaustive cross-examination by

the defense counsel, Freddie Alej0 stuck to the esserrdals of

his story,· including the identification of the persons who

murdered Col. Abadilla. He was only ten (10) meters away

from the locus criminis. Standing on an elevated guardhouse,

he had a close and unobstructed view of the whole incident.

He was in a vantage position to clearly recognize Col.

Abadilla's assailants, more so because the crime happened in

clear and broad daylight.

Even standing alone, Alejo's positive and unequivocal

declaration IS sufficient to support a conviction for

murder against appellants. Indeed, the testimony of a single

witness, when positive and credible, is sufficient to support a

conviction even for murder. (People vs. Obello, 284 SeRA 79,



C ON SO LID ATE D A PP ELLE E'S B RIE FG.R. NO. 141660~64


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23

89 [1998]). For there is no law requiring that the testimony of

a single witness should be corroborated for it to be accorded

full faith and credit. The credible testimony of a lone witness

assumes more weight when there is no showing that he was

actuated by improper motive to testify falsely against the

accused, as in the case of Freddie Alejo.

Absent any evidence showing anyreason or motive for a prosecution

witness to perjure, the logical conclusion

is that no such improper motive exists

and his testimony is thus worthy of full

faith and credit. (People us. Platilla, G.R.

No. 126123, March 9, 1999, citing Peopleus. Aqunias, 279 SeRA 52, 65 [1997] in

turn citing People us. Malazarte, 261

SeRA 482 [1996]).

Appellants' alibis and

denials cannot prevail over

their positive identification

by Freddie Alejo.

For the defense of alibi to prosper, the accused must

prove not only that he was at some other place at the time of

the commission of the crime, but also, that it was physically



C ON SO LID AT ED A PP EL LE E'S B RIE F

G.R. NO. 141660-64


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24

impossible for him to be at the locus delicti or within its

immediate vicinity. (People vs. Ballesteros, 285 SeRA 438, 446

[1998], citing People vs. De Roxas, 241 SCRA 695 [1995];

People vs. Castaneda, 252 SeRA 247 [19~6]).

In this case, appellants miserably failed to prove that it

was physically impossible for them to be at the locus delicti or

within its immediate vicinity at the time the crime was

committed. In the case of Joel de Jesus, he maintains that he

was driving his tricycle on a special chartered trip for a

passenger going to Roosevelt, Novaliches, Quezon City. But it

was not impossible for him to have also gone to Katipunan

Avenue, which is also part of Quezon City; not to mention the

fact that with his tricycle, he could have easily moved from one

place to another.

The testimonies of Rameses de Jesus and Leonida

Lumanog that they were treasure hunting in Mabalacat ,

Pampanga on the day in question, lack credence as they are

unsupported by the testimonies of independent witnesses. At



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25

any rate, Rameses De Jesus admitted that they were using the

new car of Leonido Lumanog. Hence, it was not pby.sically

impossible for them to travel to Quezon City via the North

Expressway at the time the crime took place.

Augusto Santos claims that he was at the Fabella

Hospital in Sta. Cruz, Manila, and his alibi was corroborated

by his brother-in-law, Jonas Padel Ayhon, who is not an

impartial witness. Where nothing supports the alibi except

the testimony of a relative, it deserves scant consideration

(People us. Waggay) 218 SCRA742 [1993]). "Alibibecomes less

plausible as a defense when it is merely established by the

accused himself and his immediate relatives and not by

credible persons." (People us. Joua, 227 SeRA [1993]).

Finally, Cesar Fortuna claims that he was in Camp

Crame on the day the murder took place.· But it was not

impossible for him to have gone to Katipunan Road, Blue

Ridge, which is relatively near Camp Crame when the shooting

happened around 8:40 in the morning. After the shooting,



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G.R. NO. 141660~64


X = = = = = = = = = = = = = = = = = = = = = x

he could have easily and quickly transferred to Camp Crame

between 9 and 9:30 in the morning of the same day.

In any event, appellants' alibis were belied by the

positive identification made by prosecution witness Freddie

Alejo. "Positive identification of the accused, where categorical

and consistent and without any showing of ill motive on the

part of the eyewitness testifying on the matter, prevails over

alibi and denial which if pot substantiated by clear and

convincing evidence are negative and self-serving evidence

undeserving of weight in law." (People us. Villablanca, 316

SCRA14 [1999]) Somust it be in the case at bar.

Appellants' conviction rests

on the positive

identification by Freddie

Alejo and not on the alleged

illegally extracted

confessions.

- - - ~ - - - - - - ~ - - - - - ~ - - - - - ~ ~ - - - - - ~ - - - - - - ~ - - - - - - - - - -

Appellants' allegations that the police authorities

maltreated them, and forcibly extracted their extra-judicial



CONSOLIDATED A PP ELLE E'S B RIE FG.R.NO. 141660-64


x=====================x

27,

confessions do not exculpate them from criminal liability. For

one, their conviction was not based on their extra-judicial

confessions, but on their positive identification by Freddie

Alejoas the authors of the crime. Such positive identification

is totally independent of their extra-judicial confessions. For

another, the Constitutional gu.arantees contained in the Bill of

Rights (Sections 12 (1) and (3),Article III) cannot be used as a

shield whereby a person guilty of a crime may escape

punishment. Thus, this Honorable Court in Draculan vs.

Donato, (85 SCRA267 [1978])held:

xxx Pangalawa, ang mga karapatan

ng mga mamamayan na natatala sa

Saligang Batas (sa Bill of Rights) ay hindimga paraan upang ang isang tunay na

may pagkakasala na labag sa batas ay

makaligtas sa nararapat na pagdurusa.

Ang tunay na layunin ng mga tadhanang

iyon ng Saligang Batas ay walang iba

kundi tiyakin na sinumang nililitis ay

magkaroon ng sapat na pagkakataon at

paraan na maipagtanggol ang sarili,

bukod sa pagbabawal ng pagtanggap ng

katibayan (evidence) laban sa kaniya nabunga ng pagpipilit, dallas at iba pang

paraang labag sa kaniyang kalooban.



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28

To repeat, aesuming that appellants' allegations of

torture were true, they do not, however, exculpate them from

liability for the crime which the People had adequately

established by independent evidence.

Ballistics examinationresults are inconclusive andcannot prevail over thepositive identification made

by Freddie Alejo.

II

i

Ii

II

I

Appellants harp on the results of the ballistics test

purportedly showing that the bullets and bullet shells found in

the crime scene did not match with any of the firearms

supposedly in their possession. But these ballistics results

are inconclusive and can never prevail over appellants' positive

identification by eyewitness Freddie Alejo as the persons who

perpetrated the ambush-slay of Col. Abadilla. Besides, there

is no showing that the firearms supposedly found in

appellants' possession long after the incident were the same

ones they used in the ambush-slay.



. I

CONSOLIDATED APPELLEE'S BRIEFG.R. NO. 141660-64

PeopleV$. SP02 Fortuna, et at,

x = = = = = = = = = = = = = = = = = = = = = x

2 9

.The trial court correctlyappreciated the presence of

treachery and evidentpremeditation.

- - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - -

It is not disputed that at the time of the attack, the victim

was shot while he was driving. His attention was concentrated

on the road. He was, therefore, completely taken by surprise

and unable to defend himself when suddenly, appellants

approached and fired at him. Two (2) of them did the actual

firing (Leonida Lumanog and Cesar Fortuna) while the others

(Augusto Santos, Rameses de Jesus, and Joel de Jesus) all

armed, acted as look-outs. The speed and precision by which

the ambush-slay was done left Col. Abadilla totally

defenseless, thus insuring the execution of the crime without

risk to appellants. This is treachery. It is present when the

offender commits any of the crimes against the person,

employing means, methods or forms in the execution thereof,

which tend directly, and specifically to insure its execution,

without risk to himself arising from the defense which the



I

I " ~ ',

CONSOL IDATED APPELLEE 'S BR IEFC,.R.NO. 141660-64


x = = = = = = = = = = = = = = = = = = = = = x

30

offended party might make (Article 14 [16]) Revised Penal

Code, as amended).

Evident premeditation also attended the killing of Col.

Abadilla. Freddie Alej0 stressed that as early as 7:30 in the

mornmg of June 13, 1996, he already noticed something

unusual going on, such as the pacing back and forth of

appellants Joel de Jesus and Lorenzo Santos along Katipunan

road indicating that something was afoot. They were expecting

CoLAbadilla to pass that way. This was an hour before the

actual slay of Col. Abadilla. In People vs. Dumdum, (92 SCRA

198 [1978]), there is evident premeditation if the accused

conceived of the assault at least one (1) hour before its

execution.

The mode of execution of the ambush-slay is indicative of

conspiracy among the five (5) appellants. Every one of them

had a specific role. Thus, Fortuna and Lumanog were the

designated hitmen, while the rest were the look-outs. (People

VS. Rodico, 249 SeRA 309,321 [1995], citing People vs. Talau,



CONSOLIDATED A PP ELLE E'S BRIE FG.R. NO. ]41660~64


X = = = = = = = = = = = = = = = = = = = = = x

31

101 SCRA 332 [1982]; People vs. Penones, 200 SCRA 624

[1991]). Consequently, their liability is that of co-principals to

the crime ofmurder.

It is firm rule that where conspiracy

is shown to exist, all the conspirators are

liable as co-principals regardless of the

extent and character of their participation

because in contemplation of law, the act

of one conspirator is the act of all. (Peopleus. Rodico, supra, citing People vs.

Punzalan, 203 SeRA 365 [1991]; Peoplevs. Villanueva, 211 SeRA 403 [1992];

People vs. MagaZang, 217 SCRA 571

[1993]).

Under Art. 248 of the Revised Penal Code, as amended by

R.A. 7659 (which took effect on December 31, 1993), the

penalty for murder is reclusion perpetua to death. Since

treachery qualified the killing to murder, evident

premeditation may be appreciated as a generic aggravating

circumstance. Pursuant to Art. 63 (1).of the Revised Penal

Code, in case of two (2) indivisible penalties where there is an

aggravating circumstance, the greater penalty of death should

be imposed.



·I

C ON SO LID AT ED A PP ELLE E'S B RIE FC,.R.NO. 141660-64

People vs, SP02 Fortuna, et al.,

x = = = = = = = = = = = = = = = = = = = = = x

32

The constitutionality of

the death penalty had

long been judiciallysettled.

Appellants Leonido Lumanog and Augusto Santos assail

the trial court's imposition of the death penalty on them,

contending that "R.A.No. 7659, at least insofar as it classifies

murder as a heinous crime and metes the death penalty

therefore, is unconstitutional."

Whether or not the death penalty should remain in our

penal laws is a question that should be addressed to the

legislature. Courts are not the proper fora for a protracted

debate on the morality and propriety of capital punishment

where the law itself provides for specific and well defined

criminal acts. In any event, the constitutionality of the death

penalty had long been judicially settled by this Honorable

Court (People us. Baway, 350 [2001] SCRA33 citing People vs.

Echegaray, 267 SCRA682 [1997]) .



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33

CONCLUSION AND RECOMMENDATION

In view of the foregoing considerations, it is respectfully

submitted that appellants' guilt for the murder of Col. Rolando

N. Abadilla has been proven beyond reasonable doubt.

In line with existing jurisprudence, the amount of

; pso ,000.00 should be given to the heirs of Col. Abadilla by

way of civil indemnity for his death. (People vs. Dones, 254

SCRA696 [1996]).

Actual or compensatory damages may also be awarded.

As testified to by Susan Abadilla, she incurred a total amount

of;P 294, OS8.86 relative to her husband's murder:

1. ;p 17,820.00 (Exhibit T-3)!for obituary

2. ;D 6,570.00 (Exhibit T-1) for burial plot

3. ;D 17,000.00 (Exhibit T-2) for burial plot

4. ;p 27,830.00 (Exhibit T-4) for marble supplyS. ;D 200,000. 00 (Exhibit T-5) for funeral services

6. ;p 24,838.86 (Exhibit T-6) for repair of Honda

Accord

(tsn, January 27, 1977, p.3)



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X=====================x

34

These expenses are duly supported by receipts marked as

Exhibits "T"to "T6".

With respect to moral damages, it is settled that the

amount of psychological pain, damage and injury caused to

the heirs of the victims, although "inestimable, may be

determined by the trial court in its discretion. (People vs.

Ballesteros, supra, citing Valenzuela us. Court of Appeals, 253

seRA 303 [1996]). In this regard, Susan Abadilla testified

that, " x x x I was really at a loss because in the first place, he

did not want to give me any problem at all. So I really do not

lmow how to go about our life, our business. In fact, my two

(2) kids are the ones managing our business that was left

behind by my late hus band but because I have to go on with

life, because I still have seven (7) children to take care of and

three (3)small kids to look after, because they will be the ones

to continue with their studies." (pp. 46-47, tsn, September 18,

1996). Under the circumstances, and in view of the shocking

and senseless aggression committed by appellants on the



· '

CONSOLIDATED AP PE LLE E'S BRIE FG.R. NO. 141660-64

People vs, SPQ2 Fortuna, et al.,

X = = = = = = = = = = = = = = = = = = = = = x

35

victim, the People respectfully submits that the award ofmoral

damages to the heirs of Col. Abadilla in the amount

of P 500,000.00 by the trial court is in order (People vs.

Teehankee Jr., 249 SeRA 54, 115 [1995]).

The award of exemplary damages, too, is in accord with

law. Under Art. 2229 of the Civil Code, exemplary or

corrective damages may be imposed, in addition to moral

damages, "in order to deter the commission of similar acts in

the future." Its award "is designed to permit the courts to

mould behavior that has socially deleterious consequences.

Its imposition is required by public policy to suppress the

wanton acts of an offender." (People us. Teeharikee, Jr., supra).

The imposition of exemplary damages is likewise justified

when the crime is attended by one or more aggravating

circumstances (People us. Rabaries, 208 SCRA 768 [1992]

People us. Teehankee Jr., 249 SeRA 54, 115 [1995]).



j'.,, \

I

II

III

, ' ,\ \

CONSOLIDATED A PP ELLE E'S B RIE FG.R.NO. 141660~64

People vs, SP02 Fortuna, et al.,

x = = = = = = = = = = = = = = = = = = = = = x

36

PRAYER

WHEREFORE, it is respectfully prayed that the appealed

decision, being in accordance with law and evidence, be

AFFIR:rvIED in all respects.

Other relief and remedies, just and equitable, are likewise

prayed for.

Makati City, for Manila, May 31, 2004.

-~LFREDO L. BENIPAYO

Solicitor General

Roll No. 18350

IBP LRN 04124.10-17-02

AM ~J~VIER

Assis ant Solicitor General

Roll No. 32512

IEP No. 1411 (Lifetime membership)

So icitor

Roll No 605576

IBP OR No. 578680 - 01.08.04



" ,. '

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CONSOLIDATED APPELLEE 'S BRIEFG.R.NO. 141660-64


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COpy FURNISHED:

ATTY. SOLIMAN M. SANTOS, JR.

Counsel for petitioner L. Lumanog

18Mariposa St., Cubao1109 Quezon City

ATTY. GRENALYN V. VIRTUSIOCounsel for Accused appellant R. de Jesus

Suite 506 Pacific Plaza Condominium

Pearl Drive, Ortigas Center, Pasig City

ATTY. ARLENE G. LAPUZ-URETACounsel for Cesar Fortuna y Abudo

Unit 1241, City and Land Mega Plaza

ADBAve., cor. Garnet Road, Ortigas

Center, 1605 Pasig City

37

EXPLANATION(Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil

Procedure)

The foregoing "Brief is being served by registered mail,

personal service not being possible due to lack of adequate

personnel that would effect personal service.

RRR.© hera: 132403

ConsolidatedAppelleeBrief

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