A witness who ran away, brave & coward at the same time
A witness who ran away,
brave & coward at the same time
For pro bono clients, I filed this Motion for Reconsideration against the denial by the Honorable Regional Trial Court, Branch 23, General Santos City, where I put emphasis distinctive acts in order to push the argument that they deserve to granted the right to post bail.
These distinctive acts are as follows:
(1) The witness first ran away and hid for 30 minutes when he was called to the witness stand to testify; he was only compelled to sit when he was found by police officers at the instance of the public prosecutor; and
(1) The witness first ran away and hid for 30 minutes when he was called to the witness stand to testify; he was only compelled to sit when he was found by police officers at the instance of the public prosecutor; and
(2) The witness testified that he saw the acts of stabbing the victim dead that he even shouted at the killers, acts that can be done only by brave men; but when asked why he it took him four (4) months to reveal to the police the persons he was claiming to be the killers, he reasoned out he was gripped by fear of the accused.
If you are ready and willing to read long writings, please go down and read.
Republic of the Philippines
Eleventh Judicial Region
Regional Trial
Court
General Santos City
Branch 23
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus - CRIMINAL CASE NO. 23962
For: MURDER
RYAN PEPITO @DOGIE ETURMA,
FAMER ALMOSOL and TWO (2)
JOHN DOES,
Accused.
x--------------------------------------x
Motion for
Reconsideration
on Denial of the Petition
for Bail
This
is a motion for reconsideration from the Order of the Honorable Court dated
January 30, 2017 denying the petition for bail of both accused Ryan Eturma y
Pepito and Famer Almasol.
The same Order was received by the
undersigned on March 10, 2017. The
fifteen (15) days of the reglementary period end on 25 March 2017, a
Saturday. Hence, the last day falls on
27 March 2017, a Monday.
The Ground
With
due respect to the Honorable Court, the alleged testimonies of witness Marcial
Fabricante cannot be given credence because the prosecution failed to explain
why Marcial Fabricante disappeared or ran away when his name was called to the
witness stand to testify. The failure
of the prosecution to explain this fear or hesitation that led Marcial
Fabricante to run away and hide that he was only found about 20 minutes later
reduces the credibility of this witness.
Again, with due respect to the Honorable
Court, it committed that big mistake of giving credence to the testimony of the
OBVIOUSLY PLANTED WITNESS Marcial Fabricante, whose testimonies are very clear
to be replete with inconsistencies on material points, not merely trivial
matters as opined by the Honorable Judge in the Order denying the Petition for
Bail.
In
sum, the testimonies of Marcial Fabricante, who is dead now, are nothing but
lies.
The Discussions
Hiding and running away
What proves this statement of conviction is
the preliminary exchange between then Assistant City Prosecutor Jose Jerry
Langrio Fulgar and the undersigned attorney, Atty. Berteni Cataluña Causing,
Civil Engineer.
In brief, before the testimonies were to
begin the undersigned attorney manifested that witness Marcial Fabricante ran
away and disappeared and it took about 20 minutes before he was found to be
brought to the witness stand.
The witness, Marcial Fabricante, was
absolutely aware that he was brought to the court by Mr. Ofelia Congson, the
mother of the victim in this case.
The witness was also aware when his name was
called for him to sit in the witness stand.
But as soon as his name was called, he was no longer to be found. This
prompted then Judge Lorenzo to call a recess in the proceeding to give way to
the all out efforts of the prosecutor to locate Marcial Fabricante. It
took the prosecution more than Twenty (20) Minutes to find Marcial Fabricante.
The exchanges of manifestations recorded in
the Transcript of Stenographic Notes (TSN) are hereby pasted:
(Page 2, bottom part, TSN of June 13, 2013)
(Page 3, upper part, TSN of June 13, 2013)
In that part of Page 3, upper part, of the
TSN of June 13, 2013, it shows there that Attorney Causing pointed out that it
took all 20 minutes to look for witness Marcial Fabricante.
Attorney Causing also pointed out that this
hesitance on the part of Fabricante meant there were some doubts on the
proposed testimonies of Fabricante.
Prosecutor Fulgar acknowledge the existence
of the hesitance on the part of witness Fabricante but he said that there must
be some reasons why Fabricante ran away or showed hesitance or extraordinary
hesitance that he had to disappear for more than 20 minutes.
(Page 3, lower part, TSN of June 13, 2013)
Nevertheless, in this succeeding part of Page
3 of the TSN of June 13, 2013, Prosecutor Fulgar nevertheless submitted this
hesitance to the appreciation of the court.
The next statement of Prosecutor Fulgar dealt
with the wish to present the witness through the judicial affidavit.
A review of all the succeeding pages of the
TSN of June 13, 2013 shows that the Prosecutor did not ask Marcial Fabricante
to explain why
This
fact alone that the witness failed to explain when he hesitated in the manner
that was so distinctive means that it should be adjudged that the witness was
terribly afraid to testify.
But
after about 20 minutes, he went back to the court and sat on the witness stand.
What must be the reason why he was so
terribly fearful at first?
Now, the fact shows that he was found and he
did not voluntarily appear until he was found by the prosecution’s errands and
police officers who accompanied and escorted Marcial to the court.
Actually, even then Prosecutor Fulgar helped
in locating the witness.
That actuation of Marcial Fabricante was very
unusual.
All acts that are unusual for any witness
erode the credibility of the same witness unless he can explain why he acted
very unusually.
In this case, to repeat, the witness did not
explain why he ran away when he was called to testify.
Prosecutor Fulgar did not ask Marcia either.
This is akin to a delay in delivering the
testimony.
If there is a delay caused by this hesitance
in giving the testimony and the delay was not explained, then the testimonies
cannot be given credence.
The Honorable Court erred in saying in its
ruling that delay did not diminish the credibility of the same witness
Marcial. This is incorrect. Considering alone that long time of 20
minutes to delay in giving the testimonies is more than sufficient said that
his testimonies cannot be given any credence.
The Court should have looked at this
extraordinary delay or fear.
And if Marcial cannot now be given credence,
his testimonies positively identifying the accused cannot now have any bearing.
That is succinct.
So far, the Honorable Court or the public
prosecutor cannot give a good argument in order to still give credence to the
testimonies.
Clearly then, it is most likely that MR.
MARCIAL FABRICANTE did not appear credible.
Another delay in coming
out to testify, unexplained
Another
delay committed by this alleged witness is that he executed only on January 20,
2013 his alleged affidavit implicating the accused as the ones who killed
Rodolfo G. Congson, Jr.
The
alleged murder occurred on September 30, 2012.
The
delay was almost four (4) months.
There
was no explanation given why it took Marcial four (4) months to come up and
testify.
There
was also no explanation as to what was preventing Marcial from coming out
immediately to testify.
Attorney
Causing asked Marcial Fabricante what took him too long to come out and execute
an affidavit indicting the accused as the killers of Rodolfo Congson Jr.
To
this question, Marcial said that he was hospitalized on 09 October as the
reason why it took him only on 20 January 2013 that he was able to execute an
affidavit.
He
said his hospitalization lasted only for a month so that from November of 2012 up
to the whole month of December 2012 and up to January 19, 2013, Marcial did not
explain why he did not execute any affidavit to reveal what he saw if he were
indeed telling the truth.
And
if he failed to explain why he did not reveal what he saw in three months, then
his allegations cannot anymore now be given belief.
Supporting
this are the Supreme Court’s pronouncements.
In People
vs Natividad (GR No. 138017), the Supreme Court stated:
In People v. Bautista, cited by appellant, this Court stated the rule
on the effect of delay of a witness in divulging what he or she knows about the
commission of the crime, to wit:
The rule is ordinarily to the effect that delay by a witness in
divulging what he or she knows about the commission of a crime, such as the
identity of the offender, is not by itself a setback to the evidentiary value
of such a witness testimony. The
courts, however, have been quick to deny evidentiary weight where such delay is
not sufficiently justified by any acceptable explanation.
In its Brief, the Office of the Solicitor General opines that the
silence of the witnesses for four (4) years was satisfactorily explained
because the records reveal that the witnesses were cowed into silence by
appellant who admittedly was an influential man being then the municipal mayor
of the place. The appellant municipal
mayor exercised moral dominance and influence over these police officers. In
addition, he was able to easily intimidate them with his ten (10) bodyguards
around him. We find the explanation of
the trial court to be enlightening, to wit:
It may be asked Why did the witnesses come forward only after about
four years from the date of the incident? The accused Natividad is the town
mayor of Ramos, Tarlac. The way the offense being attributed to him was
committed will surely instill fear on the citizens, the policemen who are
witnesses in this case included. There is no plausible reason why the Court
should not believe them. No ill motivation was shown as to why they will
falsely impute to the accused Natividad the commission of a heinous crime if it
is not true.
In People
vs Berondo, GR No. 177827, March 30, 2009, the Supreme Court clearly
stated that delay impairs the credibility of the witness unless there is
sufficient explanation given.
It
means that the burden of proof of explaining for the delay rests in the party
seeking to be benefited by the witness who delayed in the reporting of the
criminal incident.
So
that People
vs Berondo said:
Delay in revealing the identity of
the perpetrators of a crime does not necessarily impair the credibility of a
witness, especially where sufficient explanation is given. No standard form of behavior can be expected
from people who had witnessed a strange or frightful experience. Jurisprudence recognizes that witnesses are
naturally reluctant to volunteer information about a criminal case or are
unwilling to be involved in criminal investigations because of varied
reasons. Some fear for their lives and
that of their family; while others shy away when those involved in the crime
are their relatives or townmates. And where there is delay, it is more
important to consider the reason for the delay, which must be
sufficient or well-grounded, and not the length of delay.
Seeing two accused every now
and then negates fear in
Marcial
Now,
fear is not the reason the alleged witness, Marcial Fabricante, did not come
out immediately to testify because this is contradicted by his own statements.
He said he did not testify because he feared
the accused. But he testified that he
saw the accused working and he was also there keeping on staying in San Miguel,
Barangay Calumpang.
If he was indeed afraid of the accused, then
he should have not seen the accused working many times.
That is because he claimed that he even
shouted at the accused when he claimed he saw the accused being stabbed.
So that if he shouted, the accused must have
heard his shout and must have recognized him and must have dogged him.
This claim that he shouted at the accused at
the time of the stabbing is diametrical to the claim that he saw the accused
many times, and this clearly proved that he was actually not fearful of the
accused.
Actually, Marcial even testified that one
after another week he saw the two accused.
In all the times he saw the accused were
working.
If he could afford to have seen the two
accused every now and then, there is no fear in the mind of Marcial that can
prevent him from testifying or executing an affidavit.
On these claims of seeing the accused (Eturma
and Almasol), Marcial said in Page 28 of his TSN of June 13, 2013, to wit:
Above is a proof that Marcial even said he
saw the accused (Eturma and Almasol) at the burial of the victim, Rodolfo
Congson Jr., negating again his claim that he was fearful of the accused.
These events seeing the accused not once but
many times week after week, from the time of the alleged occurrence of the stabbing
incident, are proofs there was no fear in the mind of Marcial to prevent him
from executing the affidavit much earlier against Eturma and Almasol.
Noteworthy is the fact that Marcial also
testified that the victim was laid in stated only for one week before the
burial. Let us read Page 32 of the TSN of Marcial about the event he saw the
accused at the burial, to wit:
In sum, the fact that Marcial would see the
accused every now and then is a good piece of evidence that Marcial did not
have any whatsoever fear of Eturma and Almasol.
Not telling the cop
who he saw kill the victim
If we believe Marcial was telling the truth
at first, then he must have the courage to reveal the killers to the police.
Imagine, he made the Court and the prosecutor
believe that he indeed saw the killing and that he said he even shouted at the
killing and that he did not feel any fear when he shouted at the killers.
Look at the alleged judicial affidavit of
Marcial Fabricante, at Question No. 4 and Answer No. 4, where he said that he
shouted upon seeing that Rodolfo Congson was being stabbed.
If he indeed shouted, then Marcial was
courageous and not afraid of the killers.
If he claimed in his testimonies that he even
went down from his “papag” or “lawting” to go to the spot where Rodolfo Congson
was stabbed, then he was brave to face the possibility of the killers coming
back after running away, contrary to the claim that he was fearful of the
accused.
Then, Marcial Fabricante claimed he
immediately called the police to report about the death of Eturma and Almasol.
But why he did not say who were the killers
when he said he called the police at the time he said he was helping the victim
to be loaded onto a tricycle?
He also did not say he revealed to the police
who were the killers when the police arrived in the scene.
When the police officers were there, why did
it take Marcial to wait until 20 January 2013 to execute the affidavit?
Let us read his testimonies on this on Page
26 of his TSN of June 13, 2013, to wit:
In
sum, all the highly improbable claims, the material inconsistencies, and
material contradictions of his own statements are clearly telling to show that
it was highly improbable for the witness himself, Marcial Fabricante, to have
witnessed the killing of Rodolfo G. Congson Jr.
At
any rate, the prosecution also failed to present any proof to substantiate any
attendant circumstance to upgrade the crime from homicide to murder.
These
reasons are sufficient to warrant the grant of the right to bail for the
temporary liberty of the accused.
Liberty is indispensable to the accused
because their respective families are now wallowing in poverty.
Lack of proof of existence of circumstance
to say that the case was qualified to murder
While
the information filed by the prosecutor alleged that the information was for
murder, the witness presented and the other evidence showed that there is no
proof or weak evidence to show that a circumstance exist to qualify the case to
murder.
Let
us review what the law, Article 248 of the Revised Penal Code, says about
murder, to wit:
Art. 248. Murder.
— Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal
in its maximum period to death, if committed with any of the following
attendant circumstances:
1. With
treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or
afford impunity.
2. In
consideration of a price, reward, or promise.
3. By means of
inundation, fire, poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great
waste and ruin.
4. On occasion of
any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic or other
public calamity.
5. With evident
premeditation.
6. With cruelty,
by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
Mr.
Marcial Fabricante was the only witness presented by the prosecution in its
attempt to prove that the evidence of guilt is not weak.
Unfortunately,
Mr. Marcial Fabricante is now deceased.
The
prosecution, during the time of Assistant City Prosecutor Jose Jerry Langrio
Fulgar, asked the Court to issue a subpoena to two other persons to
testify.
These persons so subpoenaed failed to
appear. So that the prosecution then
moved for the Court to issue a warrant for the arrest of these two persons they
wanted to testify to prove their cause for murder.
The records of the case will show that these
persons were arrested and brought to court.
But the prosecutor decided not to use these persons because these
persons told them that they did not witness the incident so that they cannot be
witnesses.
One of the two witnesses was the live-in
partner of Mr. Marcial Fabricante that he was talking about as the one sleeping
below the “papag” or “lawting” where Marcial claimed he was lying when his
attention was caught by voices of the victim, Rodolfo Congson, Jr.
So that if the live-in partner professed she
did not know anything about the killing of Rodolfo Congson Jr. and that this is
contrary to what Marcial Fabricante said that his live-in partner went out of
the store below the “papag” to go to the crime scene, then this is a
substantive proof against the supposed reputation of Marcial Fabricante for
honesty.
To conclude the discussion on the existence
or non-existence of the circumstance aggravating to murder, let us now analyze
the testimonies of Fabricante assuming them to be true for the purposes only of
this discussion.
Let us quote again what Article 248 states,
to wit:
Art. 248. Murder.
— Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal
in its maximum period to death, if committed with any of the following
attendant circumstances:
1. With
treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or
afford impunity.
2. In
consideration of a price, reward, or promise.
3. By means of
inundation, fire, poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great
waste and ruin.
4. On occasion of
any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic or other
public calamity.
5. With evident
premeditation.
6. With cruelty,
by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
Circumstances No. 2, No. 3, No. 4, No. 5 and
No. 6 do not obviously apply in this case.
Let us then closely look at Circumstance No.
1 whether there is a strong evidence to say that there is great probable cause
that this Circumstance No. 1 exists.
Let us
closely look at Circumstance No. 1 and re-state the same, to wit:
1. With
treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or
afford impunity.
The
ultimate question here is very obvious: HAVE THE ALLEGATIONS OF THE LONE
WITNESS PROVED IN THE DEGREE OF GREAT PROBABLE CAUSE ANY OF THE MATTER IN THIS
GROUP?
Assuming
the allegations of Marcial Fabricante to be true, can we say that there is
great probable cause for treachery?
Treachery
is defined by the Philippine Jurisprudence, as stated in People vs Dolorido, GR
No. 191721, January 21, 2011, as follows:
In order for treachery to be properly appreciated, two elements must be
present: (1) at the time of the attack, the victim was not in a position to
defend himself; and (2) the accused consciously and deliberately adopted the
particular means, methods or forms of attack employed by him. The
essence of treachery is the sudden and unexpected attack by an aggressor on the
unsuspecting victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission without risk of himself.
In Miguel
Cirera y Ustelo vs People of the Philippines, GR No. 181843, July 14,
2014, Justice Leonen said:
Treachery as a qualifying circumstance must be deliberately sought to ensure the safety of the accused
from the defensive acts of the victim. Unexpectedness of the attack does not
always equate to treachery.
In
this case, it is very clear that even if we were to believe in the allegations
of Mario Fabricante, the best that can be said is that the probable cause of a
crime is only for a crime of HOMICIDE and not murder.
Inconsistency
that
is very material
Witness
Mario Fabricante cannot even reconcile whether he was asleep or wide awake when
the stabbing incident occurred.
If he were asleep, then it was logical that
he was awakened by the moaning sound.
If he were not asleep, then it must be
logical also that he saw the persons prior to the actual stabbing.
However, what is important now is that
Marcial Fabricante cannot give a conclusion as to the material issue of whether
he was asleep that he was only awakened.
Let us review what he answered during the
cross-examination, particularly Page 9 of his TSN of June 13, 2013, to wit:
This part of the cross-examination was the beginning of the
unraveling of the lies in the mind of Marcial Fabricante.
It is stressed that he confirmed his statement in his
affidavit that he was awakened by the voice of Rodolfo Congson Jr. But in his statement in the TSN of June 13,
2013, Marcial said he was not asleep afer all, as stated by him on Page 9 of
the TSN, to wit:
Because
this time he answered that he was not asleep at that time, the undersigned
counsel followed up, as shown on Page 10 of the TSN of June 13, 2013, to wit:
To understand deeper what were the ideas
going on considering that Marcial was being asked about the voice of the
victim, Page 11 of the TSN of June 13, 2010 is hereto pasted, to wit:
To understand further that he indeed not was
changing this material position, on whether he was asleep or was awakened, let
his answers on Page 12 of the June 13, 2013 TSN be pasted here, to wit:
In his judicial affidavit, Marcial said he
was asleep and was awakened by only by the voice of the victim, Rodolfo Congson
Jr.
First, Fabricante said in his
“judicial-affidavit” as follows:
Q3: Please narrate to this investigation, the circumstances that
surround this particular incident?
A3: Yes sir. On the aforementioned place, time and date, I was
awaken(ed) by the voice of the victim (Rodolfo Congson Jr) so that I stood up
and looked outside my house and then and there, I saw the victim who was lying
on the ground being stabbed by Ryan Pepito alias Dogie Pepito while Famer
Almasol was firmly holding both shoulder(s) of the victim. I saw also another
two (2) persons nearby, acted as look out (sic) or back up (sic) while the
barbaric act was being executed.
If
it were to believe in the allegations in this “judicial-affidavit”, then it is
CLEAR THAT FABRICANTE DID NOT SEE WHAT HAPPENED BEFORE THE SCENE THAT ALMASOL
WAS FIRMLY HOLDING THE SHOULDERS OF THE VICTIM WHILE RYAN PEPITO WAS STABBING
THE SAME VICTIM.
This
conflict of statement that Marcial cannot reconcile with each other, on whether
he was awake when or not, is indispensable to be material.
If
he is changing answer on this point, then it will bear down on whether or not
he was telling the truth when he said he saw the accused kill the victim.
Remember
that it is only by being awake that Marcial will be able to know who the
killers were.
But a repeated question on him on what happened
before the stabbing, he repeatedly said he did not saw anything. This made him an improbable witness. With the distance of about two meters and with
the fact that there must be sounds produced, it was improbable for Marcial to have
not seen what happened before the stabbing.
However,
if he were asleep, it was highly improbable for Marcial to immediately see the images.
That was because the nature of the eyes is
that it cannot immediately see upon waking up.
That
is, although at one time Fabricante said he first saw the victim already
wounded before the victim was stabbed by Ryan Pepito.
This opposite departure that is material in
this case because it will spell the difference between murder and homicide is
in itself also a good proof that Fabricante was only fabricating a story.
Nevertheless,
what is common among all his statements in the “judicial-affidavit” and in his
testimonies is the fact that THERE WAS NO TESTIMONY WHAT HAPPENED BEFORE THE
STABBING.
No
proof of qualifying
circumstances of murder
If there is no evidence to know what
happened before the stabbing, then it cannot be said with great probable cause
that there was either evident premeditation or treachery, that the accused took
advantage of superior strength, that the accused committed the crime with the
aid of armed men, that the accused employed means to weaken the defense of the
victim, or that the accused employed means or persons to insure or afford
impunity.
What
about the claim of Fabricante that he saw Famer Almasol holding firmly the
shoulders of Rodolfo Congson Jr.?
Does this alone qualify the killing to murder
even assuming that it was true that Almasol firmly held the shoulders of the
victim for the sake of argument?
It
is submitted that this statement, even if true, that Famer Almasol held firmly
the shoulders of Rodolfo Congson, Jr., is not sufficient to qualify the killing
to murder.
That
is because it cannot be known what happened prior to the time Famer Almasol was
seen firmly holding the shoulders of Rodolfo Congson, Jr.
Remember, it was possible that what happened
was that Rodolfo Congson Jr. was already stabbed without any help from anyone before
Fabricante saw Famer holding the victim firmly on the shoulders.
It was also possible that what happened was
that Rodolfo Congson Jr. had an opportunity to defend self before he was allegedly
seen by Fabricante being stabbed and held on the shoulders.
It was also possible that what happened was
that Rodolfo Congson Jr. committed acts of unlawful aggression before he was
seen to be being held on the shoulders and being stabbed.
It was also possible that there was no
premeditation to kill Rodolfo Congson Jr. before he was seen actually being
stabbed.
To establish whether there was premeditation
or treachery or that there was employment of means to insure impunity or the
aid of armed men, the undersigned counsel battered the alleged sole witness
Fabricante with questions to know what happened before he saw the accused being
stabbed.
Fabricante repeatedly said he did not see
what happened before the time he saw that the victim was being stabbed and
being held firmly on the shoulders.
But it is a mystery that Fabricante also said
at once that he saw Rodolfo Congson Jr. already wounded before being stabbed.
Fabricante even said he heard the voice of
the victim, which voice was moaning voice not reflected in the Transcript of
Stenographic Notes (TSN). He described
the voice in Cebuano dialect as “ungol.”
This means that most likely than not a
previous stab already took place before Fabricante saw Rodolfo Congson Jr.
being stabbed and firmly held on the shoulders.
So that it is now very clear, even without
discussing all others for the purpose of determining whether or not the accused
must be allowed to post bail, it shows that there is no proof to show that
there is great probable cause that any of the circumstance existed to qualify
the case to murder.
So that it is now unavoidable that the
conclusion is that it is clear and convincing that there is no proof of any
circumstance to qualify the case to murder.
If there is no such proof, it cannot be said
there is great probable cause of murder or of the existence of any circumstance
of murder.
On
this score, let the photo shot of the bottom part of Page 19 of the Transcript of Stenographic Notes (TSN) of June 13, 2013,
where the undersigned counsel questioned Fabricante what he saw just before he
saw the victim being stabbed. This photo
is pasted below, to wit:
Here,
Fabricante answer the undersigned that before he saw Congson being stabbed, he
saw Congson first as wounded.
This
now confirmed that assault acts occurred before the time Fabricante allegedly
saw the victim being stabbed.
And
it only confirmed that the assault that occurred before this was now known how
it happened, whether a circumstance attended to qualify the act into murder.
This
alone is sufficient for the Court to grant bail because the evidence at hand,
if believed, tends only to prove Rodolfo Congson Jr. was being stabbed and
being held on his shoulders firmly and nothing more.
Then,
Fabricante changed his answer. This time, he insisted that he saw the victim
only as being stabbed; impliedly withdrawing the original sworn statement that
the first time he saw the victim was that the victim was already wounded.
To
show these testimonies, a photo shot of Page
20 of the TSN of June 13, 2013 is hereby pasted:
The
undersigned counsel still tried to elicit from Fabricante what happened before
the time he saw the victim being stabbed and held on the shoulders but he stood
firm, as seen in the photo shot of Page
21 of the TSN of June 13, 2013, to wit:
Still,
in the continuation of the barrage of questions that the undersigned threw at
Fabricante, he now maintained that what he saw was only the act of stabbing and
act of firmly holding the shoulders of the victim, as shown by Page 22 of the
TSN of June 13, 2013, to wit:
The
undersigned counsel wanted to make it sure there was no evidence as to what
happened before the time Fabricante allegedly saw the stabbing of the victim
and the holding firmly of his shoulders.
So that again the undersigned ventured into more questions, as shown by
the photo shot of Page 23 of the TSN of
June 13, 2013, being pasted here, to wit:
For
the last time, the undersigned counsel still tried to firm up from Fabricante
that he did not see what happened before he saw that victim allegedly being
stabbed and being held firmly on the shoulders, and to show this a photo shot
of Page 24 of the TSN of June 13, 2013, it is pasted:
The
lies continued
at
ocular inspection
Marcial
Fabricante continued his saga of lying during the ocular inspection in the
afternoon of August 2, 2013 at the murder scene.
However, there were no more questions about
what happened before the time he saw the victim being stabbed and being held
firmly on the shoulders.
The
alleged witness, Marcial Fabricante, said there were two persons who according
to him acted as if they were lookouts.
During
his testimonies in open court, he did not say about these two persons as lookouts.
But
Marcial Fabricante stated in an evasive manner that he saw those two persons as
being armed.
So that the circumstance of employing the aid
of armed men cannot apply.
Marcial
Fabricante also said about Famer Almasol holding the shoulders of the victim,
Rodolfo Congson, Jr.
However, as explained above that there was no
evidence submitted by the prosecution to show what happened before Fabricante
allegedly saw the stabbing of the victim, Rodolfo Congson Jr. and the holding
of his shoulders by Famer Almasol, it cannot be said that the act of holding
the shoulders can be interpreted to mean as an act used to ensure impunity so
that the victim cannot defend himself.
Of
course, it was possible that the holding of the shoulders of Rodolfo Congson,
Jr. was preceded by an act that there was no firm pinning down of the
shoulders.
This
possibility alone is sufficient to conclude that this is not a case of murder,
if ever, but a case of Homicide.
ERGO,
with this fact alone that there is no testimony or other evidence offered to
show what happened before the alleged stabbing and the alleged holding of the
shoulders of the victim, it is sufficient that the two accused must be ALLOWED
TO POST BAIL BECAUSE THE TESTIMONIAL EVIDENCE PRESENTED, EVEN IF TRUE, WOULD
ONLY WARRANT THE CHARGE OF HOMICIDE.
Because
there is no evidence to say what happened when the voice of the accused was
heard, the doctrine of IN DUBIO PRO REO, in doubt for the accused, applies to
interpret that the only probable cause, if at all, is homicide, which is
bailable.
Nevertheless,
as will be argued next, there is actually ABSOLUTELY LACK OF PROBABLE CAUSE
even for homicide or murder.
Absolute lack of probable cause
To
repeat, the material inconsistencies, material contradictions of his own
statements, and improbability when gauged against the law of nature all
combined to show that it was highly improbable for the witness himself, Marcial
Fabricante, to have witnessed the killing of Rodolfo G. Congson Jr.
In
other words, his own testimonies betrayed Marcial Fabricante to reveal him as
no more than a false witness.
Presence of the two
accused at the burial
No less than Marcial Fabricante said
that he saw Eturma and Almasol attending the burial of Rodolfo Congson Jr.
And what is the essence in this fact?
That means that Eturma and Almasol
were not the ones who killed the victim. No first-time or ordinary killer would
come to the wake or the burial of the person he killed.
Testimonies of
Eturma, Almasol
This fact that Eturma and Almasol were
seen by Fabricante at the wake only validated the testimonies of Ryan Pepito
Eturma and Famer Almasol that they attended all the days of the wake for
Rodolfo Congson Jr. to cook foods and coffee for the visitors.
And the main reason given by Eturma
and Almasol why they dedicated their time every day was that Rodolfo Congson
Jr. was their very close godson of their children and who was very kind to them
because JR as Eturma and Almasol fondly called him was so kind to them and
their family.
For this, the Court is invited to the
TSNs of Eturma and Almasol of their testimonies given on December 1, 2016.
There is no real
witness
who shouts when
witnessing
traumatic events
like murder
The
shocking power is overpowering for any incident that suddenly appears to the
eyes of one witness when no other persons can be presumed to be present as it
was a wee hour of the morning was powerfully traumatic.
Given
that natural shocking power, any witness ordinarily is shocked upon witnessing
a very startling occurrence like stabbing to death somebody.
There
is no person who is alone witnessing a crime who would shout he saw the
stabbing incident while he is too close to the killers, considering the
powerful shocking effect of the fact that the killers were more than one
person.
So
that it was dishonesty for Marcial Fabricante to claim that he shouted “Si JR
gindunggab” while seeing the act of stabbing done by more than one person.
Considering
that they were neighbors in San Miguel, Calumpang, General Santos City, Marcial
Fabricante certainly knew that Eturma and Almasol knew him personally.
And
if so, then it is reasonable to conclude that Eturma and Almasol recognized the
voice of Marcial Fabricante.
Additionally,
it is presumed that being neighbors, Eturma and Almasol knew that the house of
Fabricante was in front where Rodolfo Congson Jr. was stabbed dead.
So
that if indeed Fabricante was fearful of Eturma and Almasol, Fabricante could
have not shouted because the latter two would only assault him at his house.
If
indeed it was true that Fabricante witnessed the killing and he shouted, then
Eturma and Almasol could have pestered Fabricante no end from the first day on
September 30, 2016.
To
shout “Si JR gindunggab” is a courageous act and to claim that it
took Fabricante 112 days to report the criminals because he feared Eturma and
Almasol is a cowardice act.
Lying on the
ground
versus Sitting
position
Here
is another material clash of claims of facts.
In
the “judicial-affidavit” Marcial Fabricante claimed that Rodolfo Congson Jr.
was lying on the ground while being attacked.
In
the testimonies, Marcial Fabricante now testified that he saw Rodolfo Congson
Jr. was sitting when being stabbed to death.
Additionally,
Marcial Fabricante would make another claim that Rodolfo Congson Jr. was using his
left arm in keeping his body in the sitting position.
This
is inconsistent with the other claim that Rodolfo Congson Jr. was being held
firmly on the shoulders when he saw the victim.
How
can one being held by the shoulder still manage to use his left arm as the pole
upon which the body of Congson can lean on while sitting?
Now,
if Congson was lying on the ground, how can he be stabbed at the same time
being held on shoulders, considering that his back was already flat on the
ground?
The Prayer
WHEREFORE, it is respectfully prayed of
the Honorable Court to REVERSE its ORDER dated January 30, 2017 and GRANT THE
PETITION FOR BAIL in the amount small enough for the accused who are only pro
bono clients of the undersigned.
Other
reliefs just and equitable under the circumstances are also prayed for. 24 March 2017. Manila for General Santos City.
CAUSING SABARRE CASTRO Pelagio
Mailing Address: Unit No. 1, # 2368 JB
Roxas St., corner Leon Guinto St., Malate, Manila
By:
BERTENI CATALUÑA CAUSING, CE
IBP No. 1056866/ 04-01-2017
/ Manila IV
PTR No. 5995672 / 04-01-2017
/ Manila
Roll No. 60944
MCLE No. IV – 0007338
issued 10 August 2012
(Valid from 15 April
2013 until 14 April 2016)
MCLE No. V – 0013036
issued 13 January 2016
(Valid from 15 April
2016 until 14 April 2019)
(Valid
from 15 April 2016 until 14 April 2019)
Cc:
Office
of the City Prosecutor
Hall of Justice, General Santos City
EXPLANATION
Lack of manpower and distance compelled the service and
filing of this Motion for Reconsideration by Registered Mails.
BERTENI CATALUÑA CAUSING, CE
NOTICE OF HEARING
CLERK
OF COURT
Regional Trial Court, Branch 23,
General Santos City
OFFICE
OF THE CITY PROSECUTOR
Hall of Justice, General Santos City
Please
submit this case for the consideration of the Honorable Court on 7 April 2017, at
8:30 am, considering distance.
BERTENI CATALUÑA CAUSING, CE
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