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

(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
Email addresses: berteni.causing@gmail.comtotocausing@yahoo.com; Tel/Fax: 3105521
  
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



Post a Comment

Popular Posts