People vs Mendiola : 134846 : August 8, 2000 : Per Curiam : En Banc

EN BANC

[G.R. No. 134846. August 8, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELANO MENDIOLA, accused-appellant.

D E C I S I O N

PER CURIAM:

For automatic review by this Court is the decision of the Regional Trial Court, Branch 166, Pasig City, finding the accused-appellant guilty beyond reasonable doubt of raping his five-year old daughter and sentencing him the supreme penalty of death.

Upon a complaint filed by Consuelo Pedrosa in behalf of her granddaughter, Daryll Mendiola, the information for rape was filed which reads:

That sometime in the year 1994, in the City of Pasig, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with a five (5) year old girl. Daryll Mendiola, his daughter, without her consent and against her will.[1]

After trial, judgment was rendered on March 11, 1998 disposing, to wit:

WHEREFORE, the Court finds accused, Delano Mendiola, guilty beyond reasonable doubt of the crime charged in the Information, and considering that the victim, Daryll Mendiola, was then only five (5) years old and the daughter of the accused, he is hereby sentenced to suffer the supreme penalty of DEATH, and indemnify the victim the sum of P50,000.00, plus the costs of suit.

SO ORDERED.[2]

As found by the trial court, the evidence for the prosecution is as follows:

Consuelo Pedrosa testified, in the main, that she is 63 years old; that the accused is the husband of her daughter Marlene; that the victim Daryll Mendiola, is the daughter of accused and Marlene; that Daryll was then only about a month old when she was brought by Marlene to Naga City and was entrusted to her care; that in 1994, Marlene went to Naga City and brought back Daryll in Pasig City; that in January 1995, Daryll was bitten by a dog, so that she brought her to Naga City for treatment; that in the same month when examined by Dr. Josephine Decena of the Bicol National Hospital, Daryll's hymen bore old lacerations at 2, 6 and 8:00 o'clock positions; that Daryll was brought to the NBI Office in Naga City where her statement was taken; that when she told Marlene about the findings made by Dr. Decena and the taking of Daryll's statement by the NBI, Marlene got mad at her; that she is the one actively pursuing the instant case because Marlene refused to help Daryll.

Daryll Mendiola, private complainant, testified, inter alia, that she is six (6) years old; that her father is Delano Mendiola and her mother is Marlene; that in 1994 and 1995, inside their house in Pasig City, her father inserted his penis inside her vagina many times.

The documentary exhibits are:

1. "A......" - The Sworn Statement of Daryll Mendiola given to the NBI Investigator.

2. "B" - Certification issued by Dr. Josephine Decena who examined Daryll Mendiola.

3. "C" - Certificate of Live-Birth of Daryll Mendiola.[3]

On the other hand, the evidence for the defense constitutes the following:

Delmar Mendiola testified, inter alia, that she is five (5) years old; that her parents are Delano and Marlene Mendiola; that Daryll Mendiola is her elder sister; that when she was four (4) years old she lived in their house in Pasig City, together with her parents, her sister Daryll and her brother JR; that while she, Daryll and Jr were the only ones in their house their cousin Gene, who is older than all of them, arrived; that after giving JR money for video game, Gene covered himself and Daryll with a blanket; that after removing Daryll's panty, Gene went on top of her; that after a while Gene left; that later on Daryll was brought by their grandmother to Bicol.

Accused Delano Mendiola, testified, among other things, that he is 35 years old; that he was a fruit vendor at the Pasig Market; that he has 6 children; that in 1994, five (5) of his children, including Daryll were living with him in Pasig City; that prior to 1994, Daryll lived with her grandmother Consuelo Pedrosa, in Bicol; that in December, 1993, Daryll was brought by Consuelo to Pasig City and stayed in the house of his brother-in-law, Eugenio Babon; that when he went to the house of Eugenio to deliver some food stuff he saw Daryll and her cousin, Gene inside a room playing horsy-horsy; that because of what he saw he and his wife decided to get Daryll to stay with them; that while Daryll was living with them, he saw her playing with the penis of the dog; that he caught Daryll peeping while he and his wife were having sex; that his other children saw Daryll stick a "Walis Tingting" inside her vagina; that while Daryll was living with them, Gene was a frequent visitor; that in January 1995, Daryll was brought back to Bicol by her grandmother; that on January 3, 1996, he was arrested by the police in connection with the instant case; that his mother-in-law is mad at him and even advised his wife to split up with him because of marital problems.

Marlene Mendiola testified, in the main, that she is 34 years old; that she is a fruit vendor at the Pasig City Market; that Daryll Mendiola is her fourth child and was born on July 25, 1989; that Delano Mendiola is her husband; that after her birth, Daryll was brought to Naga City by her grandmother, Consuelo, who took care of her; that in December, 1993, Daryll and Consuelo arrived in Pasig and stayed in the house of Eugenio Babon; that when she visited Daryll at Eugenio's residence, Consuelo told her that one time Daryll and Gene left the house and stayed out late and brought home plenty of candies and food bought by Gene, that she became suspicious of her nephew, Gene, so that she took Daryll home; that Gene was already about fourteen (14) years old at that time; that one noontime when she went home from the market she saw Gene, wearing shorts, on top of Daryll; that she tried to confront Gene but he scampered away; that she learned from her other children that Gene frequented their house; that in 1995, Daryll was bitten by a dog, so that she was brought to Bicol by her grandmother who again took care of her; that she was told by her sister, Teresita, to go to Bicol because a doctor found out that Daryll was a rape victim; that when the doctor inquired about their companions and neighbors, especially those who are about fourteen (14) years old, who could have sexually abused Daryll, she suspected Gene but her mother insisted that the culprit is her husband, Delano Mendiola; that her mother hated Delano because he is lazy and irresponsible; that her husband denied having raped their daughter.[4]

The accused raises the following assignment of errors:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF RAPE BY RELYING HEAVILY ON THE TESTIMONY OF THE COMPLAINING VICTIM, DARYLL MENDOZA AND DISCREDITING TOTALLY THE VERSION OF THE DEFENSE.

THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE REVELATION OF DELMAR MENDIOLA THAT SHE ACTUALLY SAW HER COUSIN, JEN, WENT ON TOP OF HER SISTER, DARYLL, AFTER REMOVING THE LATTER'S PANTY.[5]

As can be gleaned, the assigned errors hinge on the important issue of credibility of the witness. The defense asserts that the victim's testimony contains many loose ends considering that she could not even answer several questions propounded to her. On the other hand, the defense witness, Delmar Mendiola (whose nickname is "Macdo") although younger than Daryll was more proficient in court. Thus, her testimony should have been given more weight by the trial court.

It is settled that when the issue of credibility is concerned, the appellate court will generally not disturb the findings of the trial court, the latter being in a better position to describe the question, having heard the witnesses and observed the deportment and manner of testifying during the trial, unless certain facts of substance and value had been placidly overlooked which, if considered, might affect the result of the case.[6]

Daryll lived with her grandmother in Naga City one month after she was born in 1989. She was already five years old when she was taken back by her mother in order to live with them in Pasig City in 1994. In January, 1995, she was brought back again to Naga City for treatment because she was bitten by a dog. While in her grandmother's custody, the child complained of pain in the genitalia during urination and bathing. OB-GYNE examinations yielded old hymenal lacerations and vaginal infection. It was also during this time that her grandmother observed the child to be acting strangely and violently which included: hyperirritability, aggressiveness, biting, masturbatory acts and violent tendencies. She was referred for psychological management and these were the observations:

Course of OPD Consultations:

From the time the patient was initially seen on Jan.24, 1995, she was asked to come for regular weekly follow-ups. She was initially observed to be very aggressive and irritable. She kept on throwing things and boxing her grandmother while the session was going on. She was very hostile to anybody and was uncooperative. She was started on Tofranil 25 mg HS and was scheduled for a series of psychological testing. Despite some difficulties encountered during the testing proper, she was able to finish the examinations conducted.

During the succeeding follow-ups, her medications were further increased and an additional mood stabilizer was given. Her behavior somehow improved. In one of the sessions conducted with her, she made mention that it was her father who allegedly sexually abused her. She said it was done on several occasions while she was still living in Pasig. The same information was revealed to the psychologist.

The mother paid her a short visit sometime in the 3rd week of February and after she left a week after, the child was again noted to show (sic) aggressive and hostile tendencies. With the aid of psychotherapeutic intervention the child is at present manageable.

Psychiatric Evaluation Results:

In view of the foregoing examination and findings, the patient was found to be suffering from ADJUSTMENT DISORDER, WITH DISRUPTIVE BEHAVIORAL SYMPTOMS AND DEPRESSIVE FEATURES. She is negative for any psychotic conditions.[7]

The defense claims that Daryll, when put to the witness stand, was unable to answer some questions. It also asserts that the testimony of a child of tender years (referring to Daryll) must be admitted with great caution and where there is doubt, should be excluded.[8]

The victim's failure to answer some questions is understandable. She was only five (5) years old when the rape took place and six (6) years old when she was put on the witness stand. Apart from this, she is a disturbed child who had disruptive behavioral symptoms. However, such conditions did not materially affect her credibility. When Daryll was, however, asked the material question of what her father did to her, she answered clearly, candidly and categorically that the accused-appellant inserted his penis inside her vagina several times.[9] It is an accepted precept that testimonies of child victims who are young and immature are given full weight and credit.[10] When a woman or a girl-child says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed.[11] We quote her testimony:

COURT:

Before the Private Prosecutor will proceed, the court would like to know if the witness is competent to testify considering that she is only six years old.

QUESTIONS FROM THE COURT:

Q.......Do you know the name of your father?

A...... (The witness can not answer)

Q...... Do you know the name of your mother?

A...... Marlene po.

Q...... Do you know her family name?

A...... I do not know sir.

Q...... By the way, do you know that if you tell a lie, that is not good and if you tell the truth, God will bless you?

A...... (The witness can not answer)

Q...... Do you know that to tell a lie is not good?

A...... Opo.

Q...... Do you know that telling the truth is good?

A...... Opo.

Q...... Do you know that what you will answer here to all the questions of your counsel are the truth?

A...... Opo.

Q...... When you are going to answer the questions of Atty. Lanot, do you know that you must tell the truth?

A...... Opo.

Q...... And do you know that if you tell a lie, and the court will find out that you did so, you can be placed in prison as punishment?

A...... Opo.

xxx

ATTY. LANOT:

Q...... Who is your father?

A...... Delano Mendiola sir.

Q...... If your father Delano Mendiola is around, can you point to him, you go down and tap his shoulder.

*Witness pointing to a person who when asked gave his name as Delano Mendiola.

Q...... And who is your mother?

A...... Marlene sir.

xxx

Q...... What if any, did your father do on (sic) the year 1994 and 1995, if any?

A...... He inserted his penis in my vagina.

Q...... How many times did your father inserted his penis in you vagina?

A...... Many times sir.

Q...... What did you tell your father when he inserted his penis to your vagina?

A...... (Witness can not answer)

Q...... What did you observe on your father when he inserted his penis to your vagina?

A...... None sir.

Q...... What happened to your vagina when your father inserted his penis to your vagina?

A...... It became reddish.

ATTY. LANOT:

I think that will be all your Honor.

COURT:

Any cross?

ATTY. ANTONANO:

Yes, your Honor.

CROSS EXAMINATION BY ATTY. ANTANANO:

Q...... In 1994 where are you residing?

A...... In Pasig ma'm.

Q...... When you say that you were residing in Pasig, with whom are you staying with?

A...... With my father.

Q...... Aside from your father, who else?

A...... With my sister.

Q...... What is the name of your sister?

A...... Daryll.

Q...... Aside from Daryll, who else?

A...... Only the two of us ma'm.

Q...... Do you know of somebody by the name of Gene?

A...... *No answer from the witness.

Q...... Who are your playmates when you were in Pasig in 1994?

A...... *No answer from the witness.

Q...... Is it not a fact that you have stayed in the house of your uncle named Eugenio Babon here in Pasig?

xxx

A...... That is not true.

Q...... Is it not a fact that when you were here in Pasig, your Lola was with you?

A...... No ma'm.

Q...... Now, do you remember what you were doing at the time that you were here in Pasig did you go to school during that time that you were here?

A...... *No answer from the witness.

Q...... And do you know the work of your father during that time in 1994?

A...... *No answer from the witness.

Q...... Is it not a fact that your mother and father are attending at a stall being owned by them in a market?

A...... That is not true ma'm,

Q...... And during that time that you were here in Pasig, where was your mother most of the time?

A...... She is selling.

Q...... Whereat?

A...... In the market.

Q...... What is your father doing when your mother is in the market? Where is your father?

A...... Using shabu ma'm.

Q...... How did you know that?

A...... He is getting shabu from the aparador.

xxx

Q...... You were saying that your father inserted his penis in your vagina, when and where did this take place?

A...... Many times.

Q...... Where?

A...... I was put inside the aparador.

Q...... Do you know the reason why your father placed you inside the aparador?

A...... Because he did something to my vagina.

Q...... And do you know who were present during that time in your house?

A...... None ma'm.

xxx.[12]

A...... rape victim who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent is a credible witness.[13] The lone testimony of the victim, which if credible and free from any serious and material contradictions, as in this case, is enough basis for the accused-appellant's prosecution and conviction.[14] Thus, the trial court did not err when it found with moral certainty that the accused-appellant was guilty beyond reasonable doubt of the crime charged.

To save himself, the accused points at his nephew, Gene (Jen) Babon, a 13 or 14-year old boy as the one who committed the rape. To substantiate this assertion, the defense presented the victim's younger sister, Macdo to testify that she saw Gene remove the panty of Daryll, covered himself and Daryll with a blanket, and put himself on top of Daryll.[15] The victim's mother, Marlene Mendiola corroborated Macdo's testimony and told the court that Gene frequented their house, brought food and candies and gave money in order to drive away the other sibling from the house in order to have carnal knowledge with Daryll.[16] The trial court, however, did not give credence to Macdo's testimony considering that she was a coached witness. Upon cross examination, she stated, to wit:

ATTY. LANOT:

Mr. (sic) Witness, this incident you are telling the court, when did this happen?

ATTY. ANTONANO:

May we ask counsel to be specific with the question. What incident?

ATTY. LANOT:

By Jean and Daryll.

A...... That was a long time ago.

Q...... And you could not remember what happened then?

A...... Hindi na po.

Q...... And what you are telling the court is what your mother told you, is it not?

A...... Yes, sir.

Q...... And there were many times that your mother was telling you repeatedly, is it not? What [did] your mother told (sic) you, to tell the court?

COURT:

Q...... What you told the court was everything your mother told you repeatedly, is it not?

A...... Yes, sir.

xxx.[17]

Nonetheless, there is actually nothing in Macdo's testimony from which to conclude that Gene had sexual intercourse with Daryll. On cross-examination by the prosecution, Macdo stated that she did not actually see what Gene and Daryll were doing under the blanket. Her testimony, therefore, cannot stand up to exculpate her father of the crime charged. The trial court, thus, correctly ruled:

xxx.

Accused's defense to the effect that Daryll's hymenal laceration, if not self-inflicted, were the result of her horsy-horsy game with her cousin Gene, suffers from inherent vulnerability and generates total disbelief. Daryll could not have punctured and lacerated her hymen with the use of a stick or "walis Tingting" because the pain would have been unbearable especially to a 5-year old child. In putting the blame on Gene, the defense makes capital of the testimony of Delmar Mendiola to the effect that one time Gene covered himself and Daryll with a blanket, removed Daryll's panty and fucked her. A...... meticulous analysis of the testimony of Delmar will, however, show that the same is not worthy of faith and credence. On Cross-examination, Delmar admitted that she was coached by her mother and that all she stated was taught by her mother (TSN, p. 11, Oct. 10, 1996). In answer to the clarificatory questions of the court, Daryll stated that she did not see what Gene and Daryll did under the blanket (TSN, 17 and 18, Supra.) The testimony of accused (TSN, p. 4, Nov. 23, 1996) and that of Marlene Mendiola (TSN, p. 5, Aug. 6, 1997) that they saw, on different occasions, Gene, fully clothed, on top of Daryll, even if true, are no more than suspicion, speculation or surmise that Gene had carnal knowledge of Daryll, and are utterly insufficient to rebut the evidence of the prosecution.[18]

Moreover, it is difficult to accept the version of the defense that it was Gene who was responsible for the defloration of Daryll. Consuelo Pedrosa testified that her grandson, Gene was childish, having suffered meningitis when he was six years old and could hardly talk.[19] If indeed Gene committed rape on Daryll, such incident would have made an unforgettable impression on her mind. It is a most natural reaction for victims of criminal violence to have a lasting impression of the manner in which the crime was committed and the identity of the person who was responsible therefor.[20] On the witness stand, when the questions propounded were focused on Gene, Daryll did not manifest any untoward reaction regarding her cousin which would lead the court to believe that she was afraid of Gene. Moreover, she categorically denied that Gene put himself on top of her:

Q...... When your father is not in the house, do you remember of any other person coming to your house?

A...... Nobody.

Q...... Even Gene, a relative of yours is not in the house?

A...... He does enter the house.

Q...... And do you know this Gene?

A...... Yes I know.

Q...... This Gene, you have played with him before in the house of your Uncle?

A...... No sir, we did not.

Q...... But by the way, do you know if how old is this Gene?

A...... He is older than me.

xxx

Q...... This Gene, did he have any occasion to put his self (sic) on top of you?

A...... None ma'm.

Q...... And was there a time that you were together covering yourself with a blanket?

A...... No ma'm.

Q...... By the way, who is this Gene, do you have any relation with him?

A...... I only know him ma'm.

xxx.[21]

On the other hand, when she was asked what her father did to her, she answered in a straightforward manner that he inserted his penis into her vagina many times and that it became reddish and painful.[22] This incident happened in their house in Pasig City:

QUESTIONS FROM THE COURT:

Q...... By the way your father according to you, put his sex organ inside yours, where did he do it?

A...... Inside the house, sir.

Q...... And where was this house located?

A...... In Pasig sir.

Q...... According to you, your father did this for many times, can you tell us the place where your father did this to you?

A...... In the house sir.

Q...... Where is this house.

A...... In Pasig sir.

xxx[23]

The accused was a drug user who was once confined in a rehabilitation center where he met his wife, Marlene Pedrosa.[24] As testified by the victim, her father was using shabu taken from the aparador.[25] This allegation was never disputed. We agree with the observation of the Solicitor General that "a person under the influence of shabu or prohibited drugs is capable of committing the most base and vile act."[26]

Furthermore, the accused asserts that the complaint filed by Daryll's grandmother against him was ill-motivated as she did not approve of him to be her daughter's husband. While Consuelo Pedrosa did admit that she was mad at her son-in-law because he was maltreating her daughter, Marlene,[27] that was too flimsy a reason for her to concoct a story of rape on her granddaughter. It is unbelievable that a grandmother would expose her innocent granddaughter to humiliation and stigma of a rape trial just to discontinue the relationship between the accused and her daughter.[28] Consuelo Pedrosa had taken care of Daryll since infancy. The interest and welfare of the child was her main concern which is why she pursued the case against the accused since Marlene did not want to help her daughter.

Rape is such an abominable act especially when it is committed by a father on his minor daughter. We understand the defense's grim determination to escape the harsh punishment of death.[29] The law may be exceedingly hard but so the law is written and the Court is duty bound to apply it.[30]

In line with the prevailing jurisprudence, an indemnity of P75,000.00 is awardable to the victim, the rape being qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory law.[31] In addition, an award of P50,000 as moral damages is granted without the need of proof of the basis thereof. Nonetheless, the victim in the case at bar is entitled to the award considering that she was found to be suffering from "Adjustment Disorder, with Disruptive Behavioral Symptoms and Depressive Features"[32] as a result of the sexual assault done to her by her father.

Four members of the Court are steadfast in their adherence that R.A....... 7659 is unconstitutional insofar as it prescribed the death penalty. However, they bow to the majority opinion that the said law is constitutional and thereunder, the imposition of the death penalty is proper.

WHEREFORE, the Decision, dated March 11, 1998 of the RTC, Pasig City, Branch 166, finding accused-appellant Delano Mendiola guilty beyond reasonable doubt of the crime of rape against his 5-year old daughter Daryll and sentencing him to suffer the supreme penalty of death, is AFFIRMED with MODIFICATION. Accused-appellant is ordered to pay the offended party the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages.

Upon finality of this decision, let the Records of this case be forthwith forwarded to the Office of the President for possible exercise of his pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

[5] Brief for Accused-Appellant, p. 1; Rollo, p. 36.

[7] Report on the physical and psychiatric condition of DARYLL MENDIOLA, Records, p. 10.

[14] People v. Genontiza, 285 SCRA 478 (1998).

[15] TSN, Nov. 23, 1996, p. 12; TSN, Oct. 10, 1996, pp. 6-8.

[22] Id., at 14-16. Sworn Statement of Daryll Mendiola, Records, p. 4.

[29] Article 335 of the Revised Penal Code (as amended by RA 7659) provides:

ART. 335. When and how rape is committed: - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

xxx

The death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouses of the parent of the victim.

[31] Article 335, as amended by R.A.. 7659 and R.A.. 8353; People v. Abundio Mangila y Pariño, G.R. Nos. 130202-04, Feb. 15, 2000.