SECOND DIVISION
|
PEOPLE OF THE Appellee, - versus - HAROLD
WALLY CABIERTE, Appellant. |
G.R.
No. 170477 Present: QUISUMBING, J., Chairperson, CARPIO,
CARPIO MORALES,
TINGA, and VELASCO, JR., JJ.
Promulgated: August 7, 2007 |
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D E C I S I O N
CARPIO MORALES, J.:
On complaint of AAA, accused-appellant
Harold Wally Cabierte, together with Jerry Macabio (Macabio) and Norbert
Viernes (Viernes), was charged before the Regional Trial Court (RTC) of
That
on or about the 2nd day of December 1997, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually aiding one another,
dragged the undersigned inside the tent, held my hands, spread my legs after
stripping off my clothings with force, and then did then and there willfully,
unlawfully and feloniously have carnal knowledge with the undersigned, against
my will and consent.[1]
The case was docketed as Criminal
Case No. 15542-R.[2]
Upon reinvestigation, the prosecution found that three crimes of rape were committed by appellant and his co-accused,[3] hence, two additional informations, docketed as Criminal Cases No. 15594-R and No. 15595-R, with wordings substantially similar to the first, were filed.[4]
The prosecution’s version of events that
led to the filing of the cases is as follows:[5]
At around
AAA then asked where her boyfriend was. Viernes told her to wait. She thus conversed with the group who was engaged
in drinking.
As the night wore on, appellant,
Viernes, Macabio, and Villasanta entered the makeshift tent and teased each
other by removing each other’s pants.
In the meantime, while Viernes was
inside the tent, he offered AAA a
cigarette. Responding, AAA approached
the entrance of the tent and when she was about to get the cigarette, Viernes put
it at his crotch.
AAA thus indicated that she would no
longer get the cigarette, but Viernes waved it at her so she took it, went back
to the bonfire, and smoked.
AAA later proceeded to the tent together
with Recario. Viernes soon got pushed
towards AAA, hitting his nape with her cigarette. Enraged, Viernes grabbed AAA, pulling her
inside the tent, making her fall on her knees.
As AAA tried to stand, Viernes pushed
her and pinned her down with his body (dinaganan). Appellant thereupon held AAA’s hands as Macabio
held her legs. Viernes soon had sexual
intercourse with AAA over her protests and despite her physical struggles.
After Viernes, appellant, followed by
Macabio, had sexual intercourse with AAA also against her will and despite her physical
struggles.
After the boys left the tent, AAA
went home, arriving before
The following day, or on December 4,
1997, AAA’s boyfriend who had gotten wind that she was “ginalaw ng tatlo,”[7]
confronted her and urged her to tell her parents about what happened. She thus told her mother who accompanied her
to the Baguio City Police Office where she executed a sworn statement.[8]
On
F
I N D I N G S:
GENERAL PHYSICAL EXAMINATION:
Height: 157.5 centimeters Weight: 65 kilograms
Conscious, coherent, cooperative, ambulatory, fairly nourished, fairly developed.
PHYSICAL INJURIES
NOTED: (EXTRAGENITAL)
· CONTUSIONS:
1) 5.0 cms. x 3.0 cms., forearm, right, anterior surface, black-brown, coalescing borders.
2) 5.0 cms. x 3.5 cms., black-purple, rounded boarders with medial border resolving, knee, left.
· ABRASIONS, MULTIPLE, LINEAR, over an area 5.0 cms. x 3.0 cms., posterior trunk area.
· ABRASION, with scab formation, 4.0 cms. x 2.0 cms., chest, posterior, left.
BREASTS: conical, developed, soft. AREAOLAE: dark brown, 2.0 cms. in diameter.
NIPPLES: protruding, dark brown, 0.7 cms. in diameter.
GENITAL EXAMINATION:
· PUBIC HAIR: developed, fully grown, sparsely distributed. LABIA MAJORA and MINORA: both slightly gaping. FOURCHETTE: slightly gaping. VESTIBULAR MUCOSA: slightly congested.
· HYMEN: originally annular, tall, thick, fleshy, with old-healed lacerations at 6:00 o’clock [sic] and 9:00 o’clock [sic] corresponding to the face of a watch, edges of which are fully rounded and non coaptable.
·
HYMENAL ORIFICE:
admits a tube with 2.5 cms. in diameter with slightly difficulty.
· VAGINAL WALLS: slightly lax. RUGOSITIES: prominent.
CONCLUSIONS:
1)
The above described physical injuries were noted on
the body of the subject at the time of examination, age of which is compatible with the alleged date of commission.
2)
Old-healed complete hymenal lacerations noted.[9] (Emphasis and underscoring supplied)
Appellant and his co-accused admitted
having had sexual intercourse with AAA on
The defense presented two members of
the barkada, Wilma Fagyan (Wilma) and Sharon Caballes (
The defense presented too evidence that
AAA was known as a “pokpok girl,” one who “is willing to have sexual
intercourse with anybody.”[11]
On AAA’s extra-genital injuries, the
defense attributed it to her falling down a cement staircase during Viernes’
birthday party on
By Decision[13] of
WHEREFORE,
the court finds the accused Harold Cabierte, Jerry Macabio, and Norbert Viernes
guilty beyond reasonable doubt as conspirators and confederates of the offense
of rape (3 counts) as charged in the three cases in Criminal Case Nos. 15542-R,
15594-R, and 15595-R, defined and penalized under Article 266-A, paragraph 1(a)
in relation to Article 266-B of Republic Act 8353 [sic],[15]
with the alternative mitigating circumstance of drunkenness, and hereby
sentences each of them in each of the three cases as follows: Accused Harold Cabierte to suffer the penalty
of reclusion perpetua; accused Jerry Macabio, a minor under 18 years old, to
suffer imprisonment ranging from SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum, to
TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal as maximum; accused
Norbert Viernes, being a minor under 18 years old, to suffer imprisonment
ranging from SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum, to TWELVE (12) YEARS
and ONE (1) DAY of reclusion temporal as maximum; to indemnify jointly
and severally the offended party, [AAA], the sum of FIFTY THOUSAND (P50,000.00)
PESOS as civil indemnity without subsidiary imprisonment in case of insolvency,
and to pay the proportionate costs.
The accused Harold Cabierte, being a detention prisoner, is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Code.
The youthful offenders, Jerry Macabio and Norbert Viernes, who were released on recognizance to the custody of their parents upon their application and with the recommendation of the Department of Social Welfare and Development pursuant to Article 191 of P.D. 603, are directed to manifest to the Court immediately if they are applying for a suspended sentence or they will interpose appeal so the appropriate action may be taken by the Court under Articles 191 and 192 of P.D. 603.
SO ORDERED.[16]
As reflected in the above-quoted dispositive portion of the trial
court’s decision, the sentence of the then minors, Viernes and Macabio, was suspended.[17] They were committed to the custody of the Department
of Social Welfare through the
Appellant filed a Notice of Appeal.[19] In view of the imposition of the penalty of reclusion
perpetua, the records of the case were forwarded to this Court.[20]
By Resolution of
By Decision[24] of
P50,000.00 as moral damages.
The Court of Appeals also gave him full time credit for preventive
suspension.[25]
Hence, the present appeal which
raises the sole issue of whether force attended the sexual intercourses.
Article 266-A of the Revised Penal
Code provides:
Art. 266-A. Rape, When and How Committed. – Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat or intimidation;
x x x x
On the degree of force as an element
of rape, this Court finds it “not necessary to show that irresistible force
or intimidation accompanied the crime of rape; it suffices to show that force
or intimidation was present and did result in the accused copulating with the
offended woman against her will.”[26]
That force attended each sexual
intercourse by the conspirators as claimed by AAA is confirmed by the findings
of Dr. Bandonill.
Thus, Dr. Bandonill noted the
presence of abrasions on AAA’s lower back and at the back of her chest, as well
as contusions on her right forearm and left knee. Explaining these injuries, the doctor
declared:
[ATTY. OPIANO]
Q: What would have caused such a contusion on the forearm of the victim?
[DR. BANDONILL]
A: It would have been caused by a hard blunt object hitting that area.
Q: And the contusion on the knee, what could have caused this contusion?
A: The contusion on the knee would also have been caused by a hard blunt object hitting that organ also.
Q: And with these contusions what could be [these] blunt, hard x x x objects that would have been applied on this part of the body of the victim?
A: Well, it could be a piece of wood, it could also be a piece of stone, it could also be the fist.
Q: We go to the abrasions that you referred to. Please describe to us what these abrasions are?
A: The first abrasion which is entered as abrasion multiple linear over an area 5 cms. x 3 cms. posterior trunk area, these are gasgas or lines which are found at the lower back of the subject, ma’am.
Q: And
what would be the cause of this multiple linear abrasion on the back of the
victim, Mr. Witness?
A: It might have been caused by a hard rough
surface coming to contact with the area.
Q: What about the abrasions which you
mentioned on the posterior left chest area of the victim?
A: Again, ma’am, this abrasion which is found
at the back of the left chest would have been caused by x x x coming into
contact with a hard rough surface.[27]
x x x x
Court: [Q:] Now, let us go back to these contusions and abrasions you mentioned. You mentioned awhile ago that this contusion could have been caused by a hard blunt instrument like a piece of wood or a stone. Now, supposing no wood or stone was used on her, what could have caused these contusions?
A: Possibly, Your Honor, it could have been the fist.
x x x x
Q: Because you mentioned these contusions were on the right forearm and left knee. Now is it possible that these contusions can be sustained if somebody puts his hand or even his knees on top of your right forearm so you won’t be able to struggle or you would be immobilized?
A: That’s possible, Your Honor, if it was done with pressure and it was done with heavy weight.
Q: How
about this gasgas, could it
be possible that if you lay down on the ground which is a rough surface the
friction at the back of the body could cause that gasgas or abrasion while you
keep moving and struggling?
A: That is highly possible, Your Honor.
Q: Because of the rough surface on the
ground?
A: Yes, your Honor.
x x x x
[ATTY. OPIANA]: I would like to follow up on the question of the contusion on the knee of the patient. Where at the knee of the patient would that contusion be located?
A: It’s above the middle border of the knee. That means, right at the center of the knee, ma’am.
Q: What could have caused this aside from xxx a blunt object. How would have been applied [sic] on the knee?
A: Well, as discussed earlier, ma’am, it could have also [been] by a heavy weight, a hard blunt object placed on that area with a heavy weight.
Q: Would it also be possible that a fist was used over said knee?
A: It’s possible, ma’am.
COURT [Q]:
How about the person trying to immobilize that girl by putting his
entire body on the top of her and first his knee or his own legs is pressed on
that portion of the body?
A: That’s also possible, Your
Honor.
Q: It can cause that contusion?
A: It can cause that contusion, Your Honor.[28] (Emphasis supplied)
It cannot be gainsaid that the
injuries found by Dr. Bandonill are compatible with the claim of AAA at the
witness stand:
x x x x
Q: What did you do when [Viernes] pulled you inside madame witness?
A: I was about to stand but he pushed me.
x x x x
Q: What happened after he pushed you?
A: When I fell down, he pinned me with his
body.
PROSECUTOR CENTENO:
May we just quote the Tagalog word, “dinaganan.”
ATTY.
BERNABE:
Q: After he pinned you down with his body,
what did you do next?
A: I was pushing him.
Q: And
were you able to push him, madame witness?
A: No, Ma’am.
Q: Why were you not able to push him?
A: Because he was heavy.
x x x x
Q: What happened next if any, madame witness?
A: Jerry and Wally came near.
Q: When these Jerry and Wally came near you, what happened next if any?
A: Wally held my hands while Jerry held my feet.[29]
x x x x
Q: How did you feel when Norbert put his penis into your vagina and did the push and pull movement?
A: I felt pain at my back so [sic] with my hands and my feet and I also felt pain on my vagina because he was forcing his penis into my vagina.[30]
x x x x
Q: And what did Jerry do madame witness when he went on top of you?
A: He also inserted his penis into my vagina.
Q: And when he inserted his penis into your vagina, what happened next madame witness?
A: He also made a push and pull movement?
Q: While he was doing the push and pull movement, madame witness, what were you doing?
A: I was struggling, I was crying and I was hurling invectives
to him.
Q: How did you feel madame witness when jerry did the push and pull movement?
A: I felt pain on my buttocks and on my back.
x x x x
Q: How long did Jerry do the push and pull movement madame witness?
A: Quite long.[31]
x x x x
Q: When Wally came on top of you, what happened, madame witness?
A: He also pulled down his pants.
Q: And after pulling down his pants, madame witness, what happened next?
A: He also inserted his penis into my vagina.
Q: After he inserted his penis into your vagina madame witness, what happened?
A: He also made a push and pull movement.
Q: And
when he made the push and pull movement, madame witness, how did you feel?
A: My back is painful and my hands were hurt
because he also pinned it down.[32]
x x x x
[ATTY. ESPIRITU]
Q: x x x [Norbert] also removed his pants and immediately inserted his penis inside your vagina, is that correct?
[AAA]
A: Yes, sir.
Q: He did it with ease without much problem, isn’t it?
A: Maybe he had difficulty because I was closing my legs.
Q: Now when your legs were open, did you not
avoid the thrust by just shaking your buttocks?
A: I did that, sir.[33]
x x x x
[ATTY. BERNABE]
Q: x x x How did you struggle, Madam Witness?
[AAA]
A: I wiggled moved my buttocks and I was
trying to close my legs.
x x x x
Q: When Jerry was on top of you, Madam witness, and did what you related, what did you do?
A: I was asking him to stop and I fought him.
Q: How did you fight him?
A: I moved my body and I pushed him and I tried to close my legs.[34] (Emphasis supplied)
The defense
claim that AAA sustained the extra-genital injuries when she fell down a
concrete staircase during Viernes’ birthday party on November 14, 1997 is belied
by Dr. Bandonill’s finding that AAA’s injuries were at least six or seven days
old.[35] It bears recalling that Dr. Bandonill
examined AAA on
In an
attempt to destroy AAA’s credibility, the defense draws attention to her
supposed reputation as a pokpok girl and her admission that prior to
December 2, 1997 she already had sexual intercourse with her boyfriend.[36]
In a
further attempt to show that AAA consented to having sexual intercourse with appellant,
the defense cites AAA’s having lingered with the group despite the following
circumstances: her boyfriend was not around,
none of the female members of the barkada was present, the male members
of her barkada were removing each other’s pants, and Viernes
put the cigarette offered to her at his crotch.[37]
Assuming
that AAA is, indeed, a pokpok girl, it is settled that:
[T]he victim’s
character in rape is immaterial. Even
the fact that the offended party may have been of unchaste character constitutes
no defense to the charge of rape, provided that it is proved that the illicit
relations described in the complaint was committed with force and violence.[38]
As for
her staying with the male members of her barkada despite the circumstances
indicated above, AAA’s explanation therefor ─ that the group told her
that her boyfriend would arrive and she trusted them[39] ─
is plausible. Her naïvete
of trusting the three accused is understandable, given that she was only 14
years old when the incidents occurred.[40]
The
defense goes on to harp on AAA’s delay in reporting the incidents.[41] The
oft-repeated observation of this Court that it is not unusual for a rape victim
to conceal the incident at least momentarily[42]
should address this. As AAA declared, she
initially lacked the courage[43]
and was ashamed to do so, her mother having advised her several times not to go
with her barkada,[44]
and she having sneaked out
of the house on the night of the incident.[45] Additionally, she declared that she was confused
because “at that time I don’t [sic] know who really are
my friends already,”[46] and
she was afraid no one would believe her because the malefactors were members of
her barkada.[47]
As for the
brushing aside by the lower courts of the testimonies of Wilma and Sharon that AAA
had bragged to them about having had sexual intercourse with appellant and his
co-accused, the same is well-taken.[48]
WHEREFORE, the appeal is DENIED. The decision appealed from is AFFIRMED.
Costs against appellant.
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
|
LEONARDO A. QUISUMBING Associate Justice Chairperson |
ANTONIO T. CARPIO Associate Justice |
|
DANTE O.
TINGA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
ATTESTATION
I attest that the conclusions in
the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.
REYNATO
S. PUNO
Chief Justice
[1] Records, Vol. I, p. 1.
[2] Ibid.
[3] Records, Vol. I, pp. 5-7.
[4] Records, Vol. II, p. 1; Records, Vol. III, p. 1.
[5] TSN, May 13, 1998, pp. 2-39; TSN,
[6] TSN,
[7] TSN,
[8] Exhibit “A,” Folder of Exhibits, pp. 1-3.
[9] Exhibit “D,” Folder of Exhibits, p. 6.
[10] TSN,
[11] TSN,
[12] TSN,
[13] Records, Vol. I, pp. 190-206.
[14]
[15] The cited Articles 266-A and 266-B were incorporated into the Revised Penal Code by Section 2 of the Anti-Rape Law of 1997 (Republic Act No. 8353) which amended the Revised Penal Code.
[16] Records, Vol. I, pp. 204-206.
[17]
[18]
[19]
[20]
[21] CA rollo,
p. 182.
[22] G.R. Nos. 147678-87,
[23]
[24] Penned by Court of
Appeals Associate Justice Juan Q. Enriquez, Jr., with the concurrences of
Associate Justices Portia Aliño Hormachuelos
and Vicente Q. Roxas. CA rollo, pp. 185-199.
[25]
[26] People v. Ronquillo,
G.R. No. 76213,
[27] TSN,
[28]
[29] TSN,
[30]
[31]
[32]
[33] TSN,
[34] TSN,
[35] TSN,
[36] TSN,
[37] CA rollo,
pp. 72-79, 106; TSN,
[38] People v. Bacalzo, G.R. No. 89811,
[39] TSN, May 18, 1998, p. 16; TSN, June 5, 1998, pp. 9-10; TSN, November 10, 1998, pp. 3-5, 12-13.
[40] Vide
records, Vol. I, pp. 166-167, 177; Exhibit “A,” Folder of Exhibits, p. 1;
TSN,
[41] CA rollo,
pp. 82-84.
[42] Vide
People v.
[43] TSN,
[44] TSN,
[45] TSN,
[46] TSN,
[47] TSN,
[48] CA rollo,
pp. 197-198.
[49] TSN,
[50] TSN,