Republic of the Philippines

EIGHT JUDICIAL DISTRICT. REGIONAL TRIAL COURT

Branch 41, Pinamalayan, Oriental Mindoro

Copy no.___

People of the Philippines

Plaintiff,
Criminal Case no. 5341-96

--- versus ---

Pepito Favila, Jr. (Deceased),

Mayor Renato Reyes (Deceased),
Abelardo de Castro, Porferio Esguerra
and Nicasio Lusaya,
Accused.

x-------------------------------------------x

MEMORANDUM

In Compliance with the Order of this Honorable Court, accused-movants Abelardo de

Castro, Porferio Esguerra and Nicasio Lusaya, through counsels, most respectfully submit this
Memorandum, moving for the acquittal of the accused in this case, and state that –

“Better that ten guilty person’s escape, than that one innocent suffer.” 1

I. Facts

On October 1, 1995 at around 7 o’clock in the evening, the Barangay Captain of

Barangay San Isidro in Pinamalayan, Oriental Mindoro, was murdered inside his house.

During that time, ANGELITA GANTON, wife of Prudecio’s grandson Felix, was in
Prudencio’s house saw PEPITO FAVILA, Jr. allegedly shoot Prudencio. She further avert that
FAVILA who was the lover of witness LAILA killed Prudencio after the latter revealed their illicit
relationship to Laila’s husband.

On that same day, accused NICASIO LUSAYA who had been working for Ex-Mayor
RENATO REYES as a driver and ABELARDO DE CASTRO were at the mayor’s beach house in
Barangay Aplaya, in a distance of about 40 minute-drive from Barangay San Isidro the whole
day of 1 October 1995; and at 7 o’clock in the evening Lusaya was watching television at the
terrace with de Castro, Dionisia “Doty” Rodriguez, a certain Christy and other persons in the
neighborhood. They were seen by Mayor Capisanan.

Hours later, after hearing of the shooting incident, Mayor Capisanan went to the crime
scene to investigate. LAILA LINESES told him that she did not witness the shooting as she was
already in bed and about to sleep.
Accused PORFERIO ESGUERRA at the time was in Calatagan Batangas, and fishing in the
sea between Batangas and Mindoro with three Visayan companions.

1
William Blackstone, English Jurist
2|M e m o r a n d u m f o r t h e A c c u s e d
 Four months later, PEPITO FAVILA, JR. was arrested by the police in connection with
another murder. In the course of interrogation, he executed extra-judicial confession for the
murder of PRUDENCIO REYES and implicated the accused as co-perpetrators.

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II. Issues

A. Whether or not the Alibi interposed by the accused Abelardo de Castro, Porferio
Esguerra and Nicasio Lusaya can be overthrown by the alleged positive identification of
the prosecution witnesses, Gerardo Reyes and Leila Grabi Lineses

B. Whether or not the prosecution witnesses failure to point the accused immediately after
the shooting incident weakens their credibility

C. Given the inconsistent statements of the above-mentioned prosecution witnesses,

whether or not the same is enough to prove the guilt of the accused beyond reasonable
doubt.

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III. Arguments

A. The Alibis interposed by the Accused are supported by the testimonies of

disinterested and credible witnesses.

3.1
The accused Nicasio Lusaya, Abelardo de Castro and Porferio Esguerra all mentioned in
their respective sworn statements that they were not present in the scene of the murder, nor in
the near vicinity, during the evening of October , 1995. These statements are supported by the
sworn testimonies of Engineer Romeo E. Lahermenonaga, Municipal Engineer of Bongabong,
Oriental Mindoro, Major Oliver Capisanan, Chief of Police of Bongabong, Angelita Ganton,
granddaughter-in-law of the victim, and Dionisia Rodriguez, a former house-help of the
deceased accused, Mayor Renato Reyes.

3.2
The Court has previously ruled in several cases that the evidence given by the
testimonies of several disinterested witnesses were entitled with greater weight that that of
interested witnesses. 2
Where there are discrepancies or inconsistencies in the relation of events, the courts prefer to
accept the version of disinterested witnesses having satisfactory means of knowledge. Courts
are more favorable to disinterested witness testimony when it is delivered with confidence and
detail. 3 For an alibi to prosper, it is necessary that the corroboration is credible, the same
having been offered preferably by disinterested witnesses. The defense failed thuswise. Its
witnesses cannot qualify as such, “they being related or were one way or another linked to each
other4

2
Maseck Towing and Transportation Co. v. Ryan, 54 S. Ct. 715
3
II. Moore on Facts, 929-930
4
People v. Jacinto, G.R. No. 182239, March 16, 2011
3|M e m o r a n d u m f o r t h e A c c u s e d
3.3
To reiterate, accused Nicasio Lusaya said that he was at the beach house of his employer,
deceased Mayor Renato Reyes, located in Barangay Aplaya, the whole day of 1 October 1995.
He spent the evening watching television at the terrace with his co-accused Abelardo de Castro
and Dionisia Rodriguez, among with other persons in the neighborhood. This statement was
corroborated by the testimony of Mayor Oliver Capisanan, the latter saying that he saw the two
accused at approximately 7:10 in the evening in the beach house together with other members
of the household staff. Engineer Romeo E. Lahermenoaga also mentioned that the distance
between the scene of the crime and the beach house is about eight (8) kilometers, or
approximately thirty (30) to forty (40) minutes of travel time by vehicle from the locus criminis.

3.4
This clearly supports the alibi given by the accused, indicating that it is physically
impossible for them to be at the scene of the murder during the time indicated by the
prosecution, or even thereafter. The Court has consistently ruled that for an alibi to stand, the
accused must prove that:

a. He was present at another place at the time of the perpetration of the crime, and
b. It was physically impossible for him to be at the scene of the crime. 5

Here, “physical impossibility” is clearly established by the evidence. The same is referred to as
the distance between the place where the accused was when the crime transpired and the
place where it was committed, as well as the facility of access between the two places 6. The
distance between the two points cannot be traversed within a short amount of time, given the
rough road conditions, terrain and the darkness of nighttime, even if one is transported by a
motor vehicle. It would therefore be impossible for the accused to have shot the victim during
the timeframe coinciding with the happening of murder. Witness Engr. Lahermenoaga is clearly
acquainted with the rough road conditions of the Calapan-Roxas Provincial Roadways of the
province, being municipal engineer of one of the towns across the said main provincial road. His
observations of the estimate of distance and the time between the location of the accused and
the scene of the crime must be given weight, for neither was given to promote his own interests
or gratify his partisan feelings7.

3.5
Witness Angelita Ganton, who was at the scene of the crime did not give any testimony
as to the presence of the other co-accused of Pepito Favila, Jr. during the shooting. Witness
Dionisia Rodriguez also corroborated the testimony of the accused Lusaya and De Castro that
they at the beach house during the killing of the victim. These testimonies must be given credit
by the Court, since it is held that the testimonies of witnesses who are not party to a suit or in
privity with a party must be given weight, in the absence of proof of the latter’s pecuniary
interest, bias, partiality, proclivity, personal grievances, personal hostility, familial or filial
relations or other circumstances that may prove that his statements have vestiges of bias 8.

3.6
Accused Porferio Esguerra testified that he was in Calatagan, Batangas during the night
of the murder. The fact that he is both a witness and a defendant in the criminal case does not
condemn him as unworthy of belief. The Court must not immediately conclude that his
testimony is purely self-serving given the gravity of the offense, for his testimony is not
necessarily contrived because of fear of conviction. The Court must properly consider his
manner of testifying, the inherent possibilities and probabilities of his testimony, the amount

5
People v. Mosquerra, G.R. no. 109209, 9 August 2001, People vs. Lumantas, 28 SCRA 764 [1969]
6
People vs. Aparato, 80 Phil. 199
7
The General Rucker, 35 Fed. Rep. 152, 157
8
Walmsley v. Griffith, 10 ONt. App 327, 331; Hough v. Richardson 3 Story (US) Fed. 659
4|M e m o r a n d u m f o r t h e A c c u s e d
and character of the contradictory testimony, and the impeaching evidence given by the
prosecution before a judgment may be passed as regards to the truthfulness of his statement 9.

B. The Defense of Alibi can stand to prove the innocence of the accused, as long as it
is supported by clear, convincing and credible proof.

3.7
As a general rule, the defense of alibi is one of the weakest defenses available to an
accused in a criminal case. Conversely however, the Supreme Court, in more than one occasion,
held that the defense of alibi may acquire commensurate strength where the witnesses have
made no positive and proper identification of the offender. This is because the inherent
weakness of alibi as a defense does not operate to relieve the prosecution of its responsibility to
establish the identity of the offender by the same quantum of evidence required for proving the
crime itself10.

3.8
Gerardo Reyes identified the accused, Abelardo de Castro, only through the light cast by
a Coleman lamp from their sala and the improvised lamps in their kitchen. This identification is
not reliable considering that the crime happened at night time. It is of common knowledge that
in a provincial setting, the streets are really dark at night. Also, Coleman lamps vary in intensity
while improvised lamps, generally, only provide a small amount of light. Considering that said
lamps are inside the house, from the sala and the kitchen, it is difficult to rely on the degree of
light available for Gerardo who only peeped through the window, to identify with certainty the
person outside their house.

3.9
Meanwhile, Laila Grabi Lineses identified Abelardo de Castro by merely looking out of
the window of her house. Ironically, Gerardo on one hand had to justify that he was able to
identify the accused through the light available when Laila, on the other hand, simply testified
that when she looked out the window, she saw Abelardo de Castro. Surprisingly, she only made
mention of the “well-lighted sala” in narrating how he saw the victim collapse. If such was the
case, why is there then a need for her to ascertain Prudencio’s death if she is, as she said, was in
fear for her own self-preservation? the What is more intriguing is that Laila mentioned that she
saw two armed men but only identified Abelardo when she could have possible identify even
without naming the companion of Abelardo is indeed it was that easy for her to identify the
latter by merely looking out the window.

3.10
More importantly, neither Gerardo nor Laila identified the gunman.

3.11
In order for the case to have the possibility of securing a conviction in trial, the
prosecution cannot afford to depend largely on witnesses' oral testimonies and
on the principle of "positive identification" alone.

3.12
In the Vizconde murder, the Supreme Court applied two tests in rejecting the “positive
identification” of the witness, Jessica Alfaro. First, the “credibility of a witness”; second, the
testimony should be “believable, not inherently contrived”. It strictly laid down these as the
least requirements in evaluating the credibility of the claim of “positive identification”. The
Court cautioned itself from accepting the testimonies of witnesses without applying these
important tests. It held that “a positive declaration from a witness that he saw the accused

9
Reagan v. US, 157 US 301
10
People ofthe Philippines vs. Julian Pajes y Ponda, et al, G.R. No. 184179, April 12, 2010
5|M e m o r a n d u m f o r t h e A c c u s e d
commit the crime should not automatically cancel out the accused’s claim that he did not do it.
A lying witness can make as positive an identification as a truthful witness can”. 11

3.13
Granting, without conceding that the prosecution witnesses positively identified the
accused, still their positive identification cannot be accepted as credible and with merit
because they are both not credible witnesses. First, Gerardo, being the son of the victim known
to have filed a case against one of the accused, the deceased Mayor Favila, can be politically
motivated in pressing the murder charge against Favila and Abelardo, Favila’s known body
guard. Secondly, Laila, who according to two of the defense witnesses has an illicit relationship
with Mayor Favila, can be personally motivated in pressing the charge against Abelardo but
never on Favila. This testimony of hers runs contrary to the testimony of another defense
witness, Angelita Ganton, who said that it was Mayor Favila who killed the victim after the latter
revealed their illicit relationship to Laila’s husband.

Moreover, the witnesses are relatives whose testimonies can be easily corroborated. The
presence of their political and personal motives makes it difficult for them to overcome the test
requiring their testimony to be believable and not inherently contrived. “Testimonies of close
relatives and intimate friends is regarded as the weakest of evidence” 12.

C. The witness failure to point the accused immediately after the shooting incident
weakens their credibility.

3.14
The prosecution witness testimony is not credible. Geraldo and Laila only revealed what
they knew in 1997 or more than one year after the incident happened. Considering that the
witnesses are closely related to the victim, it is a natural tendency for them to report the crime
and describe the malefactors in the earliest possible time.

3.15
In People vs. Bautista13i, the Court states that:

“The rule is ordinarily to the effects 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 were such delay is not sufficiently justified by any acceptable
explanation.”

3.16
For instance, well founded fear of reprisals, or the unpredictable manner by which
individual react when confronted by a gruesome event as to the place the viewer in the state of
shock for sometime, have been considered as permissible situations resulting in delay.
Invariably, however, even under the foregoing circumstances the delay must not be undue in
point of time. Thus, failure to reveal what one has witnessed about a crime for a number of
days, or weeks, or even a number of months, is allowable. But, that will not hold true where, as
in the case now being reviewed, the delay had unreasonably stretched all too far out into a
year and four months, especially in the absence of any compelling or rational basis for such self-
impose and lengthy silence.

3.17
The holding in People vs. Cunanan14ii, et al. was emphatic that-

11
People of the Philippines vs Webb et al. G.R. No. 176864, December 14, 2010.
12
Colo. Ballou v. First National Bank, 53 P. 2d
13
G.R. No. 120898-99 May 14, 1998
14
G.R. No. 60098 April 30, 1984
6|M e m o r a n d u m f o r t h e A c c u s e d
 “The natural reaction of one who witnesses a crime is to reveal it to the authorities,
unless of course, he is the author thereof. It defies redulity that no one or two but five such
witnesses made no effort to expose Cunanan if they really knew that he was the author thereof.
This stultified silence casts grave doubts as to their veracity.”

3.18
In the end, we have here a specified case where evidence of identification is thoroughly
unreliable. The reason. no valid explanation was given why the People’s witnesses did not
report the identity of the appellant Cunanan to the authorities during a long period of time.

3.19
In People vs. Cruziii, the Courts reiterates that-

“It took forty-two (42) days after the incident for Modesto Alipio to come out and give
his sworn statement, Exhibit “B”, to the Philippine Constabulary narrating herein what he saw
on the occasion . xxx. Failure on the part of Alipio to report to the authorities immediately-a
very essential detail in the solution of the crime- engenders a suspicion that he was not
altogether candid and truthful in his testimony. At any rate, the long delay, which is not caused
by threat, intimidation, or coercion by herein appellant or anybody for that matter, in reporting
the matter to the authorities- the mayor, barangay captain, police or the Philippine
Constabulary, by one who himself was once an army has rendered the evidence for the
prosecution insufficient to establish appellant’s guilty connection to the requisite of moral
certainty x x x.”

3.20
People vs. Gonzales, et al.

“Additionally, Huntoria’s credibility as a witness is likewise tarnished by the fact that he

only came out to testify in October 1981, or eight long months since he allegedly saw the killing
on February 21,1981. While ordinarily the failure of the witness to report at once to the police
authorities the crime he had witnessed should not be taken against him and should not affect
his credibility, here, the unreasonable delay in Huntoria’s coming out engenders doubt on his
veracity. If the silence of an alleged witness for several weeks renders his credibility doubtful,
the more it should be for one who was mute for eight months. Further, Huntoria’s long delay in
revealing what he allegedly witnessed has not been satisfactorily explained. His lame excuse
that he feared his life would be endangered is too far to believed. There is no showing that he
was threatened by the accused or anybody. x xx .”

7|M e m o r a n d u m f o r t h e A c c u s e d
IV. Prayer

Wherefore, given all the foregoing circumstances, it is respectfully prayed that

the foregoing respondent’s be acquitted of the crime alleged.

Pinamalayan, Oriental Mindoro, 8 September 2011.

FREDERICK EUROLFAN, MARY HOPE HERNANDEZ,

KAREN RODRIGO and MA. PATRICIA REBAÑO
Counsels for the Accused

EUROLFAN, HERNANDEZ, RODRIGO & REBAÑO LAW

OFFICES
23 United Nations Center Building,
Ayala Avenue, Makati City
PTR No. 1548273

Copy Furnished:
The Panel of Investigating Prosecutors
Office of the Provincial Prosecutor of Oriental Mindoro
Municipality of Pinamalayan

The Trial Prosecutor

Regional Trial Court, Branch 41
Office of the Provincial Prosecutor of Oriental Mindoro
Municipality of Pinamalayan

8|M e m o r a n d u m f o r t h e A c c u s e d
i
G.R. No. 120898-99 May 14, 1998
ii
G.R. No. 60098 April 30, 1984
iii
G.R. No. 80762, March 19, 1996