Republic of the Philippines

Third Judicial Region

REGIONAL TRIAL COURT
Branch 74, Olongapo City
PEOPLE
OF
PHILIPPINES,

THE
Plaintiffs,

- versus L/CPL
JOSEPH
PEMBERTON,

SCOTT

Criminal
Case
865-14
For: Murder

No.

Accused.
x
-----------------------------------------x
COMMENT and OPPOSITION
(to Accuseds Omnibus Motion)
Private
states that:

Complainant,

through

counsel,

respectfully

1.
On 01 December 2015, the Honorable Court
promulgated its Decision dated 18 November 2015 in the
above-captioned case finding Accused Pemberton guilty
beyond reasonable doubt of the crime of homicide, the
relevant portion of the dispositive reads as follows:
WHEREFORE, judgment is rendered finding
accused L/CPL JOSEPH SCOTT PEMBERTON GUILTY
beyond reasonable doubt of the crime of homicide
and sentencing him to suffer the indeterminate
sentence of six (6) years of prision correctional as
minimum and twelve (12) years of prision mayor
as maximum with full credit for the period of his
preventive imprisonment pursuant to Article 29,
Revised Penal Code; and ordering him to pay to
the heirs of the late Jeffrey S. Laude, represented
by Julita Cabilan, as follows: a) Php 50,000.00 as
civil indemnity; b) Php 4,320,00 as damages for
loss of earning capacity; c0 Php 155,250.00 as
reimbursement for the wake, burial and other

related expenses as actual damages; d) Php

50,000 as moral damages; and e) Php 30,000.00
as exemplary damages.1
2.
Thereafter, Accused, through counsel, filed an
Omnibus Motion dated 15 December 2015 for (I) Partial
Reconsideration; (II) Bail; and (III) Clarification.
3.
During the 07 January 2016 hearing, the public
and private prosecutors were given ten (10) days within
which to file their respective comment/opposition to
Accuseds Omnibus Motion.
4.
On 18 January 2016, Private Complainant timely
filed an Urgent Motion for Additional Time praying for an
additional period of three (3) days, or until 21 January 2016,
within which to file her Comment/Opposition. Hence, this
Comment/Opposition is timely filed.
5.
With all due respect, Private Complainant does not
find any cogent reason for this Honorable Court to reconsider
its Decision dated 18 November 2015 with respect to the
damages awarded to the family of the slain transgender
Jennifer Laude.
6.
Furthermore, Private Complainant vehemently
opposes Accuseds Application for Bail and prays that the
same be denied for the reasons that will be discussed below.
7.
In support thereof, Private Complainant makes the
following submissions:
I
THE HONORABLE COURT WAS CORRECT IN AWARDING
THE AMOUNT OF PHP 4,320,000.00 AS DAMAGES FOR
LOSS EARNING CAPACITY
8.
Accused argues that the damages awarded by the
Honorable Court for loss of earning capacity is excessive and
without basis as documentary evidence should have

Decision, p. 58.

presented to substantiate the claim for loss of earning

capacity.2
9.
Private Complainant respectfully disagrees with
the Accused.
10. In a catena of cases, the Supreme Court
consistently ruled that the failure to present documentary
evidence does not bar a claim for damages for loss of
earning capacity of the deceased.3
11. In the instant case, the private prosecutor
presented as witnesses, Marilou Laude and Julita Cabilan to
prove that, in fact, Jennifer earned a living when she was still
alive and supported her mother for years even with her lack
of a college degree - showing the resilience during hard
times of a Filipino - before she was brutally killed by the
Accused.
12. The testimonies of said witnesses guided the
Honorable Court in making a fair and reasonable estimate
despite the absence of documentary evidence stating the
exact amount of money earned by Jennifer.
13.
Hence, guided by the rule enunciated in these
cases, the Honorable Court made a reasonable estimate of
the income of Jennifer from the testimonies of her sister and
mother. The pertinent portion of the Decision reads as
follows:
The rule of allowing testimonial evidence as
long as the court can make a fair and reasonable
estimate of damages for loss of earning capacity
was applied by the Supreme Court in Pleyto v.
Lomboy and Garcia. Despite the absence of
documentary evidence to support the widows
claim, the court still awarded loss of earning
capacity. This is reiterated in the recent case of
People vs. Jorie Wahiman where the Supreme
Court based the award of lost earning on the
testimony of the widow. Thus, says the Court:
2

CF Omnibus Motion, p. 58.

Pleyto v. Lomboy, G.R. No. 148737, June 16, 2004; People v. Bangcado and Banisa,
G.R. No. 132330, November 28, 2000; People v. Garcia, G.R. No. 135666, July 20,
2001; People v. Verde, G.R. No. 119077, February 10, 1999; Pantranco North
Express, Inc v. Baesa, G.R. Nos. 79050-51, November 14, 1989.
3

However, we are inclined to award lost earnings

considering that the deceased, as testified by his
widow was the manager of Stanfilco-Dole, Phils, in
Malaybalay City and was receiving a monthly
salary of P95,000.00.
Decedents
omission
to
declare
his
occupation in his postal identification card does
not bar his heirs recovery of indemnity for loss of
earning capacity. This Court considers sufficient
the testimonies of the decedents sibling and
mother to establish that the decedent derived
income during his lifetime and had, in fact,
provided weekly sustenance to his mother in
Leyte. As can be culled from the records, such
facts remains unrefuted by the defense.
Significantly, the defense waived his right to crossexamine the decedents mother, and, thus, failed
to raise objections pertaining to the latters claim
for indemnification for loss of earning capacity. 4
(Internal citation omitted)
14. Clearly, the ruling of the Honorable Court is
supported by factual and legal basis.
15. Furthermore, Accused argues that the statement
of Julita Cabilan is merely self-serving and unsubstantiated.
16. However, it should be pointed out that the Marilou
Laude testified as to the fact that Jennifer earned a living
while she was still alive. Marilou was presented prior to Julita
on 25 April 2015. When Julita was presented on 28 April
2015 she corroborated Marilous statement that indeed
Jennifer earned a living and that her deceased daughter
constantly supported her for years.
17. Accuseds decision to waive his right to crossexamine Julita was fatal to his case as he waived any
opportunity he had to show if the statements of Julita were
merely self-serving. Accused cannot belatedly argue that the
testimony of Julita deserves scant consideration of the
Honorable Court to correct said mistake.

Decision, pp. 54-55.

18. Lastly, what is peculiar with the argument of the

Accused is that on one hand, Accused adamantly claims that
the Jennifer has no occupation at all as he alleged that the
documents presented indicated the same. And yet, Accused
claims that the Jennifer was a sex worker. 5
These
contradictory assertions pulls the rug from under
Pembertons claim that the award for damages made by this
Honorable Court is without basis.
19. The acts of the Accused are mere blatant attempts
to paint a dark shade over the character of the victim and
are disgusting attempts to deny the victims family what is
due them.
20. All things considered, Private Complainant submits
the award of damages, as loss of earning capacity, is correct.
II
THE HONORABLE COURT WAS CORRECT IN AWARDING
PHP 30,000.00 AS EXEMPLARY DAMAGES
21. The Honorable Court awarded exemplary damages
in the instant case to serve as a deterrent and to set a public
example.
22. Relevant portion of the Decision reads as follows:
In this case, the Court did not appreciate
any aggravating circumstances, however by
analogous application of the Supreme Courts
pronouncement, the Court deemed it best to ward
exemplary damages in favour of the heirs of the
deceased. The award is given to set a public
example, to serve as deterrent to all military and
civilian personnel of the United States of America
like the accused, who from time to time may visit
the Republic of the Philippines pursuant to the
Visiting Forces Agreement (VFA) to respect every
Filipino citizen regardless of his/her sexual
orientation and also the laws of the Republic of
Philippines. xxx6

5
6

Omnibus Motion, 68.

Decision, p. 57.

23. The Honorable Court was correct in awarding

exemplary damages. It is beyond contest that the instant
case is one imbued with public interest and widely publicized
it is a case wherein a US military personnel staying in the
country by virtue of an agreement between the governments
of USA and the Philippines killed a transgender Filipino
citizen in Philippine soil. The dangers that the exemplary
damages seek to deter are two-pronged: to deter foreign
service men from violating the sovereignty and the laws of
its host state, and to deter discrimination against persons by
virtue of their sexual orientation.
24. The Supreme Court has ruled that exemplary
damages may be awarded in criminal cases as a public
example7. The award of the same in the instant case is a
reiteration of Philippine sovereignty and a reminder that
Philippine law must be upheld and respected by everyone
falling within its scope be they foreign or not.
III
ACCUSEDS APPLICATION FOR BAIL SHOULD BE
DENIED FOR LACK OF MERIT
25. Accuseds application for bail falls within the
purview of Section 5 of Rule 114 of the Revised Rules of
Criminal Procedure, which provides:
Section 5. Bail, when discretionary. Upon
conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua, or
life
imprisonment,
admission
to
bail
is
discretionary. The application for bail may be filed
and acted upon by the trial court despite the filing
of a notice of appeal, provided it has not
transmitted the original record to the appellate
court. However, if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed with and
resolved by the appellate court.
Should the court grant the application, the
accused may be allowed to continue on provisional
liberty during the pendency of the appeal under
7

People v. Neverio, G.R. No. 182792, August 25, 2009.

the same bail subject to the consent of the

bondsman.
If the penalty imposed by the trial court is
imprisonment exceeding six (6) years, the accused
shall be denied bail, or his bail shall be cancelled
upon a showing by the prosecution, with notice to
the accused, of the following or other similar
circumstances:
(a) That he is a recidivist, quasirecidivist, or habitual delinquent, or has
committed the crime aggravated by the
circumstance of reiteration;
(b) That he has previously escaped from
legal confinement, evaded sentence, or
violated the conditions of his bail
without valid justification;
(c) That he committed the offense while
under probation, parole, or conditional
pardon;
(d) That the circumstances of his case
indicate the probability of flight if
released on bail; or
(e) That there is undue risk that he may
commit another crime during the
pendency of the appeal.
The appellate court may, motu proprio or on
motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse
party in either case. (5a)
26. Accused argues in his application that none of the
circumstances enumerated above is present in the instant
case; hence, his application for bail should be granted. This
is baseless and untrue.
27. At the onset, it should be underscored that the bail
pending appeal is not a matter of right but the grant of the
same lies on the sound discretion of the Honorable Court.

28. More importantly, the rules of criminal procedure

adopt a more restrictive approach in granting bail pending
appeal. The explanation of the Supreme Court with respect
to this policy in the case of Leviste v. Court of Appeals8 is
enlightening, to wit:
The present inclination of the rules on
criminal procedure to frown on bail pending appeal
parallels the approach adopted in the United
States where our original constitutional and
procedural provisions on bail emanated. While this
is of course not to be followed blindly, it
nonetheless shows that our treatment of bail
pending appeal is no different from that in other
democratic societies.
In our jurisdiction, the trend towards a
strict attitude towards the allowance of bail
pending appeal is anchored on the principle
that judicial discretion particularly with
respect to extending bail should be
exercised not with laxity but with caution
and only for strong reasons. In fact, it has even
been pointed out that grave caution that must
attend the exercise of judicial discretion in
granting bail to a convicted accused is best
illustrated and exemplified in Administrative
Circular No. 12-94 amending Rule 114, Section 5.
Furthermore, this Court has been guided by
the following:
The importance attached to
conviction is due to the underlying
principle
that
bail
should
be
granted only where it is uncertain
whether the accused is guilty or
innocent, and therefore, where that
uncertainty
is
removed
by
conviction
it
would,
generally
speaking, be absurd to admit to
bail. After a person has been tried
and convicted the presumption of
innocence which may be relied upon
in prior applications is rebutted,
and the burden is upon the accused
to show error in the conviction. From
8

G.R. No. 189122, March 17, 2010.

another point of view it may be properly

argued that the probability of ultimate
punishment is so enhanced by the
conviction that the accused is much
more likely to attempt to escape if
liberated on bail than before conviction.
(emphasis supplied)
As a matter of fact, endorsing the reasoning
quoted above and relying thereon, the Court
declared in Yap v. Court of Appeals (promulgated
in 2001 when the present rules were already
effective), that denial of bail pending appeal is
a matter of wise discretion.9 (Emphasis
supplied)
29. In this case, there is not even an iota of doubt that
Accused killed Jennifer. The Honorable Court was convinced
beyond reasonable doubt that Pemberton ended the life of
Jennifer.
30. Contrary to his claim, the probability of flight in
the case of the Accused is high.
31. It should be noted that despite a clear order from
the Honorable Court to temporarily commit the Accused to
the National Bilibid Prison in Muntilupa City pending
clarification of the agreement between the governments of
USA and Philippines, Accused never set foot in the said
facility. This alone casts doubt to Accuseds deference to the
duly issued order by Philippine courts.
32. More importantly, what will stop the Accused from
leaving the Philippine territory after he is granted bail? The
Philippines has more than a thousand exit points that can be
utilized if necessary to escape the possibility of being
imprisoned in a foreign land. Furthermore, questions are
raised as to how the Philippine government can take custody
of the Accused, in case his conviction attains finality, if he
already left Philippine territory. The Accused is a foreigner
whose only reason for staying in the Philippines is the instant
case. If provisional liberty will be granted, Accused has no
other reason to stay but will have more reason to leave.

Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010.

33. Also Accused , in applying for bail, seeks for

himself more privileges not available to thousands of
ordinary convicts who, simply because they cannot afford to
pay high-priced lawyers, are denied their right to the equal
protection of laws.
34. It is a known fact that thousands of Filipino
detainees are imprisoned in over-populated city jails where
they are confronted with issues of hygiene and contagious
diseases on a daily basis. They are brought to courts using
improvised security vehicles. These detainees even share a
handcuff and wear color-coded shirts.
35. And yet, during the time of the trial, Accused was
confined in an air-conditioned room, travel to and from the
Honorable Court riding an air-conditioned vehicle and was
given the opportunity to wear a suit during his appearances
in Court.
36. The stark contrast between treatment of a Filipino
detainee and the Accused cannot be disregarded. And yet,
Accused still asks this Honorable Court for more privilege
such as granting him temporary liberty pending his appeal.
37. Hence, due to these numerous legal grounds,
Private Complainant pray that this Honorable Court deny
Accuseds application for bail.
38. Finally, Accused has already been declared an
undesirable alien by
the Bureau of Immigration in a
Resolution dated 16 September 2015, to wit:
There is no question that an alien charged for
murder poses a risk to public safety and order and
should be
deported without
delay for being a
menace to society.
xxx
WHEREFORE, We find respondent JOSEPH SCOTT
PEMBERTON, American national, to be an
undesirable
alien
and order his DEPORTATION,
subject to the issuance of a clearance
from
the
Regional Trial Court,
Branch 74, Olongapo
City
and other appropriate
agencies.
10

39. He was deemed a risk to public safety by the BID

simply on the basis of his being charged for murder; a
fortiori, there is more reason to treat him as posing a grave
risk to society if allowed to post bail, considering his
conviction by this Honorable Court for murder.
40. Moreover, under immigration rules, he cannot be
allowed to post bail, or else he will be placed under
detention upon release on bail, so that he may be made
subject to deportation proceedings.
41.
The relevant provisions of Sec. 37 of
Commonwealth Act 613, or the Immigration Act of 1940,
state that:
(a) The following aliens shall be arrested upon the
warrant of the Commissioner of Immigration or of
any other officer designated by him for the
purpose and deported upon the warrant of the
Commissioner
of
Immigration
after
a
determination by the Board of Commissioners of
the existence of the ground for deportation as
charged against the alien:
xxxx
( 3 ) Any alien who, after the effective date of
this Act, is convicted in the Philippines and
sentenced for a term of one year or more for a
crime involving moral turpitude committed within
five years after his entry to the Philippines, or who,
at any time after such entry, is so convicted and
sentenced more than once;
A copy of the Resolution is attached as ANNEX A. A
certified true copy of the same will be submitted to this
Honorable Court once it has been made available to Private
Complainant.
42. Thus, it is clear that there is no legal basis for an
allowance of bail for the Movant.

11

PRAYER
WHEREFORE, PREMISES CONSIDERED, it is respectfully
prayed that this Honorable Court DENY Accuseds Motion for
Partial Reconsideration and Application for Bail.
Other relief just and equitable under the premises are
likewise prayed for.
RESPECTFULLY SUBMITTED.
Makati City for Olongapo City, 21 January 2016.
Roque & Butuyan Law Offices
Counsel for Private Complainant
1904 Antel Corporate Centre,
121 Valero Street, Salcedo Village
1227 Makati City, Philippines
+632.8873894 +632.8873893
mail@roquebutuyan.com
By:

2016/Makati

H. HARRY L. ROQUE, JR.

Roll No. 36976
PTR No. 5334537/Jan 11,
IBP No. 01749/Lifetime
MCLE Exemption No. IV-000513
(issued on Feb 15, 2013)

ROMEL R. BAGARES
Roll No. 49518
PTR No. 5334535/Jan 11,
2016/Makati
Cotaboto

IBP No. 1023638/Jan 8, 2016/So.

MCLE Compliance No. IV-0011822

(issued on Jan 25, 2013)
12

CHARLAINE E. LATORRE
Roll No. 62890
PTR No. 5334539/Jan. 11, 2016/Makati
City

IBP No. 1023637/Jan. 8,

2016/Cavite
MCLE Compliance No. N/A

Copy furnished:
City Prosecutor Emilie Fe Delos Santos
Office of the City Prosecutor
Olongapo City
Atty. Rowena Garcia Flores
Counsel for Respondent-Appellant
9K The Fort Residences
30th Street corner 2nd Avenue
Burgos Circle, Bonifacio Global City
Taguig, Metro Manila
EXPLANATION
This Comment and Opposition is served on the parties
and filed before this Honorable Court by registered mail and
private courier in accordance with Section 11, Rule 13 of the
Rules of Court due to distance, time constraint, and lack of
messengerial services.

CHARLAINE E. LATORRE

Admitted to the Philippine Bar in 2014. Hence, MCLE compliance is not yet due until 2015, in
accordance with Bar Matter No. 850.

13