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- versus -
MEMORANDUM
PREFATORY STATEMENT
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willfully, unlawfully and feloniously and with treachery, shot
one Mark De Lima and inflicted a mortal wound on his left
chest and were it not for the timely medical intervention, the
wound would have caused the latter’s death to the damage and
prejudice of Mr. De Lima, in such amount as may be
determined by the Court.
CONTRARY TO LAW.
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the start of the fellowship, which happened to be accused and his wife,
Cynthia, and after their short introduction, they told him that they had just
arrived from the Philippines about 2 days ago, and that they have visited
Dubai for a honeymoon vacation (as evidenced by the Judicial Affidavit of
witness Francis V. Sumayod).
6. On June 25, 2018, accused has executed and filed his Judicial
Affidavit (as evidenced by the Judicial Affidavit of accused) denying all
accusations imputed against him and interposing the defense of alibi for the
following reasons: First, accused was present in Dubai, UAE at the time of
the perpetration of the crime, as proved by a Certified True Copy of the
Philippine Passport of accused with Latest Entry Stamp and Exit Stamps
dated June 10, 2018 and June 16, 2018, respectively; and, Second, that it
was physically impossible for him to be at the scene of the crime in
Robinsons Mall Butuan, Philippines during the commission of the crime on
June 12, 2018, considering the long hours of air travel and length of distance
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from Dubai to the Philippines, and that no person could have possibly
employed any form of trickery or deceit to surmount such an impossible
feat.
ISSUES
ARGUMENTS
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(Art. 14, par. 16, Revised Penal Code; People v. Lacao, Sr., GR No. 95320,
September 4, 1991, 201 SCRA 317, 330). To constitute treachery, two
conditions must be present, to wit: (1) the employment of means of
execution that gave the person attacked no opportunity to defend himself or
to retaliate; and (2) the means of execution were deliberately or consciously
adopted (People v. Mabuhay, GR No. 87018, May 24, 1990, 185 SCRA 675,
680). Treachery cannot be presumed; it must be proved by clear and
convincing evidence (People v. Tiozon, GR No. 89823, June 19, 1991, 198
SCRA 368, 387-388).
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10. According to the testimony of the complainant Mark De Lima and
witness Katrina Budlong in their respective judicial affidavits, as when they
were about to head into their car, and upon hearing a voice shouting in
vernacular, saying: “Mark, wala nakoy laing bahandi, siya nalang, imo pa
gyud giilog sa ako”, they allegedly turned around and allegedly saw the
accused Guerrero “in extreme anger pointing a gun xxx and started shooting
at them.” Here, the accused effectively announced his presence at the crime
scene with shouts and gunshots. Clearly, this mode of attack employed by
accused negated the existence of treachery since the element of surprise,
which marks the presence of treachery, was absent (People v. Cunanan, No.
L-30103, January 20, 1977).
11. In the absence of any evidence that the accused had, prior to the
moment of the killing, resolved to commit the crime, or when there is no
proof that the shooting of the victim was the result of meditation, calculation
or reflection, it can be obviously inferred from the prosecution’s version of
the facts that the alleged meeting between the accused and the complainant
with Katrina Budlong in Robinsons Mall Butuan was an unplanned or a
mere casual encounter, thus, negating treachery because it could not be said
that in such situation the accused had consciously adopted the means of
execution in perpetrating the crime (U.S. v. Balagtas, 19 Phil. 164).
Moreover, it has been ruled that treachery is not present when the attack was
the result of a rash and impetuous impulse of the moment rather than from a
deliberate act of the will (People v. Tugbo, Jr., supra). Hence, if the decision
to kill was sudden, there is no treachery, even if the position of the victim
was vulnerable, because it was not deliberately sought by the assailant, but
was purely accidental (People v. Cadag, et al., GR No. L-13830, May 31,
1961).
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ventricle of the heart of the patient (De Lima)” (as evidenced by A6 in the
Judicial Affidavit of Romel Asarcon) without even mentioning the quality,
number and specific location of the wounds sustained by the complainant.
The location of the entry and exit wound of the bullet was not even
elaborated by the cardio-surgeon making it more improbable that treachery
attended the commission of the crime. Verily, the above statement made in
his affidavit does not confirm the attendance of treachery because said
qualifying circumstance must be established by clear and convincing
evidence (People v. Santos, supra).
13. It is a settled rule that for the defense of alibi to prosper, the
accused must prove (a) that he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him to
be at the scene of the crime during its commission. (People v. Fernandez, GR
No. 226846, June 21, 2017). "Physical impossibility" means the distance and
the facility of access between the situs of the crime and the location of the
accused when the crime was committed; it must be demonstrated that the
accused was so far away and could not have been physically present at the
crime scene and its immediate vicinity upon its commission. (People v.
Roman Espia, G.R. No. 213380, August 10, 2016).
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fellowship gathering from 5 o’clock in the afternoon to 7 o’clock in the
evening on June 12, 2018 and which was corroborated in evidence by a
Certified True Copy of the Attendance Sheet of the said fellowship
gathering, bearing the names and signatures of accused Guerrero and his
wife, Cynthia.
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During the cross-examination of the accused, he denied wearing such
uniform for “he has no previous connection or even involvement in the
military or police or jail service in his entire life.” Undoubtedly, the
complainant and witness had mistaken the accused for another person. Well-
settled is the rule that the defense of alibi is inherently weak and cannot
prevail over the positive identification of the accused by the prosecution
witnesses, unless the accused shows that it was physically impossible for
him to have been at the scene of the crime. While the defense of alibi is
inherently weak, the same may be treated with merit where there is no
positive identification of the accused by the prosecution witness. (Manangan
v. People, GR No. 218570, November 22, 2017). For all reasons set forth
and mentioned above, it ultimately leads to the conclusion that the defense
of alibi of the accused would prosper for having met the requirements laid
down by law and jurisprudence.
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satisfied that the accused is responsible for the offense charged (People v.
Que, GR No. 212994, January 31, 2018).
18. From the constitutional law point of view, the prosecution's failure
to establish with moral certainty all the elements of the crime and to identify
the accused as the perpetrator signify that it failed to overturn the
constitutional presumption of innocence that every accused enjoys in a
criminal prosecution. When this happens, as in this case, the courts need not
even consider the case for the defense in deciding the case; a ruling for
acquittal must forthwith issue (People v. Que, supra).
PRAYER
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Other reliefs and remedies just and equitable under the premises are
likewise prayed for.
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