REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

FOURTH JUDICIAL REGION
BRANCH 85, LIPA CITY

PEOPLE OF THE PHILIPPINES,

Plaintiff,

CRIM. CASE NO. 0064-2009

-versus- FOR: MURDER

MARLON FABREAG y CANARIAS,

ROMMEL GARCIA y MAGNAYE &
RUFINO CANARIAS y DE CASTRO,
Accused.
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MOTION TO DISMISS BASED ON

DEMURRER TO EVIDENCE

ACCUSED, by counsel, through the Public Attorney’s

Office and unto this Honorable Court, with prior leave of
court, most respectfully move to dismiss the above-entitled
criminal case against all of them, due to insufficiency of the
prosecution’s evidence, and respectfully aver:

STATEMENT OF THE CASE

MARLON C. FABREAG, ROMMEL M. GARCIA and
RUFINO D. CANARIAS were all criminally indicted for
violating Article 248 of the Revised Penal Code as amended by
Republic Act No. 7659 under an information alleging among
others the following:
“That on or about the 23rd day of June, 2008 at about
5:00 o’clock in the afternoon at Bgy. Quezon, Lipa City,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, while armed with a
piece of wood, conspiring, confederating together and
mutually aiding one another, with intent to kill and
without any justifiable cause, with the qualifying
circumstances of treachery, evident premeditation and

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 abuse of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault and hit
with the use of a piece of wood, suddenly without
warning, one Marvin Mosca, a minor hereby inflicting
upon the latter multiple wounds which directly caused
his death.”

CONTRARY TO LAW.”

STATEMENT OF FACTS

On arraignment, all of the accused, with the assistance of

the undersigned counsel, entered “NOT GUILTY” pleas.
Thereafter, trial on the merits ensued.
The factual rendition of the case for the State, through
the testimonies of Renelee E. Lopez and SPO4 Whency G. Aro,
was presented as follows:
RENELEE E. LOPEZ, one of the supposed eyewitness for
the prosecution, substantially testified that he knew nothing of
the facts surrounding the death of Marvin Mosca. Such
declaration is a complete departure from the tenor of his
Sworn Statement dated August 6, 2008 which implicated all of
the above-mentioned accused as malefactors for the above-
imputed crime. Renelee insisted that on August 6, 2008, a
group of policemen fetched him at his house and brought him
at the police precint of Lipa City. While at the station, he was
asked by the policemen to sign a prepared sworn statement.
Renelee acceded even without reading the contents of the
affidavit mainly because the policemen threatened him and he
feared that he might be put behind bars should he refuse to
sign. In essence, Renelee testified that he has nothing to do
with the sworn statement dated August 6, 2008 as all of its
contents were merely supplied by the policeman who prepared
such document. As to his second sworn statement dated
November 26, 2008, in contrast to his first statement, Renelee
asseverated that he executed such document out of his own

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volition as he wanted to set things straight and inform the
authorities that he really knew nothing about the murder of
Marvin Mosca. Furthermore, he insisted that Rufino Canarias
was not in any way involve in the gruesome death that has
befallen Marvin Mosca as he is very sure that all of those
mentioned in his first sworn statement are not of his own
knowledge.

SPO4 Whency G. Aro, materially testified that at the time

of the alleged incident, he was then assigned at the Intel
Section of the Lipa City Police Station. As member of the Intel,
his functions and duties are to gather information and to
conduct surveillance on persons reported to their office to be
involved in nefarious activities. His only participation in the
case against the above-mentioned accused was that he was
among the police officers who responded at Bgy. Anilao Labac,
Lipa City in order to investigate the death of the victim Marvin
Mosca. Police Officer Whency Aro averred that he has no
personal knowledge as to who perpetrated the crime against
Marvin Mosca and that the only reason why he came to know
that it was the three accused who killed the victim was
because he was told by other persons during the conduct of
his investigation.

ISSUE/S TO BE RESOLVED

WHETHER OR NOT THE GUILT OF ALL THE ACCUSED

WAS ESTABLISHED AND PROVEN BEYOND REASONABLE
DOUBT GIVEN THE WEIGHT OF EVIDENCE WHICH WAS
PRESENTED BY THE PROSECUTION.

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ARGUMENTS & DISCUSSION

The presumption of innocence is founded upon the basic

principles of justice and is a substantial part of the law, it
cannot be overcome by mere suspicion or conjecture. (People
vs. Isla, 278 SCRA 47). Under our criminal justice system,
the overriding consideration is not whether the court doubts
the innocence of the accused but whether it entertains a
reasonable doubt as to his guilt. (People vs. Vasquez, 280
SCRA 160) This afore-quoted legal tenet should apply with
more vigor in the case at bar where the evidence of the
prosecution is clearly insufficient if not no evidence at all.
A judgment of conviction must rest on nothing less than moral
certainty.
As in all criminal cases, speculations and probabilities
cannot take the place of proof required to establish guilt
beyond reasonable doubt. (People vs. Balderas, G. R. No.
106582, July 31, 1997, 276 SCRA 470)
Evidence showing a mere possibility of guilt, no
matter how strong, is insufficient to warrant a
conviction. (People vs. Comesario, 306 SCRA 400-404)
In the appreciation of evidence in criminal cases, it is a
basic tenet that the prosecution has the burden of persuasion
in establishing the guilt of the accused for the offense he is
charged – ei incumbit probation non qui negat. The
conviction of the accused must not rest on the weakness of his
defense but on the strength of the prosecution’s evidence.
(People vs. Fabon, 328 SCRA 318) It failed to do so in this
case.
Otherwise, we will see the absurdity of an accused being
put in a more difficult position where the prosecution’s
evidence is vague and weak than where it is strong.

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 The defense would like to apostrophize the fact that the
prosecution has miserably failed to prove the guilt of all the
accused beyond any whisper of doubt. In the resolution of the
case against all of the accused, the Honorable Court should
zero in on the obvious fact that the prosecution possesses not
a single iota of evidence that can warrant for the conviction of
all the accused. Be it direct or circumstantial, as the
records would clearly show, the prosecution failed to
present any evidence linking the participation of all the
accused to the plight of the victim Marvin Mosca. By all
indications, the prosecution failed to counter each and every
hypothesis that is congruent with the innocence of the
accused. The only piece of damning evidence that should have
helped the prosecution in building a case against all of the
accused is the sworn statement of Renelee Lopez dated August
6, 2008. Call it a knock on the conscience but Renelee Lopez
disowned and completely recanted everything else that is
contained in the said sworn statement dated August 6, 2008.
With that turn of event, the affidavit of Renelee Lopez
dated August 6, 2008 is nothing more than a mere scrap
of paper, an absolute hearsay evidence and has no
probative value at all. Clearly, all the allegations of
facts contained in the said sworn statement was not
affirmed by Renelee Lopez by virtue of his retraction. The
case of People of the Philippines vs. Rene Mamalias y Fiel,
G. R. No. 128073, March 27, 2000, is particularly instructive
of the point being raised above regarding the hearsay nature of
the affidavit of Renelee Lopez and the Supreme Court have the
following pronouncements to wit: “In the same vein, the
sworn statement of Epifanio Raymundo is merely hearsay
evidence as he did not personally appear in court to affirm
its content. Its probative value, if any, is little. We have

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held that in criminal cases, the admission of hearsay
evidence would be a violation of the constitutional
provision that the accused shall enjoy the right to
confront the witnesses testifying against him and to cross-
examine them. A conviction based alone on proof that
violates the constitutional right of an accused is a nullity
and the court that rendered it acted without jurisdiction
in its rendition. Such a judgment cannot be given any
effect whatsoever especially on the liberty of an
individual.”
Jurisprudence of earlier vintage have similar
pronouncements as espoused above and one particular case is
the case of People of the Philippines vs. Teodoro Esmale y
Badion and Juan Tresvalles Jr. y Trope, G. R. No. 102981-
82, the High Court have decreed the following to wit: “Firstly,
the trial court erred in considering the identification of
appellant by the deceased's brother-in-law Gerardo
Francisco made in a sworn statement, dated October 17,
1985. It is a fact that Francisco never testified in the trial
court. Thus, his out-of-court statement identifying
appellant is hearsay and has no probative value. As this
Court had also ruled in People v. Lavarias, 23 SCRA 1301,
1306 (1968):
May the conviction be sustained by virtue of the
affidavits previously executed by the above witnesses
wherein appellant was pointed at as one of those who
participated in the offense charged? The constitutional
right to confrontation precludes reliance on such
affidavits. Such a constitutional safeguard cannot be
satisfied unless the opportunity is given the accused to
test the credibility of any person who, by affidavit or
deposition, would impute the commission of an offense to

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him. It would be to disregard one of the most valuable
guarantees of a person accused if solely on the affidavits
presented, his guilt could be predicated. . . ."
The prosecution could have salvaged the case against
the accused with their last ace on their sleeves via the
presentation of two supposed eyewitnesses namely, Rufino
Canarias Jr. and Gerald Fabreag. These two persons also
executed a joint sworn statement pinpointing all of the
accused as responsible for the killing of Marvin Mosca.
However, just like the sworn statement of Renelee Lopez, no
evidentiary weight could be attributed to the joint sworn
statement of Rufino Canarias Jr. and Gerald Fabreag as the
truthfulness and the veracity of the same has yet to be
affirmed by the said affiants due to their failure to take the
witness stand. Clearly therefore, not only is there an
insufficiency of evidence which is availing in this case,
as the records will show, there is totally no evidence
whatsoever that would warrant for the conviction of all
the accused.
In a cathena of cases, the High Court jurisprudentially
held that when there is no eyewitness to a crime, resort to
circumstantial evidence is inevitable. But in order to support a
conviction, all the circumstances must be consistent with the
hypothesis that the accused is guilty and at the same time
inconsistent with the hypothesis that he is innocent. Thus, for
circumstantial evidence to be sufficient for conviction, the
following requisites must concur: (a) there must be more than
one circumstance to convict; (b) facts on which the inference of
guilt is based must be proved; and (c) the combination of all
the circumstances is such as to produce a conviction beyond
reasonable doubt. The circumstances established must
constitute an unbroken chain leading to one fair and

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reasonable conclusion pointing to the accused as the guilty
person, to the exclusion of all others. (People of the
Philippines vs. Warlito Ragon, G. R. No. 100593, November
18, 1997) Applying the foregoing doctrine laid above, since
there is not a single eyewitness who testified as to the material
elements of the crime of murder, resort to circumstantial
evidence is the next prudent thing to do. Lamentably, there
are also no sets or pieces of circumstantial evidence that
would somehow point to all of the accused as authors of
the gruesome crime against Marvin Mosca.
Another point of argument which the defense would like
to bring to the fore and which is very crucial in proving the
innocence of the accused lies on the matter of the so-called
identification. In the case of Alvin Tuason y Ochoa v. Court
of Appeals and People of the Philippines, G.R. Nos.
113779-80, February 23, 1995, this Court held viz.:
"The first duty of the prosecution is not to prove the
crime but to prove the identity of the criminal. For even if
the commission of the crime can be established, without
proof of identity of the criminal beyond reasonable doubt
there can be no conviction. . . ."
Likewise on the same tenor, the Supreme Court decreed
the following in the case of People of the Philippines vs.
Gilberto Villarico Sr., et. Al., G. R. No.158362, April 4,
2011, regarding the identification of the accused, and the
decision is held as follows: “The identification of the
accused as the person responsible for the imputed crime is
the primary duty of the State in every criminal
prosecution. Such identification, to be positive, need not
always be by direct evidence from an eyewitness, for
reliable circumstantial evidence can equally confirm it as
to overcome the constitutionally presumed innocence of

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the accused.”

In the case at bench, the prosecution failed to establish

with certainty, the identity of all the accused and their
involvement in the crime. By virtue of such failure of the
prosecution to establish the identity of all the accused,
the latter therefore are all entitled to a mandatory
acquittal. As already discussed above, among the three
supposed eyewitnesses for the prosecution, only Renelee Lopez
took the witness stand. Unfortunately, instead of helping the
cause of the prosecution, Renelee Lopez made a complete
turnaround and became hostile with the prosecution. Nothing
came out from the testimony of Renelee as he disowned
everything that is contained in his first sworn statement. With
that scenario, Renelee did not even reach the point of
identifying all of the accused as the authors of the above-
imputed crime during his testimony. The prosecution
therefore, clearly failed in its first bounden duty to at
least prove the identity of the criminal. With such failure
of the prosecution to establish with certainty, the identities of
the accused, it would be an exercise of sheer futility on their
part to further dwell on proving the commission of the crime of
murder itself. For even if the crime of murder was established,
since the accused were not identified by any prosecution
witnesses in court as the killers of Marvin Mosca, they should
as a matter of right, be acquitted of the charge against them.
Even if we apply the rule that positive identification can be
proven by reliable circumstantial evidence, again as explained
above, this case materially lacked pieces of circumstantial
evidence which the Honorable Court may turn into in deciding
this case judiciously. That is the bitter and sad predicament
unto which the prosecution is situated. With no evidence on

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hand against all of the accused, be it direct or circumstantial,
there is no other choice but to call for the acquittal of all the
accused.
All told, the defense most respectfully submits that the
prosecution failed to discharge its burden of proving the guilt
of all the accused beyond reasonable doubt, due precisely to
the prosecution's failure to present any witness who would
have identified all of the accused as the malefactors of the
above-imputed offense. Not only that, the hearsay nature of
the sworn statements which were offered in evidence by the
prosecution cannot be left unnoticed and clearly therefore all
those sworn statements have no evidentiary value at all and
will not help in securing the conviction of all the accused. The
present case shows that the prosecution fell short in proving
with certainty the culpability of all the accused and
engendered a doubt on whether the accused were really the
authors of the gruesome crime against Marvin Mosca. In
dubio pro reo. When moral certainty as to culpability hangs in
the balance, acquittal on reasonable doubt inevitably becomes a
matter of right. (Zafra vs. People, G. R. No. 190749, 25
April 2012)
On a final note, the defense would like to reproduce a
portion of the decision in the case of People vs. Masalihit
G.R. No. 124329, 14 December 1998 wherein the High
Court emphatically made the following judicial
pronouncements to wit:
“Before we condemn x x x the crime must first be
positively established and that the accused is guilty sans
any scintilla of doubt. This is elementary and
fundamental in our criminal justice systems. Any
suspicion or belief that that accused is guilty no matter
how strong cannot substitute for the quantum of evidence

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that is required to prove his guilt beyond reasonable
doubt.
Accused-appellant should not be punished for the
failure of the prosecution to dispose of its burden to
overcome the constitutional presumption of innocence
and to establish his guilt of the accused beyond
reasonable doubt. This Court has always stood by the
rule that it is better to acquit a guilty person than to
convict an innocent one.”
PRAYER
WHEREFORE, in light of the foregoing premises, it is

most respectfully prayed of this Honorable Court that this

Demurrer to Evidence be favorably acted upon and that the

Information for Murder against all of the accused be dismissed

for insufficiency of evidence.

Other measures of relief which are deemed just and

equitable under the premises are likewise prayed for.

Lipa City, July ___, 2015.

PUBLIC ATTORNEY’S OFFICE

DEPARTMENT OF JUSTICE
Lipa City District Office
Hall of Justice Building
Maraouy, Lipa City

By: ATTY. ROMMEL C. CASTAŃEDA

Public Attorney II
Roll No, 49312, IBP No. 05694
MCLE Compliance No. II-0007492

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 NOTICE OF HEARING

The Clerk of Court

RTC, BRANCH 85
Lipa City

Greetings:

Please submit the foregoing motion for the consideration

and approval of the Honorable Court immediately upon receipt
thereof or at a date which is most convenient to your calendar.

Rommel C. Castaneda

Copy Furnished:

City Prosecutor’s Office

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