Republic of the Philippines
G.R. No. L-47275 February 21, 1989
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
CEFERINO SOMERA @ BOY, accused-appellant.
The Solicitor General for plaintiff-appellee
Bienvenido E. Somera for accused-appellant.
This is an appeal from the decision of the Court of First Instance of Ilocos Sur, Second Judicial District, Branch I, which convicted the accused, CEFERINO SOMERA, alias BOY, after finding him guilty beyond reasonable doubt of the crime of rape and sentenced him to suffer the penalty of reclusion perpetua and to pay, the complainant, Merlita R. Soliman and her husband, Jose Soliman, an indemnity of Fifteen Thousand Pesos (P15,000.00). (p. 23, Decision in Criminal Case No. 544-V; p. 25, Rollo).
The facts as summarized by the Solicitor General contained in his Brief, are as follows:
Complainant Merlita R. Soliman was, twenty years old, married with one child, in December 1973. She and her husband, Jose Soliman, were residing in theMunicipality of Sta. Catalina, Ilocos Sur. (Tsn., p. 6, April 1, 1976).
Merlita was employed as a salesgirl at the St. Martin's Pharmacy in Vigan, Ilocos Sur, a distance of about three kilometers from her home in Sta. Catalina. On December 25, 1973, she reported for work at about 7:30 in the morning. Her husband was then in Pampanga visiting his family. At 6:00 o'clock in the afternoon of said day, she left the drugstore for home. As it was Christmas Day, she passed by the nearby Venus Restaurant and Bakery and bought some barbecue and chopsuey for her family. (Tsn., pp. 7-9, Id.) Thereafter, she proceeded to the parking lot for tricycles bound for Sta. Catalina. (Tsn., p. 10, April 1, 1976; p. 20, April 22, 1976).
While on her way to the parking lot, accused-appellant passed by on a motorcycle and offered to take her home on his vehicle. Appellant Somera was known to Merlita, being a townmate and a childhood friend. Likewise, he was a former Chief of Police of Sta. Catalina, Ilocos Sur and a distant relative of hers. (Tsn., pp. 10-15, Id.) Merlita declined the offer after thanking him. However, Somera insisted on taking her home and, because Merlita was eager to get home early to deliver the medicine she had bought for her ailing father, she consented to ride with Somera. She sat behind Somera sideways on the motorcycle holding the paper bag containing the food with right hand, while her left hand was resting on the seat of the motorcycle.
Upon reaching barrio Pangada in Sta. Catalina, Somera told Merlita that they were dropping by the house of one Enrique Rabbon. Upon arrival thereat, they were met by Enrique Rabbon who invited Somera to come in. Somera asked Merlita to enter the house with him but she refused saying that she was in a hurry to get home. Somera got angry at Merlita and told her in the vernacular; 'Child of a whore, you are putting me to shame here'. (Tsn., pp. 18-19, Id.) Whereupon, Somera got on his motorcycle and ordered Merlita to ride with him. Merlita obeyed by sitting behind him sideways. As they proceeded on their way, Somera told her that he would be taking the shortcut route to the poblacion of Sta. Catalina and that he would be ordering some prawns along the way. However, upon noticing that the route taken by the accused was not a shortcut but a round-about way and seeing that there were no houses along the road, Merlita became suspicious that Somera was up to something bad.
When the couple reached the Poratong Community School, Somera stopped his motorcycle and told Merlita that he was going to order some prawns at the house near the school building. Merlita, now apprehensive of Somera's intentions towards her, forthwith jumped off the motorcycle, hitting her knees on the ground and damaging her left shoe in the process. She got up and screamed for help as she ran away from Somera. But the latter overtook her at the yard of a house occupied by one Leticia Rafanan whose husband was then out fishing (Tsn., pp. 21-22, Id.).
Hearing the screams of a woman, Leticia Rafanan came out of her house holding a baby under her arm and a lighted kerosene lamp with her other hand. Leticia tried to get Merlita away from Somera by pulling her with one hand but failed. Merlita struggled to free herself from the grip of the accused but her efforts were likewise in vain. Finally, the accused was able to drag her inside the house of Leticia Rafanan. Sensing the presence of Leticia, the accused told Merlita that he would be taking her home. But fearing that the accused was out to abuse her, Merlita refused to leave the house of Leticia Rafanan.
Angered by her attitude towards him, Somera pulled Merlita out of the house. Again, Leticia tried to help Merlita by pulling one of her hands but to no avail. Once outside the house, appellant closed the door of Leticia's house with the latter inside her house. Leticia then went upstairs to attend to her baby. Meanwhile, appellant kept dragging Merlita and, at the height of her struggle with the accused, she threw at him the paper bag containing the chopsuey and barbecue she had bought for her family. (Tsn., pp. 1-9, May 24, 1976)
Despite complainant's continued efforts to get free from Somera's hold, the latter was able to drag and bring her inside a nearby vacant and abandoned store belonging to one Martin Rafanan about two to three meters away from the house of Leticia Rafanan. Once inside the store, Somera locked the door. Irked by complainant's continued resistance and her statement that she would sue him if he does something wrong to her, Somera boxed Merlita near the abdomen and pulled her hair and, with his other hand, pressed her throat. Then he brought out a knife and pointed it at complainant's throat threatening to stab her with it if she would shout. Putting down the knife, the accused undressed complainant amidst her struggles. As the accused was removing her panty, Merlita continued resisting him and her panty was torn. Thereafter, Somera inserted his penis inside her private part and then stood up. Complainant also stood up and put on her clothes. When she tried to get out, Somera forbade her from leaving and threatened to kill her if she reports the matter to anyone. ( Tsn., pp. 32-37, April 1, 1976; pp. 7-7, May 25, 1976)
After promising Somera not to report the matter to anybody, Merlita was allowed to go out. She looked for her things and, except for her bracelet, she was able to find all her belongings. Upon seeing the chopsuey and barbecue strewn to the ground, the accused handed Merlita P5.00 to make up for the spoiled food. Then, Somera told complainant to ride with him on his motorcycle. They proceeded to the poblacion of Sta. Catalina, Ilocos Sur. After dropping complainant near her neighbor's house, evidently, so as not to be seen by her relatives, the accused sped away on his motorcycle (Tsn., pp. 39-42, April 1, 1976).
Arriving home, Merlita rushed upstairs and, upon seeing her mother, Estefania R. Rapanut, waiting for her, she threw herself down on the floor in dismay and started crying bitterly, saying: 'Life is now useless to me because Boy abused me.' (Tsn., pp. 42-43). Whereupon, complainant's mother immediately went to the Municipal building and reported the incident to the Chief of Police (Tsn., pp. 6-7, Sept. 23, 1974).
Not long afterwards, several policemen, among whom were Patrolmen Evaristo Rabe and Cupertino Raquepo, arrived at Merlita's house on a jeep. From there, the policemen and Merlita repaired to the place where she was sexually abused by the accused. Upon arrival at the scene of the crime, the policemen went first to the house of Leticia Rafanan because Merlita told them that she was taken by the accused there. Leticia readily confirmed that Merlita and the accused were in her premises about an hour earlier, and that there was a struggle between them. Leticia also related to the policemen how she tried to pull Merlita away from the clutches of the accused as the latter was dragging Merlita out of her house when she refused to leave therefrom. (Tsn., pp. 45-47, April 1, 1976; T.s.n., pp. 39, July 22, 1976)
Proceeding afterwards to the abandoned store, the policemen found outside the store about one meter away from its door the wrappers for the chopsuey, consisting of banana leaves, paper bag and newspaper, the bamboo sticks for the barbecue and also the broken necklace of the complainant. (Tsn., pp. 9- 10, July 22, 1976)
From the crime scene, Merlita and the policemen proceeded to the Municipal building and, on that same evening, the Chief of Police of Sta. Catalina, in the presence of Pat. Raquepo, took down the written statement of Merlita (Tsn., p. 8, July 22, 1976).
The following day, December 26, 1973, the statements of Leticia Rafanan and complainant's mother, Estefania R. Rapanut, were likewise taken. Merlita's statement, as well as that of her two witnesses, were duly subscribed on the same day before Municipal Judge Pedro R. Arce of Sta. Catalina (Tsn., pp. 22- 24, July 22, 1976). Also, on December 26, 1973, Merlita submitted herself for physical examination to Dr. Edmundo Quintos, a resident physician of the Gabriela Silang General Hospital, Vigan, Ilocos Sur. The examination findings of Dr. Quintos as set forth in his medical certification are as follows:
1. ABRASION, minimal, elbow, right.
2. ABRASION, minimal, elbow, left.
3. CONTUSION, minimal, patellar, left.
4. CONTUSION, minimal, patellar, right.
5. ABRASION, minimal, infraclavicular, left.
6. ABRASION, minimal, forearm, left.
7. ABRASION, minimal, wrist, left.
8. ABRASION, minimal, middle finger, right.
9. ABRASION, minimal, chest.
HYMEN-old lacerations at 1,3,6,7,9 & 11 o'clock. Lab. exam. for spermatozoa, NEGATIVE.
Treatment will take 2 to 3 days for the above stated injuries to heal barring complications.' (Medical Certificate, Exh. "B"). (Exh. B; T.s.n., pp. 2-3, Dec. 20, 1974).
Subsequently, on December 27, 1973, Merlita filed before the Municipal Court of Sta. Catalina a verified complaint for rape against the accused (Exh. C).
After a preliminary investigation was conducted by Municipal Judge Manuel A. Paz of Bantay, Ilocos Sur, on the complaint of Merlita, a warrant for Somera's arrest was issued on January 3, 1974. The warrant was delivered to the PC Provincial Command of Ilocos Sur, but the same was returned unserved. Hence, on March 7, 1974, an alias warrant of arrest was issued and again it was returned unsatisfied on the ground that the accused could not be located. Finally, on June 28, 1974, or six months after the issuance of the original warrant, the accused, through his counsel, filed a petition for bail. The Municipal Court fixed bail in the amount of P 16,000.00. (p. 105, Rollo; pp. 2-10, Brief for the Appellee)
On the other hand, accused Ceferino Somera in his Brief narrates his own version of what transpired, viz:
Accused Ceferino Somera and complainant Merlita R. Soliman, both married and townmates in Sta. Catalina, Ilocos Sur, were lovers. Their adulterous relationship began sometime in October 1972, when by coincidence, they took the same bus on a night trip to Manila. In the course of this trip, accused was able to befriend complainant and when they arrived in the city at dawn, they proceeded to the residence of accused's sister at Project 7 (Veteran's Village), Quezon City, where they had their first taste of their illicit love. Since then and until the date of the incident in controversy or on December 25, 1973, accused and complainant carried on clandestinely with their adulterous relationship (pp. 3, 9, 12, 13, t.s.n., June 3, 1977).
At approximately between 6:00 and 7:00 o'clock in the evening of said date of December 25, 1973, accused, together with three companions, was at the Venus Restaurant at Vigan, Ilocos Sur, waiting for complainant Merlita R. Soliman to be off from her work as salesgirl in a nearby drugstore. At about that same time, complainant who had just been off from work, saw Basilio Rabino, a childhood friend and townmate then waiting for a ride home to Sta. Catalina, Ilocos Sur. Complainant approached Basilio Rabino and asked him if he had seen the accused and to which the latter gave a negative reply. Complainant then requested Basilio Rabino to look for the accused and he obliged. Basilio Rabino saw the accused at the aforementioned restaurant drinking beer with his three companions, whereupon, he informed the latter that complainant was already waiting for him at the parking place for tricycles going to their town (pp. 4-6, 17, t.s.n., Jan. 3, 1977). Forthwith, accused excused himself from his companions, borrowed the motorcycle of one of them, and proceeded to the place where complainant was waiting. Upon seeing the accused, Merlita Soliman asked him why it took him that long to fetch her. The accused merely brushed aside her question and told complainant that they could already go home (pp. 6 & 7, t.s.n., June 3, 1977). Complainant then rode on the motorcycle behind the accused, her left arm placed around the waist of the latter while her right arm held a paper bag. 'hereafter, they motored their way home. When they reached the barrio of Pangada, Sta. Catalina, Ilocos Sur, accused and complainant stopped over the house of one Enrique Rabbon whom accused requested to slaughter a dog in the morning of the following day. Prom there, the two proceeded to the residence of one Leticia Rafanan in Barrio Paratong, Sta. Catalina, Docos Sur, as the accused wanted to order some prawns which his mother needed the following day, from said Leticia Rafanan. After accused had placed his order of prawns and after a brief conversation between him and Leticia Rafanan at the latter's yard, Leticia Rafanan excused herself and went upstairs to attend to her baby who was then crying. The accused and complainant on the other hand, went to a nearby vacant store where once more, they had a taste of their amorous relation short of sexual intercourse. At this juncture, the mother of complainant accompanied by the latter's younger brother, arrived and surprised the complainant and accused and their tryst. Thereupon, complainant's mother confronted the accused who tried to hedge the confrontation by telling complainant's mother to ask her daughter. Evidently fearful of the consequences of the discovery of her adulterous and shameful affair, complainant in feigned anger denied her illicit relation with the accused. In avoidance of any further confrontation, accused immediately sped away home (pp. 7, 8, 14-19, t.s.n., (p. 83, Rollo; pp. 5-8, Brief for the Appellant)
After trial and considering all the evidence presented both by the prosecution and the defense, the court a quo on October 24, 1977 rendered judgment for the offended party, Merlita S. Soliman.
Based on its decision, appellant, in his brief, assigns the following errors committed by the lower court, to wit:
THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE COMPLAINANT NOTWITHSTANDING ITS INHERENT INCREDIBILITY AND REPUGNANCE TO HUMAN NATURE AND EXPERIENCE.
THE LOWER COURT ERRED IN CONSIDERING THE EMOTIONAL OUTBURST'S OF THE COMPLAINANT DURING THE TRIAL AS EVIDENCE OF THE VERACITY OF HER TESTIMONY.
THE LOWER COURT ERRED IN GIVING CREDENCE TO THE INCONSISTENT TESTIMONIES OR DECLARATIONS OF THE OTHER PROSECUTION WITNESSES, ESTEFANIA RAPANUT, EVARISTO RABE AND LETICIA RAFANAN AS EVIDENCE OF THE "PERSUASIVE CHARACTER OR VERACITY OF COMPLAINANTS ACCUSATION" AGAINST APPELLANT.
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE SWORN STATEMENT OF PROSECUTION WITNESS LETICIA RAFANAN (EXH. 'B- l' P. 5, RECORD) NOTWITHSTANDING THAT IT IS HEARSAY IN CHARACTER AND IN DISREGARDING THE TESTIMONY OF SAID WITNESS DURING THE TRIAL RELYING THE OCCURRENCE OF THE INCIDENT COMPLAINED OF IN THE CASE.
THE LOWER COURT ERRED IN HOLDING THAT THE PHYSICAL INJURIES SUSTAINED BY THE COMPLAINANT WERE THE RESULT OF THE FORCE AND VIOLENCE ALLEGEDLY EMPLOYED BY APPELLANT ON THE FORMER.
THE LOWER COURT ERRED IN HOLDING THAT APPELLANT APPELLANT THREATENED THE COMPLAINING WITNESS WITH A KNIFE.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE TESTIMONY OF BASILIO RABINO, A DISINTERESTED WITNESS, TO THE EFFECT THAT APPELLANT AND THE COMPLAINANT HAD A PRIOR UNDERSTANDING THAT THEY WOULD GO HOME TOGETHER ON THAT DATE WHEN THE ALLEGED INCIDENT IN QUESTION PURPORTEDLY TOOK PLACE.
THE LOWER COURT ERRED IN CONCLUDING WITHOUT PROPER BASIS THAT APPELLANT FIRST INTENDED TO RAPE COMPLAINANT IN THE HOUSE OF DEFENSE WITNESS ENRIQUE RABBON WHERE THE TWO HAD A SHORT STOP-OVER ON THEIR WAY HOME.
THE LOWER COURT ERRED IN NOT CONSIDERING THE ABSENCE OF SPERMATOZOA IN COMPLAINANT'S VAGINA AS WELL AS IN THE PERIPHERAL PARTS THEREOF AND THE UTTER LACK OF EVIDENCE OF SEXUAL INTERCOURSE ON THE PART OF COMPLAINANT AT ABOUT THE TIME SHE WAS ALLEGEDLY ABUSED BY APPELLANT AS INDUBITABLE PROOF THAT THE CRIME OF RAPE WAS NEVER COMMITTED IN THE INSTANT CASE.
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE AND IN SENTENCING HIM TO PAY COMPLAINANT AND HER HUSBAND" AN INDEMNITY OF FIFTEEN THOUSAND PESOS (P15,000.00).
IN ANY EVENT, THE LOWER COURT ERRED IN ASSUMING JURISDICTION OVER THE CASE. (pp. 1-4, Brief for the appellant; p. 83, Rollo)
Anent the first assignment of error, appellant brands commandeered complainant's testimony as being highly improbable, unnatural and incredible. In his brief appellant points out that it is rather very difficult to imagine to the point of disbelief, that complainant could have possibly managed to ride safely on the speeding motorcycle with just one hand allegedly holding the vehicle's seat while her other hand was holding a paper bag containing food. It is common knowledge that a passenger of a motorcycle seated at the back of the driver especially a woman, such as in the case at bar, usually places her arms around the driver's waist or holds the latter's shoulder as a matter of necessity to avoid falling from the vehicle. Yet, complainant in this case denies having ever touched any part of appellant's body during the entire leg of their trip. This is simply ridiculous and indeed contrary to common experience. (p. 21, Brief for the Appellant) While perhaps dangerous, it is not impossible for her to ride in the manner she said she did. Besides, whichever way she rode on the motorcycle does not affect her credibility especially when it is an undisputed fact that she rode with appellant on his motorcycle. But even assuming arguendo that she placed her arm around his waist, this should not be taken to mean, as appellant would want this Court to believe, that there was some intimacy between them for, in so doing, Merlita was only after her own safety, more so, since she regarded him as an elder brother. Thus, she calls him "manong," a sign of respect due an elder brother.
The fourth assigned error in that the lower court admitted in evidence the sworn statement of prosecution witness Leticia Rafanan notwithstanding that it is hearsay in character lacks merit. The statement was that Leticia Rafanan helped in pulling Merlita away from the accused. This statement (exh. "B-1") was identified by her in open court and the veracity of its contents affirmed by her. (Tsn., pp. 10-11, Jan. 21, 1976). And while it may be true that said witness during the trial belied the occurrence of such incident, the omission of Leticia to touch on this particular phase of the incident could well be attributed to the considerable lapse of time, not to mention the fact that she, being a simple housewife and a barrio folk, could naturally be expected to be nervous, more so if that was the first time she testified in court. (p. 19, Brief for the Appellee)
The fifth assigned error likewise lacks merit. We agree with the findings of the trial courts, viz:
5. Dr.Edmund Quintos,the resident physician of the Gabliela Silang General Hospital who examined the complainant the following afternoon, December 26, 1973, found minimal abrasions on both knees and elbows, on the left forearm, middle ringer and on the chest of the complainant. He abrasions on the knees and elbows strongly corroborate the testimony of the complainant that to get away from the accused she jumped off the running motorcycle and in so doing she stumbled and her left shoe (Exh. "K-l") was destroyed. All the abrasions found on the body of the complainant by the doctor are also mute indications that, as testified to by her, she continued struggling with and resisting the accused after she was forcibly made to lie and while lying on the cement floors he was intimidated with a knife pointed at her throat and finally overpowered by the accused. (pp. 18-19, Decision; pp. 20-21, Rollo)
With regard to the sixth assignment of error, appellant contends that in the direct testimony of Merlita R. Soliman, she said that once appellant and complainant were already inside the vacant store, the former allegedly forcibly pulled the latter down on the cement floor and boxed her in the abdomen. Thereafter, he pulled her hair and pressed his hand against her throat. It was at this juncture that appellant allegedly pulled out a knife and pointed it at the throat of complainant. This testimony of appellant is unbelievable. How could appellant have possibly pulled out a knife when he was at the same time pulling the hair of complainant with one hand and pressing the latter's throat with his other hand? To be able to do this, appellant would have needed a third hand. And if appellant did really have a knife, why is it that he brought it out only when they were already inside the store? He undeniably would have needed the weapon with which to threaten or scare complainant more at the time when the latter allegedly was still defiantly struggling to free herself from him in the yard of Leticia Rafanan. Similarly, it is unbelievable that appellant could have undressed the complainant while the former's left hand was pressing the latter's throat and his right hand was holding a knife. To accomplish this feat, appellant again would have needed a third hand." (pp. 31-32, Brief for the Appellant). Consequently, he asserts that it was impossible for him to have undressed her. The record discloses that when complainant was asked to explain her statement, she readily corrected herself by saying "that he slowly put his knife down and removed my panty." (t.s.n., p. 4, May 25, 1976)
The ninth assigned error of the lower court that it did not consider the absence of spermatozoa in the complainants vagina as well as in the peripheral parts thereof, as an indubitable proof that the crime of rape was never committed in the instant case is untenable. The non-appearance of spermatozoa in the vagina of complainant could be due, according to the examining physician, to the lack of ejaculation on the part of appellant (t.s.n., p. 21, Dec. 20,1976). It must be borne in mind that the slightest penetration is enough. Proof of emission is not necessary (People vs. Selfaison, et al. No. L-14732, Jan. 28, 1961, 110 Phil. 839). The absence of spermatozoa in the vagina does not negate rape (People vs. Canastre, 82 Phil. 480). It is worthy of note that the absence of spermatozoa gives and lends credence to complainant's account that after the insertion, appellant stood up. There was no mention by her of ejaculation. (T.s.n., p. 37, April 1, 1976). Moreover, certainly these are the well-established facts surrounding the consummation of rape on the night of December 25, 1973, as found by the trial court, viz:
l. Estefania Rapanut Rebaula, the mother of the complainant, immediately reported that very same night to the Chief of Police of Sta. Catalina that the accused had earlier raped her daughter, and the said peace officer lost no time in entering the rape of the complainant by the accused in the police blotter and in instructing his men to investigate forthwith the report.
2. Upon the instruction of the Chief of Police, Pat. Evaristo Rabe of Sta. Catalina,. together with the complainant and other policemen, immediately repaired to the crime scene and there, about past 9:00 P.M., inside the vacant store nearby the house of Leticia Rafanan, he found the bracelet (Exh. "H") and the broken necklace (Exh. "l") which were worn by the complainant when she was raped. Pat. Rabe found outside the store about a meter away from its door, the stick of the barbecue, the banana leaf (Exh. "L") and the piece of newspaper (Exh. "L-2") with which the chopsuey was wrapped, and also the paper bag (Exh. "L-l") wherein the wrapped chopsuey and the barbecue were placed. Also, the complainant surrendered the 5 peso bill (Exh. "J") to the police that same night.
3. When interviewed in her house by Pat. Rabe at about past 8:00 that same night, Leticia Rafanan stated that earlier she helped in pulling Merlita away from the accused.
4. The complainant, her mother Estefania Rapanut Rebaula and Leticia Rafanan, when investigated by the police the following morning, December 26, 1973, gave their respective statements, Exh. "F", "B-1" and Exhibit "I", which they forthwith subscribed before Municipal Judge Pedro R. Arce of Sta. Catalina. 'Mere was therefore no time for the complainant and these two prosecution witnesses to contrive and falsely declare during the investigation against the accused. (pp. 19-20, Rollo)
The contention that the court a quo did not acquire jurisdiction over the offense because the information filed by the fiscal did not contain the signature of the complainant therein is untenable. The record shows that a verified complaint was filed by complainant with the Municipal Court of Sta. Catalina. The filing of such complaint was sufficient compliance with the requirement of Article 344 of the Revised Penal Code. (People vs. Imas, 84 Phil. 419) (p. 21, Brief for the Appellee)
Finally, the second, third, seventh and eight assigned errors committed by the lower court deserve no further discussion that even if the contention of the appellant in each of these errors committed be true, these will not suffice to sustain a reversal of the appellant's conviction.
In view of all the foregoing, We cannot find any reason to change the decision of the trial court except to increase the indemnity adjudged to P20,000 from P15,000 in consonance with recent jurisprudence.
WHEREFORE, the decision appealed from is hereby AFFIRMED with regard to the penalty of RECLUSION PERPETUA but MODIFIED as regard the indemnification to the offended party, MERLITA R. SOLIMAN, which is increased to P20,000.00. Costs against the accused-appellant.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado JJ., concur.
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