G.R. No. 119368




Manila FIRST DIVISION G.R. No. 119368 August 18, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELINO "Senoy" ERARDO, accused-appellant. PADILLA, J.: In an information, dated 21 June 1993, herein accused-appellant Marcelino "Senoy" Erardo was charged with the crime of rape committed as follows: That on or about the 1st day of June 1993, around 2:30 o'clock in the afternoon, in Barrio Site, Barangay Labangan, Municipality of San Jose, Province of Occidental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the accused, did then and there wilfully, unlawfully, and feloniously have carnal knowledge of Julie Ann Kiam, a woman who was deprived of reason, against her will and consent. Contrary to law.1 When arraigned on 3 May 1994, accused-appellant Erardo, with the assistance of counsel, Atty. Francis Villamar, entered a plea of "not guilty" to the crime charged.2 After trial, on 26 January 1995, the Regional Trial Court of San Jose, Occidental Mindoro, Branch 46, through the Honorable Judge Emilio L. Leachon, rendered judgment, the dispositive part of which reads: Accordingly, therefore, the Court finds the accused, Marcelino "Senoy" Erardo, guilty beyond reasonable doubt of the crime of rape and sentences him to suffer the penalty of Reclusion Perpetua and to indemnify the victim-complainant Julie Ann Kiam in the amount of P40,000.00. The Court likewise orders the immediate commitment of the accused Marcelino "Senoy" Erardo to the National Penitentiary at Muntinlupa, Metro Manila after the promulgation of this judgment/decision of the Court. It is so ordered.3 Hence, this appeal, where accused-appellant Erardo assigns the following errors to the trial court: I THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION THE TESTIMONY OF DR. HURLEY DE LOS REYES, THE PHYSICIAN WHO EXAMINED THE ALLEGED VICTIM, THAT THE LATTER'S VAGINA CONTAINED OLD HYMENAL LACERATIONS AND COULD NOT HAVE POSSIBLY INFLICTED [SIC] ON THE LAST THREE DAYS (DATE OF THE ALLEGED COMMISSION OF THE CRIME). II THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF RAPE COMMITTED IN THE AFTERNOON OF 1 JUNE 1993.4 The events (as related by prosecution witness Jennylyn Cordero) which led to the filing of the complaint and information, are as follows: At around 2:30 o'clock in the afternoon of 1 June 1993, Jennylyn Cordero (the victim's aunt), while sitting in the balcony of her house attending to her child, saw her niece, the victim Julie Ann Kiam, a 12-year-old mental retardate, waving at the accused-appellant Marcelino "Senoy" Erardo, a neighbor. Julie Ann was walking towards a thicket, and accused-appellant followed her there. Concerned for her niece's safety, Jennylyn, after leaving her child in the care of a neighbor, followed Julie Ann and the accused-appellant Erardo to the bushes. Thereupon, she saw accused-appellant in the act of pulling his pants over his exposed sexual organ, and the victim Julie Ann, sitting close to him o the grass, naked from the waist-down. At that point, Jennylyn Cordero confronted accused-appellant with the question, "Bakit mo pinagsamantalahan ang pamangkin kong retarded? 5 Accused-appellant ignored the question and hurriedly left. Thereafter, Jennylyn Cordero ushered the victim Julie Ann to her house where they waited for the latter's mother, Delia Cordero-Kiam (who is Jennylyn's sister-in-law). Mrs. Kiam was shocked and angry upon hearing Jennylyn's account of what had transpired. Not knowing who, or what government office could help her, Mrs. Kiam sent for her father (her husband, Julie Ann's father, was in Manila at that time), who promptly arrived the next day. He advised Mrs. Kiam to have Julie Ann examined by a doctor; and then to file a criminal case for rape in court. Julie Ann was examined by one Dr. Hurley de los Reyes on 3 June 1993, and the corresponding medical certificate was issue. The victim's family then proceeded to the police station where they filed a complaint for rape against accused-appellant Marcelino "Senoy" Erardo. To corroborate Jennylyn Cordero's testimony, the prosecution presented the victim's mother, Mrs. Delia Cordero-Kiam who testified that accused-appellant Marcelino Erardo went to her house on 2 June 1993 to ask for her (Mrs. Kiam's) forgiveness for what he had done to her daughter Julie Ann. According to Mrs. Kiam, accused-appellant admitted that he indeed engaged in sexual intercourse with the victim Julie Ann, but claimed that he took care not to hurt her.6 Mrs. Kiam further testified that after consulting with other members of her family, she had her daughter Julie Ann examined by a doctor, and thereafter, they filed a complaint for rape against accused-appellant Marcelino Erardo. The prosecution also presented Dr. Hurley de los Reyes who testified that he was the doctor who examined the victim Julie Ann Kim three days after the date of the alleged rape, and that he found no injuries on the external parts of her body. He declare that he found hymenal lacerations on the victim's vagina which he estimated to be around one (1) to two (2) weeks old, and which could have been caused by a round blunt object such as a male penis.7 The testimony of one Dr. Ray Sague, a resident physician of the National Center for Mental Health in Mandaluyong City, was also presented. Said witness testified that the victim, Julie Ann Kiam, suffers from mental retardation, and has, in fact, the mentality of a three-year-old child.8 Finally, the prosecution presented the victim, Julie Ann Kiam, herself who, on direct examination, testified thus: x x x x x x x x x Q (Atty. Eufrocino Ramos, private prosecutor): Do you know the accused Senoy Erardo in this case? A (Julie Ann Kiam): Yes, Sir. Q If he is in the courtroom, will you be able to point him out? A Yes, Sir. Q Point him out now? (Interpreter: At this juncture, witness is pointing to the lone accused sitting on the bench, and who, when asked his name, responded that he is Senoy Erardo.) x x x x x x x x x Q Now, this Senoy Erardo whom you pointed, what did he do to you? A He "iyot" me, Sir. Q What do you mean by "iyot"? A "Tusok", Sir. Q What was "tusok" to you? A His "titi" penis, Sir. Q Where were you hit by this "titi" he "tusok" you? (Interpreter: The witness, your Honor, is pointing to her private organ.) Q When the accused made "tusok" or penetrated you, how did you feel? Q I cried, Sir. x x x x x x x x x Q Why did you cry, according to you? A Because it is painful, Sir.9 On cross-examination, the victim, Julie Ann Kiam, testified thus: x x x x x x x x x Q (Atty. Francis Villamar, counsel for the accused): Ms. Witness, you said that Senoy Erardo made some penetration to you which you called "tusok", is it not a fact that what is inserted to you is a finger? A (Julie Ann Kiam: Yes, Sir, finger. Q (by the Court: Aside from finger, is there anything that was inserted to your vagina? A Wood, your Honor. Q Have you seen a human penis? A Yes, your Honor. Q Do you have [sic] sexual intercourse before, Miss Witness? A Yes, your Honor. Q Who? A Senoy Erardo, your Honor. x x x x x x x x x Q (Atty. Villamar): Aside from the penis of Senoy Erardo, you also saw other penis of some other men? A None, Sir. 10 On re-direct, Julie Ann Kiam testified thus: x x x x x x x x x Q (Atty. Ramos): When your auntie saw you that afternoon, prior to that, what did Senoy use in penetrating you? A Wood, Sir. Q What else? A "Titi", Sir. Q How long is the "titi" or penis? (Interpreter: The witness is demonstrating how big is the penis by using her hands which estimated by counsels to be four and one-half (4 & 1/2) inches, your Honor.) 11 Accused-appellant, on the other hand, interposed the defense of alibi. He testified that he never even saw the victim Julie Ann Kiam in the afternoon of 1 June 1993. According to accused-appellant, he reported for work in the saltfarm of a certain Mr. Jack Chua on that day, and was in said saltfarm from 7:00 a.m. to 12:00 noon, and from 1:15 to 6:00 p.m. Accused-appellant further testified that on 2 June 1993, a day after the alleged rape, he was called to the house of Delia Cordero-Kiam, the victim's mother, where he was confronted with the accusation of allegedly raping Julie Ann Kiam, asked to give the amount of P100,000.00 to settle the case. Finally, accused-appellant testified that there was no quarrel or misunderstanding between him and any member of the victim's family; and, that they in fact had a "good relationship" prior to 1 June 1993. 12 To corroborate accused-appellants' testimony, the defense presented his brother Zosimo Erardo who testified that on 2 June 1993, one Kagawad Santiago Bicol went to his house to verify the complaint for rape of Delia Cordero-Kiam against his brother Marcelino "Senoy" Erardo; that later that day, he accompanied his brother, the accused-appellant, to the Kiam residence where they were confronted by Delia Cordero-Kiam, Jennylyn Cordero, and one Rebecca Cordero; and, that on that same occasion, accused-appellant denied that he raped Delia Kiam's daughter Julie Ann. Zosimo Erardo further testified that the Kiam family asked for the amount of P100,000.00 to settle the case, but that accused-appellant refused to pay. 13 It is noteworthy that, on cross-examination, the same witness testified that thereafter, his brother, the accused-appellant, left Barangay Labangan and was gone for several months. 14 The defense was supposed to present one Mr. Andres Andrade, accused-appellant's co-worker, to testify that accused-appellant was at the aforementioned saltfarm between 1:15 to 6:00 o'clock in the afternoon of 1 June 1993. However, the prosecution and the defense entered into a stipulation that said witness if presented would testify as above-stated, and so the defense dispensed with the presentation of Andres Andrade. In convicting accused-appellant of the crime of rape, the trial court gave credence to the testimonies of the prosecution witnesses, especially that of the victim, Julie Ann Kiam herself. Said the court: As borne out by the transcript of stenographic notes, the victim Julie Ann Kiam, was able to answer clearly the questions propounded to her by counsels of both parties and the court. The Court is convinced by the manner of the testimony of the victim that she was in fact raped by the accused Marcelino "Senoy" Erardo thru the latter's insidious approaches and employment of trickery and intimidation on a hapless retarded minor child of twelve summers . . . In this case, the prosecution has clearly proven the guilt of the accused beyond reasonable doubt thru the testimonies of all its witnesses named above and the documentary exhibits. Upon the other hand, the defense was able to present the accused and his bother Zosimo Erardo only, and their testimonies were permeated with strong denials of the commission of the crime. . . 15 We are inclined to agree with the findings of the trial court. Under the Revised Penal Code, rape is committed by having carnal knowledge of a woman under any of the following circumstances: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and, (3) when the woman is under twelve (12) years of age or is demented. 16 In this case, the victim Julie Ann Kiam, at the time of the incident, was a twelve-year-old woman with the mentality of a three-year-old child. 17 This Court has held that carnal knowledge of a woman above twelve (12) years of age but with the mental age of a child below twelve (12) years, even if done with her consent, is rape 18 because a mental retardate can not validly give her consent to or oppose the sexual act. 19 In his appeal to this Court, accused-appellant Erardo submits that the trial court erred in finding that he committed the crime of rape against Julie Ann Kiam on 1 June 1993. He argues that it is incredible that prosecution witness Jennylyn Cordero did not even utter a word upon seeing the alleged act of rape, but merely ordered her niece, the victim Julie Ann Kiam, to go home. 20 This contention is untenable.ℒαwρhi৷ Jennylyn Cordero had testified under oath that she did ask accused-appellant why he took advantage of her mentally-retarded niece, 21 before taking the victim to her house. While it is true that this alleged utterance was not mentioned in her affidavit, Jennylyn Cordero explained, to the satisfaction of the court, that this was so because the officer who was taking her sworn statement never asked her about it. 22 At any rate, testimonial evidence in court carries more weight than affidavits. 23 Testimonies given during trials are much more precise and elaborate than those stated in sworn statements. Ex-parte affidavits are almost always incomplete and often inaccurate for varied reasons, at times because of partial or innocent suggestion or for want of specific inquiries. Witnesses cannot be expected everytime, except when told, to distinguish between what may be consequential and what may be mere insignificant details. 24 Furthermore, the fact that Jennylyn Cordero neither screamed nor asked for help upon discovering the dastardly act on her niece, does not lessen her credibility as a witness. This Court has held that not every witness to or victim of a crime can be expected to act reasonably and conformable with the expectations of mankind. 25 Witnessing a crime is an unusual experience which elicits different reactions from the witnesses and for which no clear-cut standard form of behavior can be expected or drawn. 26 Accused-appellant likewise submits that the lower court erred in not taking into consideration the testimony of Dr. Hurley de los Reyes, the physician who examined the victim, that the latter's vagina contained old hymenal lacerations which could not have possibly been inflicted in the last three (3) days (before examination). Accused-appellant contends that since the medical examination was conducted three (3) days after the alleged commission of rape, this implies that the hymenal lacerations already existed prior to the date of the alleged rape. This contention is likewise unavailing. This Court has ruled that the claim that another person is responsible for the old healed hymenal lacerations prior to the date of the examination does not negate the commission of rape by accused-appellant when this has been demonstrated in vivid detail by complainant herself. 27 The absence of fresh lacerations does not prove that she was not raped. 28 We now deal with accused-appellant's defense of alibi. As aforestated, accused-appellant was allegedly at his place of work at the time of the commission of the rape. Significant; however, is the fact that accused-appellant's place of work and the scene of the crime are located in the same Barrio (Site), and accused-appellant had not positively shown that it was physically impossible for him to be at the scene of the crime at the time of the commission thereof. Time and again, this Court has ruled that alibi is an inherently weak defense and cannot prevail over the positive identification made by the victim and prosecution witnesses. 29 In the case at bar, the victim Julie Ann Kiam herself, on both direct and cross-examinations, pointed to the accused-appellant Marcelino Erardo as the man who had raped her. 30 This Court has held that when the victim says that she has been raped, she says in effect all that is necessary to show that rape has been committed, and if her testimony meets the test of credibility, the accused may be convicted on the basis thereof. 31 The fact that the victim in this case is a mental retardate is of no consequence, as it is a settled rule that a mental retardate, for that reason alone, is not disqualified from being a witness. 32 this Court has likewise held that a mental retardate who has the ability to make perceptions known to others is a competent witness. 33 Moreover, the trial court had observed that the victim Julie Ann Kiam was able to answer clearly the questions propounded to her by counsels of both parties and the court; and the trial court was convinced from the manner by which she testified that she had in fact been raped by accused-appellant Marcelino "Senoy" Erardo. 34 Well-settled is the rule that when the question of credence as to which of the conflicting versions of the prosecution and the defense where a rape was committed is in issue, the trial court's answer is generally viewed as correct and entitled to the highest respect because it is more competent to so conclude, having seen closely the way the witnesses testified, their deportment, and the peculiar manner in which they gave their testimonies and other evidence in court. 35 Finally, other circumstances exist which point to the guilt of accused-appellant. In his testimony, defense witness Zosimo Erardo stated that his brother, the accused-appellant Marcelino Erardo, left town after the rape incident and that he was gone for "several months". 36 Accused-appellant himself admitted that he went to Panay for a month before surrendering himself to the authorities. 37 While the flight of an accused person after the commission of an offense creates no legal presumption of guilt, it is nevertheless a circumstance which is admissible in evidence against him, and, if not explained in a manner consistent with his innocence, is to be considered as tending to show that he was the person who committed the deed. 38 It is also worthy to note the testimony of Mrs. Delia Cordero-Kiam that accused-appellant, together with his brother, went to her house to ask for her forgiveness. This Court has ruled that such an act (of asking for forgiveness ) is undeniably indicative of guilt. 39 In sum, there is proof beyond reasonable doubt that accused-appellant Marcelino "Senoy" Erardo is guilty of the crime of rape as charged. The penalty of reclusion perpetua, as meted out by the trial court on accused-appellant, is in accordance with law. However, the amount of indemnity for the victim is hereby raised from Forty Thousand (P40,000.00) to Fifty Thousand Pesos (P50,000.00) to conform with prevailing jurisprudence which awards moral damages of P50,000.00 in the rape of young girls with ages ranging from thirteen (13) to nineteen (19) years, rape of a mental retardate, forcible abduction with rape and statutory rape. 40 WHEREFORE, the appealed Decision, dated 26 January 1995, of the Regional Trial Court of San Jose, Occidental Mindoro (Branch 46) is hereby AFFIRMED with the modification that indemnity to the victim which accused-appellant is adjudged to pay is raised from P40,000.00 to P50,000.00. SO ORDERED. Bellosillo, Vitug, Kapunan and Hermosisima, Jr., JJ., concur. Footnotes 1 Rollo, p. 18. 2 Id. 3 Ibid, at pp. 25-26. 4 Ibid, at p. 36. 5 TSN, 6 May 1994, p. 23. 6 TSN, 10 May 1994, pp. 5-6. 7 TSN, 11 May 1994, pp. 5-6. 8 TSN, 9 August 1994, p. 9. 9 TSN, 12 August 1994, pp. 6-7. 10 TSN, 12 August 1994, pp. 9-10. 11 TSN, 12 August 1994, p. 13. 12 TSN, 14 December 1994, pp. 8-9. 13 Rollo, p. 23. 14 TSN, 9 November 1994, p. 6. 15 Rollo, p. 25. 16 The Revised Penal Code, Article 335, 1st paragraph. 17 Medical Certificate issued by Dr. Ray Sague of the National Center of Mental Health, after examining the victim, Julie Ann Kiam; Dr. Sague also testified for the prosecution. 18 People v. Rex Tabao, G.R. No. 111290, 30 January 1995, 240 SCRA 758. 19 People v. Jose Antonio, G.R. No. 107950, 17 June 1994, 233 SCRA 283. 20 Rollo, p. 37. 21 TSN, 6 May 1994, p. 22. 22 Ibid, at p. 23. 23 People v. Flaviano Matildo, G.R. No. 107643, 2 March 1994, 230 SCRA 635. 24 People v. Teodoro Miranda, et. al., G.R. No. 92369, 10 August 1994, 235 SCRA 202. 25 People v. Alberni Dupoli, G.R. No. 97474, 14 February 1994, 230 SCRA 62. 26 People v. Allan Rubio, G.R. No. 118315, 20 June 1996, 257 SCRA 528. 27 People v. Eduardo Benitez, G.R. No. 108771, 21 June 1994, 233 SCRA 318. 28 People v. Rodolfo Ngo, G.R. No. 95680, 4 October 1991, 202 SCRA 549. 29 People v. Norberto Clores, G.R. No. 82362, 26 April 1990, 184 SCRA 638. 30 TSN, 12 August 1994, pp. 6, 9 and 10. 31 People v. Amadeo Hangdaan, G.R. No. 90035, 13 September 1991, 201 SCRA 568. 32 People v. Alejandro Salomon, G.R. No. 96848, 21 January 1994, 229 SCRA 403. 33 People v. Leonardo, Gerones, G.R No. 91116, 24 January 1991, 193 SCRA 263. 34 Rollo, p. 25. 35 People v. Ramon Carson, G.R. No. 93732, 21 November 1991, 204 SCRA 266. 36 TSN, 9 November 1994, p. 6. 37 TSN, 14 December 1994, p. 10. 38 U.S. v. Lucas Virrey, No. 12901, 12 February 1918, 37 Phil. 618. 39 People v. Alberni Dupoli, supra. 40 People v. Romeo Joya, G.R. No. 79090, 1 October 1993, 227 SCRA 9. 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