Republic the Philippines

METROPOLITAN TRIAL COURT

National Capital Judicial Region
Branch 56
Malabon City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- CRIM. CASE NO. 277-19

For:“Estafa under Art.315,1(b) of
Revised Penal Code”

ANGEL PEREZ, JR. a.k.a JUN PEREZ,

Accused.

x----------------------------------------------------x

COMMENT
( To the Motion for Reconsideration of the
Order dated 23 April 2020 )

The undersigned counsel for the accusedmost respectfully

submits its Comment to the Motion for Reconsideration of the
Resolution/Order of the Honorable Court dated 23 April 2020 and
avers:

1. The prosecution moved and prayed to the Honorable

Court to revisit and re-examine its findings and reverse its issued
resolution in granting the Demurrer to Evidence filed by herein
accused and dismissed the case for insufficiency of evidence.

2. Describing the nature of a demurrer to evidence, the

Supreme Court explained:

Demurrer to the evidence is “an objection by one

of the parties in an action, to the effect that the
 evidence which his adversary produced is
insufficient in point of law, whether true or not, to
make out a case or sustain the issue. The party
demurring challenges the sufficiency of the whole
evidence to sustain a verdict. The court, in passing
upon the sufficiency of the evidence raised in a
demurrer, is merely required to ascertain whether
there is competent or sufficient evidence to sustain
the indictment or to support a verdict of guilt.
Sufficient evidence for purposes of frustrating a
demurrer thereto is such evidence in character,
weight or amount as will legally justify the
judicial or official action demanded according to
the circumstances. To be considered sufficient
therefore, the evidence must prove: (a) the
commission of the crime, and (b) the precise
degree of participation therein by the accused.”
Thus, when the accused files a demurrer, the court
must evaluate whether the prosecution evidence is
sufficient enough to warrant the conviction of the
accused beyond reasonable doubt.

3. The Honorable Court is correct in its ruling that the

prosecution evidence is hearsay because the private complainant
was not presented to testify in open court. It is settled that unless the
affiants themselves take the witness stand to affirm the averments in
their affidavits, the affidavits must be excluded from a judicial
proceeding for being inadmissible hearsay.

4. In addition to their contention, the prosecution contends

that they were able to prove that the accused had both material and
juridical possession of the vehicle. Such contention are bereft of
evidence merit and scant consideration due to the mere fact that it is
contrary to the findings of SACPUy-Manalo of the City Prosecutors
Office when he resolved the complaint and found that the first
element of Estafa was wanting because it will require that the
accused acquired both material or physical possession of the subject
Toyota Fortuner when it was pledged to him by Kelly.

5. The presumption of innocence is a legal right that the

accused has in criminal action. Considering that presumption of
guilt is abhorred because of its clear unfairness, the burden of proof

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of guilt is therefore on the prosecution. In People vs. Tolentino,[1] the
Supreme Court ruled that:

“As the accused has in his favor the

constitutional presumption of innocence, the
quantum of proof that will warrant a verdict of
guilty must be strong enough to erase any
reasonable doubt as to his culpability. xxx.

The accused is not duty-bound to dispel

the doubts regarding his innocence.
Accordingly, the constitutional presumption of
innocence prevails.”

6. In this instant case, the prosecution is duty bound to

establish by clear and convincing evidence, the elements of the
crime. In estafa through misappropriation under Article 315,
paragraph 1 (b) of the RPC, the following essential elements must be
present: (1) that money, goods, or other personal property is
received by the accused in trust or on commission or for
administration or under any obligation involving the duty to make
delivery of or to return the same; (2) that there is misappropriation
or conversion of such money or property by the accused or denial
on his part of such receipt; (3) that such misappropriation or
conversion or denial is to the prejudice of another and (4) that there
is a demand made by the offended party on the accused;[2]

7. In the above stated elements of the crime in which the

accused stand charged, nothing therein would convincingly prove
his guilt beyond reasonable doubt. It is worthy to note that the
transaction entered by and between the parties(the son of private
complainant and the alleged accused) in connection to this case is a
mortgaged agreement. Thus, it only involves the material
possession by the accused overthe Toyota Fortuner owned and
registered under the name of private complainant;

8. The prosecution presented Mr. Nicomedes Rico

( Nicomedes for brevity ) as their first witness where the latter’s
purpose of his testimony were as follows : (1) To prove the material
allegations contained in the Information filed by the Honorable
1
G. R. No. 70836, 18 October 1988.
2
FiladamsPharma, Inc. v. Court of Appeals, G.R. No. 132422, 30 March 2004, 426 SCRA 460.

3
Office of the City Prosecutor of Malabon; (2) To prove that all the
essential elements of Estafa are present in this case; (3) That he
personally transacted with the accused Angel Perez for the
redemption of the mortgaged Toyota Fortuner; (4) To prove the
damage and losses sustained by the private complainant in this case;
(5) To prove the averments in the initial Complaint-Affidavit
submitted before the Honorable Office of the City Prosecutor of
Malabon;

9. The testimony of Nicomedes during his examination

would readily show his desire to “seek justice” against the accused.
Thus, instead of giving the accused the amount of Two Hundred
Fifteen Thousand Pesos for the redemption of the Toyota Fortuner,
the witness decided to give that amount to Atty. Apoya and Edwin
Justo, and instructed them to personally go to the PNP- Occidental
Mindoro to redeem the vehicle.

10. On his cross-examination, Nicomedes mentioned that

Susan contacted Jun by cellular phone. He knew that the person
who Susan de Jesus spoke with was the accused because he was
sitting next to Susan. This was his conclusion despite not yet seeking
the accused nor hearing the accused voice that time. But on re-cross
examination, Nicomedes included Susan de Jesus in the complaint
because according to him, “ Siyempre, di naminsiyakilalapatisi Jun
Perez. ” Hence, witness Nicomedes has no personal knowledge in
this instant case;

11. The testimonies of the witness are unworthy of belief

and contains conjectures for having lack of personal knowledge
with the facts and circumstances with regards to the crime. A
witness can testify only to those facts which he knows of his
personal knowledge. As such, the probative value, in whole or in
part, on the competency and credibility of such witnesses raised a
reasonable doubt on the guilt of the accused. This was shown in the
cross-examination of said witness on 12 December 2019, in this
manner:

“CROSS EXAMINATION
(Atty. Richard V. Gomez) – Preliminary Questions

4
 Question: Mr. Witness, when does your judicial
affidavit was executed, may I know?

Answer: This December, Sir.

Q. ~ What’s the exact date?

A. ~ I do not remember, Sir.

Q. ~ Based on your judicial affidavit, it was executed

on November 27…..[3]

----------
“(Atty. Gomez to witness)

Q ~ So you became friends with Susan De Jesus, am I

correct?

A. ~ Not really, sir.

Q. ~ But you know very well Susan De Jesus?

A. ~ Not really, sir.

Q. ~ During your conversation, Susan contacted the

accused, Angel Perez by cellphone?

A. ~ Yes. Sir

Q. ~ How?

A. ~ “Magkatabilangpo kami noon, nag uusapsila,

Sir.”

Q. ~ Have you seen the number dialed by..?

A. ~
“Bastanaririnigkolangusapannilanamagkikitasaganonl
ugar.”

3
TSN, dated 12 December 2019, page 2

5
 Q. ~ So right there and then, you knew that Susan
talking with Angel Perez, that was the first time that
you saw or heard Susan talking with Angel Perez?
A. ~ Yes. Sir.

Q. ~ And you concluded that Susan talked to Angel

Perez, the accused in this case?
A. ~ Yes. Sir.

Q. ~ But you have not yet seen Angel Perez that time?
A. ~“ Di pa po, Sir.”[4]

-------------

10. The testimonies of the prosecutions’ witness are

incredible and unworthy of belief due to the contradictory evidence
they offered. Pertinent portions of the testimony of the witness(Mr.
Nicomedes Rico) would reveal that Susan de Jesus and not the
accused was the one who orchestrated all the transactions from
mortgaged of Toyota Fortuner to the point of redeeming the vehicle.
12. The admission by the witnessesduring their testimonies
that those facts stated in their judicial affidavit in lieu of direct
testimony would readily disclosed that they have no personal
knowledge in connection to the instant case. As such, the probative
value, in whole or in part, on the competency and credibility of such
witnesses raised a reasonable doubt on the guilt of the accused;

13. The same conclusion can be derived when the second

prosecution witness in the person of Edwin P. Justo testified on 21
January 2020. The said witness has no direct personal knowledge
with the mortgage transactions by and between the son of the
private complainant and the accused. The only testimony that was
proven by the said witness is that the accused has no hand and
participation in the spurious documents;

14. By contradictory evidence, the testimony of the son of

private complainant, named Kelly Rico should not be given weight
as evidence.

4
TSN, 12 December 2019, page 4

6
 15. When Kelly Rico testified before the Honorable Court,
most of his answer during examination raised irregularities in his
credibility as witness that would create doubt on the guilt of the
accused beyond reasonable doubt. Thus, acquittal in favor of the
accused should necessarily be rendered by the Honorable Court.

16. The credibility of witness Kelly Rico to tell the truth

create doubt as to the veracity of the facts and circumstances in this
instant case. The inconsistencies of his testimonies shows the
incredibleness and impossibilities of facts that transpired between
him and the accused as follows:

17. In sum, aside from the exclusion of evidence marked as

Exhibits “A”, “A-1” to “A-27”- complaint-Affidavit of private
complainant Maria Teresa as ordered by the Honorable Court dated
27 February 2020 due to the non-presentation of the said private
complainant, as well as the fact that the subject Toyota Fortuner
vehicle were sold at a price of One Million (Php1,000,000.00) Pesos
plus non-payment of One Hundred Thousand(Php100,000.00) Pesos
plus interest and the testimonies of all the witnesses during the
course of hearing, the Accused, through the undersigned counsel
stand that the evidence presented by the prosecution is not
sufficient to warrant a conviction of the guilt of the accused beyond
reasonable doubt;

WHEREFORE, it is most fervently prayed of this Honorable

Court to deny the Motion for Reconsideration of the Order dated 23
April 2020 in granting the DEMURRER TO EVIDENCE in view of
the failure of the prosecution to establish the guilt of accused
beyond reasonable doubt.

Other relief and remedy that is deemed just and equitable

under the circumstances is being prayed for.

Malabon City, 24 July2020.

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 THE LAW OFFICE OF ATTY. RICHARD V. GOMEZ
Malabon City Legal Department, 7th Floor MAlabon City Hall
Sevilla Boulevard, San Agustin Malabon City
E-mail: 1972.richardgomez@gmail.com
Mobile No.: 09756977381

By:

ATTY. RICHARD V. GOMEZ

Counsel for the Accused
MCLE Compliance No. VI-0013821
PTR No.SC 2597099/Santiago City/01-03-2020
IBP No. OR no.095950 dated 11/28/2019/ Manila
Roll No.69120/05-30-17
Explanation pursuant to Section 11, Rule 13 of the
1997 Rules of Civil Procedure

Copies of this pleading were duly served to the via

registered mail/ LBC with return card instead of personal
service due to considerable distance of these offices from office
of the counsel for the petitioner and because of time constraints.

ATTY. RICHARD V. GOMEZ

Copy furnished:

Pros. Jenny Garcia

The City Prosecutor’s Office
Catmon Compound
Malabon City

Private Pros. Roderick M. Mallari

Ground Floor, LEA Building
No. 868 Tayuman Street, Tondo, Manila