Republic of the Philippines

Third Judicial Region

REGIONAL TRIAL COURT
Branch 74, Olongapo City

PEOPLE OF THE PHILIPPINES,

Plaintiffs,

- versus - Criminal Case No. 865-14

For: Murder
L/CPL JOSEPH SCOTT
PEMBERTON,
Accused.
x ------------------------------------------ x

COMMENT and OPPOSITION

(to Accused’s Omnibus Motion)

Private Complainant, through counsel, respectfully states that:

1. On 01 December 2015, the Honorable Court promulgated its Decision

dated 18 November 2015 in the above-captioned case finding Accused Pemberton
guilty beyond reasonable doubt of the crime of homicide, the relevant portion of the
dispositive reads as follows:

WHEREFORE, judgment is rendered finding accused L/CPL

JOSEPH SCOTT PEMBERTON GUILTY beyond reasonable doubt of the
crime of homicide and sentencing him to suffer the indeterminate sentence
of six (6) years of prision correctional as minimum and twelve (12) years of
prision mayor as maximum with full credit for the period of his preventive
imprisonment pursuant to Article 29, Revised Penal Code; and ordering
him to pay to the heirs of the late Jeffrey S. Laude, represented by Julita
Cabilan, as follows: a) Php 50,000.00 as civil indemnity; b) Php 4,320,000
as damages for loss of earning capacity; c0 Php 155,250.00 as
reimbursement for the wake, burial and other related expenses as actual
damages; d) Php 50,000 as moral damages; and e) Php 30,000.00 as
exemplary damages.1

2. Thereafter, Accused, through counsel, filed an Omnibus Motion dated 15

December 2015 for (I) Partial Reconsideration; (II) Bail; and (III) Clarification.

3. During the 07 January 2016 hearing, the public and private prosecutors
were given ten (10) days within which to file their respective comment/opposition to
Accused’s Omnibus Motion.

1
Decision, p. 58.
 4. On 18 January 2016, Private Complainant timely filed an Urgent Motion for
Additional Time praying for an additional period of three (3) days, or until 21 January
2016, within which to file her Comment/Opposition. Hence, this Comment/Opposition is
timely filed.

5. With all due respect, Private Complainant does not find any cogent reason
for this Honorable Court to reconsider its Decision dated 18 November 2015 with
respect to the damages awarded to the family of the slain transgender Jennifer Laude.

6. Furthermore, Private Complainant vehemently opposes Accused’s

Application for Bail and prays that the same be denied for the reasons that will be
discussed below.

7. In support thereof, Private Complainant makes the following submissions:

I
THE HONORABLE COURT WAS CORRECT IN AWARDING THE AMOUNT OF PHP
4,320,000.00 AS DAMAGES FOR LOSS EARNING CAPACITY

8. Accused argues that the damages awarded by the Honorable Court for loss
of earning capacity is excessive and without basis as documentary evidence should
have presented to substantiate the claim for loss of earning capacity. 2

9. Private Complainant respectfully disagrees with the Accused.

10. In a catena of cases, the Supreme Court consistently ruled that the failure
to present documentary evidence does not bar a claim for damages for loss of earning
capacity of the deceased.3

11. In the instant case, the private prosecutor presented as witnesses, Marilou
Laude and Julita Cabilan to prove that, in fact, Jennifer earned a living when she was
still alive and supported her mother for years even with her lack of a college degree -
showing the resilience during hard times of a Filipino - before she was brutally killed by
the Accused.

12. The testimonies of said witnesses guided the Honorable Court in making a
fair and reasonable estimate despite the absence of documentary evidence stating the
exact amount of money earned by Jennifer.

13. Hence, guided by the rule enunciated in these cases, the Honorable Court
made a reasonable estimate of the income of Jennifer from the testimonies of her
sister and mother. The pertinent portion of the Decision reads as follows:

2
CF Omnibus Motion, p. 58.
3
Pleyto v. Lomboy, G.R. No. 148737, June 16, 2004; People v. Bangcado and Banisa, G.R. No. 132330, November 28, 2000; People
v. Garcia, G.R. No. 135666, July 20, 2001; People v. Verde, G.R. No. 119077, February 10, 1999; Pantranco North Express, Inc v.
Baesa, G.R. Nos. 79050-51, November 14, 1989.
2
 “The rule of allowing testimonial evidence as long as the court can
make a “fair and reasonable estimate of damages for loss of earning
capacity” was applied by the Supreme Court in Pleyto v. Lomboy and
Garcia. Despite the absence of documentary evidence to support the
widows’ claim, the court still awarded loss of earning capacity. This is
reiterated in the recent case of People vs. Jorie Wahiman where the
Supreme Court based the award of lost earning on the testimony of the
widow. Thus, says the Court: “However, we are inclined to award lost
earnings considering that the deceased, as testified by his widow was the
manager of Stanfilco-Dole, Phils, in Malaybalay City and was receiving a
monthly salary of P95,000.00.”

Decedent’s omission to declare his occupation in his postal

identification card does not bar his heir’s recovery of indemnity for loss of
earning capacity. This Court considers sufficient the testimonies of the
decedent’s sibling and mother to establish that the decedent derived
income during his lifetime and had, in fact, provided weekly sustenance to
his mother in Leyte. As can be culled from the records, such facts remains
unrefuted by the defense. Significantly, the defense waived his right to
cross-examine the decedent’s mother, and, thus, failed to raise objections
pertaining to the latter’s claim for indemnification for loss of earning
capacity.4” (Internal citation omitted)

14. Clearly, the ruling of the Honorable Court is supported by factual and legal
basis.

15. Furthermore, Accused argues that the statement of Julita Cabilan is merely
self-serving and unsubstantiated.

16. However, it should be pointed out that the Marilou Laude testified as to the
fact that Jennifer earned a living while she was still alive. Marilou was presented prior
to Julita on 25 April 2015. When Julita was presented on 28 April 2015 she
corroborated Marilou’s statement that indeed Jennifer earned a living and that her
deceased daughter constantly supported her for years.

17. Accused’s decision to waive his right to cross-examine Julita was fatal to
his case as he waived any opportunity he had to show if the statements of Julita were
merely self-serving. Accused cannot belatedly argue that the testimony of Julita
deserves scant consideration of the Honorable Court to correct said mistake.

18. Lastly, what is peculiar with the argument of the Accused is that on one
hand, Accused adamantly claims that the Jennifer has no occupation at all as he
alleged that the documents presented indicated the same. And yet, Accused claims
that the Jennifer was a sex worker. 5 These contradictory assertions pulls the rug from
under Pemberton’s claim that the award for damages made by this Honorable Court is
without basis.

4
Decision, pp. 54-55.
5
Omnibus Motion, 68.
3
 19. The acts of the Accused are mere blatant attempts to paint a dark shade
over the character of the victim and are disgusting attempts to deny the victim’s family
what is due them.

20. All things considered, Private Complainant submits the award of damages,
as loss of earning capacity, is correct.

II
THE HONORABLE COURT WAS CORRECT IN AWARDING PHP 30,000.00 AS
EXEMPLARY DAMAGES

21. The Honorable Court awarded exemplary damages in the instant case to
serve as a deterrent and to set a public example.

22. Relevant portion of the Decision reads as follows:

“In this case, the Court did not appreciate any aggravating
circumstances, however by analogous application of the Supreme Court’s
pronouncement, the Court deemed it best to ward exemplary damages in
favour of the heirs of the deceased. The award is given to set a public
example, to serve as deterrent to all military and civilian personnel of the
United States of America like the accused, who from time to time may visit
the Republic of the Philippines pursuant to the Visiting Forces Agreement
(VFA) to respect every Filipino citizen regardless of his/her sexual
orientation and also the laws of the Republic of Philippines. xxx” 6

23. The Honorable Court was correct in awarding exemplary damages. It is

beyond contest that the instant case is one imbued with public interest and widely
publicized – it is a case wherein a US military personnel staying in the country by virtue
of an agreement between the governments of USA and the Philippines killed a
transgender Filipino citizen in Philippine soil. The dangers that the exemplary
damages seek to deter are two-pronged: to deter foreign service men from violating the
sovereignty and the laws of its host state, and to deter discrimination against persons
by virtue of their sexual orientation.

24. The Supreme Court has ruled that exemplary damages may be awarded in
criminal cases as a public example 7. The award of the same in the instant case is a
reiteration of Philippine sovereignty and a reminder that Philippine law must be upheld
and respected by everyone falling within its scope – be they foreign or not.

III
ACCUSED’S APPLICATION FOR BAIL SHOULD BE DENIED FOR LACK OF
MERIT

6
Decision, p. 57.
7
People v. Neverio, G.R. No. 182792, August 25, 2009.
4
 25. Accused’s application for bail falls within the purview of Section 5 of Rule
114 of the Revised Rules of Criminal Procedure, which provides:

“Section 5. Bail, when discretionary. — Upon conviction by the Regional

Trial Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. The application for bail
may be filed and acted upon by the trial court despite the filing of a notice
of appeal, provided it has not transmitted the original record to the
appellate court. However, if the decision of the trial court convicting the
accused changed the nature of the offense from non-bailable to bailable,
the application for bail can only be filed with and resolved by the appellate
court.

Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six

(6) years, the accused shall be denied bail, or his bail shall be cancelled
upon a showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That he has previously escaped from legal confinement,

evaded sentence, or violated the conditions of his bail without
valid justification;

(c) That he committed the offense while under probation,

parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of

flight if released on bail; or

(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in
either case. (5a)”

26. Accused argues in his application that none of the circumstances

enumerated above is present in the instant case; hence, his application for bail should
be granted. This is baseless and untrue.

27. At the onset, it should be underscored that the bail pending appeal is not a
matter of right but the grant of the same lies on the sound discretion of the Honorable
Court.

5
 28. More importantly, the rules of criminal procedure adopt a more restrictive
approach in granting bail pending appeal. The explanation of the Supreme Court with
respect to this policy in the case of Leviste v. Court of Appeals8 is enlightening, to wit:

“The present inclination of the rules on criminal procedure to frown on

bail pending appeal parallels the approach adopted in the United States
where our original constitutional and procedural provisions on bail
emanated. While this is of course not to be followed blindly, it nonetheless
shows that our treatment of bail pending appeal is no different from that in
other democratic societies.
In our jurisdiction, the trend towards a strict attitude towards the
allowance of bail pending appeal is anchored on the principle that
judicial discretion particularly with respect to extending bail should
be exercised not with laxity but with caution and only for strong
reasons. In fact, it has even been pointed out that grave caution that must
attend the exercise of judicial discretion in granting bail to a convicted
accused is best illustrated and exemplified in Administrative Circular No.
12-94 amending Rule 114, Section 5.
 
Furthermore, this Court has been guided by the following:
 
The importance attached to conviction is due to the
underlying principle that bail should be granted only where
it is uncertain whether the accused is guilty or innocent,
and therefore, where that uncertainty is removed by
conviction it would, generally speaking, be absurd to admit
to bail. After a person has been tried and convicted the
presumption of innocence which may be relied upon in
prior applications is rebutted, and the burden is upon the
accused to show error in the conviction. From another point
of view it may be properly argued that the probability of ultimate
punishment is so enhanced by the conviction that the accused
is much more likely to attempt to escape if liberated on bail than
before conviction. (emphasis supplied)
 
As a matter of fact, endorsing the reasoning quoted above and relying
thereon, the Court declared in Yap v. Court of Appeals (promulgated in
2001 when the present rules were already effective), that denial of bail
pending appeal is a matter of wise discretion.”9 (Emphasis supplied)

29. In this case, there is not even an iota of doubt that Accused killed Jennifer.
The Honorable Court was convinced beyond reasonable doubt that Pemberton ended
the life of Jennifer.

30. Contrary to his claim, the probability of flight in the case of the Accused is
high.

31. It should be noted that despite a clear order from the Honorable Court to
temporarily commit the Accused to the National Bilibid Prison in Muntilupa City pending

8
G.R. No. 189122, March 17, 2010.
9
Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010.
6
clarification of the agreement between the governments of USA and Philippines,
Accused never set foot in the said facility. This alone casts doubt to Accused’s
deference to the duly issued order by Philippine courts.

32. More importantly, what will stop the Accused from leaving the Philippine
territory after he is granted bail? The Philippines has more than a thousand exit points
that can be utilized if necessary to escape the possibility of being imprisoned in a
foreign land. Furthermore, questions are raised as to how the Philippine government
can take custody of the Accused, in case his conviction attains finality, if he already left
Philippine territory. The Accused is a foreigner whose only reason for staying in the
Philippines is the instant case. If provisional liberty will be granted, Accused has no
other reason to stay but will have more reason to leave.

33. Also Accused , in applying for bail, seeks for himself more privileges not
available to thousands of ordinary convicts who, simply because they cannot afford to
pay high-priced lawyers, are denied their right to the equal protection of laws.

34. It is a known fact that thousands of Filipino detainees are imprisoned in

over-populated city jails where they are confronted with issues of hygiene and
contagious diseases on a daily basis. They are brought to courts using improvised
security vehicles. These detainees even share a handcuff and wear color-coded shirts.

35. And yet, during the time of the trial, Accused was confined in an air-
conditioned room, travel to and from the Honorable Court riding an air-conditioned
vehicle and was given the opportunity to wear a suit during his appearances in Court.

36. The stark contrast between treatment of a Filipino detainee and the
Accused cannot be disregarded. And yet, Accused still asks this Honorable Court for
more privilege such as granting him temporary liberty pending his appeal.

37. Hence, due to these numerous legal grounds, Private Complainant pray
that this Honorable Court deny Accused’s application for bail.

38. Finally, Accused has already been declared an undesirable alien by the
Bureau of Immigration in a Resolution dated 16 September 2015, to wit:

There is no question that an alien charged for murder poses a risk

to public safety and order and should be deported without delay for being a
menace to society.

xxx

WHEREFORE, We find respondent JOSEPH SCOTT PEMBERTON,

American national, to be an undesirable alien and order his DEPORTATION,
subject to the issuance of a clearance from the Regional Trial Court,
Branch 74, Olongapo City and other appropriate agencies.

7
 39. He was deemed a risk to public safety by the BID simply on the basis of his
being charged for murder; a fortiori, there is more reason to treat him as posing a
grave risk to society if allowed to post bail, considering his conviction by this Honorable
Court for murder.

40. Moreover, under immigration rules, he cannot be allowed to post bail, or

else he will be placed under detention upon release on bail, so that he may be made
subject to deportation proceedings.

41. The relevant provisions of Sec. 37 of Commonwealth Act 613, or the

Immigration Act of 1940, state that:

(a) The following aliens shall be arrested upon the warrant of the
Commissioner of Immigration or of any other officer designated by him for
the purpose and deported upon the warrant of the Commissioner of
Immigration after a determination by the Board of Commissioners of the
existence of the ground for deportation as charged against the alien:

xxxx

( 3 ) Any alien who, after the effective date of this Act, is convicted in
the Philippines and sentenced for a term of one year or more for a crime
involving moral turpitude committed within five years after his entry to the
Philippines, or who, at any time after such entry, is so convicted and
sentenced more than once;

A copy of the Resolution is attached as ANNEX A. A certified true copy of the same
will be submitted to this Honorable Court once it has been made available to Private
Complainant.

42. Thus, it is clear that there is no legal basis for an allowance of bail for the
Movant.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that this

Honorable Court DENY Accused’s Motion for Partial Reconsideration and Application
for Bail.

Other relief just and equitable under the premises are likewise prayed for.

RESPECTFULLY SUBMITTED.

Makati City for Olongapo City, 21 January 2016.

8
 Roque & Butuyan Law Offices
Counsel for Private Complainant
1904 Antel Corporate Centre,
121 Valero Street, Salcedo Village
1227 Makati City, Philippines
+632.8873894 +632.8873893
mail@roquebutuyan.com

By:

H. HARRY L. ROQUE, JR.

Roll No. 36976
PTR No. 5334537/Jan 11, 2016/Makati
IBP No. 01749/Lifetime
MCLE Exemption No. IV-000513
(issued on Feb 15, 2013)

ROMEL R. BAGARES
Roll No. 49518
PTR No. 5334535/Jan 11, 2016/Makati
IBP No. 1023638/Jan 8, 2016/So. Cotaboto
MCLE Compliance No. IV-0011822
(issued on Jan 25, 2013)

CHARLAINE E. LATORRE
Roll No. 62890
PTR No. 5334539/Jan. 11, 2016/Makati City
IBP No. 1023637/Jan. 8, 2016/Cavite
MCLE Compliance No. N/A

Copy furnished:

City Prosecutor Emilie Fe Delos Santos

Office of the City Prosecutor
Olongapo City

Atty. Rowena Garcia Flores

Counsel for Respondent-Appellant
9K The Fort Residences
30th Street corner 2nd Avenue
Burgos Circle, Bonifacio Global City
Taguig, Metro Manila


Admitted to the Philippine Bar in 2014. Hence, MCLE compliance is not yet due until 2015, in accordance with Bar Matter No. 850.
9
 EXPLANATION

This Comment and Opposition is served on the parties and filed before this
Honorable Court by registered mail and private courier in accordance with Section 11,
Rule 13 of the Rules of Court due to distance, time constraint, and lack of
messengerial services.

CHARLAINE E. LATORRE

10