Dissatisfied, Pemberton now comes to Court
to appeal the trial court's assailed Decision
and Order, and assigns the following errors
supposedly committed by the trial court:
A. THE TRIAL COURT SERIOUSLY
ERRED IN CONVICTING
PEMBERTON OF THE CRIME OF
HOMICIDE CONSIDERING THAT
THE CAUSE OF LAUDE'S DEATH
IS DOUBTFUL. ON THE ONE
HAND, DR. RACQUEL FORTUN
TESTIFIED THAT LAUDE DID
NOT DIE BY DROWNING (HE
DID NOT EVEN DROWN). ON
THE OTHER HAND, BOTH THE
PROSECUTION AND THE
DEFENSE AGREE THAT LAUDE
DID NOT DIE BY
STRANGULATION. AT ANY RATE,
ASSUMING HE DIED BY
STRANGULATION, IT WAS NOT
BY THE HANDS OF PEMBERTON.
IN FACT, THE PROSECUTION
ITSELF ASSERTS THAT LAUDE
WAS STILL ALIVE AFTER THE
“ARMLOCK”.
The trial court resolved that Laude
died due to “asphyxia by drowning”. In
support of this conclusion, the trial court
cited the testimony of Dr. Dave as well as
treatises in medical jurisprudence stating
that the abnormal state of Laude's lungs,
the accumulation of blood-tinged fluid in his
bronchi and the blood-tinged secretion from
his nasal and oral orifices are clear
indications that Laude had an asphyxial
death by drowning.
Further, it cannot be
overemphasized that the medico-legal
reports carry the presumption
of regularity in the performance of Dr.
Dave's functions and duties.66
For said reasons, we find that the trial court
correctly ruled that
Laude died due to “asphyxia by drowning”.
B. THE TRIAL COURT SERIOUSLY
ERRED IN BRUSHING ASIDE
ALL EVIDENCE TENDING TO
ESTABLISH THAT ANOTHER
PERSON KILLED LAUDE. THE
NECKLACE LAUDE WAS
CLUTCHING IN HIS HAND THAT
DID NOT BELONG TO HIM OR
PEMBERTON; LAUDE'S MONEY
THAT WAS STOLEN BY A THIRD
PERSON, NOT PEMBERTON; THE
THIRD SET OF DNA PROFILE ON
LAUDE'S NECK THAT WAS NOT
LAUDE'S OR PEMBERTON'S; THE
BLANKET THAT WRAPPED
LAUDE'S BODY, WHICH WAS
NOT THERE WHEN PEMBERTON
LEFT HIM; THE FACT THAT THE
POSITION OF LAUDE'S LEGS
CHANGED AFTER PEMBERTON
LEFT HIM.
As to who killed Laude, the trial court
pointed to Pemberton as he was the last
person seen with the former. Further, the
trial court found that Pemberton was lying
when he said that he left Laude still alive
otherwise, Pemberton would have brought
him to the nearest hospital for an
emergency treatment.
All in all, despite Pemberton’s self-serving,
exculpatory statement limiting his
involvement in the crime, all circumstances
pointed to his guilt.
 C. THE TRIAL COURT SERIOUSLY EXCLUSION OF OTHERS”.
ERRED IN RULING THAT THE GALLAMOS SAW LAUDE ALIVE.
ALLEGED STATEMENT OF IT WAS ONLY AFTER ABOUT 30
PEMBERTON TO ROSE, TO WIT: MINUTES THAT THE RED CROSS
“I THINK I KILLED A VOLUNTEERS DECLARED LAUDE
HE/SHE”CONSTITUTES AN DEAD. EVEN THE AUTOPSY
ADMISSION OF GUILT. EVEN REPORT STATES THAT LAUDE
ASSUMING THAT PEMBERTON DIED ON OCTOBER 12, NOT
SAID THIS, THE SAME IS OCTOBER 11, 2014.
MERELY SPECULATION. IN ANY
The Court disagreed stating that Gallamos
CASE, SUCH STATEMENT IS
was not a medical practitioner who could
CONSISTENT WITH SELF
ascertain with a reasonable degree if Laude
DEFENSE UNDER ART. 11 OF
was just unconscious or has already passed
THE REVISED PENAL CODE.
away. Gallamos’ statement about Laude just
Pemberton assails the ruling of the trial fainted was just a mere opinion.
court He argues that his statement can be
deemed as part of the res gestae, it ______________________________
cannot be construed as admissions of guilt. E. THE TRIAL COURT SERIOUSLY
ERRED IN RULING THAT
Verily, res gestae means the "things done". PEMBERTON IS NOT ENTITLED
TO THE JUSTIFYING
There are then three (3) essential requisites CIRCUMSTANCE OF COMPLETE
to admit evidence as part of the res gestae, SELF-DEFENSE:
namely:
(1) THE UNWANTED SEXUAL ACTS OF
(1) that the principal act, the res gestae, be LAUDE ON PEMBERTON NEED NOT
a startling occurrence; FALL UNDER “ACTS OF
LASCIVIOUSNESS” TO BE
(2) the statements were made before the CONSIDERED AS UNLAWFUL
declarant had the time to contrive or devise AGGRESSION;
a falsehood; and
(2) THE SLAP ON PEMBERTON'S FACE
(3) that the statements must concern the WAS ALSO AN UNLAWFUL
occurrence in question and its immediate AGGRESSION IN LIGHT OF THE
attending circumstances. CIRCUMSTANCES;
All the above elements are present in the (3) THE PRESENCE OF UNLAWFUL
utterance made by Pemberton to Rose. AGGRESSION MUST BE ASSESSED IN
LIGHT OF ALL THE CIRCUMSTANCES
D. THE CIRCUMSTANCES RELIED AS THEY MUST HAVE PRESENTED
UPON BY THE TRIAL COURT DO THEMSELVES TO PEMBERTON. HAD
NOT CONSTITUTE AN THE FACTS BEEN AS HE BELIEVED
“UNBROKEN CHAIN” OF EVENTS THEM TO BE, HE WOULD NOT HAVE
LEADING TO THE CONCLUSION BEEN CRIMINALLY LIABLE FOR HIS
THAT PEMBERTON IS THE ACTS.
AUTHOR OF THE CRIME “TO THE

First, the alleged molestation done to
Pemberton cannot be considered as
unlawful aggression. Even if the definition
of injury is broadened to include
Pemberton's dignity and self-respect,
unlawful aggression is still wanting.
Unlawful aggression to merit self-defense
must be continuous, otherwise, it indeed, a
plea of self-defense cannot be justifiably
appreciated where it is not only
uncorroborated by independent and
competent evidence, but also extremely
doubtful by itself.
With the above disquisition, the conviction
of Pemberton for homicide is undeniable.
Nonetheless, to afford a complete resolution
of this case, the Court would delve on the
other alternative defenses raised by
Pemberton.
Moreover, the absence of provocation on
the part of Laude to warrant such vicious
attack need not be debated. He went with
respondent on his own volition to engage in
sexual acts in exchange for money. Thus,
he most probably did not expect to be in
danger and, consequently, he was unlikely
unable to defend himself against the
unwarranted attack.
F. THE TRIAL COURT SERIOUSLY
ERRED IN NOT APPRECIATING
IN FAVOR OF PEMBERTON THE
MITIGATING CIRCUMSTANCES
OF (1) VOLUNTARY SURRENDER
AND (2) NO INTENTION TO
COMMIT SO GRAVE A WRONG,
TOGETHER WITH THE
PRIVILEGED MITIGATING
CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE.
First, one of the requisites so that voluntary
surrender can be applied is that “there is no
pending warrant of arrest or information
filed”.
The Court of Appeals ruled that, the
Information against Pemberton was filed by
the Olongapo City Prosecutor’s Office on
December 15, 2014, four (4) days before
Pemberton presented himself to the trial
court. Thus, this mitigating circumstance
cannot be appreciated in Pemberton’s favor.
Second, the prosecution proved that
Pemberton did not leave Laude merely
unconscious, but ensured his death by
submerging his head inside the toilet bowl.
Clearly, Pemberton intended the natural
consequence of his act.
______________________________
G. THE TRIAL COURT SERIOUSLY
ERRED IN AWARDING
EXCESSIVE DAMAGES:
Anent the last assigned error,Pemberton
contests the award ofloss of earning
capacity and exemplary damages for want
of bases. Such objection was found without
merit. Under Article 2206(1) othe Civil Code,
the heirs of the victim are entitled to
indemnity for loss of earning
capacity.Compensation of this nature is
awardednot for loss of earnings, but for loss
of capacity to earn.