Page 1 of a1 REPUBLIC OF THE PHILIPPINES SUPREME COURT Manila GENESIS PAGADUAN y CALMA, Petitioner, G.R. No. 267705 CA-G.R. CR No. 46357 (Frustrated Homicide) ~ versus - FOR: Petition for Review on Certiorari under Rule 45 of the Rules of Court PEOPLE OF THE PHILIPPINES and CLINT SUBADAY y DAMOGO Respondents, PETITION FOR REVIEW ON CERTIORARI COMES NOW, Petitioner, by counsel, to this Honorable Court, most respectfully elevates for review on certiorari under Rule 45 of the Rules of Court, the Decision of the Court of Appeals dated January 31, 2023. STATEMENT OF MATERIAL DATES. Under Rule 45 of the Revised Rules of Court, and pursuant to the ruling in Neypes vs. Court of Appeals, herein Petitioners is filing the instant Petition for Review on Certiorari within the teglementary period provided for under the Rules of Court. On February 21, 2023, Petitioner, through counsel, received a Copy of the Court of Appeals’ Decision promulgated on January 31, 2023. Petitioner filed his Motion for Reconsideration on March 07, 2023, which was denied by the Court of Appeals promulgated on May 25, 2023, a copy of which Petitioner received on June 23, 2023. Petitioner, through new counsel, filed his Motion for Extension of Time to file Petition for Review on Certiorari on July 7, 2023. Page 1 of 41Page 2 of 41 Petitioner, therefore, is filing the instant Petition within the reglementary period provided for under the Rules of Court THE PARTIES Petitioner Genesis Pagaduan y Calma, a resident of Banengbeng, lrisan, Baguio City is represented by his new counsel, Atty. Jimmy B. Balinggao, where he may be served with notices and other processes of this Honorable Court Respondent People of the Philippines is being represented by the Office of the Solicitor General and may be served with notices, orders, decisions, and other papers through the latter's office address at 134 Amorsolo St., Legaspi Village, 1229 Makati City The Court of Appeals, which rendered the assailed Decision, is not made a party respondent, in this case, pursuant to Section 4, Rule 45 of the 1997 Rules of Civil Procedure. Nonetheless, it is being served with a copy of the petition at the City of Manila. STATEMENT OF THE MATTERS INVOLVED CRIME CHARGED The victim, Clint Damogo Subaday, was a 5" year Accountancy student at Saint Louis University in Baguio City, and a resident of Dengsi, Tawang, Camp Bado Dangwa, La Trinidad, Benguet. Accused-petitioner was a radio technician from Banengbeng, Irisan, Baguio City. In the evening of November 7, 2018, the victim and his friends Jamil Martin and Radjih Andres were having a drinking session at Kahit Saan Bar located along Upper General Luna Road, Baguio City when, around midnight, they decided to transfer to Ampersand Bar located at Leonard Wood Road, Baguio City. Around 4:00 A.M. of November 8, 2018, the victim went outside to buy cigarettes and saw a group of 4 to 5 male persons bragging and talking noisily at the parking lot of Ampersand Bar. The victim allegedly asked them to tone their voices, which irritated the group and resulted in a shouting match between him and the group. After a heated exchange of words, the victim proceeded to the store, while the group of men went to another direction. However, accused-petitioner and one of his companions allegedly returned and walked past the victim. Suddenly, the victim felt he was hit at the back of his head, and when he turned around, he allegedly saw accused-petitioner holding a knife. Page 2 of 41Page 3 0f 41 Allegedly, accused-petitioner ran and the victim gave a chase, but accused-petitioner allegedly stabbed him twice on the chest and once ‘on the stomach. Accused-petitioner allegedly ran away, while the victim lost consciousness. Because the victim was taking a long time to come back to Ampersand Bar, his friends Jamil Martin and Radjih Andres allegedly went outside to look for him. They heard a commotion around 20 meters from Ampersand Bar and hurriedly proceeded to that place. Upon arriving, they saw the victim slumped and unconscious on the sidewalk. They immediately brought him to the Baguio General Hospital and Medical Center. Police authorities arrived and took their statements. The place of incident had a CCTV camera, Upon talking to Raymond Buminaang, a bouncer at Ampersand Bar, Radjih Andres allegedly identified the assailant as accused-petitioner In the evening of November 8, 2018, the victim allegedly regained consciousness at the recovery room of the Baguio General Hospital and Medical Center where his injuries were treated. The victim allegedly stayed in the hospital for seven (7) days and was only able to resume his activities in March 2019. Accused-petitioner denied stabbing the victim, and claimed that between 3:00 A.M. of November 8, 2018, he was set at Ampersand Bar drinking with his friends when they learned that there was a rumble outside the bar. Accused-petitioner did not know what happened at the time of the incident, as he did not take part in the commotion and stayed inside the bar until closing time. According to the accused- petitioner, he was surprised to know that he has been charged with frustrated homicide as he did not have any quarrel with the victim, and did not personally know him prior to November 8, 2018. ‘An information was filed with the trial court against accused- petitioner charging him with the crime of “Frustrated Homicide," committed against the victim as follows: “That on or about the 8th day of November 2018, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, being then armed with a knife, did then and there wilfully, unlawfully and feloniously attempt to kill complainant CLINT DAMOGO SUBADAY, by stabbing the latter on the head, stomach, and chest causing injuries described as "perforated right atrium through and through, laceration middle lobe, transected splenic hilum, perforated splenic flexure coccum, perforated diaphragm secondary to multiple stab wounds 2nd - 3rd parastemal area, right Sth ICS interior axillary line, left penetrating perforation’, thus commencing the commission of the crime of Plomicide, accused performed all the acts of execution which would produce the felony as a consequence but which nevertheless did not produce it by reason of causes independent of his wil that is, the Page 3 of 41Page 4 of 41 timely medical assistance extended to complainant, to his damage and prejudice and in violation ofthe provisions ofthe Revised Penal ode. CONTRARY TO LAW.” Upon arraignment, Petitioner pleaded NOT GUILTY to the crime charged. EVIDENCE FOR THE PROSECUTION The Prosecution presented Clint Damogo Subaday, the victim, who identified the accused-petitioner as the person who stabbed him based on the Sworn Statement of Reymond Buminaang; Mr. Radjih Andres, friend of Clint Subaday, who testified as to the matters that transpired before, during and after Clint Subaday was stabbed; Dr. Irish Gahid who signed the medical certificate and; Police Officer Bernardo Corofia who investigated the stabbing of Clint Damogo Subaday. EVIDENCE FOR THE DEFENSE To refute the allegations of the prosecution, the defense presented accused-petitioner Genesis C. Pagaduan RULING OF THE REGIONAL TRIAL COURT On August 05, 2021, the Regional Trial Court, Branch 6, Baguio City, rendered a Decision convicting herein Petitioner. The dispositive portion of which reads as follows: “WHEREFORE, premises considered, the court finds accused GENESIS CALMA PAGADUAN GUILTY" beyond reasonable doubt of the crime of Frustrated Homicide and sentences him to suffer the indeterminate penalty of four (4) years and two (2) months of prison correccional as minimum to eight (8) years and one (1) day of prison mayor as maximum. By way of civil liability, PAGADUAN is ordered to pay complainant CLINT SUBADAY a civil indemnity amounting to Thirty Thousand Pesos (P30,000.00) and moral damages amounting to Thirty Thousand Pesos (P30,000.00) in line with prevailing jurisprudence SO ORDERED August 5, 2021, Baguio City (sgd)MICHAEL V. FRANCISCO Presiding Judge” Page 4 of 41page 5 of 42 RULING OF THE COURT OF APPEALS On January 31, 2023, the Court of Appeals, Special Second Division, rendered a Decision affirming the decision of the Regional Trial Court, Branch 6, Baguio City. The dispositive portion of which reads as follows: “WHEREFORE, the trial court's Judgment dated August 05, 2021, is affirmed, subject to the modification that all monetary awards shall earn interest at the legal rate of six percent (6%) per annum from the finality of this Decision until full satisfaction. In all other respects, the Judgment dated August 05, 2021, is affirmed SO ORDERED. (sgd)FERNANDA LAMPAS PERALTA Associate Justice” A copy of the aforesaid Decision was received by the Petitioner through counsel on February 21, 2023. On June 23, 2023, accused-petitioner received the resolution of the Honorable Court of Appeals denying its Motion for Reconsideration on the Decision dated January 31, 2023 of the Honorable Court of Appeals (CA-G.R. CR No. 46357). The dispositive portion of which reads as follows: “WHEREFORE, —accused-appellant's “Motion —_for Reconsideration with Motion to Inhibit” is denied for lack of merit. (sad)FERNANDA LAMPAS PERALTA Associate Justice” Hence, the filing of the instant Petition. GROUNDS FOR THE ALLOWANCE OF THE PETITION The Court of Appeals gravely erred in affirming the Petitioner's Conviction. The assailed Decision is not in accordance with facts, law, and applicable jurisprudence, which, if not corrected, would work grave injustice to herein Petitioner and cause him irreparable damage. Although the present Petition involves questions of fact, it is submitted that this Honorable Supreme Court has the authority to review and Page 5 of 41Page 6 of 42 reverse the factual findings of the lower court if it finds that they do not conform to the evidence. * As a tule, the trial court's findings of fact are entitled to great weight and will not be disturbed on appeal. However, this rule does not apply where facts of weight and substance have been overlooked, misapprehended or misapplied in a case under appeal. After a judicious examination of the records, the petitioner, through counsel, found material facts and circumstances that the lower courts had overlooked or misappreciated which, if properly considered, would justify a conclusion different from that arrived by the lower courts. ISSUE PRESENTED FOR RESOLUTION I. WHETHER OR NOT THE UNCOUNSELLED ADMISSIONS OF THE ACCUSED-PETITIONER UNDER CUSTODIAL INVESTIGATION VIOLATED HIS CONSTITUTIONAL RIGHTS I. WHETHER OR NOT THE GUILT OF THE ACCUSED WAS PROVEN BEYOND REASONABLE DOUBT BY THE PROSECUTION TO OVERCOME THE PRESUMPTION OF INNOCENCE GUARANTEED BY THE 1987 CONSTITUTION IL WHETHER OR NOT THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED-PETITIONER AND THE COURT OF APPEALS ERRED IN AFFIRMING THE PETITIONER'S CONVICTION ARGUMENTS AND DISCUSSIONS The Honorable Court of Appeals erred in ruling the identification of the accused-petitioner As a major premise of the accused-petitioner, this Honorable Supreme Court, ina litany of cases, established the canonical doctrine that proof of the identification of the author of the crime beyond Philippine National Bank v, Court of Appeals, et al., 187 SCRA 735 2People v. Juan Credo y De Vergara, et al., G.R. No. 230778, July 22, 2018 Page 6 of 41.Page 7 of 41 ra reasonable doubt is one of the tasks of the prosecution fo! successful prosecution of a criminal action Every criminal conviction requires the prosecution to prove two things: (1) the fact of the crime, ie., the presence of all the elements of the crime for which the accused stands charged, and (2) the fact that the accused is the perpetrator of the crime. It is the duty of the prosecution to prove the identity of the perpetrator of the crime beyond reasonable doubt In the case at bar, paramount significant facts and circumstances need cautious consideration as premises to arrive at a logical conclusion, through inductive reasoning, that the prosecution is unable to convincingly prove the offender's identity and that no evidence suffices to establish beyond reasonable doubt the identity of the person or persons responsible therefor namely 1. The constitutional rights of the accused-petitioner under custodial investigation were undoubtedly violated when he was at the police station and interviewed without being informed of his constitutional rights and without the assistance of a competent and independent counsel of his choice. Therefore, his confession in violation of said rights is inadmissible in evidence. Section 12. ART. Ill of the 1987 Constitution provides that: 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. N No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited 3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.* *People vs. Vidal Jr, et al., G.R. No. 229678, June 20, 2018 “Section 12. ART. Ill of the 1987 Constitution Page 7 of 41Page 8 of 41 igation for the Hence, whenever any person is under investi titled to the commission of an offense, such person is en following rights namely: 4. he shall have the right to remain silent and to counsel, and to be informed of such right; 2. nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him and; 3. any confession obtained in violation of these rights shall be inadmissible in evidence. In this case, petitioner Genesis C. Pagaduan was invited to the police station and was interviewed without being informed of said constitutional rights to remain silent and to counsel. He was taken in custody and interviewed for the commission of an offense absent a counsel of his own choice and without being informed of his right to remain silent. PROS AWISAN: Q: Inthe evening of November 14, you mentioned that Raymond Buminaang together with Genesis Calma went to your office. WITNESS: A: November 15, sir Q: November 15. Okay. And what happened there? A: Sir Raymond Buminaang identified the suspect, sir, and he voluntarily introduced himself as Genesis Pagaduan. Q: Whatelse did you do after that insofar as this case is concerned? A | already turned over to the investigator on case, sir. ‘What did you tum over to the investigator on case? ‘A: The alleged suspect then interview. Accordingly, his confession of his identity obtained in violation of his rights to remain silent and to counsel under 5p. 13, Transcript of Stenographic notes of the Proceedings held on December 1, 2020 Page 8 of 41Page 9 of 44 custodial investigation for the commission of an offense is inadmissible. As suggested in People vs. Galit, 135 SCRA 465, the rights to silence and to counsel of any person under custodial investigation for the commission of an offense "cannot be waived except in writing and in the presence of counsel.” _ Here, there was no waiver of Genesis’ rights to remain silent and to counsel enshrined in the 1987 Constitution 2. The identification of the perpetrator by the victim during the incident is not unfailing since the victim had a glance at the culprit for a span of only one (1) or two (2) seconds; it happened at night time and; the victim was dizzy. The victim, Clint Subaday, categorically admitted that he glanced at the culprit for a very short span of one (1) or two (2) seconds, that the incident happened in a dark place and that he was dizzy. ATTY. BUGTONG: Q: When Genesis Pagaduan hit you from behind, you said that you tried to look at him. Am | right? WITNESS: A: Yes, sir. Q: But that was only for a 1 second. Am | right? Based on the video it was only, it took you only 1 or 2 seconds to look at the accused. Am | right? A: Yes, sit. Q: And you admitted that during that time you were still dizzy. A: Yes, sir Q: And it was dim or it was at least dark. There is no sufficient light. ‘A: There was a light in front of the store, sir. @: Yes but the fact is that, is still dark in this portion, am | right? as it was shown by the cctv? Yes in this portion. A: Yes, sir.” * People. vs. Galit, 135 SCRA 465 1p. 27, Transcript of Stenographic notes of the Proceedings held on February 4, 2020 Page 9 of 41Page 10 of 4t In People vs. Nufiez, the Court elucidated: “The frailty of human memory is a scientific fact. The danger of inordinate reliance on human memory in criminal proceedings, where conviction results in the possible deprivation of libert id i i deprivation ty, property, and even life, is equally Human memory does not record events like a video recorder. In the first place, human memory is more selective than a video camera. The sensory environment contains a vast amount of information, but the memory process perceives and accurately records only a very small percentage of that information. Second, because the act of remembering is reconstructive, akin to putting puzzle pieces together, human memory can change in dramatic and unexpected ways because of the passage of time or subsequent events, such as exposure to "post-event" information like conversations with other witnesses or media reports. Third, memory can also be altered through the reconstruction process. Questioning a witness about what he or she perceived and requiring the witness to reconstruct the experience can cause the witness’ memory to change by unconsciously blending the actual fragments of memory of the event with information provided during the memory retrieval process.”® In the case at bar, the incident happened during night time, allegedly 4:00 o'clock in the morning, and the victim was dizzy because he was drunk or under the influence of alcohol. The victim, Clint Subaday, admitted that he had a glance at the culprit for a span of only 1 (one) or 2 (two) seconds. He also categorically confirmed that the incident happened in a dark place. This testimony cannot be considered as satisfactory proof that he was able to accurately identify the accused. There is danger of the inordinate reliance by the victim on his memory. In the first place, victim's human memory was more selective because of the poor lighting condition and the victim was dizzy. Secondly, there is a strong probability that the victim's memory changed in a dramatic and unexpected ways. because of the considerably long passage of time from the moment the incident occurred to the time that his friends, who did not witness the incident, suggested a name of the offender. Thirdly, there is a strong possibility that the memory of the victim had been altered because of his exposure to "post-event" information like conversations with his friends *People vs. Nufiez, G.R. No. 209342, October 4, 2017 Page 10 of 41Page 11 of 41 and the bouncer who suggested the name of the alleged offender. Therefore, it cannot be denied that the memory of the victim might have changed by unconsciously blending the actual fragments of his memory of the event with the suggestion and information provided by his friends and the bouncer during his memory retrieval process. This Honorable Supreme Court clarified in People vs. Nufiez, eyewitness identification, or what our jurisprudence commendably refers to as "positive identification," is the bedrock of many pronouncements of guilt. However, eyewitness identification is but a product of flawed human memory. Another observer has more starkly characterized eyewitness identifications as "the leading cause of wrongful convictions."? While there was an in-court-identification of the alleged offender made by the victim in this case, the victim admitted that he was dizzy since he was under the influence of liquor and that the incident happened in a dark place with poor lightning condition. These admissions engender a well- founded belief that the victim's identification is but a product of his flawed human memory. The very short span of time of one (1) or 2 (two) seconds that the victim gazed at the face of the offender is very remote to sufficiently establish the moral certainty and accuracy of the reminiscence of the victim on the identity of the culprit. Therefore, the identification of the perpetrator by the victim during the incident is totally unreliable. As emphasized by this Honorable Supreme Court, in People vs. Nufiez, the bifurcated difficulty of misplaced reliance on eyewitness identification is borne not only by the intrinsic limitations of human memory as the basic apparatus on which the entire exercise of identification operates. It is as much the result of and is exacerbated by extrinsic factors such as environmental factors, flawed procedures, or the mere passage of time.'° Applying the canonical principle in People vs. Nufiez, it follows that the reliance by the lower courts on the eyewitness identification is apparently misplaced since it is the result of and is worsened by extrinsic factors such as the fact that he was dizzy, the victim gazed at the culprit for a span of only 1 (one) or 2 (two) seconds and that it happened in a dark place with a poor lightning condition. » People vs. Nufiez, G.R. No. 209342, October 4, 2017 "Ibid. Page 11 of 41It is submitted that, by nature, the senses are deceptive. Perception is neither wrong nor correct. Perception is purely subjective. It is the result of and is depreciated by extrinsic factors. The appearance of reality is not uniform to all human beings for the very reason that the imprints of the outside world depend solely on the senses of every human person. Such proposition suggests that the senses cannot be trusted especially when such senses are diminished due to causes deliberately done and impaired by extrinsic factors such as environmental factors, flawed procedures, or the mere Passage of time. The senses cannot be trustworthy when they are impaired due to deliberate act and external causes reducing or diminishing its regular and expected functions. While this does not connote that a witness cannot be fully Capacitated to accurately recall and arrive at an irrefutable fact Or occurrence in exercising the regular and expected functions of his senses, corroboration is a necessity to Overcome any doubts and to justify the accuracy of Perception. In sum, in order for the regular and expected functions of the senses in perceiving and in recollecting what has been perceived to be reliable, it must be corroborated and Proven aided with the correct use of reasoning. Here, the identification of the accused by the victim was not corroborated. The bouncer, who suggested only a name to the friends of the victim which the latter adopted, was never presented in court to testify. This leaves a doubt on the perception and reminiscence of the victim. Hence, his alleged perception of the perpetrator and recollection of the incident was not justified and did not overcome the doubts anchored on the poor lighting condition of the place and especially his being dizzy and for being under the influence of liquor. Such doubt was intensified when the bouncer, who suggested the name of the accused-petitioner to the friends of the victim, was not presented in court to testify. To overturned the doubt of the suggestion by the bouncer as to the name of the accused-petitioner, the prosecution should have presented the bouncer in court to justify his suggestion and to explain how he personally knows the accused-petitioner. The in- court-identification of the accused-petitioner made by the victim was never corroborated. It is noteworthy that the bouncer suggested only one name and did not give the names of all the persons involved in the incident as viewed in the recorded video. The probability that one of the persons in the recorded video could be accountable to the crime and not the accused-petitioner was not overturned by the prosecution. The only name suggested by the bouncer to the friends of the Page 12 of 41,Victim which was thoughtlessly adopted by the latter cannot be considered as a corroboration on the identity of the accused-petitioner since it is apparently hearsay Where the senses are impaired and their expected functions are reduced or diminished, as in this case, the Perceiving subject is consequently deprived of accurate retention and reasoning. This is for the reason that the perceiving subject is now reduced to the status of an animal relying only on its natural instincts in recollecting facts or events and consequently unable to accurately communicate what it perceived to others and becomes incompetent to differentiate reality from fantasy or imaginary. While the victim admitted the alleged presence of streetlight across the street and the lights from the incoming vehicles and even if the victim looked at the face of the offender and that the distance is allegedly close during the occurrence of the second stabbing, such circumstances did not necessarily eliminate the impaired visual clarity of the offender and the place. This is for the very reason that the lights from the incoming vehicles, considering the change of the lighting condition due to the speed, different condition, clarity and gravity of the lights of each vehicle, did not make the lighting condition stable or consistent for the victim to accurately perceive the things and persons in his surroundings and to sufficiently recollect what he perceived. Rather, the lights from the incoming vehicles intensified the impaired visual clarity of the place. Hence, the presence of streetlight across the street and the lights from the incoming vehicles did not negate the unreliability of the recollection and identification of the culprit by the victim. The lights from the incoming vehicles and the street light reinforced the tenuousness of the accuracy of the victim's vision since said lights are not consistent or stable. The victim never used any light instruments to enhance the visual clarity of the place and the offender. Moreover, it is without moral certainty for the victim to accurately call to mind what happened on that early morning if he was drunk and woozy. Recollection of a person under the influence of liquor is always doubtful unless corroborated. Here, there were no witnesses presented by the prosecution to corroborate the identification of the accused- petitioner by the victim. The extrinsic factors such as the poor lighting condition, the victim was under the influence of alcohol, dizzy and the short span of time that the victim gazed at the face of the offender cast a doubt of his accurate reminiscence of said incident. The illumination provided by the street light across the street and the light coming from Page 13 of 41Page 14 of 41 incoming vehicles did not eliminate any possibility of mistaken identification. It must be noteworthy that only one name, which was adopted by the victim, was suggested by the bouncer. Equally noteworthy is the fact that when the accused- petitioner introduced himself at the police station, the constitutional rights of the accused-petitioner under custodial investigation were violated. Accused-petitioner was taken under the custody of the police officers for investigation without the assistance of a counsel and without being informed of his right to remain silent and to have a counsel of his choice. It can be inferred that this could be one of the reasons why the victim resorted to adopt the suggested name by his friends who heard it from the bouncer. Accordingly, through inductive reasoning, it is obvious that the identification and recollection made by the victim are without moral certainty. While “it is a well-settled rule that factual findings of the trial court involving the credibility of witnesses are accorded utmost respect since trial courts have first-hand account on the witnesses’ manner of testifying in court and their demeanor during trial,”"’ it admits an exception. The rule, however, does not apply in the instant case. In People vs. Lumikid, this Honorable Supreme Court enunciated that the above-mentioned rule does not apply when ‘the trial court and the appellate court have overlooked some material facts and circumstances of weight which could materially affect the result of this case." This Honorable Supreme Court also noted that visibility is indeed a vital factor in determining whether an eyewitness could have identified the perpetrator of a crime. It is settled that when conditions of visibility are favorable, and when the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted." However, in the case at bar, the conditions of visibility are not favorable to the victim because he was dizzy, the victim gazed at the culprit for a span of only 1 (one) or 2 (two) seconds and the lightning condition at the time the incident happened do not suffice to establish the accurate identification and correct recollection made by him. The victim appears to be biased. Accordingly, his assertion as to the identity of the malefactor should not be accepted to yield moral certainty * People v, Ramos, et al., 715 Phil. 193, 208 (2013) » People vs. Lumikid G.R. No. 242695, June 23, 2020 + People vs. AAA G.R. No. 247007, March 18, 2021 Page 14 of 41page 15 of 41 because the conditions of visibility are not favorable to the victim and the identification of the accused appears to be biased. It is noteworthy that the identification of the offender in the instant case was not corroborated. The identification of the perpetrator depends solely on the name suggested by his friend who heard it from the bouncer who was never presented by the prosecution to testify and the conviction of the accused totally depends on such identification. This Honorable Supreme Court, in People vs. Nufiez, has always been mindful that "the greatest care should be taken in considering the identification of the accused, especially when this identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification.” This stems from the recognition that testimonial evidence is subject to human errors which may be intentional or unintentional." Here, the identification of the accused is made by a sole witness, the victim, and the judgment in this case totally depends on the reliability of such identification. More superior weight to be considered is the fact that the identification of the accused by the victim proceeded from the suggestion of his friend who heard it from the bouncer, Raymond Buminaang, who was never presented in court to testify. Therefore, his testimonial evidence was subject to human errors. His in-court-identification of the accused-petitioner, which he adopted by mere suggestion and without being corroborated and his perception and recollection without being justified are unreliable to withstand the accused- petitioner's conviction. =o The recorded video presented in court depicting the first incident of stabbing is devoid of probative value to prove the identification of the accused-petitioner for the following reasons: 3.1 The original copy of the CCTV footage was never presented in court; People vs. Nufiez, G.R. No. 209342, October 4, 2017 Page 15 of 41Page 16 of 41 3.2. The recorded video through the use of cellular phone secured by the police officer was not admitted by the Court a quo; 3.3. The source of the recorded video through the use of cellular phone secured by the police officer was not authenticated and certified by the custodian or the person in charge of the CCTV footage by not being presented as a witness to testify; 3.4 The persons involved in the incident were not easily identified when the CCTV footage was viewed in court; 3.5 Radjih Andres, friend of the victim, testified that he did not witness the recording of the video by the police officer through the use of cellular phone; @: Do you know if there was a recording made of that cctv footage? A: No, sir."8 3.6 The arguments of the victim with the group of persons before the incident took place were not captured by CCTV from which the police officer recorded a video through the use of cellular phone; COURT: The argument took place, was the argument captured in the video? No, Your Honor. Where did the argument take place? At the same place, Your Honor. In the same place but it was not captured by the video? No, Your Honor. "6 > 2 Fo em 3.7 Prosecution failed to explain how the purported recorded video through the use of cellular phone was. transferred from one person to another until it was presented in court. The persons and the police officers, except police officer Bernardo Corofia, who. had in possession of the recorded video were not 4p. 9, Transcript of Stenographic notes of the Proceedings held on March 10, 2020 pp. 29-30 Transcript of Stenographic notes of the Proceedings held on February 4, 2020 Page 16 of 41page 17 of 1 eveued in court to testify. Hence, the integrity of h recorded video of the incident presented in court ommend since it was passed from one police ene fo another without presenting all the police aan "s as witnesses to testify in court. Accordingly, tamneecorded video was open to and expose of 'pering, alteration or substitution either by accident or otherwise. To remove any doubt or uncertainty on the identity and integrity of the Tecorded video, the prosecution should have Presented evidence to show that such recorded video presented in court is the same video actually documented, recorded and recovered from the CCTV by presenting the person-in-charge of the CCTV and the police officers who were in possession of the recorded video of such incident. In sum, the Prosecution failed to prove that the integrity and evidentiary value of the recorded video were preserved; 3.8 The person, Pawisen, who gave the copy of the recorded video to the victim was not presented in Court to testify that the recorded video of the incident Secured by the victim was the same with that of the video presented by the police officer Bernardo Corofia in court; 4, The testimony of the victim and his in-court-identification of the offender which was solely suggested from his friends who heard it from Raymond Buminaang who was not presented in court to testify posit dans of unreliability since they are limited by normal fal fies, suggestive influences and considered hearsay. In People vs. Ansano, this Honorable Supreme Court acknowledged that: Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring, ‘Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, Page 17 of 41Page 18 of 41 they are | influences by normal human fallibilities and suggestive In th identification ant case, dangers of unreliability in victim's stages. The vi Seumony are present at each of the three figure ance qictim was dizzy for belng under the influence of condition. Th lat the incident happened in a poor lighting normal hum, bared facts and circumstances are considered as normal human flies in both the stages of witnessing and Rremorizing the detals of the incident. Hence, the third stage agi ty to Fecal and communicate what he perceived is rescited ie a For these reasons, the private complainant suggestive Aa is testimonial identification of the offender, the who heard influences by his friends, Tadjih Andres and Jamil, was nea it from the bouncer, Raymond Buminaang, who Sreeeil presented in court by the prosecution to testify. The feed ion should have proven beyond reasonable doubt as Brea f by jurisprudence the identity of the accused by testy. ing the bouncer, Raymond Buminaang, in court to Therefore, the identification of the culprit by the victim, which proceeded from the suggestive influences of his friends who only heard the name of the offender from the bouncer, gave birth to the dangers of his unreliability. It is noteworthy that the prosecution failed to establish that the five (5) persons involved in the incident are readily identifiable. The only thing that the recorded video can definitely establish is the presence or absence of persons involved in the incident. It cannot be established from this alone that the accused is one of the persons involved in the incident or that he is culpable. Likewise, the prosecution failed to establish that the source of the recorded video was totally legitimate, authentic and unquestionably reliable for not being able to present the person in custody of the CCTV footage who operated and managed the CCTV. Any person can present a recorded video using devices to prove the presence or absence of persons involved in the incident. But, the certainty as to whether or not the accused is one of the persons involved and whether or not he is culpable is absolutely remote. tification of the accused made by learly and convincingly unreliable. By ated a possibility that the Accordingly, the ide private complainant is cle and itself, the identification only indic: ee 27 People v. Ansano, G.R. No. 1232455, December 02, 2020 Page 18 of 41Page 19 of 41 former was one of the persons responsible of the offense. However, the m ility cannot be deduced ne, 70" certainty of his culpability o - The suggestion of the bouncer, Raymond Buminaang, to the friends of the victim of ‘the identification of the accused is unreliable. This Honorabl probl not ju mem le Supreme Court emphasized that the em with eyewitness testimony is that the human mind is lust limited in terms of perception, but that human ‘ory is also highly susceptible to suggestion. 1° __ Itmust be Noteworthy that the prosecution failed to present 'n Court the testimony of Raymond Buminaang who suggested fe identification of the accused to the victim and to his friends. The unreliability of the suggestion of Raymond Buminaang is Premised on the following: a) Raymond Buminaang did not identify the other Companions of the alleged offender. Only one name was given by him. b) There is no certainty on whether or not Raymond Buminaang was present during the incident. The victim, Mr. Clint Subaday, testified as follows: PROS. AWISAN: Qa: How were you able to know the name of the person who stabbed you? WITNESS: A: Mywitness, Sir Raymond, sir. Q: Raymond Buminaang? A: Yes, sir, he was the one who told me the name, sir. PROS. AWISAN: Q: Raymond Buminaang according to you he was not present at that time you were attacked? He did not see the incident? A: don't know, sir, if he was there.'® 4 People v. Ansano, G.R. No. 232455, December 02, 2020 p 2, ‘Transcript of Stenographic notes of the Proceedings held on February 4, 2020 Page 19 of a1page 20 of 41 There wa: and expl; Justify hi was no moment for Raymond Buminaang to prove {ain how he personally knows the accused for him to 'S Suggestion that the accused-petitioner is the culprit 6. The prosecution Probability that an crime. has not completely ruled out the lother person may have committed the ' The victim, Mr. Clint Subaday, admitted the presence of other persons when he was attacked from behind. But he stabbed you from behind. Yes, sir, So you did not see his face. | saw him, sir, when | faced him. R 6 45 Okay assuming, granting without meeting that you faced him there are other persons behind him, am | right? Because you said in your statement that he has many companions. Am I right? A Yes, sir20 ; In view of the foregoing portion of the testimony of the victim, there is a probability that other person/s near him may have been accountable of the stabbing. This probability was not ruled out by the prosecution. 7. Dr. Irish Gahid testified on the possibility that the pointed object used to inflict injuries on the victim are different Such plausibly demonstrate the possibility of different perpetrators. During her cross examination, Dr. Irish Gahid admitted the possibility that the injuries sustained by the victim were caused by two or more weapons. ATTY. BUGTONG: Q: But could you also tell, Madam Witness, if the injuries that were sustained by the victim were caused by two or more different sharp or blunt object? A: I could say that it was due to a sharp object but | could not say if it was inflicted by two different weapons, sir. Q But there is a possibilty that it is caused by pointed object but two or more pointed objects? ™p. 18, Transcript of Stenographic notes of the Proceedings held on February 4, 2020page 21 0f 42 A: Yes, sir, there could be a possibility" Dr. Irish Gahid admitted the possibility that the injuries sustained by the wictine ware caused by two of more weapons. Her testimonies provide an adequate inference that the perpetrators accountable to the inflicted injuries are Not one and the same. Her statements casted a doubt in the accurate identity of the culprit. In view of the foregoing testimony of Dr. Irish Gahid, it is logical to hold that the wounds were possibly inflicted by two or more different Perpetrators. The foregoing testimony necessarily suggests a doubt that the offenders who inflicted the wounds are not one and the Same person but numerous and different. 8. The out-of-court identification of the suspect by the victim is not in accordance with the totality of circumstances test established by this Honorable Supreme Court. In People vs. Teehankee, Jr., this Court explained the procedure for out-of-court identification and the test to determine the admissibility of such identifications in this manner: In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.?2 In this case, the standards established in the totality of circumstances test are not met. There are patent irregularities namely: 4. The witness’ opportunity to view the criminal at the time of the crime is not trustworthy since it happened at night and the scene of the crime was not well-lighted; 2p. 14, Transcript of Stenographic notes of the Proceedings Held on August 12, 2020 2 People vs. Teehankee, Jt. G.R. Nos. 111206-08 October 6, 1995 Page 21 of 41Page 22 of 44 an 2. The witness’ degree of attention at that time cast r immense doubt since he was under the influence of liaU0 and dizzy; 3. There was no prior description of the felon given to the Victim. Likewise, no description of the felon was testified by the victim; 4. There is none as to the level of certainty demonstrated by the witness at the identification since the identification was solely from a suggestion of his friend who heard it from Reymond Basanio Buminaang who was not presented in court to testify; 5. It was only after nineteen (19) days from the commission Of the alleged crime that the victim identified the offender, Q: So when all these happened in the early Morning of November 8, 2018, you did not know yet the names of these people? A: Yes, Your Honor. Q: So when did you first find out their names? A: The same month, Your Honor, November 27. The alleged crime happened on November 8, 2018. The victim found out their names on November 27, 2018. The length of time between the crime and the identification is reasonably and considerably lengthy. 6. The suggestiveness of the identification is absolutely unreliable or defective since it was anchored on the lone name suggested by the bouncer and the petitioner's admission of his identity when he was taken under the custody of the police officers for investigation. Such admission or confession is in violation of the constitutional rights of the accused under custodial investigation. Equally of legal significance is the fact that the bouncer, Reymond Buminaang, was never presented in court to testify. The foregoing irregularities failed to conform to the totality of circumstances test for the admissibility of the out-of-court identification of the suspect. Therefore, the identification by the victim must not be relied upon and is inadmissible. Page 22 of 41page 23 of 42 * as, testimony of Mr. Clint Subaday, the victim, and Dr. tan Cahid's testimony are contradictory with respect to e time that the victim was admitted in the hospital. The testimony of the vi : ctim, Mr, Clint Subaday, that he wa! stabbed at 4:00 a.m. on November 8, 2018 and the testimony r. Irish Gahid that the victim was brought to and admitted in the hospital at 2:00 a.m. on the 8th day of November 2018 are indisputably contradictory. The testimony of Mr. Clint Subaday, the victim, a portion of which reads, viz: COURT: Po PO EO What date were you stabbed? November 8, 2018, Your Honor. November 8, 2018. What time? Around 4 a.m., Your Honor. November 8, 2018. Yes, Your Honor.?* The testimony of Dr. Irish Gahid, a portion of which reads, viz: Q: On November 8, 2018, do you recall if you were on duty on that day? ‘A: | could not recall if| was on duty on that day, sir. Q: And would you recall if during the month of November, you attended to a patient named Clint Subaday? A: Yes, sit. @: And that date was on November 8, 20187 A: Yes, sir. PROS. AWISAN: @: — Canyou recall around what time was this person brought at the Baguio General Hospital and Medical Center? WITNESS: ‘A: I think itwas around 2 am, sir. Q: 2am, so early in the morning? A: Yes, sir? ®p. 10, Transcript of Stenographi jc notes of the Proceedings held on February 4, 2020 pp 4.5. Transaript of Stenographic notes of the Proceedings held on August 12, 2020 Page 23 of 41page 24 0f 42 thenthe foregoing testimonies, Dr. Irish Ganid testified that the victim was brought to and admitted in the hospital at 2 aie the victim, Mr. Clint Subaday, testified that the jappened at 4:00 a.m. on the same date. e t Gan be deduced from the said contradictory testimonies at the patient brought and admitted in the hospital is absolutely ferent from the vetim. in the instant case. Accordingly, the perpetrator in this case is not the same with ania the perpetrator of the patient described by Dr. Irish In the words of this Honorable Supreme Court in People vs. Dolandolan: While the Court recognizes that a “truth-telling witness is not always expected to give an error free testimony, considering the lapse of time and treachery of human memory" the prosecution bears the burden of reconciling and explaining any lapses, errors, or inconsistencies in said testimony, in accordance with the principle that the "evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense." In People vs. Tumambing, this Honorable Supreme Court reminded that the inconsistency in the statements of the prosecution's witness on material points significantly erodes the credibility of her testimony. With the probative value of the testimony of the prosecution's witness greatly diminished, the alibi of the accused-appellant must be given credence.” In the instant case, the prosecution never bothered to explain or reconcile the evident inconsistencies of Dr. Irish Gahid's testimony and the victim’s testimony. Therefore, evidence for the prosecution fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. For the reason that the testimonies of Mr. Clint Subaday, the victim, and Dr. Irish Gahid are contradictory, logic dictates that the patient attended to and treated by the latter in the hospital is a different person from that of the victim in the case at bar. It necessarily follows that the perpetrator of the patient jolan GR. No. 232157, January 08, 2020 % People vs. Doland« ing, G.R. No. 191261, March 02, 2011 % People vs. Tumamt Page 24 of 41who w that of the 224 BY Dr. Irish Gahid is undeniably different from identity of mecuSa-Petitioner in the instant case. Hence, the offender in this case is absolutely doubtful In view prosecution Aah foregoing premises, it can now be settled that the nd the Honorable Ga son2"9® the onus of the identity of the offender of the accused-petitionor Appeals erred in affirming the identification Asuc : proof of no Fratul Prosecution of a criminal action largely depends on aciaal Corania "gs: the identification of the author of the crime and his sommitted Ta on Of the same, An ample proof that a crime has been prove the offenders” i the prosecution is unable to convincingly i : innocence that a lentity. The constitutional presumption of ; IN accused enjoys i hed by an identification that is full of uncertainties 2” not demolished by The Honorable Court of Appeals erred in ruling that the prosecution did not fail to prove the first and second elements of frustrated homicide | Every criminal conviction requires the prosecution to prove two things: (1) the fact of the crime, i.e., the presence of all the elements of the crime for which the accused stands charged, and (2) the fact that the accused is the perpetrator of the crime. It is the duty of the prosecution to prove the identity of the perpetrator of the crime beyond reasonable doubt.?° The elements of frustrated homicide are: (1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in the assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code, as amended, is present.2? As to the first element of frustrated homicide, the prosecution failed to prove beyond reasonable doubt the use of deadly weapon because of the following premises: 2 People vs. Tumambing, G.R. No. 191261, March 02, 2011 2 People vs. Vidal Jr, et al., G.R. No. 229678, June 20, 2018 2 People vs. Aquino, et al., G.R. No. 203435. April 11, 2018 Page 25 of 411. It is een har arkable that Radjih Andres, a friend of the victim, testified that ti he group of five (5) persons whom the victim had an argument with were not holding a weapon when they met the Qa A > 2 2 ® © FHF DP RO RE PO m after the commotion. Wyhat happened after Mr. Clint went out of Ampersand bar at it ee 4 o'clock in the morning? ae ‘0k time for him to come back at the bar that is why we nt Out to look for him, sir. And where did you proceed after going out of Ampersand bar Burposely to look for Clint Subaday? Sir, we heard a commotion to our left side, sir, going to Pacdal , Sin You heard a commotion? Yes, sir. That commotion, were you able to see that? No, sir, we just heard, sir. Around how far was that commotion? think 20 meters, sir. You proceeded towards that place where the commotion was taking place? Yes, sir.%° You did not personally see the accused hit the victim? Yes, sir. You also said in your Joint Affidavit that you met a group of male persons. Am | right? Yes, sir And they are not holding any instrument or object otherwise you would have mentioned it in your affidavit. Am | right? Yes, sir.3! The testimony of Radjih Andres, friend of the victim, demonstrates a clear and convincing proof that the alleged offender did not use a weapon. 2. There was no deadly weapon to be viewed in the recorded video allegedly captured through the use of a cellular phone by the police officer. COURT: Q: — What just happened there? pp. 56, Transcript of Stenographic nates of the Proceedings held on March 10, 2020 %p. 11, Ibid. Page 26 of 41s A: Iwas hit by the head, Your Honor, and ther) tah tried to hitme again | was able to face him, Your and they run towards the direction of pacdal an after them, Your Honor.*? That CCTV footage referred to in paragraph Sof Naas joint affidavit, what was that CCTV footage contained? Who punched the victim.>? And so what part of the cctv footage did you record or capture using that cellphone? The main incident sir The main incident. And what is shown in that cctv footage? The alleged respondent, sir, hit the victim and after that they ran. >Oo2 > D2 PO From the foregoing, what can be viewed is only the fact that the perpetrator hit or punched the victim without using a deadly weapon It was not established by the prosecution that the pointed object used is a deadly weapon. Dr. Irish Gahid testified that there is possibility that the wound inflicted to the victim could have been caused by a pointed object. Q: But there is a possibility that it is caused by pointed object but two or more pointed objects? A: Yes, sir, there could be a possibility. However, it is a rule of logic that not all pointed objects are deadly weapons. In her testimony, Dr. Irish Gahid never positively affirmed that the weapon used was deadly. Instead, she doubted the number of pointed objects used. Accordingly, it casted a doubt that the weapon used is deadly. More significantly, it did not eliminate the prosecution's burden to prove the first element of the crime of Frustrated Homicide. . During her cross examination, Dr. Irish Gahid admitted that she was doubtful if the wound or injuries allegedly suffered by the victim were caused by blunt or sharp object. ®p. 26, Transcript of Stenographic notes of the Proceedings Held on February 4, 2020 %p. 4, Transcript of Stenographic notes of the Proceedings Held on October 29, 2020 %p_6, Transcript of Stenographic notes of the Proceedings held on December 1, 2020 %p. 14, Transcript of Stenographic notes of the Proceedings held on August 12, 2020 Page 27 of 41