PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MELCHOR BERMUNDO Y LLANITA AND SIPRIANO BERMUNDO Y LLANITA, ACCUSED-APPELLANTS.
LAMPAS PERALTA, J.:
in Criminal Cases Nos. MC-07-10660-H, MC-07-10661-H, MC-07-10662 and
MC-07-10663 of Branch 213, Regional Trial Court, Mandaluyong City
convicting accused-appellants Melchor Bermundo y Llanita and Sipriano
Bermundo y Llanita of two (2) counts of rape and two (2) counts of
attemped rape.
The Antecedents
Private complainant A A A was employed as housemaid of X X X,
lessee of a room at a house owned by accused-appellants and located at Y
Y Y. On February 15, 2006 and February 19, 2006, accused-appellant
Melchor Bermundo raped private complainant while she was washing clothes
in the restroom. Also, on March 6, 2006, accused-appellant Sipriano
Bermundo forcibly dragged and laid her on the bed, but he was not able
to have carnal knowledge of her because the mother of X X X called her.
The factual details were summarized in the People’s brief as follows:
Private complainant A A A, a housemaid, lived with her employer X
X X who rented a room at a house owned by appellants-brothers Melchor
Bermundo and Sipriano Bermundo situated at No. 41 Zone 3 Welfareville
Compound, Mandaluyong City.On February 15, 2006, at about three o’clock in the afternoon A A
A was washing her employer’s clothes at the common restroom at the
ground floor of said house when appellant Melchor suddenly entered the
restroom and closed the door. Appellant Melchor undressed himself then
forcibly took off private complainant’s shorts and underwear, held her
breast and tried to kiss her. Pinning private complainant against the
restroom wall, appellant Melchor forcibly inserted his penis into her
private part. AAA pleaded “wag po!” but to no avail. After having his
fill, appellant Melchor left her. Later that evening, A A A told her
employer X X X of the incident and requested that they move to a
different residence.Four days later or on February 19, 2006, appellant Melchor
molested her anew. While A A A was doing the laundry, appellant Melchor
entered the restroom again. Private complainant asked him to leave but
he did not heed her entreaty. Instead, appellant Melchor undressed her
and forcibly inserted his penis into her organ. After satiating his
lust, he left private complainant just like the first incident.On March 6, 2006, appellant Melchor’s brother appellant Sipriano
this time, dragged private complainant into a room in the same house
and forcibly laid her on a bed.Private complainant subsequently reported the incidents to the
police when her father arrived from the province and on April 19, 2006,
private complainant subjected herself to physical examination which
showed that she suffered a shallow healed laceration at the 3 and 7
o’clock positions, indicating “blood penetrating trauma” to the hymen,
which wound was inflicted more than 72 hours prior to said physical
examination.[2]
Accused-appellants, however, claimed that private complainant
merely fabcricated the charges as a revenge when her siblings were
evicted by accused-appellants from the house they were renting.
Allegedly, on the dates of the incidents, accused-appellants were
somewhere else and hence, it was not possible for them to commit the
complained acts.[3]
Accused-appellants were charged with the crime of rape and
attempted rape, respectively, in the following four (4) informations
which read
The undersigned 3rd Assistant City Prosecutor accuses MELCHOR BERMUNDO y LLANITA of the crime of Rape
(under Article 266-A (1) in relation to Article 266-B of the Revised
Penal Code), committed in the manner herein narrated as follows:That on or about the 19th day of February 2006, in
the City of Mandaluyong, Philippines, a place within the jurisdiction of
this Honorable Court, the above-named accused, with lewd design and by
means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge with A A A, against her
will and consent.CONTRARY TO LAW.[4]
Re: Criminal Case No. MC07-10661-H against accused-appellant Melchor Bermundo For: Rape The undersigned 3rd Assistant City Prosecutor accuses MELCHOR BERMUNDO y LLANITA of the crime of Rape
(under Article 266-A (1) in relation to Article 266-B of the Revised
Penal Code), committed in the manner herein narrated as follows:That on or about the 15th day of February 2006, in
the City of Mandaluyong, Philippines, a place within the jurisdiction
of this Honorable Court, the above-named accused, with lewd design and
by means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge with A A A, against her
will and consent.CONTRARY TO LAW.[5]
The undersigned 3rd Assistant City Prosecutor accuses SIPRIANO BERMUNDO y LLANITA of the crime of Attempted Rape, committed in the manner herein narrated as follows:
That on or about the 4th day of March 2006, in the
City of Mandaluyong, Philippines, a place within the jurisdiction of
this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously by means of force and intimidation
commences the commission of the crime of Rape upon A A A, directly by
overt acts, to wit: while the said complainant was inside a bath room,
said accused entered the said bathroom, kissed her lips, touched her
breasts, forcibly took off her clothes, with the intention of having
carnal knowledge of her, but said accused did not however, perform all
the acts of execution which should have produced the crime of rape as a
consequence, by reason of some cause or incident other than his own
spontaneous desistance, that is, someone knocked at the door of said
bath room.CONTRARY TO LAW.[6]
The undersigned 3rd Assistant City Prosecutor accuses SIPRIANO BERMUNDO y LLANITA of the crime of Attempted Rape, committed in the manner herein narrated as follows:
That on or about the 6th day of March 2006, in the
City of Mandaluyong, Philippines, a place within the jurisdiction of
this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously by means of force and intimidation
commence the commission of the crime of Rape upon A A A, directly by
overt acts, to wit:the said accused pulled her inside the bedroom,
kissed her lips, touched her breast, forced her to lie down, with the
intention of having carnal knowledge of her, but did not perform all the
acts of execution which should have produced it by reason of some
caused or incident other than his own spontaneous desistance, that is,
someone knocked at the door of said bedroom.CONTRARY TO LAW.[7]
Accused-appellants pleaded “not guilty” to the charges.[8] During the pre-trial, the parties stipulated on the following:
- Jurisdiction of the court
- nature of the offense charged
- Existence of the following documents:
- Exhibit A – Referral Letter
- Exhibit B – Sworn statement of Rochelle Bersola y Berdin
- Exhibit C – Request for genital examinaination on the vistim
- Exhibit D – Initial Medico Legal Report.[9]
Trial ensued wherein the parties presented their respective
evidence. Thereafter, the trial court rendered a Joint Judgment dated
March 21, 2012 (i) convicting accused-appellant Melchor Bermundo of rape
in Criminal Cases Nos. MC-07-10660-H and MC-07-10661-H, and
accused-appellant Sipriano Bermundo of attempted rape in Criminal Case
No. MC-07-10663, and (ii) acquitting accused-appellant Sipriano Bermundo
of attempted rape in Criminal Case No. MC-07-10662. The dispositive
portion of the Joint Judgment reads:
WHEREFORE, premises considered, judgment are hereby rendered, as follows:
a.) in Criminal Case No. MC-07-10660-H for rape, accused Melchor Bermundo y Llanita is found guilty hence, he is sentenced to suffer the penalty of imprisonment RECLUSION PERPETUA
and to pay the private complainant the amount of P75,000.00 for civil
indemnity, another P75,000.00 for moral damages and P25,000.00 as
exemplary damages;b.) in Criminal Case No. MC-07-10661-H for rape, accused Melchor Bermundo y Llanita is found guilty hence, he is sentenced to suffer the penalty of imprisonment RECLUSION PERPETUA
and to pay the private complainant the amount of P75,000.00 for civil
indemnity, another P75,000.00 for moral damages and P25,000.00 as
exemplary damages;c.) in Criminal Case No. MC-07-10662 for attempted rape, accused Sipriano Bermundo y Llanita is hereby acquitted; and
d.) in Criminal Case No. MC-07-10663 for attempted rape, accused Sipriano Bermundo y Llanita is found guilty hence, he is sentenced to suffer the penalty of imprisonment from six (6) years and one (1) day to twelve (12) years of prision mayor
and to pay the private complainant the amount of P75,000.00 for civil
indeminity, another P75,000.00 for moral damages and P25,000.00 as
exemplary damages.Finally, the period of detention of both accused inside the Mandaluyong City Jail are credited in their favor.
SO ORDERED.[10]
Hence, accused-appellants filed this joint appeal which is anchored on this lone assignment of error:
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED.[11]
On July 4, 2013, accused-appellant Sipriano Bermundo filed an “Urgent Motion to Withdraw Appeal.”[12]
However, on July 23, 2013, accused-appellant Sipriano Bermundo filed a
“Manifestation” alleging that after counsel explained to him the
consequences of the withdrawal, the latter “decided to continue his
appeal instead.”[13]
In a letter dated July 31, 2013, the Office of the
Superintendent, New Bilibid Prison, Muntinlupa City, informed the Court
of the death of accused-appellant Melchor Bermundo on January 31, 2013,[14] attached thereto a copy of the latter’s death certificate.[15]
Accordingly, on August 16, 2013, the Court issued a Resolution
dismissing the appeal of accused-appellant Melchor Bermundo and
considering the same closed and terminated.[16]
Thus, only the appeal of accused-appellant Sipriano Bermundo in Criminal Case No. MC-07-10663 subsists.
The Issue
Whether the trial court erred in convicting accused-appellant
Sipriano Bermundo of the crime of attempted rape in Criminal Case No.
MC-07-10663.
The Court’s Ruling
Accused-appellant Sipriano Bermundo argues that the trial
court erred in convicting him of attempted rape because the prosecution
failed to prove the elements of force and intimidation. Allegedly,
private complainant was no longer a minor and although she testified
that she was forcibly laid in bed, her testimony lacked material details
to show that attempted rape was indeed committed.[17]
Moreover, accused-appellant Sipriano Bermundo posits that “the delay in
the reporting of the alleged rape and attempted rape incidents by A A
A, remains dubious when she admitted that she had an older brother who
was then living near the area, but instead of reporting the same to the
latter, she instead waited for his father from the province.”[18]
For its part, the Office of the Solicitor General submits that
the conviction of accused-appellant Sipriano Bermundo should not be for
attempted rape, but for acts of lasciviousness. Said the OSG:
In this case, private complainant’s testimony reveals that
appellant Sipriano dragged private complainant into a room and forcibly
laid her on a bed therein. However, appellant subsequently released her
and in fact even ordered her to leave that room when he heard the mother
of her employer call out for her.With respect to appellant Sipriano,
private complainant failed to point to any act involving even the
slightest penetration of his penis against her organ. Otherwise stated,
unlike the case of his brother appellant Melchor, Sipriano did not at
all have intercourse with private complainant, much less engaged in any
act involving the touching of her organ with his organ with the intent
to penetrate.While private complainant may claim that appellant Sipriano may
have probably intended to similarly rape her as his brother did but
failed to do so. Be that as it may, the Supreme Court has stressed that
in rape cases, a conviction cannot be made to rest on possibilities and
that the prosecution bears the primary duty to present its case with
clarity and persuasion, to the end that conviction becomes the only
logical and inevitable conclusion.Appellant Sipriano, however, will still not be entitled to an
acquittal for the plain reason that his act of dragging private
complainant into a room and forcibly laying her on a bed without her
consent cannot but be lewd, obscene, lecherous or indecent conduct
constituting an act of lasciviousness.[19]
Notably, it has been held that for there to be an attempted rape,
the accused must have commenced the act of penetrating his sexual organ
to the vagina of the victim but for some cause or accident other than
his own spontaneous desistance, the penetration, however slight, is not
completed. Thus:
The Court of Appeals aptly cited Perez v. Court of Appeals in which we ruled:
[A] careful review of the records of the case shows that the
crime committed by petitioner was acts of lasciviousness not attempted
rape.Under Article 6 of the Revised Penal Code, there is an attempt
when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his
own spontaneous desistance. In the crime of rape, penetration is an
essential act of execution to produce the felony. Thus, for there to
be an attempted rape, the accused must have commenced the act of
penetrating his sexual organ to the vagina of the victim but for some
cause or accident other than his own spontaneous desistance, the
penetration, however slight, is not completed.There is no showing in this case that petitioner’s sexual organ had ever touched complainant’s vagina nor any part of her body. . . . .(Emphasis ours.)
We also reiterated in Perez our pronouncements in People v. Caingat, that
the offender’s acts of lying on top of the victim, embracing and
kissing her, mashing her breasts, inserting his hand inside her panty,
and touching her sexual organ, which were interrupted were it not for
the timely arrival of the victim’s mother, do not constitute the crime
of attempted rape, absent any showing that the offender actually
commenced to force his penis into the victim’s sexual organ, and that
said acts rather constitute the crime of acts of lasciviousness
punishable under Article 336 of the Revised Penal Code.(Underlining
supplied)[20]
It has also been enunciated by the Supreme Court that the attempt
that the Revised Penal Code punishes is that which is the beginning of
the execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. Thus:
The attempt that the RPC punishes is that which has a logical
connection to a particular, concrete offense; and that which is the
beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation. In
the instant case, the primary question that comes to the fore is whether or not appellant’s act of removing AAA’s pants constituted an overt act of Rape.We answer in the negative.
Overt or external act has been defined as some physical
activity or deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete
offense.The evidence on record does not show that the above elements are
present. The detailed acts of execution showing an attempt to rape are
simply lacking. It would be too strained to construe appellant’s act of
removing AAA’s pants as an overt act that will logically and necessarily
ripen into rape. Hence, appellant must be acquitted of Attempted Rape.
(Underlining supplied)[21]
In the present case, there is dearth of evidence to show any over
act on the part of accused-appellant Sipriano Bermundo that would
logically and necessarily ripen into rape. On direct examination,
private complainant merely testified that accused-appellant Sipriano
Bermundo pulled her inside the bedroom and forcibly laid her to bed, but
when somebody called private complainant, accused-appellant Sipriano
Bermundo asked private complainant to go out. There is no showing that
accused-appellant Sipriano Bermundo had commenced the act of penetrating
his sexual organ to the vagina of private complainant. Thus:
said that on March 6, 2006 a certain Sipriano Bermundo y Llanita pulled
you inside a bedroom, is that correct?
you inside the bedroom? A He forcibly laid me to bed. Q Was he able to
successfully lay you in the bed?
The foregoing testimony failed to establish beyond reasonable doubt
all the elements of attempted rape. However, accused-appellant Sipriano
Bermundo cannot go scot free because his act of dragging private
complainant inside the bedroom and forcibly laying her to bed was
certainly lustful and lewd. Thus, accused-appellant must be convicted of
acts of lasciviousness.[22]
Moroever, accused-appellant Sipriano Bermundo even threatened to
kill private complainant if she would report the incident to the police.
Hence, the purported delay in the reporting of the incident is of no
moment. It is settled that delay per se is not an indication of a fabricated charge, especially when there is a threat to kill private complainant. As held:
As for the delay in the reporting of the sexual assaults,
jurisprudence has established that delay in revealing the commission of
rape is not an indication of a fabricated charge. It must be remembered
that HELEN was continuously threatened by CESAR. In People v Geromo,
we held that intimidation must be viewed in light of the victim’s
perception and judgment at the time of the commission of the crime and
not by any hard and fast rule. It is enough that the intimidation
produces a fear that if the victim does not yield to the bestial demands
of the accused, something would happen to her at the moment, or even
thereafter, as when she is threatened with death should she report the
incident. Therefore, CESAR should not be made to derive comfort from
such delay, in light of the fact that HELEN was actually hampered by the
fear successfully implanted on her mind by the appellant himself. xxx[23]
Under Article 336, Revised Penal Code, the crime of acts of lasciviousness is punishable with prision correccional.
Applying the the Indeterminate Sentence Law (ISL), there being no
aggravating or mitigating circumstance which attended the commission of
the offense, the penalty should be imprisonment of six (6) months of
arresto mayor maximum, as the minimum period, to four (4) years and two
(2) months of prision correccional medium, as the maximum period.[24] Also, private complainant is entitled to P30,000.00 as moral damages and P20,000.00 as civil indemnity. As held:
The award by the Court of Appeals of moral damages to AAA in the
amount of Thirty Thousand Pesos (P30,000.00), for each count of acts of
lasciviousness, is appropriate, in the same way that moral damages are
awarded to victims of rape even without need of proof because of the
presumption that the victim has suffered moral injury, rests on settled
jurisprudence. We also deem that AAA is further entitled to an award of
civil indemnity in the amount of Twenty Thousand Pesos (P20,000.00), for
each count of acts of lasciviousness. xxx[25]
WHEREFORE, with respect to accused-appellant
Sipriano Bermundo in Criminal Case No. MC-07-10663, the appealed Joint
Judgment dated March 21, 2012 of the trial court is modified and
accused-appellant Sipriano Bermundo is hereby found guilty of acts of
lasciviousness and sentenced to suffer an indeterminate penalty of six
(6) months of arresto mayor maximum, as the minimum period, to four (4)
years and two (2) months of prision correccional medium, as the maximum
period, and to pay private complainant the amounts of Thirty Thousand
Pesos (P30,000.00) as moral damages and Twenty Thousand Pesos
(P20,000.00) as civil indemnity.
SO ORDERED.
Acosta and Garcia-Fernandez, JJ., concur.
[1] pp. 26-40, Rollo
[2] pp. 116-117, Ibid.
[3] p. 56, Ibid.
[4] p. 13, Ibid.
[5] p. 15, Ibid.
[6] p. 17, Ibid.
[7] p. 19, Ibid.
[8] pp. 10-14, Record
[9] p. 26, Ibid.
[10] pp. 82-83, Rollo
[11] p. 50, Ibid.
[12] p. 97, Ibid.
[13] p. pp. 134-135, Ibid.
[14] p. 140, Ibid.
[15] p. 141, Ibid.
[16] p. 144, Ibid.
[17] pp. 63-64, Ibid.
[18] p. 65, Ibid.
[19] p. 125, Ibid.
[20] People vs. Dominguez, Jr., 636 SCRA 134 (2010)
[21] People vs. Sumingwa, 603 SCRA 638 (2009)
[22] People vs. Padigos, 687 SCRA 245 (2012)
[23] People vs. Melendres, 339 SCRA 465 (2000)
[24] Sombilon vs. People, 601 SCRA 405 (2009)
[25] People vs. Dominguez, Jr., supra.