THE PEOPLE OF THE PHILIPPINES, PLAINTIFF/APPELLEE, VS. EDUARDO DEBERTO, JUNITO ARENA, MARCIAL AMADO AND RODULFO ONSEPEGO, DEFENDANTS/APPELLANTS.

Marcial Amado, Rodulfo Onsepego and appellants Eduardo Deberto
and Junito Arena were charged with the crime of robbery with rape in an
information which, as amended, read:

“The undersigned Acting Provincial Fiscal accuses EDUARDO
DEBERTO, JUNITO ARENA, MARCIAL AMADO, alias ‘BOY’ and RODULFO ONSEPEGO of the
crime of ROBBERY WITH RAPE, committed as follows:

That in or about the evening of June 7, 1985, in Barangay
Magsaysay, Municipality of Jabonga, Province of Agusan del Norte, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
armed with firearms and a grenade, conspiring and confederating together and
mutually helping one another, by means of force, threats and intimidation, did
then and there willfully, unlawfully and feloniously take, steal and carry away
therefrom a gold necklace, seiko wrist watch, four (4) reams of
cigarettes and cash money all valued at NINETEEN THOUSAND SEVEN HUNDRED FIFTY
PESOS (P19,750.00), Philippine Currency, with intent to gain and against the
will and consent of the owner, Gunigonda Monton, to her damage and prejudice in
the aforesaid amount; that on the occasion of said robbery, accused Eduardo
Deberto and Junito Arena, in accordance with and in pursuance to their
conspiracy, with lewd design and by means of the same force, threats and
intimidation, did then and there willfully, unlawfully and feloniously take
turns in lying with and having carnal knowledge of one Pilar M. Serrano, a
married woman, against her will.

That in the commission of the crime the
following aggravating circumstances are present:

1.      Dwelling;

2.      Nighttime;
and

3.      Abuse
of superior strength.

Contrary to law.”^[1]

On arraignment, three (3) of the accused — Deberto, Arena and
Amado — pleaded not guilty. The
accused Onsepego was not arraigned since he was, and has remained, at large.

After trial, the court a quo rendered judgment, the
dispositive portion of which read as follows:

“WHEREFORE, in view of the foregoing, judgment is hereby
rendered as follows:

a) Eduardo Deberto
and Junito Arena are found guilty beyond reasonable doubt of the crime of
robbery with rape with the aggravating circumstances of abuse of superior
strength, nighttime and in the dwelling of the offended parties, and hereby
sentences each one of them to reclusion perpetua with all the
accessory penalties thereto; that each of them shall pay the amount of
P25,000.00 to Pilar Serrano as moral damages, and to pay proportionate costs.

b) Finding Marcial
Amado guilty beyond reasonable doubt of the crime of robbery in conspiracy with
Eduardo Deberto and Junito Arena with the
aggravating circumstances of abuse of superior strength and nighttime, without
any mitigating circumstance, and hereby sentences him to an imprisonment of
seventeen (17) years, four (4) months and one (1) day as minimum to
twenty (20) years as maximum of reclusion temporal, and to
pay the proportionate costs.

c) Ordering Eduardo
Deberto, Junito Arena and Marcial Amado to pay Gunigonda Monton, jointly and
severally, the amount of P500.00 as reparation for the cash and cost of the
Mark Cigarettes; and the additional amount of P5,000.00 as moral damages.

SO ORDERED.^[2]

Eduardo Deberto, Junito Arena and Marcial Amado appealed to this
Court, but pending disposition, Amado and Deberto moved to withdraw their appeals. The Court directed the Citizens’ Legal
Assistance Office, counsel for appellants, to confirm the voluntariness of the
withdrawal of appeal by Eduardo Deberto and Marcial Amado and to inform the
Court of the results thereof. In a
Compliance and Manifestation dated 13 April 1988, the Citizens’ Legal
Assistance Office stated that accused-appellant Marcial Amado had confirmed
that he was voluntarily withdrawing his appeal in the instant case, while
accused-appellant Eduardo Deberto changed his mind and decided to reinstate his
appeal. The Court therefore granted
only Marcial Amado’s motion for withdrawal of appeal.^[3]

Appellants’ Brief assigns the following as errors allegedly
committed by the trial court:

1. the court a quo erred in
allowing the information dated 22 August 1985 to be amended in violation of the
substantial rights of the accused and procedural due process.

2. the court a
quo erred in convicting the accused despite the fact that at the time of
their custodial investigation they were not apprised of their constitutional
rights.

3. the court a quo erred in
convicting the accused despite serious contradictions in the testimonies of the
prosecution witnesses.

The facts which the evidence for the prosecution tended to establish,
have been summarized in the Solicitor General’s Brief in the following manner:

“In the evening of 7 June 1985, spouses Pilar M. Serrano and
Fajardo Serrano, Jr. and their two sons, Dennis and Ronald, were in the house
of Pilar’s parents (Gonigonda and Pacifico Monton), taking their supper with
the Montons as they usually do. In the
house of the Montons is a store. While
the occupants of the house were eating, a certain Angelito Ranin knocked on the
door and bought ‘Mark’ cigarettes from the store. After Angelito Ranin left, two persons (whose faces were covered
from the nose downward with their shirts, armed with short firearms and later
identified as Eduardo Deberto and Junito Arena) barged into the house,
announced a hold-up and ordered everybody to lie face down, which all the
occupants of the house did.

In this hold-up, another man (not wearing a mask and later
identified as Marcial Amado) stood at the main door while another man who was
not seen but whose voice could be heard was outside the kitchen door.

During the hold-up, Deberto demanded money from Gonigonda. Gonigonda replied that they have no money,
so Deberto forced her to go with him upstairs to look for money, while Arena
remained at the store guarding the rest of the family with his gun. After going upstairs Deberto ransacked the
store and took some cigarettes, some cash, a gold necklace and a Seiko wrist
watch.

Then the hold-uppers herded the victims outside of the house and
threatened to kill all of them if they could not give the money. Consequently, Fajardo told them that he will
get his wallet from his house (located 30 meters more or less from the
house of the Monton’s), but Arena insisted that Pilar should get the wallet
instead.

With Arena pointing a gun at her, Pilar went to their
house. But while looking for the wallet
of her husband, Arena forced Pilar to lie down on the floor. Pilar resisted. So, Arena, with a gun in hand, pushed Pilar to the
floor. Arena instructed Pilar to take
off her panties, but, she refused. As a
result, Arena forcibly lowered down her underwear, placed himself on top of
her and succeeded in having sexual intercourse with her. But, during coition the mask covering
Arena’s face was removed giving Pilar an occasion to view his uncovered face.

After the rape in the house of the Serranos; Pilar was made to join
the rest of the group in the house of the Montons. In the house of the Montons, Deberto forced Pilar to go with him
to the upper floor of her parents’ house, ostensibly to look for money. While upstairs, Deberto opened a wardrobe
with the key earlier taken from Pilar’s mother and searched the contents
thereof. However, while doing this, his
mask slipped down, thus revealing his bare face to Pilar. After ransacking the wardrobe and finding no
money therein, Deberto ordered Pilar to lie down on a ‘sleeprite bed.’ At
first, Pilar refused; but Deberto pushed her with his gun. Then Deberto took off her panties and
managed to ravish her.

After Deberto satisfied his sexual desire, Pilar returned
downstairs, as directed, where the rest of her family and parents were herded.

Eventually, the malefactors left, telling the victims to prepare
P5,000.00 as they will return the following week. The malefactors also warned the victims not to report the incident
to the police authorities, otherwise their necks will be cut off.”^[4]
(Citations omitted)

After the culprits left, Pilar told her husband Fajardo that she
had been sexually abused by appellants Arena and Deberto. The next morning at around 8:30 A.M.,
Fajardo brought Pilar to her sister Dr.Nilda Monton-Lozada, a private
practicing physician for a dilation and curettage examination or to have the
uterus cleaned of any foreign matter. Dr. Lozada found sperm cells in the scrapings from Pilar’s uterus which
she personally and immediately brought to the Butuan Maternity and General
Hospital and presented the specimens to Michaela Rosales Gabriel, a Medical
Technologist at that hospital for examination.^[5]
Michaela, upon microscopic examination, found that some of the sperm cells were
still alive and they appeared to have been ejaculated within the preceding
12-hours into Pilar’s vaginal canal.^[6]

The appellants offered a radically different version of the
facts. Appellants denied having
committed the crime charged and claimed that it was in fact five (5) men armed
with armalites and pistols and dressed in military garb who had committed the
robbery with rape. They narrated that
on the evening of 7 June 1985, appellants took a jeepney bound for Butuan City
but that the jeep instead proceeded to Jabonga. When the jeep reached Barangay Magsaysay, Jabonga, the five (5)
armed men alighted and asked a man named Lito to buy cigarettes from a nearby
store. The armed men followed Lito and
there shouted to the occupants of the store that they were being held up; at
the same time, appellants said the five (5) armed men instructed them and the
other passengers of the jeepney to get off the jeep and stand in the shadow of
a nearby tree. The armed men brought
the six (6) occupants of the house with a store to the front yard. One of the armed men, a tall one, brought
one of the victims — a young woman who turned out to be Pilar M. Serrano —
inside the house for about ten (10) minutes. Another of the armed men later brought the same woman to a house not far
from the house-cum-store, and that there they stayed for sometime. Before leaving the Montons house with a
store, the armed men told the occupants to prepare P5,000.00 for they would
come back for the money. In the meantime,
one of the armed men gave the appellants and co-accused Amado P500.00 each, and
the Seiko wrist watch and gold necklace to appellant Deberto. Later, appellant Deberto sold the gold
necklace for P150.00 and the wrist watch for P30.00 to someone and used the
proceeds to pay for their trip to Moncayo, Davao del Norte.

Turning to the first assignment of error, appellants contend that
the trial court had grievously erred in allowing amendment of the information
after the appellants had pleaded to the charge, the amendment having been made
in violation of appellants’ right to be informed of the charges against
them. In their Brief, appellants^[7]
counsel make the following contentions:

“x x x Based on the original information dated August 22, 1985 the three
accused pleaded not guilty to the charge. However, in a motion dated October 2, 1985, Assistant Provincial Fiscal
Orlando F. Doyon moved for the amendment of the Information in order to delete
the name of Julito Arena in the body of the information and stated that the
amendment was, ‘merely of form and does not affect the substantial rights of
the accused x x x.’ Attached to the Motion was the proposed Amended
Information. On October 25, 1985 the
trial court allowed the Information to be amended. At that time, the counsel de parte, Atty. Sinforoso
Grana for the accused Eduardo Deberto and Junito Arena and the counsel de
oficio, Eduardo Casals for the accused Marcial Amado offered no
objection. However, the amended
Information dated October 11, 1985 which was allowed by the court was not the
same amended information dated October 3, 1985 attached to Motion dated October
2, 1985 which was served on both counsels for the accused. Clearly, the two counsels relied that the
amended Information allowed by the trial court was that dated October 3, 1985,
which the prosecution alleged that the amendment would be formal and that
Junito Arena’s name was to be deleted. But instead, a different amended Information dated October 11, 1985 was
submitted to the trial court. Certainly, the subterfuge employed by the prosecution is reprehensible
and in total violation of the Rules of Court which provides that:

‘Rule 15, Sec. 4. Notice
— Notice of a motion shall be served by the applicant to all parties
concerned, at least three (3) days before the hearing thereof, together with a
copy of the motion. x x x’

The amended Information dated October 25,
1985 submitted by the prosecution and allowed by Court was without proper
notice because the Motion dated October 2, 1985 did not allege said amended
Information. The counsels de parte
and de oficio were obviously not aware that the amended
Information dated October 25, 1985 allowed by the trial court was not the same
amended Information served upon them for their perusal and objection. x x x.^[8]

It appears to the Court, however, that either the above quoted
argument is an unusually inept piece of pleading on the part of the attorneys
of the Citizens’ Legal Assistance Officer who signed the Brief for the
Accused-Appellants, or that those Citizens’ Legal Assistance Office attorneys
have not been completely honest and forthright with the Supreme Court in making
the above argument. For, as the
Solicitor General points out, the Citizens’ Legal Assistance Office attorneys
have failed to make clear that there was only one amended information which was
proposed by Assistant Provincial Fiscal Orlando F. Doyon in his Motion dated 2
October 1985^[9]
which proposed amendments consisted of: (a) correction of the name of Julito Arena so as to read “Junito
Arena;” and (b) addition of the following aggravating
circumstances: (1) dwelling; (2)
nighttime; and (3) abuse of superior strength. Moreover, the Citizens’ Legal Assistance Office attorneys failed to
point out that after the trial court admitted the amended information on 11
October 1985, the appellants were re-arraigned on 25 October 1985,^[10]
and with the assistance of their respective counsel (Eduardo Deberto and Junito
Arena assisted by their counsel de parte, Atty, Sinfroso Grana; Marcial
Amado assisted by Atty. Eduardo S. Casals, Citizens’ Legal Assistance Office,
Butuan City, as counsel de oficio) entered a plea of not guilty
to the charge set out in the amended information.

We are accordingly unable to see any
deprivation of appellants of their right to be informed of the charge made
against them. We should note, further,
that the defense counsel who appeared before the trial court had themselves
obviously not seen any adverse effect upon the rights of their respective
clients; for neither of the two (2) defense lawyers objected to the proceedings
prior to and at re-arraignment. It is
certainly far too late to raise such a question before this Court at this time. Finally, we should note that the amendments
to the original information were not substantial in character. The correction of the spelling of the name
of Junito Arena was certainly an amendment of form. The aggravating circumstances alleged in the amended information
were generic aggravating circumstances; they could not serve to qualify the
original offense charged into some other offense. And it is, of course, settled doctrine that generic aggravating
circumstances duly proven in the course of trial maybe taken into account by the
trial court in determining the proper imposable penalty although such
circumstances were not alleged in the information.^[11]

So far as we can understand it, the principal argument of
appellants in their second assignment of error relates to their identification
by the rape victim, Pilar Serrano, and other members of the household who were
there in the Montons house on 7 June 1985. In their Brief, appellants argue as follows:

“x x x The victims were just led by the police directly to the
three suspects as if they were really guilty. The fact is that before that day and even during the preliminary
investigation, the victims could not positively identify the malefactors. Close scrutiny of the victims’ affidavits to
the police and their actuation during the preliminary investigation show that
they could not even give the most general descriptions of the malefactors. Instead of having made to stand in a police
line-up in accordance with the normal police procedure, the police directly led
the victims to the three detained suspects and let them identified same
suspects. The use of a line-up
for identifi­cation may indeed be a mere preparatory step in the
gathering of state’s evidence and the practice in itself said to be not
a violation of the accused’s right against self-incriminations. But in the case at bar, there is a great
possibility that the police used improper suggestion which contributed to
erroneous identification. The
number of cases where improper police procedures have resulted in
misidentification of persons and conviction of innocent persons have become so
widespread that this practice must be properly used. x x x”^[12]
(Emphasis supplied)

We note, in the first place, that there is here no extrajudicial
confession or other statement made by any of the accused, admission of which is
being objected to by appellants upon the ground that such confession or
statement had been taken without accused being assisted by counsel. In the second place, appellants do not
assert that their identities or guilt had been merely suggested, without
objective basis, by the police to the prosecution witnesses. All that appellants suggest is that “in the
case at bar, there is a great possibility that the police used improper
suggestion which contributed to erroneous identification.” It
should be stressed, however, that the three (3) prosecution witnesses — i.e.,
Pilar Serrano (who had been sexually ravished), Fajardo Serrano (Pilar’s
husband), and Gonigonda Monton (Pilar’s mother) — were physically in a
position to have seen the faces and persons of the men who robbed their house
on 7 June 1985, considering that the dining room of the house of the Montons
was lighted with a 20-watt flourescent lamp; the kitchen was lighted with a
50-watt bulb; a 25-watt bulb lighted the outside or yard; while a 20-watt
flourescent lamp lighted the second floor of the Montons house. The room where Pilar was sexually abused by
Deberto was lighted by a kerosene lamp and illuminated by the flourescent lamp
located upstairs.^[13]
While the room in the nearby house where she was raped by Junito Arena had no
lamp, the same was illuminated by a light right outside the door of that room.^[14]
Further, it should not be overlooked that co-accused Marcial Amado, who was
pointed to as the chief or “commander” of the accused, did not try to mask or cover
his face at all while the robbery was in progress; and the masks worn by
Deberto and Arena covered only part of their faces, i.e., from the nose
downward. Arena’s mask slipping off his
face in his effort to get on top of the struggling Pilar before penetrating her
female part. Deberto’s mask, too,
slipped down as he went about ransacking a wardrobe in a room in the Montons
house, searching for valuables and items worth taking away.

Lastly, we must note that the appellants were actually identified
by the prosecution witnesses twice, outside the courtroom of the trial
court. The decision of the trial court
makes this clear:

“On the robbery angle of this case, the testimonies of
prosecution’s witnesses, namely, Pilar Serrano, Fajardo Serrano, Jr., and Gunigonda
Monton positively pointed to the accused as the persons who perpetrated the
robbery in Gunigonda’s house although they did not know the names of the
accused at that time. They later
pointed each one of the accused who were then suspects in the investigation at
the Chief of Police Office in Jabonga, Agusan del Norte and, later,
during the preliminary investigation on July 11, 1985 conducted by Judge
Quirico M. Battad, Jr. of the Municipal Circuit Trial Court of Jabonga ?
Kitcharao, Agusan del Norte (pp. 17-27, Records) upon which the order for the
arrest of the accused was issued by Judge Battad, Jr. on the same date. Although the accused waived their right to
present evidence during the second stage of the preliminary investigation
(Order of Judge Battad, Jr. dated July 25, 1985, p. 38, Records) the same
witnesses again pointed to and identified the accused in this court during the
trial as the perpetrators of the crime.”^[15]
(Emphases supplied)

In their third assignment of error, appellants assert that the
testimonies of the prosecution witnesses were flawed by serious contradictions.

Appellants cite the following as an inconsistency in the
testimony of Pilar Serrano. Pilar on
direct examination before the trial court said:

“Q:  The one who went up with your
mother, can you recognize the man if you can see him again.

A:   Yes, sir.

Q:   The other man who was
below guarding you, your husband and children, if he is here in the courtroom,
please point him out?

A:    (Witness pointing to a
person in the courtroom who when asked for his name answered that he is Junito
Arena.)”^[16]

The statement given by Pilar earlier at
the police station of the Municipality of Jabonga, as translated into English,
said in part:

“Q:  Can you identify them?

A:   No, sir, because some of them covered their faces aside from that
they are all strangers.”^[17]

The contradiction, if any, is however,
more apparent than real. On
cross-examination, Pilar testified in part as follows:

“Q:  But are you also sure
that these two were wearing mask when they entered the house.

A:   Yes, sir.

Q:   As a matter of fact
you cannot identify them?

A:    I don’t know their
names but their faces I can identify them.”^[18]
(Emphasis supplied)

Evidently, when Pilar indicated at the police station of Jabonga
that she could not identify the robbers and rapists, she meant that she did not
know their names or that she did not see the faces of all the
malefactors. She did subsequently make
clear that she would recognize the faces of the two (2) men who had covered the
lower part of their faces (but whose coverings or masks later slipped off) if
she saw them again although she did not know their names.

Appellants also claim that the testimony of Pilar in respect of
the sexual abuse inflicted upon her was similarly flawed. Appellants point out that her sworn
statement at the police station contained the following questions and answers:

“10. Q:      What happened next?

A:     After
I lied down, he placed himself on top of me and inserted his penis inside my
vagina thereafter began to move his body with a pushed and pulled motion.

Q:    How
many times did he inserted his penis to your vagina?

A:     Only
one time.”^[19]
(Underscoring supplied)

On the witness stand, however, when she
was asked “[H]ow many time did the penis enter [her] vagina?” Pilar answered,
“[I]t cannot be counted but he made it one round.”

We do not believe that the above inconsistencies, if that is what
they were, substantially affect the credibility of Pilar Serrano as a
witness. It is too well-settled to require
much documentation that testimonial inconsistencies relating to minor matters
do not affect the credit worthiness of the witness testifying and that minor
inconsistencies tend to show that the witnesses were not coached or rehearsed.^[20]
In any case, the alleged inconsistencies are entirely ineffectual to overturn
the finding of the trial court that Pilar Serrano had in fact been raped by
appellants Arena and Deberto and that the appellants, along with Marcial Amado,
had taken valuable items by force from the victims.

The trial court found the testimonies of the prosecution witness
to be

“x x x worthy of credit, reliable and credible, natural,
reasonable and probable and, therefore, believable (People v. Macatongay, et
al., 107 Phil 188; Tuason v. Luzon Stevedoring Co., 111 Phil. 789; People v.
Alvarez, 55 SCRA 81 and People v. Santos, 94 SCRA 87).”^[21]

Upon the other hand, the trial court
found the appellants’ version of the facts to be deeply flawed and
non-credible. The appellants’ story was
essentially that the actual malefactors, five (5) armed men in military dress,
compelled the appellants to be spectators of the crime charged and that after
the robbery, the five (5) armed men; in a spasm of inexplicable generosity;
rewarded the spectators with P500.00 each, and gave one of them (Deberto) in
addition a Seiko wrist watch and a gold necklace. We agree with the trial court that this story is “full of holes
and incredible,” and so contrary to ordinary human experience as to seem an
almost pathetic invention:

“The version of the accused that it was the group of the armed men
who, at gun point, robbed the victims is full of holes and incredible. It could not be possible that the said armed
men would commit the robbery themselves and, later on, give P500.00 each to
Junito Arena, Marcial Amado and Eduardo Deberto, the latter given further the
seiko wrist watch and the gold necklace. If it is true that the three accused were given by the armed men P500.00
each, there is no necessity of selling the gold necklace for P150.00 and the
seiko wrist watch for only P30.00 the following day as the accused had already
money to spend. The P500.00 each that
the three accused allegedly received could have been sufficient enough for Marcial
Amado to go home to Butuan City, and for Eduardo Deberto and Junito Arena to
spend in going to Diwalwal, Moncayo, Davao del Norte. Also, it would be inconceivable for these armed men who were in
uniform and believed to be rebels (although there was no evidence to this
effect) to rob innocent civilians x x x and give money to persons unknown to
them as what happened in this case according to the version of the
accused. For whatever money may be
raised by the armed men will be used to support and enhance their cause and not
to be given as charity to persons not known to them.”

We are, in short, unable to see any basis or reason for
overturning the conclusions of fact of the trial court.

WHEREFORE, for all the foregoing, the Court hereby AFFIRMS
the Decision of the trial court dated 12 January 1987, but modifies the award
of indemnity or moral damages due to Pilar Serrano from P25,000.00 to
P30,000.00 due from each of the two (2) — Eduardo Deberto and Junito
Arena — convicted of rape, or a total indemnity of P60,000.00. Costs against appellants.

SO ORDERED.

Gutierrez, Jr., (Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.

^[1]
Rollo, pp. 17-18.

^[2]
Id., pp. 33-34.

^[3]
Id., 67.

^[4]
Id., pp. 74-80.

^[5]
TSN, 18 November 1985, pp. 5-6; 10-11.

^[6]
Rollo, p. 19-20; TSN, 15 January 1986, pp. 5-7.

^[7]
Appellants’ Brief, pp. 8-9.

^[8]
Appellants’ Brief, pp. 10-11.

^[9]
Record of Criminal Case No. 2698, Regional
Trial Court of Agusan del Norte and Butuan City, p. 49.

^[10]
Order of Trial Court, dated 25 October 1985,
ibid., pp 56-57.

^[11]
E., People v. Martinez Godinez, 106 Phil. 597 (1959); Almeda v. Villaluz, 66 SCRA 38 (1975); People v. Butler,
120 SCRA 281 (1983); People v. Estillore, 141 SCRA 456 (1986).

^[12]
Appellants’ Brief, p. 14.

^[13]
TSN, 18 November 1985, pp. 48-52.

^[14]
Id., p. 20.

^[15]
Trial Court Decision, p. 15.

^[16]
Rollo, p. 90.

^[17]
Id., p. 91

^[18]
Id.

^[19]
Record, p. 5.

^[20]
People v. De las Piñas, 141 SCRA 379 (1986); People v. Polo, 147
SCRA 551 (1987).

^[21]
Trial Court Decision, p. 15.