ALEXIS JOY DEFENSOR vs.

JORGE BARCEBAS
NPS NO. VI-10INV-13K-01201
FOR: MURDER

I. FACTS OF THE CASE
On November 17, 2013 at about seven oclock in the evening, the person of
Fernando Defensor y Espinosa, 48 years old, single and a resident of Dela Rama
Compound, Iloilo City, while on his way home, was shot with a gun of unknown caliber by a
male person about forty (40) to forty-five (45) years old, light complexion, large built, about
55 in height and clad in a green shirt with a yellow stripe, clean cut hair, covered with
black handkerchief and a dark cap, causing him to sustain two (2) gunshot wounds on his
right neck thru and thru, two (2) gunshot wounds on the right part of his body thru and
thru and a gunshot wound on his right arm. He was immediately brought to Iloilo St. Pauls
Hospital for treatment. However, he was declared dead by attending physician Dr. Rupert
Abillon at about 8:00 oclock in the evening of the same date. Crime scene investigation
conducted by the SOCO team led by PCInsp Hilarion Roga resulted to the recovery of four
(4) pcs of fired cartridges for super .38 caliber, one (1) left slipper colored green/white and
blood samples.

II. COMPLAINANTS VERSION VS. RESPONDENTS VERSION
Complainants Version

Complainant Alexis Joy Defensor, a minor and duly assisted by her mother, Jasmin
Dela Paz, narrated in her Judicial Affidavit that she is the daughter of the victim Fernando
Defensor. That on or about 7:15 oclock in the evening of November 17, 2013, while she, her
cousin, Unniko Piagola and friend, Tricia Joyce Mendoza were inside an internet shop at
Brgy. Zamora-Melliza, Dela Rama St., Iloilo City, she heard several gunshots near to where
the internet shop is. When the gunshots ceased, she went out of the internet shop and saw
several persons looking at a person lying bloodied on the street near their house. When she
approached the said person she was surprised that it was her father, that she then hugged
her father and asked for help, thereafter people helped her in loading her father on a
tricycle and later on her father was transferred to an ambulance. That while they were
inside the ambulance, her father told her that he is dying and that they (referring to her
Family) should love each other and help their mother. That her father further told her three
(3) times that the person who shot him was respondent Jorge Barcebas. Later on her father
died at the hospital due to gunshot wounds on his body. Complainant further alleged that
before the shooting incident occurred her father told her that respondent had an ill feeling
against him as they are alleging that his father was the tipster in a police operation on
illegal drugs wherein the sister of respondent Jocelyn Tiope and her husband Allan Tiope
were arrested.

Witness Flenly Solito narrated in his Judicial Affidavit that at more or less 7:15
oclock in the evening of November 17, 2013, he was at Brgy. Zamora-Melliza, Dela Rama
St., Iloilo City, walking home after getting the money sent by his aunt from Kuwait from the
house of his uncle Fernando Defensor. That while he was walking, he heard several
gunshots and saw several persons running from different directions. That he looked for a
place to hide and then saw two persons running hurriedly towards him and when they
were near, he leaned back on the cemented wall to avoid them and he saw one of them
carrying a short firearm, whom he identified as respondent Jorge Barcebas and the other
one he can identify only through his face. Out of fear, He hurriedly went home. That he only
found out later that it was his uncle who was the victim in the shooting incident.

Respondents Version

On the other hand, respondent in his counter-affidavit denied the allegations against
him and alleged that he has no participation on the incident that led to the death of victim
Fernando Defensor. That according to him, he was at the birthday celebration of Alan
Susbilla and together with the other guests they had a drinking spree and he never left the
party even during the incident despite that the other guests went out to check what
happened. That according to him he slept at the house of Allan Susbilla as he got drunk and
he was just surprised that he was the suspect.

Witness for the respondent Jomarie Genon, corroborated respondents allegation and
narrated that he is together with respondent at the house of Allan Susbilla at the time of the
incident. While witness for the respondent Joel Abada narrated in his affidavit that he
served as witness in the incident that happened. According to him at the aforementioned
date and time he was at their compound sitting beside the footwalk and he further alleged
that after the victim was shot he saw victims live-in partner and a certain Bordy aiding
victim, and he even saw Bordy picking up the short firearm and ran after the assailant.
That he called up their neighbors and together they carried the victim to a tricycle to bring
the victim to the hospital.

III. RELEVANCE OF JUDICIAL AFFIDAVITS IN THE CASE AT BAR

Judicial Affidavits are used in place of the direct testimonies of the witnesses in a case. It
reduces the time in presenting the testimonies of witnesses thus speeding up the hearing and
adjudication of cases.

As provided for by Section 9 (b) Judicial Affidavit Rule, the prosecution shall submit the
judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies if
the same upon the accused. The complainant or public prosecutor shall attach to the affidavits
such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so
on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.


Judicial Affidavit of ALEXIS JOY DEFENSOR, as complainant
The judicial affidavit of Alexis Joy Defensor contained her testimony on the
murder of her father, which points at Jorge Barcebas, the accused, as a possible suspect
to the crime. Her statement included the last words of her father. According to him,
Jorge Barcebas was the one who shot him thrice. Moreover, this judicial affidavit of
Alexis Joy Defensor revealed that there was a possible motive coming from Barcebas.
This motive included the ill feeling of the accused towards the deceased because
Fernando Defensor was implicated to be the tipster of a drug raid, which led to the
arrest of the accuseds sister Jocelyn Tiope and her husband, Alan Tiope. Even though
that Alexis Joy Defensor was not present at the crime scene, the motive of the accused
was present. This gave the complainant the right to accuse Barcebas for murder. This
judicial affidavit will also start the investigation on the accused and evidences against
him will be reviewed. So, instead of a lengthy interview in the court, the respondent
judge may conduct an investigation regarding the case so that court proceedings may be
shortened.

Judicial Affidavit of FLENLEY SOLITO Y FAURA, as witness
The judicial affidavit of Flenley can be related to Alexis Joy Defensor because
according to him in his judicial affidavit, he was present at the crime scene and was able
to identify Barcebas as one of the two people who was carrying a firearm. According to
him, the two people were running from the crime scene. This judicial affidavit of Flenley
will strengthen the evidence against the accused, who enjoys the benefit of the
presumption of innocence when a case is pending, because the burden of proof lies in
the complainant. Also, this judicial affidavit also shortened the legal proceeding of the
case.

Affidavit of JOEL V. ABADA
On Abadas defense, he saw the person who shot the victim and can readily say
that it was not Jorge Barcebas. Since he knew the suspect and he testified as a witness to
him, he might have a close connection with him.

Relevance of Participation of Bordy as Mentioned in the Affidavit of Abada
Bordy was mentioned by Abada that he saw him helped the victim,
picked-up the short firearm beside the body of the victim and pursued the
attacker. Since he pursued the attacker, he may have a glimpse of his identity
which is helpful for the investigation. Also, Bordy possibly has the possession of
the firearm used in the killing of Fernando and further examinations such as
fingerprint test may conducted to identify the assailant.
Affidavit of JOMARIE B. GENON
Jomarie Genon, in his Affidavit, declared that he personally know Jorge Barcebas
and Fernando Defensor. Further, he said that he and Barcebas together with several
others were drinking at Alan Susbillas house at the time of the shooting incident. While
Genon and others went out of the house to see what happened, Barcebas instead stayed
in the house of Susbilla. It can be said that the presence nor absence of Barcebas in the
crime scene as declared in the Affidavit of Genon is a weak defense. It is merely an alibi
or a denial that Barcebas is not around during the incident and it is unnatural for a
person not be curious on what was happening in his surroundings especially when
there are unusual events that transpired such as hearing gunshots.

IV. FINDINGS
Based on the facts and circumstances presented, it can be shown that the crime of
Murder has been committed. Victim Fernando Defensor in this case was shot defenseless at
nighttime and in treacherous manner. There is treachery when the offender commits any of
the crimes against persons, employing means, methods or forms which tend directly and
specially to ensure its execution, without risk to himself arising from the defense, which the
offended party might make. For treachery to be appreciated, two conditions must concur: (a)
the employment of means, methods or manner of execution that would ensure the offenders
safety from any defense or retaliatory act on the part of the offended party; and (b) the
offenders deliberate or conscious choice of means, method or manner of execution. (People
of the Philippines vs. Albert Sanchez y Gallera, G.R. No. 188610, June 29, 2010.)

Inthis case, the victim was unaware that there is danger to his person; hence, treachery
can be appreciated in this case. Treachery is present where the shooting was unexpected and
sudden, giving the unarmed victim, without any inkling whatsoever of the danger lurking from
behind, no whimper of chance to defend himself. (People vs. Canuzo, 255 SCRA 497)

As to respondents defense, that he was not the assailant therein and that he was at a
party at the time of the incident, the same holds no water.Alibi is an inherently weak
defense which cannot prevail over the positive identification of the accused. (People vs.
Patrolla Jr. 254 SCRA 467). As held by the Supreme Court in People vs. Sumaoy, 263
SCRA 460, that:

For alibi to prosper, it is not enough that the accused prove that he was
somewhere else when the crime was committed. He must demonstrate that he
could not have been physically present at the place of the crime or in its immediate
vicinity at the time of its commission.

Although one of respondents witnesses alleged that he saw the incident that happened
and that he saw that it was a different assailant, still the testimony given by complainant
pointing to the respondent as responsible for his fathers death and the testimony of her
witness would suffice in filing the case against the respondent. Even if there is no direct
evidence showing that the accused shot the victim, his guilt may be proven by the
circumstances obtaining in the case which constitute an unbroken chain which leads to only
one fair and reasonable conclusion.(People vs. Sumaoy, 263 SCRA 460)

In this case, the victim before dying was able to tell his daughter as to his assailant.
Dying declaration is that made by person conscious that he is at the point of death,
concerning the cause and surrounding circumstances of his injury from which he thereafter
dies. Any method of communication between mind and mind may be adopted, such as the
pressure of the hand, nod of the head or a glance of the eye.(People vs. Lazarte, 200 SCRA
361, 1991) and Declaration of victim as to the identity of his assailant is entitled to weight.
(People vs. Madera, 57 SCRA 349).

Although this allegation was denied by respondent, still The rule is settled that positive
declarations of a prosecution witness prevail over the bare denials of an accused. (People vs.
Vargas, 257 SCRA 603) and thatPositive identifications prevail over denials and alibis.
(People of the Philippines vs. Abrenica, 252 SCRA 54). Besides the Honorable Supreme
Court as well held in People vs. Gondora, 265 SCRA 408, that:

Denials if unsubstantiated by clear and convincing evidence, are negative
self-serving evidence which deserve no weight in law and cannot be given
evidentiary weight over testimony of credible witnesses who testify on affirmative
matters.

Based on the foregoing, there is a probable cause to indict the respondent Jorge
Barcebas for the Crime ofMurderunderArt 248 of the Revised Penal Code.



V. RULES ON EVIDENCE AND SUPPORTING JURISPRUDENCE

Section 37 ofRule 130 on the Revised Rules on Evidence, provides that:
Section 37.Dying declaration. The declaration of a dying person, made under
the consciousness of an impending death, may be received in any case wherein
his death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.
Dying Declaration: As an exception to the rule against hearsay evidence, a dying
declarationor ante mortem statement is evidence of the highest order and is
entitled to utmost credence since no person aware of his impending death would make
a careless and false accusation. In order for a dying declaration to be held admissible,
four requisites must concur: first, the declaration must concern the cause and
surrounding circumstances of the declarant's death; second, at the time the
declaration was made, the declarant must be under the consciousness of an impending
death; third, the declarant is competent as a witness; and fourth, the declaration must
be offered in a criminal case for homicide, murder, or parricide, in which the declarant
is the victim.(People vs. Jonel Falabrica Serenas and Joel Lorica Labad, G.R. No.
188124)

All requisites for a dying declaration were sufficiently met by the statement of the
victim communicated to his daughter Alexis Joy. First, the statement pertained to
Fernando being shot, particularly pin-pointing Jorge Barcebas as the perpetrator.
Second, Fernando must have been fully aware that he was on the brink of death
considering his bloodied condition. Third, the competence of Fernando is
unquestionable had he survived the shooting incident. Fourth, Fernandos statement
was being offered in a criminal prosecution for his murder.

Presence of treachery in qualifying the crime to murder: There is treachery
when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and especially to ensure
its execution, without risk to himself arising from any defense which the offended party
might make.

The medical records of gunshot wounds support the finding of treachery. The
several gunshot wounds, nature and location of his wounds are indicative of the
intent to murder Fernando. Nighttime is also appreciated at the time the incident
occurred. The victim was suddenly attacked by respondent on his way home. He
was shot several times. The mode of attack on the victim was clearly executed
without risk to the attacker. Based on the testimony of the witnesses, there was
another participant to the crime. However, the identity of the other assailant cannot
yet be proven.
Positive identification: Witness Flenly Solito positively identified respondent as
the assailant of Fernando. In view of the positive identification made by Flenly
Solito, the denial and alibi made by Jorge Barcebas has no leg to stand on. Under
prevailing jurisprudence alibis and denials are worthless in light of positive
identification by witnesses who have no motive to falsely testify. (People of the
Philippines vs. Ramil Rarugal Alias "Amay Bisaya, G.R. No. 188603, January 16,
2013)
Moreover, Fernando did not immediately die after he was shot by the respondent.
Fernando, apparently conscious that he could die of his wound, identified his
assailant as the respondent Jorge Barcebas. Under the rules, statement made by a
person under the consciousness of an impending death is admissible as evidence of the
circumstances of his death. The positive identification made by the victim before he
died, under the consciousness of an impending death is a strong evidence indicating
the liability of the accused Jorge Barcebas.

Motive:Alexis Joy Defensor expressed that before the shooting incident occurred,
her father Fernando told her that respondent Barcebas had an ill feeling against him
as they are alleging that her father was the tipster in a police operation on illegal
drugs wherein Jocelyn Tiope and Allan Tiope, sister and brother-in-law,
respectively, of the respondent, were arrested. Generally, motive is not an essential
element of a crime. However, it becomes substantial in determining criminal liability,
when :
a. there is doubt as to the identity of the assailant;
b. there is the need to ascertain the truth between two antagonistic versions of
the crime;
c. when the identification of the accused proceeds from an unreliable source and
the testimony is inconclusive and not free from doubt;
d. when there are no eyewitnesses to the crime, and when the suspicion is likely to
fall upon a number of persons; and
e. when the evidence on the commission of the crime is purely circumstantial.

In view of the abovementioned requisites where motive becomes material, the
circumstances alleged by Alexis Joy Defensor could be enough motive for Barcebas
to get even with Fernando to commit the crime charged.



VI. WEIGHT AND SUFFICIENCY OF EVIDENCE

Evidence is defined as the means of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Section 1, Rule 128, Revised Rules on Evidence)

Alexis Joy Defensor, in her testimony, that when her father was at the
brink of death, he uttered three (3) times that Barcebas was his assailant,
and therefore is not hearsay but rather a dying declaration which is
evidence admissible to Court.

Flenley Solito positively identified Jorge Barcebas as the assailant of his
uncle Fernando Defensor is a circumstantial evidence when the facts
from which the inferences are derived are proven.

Joel Abada, who testified that he saw the person who shot Fernando but
cannot identify the face since it was dark, does not have enough weight to
prove that Barcebas is innocent.

Bordy, who was identified only by Abada, alleging that he was the one
who took the gun and chased the assailant, has neither the participation
in the commission of the crime nor could stand as a witness. Evidence
with regard his participation on the said crime cannot be established by
merely relying on the allegations made by Abada alone that Bordy has
the possession of the gun used in the killing of Defensor.

Jomarie Genon, who testified that Jorge Barcebas has no participation in
the shooting incident, has no sufficient evidence to prove that Barcebas is
innocent, for it is unnatural for a group of men to stay inside a dwelling
when something unusual in the surroundings is happening. In the
testimony of Genon, Barcebas did not leave the house of Susbilla upon
hearing the gunshots, while some of the men left to see what had
happened.

Cartridge cases recovered from the crime scene were subjected to an
examination at the Crime Laboratory of the Police Regional Office 6 and
findings would show that four (4) caliber .38 super fired cartridge cases
revealed the same individual characteristics with one another. The
Forensic Firearms Examiner concluded that those specimen were fired
from one and the same caliber .38 super firearm. While it is true that a
caliber .38 super firearm was used, said firearm must be recovered,
subject to forensic examination so it can add weight to the evidences that
could pinpoint the perpetrator.

Jorge Barcebas, in his counter-affidavit declared that he left Barangay
Zamora-Melliza, Iloilo City after receiving threats, for fear of his life, he
went to Bacolod City. Flight of Barcebas after the shooting incident
indicates guilt.


VII. RECOMMENDATIONS
Recommendation for the complainants:
We recommend that in order to have another strong testimony with regard to
the statement of the dying person, they can ask for a written declaration also from the
person or persons of the ambulance who were present at the time when the dying
person was telling her daughter who was his assailant. Others who were at the crime
scene can also testify for the complainant. If in case the said nearby residents are afraid
to give some comments they can ask for some assistance from the barangay officials and
the police in order to fast track the investigation the help the people who are indeed
within the vicinity of the crime scene be required to give their written declaration.
If the complainant can provide another witness during the crime it will be
advantage on their part. The said witnesses must possess a credible personality so as to
provide a more reliable source of information. To give more solid basis for the
complainant to pursue the case they have to get the statement of Bordy whom one of
the witnesses for the respondent specifically mentioned him as the one who picked up
the said short firearm prior to chasing the suspected gun man. It is important that the
murder weapon be retrieved in order to establish the possible identity of the assailant.
Complainant must gather other sources of evidence that would help their case to
have a strong cause of action like creating their own mini task force group to conduct
data gathering during the incident. Complainants can check with the barangay if the
location of the crime scene was covered by a CCTV footage and if it does, theycan secure
a copy of it to supplement other evidences.
Aside from filing a criminal case against the respondent the complainant can file
for a separate civil action for damages and for other relief. The complainant who is a
minor can ask for monetary claims against the respondent for the loss of the life of her
father.

Recommendation for the accused:
The accused must also provide the necessary supporting documents to attest
that he was not involved in the crime being charge against him. As prime suspect he
must secure that the other two witnesses are credible in manifesting that they were all
together at that very time and that he the accused was not in the crime scene. Being an
accused person if you are not guilty of anything he should have not decided to leave
Iloilo and secured himself in Bacolod. The act of leaving the city gives an impression
that indeed he is afraid that his name will be dragged to the shooting incident. Facing
the charges will be a positive move rather than running away from the reality of file
case. Let the case prosper. The accused must face the charges to him and must clear his
name.


Submitted by:
LLB 1, Section E