Republic of the Philippines

Department of Justice
NATIONAL PROSECUTION SERVICE
OFFICE OF THE PROVINCIAL PROSECUTOR
ILOILO CITY

LERIO NEPOMUCINO
Complainant, NPS DOCKET No VI-II-INV-19A-00050
versus For : MURDER

RHAKE ALPERTO

Respondents
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JUNKY NEPOMUCINO NPS DOCKET No VI-II-INV-19A-00051

Complainant, For: ATTEMPTED MURDER

versus

RHAKE ALPERTO

Respondents
x------------------------------------------------------------------------------------------------------------------x

JOINT REPLY-AFFIDAVITS

That, I, LERIO NEPOMUNCINO and JUNKY NEPOMUCINO, Filipinos, of

legal ages and both residents of Sitio Capinayan, Brgy. Malipaya, Sara, Iloilo
, in answer to the questions on the issues in the COUNTER-AFFIDAVIT by the
respondent and to the Affidavit of Rustico Cordova, Jr., asked of us by Atty.
Noel Y. Sinco , in the language We know and speak and in full consciousness
that We are under oath and that We may face criminal liability for false
testimony or perjury, depose and state, that:

I. SCENARIOS IN THE COUNTER-AFFIDAVIT IS BEYOND HUMAN

NATURE and EXPERIENCE

1. The Respondent in his Counter-Affidavit under these two COMPLAINTS,

alleged that using his motorcycle, he passed along the house of the deceased
Rocky Nepomucino wherein it is along the road going to his house. Further,
he alleged that Rocky and his son Junky Nepomucino blocked his way for
both are holding a knife.

2. Then, they attempted to hack the Respondent who are two (2) meters
away from him. Due to fear of his own life and limb, he disembarked from his
motorcycle and ran back towards his rice field.1

3. Also under the Respondent`s Counter-Affidavit, he alleged that he was not

exactly looking at them (the deceased and his son Junky) when he shot them

1
Counter-Affidavit of Rhake Alperto, Paragraphs 3 (a)(b)(c)
thus he has no knowledge where he hit them. He only intend to shot them on
their arms or legs to disarm them.2

4. It is beyond human nature and experience that the Respondent

disembark from his motorcycle when he saw that granting without admitting
that the deceased Rocky Nepomucino and his son Junky Nepomucino wanted
to hack him from about two (2) meters away to him. He could have drove as
fast as he can to protect his life and limb and NOT to disembark from the
motorcycle and allegedly allow them to hack the Respondent. There were no
bolos and knives found by the Sara Municipal Police Station Officers when
PO1 Rian Jesus Basistin to verify the crime scene and has NOT FOUND any
bolos or knives but instead found his unlicensed firearm.
5. Furthermore, based on the autopsy reports3 on the deceased Rocky
Nepomucino and his Death Certificate that the deceased Rocky Nepomucino
incurred fatal wounds around his body including some vital areas in his body.

6. It is of high improbability that the Respondent in that state of fear and

not exactly looking, shot them (Rocky and Junky), as he alleged in his
Counter-Affidavit, and still hit Rocky with vital wounds for several times on
several vital areas of his body. Fantasy must be differentiated with reality.

7. Granting without admitting that Respondent`s aim is to shoot them

(Rocky and Junky) on their arms or legs just to disarm them, why based on
the autopsy report several gunshot wounds are on the chest area and not on
the leg or lower areas of the body- wherein your aim is to only disarm them.

8. The Honorable Supreme Court cited in several jurisprudence this time-

honored test of valuing the credibility of the witness which are best
exemplified in these two cited cases:

"...The time-honored test in determining the value of the

testimony of a witness is its compatibility with human
knowledge, observation and common experience of man.
Thus, whatever is repugnant to the standards of human
knowledge, observation and experience becomes
incredible and must lie outside judicial cognizance.
Consistently, the Court has ruled that evidence to be
believed must proceed not only from the mouth of a
credible witness but must be credible in itself as to hurdle
the test of conformity with the knowledge and common
experience of mankind..."4

II. ON THE ISSUE OF SELF-DEFENSE, RESPONDENT ADMITTED

MURDER AND ATTEMPTED MURDER
19. Impliedly, the Respondent is claiming self-defense based on his Counter-
Affidavit which is clearly unfounded. The Supreme Court in NICOLAS
VELASQUEZ and VICTOR VELASQUEZ5 has foretold the nature of self-defense
and the shifting of the burden of proof to the defense with this doctrine:

2
Ibid, Paragraphs 3 (d)(e)
3
Already submitted to Asst. Prosecutor Ronel Sustituya during the February 15, 2019 meeting
with the Respondent who also has been given a copy
4
Ocampo v. People, G.R. No. 163705, July 30, 2007, 528 SCRA 547, 560. Zapatos v. People, 457
Phil. 969, 985 (2003).
5
G.R. No. 195021, March 15, 2017
 A person invoking self-defense (or defense of a relative) admits to having
inflicted harm upon another person - a potential criminal act under Title Eight
(Crimes Against Persons) of the Revised Penal Code. However, he or she makes
the additional, defensive contention that even as he or she may have inflicted
harm, he or she nevertheless incurred no criminal liability as the looming danger
upon his or her own person (or that of his or her relative) justified the infliction
of protective harm to an erstwhile aggressor.

The accused's admission enables the prosecution to dispense with discharging

its burden of proving that the accused performed acts, which would otherwise
be the basis of criminal liability. All that remains to be established is whether
the accused were justified in acting as he or she did. To this end, the accused's
case must rise on its own merits:

It is settled that when an accused admits [harming] the victim but invokes self-
defense to escape criminal liability, the accused assumes the burden to
establish his plea by credible, clear and convincing evidence; otherwise,
conviction would follow from his admission that he [harmed] the victim. Self-
defense cannot be justifiably appreciated when uncorroborated by independent
and competent evidence or when it is extremely doubtful by itself. Indeed, in
invoking self-defense, the burden of evidence is shifted and the accused claiming
self-defense must rely on the strength of his own evidence and not on the
weakness of the prosecution

20. In order for self-defense to be appreciated, the accused must prove by

clear and convincing evidence the following elements: (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the means
employed to prevent or repel it; and (c) lack of sufficient provocation on the
part of the person defending himself6.

21. Moreover, the primordial element of unlawful aggression should be

present but in the Respondent`s Counter-Affidavit and other evidences it is
not so founded again. The character of the element of unlawful aggression has been aptly
described in People v. Nugas7, as follows:

"Unlawful aggression on the part of the victim is the primordial element of the
justifying circumstance of self-defense. Without unlawful aggression, there can
be no justified killing in defense of oneself. The test for the presence of unlawful
aggression under the circumstances is whether the aggression from the victim
put in real peril the life or personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat. Accordingly, the accused
must establish the concurrence of three elements of unlawful aggression,
namely: (a) there must be a physical or material attack or assault; (b) the attack
or assault must be actual, or, at least, imminent; and (c) the attack or assault
must be unlawful.

Unlawful aggression is of two kinds: (a) actual or material unlawful

aggression; and (b) imminent unlawful aggression. Actual or material unlawful
aggression means an attack with physical force or with a weapon, an offensive
act that positively determines the intent of the aggressor to cause the injury.

6
G.R. No. 172606, November 23, 2011.
7
G.R. No. 172606, November 23, 2011.
 Imminent unlawful aggression means an attack that is impending or at the point
of happening; it must not consist in a mere threatening attitude, nor must it be
merely imaginary, but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and making a motion
as if to attack). Imminent unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand to his hip where a revolver
was holstered, accompanied by an angry countenance, or like aiming to throw a
pot."
22. Based on the Counter-Affidavit of the Respondent and of the Affidavit
of Rustico Cordova Jr8. There is no primordial element of unlawful
aggression.

23. First, there was no material unlawful aggression present. There was no
recovery of bolo and knife as alleged by the Respondent. These weapons
according to the Respondent`s Counter-Affidavit are the reason why he shot
back at the deceased and his son Junky Nepomucino. Even in the Police
Blotter Report and the Affidavit of PO1 Rian Jesus Basistin y Ampordan9 who
verified the veracity of the shooting incident, did not recover any bolo or
knife in the incident of the crime. Instead, he recovered the unlicensed
firearm of the Respondent which was verified by the PNP Camp Crame
Firearms Division.10

23. Second, there was absence of the imminent unlawful aggression. Upon
absence of evidence of the material unlawful aggression (bolo or knife) by
the Respondent, there was no imminent unlawful aggression to speak of.
Moreover, such imminent unlawful aggression is imaginary and beyond
human experience. If the unlawful aggression is imminent, why would the
Respondent disembark from his motorcycle wherein in fact the alleged
attackers (deceased Rocky Nepomucino and his son Junky) are about two (2)
meters away and to contend yourself to run? The Respondent could just
drove his motorcycle away from danger and there is no need to shoot the
alleged attackers if that is the case the Respondent stated in his Counter-
Affidavit. Again, it is against human nature and experience to alleged these
facts to be factual.

24. There is no REASONABLE NECCESITY OF THE MEANS EMPLOYED TO

PREVENT OR REPEL SUCH AGGRESSION. Based on the Respondent`s
Counter-Affidavit, there is no reason why he should fire upon the alleged
attackers wherein in fact they are about two (2) meters away from him and
he is on his motorcycle. He could have drove the motorcycle as fast as he
can to prevent him from allegedly attacked by Rocky and Junky Nepomucino.
Instead, he disembarked from his motorcycle, ran away and shooting them
without actually looking at them. He shot Rocky in vital areas of the body but
his aim is just to disarm them. In reiteration, such allegation is against
human nature and experience.

25. Lastly, there was no LACK OF PROVOCATION ON THE PART OF THE

PERSON DEFENDING HIMSELF. As alleged by the RESPONDENT, such
disembarkation of his motorcycle is itself as sign that the RESPONDENT is the
one who is provoking the deceased and his son Junky wherein in fact he is

8
Attached together with the Counter-Affidavit of the Respondent
9
Attached together with the Complaint-Affidavit of the Complainant
10
Attached together with the Motion for Consolidation of Cases with submission of additional
evidence
possessing an unlicensed firearm and he can even shoot by not exactly
looking at them.

III. ON THE ADMISSION OF HIS CULPABILITY ON THE FELONY OF

ATTEMPTED MURDER AGAINST JUNKY NEPOMUCINO and the
UNLICENSED FIREARM used in the killing and the attempted one.

26. There is now an admission on the part of the Respondent based on his
Counter-Affidavit that he fired upon the deceased and his son Junky
Nepomucino. He admitted also the unlicensed firearm that he used in the
killing of the deceased Rocky and attempted murder to Junky.

27. Under the new law on Firearm11, there is now an aggravating

circumstance increasing the penalty of murder to its maximum.
Section 29. Use of Loose Firearm in the Commission of a Crime. – The use of a
loose firearm, when inherent in the commission of a crime punishable under the
Revised Penal Code or other special laws, shall be considered as an aggravating
circumstance: Provided, That if the crime committed with the use of a loose
firearm is penalized by the law with a maximum penalty which is lower than
that prescribed in the preceding section for illegal possession of firearm, the
penalty for illegal possession of firearm shall be imposed in lieu of the penalty
for the crime charged: Provided, further, That if the crime committed with the
use of a loose firearm is penalized by the law with a maximum penalty which is
equal to that imposed under the preceding section for illegal possession of
firearms, the penalty of prision mayor in its minimum period shall be imposed in
addition to the penalty for the crime punishable under the Revised Penal Code
or other special laws of which he/she is found guilty.

28. There is an admission of the Respondent`s shooting of both the deceased

Rocky and his son Junky Nepomucino and it was proven to be unlicensed
based on the PNP Reports.

IV. THE ELEMENTS OF MURDER ARE PRESENT.

29. In order to warrant a conviction, the prosecution must establish by
proof beyond reasonable doubt that: (a) a person was killed; (b) the accused
killed him or her; (c) the killing was attended by any of the qualifying
circumstances mentioned in Article 248 of the RPC; and (d) the killing is not
Parricide or Infanticide.12

30. The indisputable elements are now present. First, Rocky Nepomucino
is killed by RHAKE ALPERTO using an unlicensed firearm which by law now
has an aggravating circumstance for these felonies of Murder and
ATTEMPTED MURDER. Second, there were NO BOLOS or KNIVES present
under the scene of the crime, evidenced by the Police Blotter and the
Affidavit of PO1 RIAN JESUS BASISTIN. Third, the scenarios as alleged by the
RESPONDENT and his witness RUSTICO CORDOVA, Jr. through their
Affidavits are beyond human nature and experience to be factual. Fourth and
lastly, there were elements of treachery and premeditation which was NOT
CONTROVERTED BY the RESPONDENT.
"There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the execution

11
REPUBLIC ACT No. 10591
12
People v. Zapuiz, G.R. No. 199713, February 20, 2013, 691 SCRA 510, 518-519.
 thereof, which tend directly and specially to insure its execution, without risk
to himself arising from the defense which the offended party might make
The requisites of treachery are:
(1) [T]he employment of means, method, or manner of execution which will
ensure the safety of the malefactor from defensive or retaliating acts on the
part of the victim, no opportunity being given to the latter to defend himself or
to retaliate; and
(2) [D]eliberate or conscious adoption of such means, method, or manner of
execution"13
31. Based on the COUNTER-AFFIDAVIT OF THE RESPONDENT, he shot both
the deceased Rocky Nepomucino and his son Junky using his unlicensed
firearm. Such defense of self-defense particularly the material unlawful
aggression was unfounded upon the Philippine National Police Police Blotter
and the verification of PO1 RIAN JESUS BASISTIN that NO BOLO or KNIVES
ARE PRESENT IN THE SCENE OF THE CRIME. Looking at the Complaint-
Affidavits of both Lerio and Junky Nepomucino, the Respondent gunned down
and killed ROCKY NEPOMUCINO and attempted to kill Junky Nepomucino but
sadly the former was caught of no place to go and death found him near the
Mango Tree wherein he was shot down several times with fatal wounds in the
chest as exposed in the Autopsy Report of the PNP Medico-Legal Division
Region VI. There was no chance for the deceased to fight the fervor of the
Respondent for he was left without weapons consistent with the findings of
the Sara PNP. Hence, the killing ensure the safety of the Respondent as the
deceased was cornered in the Mango Tree were his dead body was recovered
after the incident.

32. Harmless and weaponless, the Respondent deliberately enjoyed the

killing of the accused evidently by the Autopsy Report of such senseless and
cruel multiple gunshot wounds around his chest area of the body.

33. Lastly, there is evident premeditation. He is a long conflict with the

deceased with regards of the land which the deceased has been planting his
corn. In the Complaint-Affidavit of the Complainant, the Respondent went to
the deceased with his family to talk trash and suddenly pointed a gun
towards him. He admitted that he went to the deceased and his family and
disembark his motorcycle NOT to be slashed by their bolos and knives, as he
alleged but to gun down the deceased and his family. He also admit that
there is a long-standing conflict there in their neighboring ricefield in Brgy.
Malipaya, Sara.

34. All things considered, it is respectfully prayed FOR THE ISSUANCE OF

WARRANT OF ARREST FOR THE RESPONDENT, the REVOCATION OF HIS BAIL
AND THE FILING OF THE INFORMATIONS AGAINST THE RESPONDENT FOR
THE FELONIES OF MURDER and ATTEMPTED MURDER against the
RESPONDENT.

In witness thereof, WE have set our hands this February 18, 2019.

LERIO NEPOMUCINO
COMPLAINANT, MURDER

13
People v. Cleopas, 384 Phil. 286, 301 (2000) [Per J. Quisumbing, Second Division], citing People
v. Gatchalian, 360 Phil. 178, 196–197 (1998) [Per J. Mendoza, Second Division].
 JUNKY NEPOMUCINO
COMPLAINANT, ATTEMPTED MURDER

SUBSCRIBED AND SWORN to before me, this February 18, 2019 at

Iloilo City, Philippines. I further certify that I have personally examined the
herein affiant and I am convinced that they executed the same freely and
voluntarily and understood its contents.

Doc No.
Page No.
Book No.
Series of 2019.

ATTESTATION

I faithfully recorded the questions I asked and the corresponding

answers that the witness gave neither I nor any other persons present
coached the witness regarding the latter`s answers.

ATTY. NOEL Y. SINCO

Counsel for the Complainant
ATTY. NOEL Y. SINCO LAW OFFICE
RM. 310, KAHIRUP BLDG,
GUANCO ST, ILOILO CITY
Tel No. 500-4678, Mobile 09171099560
Email Address: noelyeesinco@gmail.com
Roll No. 65660, 6/ 16/2016
MCLE Exempt pursuant to MCLE Governing Board
Order No. 1,series of 2008
PTR No. 6422166/ 01/03/2019
IBP No. 072017/ 01/10/2019

SUBSCRIBED AND SWORN to before me, February 18, 2019 at Iloilo

City, Philippines. I further certify that I have personally examined the herein
affiant and I am convinced that he executed the same freely and voluntarily
and understood its contents.

Doc No.
Page No.
Book No.
Series of 2019.

Copy Furnished
Registry Receipt No:

RHAKE ARE y ALPERTO Date:

Respondent
Sitio Capinayan, Brgy. Malipaya, Sara, Iloilo