Decision: Republic of The Philippines Court of Appeals Manila Special Sixteenth (16) Division

Republic of the Philippines
COURT OF APPEALS
Manila
SPECIAL SIXTEENTH (16th) DIVISION
****
PEOPLE OF THE CA-G.R. CR NO. 38620

PHILIPPINES,
Plaintiff-Appellee, Members:
-versus- GONZALES-SISON, M.,

Chairperson
CRUZ, R. A.,and
*
L/CPL JOSEPH SCOTT INTING, H.J.P.B.,JJ.
PEMBERTON,
Accused-Appellant. Promulgated:
April 3, 2017
x --------------------------------------------------------------------------------- x
DECISION
GONZALES-SISON, M.,J:
Before the Court is the appeal1 of the Decision2 of the Regional

Trial Court of Olongapo City, Branch 74 (trial court) dated 18
November 2015, in Criminal Case No. 865-14, finding accused-
appellant L/Cpl Joseph Scott Pemberton (Pemberton) guilty beyond
reasonable doubt of the crime of homicide and ordering him to
indemnify the heirs of Jeffrey Laude y Serdoncillo alias “Jennifer”
(Laude). Likewise assailed is the Order3 dated 29 March 2016
rendered by the trial court denying the partial motion for partial
reconsideration of the above Decision.
* Acting Junior Member per Office Order No. 111-17-ABR dated 13 March 2017.
1 Notice of Appeal, Records, Vol. IV, p. 2243.
2 Penned by Judge Roline M. Ginez-Jabalde.
3 Penned by Judge Roline M. Ginez-Jabalde.
People v. Pemberton Decision
CA-G.R. CR No. 38620 Page 2 of 48
The facts of the case, are as follows:
On 15 December 2014, Pemberton, a member of the United

States Marine Corps was charged with murder by the Olongapo City
Prosecutor's Office. The accusatory portion of the Information reads
as follows:
“That on or about the eleventh (11th) day of October 2014, in

the City of Olongapo, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, being [a] trained
and active serviceman of the United States Marine Corps and a
skilled boxer, with intent to kill and by means of treachery; with
abuse and taking advantage of superior strength, did then and
there knowingly attack, assault, box, beat up, strangle, and choke
from behind, the victim, Jeffrey Laude y Serdoncillo alias
“JENNIFER”, a transgender, until she stopped moving, inflicting
upon her the following:
“Head and Neck:
1. Scalp hematoma, frontal region,1x1cm, 3 cm right of anterior

midline;
2. Scalp hematoma, left temporal region, measuring 2.5x1.5cm front
anterior midline;
3. Sub-conjunctival hemorrhage, right eye;
4. Sub-conjunctival hemorrhage, left eye;
5. Hematoma, peri-orbital region, 1.8x0.5cm, 2cm from
anteriormidline;
6. Contusion, right zygomatic region, 6x5cm,from anterior midline;
7. Hematoma, left peri-orbital region, 12.5cmx1cm, 6.2cm from the
anterior midline;
8. Multiple abrasions, peri-oral region;
9. Hematoma, left peri-orbital region, 1.5x1cm;
10. Hematoma, buccal side of the upper lip, 0.8x0.5cm;
11. Abrasions,(bite marks)tip of the tongue;
12. Contusion, lower lip region, 1x0.5cm;
Chest and Abdomen:
13. Grossly unremarkable esophagus and trachea;

14. Contused external portion of the right horn of the larynx;
15. Hematoma, upper inner portions of the larynx below the
glottis;
16. Enlarged right and left lungs;
17. Pressure mark, supra-sternal notch region,1x0.5cm;
18. Pressure mark, right clavicular region, 1x0.5cm;
19. Multiple abrasions, right lumbar region;
20. Multiple abrasions, left gluteal region;
21. Grossly unremarkable internal organs including the brain;
Extremities:
22. Contusion on the right palm, 0.8x0.5cm;

23. Linear abrasion, middle third of the left forearm, 3x0.4cm;
24. Abrasion, middle third of the left forearm, 0.6x0.5cm;
25. Abrasion, middle third of the left forearm, measuring 0.3x0.3cm
26. Multiple abrasions, middle third of right leg, 5.5x2cm”
and with cruelty by deliberately and inhuman[e]ly augmenting the

suffering of said Jeffrey Laude y Serdoncillo alias “JENNIFER” that
after having strangled and choked said Jeffrey Laude y Serdoncillo
alias “JENNIFER” until she stopped moving, drag her into the
bathroom, slump her head over the rim of the toilet, repeatedly
push down and dunk her head inside the toilet bowl, and drown
her, which directly caused her death by ASPHYXIA DUE TO
DROWNING AND STRANGULATION.
All contrary to law, and with the qualifying circumstances of

treachery, taking advantage of superior strength and cruelty.
CONTRARY TO LAW.”4
On 16 December 2014, the trial court issued a warrant of arrest

against Pemberton. On 19 December 2014, Pemberton appeared
before the trial court to submit himself under its jurisdiction. During
the course of the trial, Pemberton was detained at the Mutual
Defense Board-Security Engagement Board Facility, JUSMAG
Compound, Camp Aguinaldo, Quezon City pending the judicial
proceedings pursuant to the Visiting Forces Agreement between the
United States of America and the Republic of the Philippines.5
4 Records, Vol. I, pp. 1-2.

5 Decision dated 18 November 2015, p. 3.
When arraigned, Pemberton, assisted by his counsel, refused to

plead, thus, a plea of “not guilty” was entered for him.6
During pre-trial, the parties stipulated and, thus, dispensed
proof on the following:
1.The identity of the accused as the same person charged and

arraigned in the Information;
2. The lifeless body of the victim was found at Room No. 1

Celzone Lodge, Magsaysay Drive, Olongapo City;
3. Celzone Lodge and Ambyanz Night Life are both located

along Ramon Magsaysay Drive, Barangay East Tapinac,
Olongapo City;
4. On 11 October 2014, accused L/Cpl Joseph Scott Pemberton

was at the Subic Bay Freeport Zone;
5. On 11 October 2014, accused L/Cpl Joseph Scott Pemberton

was assigned at HSV Westpac Express;
6. An ocular inspection was conducted by the panel of

prosecutors with the private prosecutors on 05 November
2014;
7. The front desk and Room No. 1 of the Celzone Lodge are
both located at its second floor;
8. The U.S. NCIS submitted a report of their investigation,

consisting of three volumes, a copy of which was furnished
the counsel for accused L/Cpl Joseph Scott Pemberton;
9. The Report consists of three (3) Volumes;
10. Accused L/Cpl Joseph Scott Pemberton was 19 years old

on 11 October 2014;
11. Victim Jeffrey Laude was 26 years old on 11 October 2014;

and
6 Order dated 23 February 2015, Records, Vol. I, pp. 494-495.

12. The victim Jeffrey Laude y Serdoncillo is a Male based on

his Certificate of Live Birth.7
After termination of pre-trial by agreement of the parties, trial

ensued.
Case for the Prosecution
To prove its case, the prosecution presented the following

relevant witnesses.
Testimony of Elias Gallamos y Arana:
Elias A. Gallamos (Gallamos) worked as a front desk attendant

of Celzone Lodge in the evening of 11 October 2014. He testified that
two (2) transgenders, one (1) of whom he recognized as Barbie,
arrived at around 10:55 p.m. in the company of a foreigner with
white complexion. The three (3) were looking for an available room
and he gave them Room No. 1 located at the second floor and a few
meters away from the receiving area. After the three (3) went inside
Room No. 1, Gallamos, in turn, moved to the lobby which is just in
front of the receiving area to accompany the father of his boss, Mr.
Millafor. After several minutes, he recalled seeing Barbie leave Room
No. 1 and go downstairs of the lodge. A man who was billeted at
Room No. 5 then came up followed by Barbie. The man and Barbie
then went to the third floor and entered Room No. 5.8
After a few minutes, Gallamos heard someone walking from

Room No. 1, which he just ignored. After another ten (10) to fifteen
(15) minutes, Gallamos saw the white male person who earlier
checked-in at Room No. 1 leaving the said room. However, the white
male person left the door of Room No. 1 ajar. When he peeped inside
Room No. 1, Gallamos saw the two metal windows open, the air-con
unit still on, and the bed-sheet missing. He looked towards the toilet
and saw a pair of sandals outside its door. Thinking that someone is
7 Records, Vol. I, pp. 557-558.

8 TSN, March 23, 2015, pp. 56-60.
taking a bath, Gallamos went back to the lobby and closed the door
of Room No. 1 behind him.9
After several minutes, Gallamos returned to Room No. 1.

Gallamos then asked if “he is okay”. Hearing no response, Gallamos
decided to knock and enter the comfort room and in there he saw a
person whose head is slumped inside the toilet bowl. He recognized
the person slumped as the companion of Barbie and the white male
foreign person. Gallamos then reported his discovery to his co-
employee, Mr. Millaflor. Thereafter, he ran upstairs to Room No. 5 in
order to inform Barbie. Afterwards, Gallamos went to the police
station to report the incident. When the police came, they checked the
person inside the comfort room. The policemen then called Red Cross
for assistance. When the Red Cross personnel arrived, they checked
the slumped person, but found him dead already.10
Inside the court room, Gallamos identified Pemberton as the

white male person who checked-in and left Room No. 1 at the time of
the incident.11
Testimony of Mark Clarence Gelviro y Caguioa alias Barbie:
Barbie testified that at around 9:00 p.m. of 11 October 2014, he

and Laude were hanging out with friends identified as “Gorgeous”,
“Jamille” and “Charisse”. They were all seated in one table inside
Ambyanz Night Life (Ambyanz), looking for a date.12
Moments later, he and Laude transferred to the table located

near the door. While their other friends went dancing, Barbie noticed
four (4) Americans enter the club. Laude then approached one (1) of
the Americans and they started to talk. After two (2) minutes, Laude
was able to convince the American to leave Ambyanz and together
with Barbie they all went directly to the nearby Celzone Lodge.13
9 TSN, March 23, 2015, pp. 62-67.

10 TSN, March 23, 2015, pp. 68-77.
11 TSN, 23 March 2015, pp. 97-99.
12 TSN, 24 March 2015, pp. 6-7.
13 TSN, 24 March 2015, pp. 8-10.
Upon arrival at Celzone Lodge, Laude paid at the counter for a

room. Laude, Barbie and the American then entered Room No. 1.
Laude asked Barbie in Tagalog to leave the room, as he was afraid
that the American might discover that they are not real women.
Before leaving the room, Barbie reminded the American, “[y]ou safe
my friend”. The American replied, “[o]kay”.14
After Barbie got out of the room, Barbie met a Filipino man
downstairs who was checked-in at Room No. 5 of Celzone Lodge.
Barbie joined him in his room. After thirty (30) minutes, the bellboy
came knocking on their door and told Barbie that Laude has fainted.
After fifteen (15) minutes, Barbie went down the stairs where he saw
two (2) policemen inside Room No. 1. Barbie pushed his way inside
the room and saw Laude with his head inside the toilet bowl. Laude
was naked and wrapped in a cream colored blanket. He asked one of
the policemen if his friend is still alive. The policemen responded that
they cannot tell as they were still waiting for Red Cross.15
Barbie then went outside the hotel and saw the remaining three
(3) Americans he earlier saw in Ambyanz. Barbie then told them
“[w]here is your friend, you know your friend killed my friend”.16
On 13 October 2014 at Police Station 3 of the Olongapo City

Police Office, Barbie gave a Voluntary Sworn Statement to Naval
Criminal Investigative Service (NCIS) Reporting Agent (RA) Maria
Markley. Thereafter, he was presented a photo lineup consisting of
two (2) sets of six (6) numbered photographs of males sporting the
same semi-bald haircut. Barbie then pointed at No. 2 photo of the
first set and made the following remark “Siya po, direct to the point or
should I say bulls eye”, referring to the person they met at Ambyanz,
went with them to Celzone Lodge and whom he left with Laude in
Room No. 1.17 Inside the courtroom, Barbie identified Pemberton as
the person whose photograph he pointed to during the
investigation.18
14 TSN, 24 March 2015, pp. 10-14.

15 TSN, 24 March 2015, pp. 14- 20.
16 TSN, 24 March 2015, pp. 20-21.
17 TSN, 24 March 2015, pp. 30, 35-45.
18 TSN, 24 March 2015, p. 58.
Testimony of Jacinto Miraflor:
Jacinto Miraflor (Miraflor) testified that he has been an

employee of Celzone Lodge since 2002. He is in charge of internal
security. On 11 October 2014, he reported for work before 9:00
o'clock in the evening.19 He further testified that before midnight of
even date, he saw an “American guy” went out from Room No. 1,
leaving the door slightly open. He described the “American guy” as a
tall, white man who was wearing short-pants and t-shirt with white
and blue stripes. He then ordered Gallamos to check the room.
Gallamos knocked on the room and uttered if someone is still inside
and if he is okay. Since nobody answered Miraflor told Gallamos to
give him a few more minutes to leave. After a few minutes, Gallamos
entered the room again and then afterwards reported to Miraflor that
the guest inside the room is lying on the floor in the comfort room.
Miraflor then instructed Gallamos to go to the police station to report
the incident.20
When Gallamos went to the police station to report the

incident, Miraflor stayed outside the room and made sure that
nobody entered the same. When the police officers arrived, Miraflor
was still outside Room No. 1.21
Testimony of L/Cpl Jairn Michael Rose:
L/Cpl Jairn Michael Rose (Rose) a member of the US Marine

Corps testified that on 11 October 2014 he was in Olongapo City as
part of the advance party from 229 waiting at the NSD 22 Port. On
October 11, 2014, Rose, together with Cpl Daniel Fabian Pulido
(Pulido), L/Cpl Bennett Erik Dahl (Dahl) and Pemberton were
granted liberty. The four (4) of them left HSV Westpac Express
together at approximately 3:00 p.m. and went to Harbor Point Mall
where they did individual shopping. After they were done shopping,
19 TSN, 13 April 2015, pp.5-6.
20 TSN, 13 April 2015, pp. 13-17.
21 TSN, 13 April 2015, p. 17-18.
22 Naval Supply Depot.
they headed to a massage parlor along Magsaysay Drive. Next, they

went bar hopping and stayed at Willis Bar for three (3) hours. After
they left Willis Bar, they again went bar hopping and ended up at
Ambyanz at around 11:00 p.m. Thereafter, Rose got separated from
his group as he met a person who accompanied him to a hotel.23
At around 11:30 p.m. Rose left the hotel and started looking for
his companions as it was very near their curfew. He found Pulido
and Dahl, but not Pemberton. Rose then tried to find Pemberton at
Ambyanz, but did not see him there. Out in the street, a girl told
Rose and his group that Pemberton came to a hotel across Ambyanz.
Once Rose and his group reached the hotel, a person told them that
their friend has killed that person's friend. Inside the hotel, another
person told Rose that his friend already took a cab. Since it was very
near their curfew, Rose and his companions decided to get a cab and
go back to the seaport.24
Rose, Pulido and Dahl returned to HSV Westpac Express at

approximately 12:15 – 12:20 a.m. Cpl Christoper Miller (Miller), who
was in charge of them, saw them and started to yell at them for
leaving Pemberton behind. After five (5) minutes, Pemberton arrived
on the ship.25
Rose further testified that around 12:30-1:00 a.m., Pemberton

approached him and told him that he needed to talk to him. He and
Pemberton walked to the front of the ship where Pemberton
disclosed to him that “he killed a he/she”. He asked Pemberton what
he meant by that. Pemberton then relayed to him that he met two (2)
girls and went to a hotel. One (1) of the girls left shortly after they
checked-in. Pemberton then said that the girl who stayed behind
started to undress and he saw that she had a penis, and he got so
angry that he started choking her until she stopped moving. He then
dragged her into the bathroom and left. Rose felt shocked by
Pemberton's revelation and did not know what to do so he went to
the back of the boat and got Miller whom he trusted. After getting
23 TSN, 19 May 2015, pp. 13-21.

24 TSN, 19 May 2015, pp. 22-28.
25 TSN, 19 May 2015, pp 29-30.
Miller, Rose told Pemberton to tell Miller what he had just told
him.26
Testimony of Cpl Christopher Miller:
Cpl Miller, the Non-Commissioned Officer-In-Charge over

twelve men including Rose, Pulido, Dahl and Pemberton gave
specific instruction to the four (4) servicemen to return to the
Westpac Express before midnight of 11 October 2014. At 12:10 a.m. of
12 October 2014 Miller was at the upper deck of Westpac Express
smoking a cigarette. Soon after, he saw his fellow marines - Rose,
Pulido, Dahl arrive. Miller then confronted them for coming in late.
He then noticed that one (1) of them was missing and before getting
an explanation, the fourth Marine arrived who was Pemberton. He
then asked Pemberton why he came in late. However, it was Pulido
who replied saying that they got separated throughout the evening
and they were looking for each other. Since all the Marines were
accounted for, Miller decided to just send them to their beds. Miller,
likewise went to sleep.27
Sometime in the night, Miller was awakened by Rose telling

him that he has something to tell and does not know what to do with
it. Miller got up and followed Rose towards the front of the ship.
Miller then noticed Pemberton sitting in one of the chairs in front of
the ship. Miller sat down and asked them what seemed to be the
issue. Pemberton initially was silent and began conversing with Rose.
Eventually, Pemberton told Miller that “I might have fucked bad”.
Miller asked Pemberton what he meant by that. It was Rose who
answered the question narrating that Pemberton took two (2)
prostitutes to a hotel room where one later left. As to the other one,
Pemberton could not figure out what happened to him or her. Miller
then asked Pemberton what he would like to do. Pemberton decided
to go back to sleep. Miller did not press the matter anymore and had
another cigarette before going to sleep 28
26 TSN, 19 May 2015, pp. 30-33.

27 TSN, May 19, 2015, pp. 5-10.
28 TSN, May 19, 2015, pp. 10-13.
Testimony of Dr. Reynaldo Dave(PNP):
Dr. Reynaldo Dave (Dr. Dave), the medico-legal officer who

conducted the autopsy of the body of Laude29 found out that the
latter suffered several hematoma, hemorrhage and contusions in the
head and neck which are traumatic injuries which produced bleeding
on the tissues and produced hematoma.30 However, Dr. Dave made
the conclusion as stated in his medico-legal report that Laude's cause
of death was due to “asphyxia by drowning”. 31 In reaching his
conclusion, Dr. Dave pointed out that there was a blood sticky fluid
spontaneously coming out from Laude's mouth which indicates that
there is an accumulation of fluid either in the lungs, the abdomen or
the stomach. Further, Dr. Dave also mentioned that cut sections of
the secondary bronchi revealed lumens that contain blood tinged
fluids which mean that there is an abnormal accumulation of fluid on
said bronchi. Also, after cutting and slicing the lungs, Dr. Dave
discovered that it has blood watery fluid. Moreover, Dr. Dave
noticed the absence of air bubbles in the lungs upon application of
pressure which indicates the presence of water fluid instead of air. 32
Dr. Dave likewise recognized that the pressure marks between the
sternum and the neck correspond to the area which is in contact with
the bowl. Dr. Dave surmised that the toilet bowl was flushed to
submerge the head of Laude and that made him inhale water instead
of air.33
To verify his conclusion, Dr. Dave sent lung tissue samples to

the Histopath Section of the Philippine Crime Laboratory Office in
Camp Crame, Quezon City. The histopathological report reveals that
the cause of death was “asphyxia due to drowning and
strangulation”.34
29 TSN, 18 May 2015, p. 12.

30 TSN, 18 May 2015, pp. 30-31.
31 TSN, 18 May 2015, p. 40.
32 TSN, 18 May 2015, pp. 24-25,33-35.
33 TSN, 18 May 2015, p. 36.
34 TSN, 18 May 2015, pp. 42-45.
Testimony of Dr. Maritess Ombao (PNP):
Dr. Maritess Ombao (Dr. Ombao), the pathologist who

conducted the hispathological examination on the lung tissues
submitted by Dr. Dave explained that the cause of death of Laude
was “asphyxia” or failure of cells to receive or to utilize oxygen.
Based on Dr. Ombao's findings, “asphyxia” was caused by drowning
and strangulation. There is drowning due to the presence of
pulmonary endema described as proteic and amorphous material
which are consistent with drowning. In addition, “asphyxia” was
caused by strangulation as shown by intra-alveolar hemorrhage
which is blood inside the alveolar space. According to Dr. Ombao,
the hemorrhage is consistent with the compression on external force
applied in the airway of the subject.35
Testimony of Julita Cabilan:
Julita Cabilan (Cabilan), the mother of Laude, testified that after

learning of the death of his son she could neither eat nor sleep for
two (2) consecutive weeks. She also kept on asking Laude's body
how he could have suffered such sorry fate. Cabilan further alleged
that the wake of her son took twelve days where her family had to
pay P1500.00 per day. Cabilan also testified that Laude before his
death was a home service beautician who cuts and dyes hair and
does manicure earning at least P5,000.00 per week. Laude also
sometimes earn by cooking during special occasions. Every week,
Laude also sends financial support to Cabilan for food and medicine,
the last time amounting to P10,000.00.36
The case for the Appellant
Testimony of L/Cpl Joseph Scott Pemberton:
Pemberton denied liability for the crime charged against him

since, according to him, he acted in defense of his life and honor.
35 TSN, 4 May 2015, pp. 42-46, 55.

36 TSN, 28 April 2015, pp. 11-18.
He testified that in October 2014, he was in Subic for military

training. Right before arriving in the Philippines, they (the US
Marines) were told that there are a lot of dangers in the Philippines
and that somebody would likely scam them. On 11 October 2014,
Pemberton together with Rose, Dahl and Pulido were given liberty
until midnight. In the afternoon they went to a mall for two (2) –
three (3) hours and then to a massage parlor for one (1) hour.
Thereafter, the group decided to go bar hopping and ended up at
Willis where they drank alcohol. Pemberton averred that he got
drunk from the alcohol shots and beers he had taken. Afterwards, the
group decided to go bar hopping again until they reached
Ambyanz.37
As Pemberton walked in, he was approached by two (2) pretty

women (Barbie and Laude), both wearing revealing outfits. They
asked Pemberton bluntly if he wanted to fuck. Pemberton replied
“[y]es, sure”.38
Thereafter, Pemberton was taken by his hands and dragged

across the street to a hotel called Celzone Lodge by Barbie and
Laude. Inside the hotel, one (1) of the women walked up and spoke
to a hotel clerk. Pemberton then noticed that the hotel was dark,
quiet, cheap, and suspicious-looking. Pemberton felt that the women
must have some kind of arrangement with the hotel crew as he never
saw an exchange of money. When Pemberton, Barbie and Laude
walked inside the room, he was asked by them for P1,000.00 each.
Pemberton immediately pulled out money from his wallet and paid
Barbie and Laude.39
Immediately after, Barbie stepped inside the bathroom. At that

point Laude removed his blouse, pulled down Pemberton's pants
and started giving Pemberton oral sex. After a couple of minutes,
Barbie came out of the bathroom and started giving Pemberton oral
sex while Laude, this time, went to the bathroom. After a few
37 TSN, 24 August 2015, pp. 17-21.

38 TSN, 24 August 2015, pp. 21-22.
39 TSN, 24 August 2015, pp. 22-25.
minutes, Barbie stood up and asked Pemberton for money so the

former could buy more condoms. Pemberton responded that he has
condoms, hence, there is no more need to buy. Barbie, however, kept
on insisting and reached on to Pemberton's pants and grabbed the
latter's wallet. Pemberton reacted quickly and took his wallet back
and then pulled out P200.00 which he gave to Barbie. After getting
the money, Barbie left the room.40
Subsequently, Laude came out of the bathroom with a towel

around his waist. Laude then started kissing Pemberton's neck and
chest as the latter was lying on the bed. Then, Laude started again to
give Pemberton oral sex. After several minutes, Pemberton went to
reach for Laude's vagina, however, to his surprise he felt something
weird. This prompted Laude to jerk away. Pemberton, in disgust,
told Laude to get off from him. Pemberton then moved to the edge of
the bed. Laude then stood up and slapped Pemberton in the face.41
At that point, Pemberton got angrier as he felt he had just been

raped and Laude had the gall to even slap him in the face. According
to Pemberton the slap he received made his ear ring. Then,
Pemberton saw that Laude was winding up to slap him again so he
hit Laude first. Pemberton and Laude started to exchange hits and
punches. Pemberton then got his arm around Laude's neck and they
fell back on the bed. Pemberton just held Laude there until he
realized that he was not moving. Pemberton brought Laude to the
shower to splash water on him, but there was no running water. He
looked at Laude closely and saw that he was still breathing.
Pemberton thus decided to just drop Laude naked on the floor and
leave. Pemberton got dressed and walked out of the hotel calmly so
as not to get any unwanted attention from the hotel clerk. Pemberton
then took a cab and went back to the ship.42
Pemberton insisted that he left Laude still breathing inside the

bathroom and that he did not dunk the latter's head inside the toilet
bowl.43
40 TSN, 24 August 2015, pp. 25- 29.
41 TSN, 24 August 2015, pp. 30 – 33.
42 TSN, 24 August 2015, pp. 33 – 44.
43 TSN, 24 August 2015, p. 42.
Testimony of Lisa Pemberton:
In an attempt to vouch Pemberton's good moral character, the

defense presented Lisa Pemberton, mother of Pemberton, who
testified that her son is a loving, compassionate, kind-hearted, God-
fearing who is incapable of committing the crime charged.44 She
likewise testified that one of her daughters is a lesbian yet, it did not
affect Pemberton.45
Testimony of Dr. Racquel Fortun:
Dr. Racquel Fortun (Dr. Fortun), a noted forensic pathologist,

testified that the circumstances mentioned by Dr. Dave in his
testimony46 are insufficient to conclude that Laude died of drowning.
According to Dr. Fortun, in order to make a definite conclusion of
drowning, other potential causes of death must be excluded.
Consequently, after examining the evidence on record, Dr. Fortun
determined that the probable/plausible cause of death of Laude
would be asphyxia due to pressure on the neck.47
After trial, Pemberton was found guilty of homicide by the trial

court. The dispositive portion of the Decision dated 18 November
2015 reads:
“WHEREFORE, judgment is rendered finding accused

L/CPL JOSEPH SCOTT PEMBERTON GUILTY beyond
reasonable doubt of the crime of homicide and sentencing him to
suffer the indeterminate sentence of six (6) years of prision
correccional as minimum and twelve (12) years of prision mayor
as maximum with full credit for the period of his preventive
imprisonment pursuant to Article 29, Revised Penal Code; and
ordering him to pay to the heirs of the late Jeffrey S. Laude,
44 TSN, 17 August 2015, pp. 21-22.

45 TSN, 17 August 2015, pp. 27-28.
46 a)thin bloody non foul smelling discharge oozing out from the mouth of Laude; b) cut section of the
secondary bronchi revealed lumens that contain watery blood tinged fluids; c) right and left lungs
slightly enlarged and both are boggy with slate-brown external surface and with moderate amount of
antracortic pigments; d) cut sections revealed dark-red homogeneous boggy parenchyma; and e) there
are no air bubbles, watery bloody fluid oozing out from the parenchyma upon application of pressure.
47 TSN, 25 August 2015, pp.27- 38.
represented by Julita Cabilan, as follows: a) Php 50,000.00 as civil

indemnity; b) Php4,320,000.00 as damages for loss of earning
capacity; c) Php155,250.00 as reimbursement for the wake, burial
and other related expenses as actual damages; d) Php50,000.00 as
moral damages; and e) Php30,000.00 as exemplary damages.”48
In its Decision, the trial court resolved that Laude died due to
“asphyxia by drowning”. In support of this conclusion, the trial court
cited the testimony of Dr. Dave as well as treatises in medical
jurisprudence stating that the abnormal state of Laude's lungs, the
accumulation of blood-tinged fluid in his bronchi and the blood-
tinged secretion from his nasal and oral orifices are clear indications
that Laude had an asphyxial death by drowning.
As to who killed Laude, the trial court pointed to Pemberton as

he was the last person seen with the former. Further, the trial court
found that Pemberton was lying when he said that he left Laude still
alive otherwise, Pemberton would have brought him to the nearest
hospital for an emergency treatment. Moreover, the trial court took
into consideration the testimonies of Rose and Miller mentioning that
Pemberton told them “I think I killed a he/she” and “I might have
fucked up bad” respectively, as part of res gestae.
The trial court further explained that Pemberton had a motive

to kill Laude as he found his experience of having been kissed and
orally stimulated by a man so revolting and disgusting. The trial
court also ruled that Pemberton's intent to drown Laude is manifest
when he brought Laude to the side of toilet where he could easily
and conveniently access the flush lever while maintaining Laude's
head inside the toilet bowl.
Pemberton's allegation that someone else might have crept

inside Room No. 1 after he had left and did the actual killing of
Laude was utterly dismissed by the trial court for lack of merit. The
trial court then recounted the testimony of Gallamos that Pemberton
was the last person seen with Laude before the discovery of the
latter's body.
48 Records, Vol. III, pp. 1501-1502.

The trial court also disregarded Pemberton's invocation of the

justifying circumstance of self-defense or the privilege mitigating
circumstance of incomplete self-defense for Pemberton was not able
to prove the existence of unlawful aggression as his life was never in
peril on that fateful night of the incident.
The trial court however ruled that Pemberton is not guilty of

murder as the trial court brushed aside the attendance of the
qualifying circumstances of treachery, abuse of superior strength and
cruelty. Thus, it held that due to the failure of the prosecution to
establish any of the qualifying circumstances alleged in the
Information, the killing of Laude amounted only to homicide, which
is defined and penalized under Article 249 of the Revised Penal
Code.
In addition, the trial court ruled that Pemberton is entitled to

the mitigating circumstance of passion and obfuscation. It held that
Pemberton was so enraged and incensed by Laude's
misrepresentation and in the heat of passion, he arm-locked the
latter, dragged him inside the bathroom and dunked his head into
the toilet bowl. He did all these to Laude after he discovered him to
be a man without any delay which would allow him to regain his
composure and control of himself. Likewise, the trial court found
that Pemberton should be accorded the benefit of the mitigating
circumstance of intoxication, because he was inebriated at that time
of the incident and in addition, it was not shown that he is a habitual
drinker. The trial court explained that Pemberton, being a member of
the U.S. Marines Corp, is not a habitual drinker as they get to drink
only when they are on liberty. Pemberton also did not have any plan
to kill Laude in the night of 11 October 2014 as he and his buddies
were only out on liberty and he did not know Laude, thus his
drunkenness is not subsequent to a plan to commit a felony.
On the other hand, the trial court did not give merit to
Pemberton's claim that he should be accorded the benefit of the
mitigating circumstance of voluntary surrender. The trial court
ratiocinated that Pemberton's surrender on 19 December 2014 cannot

be considered as voluntary and spontaneous, because the warrant of
arrest was already issued and served upon him, thus he is already
considered arrested prior to his appearance before the court.
As to Pemberton's civil liability, the trial court awarded to the

heirs of Laude civil indemnity, actual damages, moral damages and
exemplary damages. In addition, the trial court awarded
P4,320,000.00 as damages for loss of earning capacity based on
Laude's monthly income of P20,000.00.
On December 16, 2015, Pemberton filed an Omnibus Motion for

(I) Partial Reconsideration; (II) Bail; and (III) Clarification.
In an Order dated 29 March 2016, the trial court denied the

motion for partial reconsideration and bail for lack of merit, but
granted the motion for clarification by adjusting the maximum
penalty from twelve (12) years to ten (10) years due to the presence of
two (2) mitigating circumstances. The fallo of the said Order states:
“WHEREFORE, in view of the foregoing, the Partial Motion

for Reconsideration of the Decision promulgated on 01 December
2015 and the Motion to Be Admitted to Bail Pending Motion for
Reconsideration are DENIED for lack of merit while the Motion for
Clarification as to the precise penalty to be imposed on accused
Pemberton in the Decision of the Court promulgated on 01
December 2015 is GRANTED. Thus, the dispositive portion of the
said decision as to the penalty to be imposed on the accused should
be: xxx xxx “and sentencing him to suffer an indeterminate
sentence of six (6) years of prision correccional as indeterminate
minimum penalty and ten (10) years of prision mayor as
indeterminate maximum penalty with full credit for the period of
his preventive imprisonment pursuant to Article 29, Revised Penal
Code.”49
The Present Appeal
Dissatisfied still, Pemberton now comes to this Court to appeal
49 Records, Vol. IV, pp. 2238-2239.

the trial court's assailed Decision and Order, and assigns the
following errors supposedly committed by the trial court:
ASSIGNMENT OF ERRORS
A.
THE TRIAL COURT SERIOUSLY ERRED IN

CONVICTING PEMBERTON OF THE CRIME OF
HOMICIDE CONSIDERING THAT THE CAUSE OF
LAUDE'S DEATH IS DOUBTFUL. ON THE ONE
HAND, DR. RACQUEL FORTUN TESTIFIED THAT
LAUDE DID NOT DIE BY DROWNING (HE DID NOT
EVEN DROWN). ON THE OTHER HAND, BOTH THE
PROSECUTION AND THE DEFENSE AGREE THAT
LAUDE DID NOT DIE BY STRANGULATION. AT
ANY RATE, ASSUMING HE DIED BY
STRANGULATION, IT WAS NOT BY THE HANDS
OF PEMBERTON. IN FACT, THE PROSECUTION
ITSELF ASSERTS THAT LAUDE WAS STILL ALIVE
AFTER THE “ARMLOCK”.
B.

BRUSHING ASIDE ALL EVIDENCE TENDING TO
ESTABLISH THAT ANOTHER PERSON KILLED
LAUDE. THE NECKLACE LAUDE WAS CLUTCHING
IN HIS HAND THAT DID NOT BELONG TO HIM OR
PEMBERTON; LAUDE'S MONEY THAT WAS
STOLEN BY A THIRD PERSON, NOT PEMBERTON;
THE THIRD SET OF DNA PROFILE ON LAUDE'S
NECK THAT WAS NOT LAUDE'S OR
PEMBERTON'S; THE BLANKET THAT WRAPPED
LAUDE'S BODY, WHICH WAS NOT THERE WHEN
PEMBERTON LEFT HIM; THE FACT THAT THE
POSITION OF LAUDE'S LEGS CHANGED AFTER
PEMBERTON LEFT HIM.
C.
THE TRIAL COURT SERIOUSLY ERRED IN RULING

THAT THE ALLEGED STATEMENT OF PEMBERTON
TO ROSE, TO WIT: “I THINK I KILLED A HE/SHE”
CONSTITUTES AN ADMISSION OF GUILT. EVEN
ASSUMING THAT PEMBERTON SAID THIS, THE
SAME IS MERELY SPECULATION. IN ANY CASE,
SUCH STATEMENT IS CONSISTENT WITH SELF
DEFENSE UNDER ART. 11 OF THE REVISED PENAL
CODE.
D.
THE CIRCUMSTANCES RELIED UPON BY THE

TRIAL COURT DO NOT CONSTITUTE AN
“UNBROKEN CHAIN” OF EVENTS LEADING TO
THE CONCLUSION THAT PEMBERTON IS THE
AUTHOR OF THE CRIME “TO THE EXCLUSION OF
OTHERS”. GALLAMOS SAW LAUDE ALIVE. IT WAS
ONLY AFTER ABOUT 30 MINUTES THAT THE RED
CROSS VOLUNTEERS DECLARED LAUDE DEAD.
EVEN THE AUTOPSY REPORT STATES THAT
LAUDE DIED ON OCTOBER 12, NOT OCTOBER 11,
2014.
E.
THE TRIAL COURT SERIOUSLY ERRED IN RULING

THAT PEMBERTON IS NOT ENTITLED TO THE
JUSTIFYING CIRCUMSTANCE OF COMPLETE SELF-
DEFENSE:
(1) THE UNWANTED SEXUAL ACTS OF

LAUDE ON PEMBERTON NEED NOT FALL
UNDER “ACTS OF LASCIVIOUSNESS”
TO BE CONSIDERED AS UNLAWFUL
AGGRESSION;
(2) THE SLAP ON PEMBERTON'S FACE

WAS ALSO AN UNLAWFUL AGGRESSION
IN LIGHT OF THE CIRCUMSTANCES;
(3) THE PRESENCE OF UNLAWFUL

AGGRESSION MUST BE ASSESSED IN
LIGHT OF ALL THE CIRCUMSTANCES AS
THEY MUST HAVE PRESENTED
THEMSELVES TO PEMBERTON. HAD THE
FACTS BEEN AS HE BELIEVED THEM TO
BE, HE WOULD NOT HAVE BEEN
CRIMINALLY LIABLE FOR HIS ACTS.
F.
THE TRIAL COURT SERIOUSLY ERRED IN NOT

APPRECIATING IN FAVOR OF PEMBERTON THE
MITIGATING CIRCUMSTANCES OF (1)
VOLUNTARY SURRENDER AND (2) NO INTENTION
TO COMMIT SO GRAVE A WRONG, TOGETHER
WITH THE PRIVILEGED MITIGATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE.
G.

AWARDING EXCESSIVE DAMAGES:
(1) THE AWARD OF PHP 4,320,000.00 BY

WAY OF “UNEARNED INCOME” WAS
IMPROPER SINCE THE COURT ITSELF
ACKNOWLEDGED THAT THE
PROSECUTION “FAILED TO PRESENT
DOCUMENTARY EVIDENCE TO SUPPORT
THE CLAIM.” MOREOVER, IT IS CLEAR

THAT LAUDE EARNED FROM SEX WORK.
HIS EARNINGS FROM AN ILLEGAL
ACTIVITY MAY NOT BE COMPENSATED.
(2) THE TRIAL COURT AWARDED

EXEMPLARY DAMAGES “TO SERVE AS
DETERRENT TO ALL MILITARY AND
CIVILIAN PERSONNEL OF THE UNITED
STATES OF AMERICA x x x TO RESPECT
EVERY FILIPINO CITIZEN REGARDLESS
OF HIS/HER SEXUAL ORIENTATION.”
HOWEVER, NOTHING IN THE RECORDS
REMOTELY SUGGESTS THAT
PEMBERTON DOES NOT RESPECT
FILIPINOS OR MEMBERS OF THE THIRD
SEX. MOREOVER, THE INJURIES
SUFFERED BY LAUDE IN HIS FISTFIGHT
WITH PEMBERTON WERE NOT
“MALICIOUSLY AND WANTONLY
INFLICTED.
Meanwhile, the Office of the Solicitor General (OSG),

representing the People of the Philippines, maintained that the trial
court was correct in its decision convicting Pemberton. However, the
OSG asserts that Pemberton cannot be given full credit for the period
of his preventive imprisonment, because he was never under local
custody during the pendency of the trial.
We deny the instant appeal for lack of merit.
The crime of homicide is committed when: (1) a person is

killed; (2) the accused killed that person without any justifying
circumstance; (3) the accused had the intention to kill, which is
presumed; and (4) the killing was not attended by any of the
qualifying circumstances of murder, or by that of parricide or
infanticide .50
In this case, however, the above elements need not be proven,

because Pemberton, as elucidated in the fifth assigned error,
interposes self-defense to extricate himself from criminal liability. It
is well-settled that the invocation of self-defense is an admission of
the killing and of its authorship. By this admission, the burden of
proof shifts to the accused who must now establish with clear and
convincing evidence all the elements of this justifying circumstance,
to wit: (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
resorting to self-defense. In proving these elements, the accused must
rely on the strength of his own evidence. He can no longer assail the
weakness of the evidence against him simply because it cannot be
disbelieve after his open admission of responsibility for the killing.51
Among the foregoing elements, the most important is unlawful

aggression. It is well-settled that there can be no self-defense,
whether complete or incomplete, unless the victim had committed
unlawful aggression against the person who resorted to self-
defense.52
In his effort to paint a different picture that he was the victim

and that Laude committed unlawful aggression, Pemberton reiterates
that he was molested by Laude who pretended to be a woman and
which prompted Pemberton to defend his dignity and self-respect.
Moreover, Pemberton claims that Laude slapped him causing
extreme pain and disorientation. Also, when Laude was about to hit
him for the second time, Pemberton realized the following situations
which gave him a reasonable and justified fear that he was in grave
danger:
a. The two “women” asked Pemberton to have sex

with them immediately after seeing him enter
50 Guevarra v. People, G.R. No. 170462, 5 February 2014.

51 People v. Magayac, G.R. No. 126043, 19 April 2000.
52 People v. Matibag, G.R. No. 206381, 25 march 2015.
Ambyanz and Gelviro (Barbie) even led Pemberton

by hand to Celzone, hurriedly pulling him down the
stairs of Ambyanz and towards the said motel.
b. The “women” chose the motel.
c. The motel was “sketchy”.
d. The motel clerk/cashier, Gallamos, was familiar with

the “women” and did not ask for payment before
giving them Room 1.
e. Gelviro (Barbie) told Pemberton that he would go out

to buy condoms and instead on doing so even after
Pemberton told him that he had some condoms with
him. Gelviro (Barbie) brazenly grabbed Pemberton's
wallet to get money.
f. It turned out that Laude was a man and perhaps

Gelviro (Barbie) was a man, too.
g. Pemberton was warned about scams in the

Philippines.
h. When Pemberton pushed Laude away, Laude had the

gall to slap him and hit him again.”53
We are unconvinced.
First, the alleged molestation done to Pemberton cannot be

considered as unlawful aggression. Unlawful aggression is defined as
an actual physical assault, or at least a threat to inflict real imminent
injury, upon a person.54 Here, Pemberton did not suffer any injury
when he allowed Laude to perform oral sex on him. Even if the
definition of injury is broadened to include Pemberton's dignity and
self-respect, unlawful aggression is still wanting. Unlawful
aggression to merit self-defense must be continuous, 55 otherwise, it
53 Rollo, pp. 142-143.

55 People v. Samson, G.R. No. 214883, 2 September 2015.
becomes a form of retaliation.56 In this case, the moment Pemberton

pushed away Laude, the latter immediately ceased performing
fellatio on the former. At that point there was no longer unlawful
aggression to justify the killing of Laude.
Second, no physical evidence suggests that Pemberton was first

slapped by Laude. Worthy to note that after returning to HSV
Westpac Express, Pemberton did not seek any medical attention to
have his head checked for any injury considering that he claims that
the first slap he received from Laude, who fought like a man, made
his ear ring. Even Pemberton's General Physical Examination taken
on 13 October 2014, shows no sign of injury on his head or face.57
Third, we find that Pemberton is clutching at straws in claiming

that the circumstances surrounding the incident made him realize he
was in grave danger. The only reason why he attacked Laude was
that he was furious at him for pretending to be a woman, nothing
more, nothing less. Invariably, Pemberton never mentioned that he
was fearing for his life in his conversation with Rose or Miller. All he
told them was that he was incensed after discovering Laude's penis.
We thus find Pemberton's defense of an impending grave

danger more imaginary than real. If Laude was in cahoots with
Barbie and Gallamos, there was no more need for Laude and Barbie
to perform oral sex on Pemberton. The moment they entered Room
No. 1, Laude and Barbie could have easily robbed Pemberton if that
was their intention all along. Moreover, the fact that Pemberton was
able to easily leave Celzone Lodge proves that his alleged fear was
remote and speculative.
Indeed, a plea of self-defense cannot be justifiably appreciated

where it is not only uncorroborated by independent and competent
evidence, but also extremely doubtful by itself.58 Self-defense, like
alibi, is a defense which can easily be concocted59 as it is in this case.
56 People v. Dulin, G.R. No. 171284, 29 June 2015.

57 Exhibits “LLL-4-e” -”LLL-4-f”.
58 Marzonia v. People, G.R. No. 153794, 26 June 2006.
59 People v. Cueto, G.R. No. 147764, 16 January 2003.
In the absence of unlawful aggression, even the privileged

mitigating circumstance of incomplete self-defense, which Pemberton
also invokes, cannot be appreciated in his favor.60
With the above disquisition, the conviction of Pemberton for

homicide is undeniable. Nonetheless, to afford a complete resolution
of this case, the Court would delve on the other alternative defenses
raised by Pemberton.
With respect to the first assigned error, Pemberton asserts that

the trial court committed serious error in convicting him of the crime
of homicide considering that the cause of Laude's death is uncertain.
He stresses that it remains unclear whether Laude died by drowning
or strangulation in view of the conflicting findings of Dr. Fortun, his
expert witness, and Dr. Dave, the medico-legal officer who
conducted the post-mortem examination on Laude's body and served
as expert witness for the prosecution. According to Pemberton, the
findings of Dr. Fortun, a forensic pathologist, should trump the
findings of Dr. Dave who is not a pathologist.
To further prove that Laude could not have drowned,

Pemberton highlights the Report of NCIS Agent Markley stating that
the toilet flush was not working and there was no running water in
the bathroom.
In resolving the issue of whose expert witness is more

believable, this Court is guided by the ruling in US v. Trono,61 which
states in part:
“Expert testimony no doubt constitutes evidence worthy

of meriting consideration, although not exclusive, on questions
of a professional character. The courts of justice, however, are
not bound to submit their findings necessarily to such
testimony; they are free to weight them, and they can give or
refuse to give them any value as proof, or they can even
60 See Rustia, Jr. v. People, G.R. No. 208351, 5 October 2016.

61 G.R. No. 1344, January 19, 1904.
counterbalance such evidence with the other elements of

conviction which may have been adduced during the trial.
xxx.” (underscoring supplied)
Similarly, in Espiritu v. Court of Appeals,62 it was held that:
“Although courts are not ordinarily bound by expert

testimonies, they may place whatever weight they choose upon
such testimonies in accordance with the facts of the case. The
relative weight and sufficiency of expert testimony is peculiarly
within the province of the trial court to decide, considering the
ability and character of the witness, his actions upon the
witness stand, the weight and process of the reasoning by
which he has supported his opinion, his possible bias in favor
of the side for whom he testifies, the fact that he is a paid
witness, the relative opportunities for study or observation of
the matters about which he testifies, and any other matters
which serve to illuminate his statements. The opinion of the
expert may not be arbitrarily rejected; it is to be considered by
the court in view of all the facts and circumstances in the case
and when common knowledge utterly fails, the expert opinion
may be given controlling effect (20 Am. Jur., 1056-1058). The
problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the absence
of an abuse of that discretion.” (underscoring supplied)
In the case at bar, Dr. Dave, the medico-legal officer, was the
one who personally conducted the autopsy of the cadaver of Laude. 63
It cannot be gainsaid that Dr. Dave was in the forefront of the
physical evidence on hand. Meanwhile, Dr. Fortun was not able to
examine the body of Laude. Her conclusion was arrived only after
perusing the documents and pictures provided to her. 64 Presented by
these considerations, we find that the trial court did not err in
assigning more value to the findings of Dr. Dave as opposed to that
of Dr. Fortun. Moreover, the conclusion of Dr. Dave was confirmed
by the finding of Dr. Ombao that there was drowning due to the
62 G.R. No. 115640, 15 March 1995 citing Salomon v. IAC, G.R. No. 70263, 14 May 1990.
63 TSN, 18 May 2015, p. 12.
64 TSN, 25 August 2015, p. 68.
presence of “pulmonary endema described as proteic and amorphous

material”.
It is of no moment that Dr. Dave is not a forensic pathologist

like Dr. Fortun. The qualification of Dr. Dave cannot be discounted as
he is a medico-legal officer for the last 16 years and has conducted
6,000 autopsies. In addition, he is the Chief Medico-legal officer of
the Regional Crime Laboratory Office III and has testified in less that
3,000 cases.65 Consequently, the qualification and training of Dr.
Dave coupled with his first-hand knowledge of the evidence at hand
gives his conclusion an upper hand in this case. Further, it cannot be
overemphasized that the medico-legal reports carry the presumption
of regularity in the performance of Dr. Dave's functions and duties. 66
For said reasons, we find that the trial court correctly ruled that
Laude died due to “asphyxia by drowning”.
The Report of NCIS Agent Markley showing that “[t]he sink,

shower, and toilet appeared to be non-functioning, while a wall
faucet appeared to provide running water to fill the bucket”, 67 does
not eliminate the possibility that Laude drowned. It must be pointed
out that Agent Markley only entered Room No. 1 of Celzone Lodge
at 3:18 a.m. of 12 October 2014, several hours after the incident.68 On
the other hand, Roden Introlizo (Introlizo), a member of the Scene of
the Crime Operative (SOCO) who responded to the scene at 12:35
a.m.,69 testified that when he entered the bathroom, he found it wet
including the tiled walls. He also found Laude wet. More
significantly, Introlizo tested the shower inside the bathroom and
found it working.70 It is thus possible that when Agent Markley
arrived the main valve for the water supply was already turned-off
so as to prevent an accidental opening of the plumbing fixtures
which could muddle the evidence in the scene of the crime. At any
rate, the defense could have asked either Gallamos or Miraflor
whether or not the toilet was working, but it did not. Its failure to
65 TSN, 18 May 2015, pp. 8-10.

66 People v. Bolo, G.R. No. 217024, 15 August 2016.
67 Exhibit “AA-3”.
68 Exhibit “AA-2”.
69 TSN, 13 April 2015, p. 41.
70 TSN, 13 April 2015, pp. 47 and 69.
elicit such information leaves us with a reasonable belief that Room

No. 1 would not have been offered to Laude, Barbie and Pemberton
if it had a faulty toilet.
As to the second assigned error, Pemberton puts forward his

theory that someone else might have killed Laude after he had left
Room No. 1. He claims that the following pieces of evidence or
circumstances are consistent with this theory: (a) at the time his body
was found, Laude was clutching a necklace that does not belong to
him or to Pemberton; (b) the third DNA profile found on the neck of
Laude could belong to Laude's assailant other than himself; (c) the
missing money of Laude; (d) the change in the position of legs of
Laude; (e) and the blanket wrapped around the body of Laude.
First, the picture of Laude clutching a necklace 71 does not

prove that a third person later went to Room No. 1, struggled with
Laude and left a necklace dangling on Laude's fingers. As aptly
declared by the trial court, it is mighty implausible that Laude after
having been rendered unconscious would still able fight off this new
assailant and grab the latter's necklace. Moreover, there is no rhyme
or reason why anyone would kill Laude in his supposed unconscious
state, if the version of Pemberton is to be believed.
Even if Laude regained consciousness, as opined by Dr. Fortun,

we find it hard to believe that Laude would be dragged back to the
bathroom and be killed.
A lot of possibilities come into mind as to who is the owner of

the said jewelry, but we cannot make any hasty assumptions
considering that the defense never brought up said matter to any of
the investigators of the case who would most likely be able to explain
the existence of said necklace in the course of their testimonies.
Also it is true that said necklace was not included in the

inventory of personal belongings of Laude.72 However, in the absence
of evidence that the policemen tampered with the evidence, we have
no reason to question the presumption of regularity in the
71 Records, Vol. I, p. 86.

72 Exhibit “L-5”.
performance of their duty. Whatever happened to said jewelry is

unknown, but its absence in the inventory has nothing to do with the
death of Laude.
Second, as to the existence of a third DNA on the neck of Laude,

it must be emphasized that the USACIL DNA Report is inconclusive
as it states that “[t]he remaining profiles could not be conclusively
interpreted due to an insufficient amount of genetic data”. 73
Nonetheless, Pemberton assails the government agencies for their
failure to account for the owner of said third DNA. It is well to note
however that Pemberton was not convicted because of the existence
of his DNA in Laude's neck. Pemberton was convicted because
among others, he was the last person seen with Laude, his failure to
immediately call for medical assistance, the existence of a motive to
kill Laude and Pemberton's admission of killing Laude to Rose.
Consequently, even if the owner of the third DNA is verified and
located, it does not prove by itself that said person killed Laude
especially when confronted by the incriminating pieces of evidence
against Pemberton.
Third, the alleged absence of Laude's money also does not

prove that a third person authored Laude's death. We simply cannot
wrap our heads with the idea that someone would first kill Laude
then take the money that is obviously located outside the bathroom.
Logic dictates that the perpetrator would just get the money and
leave abruptly without the need to enter the bathroom. Similarly, like
the necklace, the absence of the money has nothing to do with the
death of Laude in the absence of any clear and concrete evidence
proving otherwise.
Fourth, the change in the position of Laude's legs is based on

the testimony of Pemberton that he left the latter only in the toilet
floor with legs stretched out. However, Laude was not left on the
floor, but his head was dunked by Pemberton inside the toilet bowl
which would explain why one leg is under his buttocks.
73 Exhibit “UUUUUU”.
Fifth, the testimony of Pemberton that he left Laude naked is

likewise self-serving. The more plausible explanation is that Laude
must have instinctively grabbed the bed sheet and wrapped it
around his waist. It must be remembered that Laude was very
conscious of his male genitalia as he earnestly tried to hide it from
Pemberton. It is thus reasonable to conclude that after the towel
around his waist fell off and even in the middle of the struggle with
Pemberton, Laude would still endeavor to reach out for the bed-
sheet to hide his private parts. This conclusion is supported by the
testimony of Gallamos who upon entering Room No. 1, immediately
saw the bed-sheet missing on the bed.74
All in all, despite Pemberton’s self-serving, exculpatory

statement limiting his involvement in the crime, all circumstances
pointed to his guilt. His third- person- killer theory faltered in the
face of the direct testimonies of eyewitnesses Gallamos and Miraflor
positively identifying him as the only person who was with Laude
before the latter's lifeless body was found.
As to the third assigned error, Pemberton assails the ruling of

the trial court that his statement to Rose, to wit: “he killed a he/she”
constitutes an admission of guilt. He argues that while this statement
can be deemed as part of the res gestae, it cannot be construed as
admissions of guilt. In the alternative, he claims that assuming that
such utterance was made, it was merely speculative. He also claims
that Rose was drunk at the time and has a habit of exaggerating
statements.
Reviewing the testimony of Rose, however, we find that the

trial court correctly ruled on this regard. During his testimony, Rose
repeatedly used the phrase “he killed a he/she”, indicating the
veracity and accuracy of said information relayed to him by
Pemberton. Further, Pemberton trusted Rose among others for it was
only in the latter that Pemberton immediately confided his dilemma.
It is thus safe to assume that Rose would not betray said trust by
74 TSN, 23 March 2015, p. 69.
exaggerating what was told to him by Pemberton. Rose testified as

follows:
“PROS. SUSUSCO
Q So what happened next after L/Cpl. Pemberton

came up to you and said he wanted to talk to you?
ROSE
A At that time we went on the front of the ship

[where] we sat down.
Q And what happened next after that?
A During that time[,] we walked on our way off the

front of the ship[;] he said he taught (sic) that he killed a
he/she/ in his words.
And once we get (sic) off to the front of the ship we begin
(sic) to talk about [it] and i kept asking what he meant
and trying him again to clarify and he repeated himself.
And I asked him if he is serious and so on and he didn't

know. He seemed concerned about it and that's why I
kept trying to get more out of it at that point[,] I
eventually got not the same answer. But eventually[,] he
said that he got to the hotel with two (2) girls, one (1) of
them left and during that point the one (1) stayed back
got undress.
He said that it had a penis and was not a female and at

that point he got angry or upset.
And choked it(sic) until [he] stop[ped] moving and then
dragged [him] into the bathroom[.] [A]t that point he left
and then took a cab back to the seaport.
Q And that was all that he told you?

A Yes.” 75
Q As far as you could recall?
A Yes.
Q Now, take us back to that moment wherein he

confided to you this matter. Do you recall what he look
like as he was telling or confiding you about as you
mentioned earlier that he taught(sic) he killed a he/she?
A He look upset or kind of...(pause) he looks very

destroyed.(underscoring supplied)
The following day, when they were already being investigated

by the NCIS, Rose reiterated that Pemberton told him that ”he killed
a he/she”. The relevant portion of Rose's testimony reads:
“PROS. SUSUSCO
Q And, you said you gave your statement to NCIS

Agent McCarver, and could you tell us what was your
statement about?
ROSE
A It was about the day party and all of the activities

that are (sic) occurred throughout the night.
Q And if you recall what else did you tell Agent

McCarver?
A Everything up to and including the conversation

that I had with Pemberton that night and the
conversation with my parents.
Q When you said conversation with Pemberton you

mean the conversation wherein he told you that he killed
a he/she?
75 TSN, 19 May 2015, pp. 31-32.

A That he taught(sic) he killed a he/she.”76

(underscoring supplied)
Verily, res gestae means the "things done". It refers to those

exclamations and statements made by either the participants, victims,
or spectators to a crime immediately before, during, or immediately
after the commission of the crime, when the circumstances are such
that the statements were made as spontaneous reaction or utterance
inspired by the excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false
statement.77
Res gestae, one of eleven (11) exceptions to the hearsay rule, is

elucidated under Section 42 of Rule 130 of the Rules on Evidence, as
thus:
“Sec. 42. Part of res gestae. – Statements made by a

person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the
res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance may be
received as part of the res gestae.”
There are then three (3) essential requisites to admit evidence

as part of the res gestae, namely: (1) that the principal act, the res
gestae, be a startling occurrence; (2) the statements were made before
the declarant had the time to contrive or devise a falsehood; and (3)
that the statements must concern the occurrence in question and its
immediate attending circumstances.78
All the above elements are present in the utterance made by

Pemberton to Rose.
76 TSN, 19 May 2015, p.42.

77 People v. Sanchez, G.R. No. 74740, 28 August 1992.
78 People v. Estibal, G.R. No. 208749, 26 November 2014.
First, Pemberton had just been through a startling occurrence

on the night of October 11, 2014 at Celzone Lodge. Second, the
utterance made by Pemberton to Rose was made spontaneously,
when Pemberton was still upset and “looks very destroyed.”Third,
Pemberton's statement directly referred to the killing of Laude.
Said statement of Pemberton does not only punch a hole in his

version of facts that he left Laude still breathing, but is evidence that
Pemberton killed Laude.
With respect to the fourth assigned error, Pemberton

maintains that he is innocent considering that Gallamos still saw
Laude alive and that it was only 30 minutes later when the Red Cross
volunteers declared Laude dead. In support, Pemberton cites the
autopsy report indicating that Laude died on October 12 and not on
October 11, 2014. Pemberton further stresses that Gallamos twice left
Room No. 1 to find Barbie and to report to the police, hence, a lot
could have happened while he was away.
We disagree. Gallamos is not a medical practitioner who could

ascertain with a reasonable degree if Laude was just unconscious or
has already passed away. His opinion that Laude just fainted should
taken as it is, a mere opinion. As testified by Marlon Benedict
Baldueza, a Red Cross volunteer, Laude was already cold when they
arrived and in a state of rigor mortis79 indicating that he has been
dead for awhile.80
Likewise, the death certificate81 of Laude indicating he died on

12 October 2014 could be explained by the fact that Laude's body was
only taken to the Regional Crime Laboratory Office 3 on 12 October
79 TSN, 14 April 2015, pp. 49 and 55.

80 Rigor mortis: Literally, the stiffness of death. The rigidity of a body after death. Rigor mortis is a good
example of a Latin term (one in this case that was coined in the 19th century) remaining intact in
contemporary medical usage (and crime writing).
Rigor mortis is due to a biochemical change in the muscles that occurs several hours after death, though
the time of its onset after death depends on the ambient temperature. The biochemical basis of rigor
mortis is hydrolysis in muscle of ATP, the energy source required for movement. Without ATP, myosin
molecules adhere to actin filaments and the muscles become rigid. -
http://www.medicinenet.com/script/main/art.asp?articlekey=40573 last accessed 24 March 2017.
81 Exhibit “R”.
201482 where Dr. Dave could officially pronounce the time and date
of Laude's death. Even the Red Cross volunteers arrived at Celzone
Lodge on 12 October 2014.83
Anent the possibility that someone might have sneaked in after

Gallamos was briefly gone, Miraflor testified that from the moment
Gallamos entered Room No. 1 until the latter went out to report the
incident to the police, he (Miraflor) never left the door of Room No.
1. The relevant portion of Miraflor's testimony is as follows:
“PROS. TALIPING
Q How about before midnight of October 11, 2014; do

you recall of any unusual incident that transpired?
A Yes, sir.
Q What was the incident, Mr. Witness?
A The American guy who left Room No. 1 and he left

the door slightly open.
Q And how do you know that the guy is an

American?
A Tall, white man.
Q And because that person is tall, white man, you

concluded that he is an American?
A Yes, sir.
Q What was he wearing when you saw him leaving

Room No. 1 of Celzone Lodge that time?
A He was wearing shortpants and t-shirt with white

and blue stripes.
82 Medico-Legal Report No. A-14-163 RCLO states that the time and date of receipt of Laude's cadaver is
121324H October 2014, Exhibit “P”.
83 Testimony of Marlon Benedict Baldueza, TSN, 14 April 2015, p. 46.
Q What did you do when you saw this American guy

leaving the Room No. 1 of Celzone Lodge and he left the
door of that room slightly open?
A I ordered Elias Gallamos to check the room.
Q Where was Elias Gallamos when this American

guy left Room No. 1?
A At the frontdesk, sir.
Q Where is this frontdesk located?
A Beside Room No. 1.
Q How about you; where were you when this

American guy left Room No. 1?
A I am sitting infront of Room No. 1, sir.
Q What was the response of Elias Gallamos when

you instructed him to check Room No. 1?
A Elias Gallamos checked the room, sir.
Q How did Elias Gallamos check the room?
A He knocked [on] the door and he uttered, “May

tao ba d'yan? Okay ka ba dyan?”
Q When Gallamos knocked at the room and aksed if

there was somebody there inside, where were you?
A In front of the room.
Q What happened next after Elias Gallamos knocked

at the room and asked if somebody was there?
A Nobody answered, sir.

Q What did you do when nobody answered the

knock of Elias Gallamos?
A I told Elias Gallamos to give few minutes more to

go out.
Q For how many minutes did you wait, Mr. Witness?
A More or less fifteen (15) minutes, sir.
Q After fifteen minutes, what happened next?
A He checked again the room, he called up and

uttered, “Are you okay?”
Q Then after Elias Gallamos checked the room for the

second time, what happened next?
A Still, nobody answered.
Q And what did you do at the second time around

when Elias Gallamos checked the room for the second
time and nobody answered?
A I ordered Elias Gallamos to enter the room and see

what happened, sir.
Q Did he follow your instruction?
A Yes, sir.
Q What did he do?
A He entered the room, sir.
Q Where were you when Elias Gallamos was inside

the room?
A I'm outside the room. In front.

Q For how many minutes did Elias Gallamos stay[ed]

at the room?
A I don't know. Maybe few minutes. Elias Gallamos

told that the guest inside ---
PAUSED – Witness was directed to give his answer

louder and clearer.
Q My question, Mr. Witness is; how many minutes or

seconds did Elias Gallamos stay[ed] at the room when he
checked the same for the second time?
A More or less five minutes, sir.
Q And after five minutes, what happened next?
A He reported to me that the guest inside the room

was lying down the floor in the CR.
Q When you learned that from Mr. Elias Gallamos,

what did you do?
A I asked Elias Gallamos to go to the police station to

report the incident, sir.
Q Did Elias Gallamos comply with your instructions,

Mr. Witness?
A Yes sir.
Q Mr. Witness, where is the nearest police station to

Celzone Lodge?
A Along Magsaysay Drive, sir.
Q How far is this police station from Celzone Lodge,

if you know?
A More or less 500 meters, sir.

Q Mr. Witness, while Elias Gallamos was away, what

did you do?
A I just stayed outside the room and made sure that

nobody entered.
Q What did you do there?
Court Already answered
A I just stayed outside, sir.
Q For how long did you stay outside before the

police officers arrived?
A More or less fifteen minutes, sir.
Q After fifteen minutes, what happened?
A The police entered the room and they did their

jobs.
Q Where were you when the police officers were

inside the room?
A I just stayed outside, sir.
Q What room is this, Mr. Witness?
A Room No. 1.”84 (underscoring supplied)
Accordingly, the identification of a malefactor, to be positive

and sufficient for conviction, does not always require direct evidence
from an eyewitness; otherwise, no conviction will be possible in
crimes where there are no eyewitnesses. Indeed, trustworthy
circumstantial evidence can equally confirm the identification and
overcome the constitutionally presumed innocence of the accused.
Thus, the Supreme Court has distinguished two types of positive
84 TSN. 13 April 2015, pp. 13-18.
identification in People v. Gallarde, to wit: (a) that by direct evidence,

through an eyewitness to the very commission of the act; and (b) that
by circumstantial evidence, such as where the accused is last seen
with the victim immediately before or after the crime.85
In his vain attempt to push for the third-person-killer theory,

Pemberton keeps on tainting the credibility of Miraflor and Gallamos.
For one, Pemberton raised the issue that Gallamos failed to identify
him in a photo line-up during the investigation of the case. However,
the identification of Pemberton is not an issue as he himself admitted
that he was in Celzone Lodge that fateful night and that he left Room
No.1 before midnight. Pemberton does not also deny that Gallamos
was the person who was in the receiving area and the person who
gave them Room No. 1. Further, Gallamos explained his failure to
identify Pemberton in the photo line-up was because Pemberton's
face in the picture is a little larger and darker and that he is sporting a
marine cut.86 At any rate, Gallamos positively identified Pemberton
inside the court room as the person who checked-in with Barbie and
Laude at Room No. 1 on 11 October 2014.87 In People v. Jalosjos,88 it was
ruled that the failure of the victim to identify the accused-appellant
out of the pictures shown to her does not foreclose the credibility of
an unqualified identification of accused-appellant in open court.
As to Miraflor, Pemberton accuses him of lying and fabricating

his Daily Time Record as it is impossible for someone to have
worked at exactly 9:00 p.m. and went home at exactly 9:00 a.m. the
next day for the whole month of October 2014. Moreover, Pemberton
stresses that Miraflor was never mentioned by Gallamos in any of
statements before the Police and the NCIS.
The arguments of Pemberton are specious. Certainly, as a

military personnel, Pemberton is aware of the significance of being
punctual. Similarly, as a security officer, Miraflor is mandated to
come in and to leave on the dot. Presumably, Miraflor's alternate is
85 People v. Pondivida, G.R. No. 188969, 27 February 2013 citing People v. Caliso, G.R. No. 183830, 19
October 2011.
86 TSN, 23 March 2015, p. 141.
87 TSN, 23 March 2015, pp. 97-99.
88 G.R. No. 132875-76, 16 November 2001.
also expected to come in exactly at 9:00 a.m. the following day which
would explain the identical entries in the Daily Time Records.
As to the absence of Miraflor in Gallamos' statements, the same

was explained by Gallamos by stating that at the time of the
investigation, he did not know that such detail was important and
that he only answered the questions being propounded to him.89
Verily, one thing which bolsters the prosecution witnesses

credibility is the fact that they had no motive to prevaricate against
Pemberton. They were not actuated by improper motive to fabricate
the facts and to foist a very serious offense against Pemberton. Where
there is no evidence, as in this case, to indicate that the prosecution
witnesses were actuated by improper motive, the presumption is that
they were not so actuated and that their testimonies are entitled to
full faith and credit.90
Ultimately, we rely to the well-entrenched doctrine that the

assessment of the credibility of witnesses lies within the province
and competence of trial courts. This doctrine is based on the time-
honored rule that the matter of assigning values to declarations on
the witness stand is best and most competently performed by the
trial judge who, unlike appellate magistrates, can weigh the
testimony in the light of the declarant’s demeanor, conduct and
attitude at the trial and is thereby placed in a more competent
position to discriminate between truth and falsehood. 91 The findings
of the trial court on such matters then are binding and conclusive on
the appellate court unless some facts or circumstances of weight and
substance have been overlooked, misapprehended or misinterpreted,
which are not true in the present case.92
With respect to the sixth assigned error, Pemberton maintains

that the mitigating circumstance of voluntary surrender should have
been appreciated in his favor considering that he was detained in
89 TSN, 23 March 2015, pp. 138-139.
90 See Vidar v. People of the Philippines, G.R. No. 177361, 1 February 2010,
91 People v. Soriano, G.R. No. 171085, 17 March 2009.
92 Sumbillo v. People, G.R. No. 167464, 21 January 2010.
Camp Aguinaldo as early as 15 December 2014 or before his warrant

of arrest was issued on 16 December 2014. Moreover, Pemberton
claims the mitigating circumstance of no intention to commit so
grave a wrong as he left Laude still breathing.
First, for the mitigating circumstance of voluntary surrender to

apply, the following requisites must concur: (1) the offender had not
been actually arrested; (2) the offender surrendered himself to a
person in authority or to the latter’s agent; (3) the surrender was
voluntary; and (4) there is no pending warrant of arrest or
information filed.93 Here, the Information against Pemberton was
filed by the Olongapo City Prosecutor's Office on 15 December 2014,
four (4) days before Pemberton presented himself to the trial court.
Perfunctorily, this mitigating circumstance cannot be appreciated in
Pemberton's favor.
Second, the physical evidence on hand contradicts Pemberton's

assertion that he had no intention to commit so grave a wrong. As
proven by the prosecution, Pemberton did not leave Laude merely
unconscious, but ensured his death by submerging his head inside
the toilet bowl. Clearly, Pemberton intended the natural consequence
of his wrongful act.
Anent the last assigned error, Pemberton contests the award of

loss of earning capacity and exemplary damages for want of bases.
We find such objection without merit. Under Article 2206(1) of

the Civil Code, the heirs of the victim are entitled to indemnity for
loss of earning capacity.94 Compensation of this nature is awarded
not for loss of earnings, but for loss of capacity to earn.95 To
illustrate, in Sps. Perena v. Sps. Zarate,96 the indemnification for loss of
93 People v. Cagas, G.R. No. 145504, 30 June 2004.
94 Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed
and awarded by the court, unless the deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the time of his death;
95 People v. Villar, G.R. No. 202708, 13 April 2015.
96 G.R. No. 157917, 29 August 2012.
earning capacity was affirmed in favor of a high school student who

was not of working age. In Cariaga v. Laguna Tayabas Bus Company
and Manila Railroad Company,97 fourth-year medical student Edgardo
Cariaga’s earning capacity, although he survived the accident but his
injuries rendered him permanently incapacitated, was computed to
be that of the physician that he dreamed to become. The Supreme
Court considered his scholastic record sufficient to justify the
assumption that he could have finished the medical course and
would have passed the medical board examinations in due time, and
that he could have possibly earned a modest income as a medical
practitioner.
In this case, Cabilan, mother of Laude, testified that the latter

was earning at least P5,000.00 per week as a beautician. 98 As such, it
would not be unreasonable to peg Laude's earnings at around
P20,000.00 per month and would continue or would have the
capacity to earn the same amount if not for his untimely death.
The absence of any documentary evidence as to the income of

Laude is remedied by the testimony of Cabilan in view of the ruling
in People v. Garcia,99 where indemnity for loss of earning capacity
was awarded even only on the basis of the testimony of the surviving
spouse. Due to the aforementioned disquisition, we uphold the
award of P4,320,000.00 to the heirs of Laude for loss of earning
capacity.
With respect to exemplary damages, being corrective in nature,

it can be awarded, not only in the presence of an aggravating
circumstance, but also where the circumstances of the case show the
highly reprehensible or outrageous conduct of the offender. 100 We
find such circumstance present in this case, as Pemberton
unabashedly plunged Laude's head in the toilet for the puerile
reason that Laude pretended to be a woman. To our mind, placing
Laude's head inside a toilet shows that Pemberton never thought of
97 G.R. No. L-11037, 29 December 1960.
98 TSN, 28 April 2015, p. 17.
99 G.R. No. 135666, 20 July 2001.
100 People v. Dalisay, G.R. No. 188106, 25 November 2009.
Laude as a human being, but as fecal matter due to his sexual

orientation. To deter other persons from committing similar offense
in the future and to respect Filipino citizens regardless of their sexual
orientation, the award of exemplary damage in the amount of
P30,000.00 is justified.
Meanwhile, the trial court fixed the civil indemnity and moral
damages to P50,000.00 each. It is held that civil indemnity is
mandatory and granted to the heirs of the victims without need of
proof other than the commission of the crime. Likewise, moral
damages are also mandatory in cases of murder and homicide,
without need of allegation and proof other than the death of the
victim.101 However, there is a need to modify the amounts awarded.
Based on recent jurisprudence, civil indemnity and moral damages in
cases involving homicide are set at P75,000.00 each102 for which we
adopt the same in the case at bar.
With respect to actual damages, there is no quibbling that the

heirs of Laude were able to prove through actual receipts the
P155,250.00 worth of damages representing autopsy, wake and burial
expenses.103 There is thus no reason to disturb the said award.
Further, it is only apt that all awards for damages shall bear
legal interest at the rate of six percent ( 6%) per annum from the date
of finality of judgment until fully paid.104
As to the penalty imposed, the trial court correctly ruled in its

assailed Order that Pemberton should be sentenced to suffer the
indeterminate sentence of six (6) years of prision correccional as
minimum and ten (10) years of prision mayor as maximum in light of
the two (2) mitigating circumstances which effectively reduced the
penalty prescribed by Article 249 of the RPC (reclusion temporal), by
one (1) degree.105
101 People v. Osianas, G.R. No. 182548, 30 September 2008.
102 Ladines v. People, G.R. No. 167333, 11 January 2016.
103 Exhibits “LLLLLL” to “LLLLLL-3”
105 Article 64 (5) of the Revised Penal Code - Article 64. Rules for the application of penalties which
contain three periods. - In cases in which the penalties prescribed by law contain three periods, whether
it be a single divisible penalty or composed of three different penalties, each one of which forms a
Lastly, as to the issue of preventive imprisonment, we are in

accord with the trial court that Pemberton's time at JUSMAG
Compound, Camp Aguinaldo should be credited in the service of his
penalty. Regardless of the place of his detention, it was still the
Philippine Authority which detained Pemberton pursuant to
Paragraph 10, Article V of the Visiting Forces Agreement, thus:
“Article V: Criminal Jurisdiction

1.xxx.
10 .The confinement or detention by Philippine

authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippine and United States
authorities. United States personnel serving sentences in the
Philippines shall have the right to visits and material
assistance.” (underscoring supplied)
Consequently, the argument that Pemberton was not under

local custody during trial has no leg to stand on. Further, Pemberton
is entitled to be credited with the full time of his preventive
imprisonment under the first paragraph of Article 29 of the Revised
Penal Code106 and not under the second paragraph, which prescribes
period in accordance with the provisions of Articles 76 and 77, the court shall observe for the
application of the penalty the following rules, according to whether there are or are not mitigating or
aggravating circumstances:
1. xxx.
5. When there are two or more mitigating circumstances and no aggravating circumstances are present,
the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem
applicable, according to the number and nature of such circumstances.
106 ART. 29. Period of preventive imprisonment deducted from term of imprisonment. – Offenders or
accused who have undergone preventive imprisonment shall be credited in the service of their sentence
consisting of deprivation of liberty, with the full time during which they have undergone preventive
imprisonment if the detention prisoner agrees voluntarily in writing after being informed of the effects
thereof and with the assistance of counsel to abide by the same disciplinary rules imposed upon
convicted prisoners, except in the following cases:
1. When they are recidivists, or have been convicted previously twice or more times of any crime; and
2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in the service
the four-fifths (4/5) credit, since there is no evidence that he did not
agree to abide by the same disciplinary rules imposed upon
convicted prisoners.107
WHEREFORE, premises considered, the instant Appeal is

DENIED for lack of merit and the assailed 18 November 2015
Decision and the 29 March 2016 Order of the Regional Trial Court of
Olongapo City, Branch 74 are hereby AFFIRMED with
MODIFICATIONS in that accused-appellant L/Cpl Joseph Scott
Pemberton is ordered to pay the heirs of Jeffrey Laude y Serdoncillo
the amount of P75,000.00 as civil indemnity and P75,000.00 as moral
damages.
Further, Pemberton shall pay interest at the rate of six percent

(6%) per annum on all the civil liability from the finality of this
Decision until fully paid.
SO ORDERED.
MARLENE B. GONZALES-SISON
Associate Justice
of his sentence with four-fifths of the time during which he has undergone preventive imprisonment.
Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty
(30) years.
Whenever an accused has undergone preventive imprisonment for a period equal to the possible
maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet
terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or
the proceeding on appeal, if the same is under review. Computation of preventive imprisonment for
purposes of immediate release under this paragraph shall be the actual period of detention with good
conduct time allowance: Provided, however, That if the accused is absent without justifiable cause at
any stage of the trial, the court may motu proprio order the rearrest of the accused: Provided, finally,
That recidivists, habitual delinquents, escapees and persons charged with heinous crimes are excluded
from the coverage of this Act. In case the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after thirty (30) days of preventive imprisonment.
107 See People v. Race, Jr., G.R. No. 93143, 4 August 1992.
WE CONCUR:
RAMON A. CRUZ HENRI JEAN PAUL B. INTING

Associate Justice Associate Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is

hereby certified that the conclusions in the above decision were
reached in consultation before the case was assigned to the writer of
the opinion of the Court.
MARLENE B. GONZALES-SISON
Associate Justice
Chairperson, Special Sixteenth Division

Decision: Republic of The Philippines Court of Appeals Manila Special Sixteenth (16) Division

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Decision: Republic of The Philippines Court of Appeals Manila Special Sixteenth (16) Division

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Republic of the Philippines

SPECIAL SIXTEENTH (16th) DIVISION

PEOPLE OF THE CA-G.R. CR NO. 38620

-versus- GONZALES-SISON, M.,

Before the Court is the appeal1 of the Decision2 of the Regional

The facts of the case, are as follows:

On 15 December 2014, Pemberton, a member of the United

“That on or about the eleventh (11th) day of October 2014, in

“Head and Neck:

1. Scalp hematoma, frontal region,1x1cm, 3 cm right of anterior

Chest and Abdomen:

13. Grossly unremarkable esophagus and trachea;

22. Contusion on the right palm, 0.8x0.5cm;

and with cruelty by deliberately and inhuman[e]ly augmenting the

All contrary to law, and with the qualifying circumstances of

On 16 December 2014, the trial court issued a warrant of arrest

4 Records, Vol. I, pp. 1-2.

When arraigned, Pemberton, assisted by his counsel, refused to

1.The identity of the accused as the same person charged and

2. The lifeless body of the victim was found at Room No. 1

3. Celzone Lodge and Ambyanz Night Life are both located

4. On 11 October 2014, accused L/Cpl Joseph Scott Pemberton

5. On 11 October 2014, accused L/Cpl Joseph Scott Pemberton

6. An ocular inspection was conducted by the panel of

8. The U.S. NCIS submitted a report of their investigation,

9. The Report consists of three (3) Volumes;

10. Accused L/Cpl Joseph Scott Pemberton was 19 years old

11. Victim Jeffrey Laude was 26 years old on 11 October 2014;

6 Order dated 23 February 2015, Records, Vol. I, pp. 494-495.

12. The victim Jeffrey Laude y Serdoncillo is a Male based on

After termination of pre-trial by agreement of the parties, trial

Case for the Prosecution

To prove its case, the prosecution presented the following

Testimony of Elias Gallamos y Arana:

Elias A. Gallamos (Gallamos) worked as a front desk attendant

After a few minutes, Gallamos heard someone walking from

7 Records, Vol. I, pp. 557-558.

After several minutes, Gallamos returned to Room No. 1.

Inside the court room, Gallamos identified Pemberton as the

Testimony of Mark Clarence Gelviro y Caguioa alias Barbie:

Barbie testified that at around 9:00 p.m. of 11 October 2014, he

Moments later, he and Laude transferred to the table located

9 TSN, March 23, 2015, pp. 62-67.

Upon arrival at Celzone Lodge, Laude paid at the counter for a

On 13 October 2014 at Police Station 3 of the Olongapo City

14 TSN, 24 March 2015, pp. 10-14.

Testimony of Jacinto Miraflor:

Jacinto Miraflor (Miraflor) testified that he has been an

When Gallamos went to the police station to report the

Testimony of L/Cpl Jairn Michael Rose:

L/Cpl Jairn Michael Rose (Rose) a member of the US Marine

they headed to a massage parlor along Magsaysay Drive. Next, they

Rose, Pulido and Dahl returned to HSV Westpac Express at

Rose further testified that around 12:30-1:00 a.m., Pemberton

23 TSN, 19 May 2015, pp. 13-21.

Testimony of Cpl Christopher Miller:

Cpl Miller, the Non-Commissioned Officer-In-Charge over

Sometime in the night, Miller was awakened by Rose telling

26 TSN, 19 May 2015, pp. 30-33.

Testimony of Dr. Reynaldo Dave(PNP):

Dr. Reynaldo Dave (Dr. Dave), the medico-legal officer who

To verify his conclusion, Dr. Dave sent lung tissue samples to