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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 – 5’6”, maiksi din ang baril niya at naka-puting polo. Iyong iba ay maaaring makilala ko kung makikita ko uli. 22. T – Ang sabi mo, pagbangon mo sa pagkakadapa sa guardhouse ay wala na ang mga suspect, may napansin ka bang sasakyan sa pagtakas nila matapos mabaril ang biktima? S – Mabilis nga sir ang pangyayari. Wala na sila noong bangon ko na iyon. Wala din akong napansin kung may sasakyan man sila sa pagtakas.” (Exhibit “L”, “L-1”, “L- 2”) Scrutinizing his sworn statement, there was no mention whatsoever of two other men walking to and fro in front of his guardhouse. However, in open court, his testimony is filled with vivid details about the two men walking to and fro in front of the guardhouse before the incident. He also attributed the pointing of the guns to him to these two men whom he allegedly saw walking to and fro in front of his guardhouse for more than an hour prior to the shooting incident. (TSN, Testimony of Freddie Alejo, August 20, 1996, pp. 15, 28, 39, 40-41, 45-46, August 21, 1996, pp. 19, 20, 23-25, 74-82) In his sworn statement, the witness was very categorical when he declared that he saw four men during the shooting incident. When asked on that same day of the incident, “Sino naman ang bumaril sa biktima na ito kung kilala mo?” he readily answered, “Apat na hindi kilalang lalaki sir na armado ng baril.” He only mentioned four suspects. And continuing with his narration when asked (Question 16) “Ano pa ang sumunod na nangyari kung mayroon?” his answer was: “Isa sa suspect na nasa tapat ko ay tinutukan ako ng kanyang baril at sinigawan ako ng “BABA” Pinabababa niya ako sa guardhouse.” When he qualified his statement with the phrase “Isa sa suspect na nasa tapat ko” he could not have been referring to another person other than the “apat na hindi kilalang lalaki” he earlier referred to. Otherwise, if this person who pointed a gun at him were not among the four men, he would not have categorically declared that there were four men who perpetrated the shooting. And when asked, “Ano ang ginawa mo, kung mayroon nuong (sic) utusan ka na bumaba?” he answered, “Dahil sa nerbiyos ko ay hindi ako nakagalaw. Dito ay sumigaw Page 36 of 127 36
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 uli ang suspect ng “BABA! … Walang makikialam.” … at sa takot ko ay dumapa ako sa guardhouse.” The phrase “sumigaw uli ang suspect,” in the answer to question # 17 means that the same person who earlier shouted at him shouted again when he did not heed the command the first time it was given. When taken together with the phrase “Isa sa suspect na nasa tapat ko ay tinutukan ako ng kanyang baril at sinigawan ako” in the answer to question # 16 the phrase “sumigaw uli ang suspect” proves that the witness was referring to one and the same person who shouted “BABA!” for the first time and who repeated the same command “BABA!” and added “Walang makikialam,” when he did not come down from the guardhouse. Since the witness even qualified that the person who shouted at him was “isa sa suspect,” he could not have been referring to another person other than the four suspects whom he saw around the victim’s car. Otherwise, if the suspect who pointed a gun at him was not among the four he saw around the victim’s car, he would have easily concluded that there were five persons who perpetrated the act. But just five hours after the shooting incident, this witness freely and spontaneously narrated to the investigating officer that he saw four men shoot at the victim. It is also clear in his salaysay that when one of the suspects pointed a gun at him, he was nervous and could not move. In his own words, “Dahil sa nerbiyos ko ay hindi ako nakagalaw.” During his cross examination, however, the witness declared, “When only one suspect was pointing a gun at me, I wasn’t scared yet but when there were already two suspects pointing a gun at me, I went down because they might actually shoot me.” (TSN, September 4, 1996, p. 22) These discrepancies in the contents of the witness’ affidavit and his testimony in open court are important and substantial. Increasing the number of suspects from four to six significantly contradicts a material point that the witness stated in his affidavit. Page 37 of 127 37
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