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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 directly to recall and communicate accurately affecting his credibility as a witness whose testimony cannot be relied upon because his narration of his observations do not capture the facts he has observed. Freddie Alejo described the suspect who pointed a gun at him in this manner: “Iyong tumutok sa aking ay naka-asul na t-shirt, edad 30-35, 5’5”-5’6” ang taas, katamtaman ang katawan, maikli ang buhok, kayumanggi.” Since the witness was only able to give a description of one suspect who pointed a gun at him and yet in open court he testified that there were two suspects who separately pointed a gun at him, it is not clear as to whom among the two accused he pointed in court as those who pointed a gun at him would this description be used as a basis. If this would be used as a basis in tying up the appearance of Lorenzo delos Santos, then it would already be an utter mistake as Lorenzo was in fact acquitted by the trial court. If this would be used for Joel de Jesus, on the other hand, the same would also not tie up with the physical appearance of Joel de Jesus who was just 22 years old then and not 30-35 and who stands 5’9” and not 5’5”- 5’6” as the witness had described. Considering that the Judge who penned the decision in this instant case was not the Judge who observed the testimony of Freddie Alejo when he identified the accused in open court, there could have been no possibility that the level of certainty demonstrated by the witness at the identification was ever considered in coming up with the decision. Clearly then, none of the accused who have been handed down the death penalty by the trial court was positively identified by witness Freddie Alejo applying the totality of circumstances test that this Court has devised. The death sentence hanging over the heads of the five accused-appellants in this case and the big possibility that the actual killers of the late Col. Rolando Abadilla are still roaming freely necessitate revisiting what this Court has said in People vs. Arapok. “Once again we stress that the correct identification of the author of a crime should be the primal concern of criminal prosecution in any civilized legal system. Corollary to this is the actuality of the commission of the offense with the participation of the accused. All these must be proved by the State beyond Page 46 of 127 46
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 reasonable doubt on the strength of its evidence and without solace from the weakness of the defense. Thus, even if the defense of the accused may be weak, the same is inconsequential if, in the first place, the prosecution failed to discharge the onus on his identity and culpability. The presumption of innocence dictates that it is for the people to demonstrate guilt and not for the accused to establish innocence.” (People vs. Arapok, G.R. No. 134974, December 8, 2000). Thus far, we have shown that the prosecution failed miserably in establishing that the accused-appellants are the same persons as those seen by the witness at the crime scene. We shall endeavor to show that the prosecution has likewise been unable to establish their culpability. But at this juncture, it is well to point out that the question asked of Freddie Alejo when he was made to identify Joel de Jesus and Lorenzo delos Santos was: “Sa mga taong naririto ngayon sa loob ng upisinang ito, may makikilala ka ba sa kanila?” Such line of questioning does not even establish any connection between the identity of the persons identified with the commission of a crime. D. The testimony of the witness in open court reveals incredible details that are contrary to human experience. The witness did not see the assailants for a long time. If ever he saw them, it was only for a brief moment – “less than a minute,” in the words of the witness himself. If ever he would be able to recall who were in the vicinity during that time, it would be the two men whom the witness saw walking to and fro near his guardhouse. One of these men, Lorenzo delos Santos, was acquitted after convincing the lower court that he was not at the crime scene when the incident happened. This point alone already casts a doubt as to the credibility of the lone eyewitness prepresented in court. This witness testified that he saw Lorenzo delos Santos and in fact, was emphatic in saying that he pointed a gun at him. But accused Lorenzo delos Santos was able to prove and in fact, convinced the court that he was not at the crime scene. If this witness’ recollection and memory of the person whom he alleged to have been walking to and fro in front of the guardhouse where he was posted in the morning of July Page 47 of 127 47
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