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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 This explanation in according the trial court’s findings with finality finds no application in this instant case because the Judge who penned the decision was not the same Judge who was able to observe the demeanor of this particular eyewitness when the testimony was presented in court. In such a case where the observations of the trial judge as to the demeanor of a witness was not considered in arriving at the conclusions about the credibility of the witness, there is no other way of testing the credibility of such witness save by scrutinizing the contents of his testimony. We have shown, through a careful scrutiny of Freddie Alejo’s testimony, that the trial court’s findings on his credibility are arbitrary in that it relied heavily on the testimony even if there were contradictions and omissions that were never explained. We have also shown facts and circumstances of weight and influence that might have been overlooked (like the glaring discrepancy in the description of the suspects with the physical appearance of Lenido Lumanog), misunderstood (like the actual number of suspects that witness saw at the crime scene, also discussed as a separate assignment of error), or misapplied (like the concept of positive identification having been misapplied to the identification made by the witness in open court, which we assail as not a clear and positive identification at all) by the trial judge. Add to this the bias that resulted from receiving housing accommodations and probably other benefits from the victim’s family which the trial court failed to consider in assessing the credibility of Freddie Alejo. All of these, when considered, will surely affect the result of the case warranting the setting aside of the trial court’s findings as to the credibility of witness Freddie Alejo. III. THE TRIAL COURT ERRED IN APPRECIATING ALEJO'S EARLY SWORN STATEMENT TO MEAN THAT THERE WERE FIVE, NOT FOUR, SUSPECTS HE SAW PERPETRATE THE CRIME. Page 56 of 127 56
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 While we have already touched upon the discrepancy in the number of suspects in assailing Freddie Alejo’s credibility, the trial court’s erroneous appreciation of the statement made by the witness calls for a separate assignment of error as it is an independent and separate error altogether that goes to the trial court’s misappreciation of evidence that is totally different from the result it produced - eroding the credibility of the witness. The trial court erroneously appreciated the sworn statement of Freddie Alejo when it declared “that he saw four (4) men armed with handguns shoot at a car while he was on guard duty at No. 211 Katipunan Avenue, Blue Ridge, Q.C. and that one (1) other male person poked his gun near where he was stationed, asked him to come down and ordered that no one must interfere.” (Joint Decision, page 24) This erroneous appreciation results to an increase in the number of suspects from four to five. It is very clear from the sworn statement of Freddie Alejo that he only saw four men who were involved in the shooting. 12. T – Sino naman ang bumaril sa biktima na ito, kung kilala mo? […] S – Apat na hindi kilalang lalaki sir na armado ng baril. 16. T – Ano ang sumunod na nangyari, kung mayroon? S – Isa sa suspect na nasa tapat ko ay tinutukan ako ng kanyang baril at sinigawan ako ng “BABA!” Pinapababa niya ako sa guardhouse. 17. T – Ano ang ginawa mo, kung mayroon noong utusan ka na bumaba? S – Dahil sa nerbiyos ko ay hindi ako nakagalaw. Dito ay sumigaw uli ang suspect ng “Baba. Walang makikialam.” At sa takot ko ay dumapa ako sa guardhouse. (Exhibit “L-1”) When the affiant declared “Isa sa suspect na nasa tapat ko…” he was obviously referring to one of the “Apat na hindi kilalang lalaki,” otherwise, he would have declared that there were more than four men who were involved in the killing of the victim. In Page 57 of 127 57
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