CA junks Pemberton plea for lack of merit

From the Philippine News Agency (Apr 10): CA junks Pemberton plea for lack of merit

The Court of Appeals (CA) dismissed the plea filed by United States Marine Lance Cpl. Joseph Scott Pemberton, who was tagged in the killing of a transgender woman in Olongapo City in October 2014, for lack of merit.

In a 48-page decision dated April 3, 2017 but was released to media on Monday, penned by Associate Justice Marlenez Gonzales-Sison and concurred in by Associate Justices Ramon Cruz and Henri Jean Paul Inting, the CA’s 16 Division affirmed the ruling of Olongapo City Regional Trial Court Branch 74 which found Pemberton guilty of homicide and sentenced him to a maximum of 10 years of imprisonment as ordering him to indemnify the heirs of his victim Jeffrey “Jennifer” Laude, a Filipino transgender, on October 11, 2014.

Pemberton has been meted a penalty of up to 10 years imprisonment after he was convicted of homicide. He was also ordered to pay PHP4.3 million for loss of earning capacity, PHP30,000 exemplary damages, PHP50,000 each for civil indemnity and moral damages.

The CA said for an unlawful aggression to exist, there has to be an actual physical assault or at least a threat to inflict real imminent injury.

On Pemberton's claim that Laude fought like a man, slapped him that made his ear ring, the CA noted that a general physical examination conducted on Pemberton showed no sign of injury on his head and face.

The CA said there was no physical evidence that would suggest that Pemberton was first slapped by Laude or that he was in grave danger that prompted him defend himself.

“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. Self-defense, like alibi, is a defense which can easily be concocted as it is in this case,” the CA ruled.

Likewise, the Court did not give weight to Pemberton’s plea that his voluntary surrender should have been appreciated in his favor as mitigating circumstance considering that he was detained in Camp Aguinaldo as early as December 2014 or before his warrant of arrest was issued on December 16, 2014 and that there was no intention on his part to commit such a crime.

The appellate court noted that the case was filed against Pemberton on December 15, 2014 or four days before Pemberton presented himself to the trial court.

It added that physical evidence also contradicts Pemberton’s claim that he had no intention to commit so grave 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,” it pointed out.

The CA also upheld the award of loss of earning capacity to the heirs of Laude in the amount of PHP4.32 million as well as exemplary damages of P30,000.

The CA, meanwhile increased the PHP100,000 (PHP50,000 each ) civil indemnity and moral damages to PHP150,000 (PHP75,000 each) because recent jurisprudence showed that the amount imposed should be the latter.

On the other hand, the actual damages of PHP155,250.00 was affirmed after Laude's family was able to produce receipts of expenses incurred for the autopsy, wake and burial.

The CA further said that Pemberton shall pay 6 percent interest per annum on all civil liability from the finality of the decision until fully paid.

“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,” the CA said.

The CA also agreed with the trial court that Pemberton’s time at JUSMAG compound in Camp Aguinaldo should be credited in the service of his penalty.

“Consequently, the argument that Pemberton was not under local custody during the trial has no leg to stand on. Further, Pemberton is entitled to be credited with the full time of his preventive imprisonment…,” the CA ruled.

Meanwhile, Deputy Minority Leader Harry Roque welcomes the CA affirmation of the guilty verdict of Pemberton.

“The Court of Appeals’ affirmation of the guilty verdict of Pemberton is a welcome development. The fact that a member of the US Marines was found guilty for breach of our criminal laws for the very first time is an affirmation of Philippine sovereignty,” Roque said in a statement, who represents the Laude family as a private prosecutor.

Roque added that the Laude family is alarmed that unless the President intervenes, Pemberton could be set free as early as July this year with allowance for good conduct and his alleged enrollment in a distance learning program.

”An incarceration of only three years for the death of a Filipino trivializes the death of our sovereignty,” he noted.

For her part, Atty. Virginia LAcsa Suarez, Laude family legal counsel said that justice for Jennifer Laude has just been served again by the Court of Appeals.

"This is also a victory for the Filipino people because it was a fight for sovereignty... a battle for independence from the unequal treaty relations and lopsided security agreements like the VFA.
I must say that this is an expected victory as the defense has not offered any new argument. Pemberton’s arguments are all rehashed,” she said in a statement. 


”The Court of Appeals is a Trier of facts. Thus, sustaining the findings of facts of the Regional Trial Court means even the Supreme Court will have to respect it with finality. Filing of Motion for Reconsideration is only seen as availment of a legal remedy to simply make the case remain pending and further delay the execution of the civil aspect,” Suarez added.

Pemberton is the second US soldier to be involved in a criminal act in the country since 2005, when Lance Corporal Daniel Smith was charged and later on convicted for the rape of a Filipino woman.

Last December 4, 2006, Makati Regional Trial Court (RTC) branch 139 Judge Benjamin Pozon convicted Smith and sentenced him to 40 years in prison for sexually assaulting the complainant at the former US naval base in Subic Bay, Zambales last November 1, 2005.

http://www.pna.gov.ph/index.php?idn=1&sid=&nid=1&rid=979208