Page 1 of 18 DUPLICATE COPY Republic of the Philippines COURT OF APPEALS Cagayan de Oro City

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, -versusRANNY BOY JUHAN y ELANG, (appellant) & ONE (1) UNIDENTIFIED COMPANION, Accused-Appellant/s

CA-G.R. CR No. 00836 Regional Trial Court: Branch 12, Zamboanga City RTC No. 21545 RE: SIMPLE ROBBERY

ACCUSED-APPELLANTS APPEAL BRIEF

Submitted by: ATTY. GIAN PAOLO U. ENRIQUEZ Counsel for Accused-Appellant Enriquez Capin and Gaugano Law Offices 2nd Floor, LDM Building, Pilar Street Zamboanga City, Philippines

Page 2 of 18 DUPLICATE COPY SUBJECT INDEX

Page No. 3 4 5 5 8 8 17

Contents Prefatory Statement Decision Appealed Statement of the Case Statement of Facts Assignment of Errors Discussion Prayer

Cases cited:

Cage v. Louisiana, 498 U.S. 39 (1990). (p. 15) People v. Baulite, G.R. No. 137599, October 8, 2001, p. 6 (p. 9) People v. Sinco , 408 Phil. 1, 13 (2001) (p. 8) People v Teehankee G.R. Nos. 111206-08 October 6, 1995 (p. 9) People of the Philippines vs Anacleto Furugganan, G.R. No. Nos. 90191-96, January 28, 1991, citing People v. Nazareno, 80 SCRA 484 [1977]; People v. Go Bio, Jr., 142 SCRA 238 [1986]; People v. Rojo, 175 SCRA 119 [1989]): (p. 17) People of the Philippines vs Gilbert Baulite and Liberato Baulite, G.R. No. 137599, October 8, 2001, citing People v. Parel, 330 Phil. 453, 471 (1991); People v. Salangga, 234 SCRA 407 (1994), Pecho v. People, 331 Phil. 1, 19 (1999) and People v. Valeriano, 226 SCRA 694 (1993), citing People v. Pido, 200 SCRA 45 (1991)]. (p. 16) People v. Nazareno, 80 SCRA 484 [1977]; People v. Go Bio, Jr., 142 SCRA 238 [1986]; People v. Rojo, 175 SCRA 119 [1989]) (p. 17) Pp vs. Subingsubing, 223 SCRA 168, 1993. (p. 16) R v Lifchus [(1997) 3 SCR 320. (p. 15) Simmons v. United States,390 U. S. 377, 390 U. S. 384, 390 U. S. 386 n. 6 (1968). as reiterated in United States v. Ash, 413 U.S. 300 (1973).(P. 11) United States v Ash, 413 U.S. 300 1973 (p. 4) United States v. Ash, 413 U.S. 300 (1973) Supra (P. 11) United States v. Wade, supra, 388 U. S. 237, quoting Powell v. Alabama, 287 U.S. at 287 U. S. 57. (p. 14) United States v. Wade, supra, at 388 U. S. 229 as reiterated in United States v. Ash, 413 U.S. 300 (1973). (p. 12) ZAMECO Board of Directors, et al vs. Castillejos Consumers Association, Inc., et al and ZAMECO Board of Directors, et al, vs. National Electrification Administration, et al, GR Nos. 176935-36, March 13, 2009 (p. 3)

Annotation cited Patrick M. Wall, Eye-Witness Identification in Criminal Cases 74 (1965) as reiterated in United States v. Ash, 413 U.S. 300 (1973). (p. 10-12)

Page 3 of 18 DUPLICATE COPY

Republic of the Philippines COURT OF APPEALS Cagayan de Oro City

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, -versusRANNY BOY JUHAN y ELANG, (AccusedAppellant) & ONE (1) UNIDENTIFIED COMPANION, Accused-AccusedAppellant/s

CA-G.R. CR No. 00836 Regional Trial Court: Branch 12, Zamboanga City RTC No. 21545 RE: SIMPLE ROBBERY

APPEAL BRIEF FOR ACCUSED-ACCUSED-APPELLANT

COMES NOW, Accused-Apellant RANNY BOY E. JUHAN, through undersigned counsel and unto this Honorable Court most respectfully submits this Appeal Brief and states that:

PREFATORY STATEMENT
There are cardinal primary rights which must be respected even in proceedings of this character. The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision..The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (ZAMECO Board of Directors, et al vs. Castillejos Consumers Association, Inc., et al and ZAMECO Board of Directors, et al, vs. National Electrification Administration, et al, GR Nos. 176935-36, March 13, 2009)

Page 4 of 18 DUPLICATE COPY "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." (United States v Ash, 413 U.S. 300 1973)

DECISION APPEALED
1. This is an appeal of the Judgment rendered by the Regional Trial Court, Branch 12, Ninth Judicial Region, Zamboanga City dated 03 September 2010, against herein Accused-Appellant, the dispositive portion of which is as follows: WHEREFORE, based on the foregoing, this Court hereby finds the accused, RANNY BOY JUHAN y ELANG, guilty beyond reasonable doubt for the crime of Simple Robbery defined and penalized under Article 293 in relation to Article 294, Paragraph 5 of the Revised Penal Code and taking into consideration the aggravating circumstance of used of motor vehicle under Article 14 Paragraph 20 of the same law established by the prosecution herein, with no mitigating circumstances present, this Court hereby sentences the said accused to suffer the indeterminate penalty of imprisonment of FOUR (4) YEARS and TWO (2) MONTHS of Prision Correccional as MINIMUM to TEN (10) YEARS of Prision Mayor as MAXIMUM and to pay the costs of this suit. SO ORDERED. This 3rd day of September 2010 at Zamboanga City, Philippines.

(Signed)

GREGORIO V. DE LA PEA, III Presiding Judge

Page 5 of 18 DUPLICATE COPY A certified true copy of the Judgment appealed from is herein attached to this Brief as Annexes 1 to 1-H;

STATEMENT OF THE CASE

2. On 24 September 2010, the Regional Trial Court, Branch 12, Ninth Judicial Region of Zamboanga City, promulgated its Judgment dated 03 September 2010, finding the Accused-Appellant guilty beyond reasonable doubt of the crime of Simple Robbery and sentencing him to serve the indeterminate penalty of imprisonment of four years and two months of prision correccional as minimum to ten years of prision mayor as maximum; 3. Accused-Appellant then filed a Motion for Reconsideration with Entry of Appearance of Counsel dated 07 October 2010 before the court a quo, which said Motion was subsequently denied in an Order dated 05 November 2010. By virtue of said denial, a Notice of Appeal was subsequently filed by herein Accused-Appellant on 19 November 2010, two days after the receipt of the Order dated 05 November 2010 denying his Motion for Reconsideration; 4. On 08 June 2011, the Order of this Honorable Court was received by AccusedAppellant requiring the submission of his Appeal Brief within thirty (30) days thereto. Thereafter, an Ex-Parte Motion for Extension of Time to File AccusedAppellants Brief was then filed by herein Accused -Appellant on 20 July 2011, praying for an additional 30 days within which to file his Appeal Brief or on or before 19 August 2011. Hence, this Appeal Brief is submitted.

STATEMENT OF FACTS
5. On or about 5 August 2004, herein two malefactors allegedly conspiring and confederating together, mutually aiding and assisting with one another, by means of violence or intimidation of person as well as force upon things, and with intent to gain did then and there willfully, unlawfully and feloniously, take, steal and carry away from the person of one DAISY HASSAN y SUMONDONG (DAISY for

Page 6 of 18 DUPLICATE COPY brevity), a black bag containing the Registration of her Toyota Tamarraw; Official Receipt and Certificate of Registration of her motorcycle; one (1) unit Nokia 3650 Cellular Phone bearing Serial No. 35146710619257 worth P18,890.00; ATM Card; and cash money amountying toP5,000.00, or having a total amount of TWENTY THREE THOUSAND EIGHT HUNDRED NINETY (P23,890.00) PESOS, Philippine currency, on the occasion when the latter was driving her motorcycle with Plate No. JM-2096 along San Jose Road, Zamboanga City belonging to and taken against the will of Daisy; 6. Since the said incident, however, it was only on 25 April 2005 that a Warrant of Arrest was issued against the Accused-Appellant and on 27 April 2005, AccusedAppellant then surrendered and posted bail; 7. Upon arraignment on 13 March 2006, with the assistance of the AccusedAppellants previous legal counsel, Atty. Romulo D. Plagata, he entered a plea of not guilty; 8. After the pre-trial conference was held and terminated on 8 May 2006, trial thereafter ensued. At the trial on the merits, the prosecution presented only two (2) witnesses, namely: (1) Private Complainant, Daisy; and (2) Police Officer 2, Jose Francisco Rivero III (PO2 Rivero); 9. Private complainant testified that on 5 August 2004, at around 6:30 oclock in the morning, she was on her way home driving her motorcycle along San Jose Road when two (2) male persons on board a motorcycle appeared coming from behind her. That the person riding in tandem wearing a cap suddenly grabbed and snatched her bag containing the above-mentioned items. She struggled at first to keep hold of her bag but later on released the same as she was afraid that she might lose her balance on her motorcycle. After the incident, she decided to go home as it was already dark (emphasis supplied); 10. The following day, 6 August 2004, she reported the incident to the Zamboanga City Police Office as reflected in the Complaint Assignment Sheet No. 9689 (Prosecutions Exhibit A to A-1) . She then executed an Affidavit

Page 7 of 18 DUPLICATE COPY (Prosecutions Exhibit E to E-1) relative to the incident which she identified in open court. She likewise identified the person who snatched her bag as herein Accused-Appellant, Ranny Boy Elang Juhan; 11. On cross-examination, she furthermore testified that when she reported the incident to the police and without the assistance of counsel, she was shown several photographs of persons involved in highway robbery, one of which was Accused-Appellant whom she identified and pointed as the person who snatched her bag. She failed to recognize the alleged companion of Accused-Appellant; 12. PO2 Jose R. Rivero II, the investigator of the case, testified that on 6 August 2004, while he was on duty at the Investigation Section of the Zamboanga City Police Office, a complaint was referred to him relative to a highway robbery that occurred the previous day. Upon receipt of the complaint, he showed to Daisy pictures of the possible suspect for recognition purposes without the assistance of counsel. Thereafter, private complainant pointed to one of the pictures as the person who snatched her bag, who was later identified without the assistance of counsel as Ranny Boy Juhan; 13. On the other hand, the defense presented in evidence the testimonies of the following witnesses: (1) Dr. Orlando Paber (Dr. Paber); (2) Leonora Juhan (Accused-Appellants mother); and (3) Accused-Appellant, Ranny Boy Juhan y Elang; 14. Dr. Orlando Paber testified that on 5 July 2004, he conducted an examination on the person of herein Accused-Appellant Juhan upon a referral made by a physician of the Zamboanga City Medical Center. Dr. Paber found AccusedAppellant to be suffering from a fracture on the ramus, on the right and body mandible on the left and advised him to rest for a month pending further complications;

15. Leonora Juhan, the mother of herein Accused-Appellant, also testified that on 5 August 2004 at around 6:30 in the evening, the latter was at home as he was

Page 8 of 18 DUPLICATE COPY advised to rest by his doctors for treatment of injuries sustained as a result of the maltreatment he suffered from police officers in an unrelated incident. She further testified that due to the injuries, herein Accused-Appellant was traumatized and barely went out of his room, more so their place of residence;

ASSIGNMENT OF ERRORS
I. The court a quo erred in considering and heavily relying upon the identification of the Accused-Appellant by the Private Complainant through a number of photographs presented before her at the Zamboanga City Police Station, the manner of identification being an incredible suggestive procedure. II. The Honorable Court a quo erred in finding the Accused-Appellant guilty of the crime of simple robbery despite the insufficiency of evidence to warrant the declaration of a guilt beyond reasonable doubt.

DISCUSSION
The court a quo erred in considering and heavily relying upon the identification of the Accused-Appellant by the Private Complainant through a number of photographs presented before her at the Zamboanga City Police Station, the manner of identification being an incredible suggestive procedure. 16. In ascertaining whether an out-of-court identification is positive or derivative, the Court has adopted the totality of circumstances test wherein the following factors are taken into consideration: 1) the witness's opportunity to view the criminal at the time of the crime; 2) the witness's degree of attention at that time; 3) the accuracy of any prior description given by the witness; 4) the level of certainty demonstrated by the witness at the identification; 5) the length of time between the crime and the identification; and 6) the suggestiveness of the identification procedure [People v. Sinco , 408 Phil. 1, 13 (2001)]; 17. The defense of alibi, like a bare denial, is weak. However, the testimony of Daisy strengthens Accused-Appellants position. In any event, the prosecution has the burden to establish the guilt of an accused beyond reasonable doubt. In the light

Page 9 of 18 DUPLICATE COPY of the testimonial evidence for the defense vis--vis the version of the incident presented by the prosecution, we are not convinced that the guilt of the accused has been proved beyond reasonable doubt. The rule is clear that the guilt of the accused must be proved with moral certainty. The prosecution, on its part, must rely on the strength of its own evidence and must not simply depend on the weakness of the defense. The slightest possibility of an innocent man being convicted for an offense he has never committed, particularly where capital punishment is imposed, would be far more dreadful than letting a guilty person go unpunished for a crime he might have perpetrated (People v. Baulite, G.R. No. 137599, October 8, 2001, p. 6); 18. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It may also be done thru line-ups where a

witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness;(4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure (People v Teehankee G.R. Nos. 111206-08 October 6, 1995); 19. In light of the significant improbabilities, uncertainties and inconsistencies in Private Complainants account, as well as the total unreliability of the identification she made, the Accused-Appellants alibi and denial thus assume

Page 10 of 18 DUPLICATE COPY commensurate strength. His alibi and denial assume particular importance in this case as the same are corroborated by no less than two (2) impartial and disinterested witnesses. Thus taking into account these two sworn statements, it was certainly impossible for the Accused-Appellant to have been at the locus criminis. An alibi is not always undeserving of credit, for there are times when

the accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may in fact tilt the scales of justice in his favor; 20. The Supreme Court has consistently held that the rule in the appreciation of evidence must bow to the superior rule that the prosecution must prove the guilt of the accused beyond reasonable doubt. The law presumes an accused

innocent, and this presumption must prevail unless overturned by competent and credible proof. A conviction for a crime rests on two bases: (1) credible and convincing testimony establishes the identity of the accused as the perpetrator of the crime; and (2) the prosecution proves beyond reasonable doubt that all elements of the crime are attributable to the accused. The trial courts conviction of Accused-Appellant fails on both bases; 21. The police later arrested Accused-Appellant based on an out-of-court identification by Daisy who then first identified Accused-Appellant Juhan through mug shots the police presented to her. Although showing mug shots of suspects is one of the established methods of identifying criminals [(People v. Villena, 390 Phil. 637 (2002), the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect [(Patrick M. Wall, EyeWitness Identification in Criminal Cases 74 (1965)]. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect; 22. Thus, where a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the

Page 11 of 18 DUPLICATE COPY witness recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, Thats the man that did it, what he may actually mean is, Thats the man whose photograph I identified; 23. As extensively discussed in the case of United States v. Ash, 413, U.S. 300 (1973), "the dangers of mistaken identification . . . set forth in Wade are applicable in large measure to photographic, as well as corporeal,

identifications." (149 U.S.App. D.C. at 9, 461 F.2d 100).

To the extent that

misidentification may be attributable to a witness' faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup. [Footnote 2/8] But "because of the inherent limitations of photography, which presents its subject in two dimensions, rather than the three dimensions of reality, . . . a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification." [(P. Wall, Eye-Witness Identification in

Criminal Cases 70 (1965)]. Indeed, noting "the hazards of initial identification by photograph, xxx we have expressly recognized that "a corporeal identification . . . is normally more accurate" than a photographic identification xxx [ Simmons v. United States, 390 U. S. 377, 390 U. S. 384, 390 U. S. 386 n. 6 (1968), Footnote 2/9] Thus, the dangers of misidentification are even greater at a photographic display than at a lineup. Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold (id. At 390 U. S. 383). Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photograph all might have the effect of singling out the accused. Second, impermissible

Page 12 of 18 DUPLICATE COPY suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, "increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized." And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, "any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone [P. Wall, supra, at 81]. Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain (Page 413 U. S. 334) witness to select the "correct" photograph. For example, the prosecutor might "indicate to

the witness that [he has] other evidence that one of the persons pictured committed the crime," [Footnote 2/11] and might even point to a particular photograph and ask whether the person pictured "looks familiar." More subtly, the prosecutor's inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness' objectivity. Thus, as is the case with lineups, "Improper photographic identification procedures, . . . by exerting a suggestive influence upon the witnesses, can often lead to an erroneous identification. . . ." [P. Wall, supra, at 89. (Footnote 2/12)]. And "regardless of

how the initial misidentification comes about, the witness (Page 413 U. S. 335) thereafter is apt to retain in his memory the image of the photograph, rather than of the person actually seen. . . ." [Simmons v. United States, supra, at 390 U. S. 383-384. (Footnote 2/13)]. As a result, "the issue of identity may (in the absence of other relevant evidence), for all practical purposes, be determined there and then, before the trial. [United States v. Wade, supra, at 388 U. S. 229, quoting Williams & Hammelmann, supra, at 482]; 24. Moreover, as with lineups, the defense can "seldom reconstruct" at trial the mode and manner of photographic identification. It is true, of course, that the

Page 13 of 18 DUPLICATE COPY photographs used at the pretrial display might be preserved for examination at trial. But "it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel." [149 U.S.App.D.C. at 910, 461 F.2d 100-101. Cf. United States v. Wade, supra, at 388 U. S. 239 and n. 30.] Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not "apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect," since the witnesses are hardly "likely to be schooled in the detection of suggestive influences." [Id. at 388 U. S. 230. (Page 413 U. S. 336)]; 25. Finally, and unlike the lineup situation, the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedures will ever come to light. Indeed, in Wade, the Government itself observed: When the defendant is present -- as he is during a lineup -- he may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. . . . [I]n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in 'sloppy or biased or fraudulent' conduct . . . , it would be far more likely to do so when the accused is absent than when he himself is b eing 'used. Thus, the difficulties of reconstructing at trial an uncounseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup. As further discussed in the case of Wade, in terms of the

Page 14 of 18 DUPLICATE COPY need for counsel, "There is no meaningful difference between a witness' pretrial identification from photographs and a similar identification made at a lineup. [Footnote 2/16]". For, in both situations "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." [United States v. Wade, supra, at 388 U. S. 231-232)]; 26. As a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification. This being so, considerations of logic, consistency, and, indeed, fairness compel the conclusion that a pretrial photographic identification, like a pretrial corporeal identification, is a "critical stage of the prosecution at which [the accused is] as much entitled to such aid [of counsel] . . . as at the trial itself. [388 U. S. 237, quoting Powell v. Alabama, 287 U.S. at 287 U. S. 57];

The Honorable Court a quo erred in finding the Accused-Appellant guilty of the crime of simple robbery despite the insufficiency of evidence to warrant the declaration of a guilt beyond reasonable doubt. 27. The court a quo relied heavily on the testimony of the Private Complainant and alleged positive identification of the Accused-Appellant in rendering the assailed judgment. Said identification, as corroborated by the testimony of Police Officer Rivero in the photograph identification was determined to be more plausible as against the Accused-Appellants defense, despite the corroboration of the testimonies of his witnesses, especially the fact of his physical impossibility to be at the alleged scene of the crime given his medical condition and the distance of said place from his residence; 28. While there are no absolute parameters that dictate and define a guilt beyond reasonable doubt, it is submitted that the quantum of evidence presented by the prosecution must fail for not having met the basic tenets of proof that shall cross

Page 15 of 18 DUPLICATE COPY the threshold of guilt that is beyond reasonable doubt. In this particular instance, the presumption of Accused-Appellants innocence must prevail over the scant evidence presented by the prosecution which failed to establish his guilt to warrant conviction; 29. As declared by the Supreme Court of Canada, in R v Lifchus [(1997) 3 SCR 320], The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until such time xxx the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.;

30. "A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. The

insufficiency of evidence must necessarily result in the acquittal of herein Accused-Appellant as the presumption of evidence was not obliterated; 31. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one that is one that is founded upon a real tangible substantial doubt and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certai nty. [Cage v. Louisiana, 498 U.S. 39 (1990)]; 32. Private Complainants testimony which primarily pinpointed Accused -Appellant as one of the assailants was supported by a weak corroboration of the testimony of the only other witness (Police Officer Rivero) who was, in the very first place, responsible for feeding upon her the identity of herein Accused -Appellants.

Page 16 of 18 DUPLICATE COPY Their disputable allegations did not provide unassailably accurate knowledge of what happened and cast a serious doubt upon the guilt of Accused-Appellant.; 33. Moreover, even if the defense of the accused may be weak, the same is inconsequential if, in the first place, the prosecution failed to change the onus of his identity and culpability. The presumption of innocence dictates that it is for the people to demonstrate the guilt and not for the accused to establish innocence. The first duty of the prosecution is not to prove the crime but to prove the identity of the criminal. For even if the commission of the crime can be established, without proof of identity of the accused, beyond reasonable doubt, there can be no conviction (Pp vs. Subingsubing, 223 SCRA 168, 1993); 34. In our criminal justice, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. Where there is reasonable doubt as to the guilt of the accused, he must be acquitted even though his innocence may be doubted since the constitutional right to be presumed innocent until proven guilty can only be overthrown by proof beyond reasonable doubt xxx or that degree of proof that produces conviction in an unprejudiced mind. Short of this, it is not only the right of the accused to be freed; it is even the constitutional duty of the court to acquit them [People of the Philippines vs Gilbert Baulite and Liberato Baulite, G.R. No. 137599, October 8, 2001, citing People v. Parel, 330 Phil. 453, 471 (1991); People v. Salangga, 234 SCRA 407 (1994), Pecho v. People, 331 Phil. 1, 19 (1999) and People v. Valeriano, 226 SCRA 694 (1993), citing People v. Pido, 200 SCRA 45 (1991)]; 35. While an alibi is admittedly the weakest of all defenses, Accused-Appellants conviction, however, should not rest solely upon the same. Rather, the

sufficiency of the evidence that shall warrant the declaration of his guilt beyond reasonable doubt. In this particular instant, the court a quo erred in ruling against the presumption of his innocence when it declared the weakness of his defense and not the strength of the prosecuting evidence. The prosecution has the

Page 17 of 18 DUPLICATE COPY inexorable burden of producing the mandated degree of proof. The guilt of the accused shall be gauged by the strength of the evidence for the People and not by the weakness of that for the defense (People of the Philippines vs Anacleto Furugganan, G.R. No. Nos. 90191-96, January 28, 1991); 36. As further declared by the Supreme Court in the same case, also citing People v. Nazareno, 80 SCRA 484 [1977]; People v. Go Bio, Jr., 142 SCRA 238 [1986]; People v. Rojo, 175 SCRA 119 [1989]):

[t]he rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense. Accusation can never be made synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies and the freedom of the accused can be forfeited only if the requisite quantum of proof necessary for conviction is in existence. 37. For these glaring errors committed by the Honorable court a quo, a reversal of its assailed Judgment dated 03 September 2010 becomes urgently necessary if the constitutional mandate of protecting the rights of herein Accused-Appellant must be upheld and sustained.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court that the assailed Judgment of the Regional Trial Court, Branch 12 of the Ninth Judicial Region of Zamboanga City, dated 03 September 2010, be set aside and that a decision be rendered in favor of the Accused-Appellant acquitting him of the criminal offense of Simple Robbery.

Other reliefs as may be just and equitable in the premises are likewise prayed for.

Page 18 of 18 DUPLICATE COPY . Zamboanga City for Cagayan de Oro City, Philippines, 19 August 2011.

GIAN PAOLO U. ENRIQUEZ Counsel for Accused-Appellant Enriquez, Capin and Gaugano Law Offices 2nd Floor, LDM Building, Pilar St., Zamboanga City PTR No. 0397784 3/29/2011 IBP No. 829222 01/01/2011 At Zamboanga City Roll No. 49871 05/02/2005 MCLE Compliance No. III-0012187 04/13/2010 MCLE Compliance No. IV-000617 11/05/2010

Copy furnished: The Receiving Clerk Regional Trial Court, Branch 12 Zamboanga City Office of the City Prosecutor Hall of Justice, Sta. Catalina Zamboanga City

EXPLANATION

Pursuant to Section 11, Rule 13 of the Revised Rules of Court, it is respectfully manifested that the foregoing Appeal Brief for Accused-Appellant is filed and served on the Honorable Court of Appeals, Cagayan de Oro City, by registered mail, personal service not being practicable due to distance.