CA upholds Pemberton’s conviction on killing of Jennifer Laude

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. (PNA photo)

MANILA — The Court of Appeals (CA) junked the motion for reconsideration filed by United States Marine Lance Cpl. Joseph Scott Pemberton, who was tagged in the killing of transgender woman Jennifer Laude in Olongapo City in October 2014.

In a 12-page resolution penned by Associate Justice Marlenez Gonzales-Sison and concurred in by Associate Justices Ramon Cruz and Henri Jean Paul Inting, the CA’s 16th Division has affirmed its decision last April 3, 2017 which found Pemberton guilty beyond reasonable doubt of homicide.

The Court also denied the Office of the Solicitor General’s partial motion for reconsideration insisting that Pemberton is not entitled to be given full credit of the time he spent under preventive imprisonment as he did not voluntarily agree in writing to abide by the same rules imposed upon convicted prisoners.

In denying both pleas, the CA held that the arguments presented were mere “rehash of the issues” already discussed in its April 3, 2017 decision.

“With respect to Pemberton’s motion, we maintain our ruling that his invocation of self-defense is an admission of the killing and of its authorship,” the CA explained.

“Pemberton’s contention that he was only raising complete and incomplete self-defense in the physical injuries he inflicted upon Jerry Serdoncillo y Laude alias ‘Jennifer’ (Laude) is bereft of rhyme or reason as the former was not charged for any physical injuries but of homicide, “ the CA ruled.

The CA noted that in justifying circumstance of self-defense, Pemberton was just trying to exonerate himself or reduce his penalty from the charge of homicide.

“Consequently, we reiterate that self-defense when invoked as a justifying circumstance implied the admission by the accused that he committed the criminal act,” it added.

But, the CA maintained that Pemberton’s claim of self-defense cannot be given weight due to his failure to prove that he was attacked by Laude and that his life was in peril on the night of the incident.

“The allegation of Pemberton that he was slapped by Laude could not even be corroborated by any medical findings. Worthy to note that according to Pemberton, the slap he allegedly received made his ear ring which if true should have promoted Pemberton to immediately seek medical attention,” it explained.

Furthermore, the CA said if Pemberton was only trying to defend himself, he should have sought medical assistance for Laude as soon as the latter was subdued and allegedly rendered unconscious.

“Indeed, a pelae 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 held.

The CA added that Pemberton’s immediate escape from Celzone Lodge where Laude was found dead is an indication of guilt.

“The bits of evidence, pieced together, point to Pemberton as the killer of Laude, Ostensibly, our rules make no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred.

Pemberton’s criminal liability for homicide stands,” the CA ruled.

The CA also upheld the award of loss of earning capacity to the heirs of Laude amounting to PHP4.32 million

In its April 3, 2017 decision, CA 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 for 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, 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.

In his MR, Pemberton through his lawyer Rowena Garcia Flores asked the CA’s 16 Division to reverse its decision dated April 3, 2017 and also reverse the Olongapo City Regional Trial Court (RTC) Branch 74 decision dated Dec. 1, 2015 and the RTC order dated March 29 2016, and declare Pemberton not guilty of the crime of homicide.

He maintained that the wounds he inflicted on Laude were in self-defense while they were fighting after he discovered that the victim was a transgender.

Pemberton lamented that the CA “cherry-picked the evidence presented in court in order to sustain his conviction and completely ignored the defense evidence.

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 Dec. 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.