MANILA-- United States Marine Lance Cpl. Joseph Scott Pemberton, tagged in the killing of a transgender woman in Olongapo City in October 2014, seeks to reverse the ruling of Court of Appeals last April 3 affirming the ruling of Olongapo City Regional Trial Court Branch 74 which found Pemberton guilty of homicide.
In 35-page motion for reconsideration filed by Pemberton through his lawyer Rowena Garcia Flores, he asked the CA's 16th Division to reverse its decision dated April 3, 2017 and also reverse the Olongapo City Regional Trial Court (RTC) Branch 74 decision dated December 1, 2015.
Garcia-Flores urged the appeals court to consider the privileged and ordinary mitigating circumstances in imposing the penalty.
An affect of an ordinary mitigating circumstance is that the minimum period in case of divisible penalty provided by law for a particular crime shall be imposed while the effect of a privileged mitigating circumstance is that the penalty to be imposed shall be lower by 1 or 2 degrees than that provided by law for the crime.
The same motion said the appeals court has 'cherry-picked' the evidence to sustain the conviction of Pemberton.
The motion added that the CA disregarded other important evidence such as the necklace that Laude was clutching with a third set of DNA, missing money, different position of Laude from that of Pemberton's description, among others.
Here, the picture formed by the prosecution is neither convincing nor is it complete. It was not able to prove that when Pemberton left Laude, the latter was already dead. The Prosecution further failed to prove that no one else could have killed Laude, as the evidence undeniably proves that there was an intruder whose DNA was left on Laude's neck; who stole Laude's money; and whose necklace was left in the hand of Laude. The circumstantial evidence cannot be said to form an unbroken chain that excludes all other [suspects] but Pemberton.
Pemberton also asked the appellate court to reduce the amount of damages for "loss of income" awarded to private complainant to less or equal to the current minimum wage in Zambales, which is PHP349.00 a day, and delete the award of exemplary damages.
Pemberton was found guilty of homicide for Laude's slay on December 1, 2015, and was sentenced to serve a jail term of 6-10 years.
He is serving his sentence in a detention facility inside the Philippine military headquarters in Camp Aguinaldo, Quezon City.
Last April 3, the 48-page decision 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 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 and also ordered him to indemnify the heirs of his victim Jeffrey Jennifer Laude, a Filipino transgender.
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.
Source: Philippines News Agency