Finding US Lance Corporal Joseph Scott Pemberton’s defense “more imaginary than real,” the Court of Appeals (CA) refused to reverse the guilty verdict meted out on him by the Olongapo City Regional Trial Court Branch 74 for the death of transgender Jeffrey “Jennifer” Laude.

Pemberton was meted out a penalty of up to 10 years imprisonment after he was convicted of homicide. He was also ordered to pay P4.3-million for loss of earning capacity, P30,000 exemplary damages, P50,000 each for civil indemnity and moral damages.

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The lower court denied Pemberton’s motion for reconsideration prompting him to take his case to the Court of Appeals.

READ: Pemberton guilty of homicide in Laude case, sentenced to up to 12 yrs | Pemberton won’t go to a regular jail

Pemberton, in his petition for review before the CA said the lower court erred in convicting him despite the testimony of forensic expert Dr. Raquel Fortun that Laude did not die of drowning.

He added that the lower court also ignored the evidence showing that a third person could be responsible for Laude’s death.

Pemberton added that the lower court have made a mistake in interpreting his statement when he said he thought he killed Laude as an admission of guilt when in fact his statement is consistent with self-defense as stated under the Revised Penal Code.

The soldier raised the issue of self-defense saying he was molested by Laude. He said he was only defending his dignity and self-respect.

Among the elements of self-defense that Pemberton must prove exist include: (1) unlawful aggression on the part of the victim (2) reasonable necessity of the means employed to prevent or repel it and (3) lack of sufficient provocation on the part of the person resorting to self-defense.

In this case, however, the CA Special 16th Division 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.

“Here, Pemberton did not suffer any injury when he allowed Laude to perform oral sex on him,” the CA said in a 48 page decision written by Associate Justice Marlene B. Gonzales-Sison. The CA said the moment Pemberton pushed Laude away, “there was no longer unlawful aggression to justify the killing of Laude.”

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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 also dismissed that Pemberton that he believed he was in danger because Laude, his friend Barbie knew the clerk at the Celzone motel where they checked in.

“If Laude was in cahoots with Barbie and [the motel clerk], there was no more need for Laude and Barbie to perform oral sex on Pemberton. The moment they entered Room No. 1, Laude and Barbie could have easily robbed Pemberton if that was their intention all along.”

“We thus find Pemberton’s defense of an impending grave danger more imaginary than real… In the absence of unlawful aggression, even the privileged mitigating circumstance of incomplete self-defense which Pemberton also invokes cannot be appreciated in his favor… The conviction of Pemberton for homicide is undeniable,” the CA added in its ruling.

The CA also agreed with the lower court in relying on the findings of Dr. Reynaldo Dave that Laude died due to asphyxia by drowning even though he is not a pathologist over the testimony of forensic expert Dr. Raquel Fortun.

The CA noted that Dr. Dave, though not a pathologist has been a medico-legal officer for 16 years and has conducted 6,000 autopsies. The court added that he was also able to examine Laude’s body while Fortun’s conclusion was based on documents and pictures provided to her.

With regard to a third person that could have possibly killed Laude after Pemberton left the motel, the CA said it was “mighty implausible” for Laude to fight the third person after he was left unconscious by Pemberton and grabbed the necklace.

“There is no rhyme or reason why anyone would kill Laude in his supposed unconscious state, if the version of Pemberton is to be believed,” the CA said.

While there are many possibilities as to the owner of the necklace, the CA said Pemberton’s camp never brought up the said matter to any of the investigators that handled the case.

The appeals court also affirmed the P4,320,000 award to Laude’s family for his loss of earning capacity.

It also affirmed the P30,000 exemplary damage that Pemberton has to pay Laude’s family.

“Pemberton unabashedly plunged Laude’s head in the toilet for the puerile reason that Laude pretended to be a woman. To our mind, placing Laude’s head inside a toilet shows that Pemberton never thought of Laude as a human being, but as a fecal matter due to his sexual orientation,” the CA said.

The CA, meanwhile increased the P100,000 (P50,000 each ) civil indemnity and moral damages to P150,000 (P75,000 each) because recent jurisprudence showed that the amount imposed should be the latter.

On the other hand, the actual damages of P155,250.00 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.

Associate Justices Ramon A. Cruz and Henri Jean Paul B. Inting concurred in the decision. CBB/rga

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