Murder raps for Delgado slay suspect – DOJ

Acting Justice Secretary Agnes Devanadera has reversed a decision of the Manila City Prosecutor’s Office dismissing the murder charges filed against Luisito Gonzales and his driver Antonio Buenaflor for their involvement in the death of businessman Federico Delgado last year.

In a 10-page resolution, Devanadera ordered the filing of separate criminal charges against Gonzales and Buenaflor after finding the existence of probable cause to indict them for the murder of Delgado and for physical injuries inflicted on Delgado’s companion, Annalisa Pesico.

Pesico had positively identified Gonzales, who is the estranged spouse of singer Kuh Ledesma, as one of those who attacked her and Delgado.

Citing defects in the resolution promulgated by Acting Manila Prosecutor Cielitolindo Luyun after the preliminary investigation, Devanadera directed him to file criminal charges against Gonzales and Buenaflor and to report the actions he had taken within 10 days.

Members of the Delgado family and Pesico had earlier filed a petition for review with the Department of Justice (DOJ) assailing Luyun’s Sept. 10, 2007 resolution dismissing the murder and frustrated murder charges filed against Gonzales and Buenaflor for lack of probable cause.

“There is merit in the petition. The resolution on appeal has said it well that settled is the rule that for alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that he could not have been physically present at the scene of the crime or its immediate vicinity at the time of the commission,” Devanadera said.

In ordering the filing of charges against Gonzales and Buenaflor, Devanadera stressed that the case should prosper into the trial stage for all evidence to be presented by the parties.

“The positive and categorical identification of respondents by complainant Annalisa, which we find to be more credible than bare denial and alibi, more than meets the quantum of evidence necessary in a preliminary investigation,” Devanadera said.

In his defense, Gonzales said he was undergoing treatment at the Makati Medical Center’s psychiatric care unit at the time the killing happened.

Buenaflor, meanwhile, claimed that he was merely in the vicinity of Roxas Boulevard.

“While respondents and their witnesses may have claimed that the former were elsewhere when the offenses were committed, there is nonetheless no clear and convincing showing that it was truly impossible for them to be at the scene of the crimes and commit them. The possibility is not foreclosed that indeed they could have been there and have committed the offenses charged,” Devanadera said.

Federico Delgado, son of industrialist Francisco Delgado, was killed in his apartment in Leon Guinto Street, Malate, on the night of May 10, 2007. He was found face down on the floor with three stab wounds in the chest, face and back. In the same incident, Pesico was also mauled and was rushed to the Ospital ng Maynila.

Pesico told police that while the attackers had their faces covered with clothes and towels, she could identify Gonzales as he had removed his face cover.

In their petition, the Delgado family lamented that despite evidence that was available to support the case against the accused, including the identification made of Gonzales and Buenaflor by Pesico, who was assaulted together with Delgado on the night of the killing, Luyun still decided to dismiss the charges against Gonzales due to alleged absence of probable cause.

“This case is an unusual one. The prosecutor has cynically violated the basic concept and law on probable cause. His honor resolved to dismiss (the charges) for murder and frustrated murder not on the basis of probable cause, but on the premature determination of the very merits of the case,” the Delgado family said.

In dismissing the charges, the Delgado family members said Luyun relied on Gonzales’ alibi that was accompanied by 28 affidavits supposedly made by hospital staff of the Makati Medical Center, claiming that he was confined at a ward in the hospital’s basement on the night of the murder.

Luyun also gave weight to Gonzales’ defense that Pesico could not have identified him or Buenaflor because she could not possibly have seen clearly enough to make identification, having been brutally assaulted and left bleeding on the floor of the apartment.

Luyun also noted inconsistencies between Pesico’s first and second sworn statements. Luyun added that while it would not have been impossible for Gonzales to negotiate the short distance from the Makati Medical Center to Delgado’s apartment near Vito Cruz Street, the 28 affidavits effectively supported Gonzales’ alibi.