REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL REGION

METROPOLITAN TRIAL COURT
BRANCH 86, CALOOCAN CITY

PEOPLE OF THE PHILIPPINES,

Plaintiff, Crim. Case No.
-versus- 265296
For: Estafa under Art.
FE REFUNSEL AMOR y MABULAY, 315 par. 2 (a) of the
a.k.a CHERRY AMOR, Revised Penal Code
Accused.
x---------------------x

MOTION TO DISMISS
(By Way of Demurrer to Evidence
With Prior Leave of Court)

COMES NOW, the accused, by the undersigned counsel,

pursuant to the leave of court granted to them in open court
during the last hearing of the above-entitled case, most
respectfully move for the dismissal of the instant case, by way
of demurrer to evidence on the ground of insufficiency of
evidence.

THE INDICTMENT

The accusatory portion of the Information dated

February 28, 2018, charging the accused with the felony of
Estafa under Article 315, paragraph 2 (a) of the Revised Penal
Code reads:

“That sometime in April 2017 in Caloocan City,

Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused,
defrauded and deceived JEAN FERNANDEZ in the
following manner, to wit: said accused by means of
false manifestation and fraudulent representation
which she made to the said complainant that she is a
Licensed Optometrist, authorized to practice
optometry by the Professional Regulation Commission
(PRC), knowing said manifestations and
representations to be false and fraudulent and was
made only to induce said complainant to part with

Page 1 of 14
her money, did induce said complainant to deliver to
said accused the amount of Php100.00; to the
damage and prejudice of the complainant in the
aforesaid amount.”

THE EVIDENCE FOR THE PROSECUTION

A. Testimonial Evidence

1. The prosecution presented two witnesses, namely

the private complainant herself, Jean Fernandez and
Mary Jane Edquid.

2. Jean Fernandez testified on the following dates:

March 5, 2019 and March 26, 2019.

3. Mary Jane Edquid’s intended testimony was

dispensed with as agreed by the parties to enter into
some stipulations on September 11, 2019.

A.1. Testimony of Private Complainant Jean Fernandez

4. Testimony of Jean Fernandez given on March 5,

2019. (Direct examination of Public Prosecutor
Dencio Somera Jr.) – Among others, the testimony
of Jean Fernandez only shows that:

4.1 Jean Fernandez allegedly went to the alleged

clinic of accused sometime in April 2016; 1

But Jean Fernandez was not able to mention

what was the exact date that she allegedly went
at the said clinic.

4.2 When Jean Fernandez entered the clinic,

accused allegedly introduced herself as Dra. Fe
Rafunsel Amor and she also introduced her
husband.2

1
TSN, (Direct Examination of JEAN FERNANDEZ) dated March 5, 2019, pages 5 and 6
2
Ibid, pages 7 and 8

Page 2 of 14
But Jean Fernandez was not able to state or
testify as to what were the exact statements
uttered by the accused in allegedly manifesting
or misrepresenting herself as a Licensed
Optometrist duly authorized to practice
optometry.

4.3 Jean Fernandez stated that “She (referring to

the accused) took measurements of the
eyeglasses that would fit me. But at first, Sir,
she put eye drops on my right and left eye. It
was a liquid form and it hurts, Sir. I asked her
why it hurts and the she told me it is just the
effect of the medicine or maybe my eyes are
dirty and I believed. And after that, she had me
wear eyeglasses made of steel and also uses
different lenses and she me to read letters.” 3

Aside from her bare allegations, Jean

Fernandez did not mention any further
evidence that the alleged services were made to
her by the accused. It should be noted that such
services should have been supported by any
document proving that those services were in
fact rendered such as a receipt for services
rendered.

4.4 Jean Fernandez answered “One hundred Pesos

(P100.00) for the down payment, Sir” when
asked how much did she pay the accused. 4

Aside from claiming that she paid one

hundred (P100) pesos to the accused, no further
evidence was presented to prove that the
accused was convinced to part with her money
due to the fraud committed by the accused.

4.5 Jean Fernandez answered: “It was Dra. Amor” 5

when asked by Fiscal Somera “x x x who issued
this receipt?

3
Ibid, page 11
4
Ibid
5
Ibid, page 7

Page 3 of 14
When asked who accomplished the said receipt.
Jean Fernandez answered: “Also herself, Dra.
Amor. x x x”.6

Jean Fernandez did not offer any further

proof to support her claim that the signature
appearing in the receipt was actually the
signature of the accused aside from her bare
allegations that she saw the accused accomplish
the receipt. It is worthy to point out here that
no other documents were adduced showing that
the handwritten name “Dra. Amor” was actually
the handwriting of the accused.

5. On March 26, 2019, Jean Fernandez was subjected

to cross-examination by defense counsel Atty. Alex
J Vega. The pertinent portions of the testimony
show that:

5.1 Jean Fernandez confirmed that she was issued

a receipt by the accused 7 and when asked
“whose name was in that receipt”, Jean
Fernandez answered “Joyce Tallorin, Sir”. This
was followed by a question: “And who is that
Joyce Tallorin?” to which Jean Fernandez
Answered “Also me, Sir.” 8

The purported receipt allegedly issued by

the accused contains the name Joyce Tallorin
while the complainant’s name is Jean
Fernandez. Jean Fernandez offered no further
evidence that supports her claim that she was
Joyce Tallorin. Assuming arguendo that Jean
Fernandez was Joyce Tallorin as appearing in
the purported receipt, the reason for the use of
fictitious name by Jean Fernandez was not
justifiably shown. Under normal situation and
circumstance, a person transacts using his/her
true name.

A.2 The Stipulations Entered into with Regard to

the Intended Testimony of Mary Jane Edquid
6
Ibid
7
Ibid, page 4
8
Ibid, page 5

Page 4 of 14
6. On September 11, 20199, the following stipulations
were entered into by the parties herein:

6.1 That Prosecution Witness, Mary Jane Edquid

is connected with the Professional Regulation
Commission (PRC), Manila as Officer-in-
Charge (OIC) of the Registration Division;

6.2 That Witness had been connected with the

PRC since 1982;

6.3 That as OIC of the Registration Division as one

of her duties and responsibilities consists of
processing and issuing certifications as to the
professional status of individuals;

6.4 That this Witness could also issue certification

if that individual is registered or not
professionally, in the said Office;

6.5 That in connection with this case, she issued

Certifications under the names Fe Rafunsel
Mabulay/ Fe Rafunsel Mabulay Amor and
Cherry Mabulay/ Mabulay Amor both dated
March 24, 2017;

6.6 That one Jean Fernandez Requested the said

Certifications, which led to the issuance of the
same;

6.7 That the Witness can identify the signatures

appearing at the bottom portion of the said two
(2) Certifications appearing above the printed
name, Mary Jane Edquid;

6.8 That the basis of this Witness in issuing the

Certification is the data base of the PRC;

6.9 That pursuant to the subpoena which she

received and was issued by this Court, this
Witness brought today in Court other

9
Order dated September 11, 2019, Metropolitan Trial Court, Branch 86, Caloocan City

Page 5 of 14
Certifications, both dated May 08, 2018 in
connection with the above-captioned case;

6.10 That this Witness can identify said two (2)

Certifications, her signatures thereon, as well
as the due execution and authenticity of the
same;

6.11 That this Witness was the one who personally

prepared the contents of the said two (2)
Certifications;

6.12 That this Witness has no personnel knowledge

as regards the actual incident; and

6.13 That this Witness was not present when the

allegation contained in the Information
occurred.

It must be noted that in the foregoing

stipulations, nothing points to establish that
the certifications were issued to the accused
whose name does not appear as one of the
registered or licensed optometrist. More
importantly, the Witness, Mary Jane Edquid,
has no personal knowledge as regards the actual
incident and that she was not present when the
allegation contained in the information
occurred.

B. Documentary Evidence

7. The Prosecution made an oral formal offer 10 of the

following documentary evidence:

7.1 Exhibit “A” – Sinumpaang Salaysay of Jean

Fernandez x x x with sub-markings “A-1” and
“1-A”, offered by the Prosecution to prove the
material allegation in the Information for
Estafa against the accused and as part of the
testimony of the Prosecution Witness;

10
TSN dated November 20, 2019

Page 6 of 14
7.2 Exhibit “B” – A photograph of Mabulay Amor
Optical Clinic;

7.3 Exhibit “C” and “C-1”- “C” is the Receipt

coming from Mabulay Amor Optical and “C-1”
as the signature of “Dra. Amor”;

7.4 Exhibit “D” – Letter dated March 21, 2017

addressed to the Commissioner of Professional
Regulation Commission, Sampaloc, Manila
from the Private Complainant x x x;

7.5 Exhibit “E” and “F” with sub-markings –

Certifications issued by Mary Jane L. Edquid x
x x and as part of the stipulations between the
prosecution and the defense as to the
supposed testimony of Mary Jane L. Edquid.

The above mentioned pieces of evidence

were offered by the Prosecution to prove the
material allegation in the information and as
part of the testimony of the Prosecution
Witness who identified the same in open court.

The foregoing evidence lack probative

value. Exhibit “A” does not establish any
material connection with the alleged
commission of false manifestation and
fraudulent representation. Neither Exhibits “B”,
“D” and “F” tend to prove the alleged fraudulent
acts imputed against the accused. Lastly,
Exhibit “C” and “C-1” pertaining to the alleged
receipt issued by the accused to Jean
Fernandez deserves a scant regard since the
same contains a fictitious name, Joyce Tallorin,
a name different from Jean Fernandez, who,
allegedly, was the one who had a consultation
with the accused.

DISCUSSION

The instant case should be dismissed on the ground that

the prosecution’s evidence was insufficient to overcome the
presumption of innocence in favor of the accused.

Page 7 of 14
Accused is charged with estafa by means of deceit under
Article 315 (2) (a) of the Revised Penal Code which provides:

Article 315. Swindling (Estafa). - Any person who shall

defraud another by any of the means mentioned herein
below shall be punished by:

xxx

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with the
commission of the fraud:

(a) By using fictitious name, or falsely pretending to

possess power, influence, qualifications, property,
credit, agency, business or imaginary
transactions, or by means of other similar
deceits.

xxx

In the case of Osorio vs. People, 11 the Supreme Court

held that in sustaining a conviction under Article 315,
paragraph 2 (a) of the Revised Penal Code, the following
elements must concur:

(a) [T]hat there must be a false pretense or fraudulent

representation as to his power, influence, qualifications,
property, credit, agency, business or imaginary transactions;
(b) that such false pretense or fraudulent representation was
made or executed prior to or simultaneously with the
commission of the fraud; (c) that the offended party relied on
the false pretense, fraudulent act, or fraudulent means and
was induced to part with his money or property; and (d) that,
as a result thereof, the offended party suffered damage. 

The question now is did the prosecution prove the

elements of the crime charged in the Information?

The accused firmly believes that the prosecution failed to

prove the elements of the crime as charged. As shown above,
the prosecution’s evidence in chief was the testimony of
private complainant Jean Fernandez which the accused finds
as incredible.

11
G.R. No. 207711, July 2, 2018, available at https://elibrary.judiciary.gov.ph/ visited last September 23,
2020

Page 8 of 14
Evidence to be believed must not only proceed from the
mouth of a credible witness but it must be credible in itself,
such as the common experience and observation of mankind
can approve as probable under the circumstances. 12

1. The testimony of private complainant Jean Fernandez

should not be given credence due to inaccuracies and
inconsistencies;

Jean Fernandez was not able to testify with coherence on

what transpired before, during and after the alleged illegal or
fraudulent act of the accused constituting the felony as
charged. The exact date and time when Jean Fernandez went
to the clinic was not mentioned. It should be noted that she
claims to remember other details on the alleged day that she
went to the clinic but she could not remember the exact date
when she allegedly went to said clinic.

Jean Fernandez’s testimony did not establish as a fact

the allegation that the accused, “by means of false
manifestation and fraudulent representation” represented
herself as “a Licensed Optometrist, authorized to practice
optometry by the Professional Regulation Commission (PRC),”.
Nowhere in her testimony pointed out that accused made
representations that she was “a Licensed Optometrist,
authorized to practice optometry by the Professional
Regulation Commission (PRC).”

The purported receipt issued in the name of Joyce

Tallorin, though not seasonably objected to by the accused,
should not be given credibility. The alleged person named in
the receipt as Joyce Tallorin is not Jean Fernandez. Assuming
that Jean Fernandez and Joyce Tallorin ares one and the same
person, the former should have adduced additional evidence
justifying the use of a fictitious name.

More importantly, Jean Fernandez gave conflicting

statements in her Sinumpaang Salaysay and her testimony.
First, she stated in her Sinumpaang Salaysay the following:

“Noong buwan ng April 2016, ako ay nagpunta

sa clinic ni Dr. Amor sa Phase 4, Bagon Silang,
12
People vs. Capuno, G.R. No. G.R. No. 185715, January 19, 2011, available at www.lawphil.net, Retrieved
last September 21, 2020

Page 9 of 14
Caloocan City upang ipakonsulta ang aking mata” x
x x13

During her direct testimony,14 Jean Fernandez testified

as follows:

“Q: But what made you decide to have your eyes

checked at her clinic? (Question from Fiscal
Somera)

A: At Phase 4, I chanced upon a signboard stating

Mabulay Amor Optical Clinic and I tried to have
a consultation to see if their rates were quite
low, Sir.”

The above statements are contradicting because she

alleged in the former that she went to Mabulay Optical Clinic
to have her eyes checked while in the latter, she went to the
said clinic to see if their rates were quite low.

Second, in the same Sinumpaang Salaysay, Jean

Fernandez stated that:

“Pagdating ko sa kanilang clinic ay nadatnan

ko si Dr. Cherry Amor kasama ang kanyang asawa.
Sinabi ko sa kanya na nanlalabo ang aking
paningin. Sumagot naman si Dr. Amor na halika
pumasok ka dito sa loob at nang makapasok na ako
sa loob ay pinatakan nya ang akong mata ng likido
na hinid ko alam kung ano. Matapos noon ay
sinukatan ako ni Dr. Amor ng salamin at sinabi nya
na magbayad ako ng Php 2,200.00. x x x 15

During her direct testimony, Jean Fernandez made the

following statements:

“x x x The reason why I know her as Dra. Amor

Sir, is because when I entered that clinic, there is
one male and one female person there and then
when I told them that I will have myself checked, the
female person introduced herself as Dra. Fe Rafunsel
13
Number 2, Sinumpaang Salaysay of Jean Fernandez
14
TSN, (Direct Examination of JEAN FERNANDEZ) dated March 5, 2019, pages 4 and 5
15
Para. 3, Sinumpaang Salaysay of Jean Fernandez

Page 10 of 14
Amor and she also introduced the male person as
her husband x x x”; and16

“She took measurements of the eyeglasses

that would fit me. But at first, Sir, she put eye drops
on my right and left eye. It was a liquid form and it
hurts, Sir. I asked her why it hurts and the she told
me it is just the effect of the medicine or maybe my
eyes are dirty and I believed. And after that, she had
me wear eyeglasses made of steel and also uses
different lenses and she me to read letters.” 17

In her Sinumpaang Salaysay, Jean Fernandez simply

stated that when she arrived at the clinic, she was invited by
“Dr. Cherry Amor”18 inside the clinic and was administered
with an eye drop. This contradicts her statement during her
direct testimony quoted above where she claimed that accused
introduced herself as Dra. Fe Rafunsel Amor.

In People vs. De Guzman,19 the Supreme Court held that

the time-honored test in determining the value of the
testimony of a witness is its compatibility with human
knowledge, observation and common experience of man   Thus,
whatever is repugnant to the standards of human knowledge,
observation and experience becomes incredible and must lie
outside judicial cognizance. Consistently, the Court has ruled
that evidence to be believed must proceed not only from the
mouth of a credible witness but must be credible in itself as to
hurdle the test of conformity with the knowledge and common
experience of mankind.

In People vs. Maraorao,20 the High Court declared that

while a lone witness’ testimony is sufficient to convict an
accused in certain instances, the testimony must be clear,
consistent, and credible—qualities we cannot ascribe to this
case. Jurisprudence is consistent that for testimonial evidence
to be believed, it must both come from a credible witness and
be credible in itself – tested by human experience, observation,
common knowledge and accepted conduct that has evolved
through the years.
16
TSN, (Direct Examination of JEAN FERNANDEZ) dated March 5, 2019, pages 7 and 8
17
Ibid, page 11
18

19
G.R. No. 192250, July 11, 2012
20
G.R. No. 174369, June 20, 2012

Page 11 of 14
Other Evidence Adduced by
the Prosecution

Other evidence of the prosecution consists of the

testimony of the Mary Jan Edquid and other documentary
evidence. The accused controverts the said evidence against
her for the reason that:

2. The Certification from the Professional Regulation

Commission offered in evidence by the prosecution
offers no relevance as it does not tend to prove at any
degree the culpability of the accused in charge of
estafa under Article 315, 2, (a) of the Revised Penal
Code.

The certification only shows that accused Fe Rafunsel

Amor y Mabulay is not one of those listed as licensed and/or
registered optometrists in the data base of Professional
Regulation Commission. It does not point out directly that the
accused committed false pretenses or fraudulent acts during
the alleged transaction between accused and Jean Fernandez
sometime in April 2016.

3. The purported receipt issued by the accused to Jean

Fernandez does not pertain to the true identity of the
latter.

It is worthy to reiterate that this evidence was not

supported with any evidence as to why said receipt contains
the name “Joyce Tallorin” aside from Jean Fernandez’s
statement that it was the name of her sister and that she only
used it for future reimbursement. This is contrary to logic or
human experience.

The presumption of innocence in

favor of the accused

It is a fundamental right of an accused to be presumed

innocent until the contrary is proven beyond reasonable
doubt.

Page 12 of 14
In People vs. Maraorao, the High Court pronounced that
the presumption of innocence of an accused in a criminal case
is a basic constitutional principle, fleshed out by procedural
rules which place on the prosecution the burden of proving
that an accused is guilty of the offense charged by proof
beyond reasonable doubt. Accused humbly submits that the
presumption of innocence has not been overturned.

In every criminal case, the accused is entitled to acquittal

unless his guilt is shown beyond reasonable doubt. 21

PRAYER

WHEREFORE, it is respectfully prayed that this case be

be dismissed and/or the accused be acquitted of the crime
charged.

Such other relief and remedies as may be deemed just

and equitable under the premises are likewise prayed for.

Quezon City, September 25, 2020.

Counsel for the Accused:

ATTY. KELVIN ROY L. DOMINGO

B5 L14, Elegant Homes Subdv.,
Bahay Toro, Quezon City
IBP No. 120239, January 10, 2020, Pasig City
Roll No. 68903, May 30, 2017
PTR No. 9389639, February 22, 2020, Quezon City
MCLE Compliance No. VI-0026344, May 8, 2019

NOTICE OF HEARING
21
People vs. Claro, G.R. No. 199894, April 5, 2017

Page 13 of 14
The Clerk of Court
Metropolitan Trial Court
Branch 86
Caloocan City, Metro Manila

Hon. Ivy Mabansag

Senior Assistant City Prosecutor (SACP)
City Prosecutor’s Office
Caloocan City, Metro Manila

Greetings:

Please take notice that the undersigned counsel for the

defense is submitting the foregoing motion for the
consideration and resolution of the Honorable Court on
September 25, 2020 at 2:00 o’clock in the afternoon.

ATTY. KELVIN ROY L. DOMINGO

Copy furnished: (personal service)

HON. IVY MABANSAG

Senior Assistant City Prosecutor (SACP)
Office of the City Prosecutor
3/F Judicial Complex Building
10th Avenue, Caloocan City

Page 14 of 14