To kill a panda

By Atty. Eduardo T. Reyes III

 

Bitter irony struck on Holy Week when a food delivery driver was felled by bullets for the petty reason that some paperwork was drenched. It was reported that four shots rang out shortly after the Food Panda driver lowered his food container on the security guard’s table to look for the customer who ordered the food online.

The incident that took the life of the Food Panda driver at a time when he was in the act of delivering food -that symbolizes life- heightens the irony.

What is even worse is that reportedly, while the security guard was expectedly armed with a gun, the Food Panda driver was unarmed. Still more, the first shot was fired when the FoodPanda driver had already turned his back to walk away; while the succeeding shots followed when he attempted to run further away, but without success, as the bullets caught up with him one after the other snuffing out his life on the spot where he fell.

This inequality between perpetrator and victim is not insignificant under Philippine criminal law. The disparity may constitute as “qualifying circumstances” that can upgrade the killing from mere homicide to murder. Two kinds of “qualifying circumstances” could come into play in this particular case: treachery and abuse of superior strength.

 

1)Treachery

The essence of treachery is the adoption of means and methods by the perpetrator that ensures the completion of the killing with impunity, or without risk to the perpetrator. It is usually applied in cases where the victim was defenseless at the time of the attack.

It was held in People v. Guarin that “In order for treachery to be properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend himself or to retaliate or escape; and (2) the accused consciously and deliberately adopted the particular means, methods, or forms of attack employed by him.  X x x Guarin’ s attack on Manaois was sudden and unexpected. Manaois, who was then about to board his tricycle with his eyes focused on starting its engine, was not aware of any impending danger. Likewise, he was unarmed and his defenses were down. Hence, he was caught off guard when Guarin stabbed him. The stealth and swiftness by which the attack was carried out rendered Manaois defenseless, and significantly diminished the risk for Guarin to receive retaliation from the victim. Even if Manaois was able to briefly run away after being hit, he was still pursued by Guarin who continued stabbing him. In addition, Botial testified that Guarin was already holding a knife when the latter was approaching them. Hence, the attack was planned ahead of time. Clearly, the prosecution has established that the qualifying circumstance of treachery is present. (People of the Philippines v. Edgar Guarin y Veloso a.k.a. “Banong”, G.R. No. 245306. December 2, 2020).  

Treachery was also ruled to be present even if the attack was frontal for as long as the victim was unprepared for it. “Both the RTC and the CA correctly appreciated the qualifying circumstance of treachery. The victim was completely unaware of any threat to his life. The victim was asleep on a folding chair when accused-appellant stabbed him. The autopsy report revealed that the attack was frontal as the stab wounds were treated on the victim’s left shoulder and chest causing his death. The victim also had no defense wounds that would show if he was awake at the time of the attack. The victim was completely defenseless. Evidently, the killing was executed to ensure that the victim has no opportunity to respond or defend himself.” (People of the Philippines v. Domingo Lazarte y Cobatha, G.R. No. 243623. July 29, 2020).

And case law also holds that treachery may be appreciated even if the victim was forewarned, thus: “As regards the third element, the trial court aptly appreciated the qualifying circumstance of treachery or alevosia. In order for the qualifying circumstance of treachery to be appreciated, the following requisites must be shown: (1) the employment of means, method, or manner of execution would ensure the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity being given to the latter to defend himself or to retaliate, and (2) the means, method, or manner of execution, as deliberately or consciously adopted by the offender. X x x The requisites for treachery are present in the killing of Cumahig. The prosecution was able to establish the fact that at the time of the attack Cumahig was unarmed and in the comforts of their home with their  children. In this case, the swift and sudden stabbing done by Ivero left Cumahig with no sufficient means to put up a defense as there were no items found in the scene of the crime other than the kitchen knife used by Ivero. Cumahig was rendered helpless by the situation and all she could do is muster the strength to seek succor from her neighbors after the stabbing incident. The suddenness of the attack may be inferred from the testimony of Sadie, the neighbor separated by a thin piece of plywood, who only heard the cry for help of the victim only after the stabbing. The absence of any verbal or physical squabble prior to the attack proves that Cumahig was not able to put up a fight and did not provoke the attack of the accused. Further, the fact that there was no defense wound bolsters the fact that the attack was unexpected. Also, the fact that all the five stab wounds were frontal does not negate treachery. Even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it. In fact, treachery may still be appreciated even when the victim was forewarned of the danger to his or her person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or herself or to retaliate.(People of the Philippines v. Warren Ivero y Mabutas G.R. No. 236301. November 3, 2020).

 

2)Abuse of superior strength

While as to the qualifying circumstance of “abuse of superior strength”, this was explained in People v. Campit, as follows: “The circumstance of abuse of superior strength is present whenever there is inequality of force between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor, and the latter takes advantage of it in the commission of the crime. Nevertheless, it must be stressed that superiority in number does not necessarily amount to abuse of superior strength.  For the qualifying circumstance to be appreciated, it must be shown that the aggressors combined forces in order to secure advantage from their superiority in strength. (PEOPLE v. CRESENCIO CAMPIT y CRISTO ET AL., G.R. No. 225794,  06 December 2017).

The senseless killing of the Food Panda driver this Holy Week reverberates more profoundly than the jarring echoes of those bullets that had rung out.  The role of a security guard is to protect against bad elements who imperil the business he is guarding; not to attack the unarmed, much less one who is there to bring food to customers.

The killing of the FoodPanda driver is reminiscent of Harper Lee’s  “To Kill A Mockingbird” where Atticus Finch illustrated to his daughter what real courage means. He said:  “I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand”.

Indeed, killing a panda is no different from killing a mockingbird. Both creatures symbolize harmlessness if not innocence. While the instinctive manner by which the security guard pulled the trigger is symptomatic of the ills of society that does not put a premium on human life anymore.

Both the parallelism and the paradox will linger until the sarcasm is straightened out.

          

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).