Expressing fears for his life, detained real estate developer Delfin Lee cited Rule 114, Section 3 of the Revised Rules on Criminal Procedure in an Omnibus Motion to prevent his transfer from the Pampanga Provincial Jail at the Capitol compound to the Bureau of Jail Management and Penology facility in Barangay Telabastagan here.
Regional Trial Court (RTC) Third Judicial Region Executive Judge Divina Luz P. Aquino- Simbulan, in a letter dated October 29 to Judge Maria Amifaith S. Fider-Reyes, the presiding judge of RTC Branch 42 hearing the case of Lee, “advises that the appropriate Court Order” from the latter be issued “directing the transfer of accused Lee.”
Simbulan said she wants Lee transferred to another jail facility here after receiving “anonymous letters affecting Lee” and for being “surprised to see that there is a small gym (with bench press) in the vacant cell adjoining the cell where accused Delfin Lee was incarcerated.”
Simbulan also said she “received information from RTC Zumba instructor Marlon Sumala that a certain Kenneth Nicdao, alleged bodyguard of accused Delfin Lee, threatened to kill or hurt him…”
The executive judge said she was able to establish that Nicdao is a frequent visitor of Lee who allegedly goes on daily duty from 8 a.m. to 5 p.m. at the provincial jail.
However, Simbulan herself said “Nicdao does not even log thereat.”
She said even if Nicdao already extended his apologies to Sumala, “questions arise as to the security measures existing at the Pampanga Provincial Jail where even incidents of illegal drugs infiltration have been reported.”
Simbulan said the transfer of Lee to the Telabastagan facility will even be beneficial to his lawyer, Atty. Willie Rivera, who holds office in Balibago, Angeles City.
She said BJMP officials led by Supt. Rufino M. Santiago, Jr. and District Jail Warden Roy Regacho assured her that “they can secure accused Delfin Lee.”
But Lee said he now fears for his life if he is transferred to the BJMP facility in Barangay Telabastagan because of the numerous death threats he is receiving.
Judge Reyes
‘pre-empted’
Lee’s lawyer, Atty. Rony Garay, said Simbulan has “already pre-empted any action” of Judge Reyes who “is yet to act on the said advice.”
Garay said Simbulan has already coordinated with the transfer of the accused without waiting for the court’s action.
In an Omnibus Motion, Garay said “no person under detention shall be transferred except upon lawful order of the court.” Rule ii4, sec 3 of revised rules on criminal procedure.
But what is worse, Garay said, is Simbulan’s basis for her “advice” which are “pure surmises, conjectures and hearsay.”
Garay pointed out that the alleged gym near his client’s cell has two pieces of dumb bells and a bench press and nothing more. He said it is not even owned by his client as the dumb bells are the property of the Provincial Jail.
As to the transfer being beneficial to Lee’s counsel Atty. Rivera, Garay said the real question is why would Judge Simbulan be concerned with what is beneficial to Rivera when she did not even consider the safety of the accused who has been receiving death threats since the start of the case.
Garay, who is based in Manila, explained that Rivera is a candidate for vice mayor of Angeles City and is not active in Lee’s defense.
And why would Simbulan conclude that the security concerns of Lee is nil after she received the reply of the Presiding Judge that the accused has waived his appearance in court, Garay said.
“This is precisely the reason why the accused has waived his appearance in court – to minimize the danger of being killed or harmed while in transit from the jail to the courtroom every time there is a hearing,” Garay explained.
Lee’s lawyer said all other basis for Simbulan’s advise are hearsay like the anonymous letters she received and the information she got regarding the altercation of Sumala and Nicdao.
Garay said Simbulan was able to establish that Nicdao is a frequent visitor of Lee from 8 a.m. to 5 p.m. everyday but only to admit that upon verification, Nicdao has no record in the Provincial Jail Visitors’ logbook.
As to Simbulan’s allegations that, “questions also arise as to the security measures existing at the Pampanga Provincial Jail where even incidents of illegal drugs infiltration have been reported,” Garay said his client is not the jail warden and therefore such reports have nothing to do with him.
‘Unfair’
“In short there are no direct allegations or claims of special treatment” in favor of Lee, Garay said.
He said it will be “truly unfair” for Lee to be transferred to the BJMP Telabastagan and be incarcerated together with about 100 common and hardened criminals, especially because the accused is not yet a convicted felon.
Garay said to transfer his client would “trivialize and trample upon his constitutional right” of being presumed innocent until the contrary is proven because the advice to transfer him to the BJMP Telabastagan has no legal and factual basis.
Garay said if Simbulan would insist on the transfer, it is requested by his client among others that Simbulan “be required to execute a written personal undertaking to secure the safety of his client and if ever he is physically harmed at the BJMP Telabastagan, any consequence shall be the personal liability of the executive judge.”
Judge Reyes has noted the foregoing and has set a hearing at 1:30 p.m. on Nov. 9.
