G.R. No.

195640 December 4, 2012

SUGAR REGULATORY ADMINISTRATION, represented by its

Administrator, Petitioner,
vs.
ENCARNACION B. TORMON, EDGARDO B. ALISAJE, LOURDES M.
DOBLE, TERESITA Q. LIM, EDMUNDO R. JORNADAL, JIMMY C.
VILLANUEVA , DEANNA M. JANCE, HENRY G. DOBLE, REYNALDO D.
LUZANA, MEDELYN P. TOQUILLO, SEVERINO A. ORLIDO,
RHODERICK V. ALIPOON, JONATHAN CORDERO, DANILO B.
BISCOCHO, BELLO C. LUCASAN, LUBERT V. TIVE, and the
COMMISSION ON AUDIT, Respondents.

DECISION

PERALTA, J.:

Assailed in this petition for certiorari under Rule 64, in relation to Rule
65 of the Rules of Court, is Decision No. 2010-1461 dated December
30,2010 of the Commission on Audit (COA).

The antecedent facts are as follows:

Private respondents, namely: Encarnacion B. Tormon, Edgardo B.

Alisaje, Lourdes M. Doble, Teresita Q. Lim, Edmundo R. Jornadal,
Jimmy C. Villanueva , Deanna M. Jance, Henry G. Doble, Reynaldo D.
Luzana, Medelyn P. Toquillo, Severino A. Orlido, Rhoderick V. Alipoon,
Jonathan Cordero, Danilo B. Biscocho, Bello C. Lucasan, Lubert V.
Tive, were former employees of Philippine Sugar Institute (PHILSUGIN)
and the Sugar Quota Administration (SQA). On February 2, 1974,
Presidential Decree (P.D.) No. 388 was issued creating the Philippine
Sugar Commission (PHILSUCOM). Under the said decree, PHILSUGIN
and SQA shall be abolished upon the organization of PHILSUCOM and
all the former's assets, liabilities and records shall be transferred to the
latter and the personnel of the abolished agencies who may not be
retained shall be entitled to retirement/gratuity and incentive benefits.

In September 1977, PHILSUGIN and SQA were abolished and private

respondents were separated from the service; thus, they were paid their
retirement/gratuity and incentive benefits. In the same year, private
respondents were reinstated by PHILSUCOM subject to the condition
that the former would refund in full the retirement/gratuity and incentive
benefits they received from PHILSUGIN or SQA. PHILSUCOM
Consultant, Eduardo F. Gamboa, wrote:

We have received orders from the Main Office to require you to refund
in full the unexpired portion of the money value of the retirement or lay-
off gratuity you received as called for in Office Memorandum No. 4,
series of 1977, dated December 5, 1977, in view of your reinstatement
in the service.

xxxx

In connection herewith, you are therefore directed to make the

necessary refund of the above-mentioned amount to our Local
Accounting Department and to inform the Personnel Department, when
refund is made. Failure on your part to make the necessary refund will
constrain us to recommend corrective measures.2

On May 28, 1986, Executive Order (E.O.) No. 18, series of 1986 was
issued wherein the Sugar Regulatory Administration (petitioner SRA)
replaced PHILSUCOM. PHILSUCOM's assets and records were all
transferred to petitioner SRA which also retained some of the former's
personnel which included the private respondents.

On July 29, 2004, E.O. No. 339 was issued, otherwise known as
Mandating the Rationalization of the Operations and Organization of the
SRA, for the purpose of strengthening its vital services and refocusing
its resources to priority programs and activities, and reducing its
personnel with the payment of retirement gratuity and incentives for
those who opted to retire from the service. Among those separated from
the service were private respondents. Under the SRA Rationalization
Program, petitioner computed its employees' incentives and terminal
leave benefits based on their creditable years of service contained in
their respective service records on file with petitioner and validated by
the Government Service and Insurance System (GSIS). The
computation was then submitted to the Department of Budget and
Management (DBM) for approval and request of funds. The DBM
approved the same and released the disbursement vouchers for
processing of the incentive benefits.
However, in the course of the implementation of its rationalization plan,
petitioner found out that there was no showing that private respondents
had refunded their gratuity benefits received from PHILSUGIN or SQA.
Hence, petitioner considered private respondents' length of service as
having been interrupted which commenced only at the time they were
re-employed by PHILSUCOM in 1977. Petitioner then recomputed
private respondents' retirement and incentive benefits and paid only the
75% equivalent of the originally computed benefits and withheld the
remaining 25% in view of the latter's inability to prove the refund.

Private respondents requested petitioner to compute their incentive

benefits based on their length of service to include their years of
service with PHILSUGIN or SQA taking into consideration their refund of
gratuity benefits to PHILSUCOM at the time of their re-employment in
1977. On January 4, 2007, then petitioner's Administrator, James C.
Ledesma, issued a memorandum3 declaring the services of its
employees affected by the Rationalization Program, which included
private respondents, terminated effective on January 15, 2007. Under
Board Resolution No. 2007-0554 dated June 14, 2007, petitioner
denied private respondents' requests for the latter's failure to submit
proofs of refund of gratuity received from PHILSUGIN or SQA.

On September 6, 2007, private respondents wrote a letter5 addressed

to then Commission on Audit (COA) Chairman, Guillermo N. Carague,
asking the COA to order petitioner to pay the balance representing the
25% of their retirement and incentive benefits withheld by petitioner.
They claimed that they had already refunded the full amount of the
incentive benefits through salary deductions and since petitioner could
no longer find the PHILSUCOM payrolls reflecting those deductions,
private respondents submitted the affidavits of Messrs. Hilario T.
Cordova6 and Nicolas L. Meneses Jr.,7 petitioner's Chief,
Administrative Division, and Manager, Administrative and Finance
Department, respectively, both executed in March 2007, attesting to the
fact of refund.

Petitioner filed its Answer8 thereto contending among others that since
private respondents alleged payment, they were duty-bound to present
evidence substantiating the said refund; that no records of payments
existed to clearly establish their claim, thus, their resort to secondary
evidence which were the sworn affidavits of petitioner's former officials
were insufficient to prove the fact of the alleged payment.

On October 14, 2009, the COA rendered Decision No. 2009 -100,9 with
the following dispositive portion, to wit:

WHEREFORE, foregoing premises considered, this Commission rules

that the affidavits presented by claimants are insufficient proofs that
they have refunded to PHILSUCOM the gratuity/incentive benefits they
received from PHILSUGIN/SQA.

Evidence other than the affidavits must be presented to substantially

prove their claims. Also, all the benefits, gratuity, incentive and
retirement they received upon their separation from PHILSUGIN or SQA
must be accounted for and refunded to SRA before the requested
incentive benefit is computed based on their length of government
service reckoned from the time they were employed with PHILSUGIN or
SQA.10

In so ruling, the COA found that since private respondents alleged

payment, they had the burden of proving the same by clear and
positive evidence; that the affidavits of Messrs. Cordova and Meneses,
Jr. stating that private respondents had refunded to PHILSUCOM the
benefits they received from PHILSUGIN/SQA were not the best
evidence of such refunds; that an affidavit was made without notice to
the adverse party or opportunity to cross examine; and that the
contents of these affidavits were too general and did not state private
respondents respective final payments.

Private respondents filed their motion for reconsideration which was

opposed by petitioner.

On December 30, 2010, the COA rendered Decision No. 2010-146

granting private respondents' motion for reconsideration, the dispositive
portion of which reads:

WHEREFORE, premises considered, the instant Motion for

Reconsideration is hereby GRANTED. Accordingly, COA Decision No.
2009-100 is hereby REVERSED and [SET] ASIDE. The SRA is directed
to release to movants the amount representing the 25% balance of their
incentive and terminal leave benefits.11

In its decision, the COA observed that private respondents had filed a
separate but related complaint with the Civil Service Commission
(CSC). It found that while their complaint with the CSC was
denominated as illegal termination/backwages and entitlements, the
main thrust of their complaint was to compel the payment of the 25%
balance of their total incentives and terminal leave benefits withheld by
petitioner, which was the same demand made in their letter to Chairman
Carague whose decision is the subject of the motion for
reconsideration, thus, forum shopping existed. The COA also noted that
in their Supplement to Motion for Reconsideration/Manifestation filed on
November 24, 2009, private respondents mentioned the ruling of the
CSC12 in their favor and they now disputed the COAs jurisdiction to
rule on their demand contending that it is the CSC which has
jurisdiction over cases involving government reorganization; and that
the CSC had issued a Resolution granting private respondents' motion
for execution of the CSC resolution. Notwithstanding, however, the COA
found that it did not lose jurisdiction over the present case and went on
to decide the claim on the merits and disregarded the CSC Resolution.

The COA ruled that the affidavits submitted were not secondary
evidence within the context of Section 5, Rule 130 of the Rules of Court,
hence, admissible in evidence, since technical rules of procedure and
evidence are not strictly applied in administrative proceedings. The
COA found in the records certain significant circumstances which,
when taken together with the affidavits, established that indeed private
respondents had refunded the incentives in question. Since private
respondents had discharged their burden of proof, it was incumbent on
petitioner to discharge the burden of evidence that respondents had
not paid the said incentives; that it was the PHILSUCOM, then
petitioner, being the successor of PHILSUGIN and SQA, that had been
tasked with the official custody of all the records and books of their
predecessors, as mandated under Section 10 of Presidential Decree
No. 388; that if petitioner's Accounting Division cannot issue a
certification because it has no records, it is never an excuse to shift the
burden to the employees.

Petitioner is now before us raising the following issues, to wit:

1. Whether or not respondent Commission erred and gravely abused its
discretion when it gave credence to the affidavits of Mr. Hilario T.
Cordova, then Chief, Administrative Division, SRA, and Mr. Nicolas L.
Meneses, Jr., then Manager, Administrative and Finance Department
plainly alleging that the gratuity/incentives have been refunded by the
private respondents.

2. Whether or not public respondent Commission on Audit erred and

gravely abused its discretion in making assumptions or suppositions
out of certain circumstances which were not even alleged by private
respondents and in arriving at a conclusion out of the same in favor of
private respondents.

3. Whether or not public respondent Commission on Audit erred and

gravely abused its discretion in finding substantial evidence that private
respondents refunded the gratuity incentives in question.13

The issue for resolution is whether the COA committed grave abuse of
discretion amounting to lack of jurisdiction in directing petitioner to pay
the 25% balance of private respondents' incentive and terminal leave
benefits withheld from the submitted computation of petitioner and duly
funded by the DBM.

We find no merit in the petition.

Petitioner withheld 25% of private respondents' incentive and terminal

leave benefits because of their failure to present evidence of refund of
the amounts of retirement and incentive benefits earlier received from
PHILSUGIN/SQA. On the other hand, private respondents claim that
they had already refunded these benefits through salary deduction,
therefore, they are entitled to the payment of the amounts withheld by
petitioner. The burden of proof is on private respondents to prove such
refund. One who pleads payment has the burden of proving it.14 Even
where the creditor alleges non-payment, the general rule is that the
onus rests on the debtor to prove payment, rather than on the creditor
to prove non-payment.15 The debtor has the burden of showing with
legal certainty that the obligation has been discharged by payment.16
Well settled also is the rule that a receipt of payment is the best
evidence of the fact of payment.17 In Monfort v. Aguinaldo,18 the
receipts of payment, although not exclusive, were deemed to be the
best evidence. Private respondents, however, could not present any
receipt since they alleged that their payments were made through
salary deductions and the payrolls which supposedly contained such
deductions were in petitioner's possession which had not been
produced. In order to prove their allegations of refund, private
respondents submitted the affidavits of Messrs. Cordova and Meneses,
Jr., which we successively quote in part, to wit:

Mr. Cordova states:

That I was the Administrative Officer II of the defunct Philippine Sugar

Institute when it was abolished in 1977; that I hold the same position
when the Philippine Sugar Commission took over the functions of
PHILSUGIN from that year up to 1986;

That I continued to be the head of Personnel Division when Sugar

Regulatory Administration replaced PHILSUCOM in 1986 and retired as
Division Chief II of the Administrative Division on July 31, 2003;

That during my incumbency in said positions, I have personal

knowledge of the paymen/refund of ex-PHILSUGIN employees
separated from service but reinstated in PHILSUCOM by way of salary
deduction through payroll;

That Ms. Encarnacion Tormon, et al., upon return to service with

PHILSUCOM, refunded the amount of the gratuities they received from
PHILSUGIN in the months following/succeeding upon their appointment
as reinstated employees of PHILSUCOM;

That their status as reinstated employees are officially marked in their

individual service records duly authenticated by myself as Chief of
Personnel Division and validated by the Government Service Insurance
System as proven by GSIS computation of their creditable years.19

On the other hand, Mr. Meneses Jr., states:

That I was the Chief Internal Auditor of the defunct Philippine Sugar
Institute when it was abolished in 1977; that I hold a key position in the
Budget and Accounting Division when the Philippine Sugar
Commission took over the functions of PHILSUGIN from that year up to
1986;

That I later became Division Chief I of [the] Budget Division in the Sugar
Regulatory Administration in 1988 and retired as Manager of the
Administrative and Finance Department on July 31, 2003;

That during my incumbency in said positions, I have personal

knowledge of the payment/refund of ex-PHILSUGIN employees
separated from service and reinstated in PHILSUCOM;

That Ms. Encarnacion Tormon et al., upon return to service with

PHILSUCOM, refunded the amount of the gratuities they received from
PHILSUGIN;

That their status as reinstated employees are officially marked in their

individual service records duly authenticated by the Chief of Personnel
Division and validated by GSIS.20

Messrs. Cordova, being petitioner's head of the Personnel Department,

and Meneses, Jr., as petitioner's Chief of Budget Division, and later
Manager of the Administrative and Finance Department, were in the
best positions to attest to the fact of private respondents' refund
through salary deductions of the amounts of retirement and incentive
benefits previously received, especially since these officials were in
those departments since PHILSUCOM took over in 1977 and later with
petitioner until their retirement in 2003. There was nothing on record to
show that Messrs. Cordova and Meneses, Jr. were actuated with any ill
motive in the execution of their affidavits attesting to the fact of refund.

The general rule is that administrative agencies are not bound by the
technical rules of evidence. It can accept documents which cannot be
admitted in a judicial proceeding where the Rules of Court are strictly
observed. It can choose to give weight or disregard such evidence,
depending on its trustworthiness.21 Here, we find no grave abuse of
discretion committed by the COA when it admitted the affidavits of
Messrs. Cordova and Meneses, Jr. and gave weight to them in the light
of the other circumstances established by the records which will be
shown later in the decision.

Petitioner claims that the affiants attested on a matter which happened

30 years ago; thus, how could they recall that each of the 16 employees
had actually refunded the gratuity/incentives way back in 1977; that
each of the private respondents held different positions with salaries
different from each other and the dates when they respectively re-
assumed service in the government differed from each other; that it
may not even be entirely correct that all 16 respondents refunded the
gratuity incentives in question by salary deduction.

We are not persuaded.

Significantly, Messrs. Cordova and Meneses, Jr. were petitioner's

former officials who held key positions in the two divisions, namely,
Personnel and Accounting Divisions, where private respondents were
directed by then petitioner's Consultant Gamboa to make the necessary
refunds for their retirement and incentive pay. Thus, if no refunds were
made, these officials could have reported the same to Gamboa, who
would have taken corrective measures as he threatened to do so if
private respondents failed to make the necessary refunds. Notably,
there is no showing that corrective measures had been taken.
Moreover, as we said, while the COA admitted the affidavits, it did not
rely solely on those affidavits to conclude that refunds were already
made by private respondents. The matter of refund was proven by
several circumstances which the COA found extant in the records of the
case. We find apropos to quote the COA findings in this wise:

First, movants were reemployed by PHILSUCOM with the condition that

they must return the benefits they had already received. In his 16 March
1978 letter, Mr. Eduardo F. Gamboa, directed Ms. Tormon to refund the
amount and to inform the Personnel Department when the refund was
made. He warned Ms. Tormon to make the refund or they will be
constrained to recommend corrective measures. The fact was that
claimants were reinstated. That management did not take any
corrective measures to compel the refund except perhaps, the
enforced salary deduction which claimants said was the mode of
refund undertaken - is a point in favor of claimants. It would be
unbelievable that in all these years, from 1977 to 2007, the SRA
management, indubitably having the higher authority, just slept on its
right to enforce the refund and did nothing about it. The natural and
expected action that SRA ought to have taken was to enforce the
refund through salary deduction, not through voluntary direct payment
since the latter option does not carry with it the mandatory character of
an automatic salary deduction.

Second, a certain Mr. Henry Doble, one of the movants, was promoted
from Emergency Employee, a temporary status, to senior machine
cutting operator with permanent status. If Mr. Doble had not refunded
his gratuity, it was more reasonable to suppose that SRA would not
have promoted him.

Third, COA Directors Rosemarie L. Lerio and Divina M. Alagon, CGS

and SRA ATL22 Antonio M. Malit, to whom the case was coursed
through for comments, did not mention, even in passing, of any audit
finding in the Annual Audit Reports (AARS) regarding the unrefunded
incentives received by claimants The silence of the AARs for 30 years
would only lend credence that theses refunds were made.

Fourth, under the SRA Rationalization program, the affected employees'

incentive and terminal leave benefits were computed based on their
creditable years of services as contained in their respective service
records with the agency as validated by the GSIS. Accordingly, SRA
computed movants' incentive and terminal leave benefits as of
December 31, 2006 which was approved by the Department of Budget
and Management (DBM) Secretary Rolando Andaya. This only showed
that even the SRA was convinced that movants had no more financial
accountability with the SRA at the time.1wphi1

Fifth, then SRA Administrator James C. Ledesma informed movants that

not one of the records of the payments they claimed was available at
the office; thus, the SRA could not be definite as to the actual payments
made by them and the equivalent periods corresponding thereto, Also,
Ms. Amelita A. Papasin, Accountant IV, Accounting Unit, SRA, Bacolod,
stated that they could not find any record showing payments made as
claimed by Ms. Tormon, et al., to refund the severance gratuities paid to
them during their termination on September 30, 1977. Indeed, the SRA
could not comply with the request of Mr. Antonio M. Malit, Audit Team
leader (ATL), SRA, to produce copies of payroll or index of payments,
or any accounting records covering the 32-year period which would
have shown whether movants paid or did not pay the required refund.
These payrolls and other records would have conclusively established
the fact of payment or non-payment, But then all the SRA could say was
there is no record of such payment. Absence of record is different from
saying there was no payment.23

Factual findings of administrative bodies charged with their specific

field of expertise, are afforded great weight by the courts, and in the
absence of substantial showing that such findings were made from an
erroneous estimation of the evidence presented, they are conclusive,
and in the interest of stability of the governmental structure, should not
be disturbed.24

Petitioner's claim that the COA made its own assumptions which were
not even based on the allegations made by private respondents in any
of their pleadings is devoid of merit. In their Reply to petitioner's
Supplemental Comment/Opposition to private respondents' motion for
reconsideration, private respondents had alleged some of these above-
mentioned circumstances to support their claim that refunds had
already been made. We also find that the records of the case support
the above-quoted circumstances enumerated by the COA.

Considering that private respondents had introduced evidence that

they had refunded their retirement and incentive benefits through salary
deduction, the burden of going forward with the evidence- as distinct
from the general burden of proof- shifts to the petitioner, who is then
under a duty of producing some evidence to show non-payment.25
However, the payroll to establish whether or not deductions had been
made from the salary of private respondents were in petitioner's
custody, but petitioner failed to present the same due to the
considerable lapse of time.

All told, we find no grave abuse of discretion amounting to lack or

excess of jurisdiction committed by the COA in rendering its assailed
decision. There is grave abuse of discretion when there is an evasion of
a positive duty or a virtual refusal to perform a duty enjoined by law or
to act in contemplation of law as when the judgment rendered is not
based on law and evidence but on caprice, whim and despotism,26
which is wanting in this case.
WHEREFORE, the petition is DISMISSED. Decision No. 2010-146 dated
December 30, 2010 of the Commission on Audit is hereby AFFIRMED.

SO ORDERED.

x--x

SECOND DIVISION

G.R. No. 196142, March 26, 2014

VENUS B. CASTILLO, LEAH J. EVANGELISTA, DITAS M. DOLENDO,

DAWN KAREN S. SY AND PRUDENTIAL PLANS, INC. EMPLOYEES
UNION FEDERATION OF FREE WORKERS (PPEUFFW), Petitioners,
v. PRUDENTIALIFE PLANS, INC., AND/OR JOSE ALBERTO T. ALBA,
ATTY. CEFERINO A. PATIO, JR., AND ROSEMARIE DE LEMOS,
Respondents.

DECISION

DEL CASTILLO, J.:

In a labor case, the written statements of coemployees admitting their

participation in a scheme to defraud the employer are admissible in
evidence. The argument by an employee that the said statements
constitute hearsay because the authors thereof were not presented for
their crossexamination does not persuade, because the rules of
evidence are not strictly observed in proceedings before the National
Labor Relations Commission (NLRC), which are summary in nature and
decisions may be made on the basis of position papers.

This Petition for Review on Certiorari1 assails the January 14, 2011
Decision2 of the Court of Appeals (CA) in CAG.R. SP No. 111981
which reversed and set aside the dispositions of the NLRC, as well as
the CAs March 16, 2011 Resolution3 denying reconsideration thereof.

Factual Antecedents
Individual petitioners Venus B. Castillo (Castillo), Leah J. Evangelista
(Evangelista), Ditas M. Dolendo (Dolendo), and Dawn Karen S. Sy (Sy)
were regular employees of respondent Prudentialife Plans, Inc.
(Prudentialife), to wit:chanRoblesvirtualLawlibrary

Employee Name
Position
Date Employed
Venus B. Castillo
CFP Clerk
November 27, 1995
Leah J. Evangelista
Data Encoder
October 16, 2000
Ditas M. Dolendo
Data Control Clerk
February 2002
Dawn Karen S. Sy
Data Control Clerk
October 1999

Prudential Plans Employees Union FFW (PPEUFFW), on the other

hand, is a local chapter of the Federation of Free Workers and is the
authorized bargaining agent of Prudentialifes rankandfile employees.
The individual petitioners are members of PPEUFFW.

Respondent Prudentialife is an insurance company, while respondents

Jose Alberto T. Alba (Alba), Atty. Ceferino A. Patio, Jr. (Patio) and
Rosemarie de Lemos (de Lemos) are its President, First VicePresident
for Corporate Services Group, and Assistant VicePresident for Human
Resources, respectively.

Under Section 4, Article X of the parties Collective Bargaining

Agreement (CBA), Prudentialife employees were granted an optical
benefit allowance of P2,500.00 to subsidize prescription eyeglasses for
those who have developed vision problems in the course of
employment. The pertinent CBA provision
states:chanRoblesvirtualLawlibrary
Section 4. Optical benefit. The Company shall provide an amount not
to exceed P2,500.00 inclusive of VAT to any covered employee to
defray the cost of eyeglasses that may be prescribed by the accredited
HMO physician or employees personal optometrist. The benefit can be
availed of only once every two (2) years.4

Many Prudentialife employees petitioners included availed thereof

and Prudentialife was flooded with requests for reimbursement for
eyeglasses the employees supposedly purchased from a single outfit/
supplier, Alavera Optical. Suspecting fraud, Prudentialife began an
investigation into the matter, and on February 22, 2006, it sent individual
written Notices to Explain5 to petitioners and other employees who
availed of the benefit. The notices revealed its initial findings that the
given address and telephone number of Alavera Optical were fictitious;
that the official receipts and prescriptions issued by Alavera Optical
appear to have been forged; that the eyeglasses were grossly
overpriced; and that Prudentialife was being required to pay for the
eyeglasses even though they have not been released as yet. The
notices required the recipients thereof to submit their written
explanation relative to acts of dishonesty and fraud which they may
have committed in connivance with Alavera Optical.

Petitioners and the other availing employees submitted their respective

written explanations. Prudentialife brought the subject eyeglasses to
reputable optical shops particularly Sure Vision and Sarabia Optical
for comparative examination as to quality and price. The eyeglasses of
Evangelista and Dolendo were brought to Sure Vision Optical, Star Mall
branch, Mandaluyong City, and Sys were brought to Sarabia Optical,
Greenbelt I branch, Makati City. The two optical shops found that
Dolendo and Sys eyeglasses had no grade, while the grade on
Evangelistas eyeglasses did not match the prescription issued to her.
It was likewise discovered that the cost of petitioners eyeglasses, as
declared in their respective official receipts and reimbursement
requests, was excessive compared to similar frames and lenses being
sold by Sure Vision and Sarabia Optical.6

In her written explanation, Castillo claimed that she acted in good faith
in availing of the optical benefit allowance; that she did not conspire
with Alavera Optical in the overpricing of her eyeglasses; that she was
made to believe that her transaction with Alavera Optical whereby the
latter would issue an official receipt for the eyeglasses even without
actual payment thereof, which Castillo would then claim from
Prudentialife was regular; that she was unaware that Alavera Optical
was using a fictitious address and telephone number; and that she had
no intention to defraud Prudentialife.7

Evangelista wrote that on January 27, 2006, a certain Dr. Simeona

Alavera of Alavera Optical offered to prepare her eyeglasses which she
could pay later, or after the release of her optical benefit allowance to
which she agreed; that on January 30, 2006, her eyeglasses, together
with the prescription and official receipt, were delivered to her, and she
submitted the same to Prudentialife to claim reimbursement; that on
February 1, 2006, she obtained a P2,500.00 reimbursement for her
eyeglasses, which she used to pay Dr. Simeona Alavera; and that she
acted in good faith and pursuant to company policy.8

For her part, Dolendo stated that she met Dr. Simeona Alavera through
her colleague at work; that she heard that the doctor was conducting
eye examinations at the third floor of their building, thus she had her
eyes examined as well; that on January 30, 2006, she received the
official receipt for her eyeglasses in the amount of P2,500.00 and the
doctors prescription therefor, which she forwarded to Prudentialife; and
that she had no knowledge of any dishonesty or overpricing of the
eyeglasses relative to the optical benefit allowance.9

Petitioner Sy explained that Dr. Simeona Alavera arrived at the

Prudentialife office on January 27, 2006, complete with eye examination
equipment and charts; that she subjected herself to examination; that
thereafter, Dr. Simeona Alavera offered to give her the official receipt
and prescription for eyeglasses even before actual payment thereof;
that she did not bother to investigate the authenticity, qualifications or
integrity of Dr. Simeona Alavera or Alavera Optical, but was confident of
her diagnosis; that she was not aware of the market value of the
eyeglasses but was satisfied of the price at which she bought them;
and that she believed that the refraction grade of her eyeglasses was
the same as that written on the prescription issued by Alavera Optical.
10

Other Prudentialife employees admitted that the eyeglasses they

obtained cost only so much, yet were overpriced for purposes of
reimbursement. Thus, employees Roselle Marquez, Edgardo Cayanan,
Jennifer Garcia, Nerissa Rivera, Orlando Labicane, Michael Arceo,
Jennifer Fronda and Leopoldo Padlan acknowledged that the true cost
of their respective eyeglasses ranged from only P1,200.00 P1,800.00,
and yet Alavera Optical issued official receipts for a greater amount
ranging from P2,500.00 P2,600.00 with their full knowledge and
consent, which latter amounts were actually reimbursed to them by
Prudentialife even before the eyeglasses were released or paid for;
that the fraudulent scheme was spearheaded by a certain Elvie of
Head Office; and that Elvie and Dr. Simeona Alavera told them that the
scheme was being carried out in other departments/offices within
Prudentialife.11

Prudentialife discovered that the employees who availed of the optical

benefit allowance obtained their eyeglasses from Alavera Optical,
based on the employees reimbursement requests/petty cash vouchers
and the official receipts12 that the prescriptions13 for the eyeglasses
were issued by a certain Dr. Alan Alavera, yet the address, telephone
number and Tax Identification Number of Alavera Optical were fictitious;
that it was Prudentialife employee Elvie Villaviaje who arranged with
Alavera Optical for the conduct of eye examinations within company
premises; that to entice the employees, Alavera Optical offered to
release the eyeglasses and issue the prescriptions and official receipts
even before actual payment is made; and that the reimbursements
sought for the eyeglasses were more or less the same, or averaged at
P2,500.00, yet they cost much less. Likewise, Prudentialife found that
some of the eyeglass purchases were fictitious; that some of the
eyeglasses purchased had no lens or grade; and that Alavera Optical
issued prescriptions, released the eyeglasses, and issued the official
receipts therefor even though they have not been paid for.

Thus, Prudentialife concluded that petitioners and other employees

knowingly availed of the optical benefit allowance to obtain a refund of
the maximum P2,500.00 benefit even though they did not have vision
problems, or that their eyeglasses were worth less than P2,500.00.

On April 10, 2006, Prudentialife issued individual Notices of

Termination14 to petitioners and other employees. The notices, signed
by respondent Patio, stated in part that
In sum, we find that your explanation consisted mainly of bare denials
and professions of innocence. We regret to inform you that we find
your explanation to be not acceptable on the following grounds:
Based on the statements made by the other employees involved in this
case, our investigation reveals that you are aware of the scheme by
which the attending optometrist, Mrs. Simeona Alavera, would issue to
you an Official Receipt for an amount grossly in excess of the real cost
of your eyeglasses to enable you to collect the excess amount for your
personal use.

You and the other employees were examined by Mrs. Alavera in the
presence of one another and you were apprised of the scheme during
the examination/checkup.

During the investigation, we confirmed that there was never any actual
delivery of the eyeglasses to you, yet you submitted a reimbursement
request. You therefore submitted an O.R. for an item which you have not
actually received.

Your failure and refusal to divulge the whole truth shows your lack of
any effort to come clean and help in the investigation of the case. In
fact, it displays an attempt on your part to mislead the investigation and
further confirms our findings of your dishonesty.
After careful and thorough evaluation, we find you culpable of
DISHONESTY which, under Section 2.6 (i) of the Personnel Manual is
punishable by Dismissal, to wit:
2.6 DISHONESTY

The disciplinary actions for offenses on Dishonesty shall be the

following but not limited to:chanRoblesvirtualLawlibrary

xxxx

(i) Padding receipt for reimbursement or liquidation of advances or

expenses

1st Offense Dismissal

Hence, you are terminated effective immediately upon receipt hereof
and your separation benefits under the Companys Optional Retirement
Program are hereby forfeited.
Furthermore, please be informed that your termination is without
prejudice to whatever legal action which the Company may pursue to
protect its interests.15

Ruling of the Labor Arbiter

On May 5, 2006, petitioners filed a Complaint for illegal dismissal,

money claims and damages (illegal dismissal case) against
respondents, docketed as NLRCNCR Case No. 00050381506.16
Another case was filed for unfair labor practice, docketed as NLRC
NCR Case No. 00070588206, which was later on consolidated with
the illegal dismissal case.

In their Position Paper,17 petitioners mainly contended that they were

illegally dismissed based on a charge of dishonesty that was not
proved, but was mainly founded on suspicion, conjecture and
suppositions. They claimed that they did not commit any padding of
the cost of the eyeglasses they bought from Alavera Optical; nor did
they commit any act detrimental to Prudentialifes interests. They
argued that quite the contrary, their transactions with Alavera Optical
were valid and done in the ordinary course of business; that their right
to due process was violated as they were not given ample time and
opportunity to defend themselves; that they were deprived of their right
to counsel; and that their bargaining agent PPEUFFW was not
informed of the case against them. For these reasons, petitioners
argued that they should be awarded their money claims and damages.

In their Position Paper18 seeking dismissal of the Complaint,

respondents cited Prudentialifes emphasis on promoting integrity and
honesty among its ranks, which policy is embodied in its Personnel
Manual, the pertinent provision of which was precisely utilized in
indicting petitioners. They insisted that petitioners were dishonest in
knowingly claiming reimbursement for overpriced or padded
eyeglasses, in falsifying the official receipts and other documents
relative to the optical benefit allowance, and in obtaining
reimbursement for eyeglasses which they did not pay for or receive.
They charged that petitioners bare denials are drowned by
overwhelming evidence gathered which include confessions by other
employees proving their knowledge, complicity, and participation in
the fraudulent scheme. Respondents pointed out that when the
fraudulent scheme was carried out on January 27, 2006, petitioners
except for Castillo were all present in one room where the eye
examinations were conducted, together with the employees who
confessed to the scheme; they were all issued official receipts on the
same day, and claimed reimbursement at the same time on January 30,
2006. Respondents added that Alavera Optical applied the same
modus operandi to all the employees it dealt with in regard to the
optical benefit program; that petitioners could not have been excepted,
and that their eyeglasses were similarly priced and within the range of
the eyeglasses of those who confessed to the scheme; and that having
committed falsification of company documents, petitioners were guilty
of serious misconduct and dishonesty, which merit dismissal and denial
of respondents monetary claims and prayer for an award of damages.

On the issue of due process, respondents argued that the twin notice
requirements were satisfied: the notices to explain apprised the
recipients thereof of their supposed acts and the rule violated, as well
as the penalty prescribed for such violations. Moreover, notices of
termination were duly sent to petitioners. All in all, petitioners were
afforded due process and given the opportunity to defend themselves.
Finally, respondents took exception to the inclusion of Prudentialife
officers as respondents to the Complaint, claiming that their acts were
done pursuant to their duties and in furtherance of the corporate
objective, which should thus exempt them from personal liability.

On April 30, 2007, Labor Arbiter Fe S. Cellan issued a Decision19 in the

illegal dismissal case, decreeing as
follows:chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing, the instant consolidated

complaints are hereby DISMISSED for lack of merit.

SO ORDERED.20

The Labor Arbiter held that there was ground to dismiss petitioners,
finding that there was a concerted and premeditated scheme to
defraud Prudentialife, using the optical benefit provision in the CBA to
enrich the availing employees by declaring overpriced eyeglasses,
obtaining reimbursement therefor, and pocketing the difference
between the amount reimbursed and the actual cost or selling price of
the spectacles. This constituted dishonesty.

The Labor Arbiter added that respondents took pains to investigate and
substantiate the charges against the guilty employees, submitting the
subject eyeglasses to other optical shops for examination and
comparison instead of merely relying upon the written explanations of
the employees and the admissions obtained from some of them.
Having established breach of trust through a scheme perpetrated to
defraud Prudentialife, the Labor Arbiter held that the company
possessed the right to dismiss the guilty employees as a measure of
selfprotection.

The Labor Arbiter held further that the dismissal of an estafa charge21
against the guilty employees does not necessarily result in a finding of
illegal dismissal. Conversely, the filing of a subsequently dismissed
estafa charge cannot constitute unfair labor practice, as this is a right
granted to Prudentialife as a party injured by the fraudulent scheme; the
filing of criminal charges could not have the effect of preventing
petitioners from filing the illegal dismissal case, nor were the latter
cowed into fear as a result of the filing of the charges.

The Labor Arbiter found baseless petitioners monetary claims, prayer

for damages, and their effort to hold the individual respondents liable,
stating that petitioners have not substantiated these claims and it has
not been shown that the individual respondents exceeded their
authority in the performance of their functions, or that they acted in bad
faith.

Ruling of the National Labor Relations Commission

Respondents filed an appeal with the NLRC. In a December 8, 2008

Decision,22 the NLRC reversed the Labor Arbiter, decreeing
thus:chanRoblesvirtualLawlibrary

CONFORMABLY WITH ALL THE FOREGOING, the present appeal is

partly Granted in that complainantsappellants were illegally dismissed
and hence, should be reinstated and be paid their full backwages from
the time they were illegally dismissed up to the finality of this decision.
All other claims of complainantsappellants are dismissed for lack of
merit.

SO ORDERED.23

In sum, the NLRC held that petitioners liability has not been
substantiated, it not having been shown that petitioners were privy to
the fraudulent scheme. The NLRC believed that the admissions of the
other employees do not prove petitioners complicity and participation
in the scheme. It declared that respondents failed to submit
independent evidence to show the petitioners guilt, and that petitioners
were not given the opportunity to meet and crossexamine
respondents witnesses or those employees who submitted written
explanations admitting the presence of an illegal scheme to profit by
the optical benefit provision in the CBA, namely Roselle Marquez,
Edgardo Cayanan, Jennifer Garcia, Nerissa Rivera, Orlando Labicane,
Michael Arceo, Jennifer Fronda and Leopoldo Padlan; thus, their
statements are inadmissible.

Nonetheless, the NLRC declared that there was no denial of procedural

due process, since petitioners were afforded the opportunity to meet
the charges against them and respondents were not remiss in their duty
to accord them this right during the process. Regarding the charge of
unfair labor practice, the NLRC was convinced that respondents are not
guilty of undue discrimination in initiating criminal charges against
petitioners for their perceived violation of the Revised Penal Code.

Respondents moved for reconsideration, but in an August 8, 2009

Resolution,24 the NLRC stood its ground.

Ruling of the Court of Appeals

Respondents went up to the CA via an original Petition for Certiorari ,25

insisting that there was just cause to dismiss the petitioners for serious
misconduct. On January 14, 2011, the CA issued the assailed
Decision, decreeing as follows:chanRoblesvirtualLawlibrary

WHEREFORE, the foregoing considered, the petition is GRANTED.

The assailed Decision dated 08 December 2008 of public respondent
NLRC as well as its assailed Resolution dated 28 August 2009 are
REVERSED and SET ASIDE, and the Decision dated 30 April 2007 of
Labor Arbiter Fe S. Cellan is hereby REINSTATED.

SO ORDERED.26

In reversing the NLRC, the CA found that there was indeed cause to
dismiss petitioners, the evidence indicating that petitioners and the
other employees knew, assented and took part in the scheme to profit
by pocketing the difference between the declared cost and actual cost
of the eyeglasses; that based on the written statements of the other
participants to the scheme, petitioners are guilty of serious misconduct,
dishonesty, fraud and breach of trust, which rendered them unfit to
continue working for Prudentialife. The appellate court cited
particularly the fact that the eyeglasses purchased by petitioners from
Alavera Optical did not have any grade.

The CA added that since the instant case is a labor case, only
substantial evidence and not guilt beyond reasonable doubt is
required in establishing petitioners liability; that due process was
observed by respondents, as petitioners were furnished with the
requisite twin notices before their services were terminated; and that
petitioners were afforded the opportunity to be heard on their defense
through their respective written explanations, and no hearing was
required before a decision on their case could be properly arrived at.

Petitioners moved to reconsider, reiterating that the CA based its

Decision on conjecture; that the evidence against them was not
substantial; and that due process was not observed. In a March 16,
2011 Resolution,27 however, the CA stood its ground. Thus, the instant
Petition.

Issues

Petitioners submit the following assignment of

errors:chanRoblesvirtualLawlibrary

I
THE COURT OF APPEALS SERIOUSLY ERRED AND COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT RENDERED ITS DECISION NOT
IN ACCORD WITH LAW AND JURISPRUDENCE AS ALREADY
DETERMINED BY THIS HONORABLE COURT;

II

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION WHEN IT REVERSED THE DECISION RENDERED BY
THE NATIONAL LABOR RELATIONS COMMISSION WHICH
DETERMINED THAT:chanRoblesvirtualLawlibrary

While the affidavits offered in evidence by respondentsappellees

indeed recounted how the fraudulent scheme is being undertaken by
Alavera Optical and some employees who availed of their services, it
cannot however, escape our attention the fact that there is nothing in
the said affidavits that categorically implicate complainantsappellants
to the subject transactions;

Let it be emphasized that in labor cases, substantial evidence is

required to establish ones case. By substantial evidence, it means
such relevant evidence which a reasonable mind might accept to
support a conclusion. x x x this Commission would not be amiss to
state that time and again it held that unsubstantiated accusation no
matter how sincerely felt is nothing but hearsay that deserves no
probative value;

Be it noted that in the cases of Aniceto W. Naguit Jr. v. NLRC, 408

SCRA 617 and the case of Mario Hornales v. NLRC, 364 SCRA 778, it
has been settled that for an affidavit to be given evidentiary weight, the
affiants must testify on [their] statements therein to attest [to] the
veracity of [their] testimony and; the opposing party must be given the
opportunity to meet and crossexamine the affiants in order for them to
test the truthfulness of their statements. x x x it is palpably clear
complainantsappellants were not afforded by respondentsappellees
the opportunity to meet the affiants and to crossexamine them.
Likewise, neither were these affiants testified [sic] on the veracity of
their statements either during the administrative investigation
conducted by the respondentsappellees nor before the Labor Arbiter.
x x x28

Petitioners Arguments

In their Petition and Reply,29 petitioners urge a judicious review of the

case given the conflicting decisions of the labor tribunals and the
appellate court. They add that it was improper for the CA to adjudge
them guilty of wrongdoing based on the written admissions of their co
employees and not on evidence pointing to their wrongdoing, and it is
unfair for the CA to sweepingly rule that the acts of some employees
were attributable to all who availed of the optical benefit allowance.

Petitioners further cite that while Prudentialife supposedly found that the
eyeglasses they purchased had no grade, they were not afforded the
opportunity to meet and contest this finding; that this finding was not
included in the written notice to explain which they received, and thus
could not be a valid basis for their dismissal since they were unable to
explain their side on such issue. Petitioners reiterate the NLRC findings
that the other employees who admitted to the illegal scheme did not
implicate them, nor can these employees statements be used to show
petitioners guilt or privity to the illegal scheme since these written
statements are inadmissible in evidence as they were not given the
opportunity to contest them, nor were they allowed to crossexamine
the employees who prepared and submitted them; that in Garcia v.
Malayan Insurance Co., Inc.,30 it was held that the statement of a co
employee may not be used to prove the guilt of an employee accused
of theft of company property; and that there can be no other conclusion
than that their dismissal was based on mere conjecture and suspicion,
and for this reason, the burden of proof which falls on Prudentialife
has not been properly discharged.

Additionally, petitioners claim that they did not unduly profit from
availing of the optical benefit provision under the CBA, since they did
not claim or receive anything other than the eyeglasses; that no
evidence was shown to support respondents claim that their
eyeglasses were overpriced, and any variation in prices of eyeglasses
between the various optical shops merely shows that free market forces
were in operation not that the particular eyeglasses they obtained
from Alavera Optical were overpriced; and that their categorical denial
was sufficient to negate any accusation or suspicion of involvement in
the scheme or conspiracy surrounding the optical benefit provision in
the CBA.

Petitioners thus pray for the reversal of the assailed dispositions and the
reinstatement of the December 8, 2008 NLRC Decision. In addition,
they seek an award of damages and attorneys fees.

Respondents Arguments

In their Comment,31 respondents pray for the denial of the Petition,

arguing against a departure from the CA pronouncement and insisting
that the appellate courts disposition of the issues was sound and
based on substantial evidence. They contest the NLRC Decision,
claiming that it is gravely erroneous and based on a misapprehension
of the facts. They insist on the validity of petitioners dismissal, which
according to them was based on adequate documentary evidence; and
that the fact that not all who were involved in the illegal scheme were
dismissed does not affect the liability of petitioners. Besides, some of
them resigned or left Prudentialife right after the incident occurred while
others have shown that their availment of the optical benefit was
genuine. They hold that the petitioners dismissal was based on
substantial evidence gathered in an investigation duly conducted, and
on the findings of reputable optical shops which made an examination
and comparison of the petitioners eyeglasses; that overall, petitioners
are guilty of dishonesty; that they did not violate petitioners right to due
process; and finally, that petitioners are not entitled to their money
claims, damages, and attorneys fees given that their dismissal was for
cause and no bad faith attended the same.

Our Ruling

The Court affirms.

When there is a divergence between the findings of facts of the labor

tribunals and the CA, there is a need to refer to the record. It is an
established rule that the jurisdiction of the Supreme Court in cases
brought before it from the CA via Rule 45 of the 1997 Rules of Civil
Procedure is generally limited to reviewing errors of law. This Court is
not a trier of facts. In the exercise of its power of review, the findings of
fact of the CA are conclusive and binding and consequently, it is not
our function to analyze or weigh evidence all over again. There are,
however, recognized exceptions to this rule such as when there is a
divergence between the findings of facts of the NLRC and that of the
CA.32

The evidence on record suggests that, with the aim in view of availing
the optical benefit provision under the CBA, Prudentialife employee
Elvie Villaviaje initiated a companywide scheme with Alavera Optical
whereby the latter, through its optometrists, conducted eye
examinations within company premises and issued prescriptions on
January 27, 2006, and subsequently prepared and released
eyeglasses to the participating Prudentialife employees. In turn, these
employees claimed reimbursement for the cost of their eyeglasses
through the optical benefit provision, to the allowable extent of
P2,500.00. The evidence shows that even before they could pay for the
cost of their eyeglasses, Alavera Optical offered to issue, as it did
issue, official receipts in advance to the availing employees, which they
used to secure reimbursements from Prudentialife ahead of the actual
payment of the eyeglasses; the petitioners acknowledged this fact in
their individual and respective written explanations. Likewise, some of
the availing employees33 except petitioners admitted that they
knew that the true cost of their respective eyeglasses ranged from only
P1,200.00 P1,800.00; that Alavera Optical deliberately issued official
receipts for a greater amount ranging from P2,500.00 P2,600.00 with
their full knowledge and consent; that they used these official receipts
to claim reimbursement; and that Prudentialife actually reimbursed
them to the extent of P2,500.00.

It as well appears that after some of the subject eyeglasses were

submitted to other optical shops for inspection, comparison and
examination, it turned out that these did not have any grade, or that the
grade did not match the prescription issued for the eyeglasses.
Specifically, Dolendo and Sys eyeglasses had no grade, while the
grade on Evangelistas eyeglasses did not match the prescription
issued to her. It was likewise found that the cost of the eyeglasses
including petitioners, as declared in the respective official receipts and
reimbursement requests covering them, was excessive compared to
similar frames and lenses being sold or offered by other optical shops.
For its part, Alavera Optical submitted a fictitious address, telephone
number and Tax Identification Number, using these in the written
prescriptions it issued. And to entice Prudentialife employees into
participating in the scheme, Alavera Optical offered to release the
eyeglasses and issue the prescriptions and official receipts even before
actual payment therefor is made which meant that participating
employees need not pay for the cost of their eyeglasses from their own
pockets, but could use the documents to obtain immediate
reimbursement from Prudentialife.

It likewise appears that based on the reimbursement requests/petty

cash vouchers and official receipts, the cost of the eyeglasses is more
or less the same, or at an average of P2,500.00, which coincidentally is
the maximum reimbursable amount under the optical benefit provision
in the CBA.

From the above, it appears that there was a conspiracy to defraud

Prudentialife using the optical benefit provision in the CBA to unduly
enrich the availing employee, and possibly Alavera Optical, through
overpricing of the latters eyeglasses and appropriation of the difference
between the bloated price and the actual cost. Employees who
participated in the scheme knew, as they were informed by the
proponents of the scheme namely Elvie Villaviaje and Alavera Optical,
of the fact that if they participated and underwent eye examination
through Alavera Optical, they would be issued a prescription and
official receipt indicating that they paid up to P2,600.00 for the frames
and lenses that were prescribed, which documents they could then use
to obtain reimbursements of up to P2,500.00 from Prudentialife even if
they did not actually pay for them, and though the cost of the
eyeglasses was less than P2,500.00. Any employee who, knowing of
the scheme, yet participates therein, becomes a coconspirator to the
fraud.

It is elementary that when there is a conspiracy, the act of one is the

act of all the conspirators, and a conspirator may be held as a principal
even if he did not participate in the actual commission of every act
constituting the offense. In conspiracy, all those who in one way or
another helped and cooperated in the consummation of the crime are
considered coprincipals since the degree or character of the
individual participation of each conspirator in the commission of the
crime becomes immaterial.34 In proving complicity, direct evidence is
not necessary, as it can be clearly deduced from the acts of the
conspirators;35 it may be proved through a series of acts done in
pursuance of a common unlawful purpose.36

Conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.
Conspiracy need not be proved by direct evidence and may be inferred
from the conduct of the accused before, during and after the
commission of the crime, which are indicative of a joint purpose,
concerted action and concurrence of sentiments. In conspiracy, the
act of one is the act of all. Conspiracy is present when one concurs with
the criminal design of another, indicated by the performance of an overt
act leading to the crime committed. It may be deduced from the mode
and manner in which the offense was perpetrated.37

From the evidence on record, it has been sufficiently shown that

petitioners actually took part in the commission of the acts complained
of, which makes them coconspirators to the scheme. For sure, it
cannot be said that they are exceptions to the rule simply because they
categorically denied participation, or that there is no direct evidence of
their complicity. Quite the contrary, there is evidence pointing to their
participation in the fraudulent scheme. First of all, they all knew that
even though they were not paying for the eyeglasses, Alavera Optical
would issue, as it did issue, an official receipt falsely showing that the
eyeglasses have been paid for, which they would then use, as they did
use, to obtain reimbursement from Prudentialife. By presenting the
false receipt to their employer to obtain reimbursement for an expense
which they did not in fact incur, this constituted dishonesty.

Secondly, it was discovered that Dolendos and Sys eyeglasses had no

grade, while Evangelistas eyeglass lens did not match the prescription
issued to her. An eyeglass without graded lenses could only indicate
that the wearer thereof has no vision problems, which does away with
the necessity of availing of the optical benefit provision under the CBA
which is understandably reserved for those employees who have
developed vision problems in the course of employment. By availing of
the benefit, the employee represents to Prudentialife that he has
developed vision problems. If this is not true, then he has committed
an act of dishonesty as well. Given the circumstances then obtaining,
the same principle holds true with respect to eyeglasses whose lenses
do not match the corresponding prescription.

For their dishonesty, the penalty of dismissal is justified pursuant to

Section 2.6 (i) of the Prudentialife Personnel Manual which prescribes
the penalty of dismissal for acts of padding receipts for reimbursement
or liquidation of advances or expenses. Dishonesty is a serious
offense, and no employer will take to its bosom a dishonest
employee.38 Dishonesty implies a [d]isposition to lie, cheat, deceive,
or defraud; untrustworthiness; lack of integrity[; l]ack of honesty, probity
or integrity in principle; lack of fairness and straightforwardness;
disposition to defraud, deceive or betray.39 Acts of dishonesty have
been held to be sufficient grounds for dismissal as a measure of self
protection on the part of the employer.40

The written statements of petitioners coemployees admitting their

participation in the scheme are admissible to establish the plan or
scheme to defraud Prudentialife; the latter had the right to rely on them
for such purpose. The argument that the said statements are hearsay
because the authors thereof were not presented for crossexamination
does not persuade; the rules of evidence are not strictly observed in
proceedings before the NLRC, which are summary in nature and
decisions may be made on the basis of position papers.41 Besides,
these written declarations do not bear directly on petitioners
participation in the scheme; their guilt has been established by
evidence other than these statements.

Petitioners reliance on Garcia v. Malayan Insurance Co., Inc.42 is

misplaced. Far from declaring that the statement of a coemployee
may not be used to prove the guilt of an employee accused of theft of
company property, the Court held therein that the affidavit of the co
employee cannot serve as basis for the finding that said petitioner
conspired in the theft because it was so lacking in crucial details. The
opposite is thus true: the affidavit or statement of a coemployee in a
labor case may prove an employees guilt or wrongdoing if it recites
crucial details of his involvement.

Furthermore, petitioners contention that they were not apprised of the

fact that it has been discovered that their eyeglasses had no grade
comes as a surprise. The truth or falsity of this fact or allegation is
readily ascertainable by the petitioners themselves; the answer is
literally right before their very eyes. If their eyeglasses indeed had a
grade, then they would have said so outright and not relegate the
matter to a mere due process issue. They are presumed to wear these
very spectacles each and every day. Besides, as early as in the
respondents Position Paper below, it was raised as an issue that
petitioners eyeglasses either had no grade or did not match the
prescription issued therefor; indeed, petitioners have been given
sufficient opportunity to meet such accusation in the Labor Arbiter
stage.

Finally, petitioners argument and prayer for an award of damages and

attorneys fees may not be allowed, since they did not question the
NLRCs denial thereof in its December 8, 2008 Decision. Only
respondents went up to the CA on certiorari. It is wellsettled that a
party who does not appeal from the decision may not obtain any
affirmative relief from the appellate court other than what he has
obtained from the lower court whose decision is brought up on appeal.
The exceptions to this rule, such as where there are (1) errors affecting
the lower courts jurisdiction over the subject matter, (2) plain errors not
specified, and (3) clerical errors, do not apply in this case.43 [A]
party who did not appeal cannot assign such errors as are designed to
have the judgment modified. All that he can do is to make a counter
assignment of errors or to argue on issues raised below only for the
purpose of sustaining the judgment in his favor.44

WHEREFORE, the Petition is DENIED. The January 14, 2011 Decision

and March 16, 2011 Resolution of the Court of Appeals in CAG.R. SP
No. 111981 are AFFIRMED.

SO ORDERED.

x--x

RICO ROMMEL ATIENZA,

Petitioner,
- versus -

BOARD OF MEDICINE and EDITHA SIOSON,

Respondents.
G.R. No. 177407

Present:
NACHURA,
Acting Chairperson,
PERALTA,
DEL CASTILLO,*
VILLARAMA, JR.,** and
MENDOZA, JJ.

Promulgated:

February 9, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules

of Court, assailing the Decision[1] dated September 22, 2006 of the
Court of Appeals (CA) in CA-G.R. SP No. 87755. The CA dismissed the
petition for certiorari filed by petitioner Rico Rommel Atienza (Atienza),
which, in turn, assailed the Orders[2] issued by public respondent
Board of Medicine (BOM) in Administrative Case No. 1882.
The facts, fairly summarized by the appellate court, follow.

Due to her lumbar pains, private respondent Editha Sioson went to Rizal
Medical Center (RMC) for check-up on February 4, 1995. Sometime in
1999, due to the same problem, she was referred to Dr. Pedro Lantin III
of RMC who, accordingly, ordered several diagnostic laboratory tests.
The tests revealed that her right kidney is normal. It was ascertained,
however, that her left kidney is non-functioning and non-visualizing.
Thus, she underwent kidney operation in September, 1999.

On February 18, 2000, private respondents husband, Romeo Sioson

(as complainant), filed a complaint for gross negligence and/or
incompetence before the [BOM] against the doctors who allegedly
participated in the fateful kidney operation, namely: Dr. Judd dela Vega,
Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico
Rommel Atienza.

It was alleged in the complaint that the gross negligence and/or

incompetence committed by the said doctors, including petitioner,
consists of the removal of private respondents fully functional right
kidney, instead of the left non-functioning and non-visualizing kidney.

The complaint was heard by the [BOM]. After complainant Romeo

Sioson presented his evidence, private respondent Editha Sioson, also
named as complainant there, filed her formal offer of documentary
evidence. Attached to the formal offer of documentary evidence are her
Exhibits A to D, which she offered for the purpose of proving that her
kidneys were both in their proper anatomical locations at the time she
was operated. She described her exhibits, as follows:

EXHIBIT A the certified photocopy of the X-ray Request form dated

December 12, 1996, which is also marked as Annex 2 as it was actually
originally the Annex to x x x Dr. Pedro Lantin, IIIs counter affidavit filed
with the City Prosecutor of Pasig City in connection with the criminal
complaint filed by [Romeo Sioson] with the said office, on which are
handwritten entries which are the interpretation of the results of the
ultrasound examination. Incidentally, this exhibit happens to be the
same as or identical to the certified photocopy of the document marked
as Annex 2 to the Counter-Affidavit dated March 15, 2000, filed by x x x
Dr. Pedro Lantin, III, on May 4, 2000, with this Honorable Board in
answer to this complaint;

EXHIBIT B the certified photo copy of the X-ray request form dated
January 30, 1997, which is also marked as Annex 3 as it was actually
likewise originally an Annex to x x x Dr. Pedro Lantin, IIIs counter-
affidavit filed with the Office of the City Prosecutor of Pasig City in
connection with the criminal complaint filed by the herein complainant
with the said office, on which are handwritten entries which are the
interpretation of the results of the examination. Incidentally, this exhibit
happens to be also the same as or identical to the certified photo copy
of the document marked as Annex 3 which is likewise dated January
30, 1997, which is appended as such Annex 3 to the counter-affidavit
dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on May 4,
2000, with this Honorable Board in answer to this complaint.

EXHIBIT C the certified photocopy of the X-ray request form dated

March 16, 1996, which is also marked as Annex 4, on which are
handwritten entries which are the interpretation of the results of the
examination.

EXHIBIT D the certified photocopy of the X-ray request form dated May
20, 1999, which is also marked as Annex 16, on which are handwritten
entries which are the interpretation of the results of the examination.
Incidentally, this exhibit appears to be the draft of the typewritten final
report of the same examination which is the document appended as
Annexes 4 and 1 respectively to the counter-affidavits filed by x x x Dr.
Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In
the case of Dr. dela Vega however, the document which is marked as
Annex 4 is not a certified photocopy, while in the case of Dr. Lantin, the
document marked as Annex 1 is a certified photocopy. Both documents
are of the same date and typewritten contents are the same as that
which are written on Exhibit D.

Petitioner filed his comments/objections to private respondents [Editha

Siosons] formal offer of exhibits. He alleged that said exhibits are
inadmissible because the same are mere photocopies, not properly
identified and authenticated, and intended to establish matters which
are hearsay. He added that the exhibits are incompetent to prove the
purpose for which they are offered.

Dispositions of the Board of Medicine

The formal offer of documentary exhibits of private respondent [Editha

Sioson] was admitted by the [BOM] per its Order dated May 26, 2004.
It reads:

The Formal Offer of Documentary Evidence of [Romeo Sioson], the

Comments/Objections of [herein petitioner] Atienza, [therein
respondents] De la Vega and Lantin, and the Manifestation of [therein]
respondent Florendo are hereby ADMITTED by the [BOM] for whatever
purpose they may serve in the resolution of this case.

Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception
of the evidence of the respondents.

SO ORDERED.

Petitioner moved for reconsideration of the abovementioned Order

basically on the same reasons stated in his comment/objections to the
formal offer of exhibits.

The [BOM] denied the motion for reconsideration of petitioner in its

Order dated October 8, 2004. It concluded that it should first admit the
evidence being offered so that it can determine its probative value
when it decides the case. According to the Board, it can determine
whether the evidence is relevant or not if it will take a look at it through
the process of admission. x x x.[3]

Disagreeing with the BOM, and as previously adverted to, Atienza filed
a petition for certiorari with the CA, assailing the BOMs Orders which
admitted Editha Siosons (Edithas) Formal Offer of Documentary
Evidence. The CA dismissed the petition for certiorari for lack of merit.

Hence, this recourse positing the following issues:

I. PROCEDURAL ISSUE:
WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY
WHEN HE FILED THE PETITION FOR CERTIORARI DATED 06
DECEMBER 2004 WITH THE COURT OF APPEALS UNDER RULE 65
OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED 26 MAY
2004 AND 08 OCTOBER 2004 OF RESPONDENT BOARD.

II. SUBSTANTIVE ISSUE:

WHETHER THE COURT OF APPEALS COMMITTED GRAVE

REVERSIBLE ERROR AND DECIDED A QUESTION OF SUBSTANCE IN
A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE
DECISIONS OF THE HONORABLE COURT WHEN IT UPHELD THE
ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE BY
RESPONDENT BOARD, WHICH CAN RESULT IN THE DEPRIVATION
OF PROFESSIONAL LICENSE A PROPERTY RIGHT OR ONES
LIVELIHOOD.[4]

We find no reason to depart from the ruling of the CA.

Petitioner is correct when he asserts that a petition for certiorari is the

proper remedy to assail the Orders of the BOM, admitting in evidence
the exhibits of Editha. As the assailed Orders were interlocutory, these
cannot be the subject of an appeal separate from the judgment that
completely or finally disposes of the case.[5] At that stage, where there
is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, the only and remaining remedy left to petitioner
is a petition for certiorari under Rule 65 of the Rules of Court on the
ground of grave abuse of discretion amounting to lack or excess of
jurisdiction.

However, the writ of certiorari will not issue absent a showing that the
BOM has acted without or in excess of jurisdiction or with grave abuse
of discretion. Embedded in the CAs finding that the BOM did not
exceed its jurisdiction or act in grave abuse of discretion is the issue of
whether the exhibits of Editha contained in her Formal Offer of
Documentary Evidence are inadmissible.

Petitioner argues that the exhibits formally offered in evidence by

Editha: (1) violate the best evidence rule; (2) have not been properly
identified and authenticated; (3) are completely hearsay; and (4) are
incompetent to prove their purpose. Thus, petitioner contends that the
exhibits are inadmissible evidence.

We disagree.

To begin with, it is well-settled that the rules of evidence are not strictly
applied in proceedings before administrative bodies such as the BOM.
[6] Although trial courts are enjoined to observe strict enforcement of
the rules of evidence,[7] in connection with evidence which may appear
to be of doubtful relevancy, incompetency, or admissibility, we have
held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtful or

technical grounds, but admitting them unless plainly irrelevant,
immaterial or incompetent, for the reason that their rejection places
them beyond the consideration of the court, if they are thereafter found
relevant or competent; on the other hand, their admission, if they turn
out later to be irrelevant or incompetent, can easily be remedied by
completely discarding them or ignoring them.[8]

From the foregoing, we emphasize the distinction between the

admissibility of evidence and the probative weight to be accorded the
same pieces of evidence. PNOC Shipping and Transport Corporation v.
Court of Appeals[9] teaches:

Admissibility of evidence refers to the question of whether or not the

circumstance (or evidence) is to be considered at all. On the other
hand, the probative value of evidence refers to the question of whether
or not it proves an issue.

Second, petitioners insistence that the admission of Edithas exhibits

violated his substantive rights leading to the loss of his medical license
is misplaced. Petitioner mistakenly relies on Section 20, Article I of the
Professional Regulation Commission Rules of Procedure, which reads:

Section 20. Administrative investigation shall be conducted in

accordance with these Rules. The Rules of Court shall only apply in
these proceedings by analogy or on a suppletory character and
whenever practicable and convenient. Technical errors in the admission
of evidence which do not prejudice the substantive rights of either party
shall not vitiate the proceedings.[10]

As pointed out by the appellate court, the admission of the exhibits did
not prejudice the substantive rights of petitioner because, at any rate,
the fact sought to be proved thereby, that the two kidneys of Editha
were in their proper anatomical locations at the time she was operated
on, is presumed under Section 3, Rule 131 of the Rules of Court:

Sec. 3. Disputable presumptions. The following presumptions are

satisfactory if uncontradicted, but may be contradicted and overcome
by other evidence:

xxxx

(y) That things have happened according to the ordinary course of

nature and the ordinary habits of life.

The exhibits are certified photocopies of X-ray Request Forms dated

December 12, 1996, January 30, 1997, March 16, 1996, and May 20,
1999, filed in connection with Edithas medical case. The documents
contain handwritten entries interpreting the results of the examination.
These exhibits were actually attached as annexes to Dr. Pedro Lantin
IIIs counter affidavit filed with the Office of the City Prosecutor of Pasig
City, which was investigating the criminal complaint for negligence filed
by Editha against the doctors of Rizal Medical Center (RMC) who
handled her surgical procedure. To lay the predicate for her case,
Editha offered the exhibits in evidence to prove that her kidneys were
both in their proper anatomical locations at the time of her operation.

The fact sought to be established by the admission of Edithas exhibits,

that her kidneys were both in their proper anatomical locations at the
time of her operation, need not be proved as it is covered by mandatory
judicial notice.[11]

Unquestionably, the rules of evidence are merely the means for

ascertaining the truth respecting a matter of fact.[12] Thus, they
likewise provide for some facts which are established and need not be
proved, such as those covered by judicial notice, both mandatory and
discretionary.[13] Laws of nature involving the physical sciences,
specifically biology,[14] include the structural make-up and
composition of living things such as human beings. In this case, we
may take judicial notice that Edithas kidneys before, and at the time of,
her operation, as with most human beings, were in their proper
anatomical locations.
Third, contrary to the assertion of petitioner, the best evidence rule is
inapplicable. Section 3 of Rule 130 provides:

1. Best Evidence Rule

Sec. 3. Original document must be produced; exceptions. When the

subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the
following cases:

(a) When the original has been lost or destroyed, or cannot be

produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it
after reasonable notice;

(c) When the original consists of numerous accounts or other

documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the general
result of the whole; and

(d) When the original is a public record in the custody of a public officer
or is recorded in a public office.

The subject of inquiry in this case is whether respondent doctors before

the BOM are liable for gross negligence in removing the right
functioning kidney of Editha instead of the left non-functioning kidney,
not the proper anatomical locations of Edithas kidneys. As previously
discussed, the proper anatomical locations of Edithas kidneys at the
time of her operation at the RMC may be established not only through
the exhibits offered in evidence.
Finally, these exhibits do not constitute hearsay evidence of the
anatomical locations of Edithas kidneys. To further drive home the point,
the anatomical positions, whether left or right, of Edithas kidneys, and
the removal of one or both, may still be established through a belated
ultrasound or x-ray of her abdominal area.

In fact, the introduction of secondary evidence, such as copies of the

exhibits, is allowed.[15] Witness Dr. Nancy Aquino testified that the
Records Office of RMC no longer had the originals of the exhibits
because [it] transferred from the previous building, x x x to the new
building.[16] Ultimately, since the originals cannot be produced, the
BOM properly admitted Edithas formal offer of evidence and, thereafter,
the BOM shall determine the probative value thereof when it decides
the case.

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals in CA-G.R. SP No. 87755 is AFFIRMED. Costs against
petitioner.

SO ORDERED.

x--x

CIVIL SERVICE COMMISSION , G.R. No. 174935

Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,*
AUSTRIA-MARTINEZ,
CORONA,
- v e r s u s - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO,
NACHURA,
REYES,
LEONARDO-DE CASTRO and
BRION, JJ.
TRISTAN C. COLANGGO,**
Respondent.
Promulgated:

April 30, 2008

x--------------------------------------------------x

DECISION

CORONA, J.:

This petition for review on certiorari[1] seeks to set aside the February
22, 2006 decision[2] of the Court of Appeals (CA) in CA-G.R. SP No.
79047 and its resolution denying reconsideration.[3]
On October 25, 1992, respondent Tristan C. Colanggo took the
Professional Board Examination for Teachers (PBET) and obtained a
passing rate of 75.98%. On October 1, 1993, he was appointed
Teacher I and was assigned to Don Ruben E. Ecleo, Sr. Memorial
National High School in San Jose, Surigao del Norte.

Subsequently, a complaint questioning the eligibility of teachers in

Surigao del Norte was filed in the Civil Service Commission (CSC)
CARAGA Regional Office No. XIII (CSC-CARAGA) in Butuan City. The
CSC-CARAGA immediately investigated the matter.

In the course of its investigation, the CSC-CARAGA discovered

significant irregularities in respondents documents. The photographs of
Tristan C. Colanggo attached respectively to the PBET application form
and to the October 25, 1992 picture seat plan did not resemble
respondent. Furthermore, the signature found in the PBET application
form was markedly different from that affixed on respondents personal
data sheet (PDS). It appeared that someone other than respondent filed
his PBET application and still another person took the exam on his
behalf. Thus, the CSC-CARAGA filed a formal charge for dishonesty
and conduct prejudicial to the best interest of service against
respondent on January 13, 1999.[4]
On September 27, 2000, respondent filed an answer denying the
charges against him and moved for a formal hearing and investigation.
The CSC granted the motion and scheduled a hearing on October 31,
2000. Respondent failed to appear on the said date but subsequently
filed an omnibus motion for the production of original documents
relative to the charges against him and the presentation of persons who
supervised the October 25, 1992 PBET. His motion was granted and the
concerned proctor and examiners were subpoenaed.

After evaluating the evidence, the CSC found:

On the basis of the photographs attached [to] the PBET application

form and the picture seat plan, it is evident that the person who filed the
application form for the PBET is not the same person who actually took
the said examination on October 25, 1992. This disparity of physical
features of the former and latter are evident. The person who filed the
PBET has fuller cheekbones and slanted eyes, thinner lips and has a
different hairstyle from that of the John Doe who took the said
examination. On the other hand, the latter has thinner cheekbones,
elongated chin, full lips with a moustache and round eyes. Also, the
signatures appearing of the PBET applicant and that of the PBET
examinee are also in different strokes, curves and slants.

Comparing the signatures on the [PBET application form] and [picture

seat plan] vis--vis those affixed on the PDS of respondent more
evidently reveals that the three are different persons. The photographs
and signatures appearing on the [PBET application form] and [picture
seat plan] are far and different from the facial features and signatures
from both John Does. Respondent looks older, has full cheekbones,
flatter nose and thin lips. In other words, the picture and signatures
affixed on the PBET application form, picture seat plan and PDS
undoubtedly belong to three different persons which clearly serve a
ground to establish a just cause for CSC-CARAGA to issue a formal
charge on January 13, 1999 against respondent.[5] (emphasis
supplied)

The CSC concluded that respondent did not apply for and take the
PBET exam. Thus, in Resolution No. 021412, the CSC found respondent
guilty of dishonesty and conduct prejudicial to the best interest of
service and ordered his dismissal. [6]

Respondent moved for reconsideration but his motion was denied.[7]

Aggrieved, respondent filed a petition for certiorari in the CA alleging

that the CSC committed grave abuse of discretion in issuing Resolution
No. 021412.[8] He pointed out that the pieces of evidence against him
were inadmissible as they were unauthenticated photocopies of the
PBET application form, picture seat plan and PDS.

On February 22, 2006, the CA granted the petition.[9] It ruled that the
photocopies of the PBET application form, picture seat plan and PDS
should have been authenticated.[10] Only documents or public records
duly acknowledged or certified as such in accordance with law could
be presented in evidence without further proof.[11] Consequently, the
CA annulled and set aside Resolution No. 021412 and ordered the
dismissal of charges against respondent.[12]
The CSC moved for reconsideration[13] but was denied.[14] Hence,
this petition.

The CSC essentially avers that the CA erred in finding that it committed
grave abuse of discretion in rendering Resolution No. 021412.[15] The
Uniform Rules on Administrative Cases in the Civil Service[16] (Uniform
Rules) does not require strict adherence to technical rules of evidence.
Thus, it validly considered the photocopies of the PBET application
form, picture seat plan and PDS in resolving the formal charge against
respondent in spite of the fact that they were not duly authenticated.

The petition is meritorious.

Administrative rules of procedure are construed liberally to promote

their objective and to assist parties in obtaining just, speedy and
inexpensive determination of their respective claims and defenses.[17]
Section 39 of the Uniform Rules provides:

Section 39. The direct evidence for the complainant and the respondent
consist of the sworn statement and documents submitted in support of
the complaint or answer as the case may be, without prejudice to the
presentation of additional evidence deemed necessary but was
unavailable at the time of the filing of the complaint and the answer
upon which the cross-examination, by the respondent and the
complainant respectively, shall be based. Following the cross-
examination, there may be re-direct or re-cross examination.
Either party may avail himself of the services of counsel and may
require the attendance of witnesses and the production of documentary
evidence in his favor through the compulsory process of subpoena or
subpoena duces tecum.

The investigation shall be conducted for the purpose of ascertaining

the truth without necessarily adhering to technical rules applicable in
judicial proceedings. It shall be conducted by the disciplining authority
concerned or his authorized representatives. (emphasis supplied)

The provision above clearly states that the CSC, in investigating

complaints against civil servants, is not bound by technical rules of
procedure and evidence applicable in judicial proceedings.

The CSC correctly appreciated the photocopies of PBET application

form, picture seat plan and PDS (though not duly authenticated) in
determining whether there was sufficient evidence to substantiate the
charges against the respondent. Worth noting was that respondent
never objected to the veracity of their contents. He merely disputed
their admissibility on the ground that they were not authenticated.

As a general rule, a finding of guilt in administrative cases, if supported

by substantial evidence (or that amount of evidence which a
reasonable mind might accept as adequate to justify a conclusion),[18]
will be sustained by this Court.[19]

The CSC graciously granted respondents motions to ensure that he

was accorded procedural due process. Moreover, it exhaustively
discussed the differences in appearances of respondent and the
persons whose photographs were attached to the PBET application
form and the picture seat plan. It likewise compared the various
signatures on the said documents.

Resolution No. 021412 reveals that the CSC carefully evaluated the
allegations against respondent and thoroughly examined and weighed
the evidence submitted for its consideration. The penalty (of dismissal)
imposed on respondent was therefore fully in accord with law[20] and
jurisprudence.[21] We find no grave abuse of discretion on the part of
the CSC.

ACCORDINGLY, the petition is hereby GRANTED. The February 22,

2006 decision and August 17, 2006 resolution of the Court of Appeals
in CA-S.P. No. 79047 are REVERSED and SET ASIDE.

Resolution No. 021412 dated October 22, 2002 and the May 19, 2003
resolution of the Civil Service Commission finding respondent Tristan C.
Colanggo GUILTY of dishonesty and conduct prejudicial to the best
interest of service and dismissing him from the service with forfeiture of
leave credits and retirement benefits and disqualifying him from
reemployment in the government service are REINSTATED.

SO ORDERED.

x--x

[G.R. No. 153660. June 10, 2003]

PRUDENCIO BANTOLINO, NESTOR ROMERO, NILO ESPINA, EDDIE

LADICA, ARMAN QUELING, ROLANDO NIETO, RICARDO
BARTOLOME, ELUVER GARCIA, EDUARDO GARCIA and NELSON
MANALASTAS, petitioners, vs. COCA-COLA BOTTLERS PHILS., INC.,
respondent.
DECISION
BELLOSILLO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court assailing the Decision of the Court of Appeals[1] dated 21
December 2001 which affirmed with modification the decision of the
National Labor Relations Commission promulgated 30 March 2001.[2]

On 15 February 1995 sixty-two (62) employees of respondent Coca-

Cola Bottlers, Inc., and its officers, Lipercon Services, Inc., Peoples
Specialist Services, Inc., and Interim Services, Inc., filed a complaint
against respondents for unfair labor practice through illegal dismissal,
violation of their security of tenure and the perpetuation of the Cabo
System. They thus prayed for reinstatement with full back wages, and
the declaration of their regular employment status.

For failure to prosecute as they failed to either attend the scheduled

mandatory conferences or submit their respective affidavits, the claims
of fifty-two (52) complainant-employees were dismissed. Thereafter,
Labor Arbiter Jose De Vera conducted clarificatory hearings to elicit
information from the ten (10) remaining complainants (petitioners
herein) relative to their alleged employment with respondent firm.

In substance, the complainants averred that in the performance of their

duties as route helpers, bottle segregators, and others, they were
employees of respondent Coca-Cola Bottlers, Inc. They further
maintained that when respondent company replaced them and
prevented them from entering the company premises, they were
deemed to have been illegally dismissed.

In lieu of a position paper, respondent company filed a motion to

dismiss complaint for lack of jurisdiction and cause of action, there
being no employer-employee relationship between complainants and
Coca-Cola Bottlers, Inc., and that respondents Lipercon Services,
Peoples Specialist Services and Interim Services being bona fide
independent contractors, were the real employers of the complainants.
[3] As regards the corporate officers, respondent insisted that they
could not be faulted and be held liable for damages as they only acted
in their official capacities while performing their respective duties.

On 29 May 1998 Labor Arbiter Jose De Vera rendered a decision

ordering respondent company to reinstate complainants to their former
positions with all the rights, privileges and benefits due regular
employees, and to pay their full back wages which, with the exception
of Prudencio Bantolino whose back wages must be computed upon
proof of his dismissal as of 31 May 1998, already amounted to an
aggregate of P1,810,244.00.[4]

In finding for the complainants, the Labor Arbiter ruled that in contrast
with the negative declarations of respondent companys witnesses who,
as district sales supervisors of respondent company denied knowing
the complainants personally, the testimonies of the complainants were
more credible as they sufficiently supplied every detail of their
employment, specifically identifying who their salesmen/drivers were,
their places of assignment, aside from their dates of engagement and
dismissal.

On appeal, the NLRC sustained the finding of the Labor Arbiter that
there was indeed an employer-employee relationship between the
complainants and respondent company when it affirmed in toto the
latters decision.

In a resolution dated 17 July 2001 the NLRC subsequently denied for

lack of merit respondents motion for consideration.

Respondent Coca-Cola Bottlers appealed to the Court of Appeals

which, although affirming the finding of the NLRC that an employer-
employee relationship existed between the contending parties,
nonetheless agreed with respondent that the affidavits of some of the
complainants, namely, Prudencio Bantolino, Nestor Romero, Nilo
Espina, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and Nelson
Manalastas, should not have been given probative value for their failure
to affirm the contents thereof and to undergo cross-examination. As a
consequence, the appellate court dismissed their complaints for lack of
sufficient evidence. In the same Decision however, complainants Eddie
Ladica, Arman Queling and Rolando Nieto were declared regular
employees since they were the only ones subjected to cross-
examination.[5] Thus -

x x x (T)he labor arbiter conducted clarificatory hearings to ferret out

the truth between the opposing claims of the parties thereto. He did not
submit the case based on position papers and their accompanying
documentary evidence as a full-blown trial was imperative to establish
the parties claims. As their allegations were poles apart, it was
necessary to give them ample opportunity to rebut each others
statements through cross-examination. In fact, private respondents
Ladica, Quelling and Nieto were subjected to rigid cross-examination
by petitioners counsel. However, the testimonies of private respondents
Romero, Espina, and Bantolino were not subjected to cross-
examination, as should have been the case, and no explanation was
offered by them or by the labor arbiter as to why this was dispensed
with. Since they were represented by counsel, the latter should have
taken steps so as not to squander their testimonies. But nothing was
done by their counsel to that effect.[6]

Petitioners now pray for relief from the adverse Decision of the Court of
Appeals; that, instead, the favorable judgment of the NLRC be
reinstated.

In essence, petitioners argue that the Court of Appeals should not have
given weight to respondents claim of failure to cross-examine them.
They insist that, unlike regular courts, labor cases are decided based
merely on the parties position papers and affidavits in support of their
allegations and subsequent pleadings that may be filed thereto. As
such, according to petitioners, the Rules of Court should not be strictly
applied in this case specifically by putting them on the witness stand to
be cross-examined because the NLRC has its own rules of procedure
which were applied by the Labor Arbiter in coming up with a decision in
their favor.

In its disavowal of liability, respondent commented that since the other

alleged affiants were not presented in court to affirm their statements,
much less to be cross-examined, their affidavits should, as the Court of
Appeals rightly held, be stricken off the records for being self-serving,
hearsay and inadmissible in evidence. With respect to Nestor Romero,
respondent points out that he should not have been impleaded in the
instant petition since he already voluntarily executed a Compromise
Agreement, Waiver and Quitclaim in consideration of P450,000.00.
Finally, respondent argues that the instant petition should be dismissed
in view of the failure of petitioners[7] to sign the petition as well as the
verification and certification of non-forum shopping, in clear violation of
the principle laid down in Loquias v. Office of the Ombudsman.[8]

The crux of the controversy revolves around the propriety of giving

evidentiary value to the affidavits despite the failure of the affiants to
affirm their contents and undergo the test of cross-examination.

The petition is impressed with merit. The issue confronting the Court is
not without precedent in jurisprudence. The oft-cited case of Rabago v.
NLRC[9] squarely grapples a similar challenge involving the propriety
of the use of affidavits without the presentation of affiants for cross-
examination. In that case, we held that the argument that the affidavit is
hearsay because the affiants were not presented for cross-examination
is not persuasive because the rules of evidence are not strictly
observed in proceedings before administrative bodies like the NLRC
where decisions may be reached on the basis of position papers only.

In Rase v. NLRC,[10] this Court likewise sidelined a similar challenge

when it ruled that it was not necessary for the affiants to appear and
testify and be cross-examined by counsel for the adverse party. To
require otherwise would be to negate the rationale and purpose of the
summary nature of the proceedings mandated by the Rules and to
make mandatory the application of the technical rules of evidence.

Southern Cotabato Dev. and Construction Co. v. NLRC[11] succinctly

states that under Art. 221 of the Labor Code, the rules of evidence
prevailing in courts of law do not control proceedings before the Labor
Arbiter and the NLRC. Further, it notes that the Labor Arbiter and the
NLRC are authorized to adopt reasonable means to ascertain the facts
in each case speedily and objectively and without regard to
technicalities of law and procedure, all in the interest of due process.
We find no compelling reason to deviate therefrom.

To reiterate, administrative bodies like the NLRC are not bound by the
technical niceties of law and procedure and the rules obtaining in
courts of law. Indeed, the Revised Rules of Court and prevailing
jurisprudence may be given only stringent application, i.e., by analogy
or in a suppletory character and effect. The submission by respondent,
citing People v. Sorrel,[12] that an affidavit not testified to in a trial, is
mere hearsay evidence and has no real evidentiary value, cannot find
relevance in the present case considering that a criminal prosecution
requires a quantum of evidence different from that of an administrative
proceeding. Under the Rules of the Commission, the Labor Arbiter is
given the discretion to determine the necessity of a formal trial or
hearing. Hence, trial-type hearings are not even required as the cases
may be decided based on verified position papers, with supporting
documents and their affidavits.

As to whether petitioner Nestor Romero should be properly impleaded

in the instant case, we only need to follow the doctrinal guidance set by
Periquet v. NLRC[13] which outlines the parameters for valid
compromise agreements, waivers and quitclaims -
Not all waivers and quitclaims are invalid as against public policy. If the
agreement was voluntarily entered into and represents a reasonable
settlement, it is binding on the parties and may not later be disowned
simply because of a change of mind. It is only where there is clear proof
that the waiver was wangled from an unsuspecting or gullible person,
or the terms of settlement are unconscionable on its face, that the law
will step in to annul the questionable transaction. But where it is shown
that the person making the waiver did so voluntarily, with full
understanding of what he was doing, and the consideration for the
quitclaim is credible and reasonable, the transaction must be
recognized as a valid and binding undertaking.

In closely examining the subject agreements, we find that on their face

the Compromise Agreement[14] and Release, Waiver and Quitclaim[15]
are devoid of any palpable inequity as the terms of settlement therein
are fair and just. Neither can we glean from the records any attempt by
the parties to renege on their contractual agreements, or to disavow or
disown their due execution. Consequently, the same must be
recognized as valid and binding transactions and, accordingly, the
instant case should be dismissed and finally terminated insofar as
concerns petitioner Nestor Romero.

We cannot likewise accommodate respondents contention that the

failure of all the petitioners to sign the petition as well as the Verification
and Certification of Non-Forum Shopping in contravention of Sec. 5,
Rule 7, of the Rules of Court will cause the dismissal of the present
appeal. While the Loquias case requires the strict observance of the
Rules, it however provides an escape hatch for the transgressor to
avoid the harsh consequences of non-observance. Thus -

x x x x We find that substantial compliance will not suffice in a matter

involving strict observance of the rules. The attestation contained in the
certification on non-forum shopping requires personal knowledge by
the party who executed the same. Petitioners must show reasonable
cause for failure to personally sign the certification. Utter disregard of
the rules cannot justly be rationalized by harking on the policy of liberal
construction (underscoring supplied).
In their Ex Parte Motion to Litigate as Pauper Litigants, petitioners made
a request for a fifteen (15)-day extension, i.e., from 24 April 2002 to 8
May 2002, within which to file their petition for review in view of the
absence of a counsel to represent them.[16] The records also reveal
that it was only on 10 July 2002 that Atty. Arnold Cacho, through the
UST Legal Aid Clinic, made his formal entry of appearance as counsel
for herein petitioners. Clearly, at the time the instant petition was filed on
7 May 2002 petitioners were not yet represented by counsel. Surely,
petitioners who are non-lawyers could not be faulted for the procedural
lapse since they could not be expected to be conversant with the
nuances of the law, much less knowledgeable with the esoteric
technicalities of procedure. For this reason alone, the procedural
infirmity in the filing of the present petition may be overlooked and
should not be taken against petitioners.

WHEREFORE, the petition is GRANTED. The Decision of the Court of

Appeals is REVERSED and SET ASIDE and the decision of the NLRC
dated 30 March 2001 which affirmed in toto the decision of the Labor
Arbiter dated 29 May 1998 ordering respondent Coca-Cola Bottlers
Phils., Inc., to reinstate Prudencio Bantolino, Nilo Espina, Eddie Ladica,
Arman Queling, Rolando Nieto, Ricardo Bartolome, Eluver Garcia,
Eduardo Garcia and Nelson Manalastas to their former positions as
regular employees, and to pay them their full back wages, with the
exception of Prudencio Bantolino whose back wages are yet to be
computed upon proof of his dismissal, is REINSTATED, with the
MODIFICATION that herein petition is DENIED insofar as it concerns
Nestor Romero who entered into a valid and binding Compromise
Agreement and Release, Waiver and Quitclaim with respondent
company.

SO ORDERED.

x--x

CIRTEK EMPLOYEES LABOR UNION-FEDERATION OF FREE

WORKERS
Petitioner,
- versus -

CIRTEK ELECTRONICS, INC.,

Respondent.

G.R. No. 190515

Present:

CARPIO MORALES, J., Chairperson,

LEONARDO-DE CASTRO,
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.

Promulgated:
June 6, 2011
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CARPIO MORALES, J.:

This resolves the motion for reconsideration and supplemental motion

for reconsideration filed by respondent, Cirtek Electronics, Inc., of the
Courts Decision dated November 15, 2010.

Respondent-movant avers that petitioner, in filing the petition for

certiorari under Rule 65, availed of the wrong remedy, hence, the Court
should have dismissed the petition outright. It goes on to aver that the
Court erred in resolving a factual issue whether the August 24, 2005
Memorandum of Agreement (MOA) was validly entered into , which is
not the office of a petition for certiorari.
Respondent-movant further avers that the MOA[1] signed by the
remaining officers of petitioner Union and allegedly ratified by its
members should have been given credence by the Court.

Furthermore, respondent-movant maintains that the Secretary of Labor

cannot insist on a ruling beyond the compromise agreement entered
into by the parties; and that, as early as February 5, 2010, petitioner
Union had already filed with the Department of Labor and Employment
(DOLE) a resolution of disaffiliation from the Federation of Free Workers
resulting in the latters lack of personality to represent the workers in the
present case.

The motion is bereft of merit.

Respondent indeed availed of the wrong remedy of certiorari under

Rule 65. Due, however, to the nature of the case, one involving workers
wages and benefits, and the fact that whether the petition was filed
under Rule 65 or appeal by certiorari under Rule 45 it was filed within
15 days (the reglementary period under Rule 45) from petitioners
receipt of the resolution of the Court of Appeals Resolution denying its
motion for reconsideration, the Court resolved to give it due course. As
Almelor v. RTC of Las Pias, et al. [2] restates:

Generally, an appeal taken either to the Supreme Court or the CA by

the wrong or inappropriate mode shall be dismissed. This is to prevent
the party from benefiting from ones neglect and mistakes. However, like
most rules, it carries certain exceptions. After all, the ultimate purpose
of all rules of procedures is to achieve substantial justice as
expeditiously as possible. (emphasis and underscoring supplied)
Respecting the attribution of error to the Court in ruling on a question of
fact, it bears recalling that a QUESTION OF FACT arises when the
doubt or difference arises as to the truth or falsehood of alleged facts,
[3] while a QUESTION OF LAW exists when the doubt or difference
arises as to what the law is on a certain set of facts.

The present case presents the primordial issue of whether the Secretary
of Labor is empowered to give arbitral awards in the exercise of his
authority to assume jurisdiction over labor disputes.
Ineluctably, the issue involves a determination and application of
existing law, the provisions of the Labor Code, and prevailing
jurisprudence. Intertwined with the issue, however, is the question of
validity of the MOA and its ratification which, as movant correctly points
out, is a question of fact and one which is not appropriate for a petition
for review on certiorari under Rule 45. The rule, however, is not without
exceptions, viz:

This rule provides that the parties may raise only questions of law,
because the Supreme Court is not a trier of facts. Generally, we are not
duty-bound to analyze again and weigh the evidence introduced in and
considered by the tribunals below. When supported by substantial
evidence, the findings of fact of the CA are conclusive and binding on
the parties and are not reviewable by this Court, unless the case falls
under any of the following recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation,

surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or

impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond
the issues of the case and the same is contrary to the admissions of
both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of

specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners'
main and reply briefs are not disputed by the respondents; and
 (10) When the findings of fact of the Court of Appeals are premised on
the supposed absence of evidence and contradicted by the evidence
on record. (emphasis and underscoring supplied)

In the present case, the findings of the Secretary of Labor and the
appellate court on whether the MOA is valid and binding are conflicting,
the former giving scant consideration thereon, and the latter affording it
more weight.

As found by the Secretary of Labor, the MOA came about as a result of

the constitution, at respondents behest, of the Labor-Management
Council (LMC) which, he reminded the parties, should not be used as
an avenue for bargaining but for the purpose of affording workers to
participate in policy and decision-making. Hence, the agreements
embodied in the MOA were not the proper subject of the LMC
deliberation or procedure but of CBA negotiations and, therefore,
deserving little weight.

The appellate court, held, however, that the Secretary did not have the
authority to give an arbitral award higher than what was stated in the
MOA. The conflicting views drew the Court to re-evaluate the facts as
borne by the records, an exception to the rule that only questions of law
may be dealt with in an appeal by certiorari under Rule 45.

As discussed in the Decision under reconsideration, the then Acting

Secretary of Labor Manuel G. Imson acted well within his jurisdiction in
ruling that the wage increases to be given are P10 per day effective
January 1, 2004 and P15 per day effective January 1, 2005, pursuant to
his power to assume jurisdiction under Art. 263 (g)[4] of the Labor
Code.

While an arbitral award cannot per se be categorized as an agreement

voluntarily entered into by the parties because it requires the
interference and imposing power of the State thru the Secretary of
Labor when he assumes jurisdiction, the award can be considered as
an approximation of a collective bargaining agreement which would
otherwise have been entered into by the parties. Hence, it has the force
and effect of a valid contract obligation between the parties.[5]
In determining arbitral awards then, aside from the MOA, courts
considered other factors and documents including, as in this case, the
financial documents[6] submitted by respondent as well as its previous
bargaining history and financial outlook and improvements as stated in
its own website.[7]

The appellate courts ruling that giving credence to the Pahayag and the
minutes of the meeting which were not verified and notarized would
violate the rule on parol evidence is erroneous. The parol evidence rule,
like other rules on evidence, should not be strictly applied in labor
cases. Interphil Laboratories Employees Union-FFW v. Interphil
Laboratories, Inc. [8] teaches:
[R]eliance on the parol evidence rule is misplaced. In labor cases
pending before the Commission or the Labor Arbiter, the rules of
evidence prevailing in courts of law or equity are not controlling. Rules
of procedure and evidence are not applied in a very rigid and technical
sense in labor cases. Hence, the Labor Arbiter is not precluded from
accepting and evaluating evidence other than, and even contrary to,
what is stated in the CBA. (emphasis and underscoring supplied)

On the contention that the MOA should have been given credence
because it was validly entered into by the parties, the Court notes that
even those who signed it expressed reservations thereto. A CBA
(assuming in this case that the MOA can be treated as one) is a
contract imbued with public interest. It must thus be given a liberal,
practical and realistic, rather than a narrow and technical construction,
with due consideration to the context in which it is negotiated and the
purpose for which it is intended.[9]

As for the contention that the alleged disaffiliation of the Union from the
FFW during the pendency of the case resulted in the FFW losing its
personality to represent the Union, the same does not affect the Courts
upholding of the authority of the Secretary of Labor to impose arbitral
awards higher than what was supposedly agreed upon in the MOA.
Contrary to respondents assertion, the unavoidable issue of
disaffiliation bears no significant legal repercussions to warrant the
reversal of the Courts Decision.
En passant, whether there was a valid disaffiliation is a factual issue.
Besides, the alleged disaffiliation of the Union from the FFW was by
virtue of a Resolution signed on February 23, 2010 and submitted to the
DOLE Laguna Field Office on March 5, 2010 two months after the
present petition was filed on December 22, 2009, hence, it did not
affect FFW and its Legal Centers standing to file the petition nor this
Courts jurisdiction to resolve the same.
At all events, the issue of disaffiliation is an intra-union dispute which
must be resolved in a different forum in an action at the instance of
either or both the FFW and the Union or a rival labor organization, not
the employer.

An intra-union dispute refers to any conflict between and among union

members, including grievances arising from any violation of the rights
and conditions of membership, violation of or disagreement over any
provision of the unions constitution and by-laws, or disputes arising
from chartering or disaffiliation of the union. Sections 1 and 2, Rule XI of
Department Order No. 40-03, Series of 2003 of the DOLE enumerate
the following circumstances as inter/intra-union disputes, viz:
RULE XI
INTER/INTRA-UNION DISPUTES AND
OTHER RELATED LABOR RELATIONS DISPUTES
SECTION 1. Coverage. - Inter/intra-union disputes shall include:
(a) cancellation of registration of a labor organization filed by its
members or by another labor organization;
(b) conduct of election of union and workers association officers/
nullification of election of union and workers association officers;
(c) audit/accounts examination of union or workers association funds;
(d) deregistration of collective bargaining agreements;
(e) validity/invalidity of union affiliation or disaffiliation;
(f) validity/invalidity of acceptance/non-acceptance for union
membership;
(g) validity/invalidity of impeachment/expulsion of union and workers
association officers and members;
(h) validity/invalidity of voluntary recognition;
(i) opposition to application for union and CBA registration;
(j) violations of or disagreements over any provision in a union or
workers association constitution and by-laws;
(k) disagreements over chartering or registration of labor
organizations and collective bargaining agreements;
(l) violations of the rights and conditions of union or workers
association membership;
(m) violations of the rights of legitimate labor organizations, except
interpretation of collective bargaining agreements;
(n) such other disputes or conflicts involving the rights to self-
organization, union membership and collective bargaining
(1) between and among legitimate labor organizations;
(2) between and among members of a union or workers association.
SECTION 2. Coverage. Other related labor relations disputes shall
include any conflict between a labor union and the employer or any
individual, entity or group that is not a labor organization or workers
association. This includes: (1) cancellation of registration of unions and
workers associations; and (2) a petition for interpleader.[10] (emphasis
supplied)

Indeed, as respondent-movant itself argues, a local union may

disaffiliate at any time from its mother federation, absent any showing
that the same is prohibited under its constitution or rule. Such, however,
does not result in it losing its legal personality altogether. Verily, Anglo-
KMU v. Samahan Ng Mga Manggagawang Nagkakaisa Sa Manila Bay
Spinning Mills At J.P. Coats[11] enlightens:

A local labor union is a separate and distinct unit primarily designed to

secure and maintain an equality of bargaining power between the
employer and their employee-members. A local union does not owe its
existence to the federation with which it is affiliated. It is a separate and
distinct voluntary association owing its creation to the will of its
members. The mere act of affiliation does not divest the local union of
its own personality, neither does it give the mother federation the
license to act independently of the local union. It only gives rise to a
contract of agency where the former acts in representation of the latter.
(emphasis and underscoring supplied)

Whether then, as respondent claims, FFW went against the will and
wishes of its principal (the member-employees) by pursuing the case
despite the signing of the MOA, is not for the Court, nor for respondent
to determine, but for the Union and FFW to resolve on their own
pursuant to their principal-agent relationship.
WHEREFORE, the motion for reconsideration of this Courts Decision of
November 15, 2010 is DENIED.

SO ORDERED.

x--x

G.R. No. 146376, April 23, 2014

RODOLFO M. AGDEPPA, Petitioner, v. HONORABLE OFFICE OF THE

OMBUDSMAN, ACTING THROUGH THE OFFICE OF THE DEPUTY
OMBUDSMAN FOR THE MILITARY, MARYDEL B. JARLOS-MARTIN,
EMMANUEL M. LAUREZO AND ILUMINADO L. JUNIA, JR.,
Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of Court filed
by petitioner Rodolfo M. Agdeppa (Agdeppa) assailing the Resolution1
dated July 31, 2000 and Order2 dated September 28, 2000 of
respondent Office of the Ombudsman. The Office of the Ombudsman
dismissed OMB-MIL-CRIM-00-0470, the administrative complaint
initiated by Agdeppa against respondents Marydel B. Jarlos-Martin
(Jarlos-Martin), Emmanuel M. Laurezo (Laurezo), and Iluminado L.
Junia, Jr. (Junia).

OMB-MIL-CRIM-00-0470 arose from OMB-0-99-1015, another

administrative complaint before the Office of the Ombudsman.

Junia, then Group Manager for the Project Technical Services Group of
the National Housing Authority (NHA), filed on May 25, 1999 a
Complaint3 before the Office of the Ombudsman against several NHA
officials, together with Agdeppa and Ricardo Castillo (Castillo), resident
auditors of the Commission on Audit (COA) at the NHA. Junias
Complaint was docketed as OMB-0-99-1015. Junia alleged that Supra
Construction (SupraCon), the contractor for the NHA project
denominated as Phase IX, Packages 7 and 7-A in Tala, Caloocan City
(NHA Project), was overpaid in the total amount of P2,044,488.71. The
overpayment was allegedly facilitated through the dubious and
confusing audit reports prepared by Agdeppa and endorsed by
Castillo, to the detriment, damage, and prejudice of the Government.

Junia also mentioned in his Complaint that Agdeppa had initiated

several cases, arising from the same NHA project, against Junia and
other NHA officials. While the other cases had already been dismissed
for lack of merit, the Office of the Ombudsman endorsed
OMB-0-94-2543 to the Office of the City Prosecutor of Quezon City
where it was docketed as I.S. No. 99-1979.

Notably, the Complaint in OMB-0-99-1015 was signed by Junia, and

certified and verified by him, but not under oath.4chanrobleslaw

On June 10, 1999, Jarlos-Martin, then Graft Investigation Officer II of

the Office of the Ombudsman, issued an Order5 in OMB-0-99-1015
giving the following directives: (1) for Agdeppa and Castillo to file their
respective counter-affidavits, witnesses affidavits, and other supporting
evidence in answer to Junias Complaint within 10 days from notice;
and (2) for Junia to file his reply within five days from receipt of copies
of Agdeppas and Castillos counter-affidavits.

Agdeppa filed his Answer6 on July 26, 1999, denying Junias

allegations against him and praying for the dismissal of the Complaint
in OMB-0-99-1015 for utter lack of merit. According to Agdeppa, Junias
claims that Agdeppa had manipulated audit reports of overpayments to
SupraCon to create confusion and defraud the Government, were
unfortunate, irresponsible, and malicious. Agdeppa also clarified that
I.S. No. 99-1979, against Junia and other NHA officials, was now
Criminal Case No. Q-99-81636 before the Quezon City Regional Trial
Court (RTC), Branch 86, and a Warrant of Arrest7 had already been
issued on March 15, 1999 for Junia and Evaristo B. Macalino.

Junia immediately filed his Reply8 to Agdeppas Answer on July 30,

1999.

On September 6, 1999, Castillo filed his Answer9 likewise denying the

allegations in Junias complaint in OMB-0-99-1015. Castillo contended
that Junias claims of overpayment were the result of the latters
erroneous appreciation of existing documents; that the computations by
the COA audit team assigned at the NHA were issued with complete
transparency and after undergoing the process of check and
countercheck; and that he had no participation in the computation and
payment made to SupraCon after his reassignment on July 6, 1987.

Junia filed a Reply10 to Castillos Answer on September 20, 1999.

At around the same time the foregoing events were unfolding, Agdeppa
wrote a letter11 dated March 3, 1999 addressed to Senator Renato S.
Cayetano (Sen. Cayetano), who was then the Chairperson of the Senate
Committee on Justice and Human Rights. Agdeppa requested Sen.
Cayetano to conduct an investigation of incumbent officials of the Civil
Service Commission (CSC) and COA who purportedly committed
irregularities in the resolution of the administrative case against the
government officials and employees involved in the reconsideration of
the disallowed money claims of SupraCon in the NHA Project. Agdeppa
attached to said letter his Sworn Statement12 dated March 3, 1999,
detailing under oath his accusations against the COA and CSC officials.
In a 1st Indorsement13 dated April 23, 1999, Atty. Raul M. Luna, Sen.
Cayetanos Chief of Staff, referred Agdeppas letter dated March 3,
1999 to Ombudsman Aniano A. Desierto (Desierto) for appropriate
action.

Agdeppa then wrote a letter14 dated July 12, 1999 addressed to

Ombudsman Desierto inquiring as to the status of the 1st Indorsement
from Sen. Cayetanos office. Failing to receive any reply, Agdeppa wrote
another letter15 dated August 19, 1999 addressed to Ombudsman
Desierto, pertinent parts of which are reproduced
below:chanRoblesvirtualLawlibrary

This is to inform you Sir, that I have not yet receive[d] any kind of
communication from you or from your good office concerning my letter
dated July 12, 1999 (Annex A hereof) which was received by your
Dibisyon ng Rekords Sentral on July 14, 1999 inquiring on the status of
my letter with its accompanying Sworn Statement, dated March 3, 1999,
to Senator Renato L. Cayetano, which was instead endorsed to you by
his Chief of Staff, Atty. Raul M. Luna, in a 1st Indorsement dated April
23, 1999 for appropriate action.cralawred

xxxx
One of the reasons why I am writing to you again, Sir, is to be sure that I
will not be remiss in reminding you that your good office has still to act
on my letter of July 12, 1999.

I also want you to know, Sir, that I am now being harassed by certain
elements in your honorable office. This is manifest in the hasty
evaluation of the counter-complaint (Annex E hereof) (now
OMB-0-99-1015) filed by one of the respondents in OMB-0-94-2543
(now Criminal Case No. Q-99-81636 before QC RTC Branch 86), which
complaint was received by your Dibisyon ng Rekords Sentral on May
23, 1999, and which was given due course by MARYDEL B. JARLOS-
MARTIN, Graft Investigation Officer II, through her ORDER dated 10
June 1999 (Annex F hereof) directing me to answer OMB-0-99-1015.

Please note, Sir, that the ORDER of June 10, 1999 was served only on
July 15, 1999 or the day after your office had received my letter of July
12, 1999, giving the impression that the said order was issued as an
after-thought and meant as a leverage, if not a veiled warning, to stop
me from pursuing the endorsement of my letter of March 3, 1999 to you.

Please be informed too that the above-mentioned counter-complaint

could not be the basis of the Order dated June 10, 1999 because the
said complaint was not an affidavit-complaint, contrary to what was
indicated in the said order. Hence, there must be compliance first with
Section 4 and 4(A) of Administrative Order No. 07 dated April 10, 1990
(Rules of Procedure of the Office of the Ombudsman) before Atty.
Jarlos-Martin could issue her order of June 10, 1999, x x
x:chanroblesvirtuallawlibrary

xxxx

Notwithstanding a clear violation of my substantive right, I had

nevertheless opted to answer OMB-0-99-1015 on July 26, 1999 without
raising the issue on procedural due process and without disturbing the
deadline set by Atty. Jarlos-Martin because I wanted the said case to
be resolved for lack of merit.

The fact, therefore, that there was great haste in the commencement of
the preliminary investigation of OMB-0-99-1015 while my letter of July
12, 1999 remains un-answered until now could not but evoke my
suspicion that your honorable office is being used for other
purposes.cralawred

xxxx

x x x I would like to request that you require Atty. Jarlos-Martin to

resolve OMB-0-99-1015 with the same dispatch by which she had
given due course to the counter-complaint of Mr. Iluminado L. Junia, Jr.,
on one hand, and to direct the graft investigation officer handling the
endorsement of my letter of March 3, 1999 to inform me about the
status of the said endorsement.

Realizing from Agdeppas letter dated August 19, 1999 that Junias
Complaint in OMB-0-99-1015 was not under oath, Jarlos-Martin issued
an Order16 on September 23, 1999 with the following directive for
Junia:chanRoblesvirtualLawlibrary

You are hereby ordered to appear before the undersigned at the Office
of the Ombudsman, Room 210, located at the 2nd Floor, Evaluation and
Preliminary Investigation Bureau, immediately upon receipt hereof, in
order to swear to your complaint dated May 18, 1999, pursuant to
Section 4(a), Rule II, Administrative Order No. 07, otherwise known as
the Rules of Procedure of the Office of the Ombudsman.

Pursuant to the aforequoted Order, Junia personally appeared before

Laurezo on October 6, 1999 to swear to his Complaint.17chanrobleslaw

Also on October 6, 1999, Jarlos-Martin issued another Order18

addressed to Agdeppa and Castillo that
reads:chanRoblesvirtualLawlibrary

You are hereby directed to file your counter-affidavit, the affidavit/s of

your witness/es and other supporting evidences, if any, in answer to the
hereto attached copy of the Complaint-Affidavit dated May 18, 1999,
which is now under oath, within TEN (10) DAYS from receipt hereof, with
proof of service upon the complainant who may file a reply thereto
within FIVE (5) DAYS from receipt, if he so desire/s.
Your failure to do so within the aforesaid period shall be deemed a
waiver of your right to submit controverting evidence and this
preliminary investigation shall proceed accordingly. Thereafter, this
case shall be deemed submitted for resolution on the basis of the
evidence presented by the parties whose presence may be dispensed
with, unless otherwise required for clarificatory hearing.

Agdeppa, in a Motion to Resolve19 submitted on November 8, 1999,

opposed Jarlos-Martins Order dated October 6, 1999, asserting as
follows:chanRoblesvirtualLawlibrary

25. With due respect, [Agdeppa] finds the order of October 6, 1999
directing him to answer OMB-0-99-1015 anew and for [Junia] to reply if
he so desires as a blatant disregarding of Section 4, Rule II of the Rules
of Procedure of the Office of the Ombudsman (Annex 18 hereof) or of
Section 3, Rule 112 of the Rules of Court (Annex 18-A hereof);

26. From either of the above-mentioned rules relative to the procedure

in the preliminary investigation of criminal cases, x x x the next step
after the filing of the respondents counter-affidavit is the setting of a
hearing for clarificatory questioning by the investigating officer if there
are matters that need to be clarified, and/or the investigating officer
shall forward the records of the case together with his/her resolution to
the designated authorities for their appropriate action thereon;

xxxx

27. With due respect, the new order is no longer a means to carry out
the so-called due process of law in the preliminary investigation of the
above-entitled case, which is a criminal case falling within the
jurisdiction of the Sandiganbayan and/or Regional Trial Court;

28. Rather, the new order became a tool to enhance or modify the
substantive rights of [Junia] to the injury of [Agdeppa] for giving the
former unwarranted benefits, advantage or preference in the discharge
of official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence;

29. This is manifest because of the records of OMB-0-99-1015 (the

above-entitled case) is already complete as of September 6, 1999,
which was the date of receipt of the answer of [Castillo] by this
honorable office, a copy of its first and last page are hereto attached as
Annex 19 hereof and it would be, therefore, anomalous to further
delay the evaluation of the said case by directing [Agdeppa] to answer
OMB-0-99-1015;

30. To reiterate with stress, [Agdeppa] already answered

OMB-0-99-1015 through his answer which was executed on July 26,
1999 and filed with this honorable office[s] DIBISYON NG REKORDS
SENTRAL on even date;

31. It is likewise reiterated that [Junia] had even furnished [Agdeppa]

with his reply dated July 30, 1999 (Annex O);

32. What will happen to the priceless effort and money that went with
the preparation and submission of the aforementioned pleadings vis--
vis the service of the order dated October 6, 1999 to [Agdeppa] only?

33. It appears that it was only [Agdeppa] who was targeted by the
Order dated October 6, 1999 because [Castillo], who lives a block from
[Agdeppas] residence at Roque Drive, declared in his Affidavit
executed on November 4, 1999 (Annex 20 hereof) that he had
received only one order relative to OMB-0-99-1015 and that was the
Order dated June 10, 1999 and nothing more;

34. For another, was the reply of [Junia] not enough to find probable
cause to warrant the filing of a criminal information against [Agdeppa]
that is why he was given another chance, through the Order dated
October 6, 1999, to do a clinching one;

35. Furthermore, it is not difficult to deduce from the complete records

of OMB-0-99-1015 that [Junia] is on a fishing for evidence expedition
because he included [Castillo] as a respondent in the above-entitled
case even if the latter was no longer the auditor of COA at NHA when
the 14-page Memorandum dated February 19, 1988 (Annex M
Complaint) came into being, as his (Castillo) tenure as chief auditor of
the said government agency ended on August 7, 1987 as per
Reassignment Order No. 87-3210 dated July 6, 1987;

xxxx
44. It is not difficult to see that the actual primary purpose of [Junia] in
filing OMB-0-99-1015 is for him to get a relief from this honorable office
in order that he could stop his arraignment in Crim. Case No.
Q-99-81636 before Judge Teodoro A. Bay of the QC RTC Branch 86
arising from OMB-0-94-2543 by spicing Crim. Case No. 16240, which is
still pending with the Sandiganbayans Second Division, with [Junias]
so-called evidence against [Agdeppa and Castillo] in their alleged
participation in, and/or allowing, the illegal payment of
PHP1,861,945.28[.]

At the end of his Motion, Agdeppa prayed:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, it is respectfully prayed that the

Order dated 6 October 1999 be set aside and that the above-entitled
case be now resolved and dismissed on the basis of the records which
were already complete as of September 6, 1999, with the same
dispatch as the giving of due course to the complaint dated May 18,
1999 by the Order dated June 10, 1999.20

On November 25, 1999, Castillo filed a Manifestation and Compliance

with Submission,21 acknowledging that the Complaints and Annexes,
subject of the Orders dated June 10, 1999 and October 6, 1999 were
one and the same; adopting and incorporating by reference his Answer
dated September 1, 1999 previously filed in the case; and praying that
his latest pleading be considered sufficient compliance with the Order
dated October 6, 1999. On December 6, 1999, Junia, in turn, filed a
Manifestation22 in which he adopted his Reply dated September 20,
1999 to Castillos Answer dated September 1, 1999, including Annexes.

Eventually, on June 14, 2000, Jarlos-Martin issued a Resolution23 in

OMB-0-99-1015, concluding as follows:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, finding probable cause to indict

respondents RODOLFO M. AGDEPPA and RICARDO B. CASTILLO for
violation of section 3(e) of the Anti-Graft and Corrupt Practices Act
relative to the overpayment of the amount of P182,543.43 to SUPRA
Construction, let, therefore, an information be filed against them in the
proper court.
The charge of overpayment to [SupraCon] of the amount of
P1,861,945.28, representing the additional escalation cost for the
subject contract is hereby DISMISSED, for insufficiency of evidence.

Pursuant to Jarlos-Martins foregoing Resolution, an Information24

dated June 14, 2000 was filed before the Quezon City RTC-Branch 91,
docketed as Crim. Case No. 01-100552, charging Agdeppa and
Castillo with violation of Section 3(e) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act. The
Quezon City RTC-Branch 91 issued a Warrant of Arrest25 for Agdeppa
and Castilllo on May 10, 2001.

Meanwhile, as his Motion to Resolve in OMB-0-99-1015 was still

unacted upon by April 7, 2000, Agdeppa filed before the Office of the
Ombudsman an Affidavit-Complaint against Jarlos-Martin, Laurezo, and
Junia, docketed as OMB-MIL-CRIM-00-0470. Agdeppa accused Jarlos-
Martin, Laurezo, and Junia of violating Section 3(a), (e), (f), and (j) of
Republic Act No. 3019; and Rule II, Section 4(a), (b), and (g) of
Supreme Court Administrative Order No. 07, dated April 10, 1990,
otherwise known as the Rules of Procedure of the Office of the
Ombudsman (Ombudsman Rules of Procedure), based on the following
averments:chanRoblesvirtualLawlibrary

20. That the act of respondent Jarlos-Martin in issuing the Order dated
6 October 1999 when she was supposed to have already resolved
OMB-0-99-1015 a long time ago, thus giving unwarranted benefits,
advantage or preference to respondent Junia to the damage and injury
of [petitioner Agdeppa], constitutes a violation of Section 3(e) of Rep.
Act 3019, as amended causing any undue injury to any party xxx, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
function through manifest partiality, evident bad faith or gross
unexcusable negligence.

21. That respondent Jarlos-Martin caused damage and injury to

[Agdeppa] because she set aside the records of OMB-0-99-1015,
which was already complete when she issued her Order, dated 6
October 1999 and, thus, re-started the preliminary investigation of the
case all over again.
22. That the re-starting of the preliminary investigation on
OMB-0-99-1015 gave unwarranted benefits, advantage or preference
to respondent Junia because, in the Order dated 6 October 1999,
[Junia] was given another chance to file his reply to any answer or
counter-affidavit submitted after 6 October 1999, on one hand, or gave
respondent Jarlos-Martin a basis to resolve the said case in favor of
respondent Junia in case of non-compliance of [Agdeppa] to the said
Order.

23. That the act of respondent Laurezo on 6 October 1999 of

subscribing to OMB-0-99-1015 was to provide respondent Jarlos-Martin
with a basis, albeit unlawful, to issue her Order dated 6 October 1999
(of even date) which act constitute corrupt practices act of any public
officer under Section 3(a) of Rep. Act 3019, as amended persuading,
inducing or influencing another public office to perform an act
constituting a violation of rules and regulations duly promulgated by
competent authority or an offense in connection with the official duties
of the latter or allowing himself to be persuaded, induced, or influenced
to commit such violation or offense.

24. That the rules and regulations duly promulgated by competent

authority that was violated by respondent Jarlos-Martin are Section 4(a)
(b) and (g), Rule II, Administrative Order No. 07 dated April 10, 1990
(Section 3, Rule 112 of the Rules of Court). x x x.

25. That respondent Laurezo could have not escaped noticing that the
complaint dated May 17, 1999 he was about to subscribe on 6 October
1999 was already docketed as OMB-0-99-1015 as indicated by the big
bold letters at the bottom of the first page of the said complaint.

26. That when respondent Laurezo subscribed to OMB-0-99-1015 after

it was already docketed as such, he had, therefore, knowingly granted
a privilege or benefit in favor of respondent Junia who was not qualified
for or not entitled to such a privilege or advantage on 6 October 1999,
which act is a violation of Sec. 3(j) of R.A. 3019, as amended
knowingly x x x granting any x x x privilege or benefit in favor of any
person not qualified for or not entitled to such x x x privilege or
advantage x x x.
27. That the failure of respondent Jarlos-Martin to resolve
OMB-0-99-1015 notwithstanding the Motion to Resolve dated
November 8, 1999 on the basis of the Order dated 10 June 1999
constitutes a violation of Section 3(f) of R.A. 3019, as amended
Neglecting or refusing, after due demand or request, without sufficient
justification, to act within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or indirectly, from any
person interested in the matter some pecuniary or material benefit or
advantage, or for purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any other interested
party.ChanRoblesVirtualawlibrary

28. That respondent Jarlos-Martin refused to resolve OMB-0-99-1015

even after due demand or request because she will obtain pecuniary
benefit from doing so from respondent Junia as it would delay the
arraignment of the latter, who is a respondent in Crim. Case No.
Q-81636 before Quezon City Regional Trial Court Branch 86, with
Judge Teodoro A. Bay presiding.

29. That her obtaining of some pecuniary benefit from respondent

Junia, as well as for the purpose of discriminating against [Agdeppa]
are manifest because the un-resolved OMB-0-99-1015 is practically the
same as the Motion for Reconsideration dated May 17, 1999 filed by
respondent Junia before QC RTC Branch 86 to stay his arraignment in
Crim. Case No. Q-81636 and that she has only to blame herself for
being accused of such corrupt practices acts because [Agdeppa] had
categorically manifested to her the un-holy symbiotic connection of
OMB-0-99-1015 with the Motion for Reinvestigation on Crim. Case No.
Q-81636 through the Manifestation dated August 9, 1999. x x x.

30. That as a consequence of respondent Jarlos-Martins refusal to

resolve the preliminary investigation of OMB-0-99-1015, which refusal is
manifest through her Order dated 6 October 1999, respondent Junias
arraignment in Crim. Case No. Q-81636 is being reset for many times
already, the latest of which is on May 10, 2000.

31. That this is so, and will remain to be so, because the resolution of
the above-mentioned Motion for Reinvestigation filed by respondent
Junia, who is one of the accused in Crim. Case No. Q-81636, is waiting
for the resolution of OMB-0-99-1015.26
Acting on Agdeppas Affidavit-Complaint in OMB-MIL-CRIM-00-0470,
Director Rudiger G. Falcis II (Falcis) of the Criminal Investigation,
Prosecution & Administrative Adjudication Bureau, Office of the
Ombudsman, issued an Order27 dated June 6, 2000, directing only
Jarlos-Martin and Laurezo to file their counter-affidavits and other
evidence within 10 days from notice.

Laurezo, in his Counter-Affidavit28 dated June 22, 2000, asseverated

that:chanRoblesvirtualLawlibrary

7. Any Lawyer-Investigator in the Office of the Ombudsman, worthy of

his salt knows that in administering oath and subscribing affidavit-
complaint, merely assures himself that the person to be sworn by him is
the same person who executes the complaint-affidavit and that the
contents thereof are true of his own knowledge. He is not oblige[d] to
inquire into the merit and/or status of his complaint.

8. It is clear from the aforestated facts and provisions of law, rules and
regulations that my official action in administering oath and subscribing
the complaint of Iluminado Junia on October 6, 1999, is in accordance
with law, done in good faith and without any unlawful motive.

9. It must be stated that Section 3(a) of R.A. 3019 is premised on a

public officer[s] act of persuading, inducing or influencing another
public officer to violate the rules and regulations with the unlawful intent
of deriving personal gain and advantage. As the facts established in
the instant case has shown, there is no opportunity for me whatsoever
to derive any personal gain or pecuniary advantage from the mere act
of administering and subscribing the complaint-affidavit of Iluminado
Junia. Neither was there any evidence presented to demonstrate that I
intended to derive any benefit from administering and subscribing the
affidavit-complaint of Junia. Neither did I act for consideration. There is
no evidence presented to demonstrate that I received any pecuniary
advantage in consideration of my administering oath and subscribing
the affidavit-complaint of Junia.

10. Moreover, there was no damage caused to complainant herein. The

authentication of the complaint-affidavit is in compliance with the
procedural requirement which the parties to the case at bar have to
comply.

11. I did not persuade, induce nor influence any public officer to violate
any rules and regulations duly promulgated by competent authority or
an offense in connection with the official duties of the latter. When the
provision speaks of persuading, inducing, or influencing, it means
that there must be an active persuasion, inducement, or influence on
the part of the public official sought to be held liable. Active persuasion,
inducement, or influence cannot be presumed, much less established,
by the mere subscribing of an affidavit which is required by law. It must
be noted that there has been no evidence whatsoever presented by
[Agdeppa] to show that I actually and personally persuaded, induced
or influenced other public officers, specifically [Atty. Jarlos-Martin] to
disobey any law.

12. Complainant Agdeppa was in the state of hallucination in alleging

that when I subscribed the complaint in OMB-0-99-1015, after it was
already docketed, I knowingly granted a privilege or benefit in favor of
[Junia] who was not qualified for or not entitled to such privilege or
advantage on October 6, 1999. A complaint-affidavit is not a license,
permit, privilege or benefit.29

Agdeppa retorted in his Reply-Affidavit30 filed on July 12,

2000:chanRoblesvirtualLawlibrary

9. That Par. no. 5, in so far as it concerns [Laurezos] reference to

Section 15 of Rep. Act No. 6770 as the authority from which he derived
his administration of an oath to Mr. Junias [complaint] dated May 18,
1999, is denied as: (a) he was a usurper of the authority reserved to his
co-respondent Graft Investigation Officer Atty. Jarlos-Martin in
OMB-0-99-1015, (b) it was already too late in the day, so to speak, for
him to administer an oath to OMB-0-99-1015 as the said case was
already submitted for resolution as of September 20, 1999 which date is
the last day of the preliminary investigation of the said case on the
basis of [Jarlos-Martins] Order dated 10 June 1999, and (c) he should
have asked questions why Mr. Junia is asking him to administer an oath
to his aforesaid complaint which was already more than four (4) months
old on 6 October 1999, to say the least.
10. That Par. no. 5, in so far as it pertains to [Laurezos] claim that he
merely assured himself of the true/correct identity of Mr. Junia and that
the contents thereof are true of his own knowledge, is admitted but with
the qualification that he, as a graft investigation officer of this Honorable
Office, to reiterate, should have at least inquired why the document he
was about to subscribe already bear the big bold marking 0 99
1015.ChanRoblesVirtualawlibrary

11. That Par. no. 6, in so far as it relates to [Laurezos] quoting of

paragraph (a) of Section 4 of A.O. No. 07 (Procedure in the Preliminary
Investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts) as his authority in
administering the oath to OMB-0-99-1015, is denied because [Laurezo]
is not the investigating officer referred to in the aforesaid paragraph of
Section 4. This is so because, OMB-0-99-1015 is under his co-
respondent Atty. Jarlos-Martin and that on 6 October 1999, the
preliminary investigation of the said case was already completed.
Thusly, [Laurezo] had no lawful authority under Sec. 4, Rule II, A.O. No.
07 to intervene in OMB-0-99-1015.cralawred

xxxx

16. That Par. no. 9, in so far as it relates to the claim of [Laurezo] that
there must first be a showing of an intent of deriving personal gain or
benefit in order that Section 3(a) of Rep. Act No. 3019 applies, is
denied as the said provision of the said law (Anti-Graft and Corrupt
Practices Act) merely states
Persuading, inducing or influencing another public officer to perform
an act constituting a violation of rules and regulations duly promulgated
by competent authority or an offense in connection with the official
duties of the latter, or allowing himself to be persuaded, induced, or
influenced to commit such violation or offense.
Nothing more. Nothing less. Hence, [Laurezo] should not add anything
to it.

17. That Par. no. 10 is denied because, when [Laurezo] administered

an oath to Mr. Junia on 6 October 1999, it triggered the second
preliminary investigation of OMB-0-99-1015. It is to be noted that the
preliminary investigation of the said case was already completed on
September 20, 1999 so there was no more basis for [Laurezos] co-
respondent Atty. Jarlos-[M]artin to issue another Order dated
September 23, 1999 to enable her to subscribe to the complaint dated
May 18, 1999. It follows, therefore, that, when [Laurezo] subscribed to
the said complaint, he caused the suspension of the resolution of
OMB-0-99-1015 as he legitimized the illegal second preliminary
investigation of the said case, thereby prolonging the agony of the
respondents concerned in terms of prolonged anxiety, aggravation,
humiliation and expense inherent in a criminal investigation. If there is
no damage to [Agdeppa], as claimed by [Laurezo], then what will
[Laurezo] call the prolonged anxiety, aggravation, humiliation and
expense which [Agdeppa] is being made to bear until now in
OMB-0-99-1015?

xxxx

19. That [Laurezos] contention in Par. no. 12 that [Agdeppa] was in a

state of hallucination in charging [Laurezo] for violation of Section 3(a)
of Rep. Act No. 3019 allegedly because he could not be liable thereof
as he did not grant any license, privilege or benefit when he subscribe
to the stale Complaint-Affidavit dated May 18, 1999, deserves no
consideration. This is so because, in Mejorada v. Sandiganbayan, G.R.
No. L-51065-72, June 30, 1987, the Honorable Supreme Court, ruling
on the issue raised by the petitioner that inasmuch as he is not
charged with the duty of granting licenses or permits or other
concessions, then he is not an officer contemplated by Section 3(e),
held that:
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers declared unlawful. We agree with the
view adopted by the Solicitor General that the last sentence of
paragraph (e) is intended to make clear the inclusion of officers and
employees of offices or government corporations which, under the
ordinary concept of public officers may not come within the term. It is
a strained construction of the provision to read it is applying exclusively
to public officers charged with the duty of granting licenses or permits
or other concession.
It follows, therefore, that the only determination left for this Honorable
Office is to find out if [Laurezo] is a public officer or not in order for him
to be held liable under Rep. Act No. 3019.31
Jarlos-Martin, for her part, avowed in her Counter-Affidavit,32 dated
June 23, 2000, thus:chanRoblesvirtualLawlibrary

4. I vehemently deny the said accusations, the truth of the matter being
as follows:
a. On June 7, 1999, OMB Case No. 0-99-1015 entitled Iluminado L.
Junia, Jr. vs. Rodolfo M. Agdeppa and Ricardo Castillo, For: Violation of
R.A. No. 3019, was assigned to me.

b. Upon receipt thereof, I made an evaluation report on the said case. I

requested for an authority to conduct a preliminary investigation, which
was granted on June 10, 1999. On even date, an order was issued
directing the respondents (of OMB 0-99-1015) to file their counter-
affidavits.

c. On July 26, 1999, Rodolfo M. Agdeppa filed his answer. Thereafter,

on August 2, 1999, Iluminado L. Junia, Jr. filed his reply to the said
answer. Upon the other hand, Ricardo Castillo filed several motions for
extension of time until he finally filed his answer on September 6, 1999.
The reply on Castillos answer was filed by Junia on September 20,
1999.

d. On September 23, 1999, I made a study of the records of the subject

case to determine if there is a need for clarificatory hearing or other
documents to be presented, since the issues in the subject case are
complicated and involve technical matters.

e. It appears from the records that a letter was sent by Rodolfo

Agdeppa, manifesting before this Office that there must be compliance
first with section 4 and 4(a) of Administrative Order No. 7 dated April
10, 1999 before an order to file counter-affidavit could issue, copy of
the said letter is hereto attached as Annex 1.

f. Upon confirmation, I noticed that although the complaint looks like as

if it was sworn to, since it was signed by Iluminado Junia, Jr. and that
there is verification and certification written thereat, still, the same was
not under oath.

g. While it is my honest belief that I have performed my duty in

accordance with the provision of law which provides that The
Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against officers or
employees of the Government (see section 13, R.A. 6770), yet, to put
things in order, the matter can be best rectified by complying with the
provisions of section 4(a) and (b) of A.O. No. 7. Thus, on the same
date, or on September 23, 1999, I immediately issued an order
directing Iluminado Junia, Jr. to appear before the Office of the
Ombudsman to swear to his complaint pursuant to section 4 and 4(a) of
A.O. No. 7, copy of the said order is hereto attached as Annex 2.

[h.] On October 6, 1999, Junia personally appeared before the Office

and his complaint was sworn to before Atty. Emmanuel M. Laurezo, an
officer authorized to administer oath under section 31 of R.A. No. 6770.
Subsequently, an order to file counter-affidavit was issued in
accordance with section 4(b) of A.O. No.7.
5. Under the circumstances, it is very clear that there is absolutely no
basis in filing this case:
5.1. [Agdeppas] claim that my act of issuing the Order dated October
6, 1999 when I was supposed to have already resolved OMB 0-99-1015
a long time ago, finds no place. How could I resolve a case, which is
not yet ripe for resolution? At the time the said order was issued,
preliminary investigation was still ongoing.

5.2. The charge that I caused damage and injury to [Agdeppa]

because I set aside the records of OMB-0-99-1015, which was
complete when I issued the order dated October 6, 1999, is likewise
devoid of merit.

5.3. I did not set aside the records of the case. I was evidently inspired
by utmost good faith to comply with procedural matters, of which I was
authorized.

5.4. There is no basis on complainant Agdeppas allegations that the

records of the case [were] already complete when I issued the October
6, 1999 order. The last pleading that I received before I issued the
aforesaid order was the reply to Castillos answer filed on September
20, 1999 by Junia before the Records Divisions of the office. I was not
aware when Castillo personally received the said reply, since the proof
of sending is by registered mail. What if he files a rejoinder? It is to be
noted that the purpose of preliminary investigation is to give
opportunities to the parties to expound their respective sides.

5.5. Even assuming, arguendo, that the parties have already submitted
their respective pleadings, this cannot be made as basis to terminate
the preliminary investigation and jump into the conclusion that the
records [were] already complete. It bears emphasis that, during the
study of the case, if the investigating officer finds that there are matters
which need to be clarified, he/she may set a clarificatory hearing, or if
there are documents which need to be produced, subpoena duces
tecum will issue.

5.6. The allegation that the re-starting of preliminary investigation on

OMB-0-99-1015 gave unwarranted benefits, advantage or preference
to respondent Junia because, in the Order dated 6 October 1999, the
said respondent was given another chance to file his reply to any
answer or counter-affidavit submitted after 6 October 1999 (see par.
22, Complaint) was unfounded.

5.7. The said order was intended to both parties and not only to Junia.
Granting that the preliminary investigation restarted by reason of
compliance with A.O. No. 7, this will not put into waste the efforts
already exerted by the parties. The complaint that was attached to the
second order to file answer is the very same complaint that was
attached to the first order, only that it was put under oath. This means
there is nothing new in the subject matter of the complaint, which the
respondent therein had already studied. Needless to say, respondents
must adopt their previous answers and the complainant, his reply
thereto, which is exactly what Ricardo Castillo and Iluminado Junia, Jr.
did, copies of their respective Manifestations dated November 24, 1999
and December 6, 1999 are hereto attached as Annexes 3 and 4.

5.8. The allegation that the order dated October 6, 1999 will give me
basis to resolve the case in favor of Junia in case of non-compliance of
Agdeppa to the said Order (see par. 22, Complaint) is totally absurd
and malicious.

5.9. It is significant to note that in any case, it does not follow that if
there is failure on the part of [Agdeppa] to file his answer, the case will
be resolved in favor of [Junia]. The resolution of the case is based on
the evidence on record. Thus, in the subject case, OMB 0-9-1015,
though Agdeppa did not submit a responsive pleading to the Order
dated October 6, 1999 and instead filed a Motion to Resolve, his
counter-affidavit which had already form[ed] part of the records of the
case, will be treated as his answer. 33

In his Reply-Affidavit34 filed on July 12, 2000, Agdeppa countered:

11. That Par. no. 4(g), in so far as it relates to the claim of [Jarlos-
Martin] that the matter (a case that was already subjected for
preliminary investigation) is rectifiable by the application of Section 4(a)
and (b) of A.O. No. 07 is denied because that is putting the cart before
the horse, so to speak. This is so because, in A.O. No. 07, only verified
complaints undergo preliminary investigations. Hence, when the un-
sworn complaint dated May 18, 1999 underwent preliminary
investigation up to the time when the last pleading thereof was filed on
September 20, 1999, Section 4(b) of A.O. No. 07 is no longer
applicable because, without anymore clarificatory questioning, what
follows next is its resolution, pursuant to Section 4(g) thereof x x
x.cralawred

xxxx

12. That Par. no. 4(g), in so far as it concerns the claim of [Jarlos-
Martin] that she resorted to the issuance of her aforesaid Order dated
September 23, 1999 to put things in order, is denied because, to
reiterate, she no longer has the authority to issue such an Order after
September 20, 1999 as there was already a last pleading filed to
OMB-0-99-1015 on the basis of her Order dated 10 June 1999 and,
thusly, she was already mandated, by her very own Order dated 10
June 1999, to resolve the said case pursuant to Section 4(g) of A.O. No.
07.

13. That the first Par. no. 5 (as there are two) is admitted but with the
qualification that the appearance of Mr. Junia before the Office (EPIB)
was on the basis of [Jarlos-Martins] Order dated September 23, 1999.
If this is the case, then [Jarlos-Martin] should have been the one who
should have administered the oath on the complaint dated May 18,
1999 as she is also authorized to do so pursuant to Section 31 of RA
No. 6770 x x x.cralawred
xxxx

14. That the second Par. no. 5 is denied as the record of OMB-
0-99-1015 indicates to the contrary the claim of [Jarlos-Martin] that
there is absolutely no basis for the filing of the above-entitled case. It is
to be noted that no less than Director Rudiger G. Falcis II, of the
Criminal Investigation, Prosecution and Administrative Adjudication
Bureau, this Honorable Office, had declared in his Order dated June 6,
2000 requiring [Jarlos-Martin] to file [her] counter-affidavit to the above-
entitled case because The Affidavit-Complaint filed by [Junia] dated
April 6, 2000 xxx is sufficient in form and substance, thus, entirely
belying [Jarlos-Martins] claim of absolute want of basis in the filing of
the instant case.cralawred

xxxx

17. That Par. no. 5.2 is denied because it is precisely the Order dated
October 6, 1999 which gave [Jarlos-Martin] a veiled legal basis in
postponing, albeit illegally, the resolution of OMB-0-99-1015. This is so
because the said Order changed the proceedings already put and held
in place by the Order dated 10 June 1999. Thusly, the preliminary
investigation of OMB-0-99-1015 went beyond the ambit of the Order
dated 10 June 1999. x x x.35

The Office of the Ombudsman issued a Resolution dated July 31, 2000
dismissing Agdeppas complaint in OMB-MIL-CRIM-00-0470 for the
following reasons:
We find for [Jarlos-Martin, Laurezo, and Junia].

We shall explain the pertinent provisions of Republic Act No. 3019

which are clearly inapplicable to the instant case:
To warrant the indictment of [Jarlos-Martin, Laurezo, and Junia] for
violation of Section 3(e) of RA 3019, it is not enough that the act of
[Jarlos-Martin and Laurezo] in the discharge of their official function
caused undue injury to [Agdeppa]. It behooves [Agdeppa] to prove
that the assailed act must have been done with manifest partiality,
evident bad faith, or gross inexcusable negligence (Alejandro vs.
People, 170 SCRA 400). Moreover, unlike in actions for torts, undue
injury in Section 3(e) of RA 3019 cannot be presumed even after a
wrong or a violation of right has been established, its existence must be
proven as one of the elements of the crime, and that the injury be
specified, quantified, and proven to the point of moral certainty. They
cannot be based on flimsy and non-substantial evidence or upon
speculation, conjecture or guesswork; mere inconvenience is not
constitutive of undue injury (Llorente vs. Sandiganbayan, 287 SCRA
382).

Mere neglect or refusal, after due demand or request, without sufficient

justification, to act within a reasonable time on any matter pending
before the office of [Jarlos-Martin and Laurezo] is not punishable under
Section 3(f) of RA 3019. It is necessary that such neglect or refusal
must be for any of the following purposes: a) obtaining, directly or
indirectly, from any person interested in the matter some pecuniary or
material benefit or advantage, b) favoring respondents own interest, or
c) giving undue advantage in favor of or discriminating against any
other interested party. That respondent Jarlos-Martin will obtain
pecuniary benefit from her act or omission is an allegation that must be
proven to the point of moral certainty and cannot be presumed or
based on surmises.

Section 3(a) of RA 3019 punishes a public officer who persuades,

induces, or influences another to perform an act constituting a violation
of rules and regulations or an offense in connection with the official
duties of the latter, as well as the public officer who allowed himself to
be persuaded, induced, or influenced to commit such violation or
offense. Evidence on record, however, is bereft that respondents Junia
and Laurezo had a meeting of minds to commit a violation. Besides,
[Agdeppa] miserably failed to show which particular law, rule or
regulation was violated by respondent Laurezo in affixing his signature
to the complaint.

Section 3(j) of RA 3019 penalizes a public officer who knowingly

approved or granted any license, permit, privilege, or benefit in favor of
any person not qualified for or not legally entitled to such license,
permit, privilege or advantage. However, the terms benefit and
advantage (if at all, the act of respondent Laurezo in subscribing the
complaint of respondent [Junia] gave the latter a bonanza in the form of
delay in the latters arraignment in another criminal case) should be
construed as analogous to the other terms which precede them,
following noscitur a sociis, a rule of statutory construction. For some
obvious reasons, whatever benefit or advantage, if any, was extended
to respondent Junia, the same does not come within the purview of
Section 3(j) of the Anti-Graft Law, it not being a license, permit or
privilege under the circumstances.

The dismissal of the instant complaint, is therefore, in order.36

The aforequoted Resolution was penned by Ombudsman Investigator

Alan R. Caares (Caares), with the concurrence of Director Falcis,
recommending approval of Deputy Ombudsman for the Military
Orlando C. Casimiro (Casimiro), and approval of Ombudsman Desierto.

Agdeppa filed a Motion for Reconsideration of the Resolution dated

July 31, 2000 but said Motion was denied for lack of merit by the Office
of the Ombudsman in an Order dated September 28, 2000. 37 The
Office of the Ombudsman ruled in said Order that:
[Agdeppa] circuitously argued that something obvious transpired
between respondents Laurezo and Junia on one hand and between
Laurezo and Jarlos-Martin on the other hand. We do not agree.
[Agdeppa] miserably failed to adduce any evidence, direct or
circumstantial, to prove any concert of voluntary action among [Jarlos-
Martin, Laurezo, and Junia] other than surmises and conjectures. We
cannot engage in a mental calisthenics and stretch our imagination to
the possibility that [Jarlos-Martin, Laurezo, and Junia], with criminal
design, hatched a conspiracy to cause undue injury to [Agdeppa]. We
would be committing injustice of cosmic proportions if [Jarlos-Martin,
Laurezo, and Junia] are suddenly swept into a grand conspiracy
through presumptions which do not have any basis in law and in fact.

Dissatisfied, Agdeppa filed the instant Petition before this Court

averring grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Office of the Ombudsman in rendering the
Resolution dated July 31, 2000 and Order dated September 28, 2000 in
OMB-MIL-CRIM-00-0470, committed as follows:
(A)
PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RENDERED A RESOLUTION
DISMISSING A CRIMINAL COMPLAINT FOR VIOLATION OF THE ANTI-
GRAFT AND CORRUPT PRACTICES ACT AGAINST ITS OWN
INVESTIGATORS AND A PRIVATE RESPONDENT BY ADOPTING THE
RESULT OF THE PRELIMINARY INVESTIGATION OBTAINED UPON AN
ORDER WHICH DID NOT INCLUDE THE PRIVATE RESPONDENT
CONCERNED IN THE JOINT INVESTIGATION IN SHEER
CONTRAVENTION OF THE RULES OF COURT WHICH APPLY
SUPPLETORILY TO THE RULES OF PROCEDURE OF THE OFFICE OF
THE OMBUDSMAN.
(B)
PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN ACTED IN
EXCESS OF ITS JURISDICTION WHEN IT ALLOWED ANOTHER
INVESTIGATING OFFICER TO RENDER THE RESOLUTION OF A
CRIMINAL COMPLAINT AGAINST ITS OWN INVESTIGATORS IN
CONSPIRACY WITH A PRIVATE INDIVIDUAL OTHER THAN THE
INVESTIGATING OFFICER WHO ISSUED THE ORDER TO SUBMIT
COUNTER-AFFIDAVIT IN UTTER VIOLATION OF THE RULES OF
COURT WHICH APPLY SUPPLETORILY TO THE RULES OF
PROCEDURE OF THE OFFICE OF OMBUDSMAN.
(C)
PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN ACTED WITH
GRAVE ABUSE OF DISCRETION WHEN IT RENDERED A RESOLUTION
DISMISSING OMB-MIL-CRIM-00-0470 WHICH ALLOWED THE
REALIGNMENT OF THE RULES OF COURT AND THE RULES OF
PROCEDURE OF THE OFFICE OF THE OMBUDSMAN IN THE
PRELIMINARY INVESTIGATION OF A CRIMINAL CASE TO JUSTIFY ITS
DISMISSAL.

(D)
PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RENDERED A RESOLUTION
DISMISSING OMB-MIL-CRIM-00-0470 BY TOLERATING THE
POSTPONEMENT OF THE RESOLUTION OF OMB-0-99-1015 WHICH
TOLERANCE WAS AT THE EXPENSE OF THE CONSTITUTIONAL
RIGHT OF THE PETITIONER TO SPEEDY DISPOSITION OF CASES.
(E)
PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN ACTED WITH
GRAVE ABUSE OF DISCRETION WHEN IT CONSIDERED AS GOSPEL
TRUTH THE ALLEGATION IN THE COUNTER-AFFIDAVIT OF
RESPONDENT LAUREZO THAT PRIVATE RESPONDENT JUNIA
APPEARED BEFORE HIM ON OCTOBER 6, 1999 TO HAVE HIS
AFFIDAVIT COMPLAINT PLACED UNDER OATH EVEN IF THERE IS NO
EVIDENCE OF THE TRUTH OF SUCH AN ALLEGATION COMING
FROM THE SAID PRIVATE RESPONDENT HIMSELF.38

However, in his Memorandum, Agdeppa identified and argued the

following issues:chanRoblesvirtualLawlibrary

THE HONORABLE PUBLIC RESPONDENTS OMBUDSMAN AND THE

DEPUTY OMBUDSMAN FOR THE MILITARY COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS IN
JURISDICTION WHEN THEY RENDERED A RESOLUTION DISMISSING
THE COMPLAINT ENTITLED RODOLFO M. AGDEPPA VERSUS-
MARYDEL B. JARLOS-MARTIN, EMMANUEL M. LAUREZO,
ILUMINADO L. JUNIA, JR. UPON A PRELIMINARY INVESTIGATION
ON THE CASE DENOMINATED AS OMB-MIL-CRIM-00-0470 ENTITLED
RODOLFO M. AGDEPPA -VERSUS- ATTY. MARYDEL B. JARLOS-
MARTIN, ATTY. EMMANUEL M. LAUREZO IN VIOLATION OF THE
CONSTITUTION, THE LAW, AND THE RULES IN THE PRELIMINARY
INVESTIGATION OF CRIMINAL COMPLAINTS

THE SPLITTING OF THE SINGLE CAUSE OF ACTION IN

OMB-0-99-1015 OF CAUSING AN OVERPAYMENT OF P2,044,488.71
INTO OVERPAYMENTS OF P182,543.43 AND P1,861,945.28 HAS NO
BASIS IN FACT AND IN LAW

MARTIN, LAUREZO AND JUNIA ARE GUILTY OF FORUM SHOPPING

UPON THEIR UNIFIED STAND THAT JUNIA APPEARED BEFORE
LAUREZO AND HAD EFFECTIVELY SUBSCRIBED TO
OMB-0-99-101539

Agdeppa enumerated and discussed more issues in his Supplemental

Memorandum, to wit:

THE HONORABLE PUBLIC RESPONDENTS OMBUDSMAN, ACTING

THROUGH THE OFFICE OF THE DEPUTY OMBUDSMAN FOR THE
MILITARY, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS IN JURISDICTION WHEN HE APPROVED THE
RESOLUTION DISMISSING THE COMPLAINT RODOLFO M.
AGDEPPA -VERSUS- MARYDEL B. JARLOS-MARTIN, EMMANUEL M.
LAUREZO, ILUMINADO L. JUNIA, JR., WHICH IS A COMPLAINT
RESPONSIVE IN BOTH FORM AND SUBSTANCE, WITHOUT FIRST
REQUIRING ILUMINADO L. JUNIA, JR. WHO IS A PRIVATE
RESPONDENT TO FILE HIS COUNTER-AFFIDAVIT THERETO

THE FILING OF OMB-0-99-1015 BEFORE THE HONORABLE OFFICE

OF THE OMBUDSMAN VIOLATED SUPREME COURT CIRCULAR NO.
28-91 DATED SEPTEMBER 4, 1991 AND THE FAILURE OF THE SAID
HONORABLE OFFICE TO SUMMARILY DISMISS THE SAID CASE ON
THAT GROUND IS GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION

THE FILING OF THE INFORMATION DATED JUNE 14, 2000 IN

OMB-0-99-1015 BEFORE THE HONORABLE REGIONAL TRIAL COURT
OF QUEZON CITY ONLY ON APRIL 3, 2001 CONSTITUTES VIOLATION
OF PETITIONERS CONSTITUTIONAL RIGHT TO SPEEDY
DISPOSITION OF CASES

THE INFORMATION IN OMB-0-99-1015 CHARGING PETITIONER OF

VIOLATION OF SEC. 3(E) OF REP. ACT NO. 3019 FOR CAUSING
INJURY TO THE GOVERNMENT IN THE AMOUNT OF P182,543.43 IN
OVERPAYMENT ON WORK ACCOMPLISHMENTS OF SUPRA
CONSTRUCTION IN PHASE IX, PACKAGE 7 AND 7-A IS A DISGUISED
RE-LITIGATION OF THE AMOUNT OF P169,577.97 YIELDING PRICE
ESCALATION OF P3,088,941.42 WHICH WAS ALREADY PASSED WITH
FINALITY IN COA DECISION NO. 739 DATED JANUARY 10, 1989

COA DECISION NO. 2799 RENDERED BY THE HONORABLE

COMMISSION ON AUDIT ON APRIL 15, 1993 LACKED
TRANSPARENCY AS IT SUPPRESSED THE EXISTENCE OF COA
DECISION NO. 739 DATED JANUARY 10, 1989 WHICH PREVENTED
PETITIONER FROM MAKING A PROPER REASONABLE MOTION
BEFORE IT OR A DECISIVE TIMELY APPEAL BEFORE THE
HONORABLE SUPREME COURT40

After an exhaustive review of the records, the Court finds no merit in the
Petition at bar.

The Courts power of review in the

present Petition is limited to OMB-
MIL-CRIM-00-0470 and the
grounds/issues timely raised and
discussed by the parties.

The exchange of accusations between Agdeppa, et al., on one hand,

and Junia, et al., on the other hand, regarding the NHA Project, had
given rise to a number of administrative and criminal cases that are still
pending before several administrative agencies and trial courts.

At the outset, the Court makes it clear that its review herein shall be
strictly limited to OMB-MIL-CRIM-00-0470. To recall, OMB-MIL-
CRIM-00-0470 involves Agdeppas complaint against Jarlos-Martin,
Laurezo, and Junia before the Office of the Ombudsman for corrupt
practices under Section 3(a), (e), (f), and (j) of Republic Act No. 3019,
allegedly committed by the latter three in the course of the preliminary
investigation in OMB-0-99-1015. The Office of the Ombudsman, in the
Resolution dated July 31, 2000 and Order dated September 28, 2000,
dismissed Agdeppas charges for lack of basis in fact and in law.

The Court underscores that it cannot touch upon the merits of the other
cases which, although related and/or arising from the same set of facts,
are proceeding independently from and simultaneously with OMB-MIL-
CRIM-00-0470. The present Petition is not the proper remedy and, thus,
the Court is without jurisdiction to review and annul the Resolution
dated June 14, 2000 of the Office of the Ombudsman in
OMB-0-99-1015, which recommended the filing of an Information
against Agdeppa and Castillo for violation of Section 3(e) of Republic
Act No. 3019; or enjoin and dismiss the resultant criminal case, Crim.
Case No. 01-100552, against Agdeppa and Castillo, which is now
pending before the Quezon City RTC-Branch 91; or reopen a COA case
decided long before in 1993.

The Court will also not rule upon issues which were raised by Agdeppa
only in his Memorandum and Supplemental Memorandum, specifically,
issues [B], [C], [E], [G], and [H] thereof. These are issues which the
Office of the Ombudsman, Jarlos-Martin, Laurezo, and Junia did not
have an opportunity to address or argue. The parties were properly
instructed by the Court in the Resolution dated October 22, 2001 that
[n]o new issues may be raised by a party in his/its Memorandum and
the issues raised in his/its pleadings but not included in the
Memorandum shall be deemed waived or abandoned.41 Relevant
herein is the ruling of the Court in Heirs of Ramon Garayes v. Pacific
Asia Overseas Shipping Corp.42:chanRoblesvirtualLawlibrary

We likewise reviewed petitioners Reply and we note that the discussion

therein referred only to the denial of the motion for extension. No
discussion whatsoever was made as regards the substantial merits of
the case. In fact, as we have mentioned before, it was only in
petitioners Memorandum where they raised for the first time the issue
that their appeal is meritorious.

This is not only unfair to the respondents who were deprived of the
opportunity to propound their arguments on the issue. It is likewise not
allowed by the rules. In the June 23, 2008 Resolution, the Court
reminded the parties that [n]o new issues may be raised by a party in
the memorandum. The rationale for this was explained by the Court in
Heirs of Cesar Marasigan v. Marasigan,
thus:chanRoblesvirtualLawlibrary

This Court significantly notes that the first three issues, alleging lack of
jurisdiction and cause of action, are raised by petitioners for the first
time in their Memorandum. No amount of interpretation or
argumentation can place them within the scope of the assignment of
errors they raised in their Petition.

The parties were duly informed by the Court in its Resolution dated
September 17, 2003 that no new issues may be raised by a party in his/
its Memorandum and the issues raised in his/its pleadings but not
included in the Memorandum shall be deemed waived or abandoned.
The raising of additional issues in a memorandum before the Supreme
Court is irregular, because said memorandum is supposed to be in
support merely of the position taken by the party concerned in his
petition, and the raising of new issues amounts to the filing of a petition
beyond the reglementary period. The purpose of this rule is to provide
all parties to a case a fair opportunity to be heard. No new points of law,
theories, issues or arguments may be raised by a party in the
Memorandum for the reason that to permit these would be offensive to
the basic rules of fair play, justice and due process.

Petitioners failed to heed the Courts prohibition on the raising of new

issues in the Memorandum.
Based on the foregoing, we find no necessity to discuss the second
issue which was raised by the petitioners for the first time only in their
Memorandum. (Emphasis supplied, citations omitted.)

The Court adheres to a policy

of non-interference with the
investigatory and prosecutorial
powers of the Office of the
Ombudsman.

In general, the Court follows a policy of non-interference with the

exercise by the Office of the Ombudsman of its investigatory and
prosecutorial powers, in respect of the initiative and independence
inherent in the said Office, which, beholden to no one, acts as the
champion of the people and the preserver of the integrity of the public
service.43 The Court expounded on such policy in M.A. Jimenez
Enterprises, Inc. v. Ombudsman,44 thus:chanRoblesvirtualLawlibrary

It is well-settled that the determination of probable cause against those

in public office during a preliminary investigation is a function that
belongs to the Ombudsman. The Ombudsman is vested with the sole
power to investigate and prosecute, motu proprio or upon the complaint
of any person, any act or omission which appears to be illegal, unjust,
improper, or inefficient. It has the discretion to determine whether a
criminal case, given its attendant facts and circumstances, should be
filed or not. As explained in Esquivel v. Ombudsman:
The Ombudsman is empowered to determine whether there exists
reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts. Settled is the
rule that the Supreme Court will not ordinarily interfere with the
Ombudsmans exercise of his investigatory and prosecutory powers
without good and compelling reasons to indicate otherwise. Said
exercise of powers is based upon his constitutional mandate and the
courts will not interfere in its exercise. The rule is based not only upon
respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman, but upon practicality as
well. Otherwise, innumerable petitions seeking dismissal of
investigatory proceedings conducted by the Ombudsman will
grievously hamper the functions of the office and the courts, in much
the same way that courts will be swamped if they had to review the
exercise of discretion on the part of public prosecutors each time they
decided to file an information or dismiss a complaint by a private
complainant.
The Court respects the relative autonomy of the Ombudsman to
investigate and prosecute, and refrains from interfering when the latter
exercises such powers either directly or through the Deputy
Ombudsman, except when there is grave abuse of discretion. Indeed,
the Ombudsmans determination of probable cause may only be
assailed through certiorari proceedings before this Court on the ground
that such determination is tainted with grave abuse of discretion
defined as such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. For there to be a finding of grave
abuse of discretion, it must be shown that the discretionary power was
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and the abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act in contemplation of law. (Citations
omitted.)

Petitioner failed to clearly demonstrate

grave abuse of discretion by the Office
of the Ombudsman that would have
justified the issuance of a writ of
certiorari by the Court.

It falls upon Agdeppa, as petitioner for the writ of certiorari, to

discharge the burden of proving grave abuse of discretion on the part
of the Office of the Ombudsman, in accordance with the definition and
standards set by law and jurisprudence.

Grave abuse of discretion is well-defined and not an amorphous

concept that may easily be manipulated to suit ones purpose.45 The
Court gave the following comprehensive definition of said term in Yu v.
Reyes-Carpio46:chanRoblesvirtualLawlibrary

The term grave abuse of discretion has a specific meaning. An act of

a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise
of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion and hostility.
Furthermore, the use of a petition for certiorari is restricted only to truly
extraordinary cases wherein the act of the lower court or quasi-judicial
body is wholly void. From the foregoing definition, it is clear that the
special civil action of certiorari under Rule 65 can only strike an act
down for having been done with grave abuse of discretion if the
petitioner could manifestly show that such act was patent and gross. x
x x. (Citations omitted.)

Not every error in the proceedings, or every erroneous conclusion of

law or fact, constitutes grave abuse of discretion.47 While the
prosecutor, or in this case, the investigating officers of the Office of the
Ombudsman, may err or even abuse the discretion lodged in them by
law, such error or abuse alone does not render their act amenable to
correction and annulment by the extraordinary remedy of certiorari.48
The requirement for judicial intrusion is still for the petitioner to
demonstrate clearly that the Office of the Ombudsman committed grave
abuse of discretion amounting to lack or excess of jurisdiction. Unless
such a clear demonstration is made, the intervention is disallowed in
deference to the doctrine of non-interference.49chanrobleslaw

Throughout his Petition, Agdeppa presents a grand conspiracy

between the Office of the Ombudsman and Junia, with the Office of the
Ombudsman deliberately acting upon and deciding OMB-MIL-
CRIM-00-0470 (as well as OMB-0-99-1015) contrary to Agdeppas
interest and favorable to Junias. Agdeppa sees every act or decision of
the Office of the Ombudsman adverse to his interest tainted with
capriciousness and arbitrariness. However, other than his own
allegations, suspicions, and surmises, Agdeppa did not submit
independent or corroborating evidence in support of the purported
conspiracy. The basic rule is that mere allegation is not evidence and is
not equivalent to proof. Charges based on mere suspicion and
speculation likewise cannot be given credence. When the complainant
relies on mere conjectures and suppositions, and fails to substantiate
his allegations, the complaint must be dismissed for lack of merit.
50chanrobleslaw

Taking away Agdeppas conspiracy theory, the grounds for his Petition
no longer have a leg to stand on. As the succeeding discussion will
show, the Resolution dated July 31, 2000 and Order dated September
28, 2000 in OMB-MIL-CRIM-00-0470 were rendered by the Office of the
Ombudsman in the valid exercise of its discretion.

The exclusion of Junia in the Order

dated June 6, 2000 is effectively an outright
dismissal of the complaint as against him.

In the Order dated June 6, 2000 in OMB-MIL-CRIM-00-0470, the Office

of the Ombudsman required only Jarlos-Martin and Laurezo to file their
counter-affidavits and evidence.

Agdeppa asserts that the Office of the Ombudsman has jurisdiction

over Junia, a private individual, who conspired with Jarlos-Martin and
Laurezo, public officers, in the commission of acts violative of Republic
Act No. 3019. The exclusion of Junia in the Order dated June 6, 2000
was in contravention of procedural due process as Junia was an
indispensable party in OMB-MIL-CRIM-00-0470 and without his
counter-affidavit, there could be no complete preliminary investigation
in said case.

Section 22 of Republic Act No. 6770, otherwise known as The

Ombudsman Act of 1989, explicitly
provides:chanRoblesvirtualLawlibrary

Section 22. Investigatory Power. x x x.

In all cases of conspiracy between an officer or employee of the
government and a private person, the Ombudsman and his Deputies
shall have jurisdiction to include such private person in the investigation
and proceed against such private person as the evidence may warrant.
The officer or employee and the private person shall be tried jointly and
shall be subject to the same penalties and liabilities.

There is therefore no question that the Office of the Ombudsman has

the power to investigate and prosecute a private person who conspired
with a public officer or employee in the performance of an illegal,
unjust, improper, or inefficient act or omission. In this case, though, the
Office of the Ombudsman excluded Junia from the Order dated June 6,
2000, not because it did not have jurisdiction over a private individual,
rather, because it found no merit in Agdeppas accusations against
Junia in OMB-MIL-CRIM-00-0470.

The Office of the Solicitor General (OSG) as counsel for the Office of
the Ombudsman, Jarlos-Martin, and Laurezo explains that the
allegations in Agdeppas Affidavit-Complaint basically focused on the
purported violations of the provisions of RA 3019 by public respondents
MARTIN and LAUREZO as graft investigating officers and [a] reading
of the complaint shows that JUNIAs alleged participation, if ever, was
peripheral and secondary[,] thus, the investigating officer, after
evaluation, considered the complaint against [Junia] as not warranting
further proceedings.51 In effect, the exclusion of Junia from the Order
dated June 6, 2000 was an outright dismissal by the Office of the
Ombudsman of Agdeppas Affidavit-Complaint insofar as said Affidavit-
Complaint involved Junia.

The Court recognized in Angeles v. Gutierrez52 that the Ombudsman

has the discretionary power to dismiss a complaint outright or proceed
with the conduct of a preliminary
investigation:chanRoblesvirtualLawlibrary

The determination by the Ombudsman of probable cause or of whether

there exists a reasonable ground to believe that a crime has been
committed, and that the accused is probably guilty thereof, is usually
done after the conduct of a preliminary investigation. However, a
preliminary investigation is by no means mandatory.
The Rules of Procedure of the Office of the Ombudsman (Ombudsman
Rules of Procedure), specifically Section 2 of Rule II,
states:chanRoblesvirtualLawlibrary

Evaluation. Upon evaluating the complaint, the investigating officer

shall recommend whether it may be: a) dismissed outright for want of
palpable merit; b) referred to respondent for comment; c) indorsed to
the proper government office or agency which has jurisdiction over the
case; d) forwarded to the appropriate officer or official for fact-finding
investigation; e) referred for administrative adjudication; or f) subjected
to a preliminary investigation.

Thus, the Ombudsman need not conduct a preliminary investigation

upon receipt of a complaint. Indeed, we have said in Knecht v. Desierto
and later in Mamburao, Inc. v. Office of the Ombudsman and Karaan v.
Office of the Ombudsman that should investigating officers find a
complaint utterly devoid of merit, they may recommend its outright
dismissal. Moreover, it is also within their discretion to determine
whether or not preliminary investigation should be conducted.

The Court has undoubtedly acknowledged the powers of the

Ombudsman to dismiss a complaint outright without a preliminary
investigation in The Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto.

We reiterate that the Ombudsman has full discretion to determine

whether a criminal case should be filed, including whether a preliminary
investigation is warranted. The Court therefore gives due deference to
the Ombudsmans decision to no longer conduct a preliminary
investigation in this case on the criminal charges levelled against
respondent Velasco. (Emphases supplied, citations omitted.)

While the Office of the Ombudsman dismissed outright the Affidavit-

Complaint as against Junia in OMB-MIL-CRIM-00-0470, it decided to
conduct a preliminary investigation of the charges against Jarlos-Martin
and Laurezo contained in the same Affidavit-Complaint. After the
preliminary investigation, the Office of the Ombudsman likewise
dismissed the Affidavit-Complaint as against Jarlos-Martin and Laurezo
for reasons that are notably not dependent upon Junias non-
participation in the preliminary investigation. The reasons for the
dismissal of Agdeppas complaint against Jarlos-Martin and Laurezo,
as well as Junia, were collectively discussed by the Office of the
Ombudsman in its Resolution dated July 31, 2000.

Now as to whether or not the Office of the Ombudsman was correct in

not at all investigating Junia is not for the Court to decide in this
Petition. Errors of judgment, as distinguished from errors of jurisdiction,
are not within the province of a special civil action for certiorari, which is
merely confined to issues of jurisdiction or grave abuse of discretion.53
And, as had been previously discussed herein, without evidence that
the Office of the Ombudsman exercised its discretion capriciously and
whimsically or arbitrarily and despotically in excluding Junia from the
Order dated June 6, 2000, there can be no grave abuse of discretion.

Agdeppas assertion that he had been denied due process is

misplaced, bearing in mind that the rights to be informed of the
charges, to file a comment to the complaint, and to participate in the
preliminary investigation, belong to Junia, as the following
pronouncements on the nature of a preliminary investigation in Uy v.
Office of the Ombudsman54 show:chanRoblesvirtualLawlibrary

A preliminary investigation is held before an accused is placed on trial

to secure the innocent against hasty, malicious, and oppressive
prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public
trial. It is also intended to protect the state from having to conduct
useless and expensive trials. While the right is statutory rather than
constitutional, it is a component of due process in administering
criminal justice. The right to have a preliminary investigation conducted
before being bound for trial and before being exposed to the risk of
incarceration and penalty is not a mere formal or technical right; it is a
substantive right. To deny the accuseds claim to a preliminary
investigation is to deprive him of the full measure of his right to due
process. (Emphases supplied, citation omitted.)

In Cabahug v. People,55 the Court even directly addressed agencies

tasked with preliminary investigation and prosecution of crimes, which
includes the Office of the Ombudsman, reminding them as
follows:chanRoblesvirtualLawlibrary
We cannot overemphasize the admonition to agencies tasked with the
preliminary investigation and prosecution of crimes that the very
purpose of a preliminary investigation is to shield the innocent from
precipitate, spiteful and burdensome prosecution. They are duty-bound
to avoid, unless absolutely necessary, open and public accusation of
crime not only to spare the innocent the trouble, expense and torment
of a public trial, but also to prevent unnecessary expense on the part of
the State for useless and expensive trials. Thus, when at the outset the
evidence cannot sustain a prima facie case or that the existence of
probable cause to form a sufficient belief as to the guilt of the accused
cannot be ascertained, the prosecution must desist from inflicting on
any person the trauma of going through a trial. (Emphasis supplied,
citation omitted.)

Clearly, the right to preliminary investigation is a component of the right

of the respondent/accused to substantive due process. A complainant
cannot insist that a preliminary investigation be held when the
complaint was dismissed outright because of palpable lack of merit. It
goes against the very nature and purpose of preliminary investigation to
still drag the respondent/accused through the rigors of such an
investigation so as to aid the complainant in substantiating an
accusation/charge that is evidently baseless from the very beginning.

The Resolution dated July 31, 2000

in OMB-MIL-CRIM-00-0470 was issued
in accordance with the Rules of Procedure
of the Office of the Ombudsman.

Agdeppa questions the fact that it was Director Falcis who issued the
Order dated June 6, 2000 in OMB-MIL-CRIM-00-0470 requiring Jarlos-
Martin and Laurezo to file their counter-affidavits and evidence, but the
preliminary investigation was actually conducted and the Resolution
dated July 31, 2000 was penned by Investigator Caares. According to
Agdeppa, this violates the same-investigating-officer rule under Rule II,
Section 4 of the Ombudsman Rules of Procedure.

Rule II, Section 4 of the Ombudsman Rules of Procedure reads in

full:chanRoblesvirtualLawlibrary
Sec. 4. PROCEDURE. The preliminary investigation of cases falling
under the jurisdiction of the Sandiganbayan and Regional Trial Courts
shall be conducted in the manner prescribed in Section 3, Rule 112 of
the Rules of Court, subject to the following
provisions:chanroblesvirtuallawlibrary

a) If the complaint is not under oath or is based only on official reports,

the investigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer

shall issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondent to submit, within ten
(10) days from receipt thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of
the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating

officer may consider the comment filed by him, if any, as his answer to
the complaint. In any event, the respondent shall have access to the
evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction.

Neither may a motion for a bill of particulars be entertained. If
respondent desires any matter in the complainants affidavit to be
clarified, the particularization thereof may be done at the time of
clarificatory questioning in the manner provided in paragraph (f) of this
section.

e) If the respondent cannot be served with the order mentioned in

paragraph 6 hereof, or having been served, does not comply therewith,
the complaint shall be deemed submitted for resolution on the basis of
the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the investigating
officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be
present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in
writing, whereby the questions desired to be asked by the investigating
officer or a party shall be reduced into writing and served on the
witness concerned who shall be required to answer the same in writing
and under oath.

g) Upon the termination of the preliminary investigation, the

investigating officer shall forward the records of the case together with
his resolution to the designated authorities for their appropriate action
thereon.

No information may be filed and no complaint may be dismissed

without the written authority or approval of the Ombudsman in cases
falling within the jurisdiction of the Sandiganbayan, or of the proper
Deputy Ombudsman in all other cases.

The aforequoted provision lays down the procedure for a preliminary

investigation conducted by the Office of the Ombudsman. While it
consistently refers to the investigating officer, it does not mandate that
only one investigating officer shall conduct the entire preliminary
investigation and resolve the same. It cannot be the basis for the same-
investigating-officer rule that Agdeppa invokes.

While ideally the investigating officer who conducted the preliminary

investigation shall be the same one to resolve the complaint, there may
be unavoidable circumstances necessitating a change in investigating
officers (i.e., promotion, transfer, resignation, removal, retirement, or
death of the previous investigating officer) during the course of the
preliminary investigation. The position of the Court in instances when
the judge who rendered the decision in a case was not the one who
heard and received evidence may be applied by
analogy:chanRoblesvirtualLawlibrary

[I]t is also axiomatic that the fact alone that the judge who heard the
evidence was not the one who rendered the judgment but merely relied
on the record of the case does not render his judgment erroneous or
irregular. This is so even if the judge did not have the fullest opportunity
to weigh the testimonies not having heard all the witnesses speak nor
observed their deportment and manner of testifying. Thus the Court
generally will not find any misapprehension of facts as it can be fairly
assumed under the principle of regularity of performance of duties of
public officers that the transcripts of stenographic notes were
thoroughly scrutinized and evaluated by the judge himself.

Has sufficient reason then been laid before us by petitioner to engender

doubt as to the factual findings of the court a quo? We find none. A
painstaking review of the evidence on record convinces us not to
disturb the judgment appealed from. The fact that the case was
handled by different judges brooks no consideration at all, for
preponderant evidence consistent with their claim for damages has
been adduced by private respondents as to foreclose a reversal.
Otherwise, every time a Judge who heard a case, wholly or partially,
dies or leaves the service, the case cannot be decided and a new trial
will have to be conducted. That would be absurd; inconceivable.56
(Emphasis supplied.)

Similarly, the fact alone that the investigating officer of the Office of the
Ombudsman who issued the resolution was not the one who conducted
the preliminary investigation does not render said investigating officers
resolution erroneous or irregular. The investigating officer may rely on
the pleadings and evidence on record and enjoy the presumption of
regularity in the performance of his duties as a public officer, unless
disputed by evidence to the contrary.

In this case, Director Falciss involvement in the preliminary

investigation ended with the issuance of the Order dated June 6, 2000
directing Jarlos-Martin and Laurezo to submit their counter-affidavits
and evidence in OMB-MIL-CRIM-00-0470. Investigator Caares was in
charge of the preliminary investigation thereafter until the issuance of
the Resolution dated July 31, 2000. Hence, Investigator Caares was
the one who conducted a substantial portion of the preliminary
investigation.

Yet again, Agdeppas allegation that Director Falciss outright dismissal

of the complaint against Junia and exclusion of Junia from the Order
dated June 6, 2000 influenced Investigator Caares into subsequently
dismissing the charges against Jarlos-Martin and Laurezo too, is pure
speculation and devoid of any substantiation. Besides, the Resolution
dated July 31, 2000 completely passed through the gamut of the review
process in the Office of the Ombudsman before its issuance. After
being penned by Investigator Caares, said Resolution was reviewed
not only by Director Falcis, but also by Deputy Ombudsman Casimiro
and Ombudsman Desierto. If Deputy Casimiro and/or Ombudsman
Desierto had noticed any error or irregularity in the Resolution, they
could withhold their approval, make their own findings, and rule
differently; but they did not, and they approved the Resolution as it was
penned by Investigator Caares. There is no reason for the Court to
doubt the entire review process in the Office of the Ombudsman as
regards the Resolution dated July 31, 2000 in OMB-MIL-CRIM-00-0470
and cast aside the presumption of regularity in the performance of
official duties by Investigator Caares, Director Falcis, Deputy
Ombudsman Casimiro, and Ombudsman Desierto, without clear and
convincing evidence of the alleged irregularity on the part of the
aforementioned officials.

Agdeppas accusations were mere suspicions

that do not support a finding of probable
cause to criminally charge Jarlos-Martin,
Laurezo, and Junia under Section 3(a), (e),
(f), and (j) of Republic Act No. 3019.

Agdeppas criminal complaint in OMB-MIL-CRIM-00-0470 is essentially

rooted in two external acts by Jarlos-Martin and Laurezo in
OMB-0-99-1015: (1) Jarlos-Martins issuance of the Order dated
September 23, 1999 requiring Junia to personally appear before the
Office of the Ombudsman to swear to his Complaint in OMB-0-99-1015,
followed by the Order dated October 6, 1999 directing Agdeppa and
Castillo to file their counter-affidavits to Junias Complaint which was
then already under oath; and (2) Laurezos certifying that Junia
personally appeared before him on October 6, 1999 to swear to the
Complaint in OMB-0-99-1015. Agdeppa alleged that these acts were
committed by Jarlos-Martin, Laurezo, and Junia in conspiracy with one
another to deliberately benefit Junia and prejudice Agdeppa and, thus,
constituted corrupt acts under Section 3(a), (e), (f), (j) of Republic Act
No. 3019.

Section 3 of Republic Act No. 3019 describes and penalizes the

following as corrupt acts:chanRoblesvirtualLawlibrary
Section 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:chanroblesvirtuallawlibrary

(a) Persuading, inducing or influencing another public officer to perform

an act constituting a violation of rules and regulations duly promulgated
by competent authority or an offense in connection with the official
duties of the latter, or allowing himself to be persuaded, induced, or
influenced to commit such violation or offense.cralawred

xxxx

(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.

(f) Neglecting or refusing, after due demand or request, without

sufficient justification to act within a reasonable time on any matter
pending before him for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material
benefit or advantage, or for the purpose of favoring his own interest or
giving undue advantage in favor of or discriminating against any other
interested party.cralawred

xxxx

(j) Knowingly approving or granting any license, permit, privilege or

benefit in favor of any person not qualified for or not legally entitled to
such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled.

The pivotal issue for the Office of the Ombudsman to determine in

OMB-MIL-CRIM-00-0470 was whether there was probable cause to
criminally charge Jarlos-Martin, Laurezo, and Junia with the foregoing
corrupt acts. Probable cause, for purposes of filing a criminal
information, has been defined as such facts as are sufficient to
engender a well-founded belief that a crime has been committed and
that respondent is probably guilty thereof.57 The Court had set the
standard to support a finding of probable cause in Ramiscal, Jr. v.
Sandiganbayan58:chanRoblesvirtualLawlibrary

It bears stressing that probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt
beyond reasonable doubt and definitely not on evidence establishing
absolute certainty of guilt. It implies probability of guilt and requires
more than bare suspicion but less than evidence which would justify
conviction. x x x. (Emphasis supplied, citation omitted.)

In its Resolution dated July 31, 2000 in OMB-MIL-CRIM-00-0470, the

Office of the Ombudsman found no probable cause and dismissed
Agdeppas complaint against Jarlos-Martin, Laurezo, and Junia. The
Office of the Ombudsman determined that one or more element/s for
each corrupt act in Agdeppas complaint is/are missing and/or lacked
factual basis. Agdeppas accusations were nothing more than his bare
suspicions. As the Office of the Ombudsman frankly declared in its
Order dated September 28, 2000, denying Agdeppas Motion for
Reconsideration of the dismissal of OMB-MIL-CRIM-00-0470,
[Agdeppa] miserably failed to adduce any evidence, direct or
circumstantial, to prove any concert of voluntary action among [Jarlos-
Martin, Laurezo, and Junia] other than surmises and
conjectures.ChanRoblesVirtualawlibrary

There is no merit to Agdeppas contention that by dismissing his

Affidavit-Complaint in OMB-MIL-CRIM-00-0470, the Office of the
Ombudsman tolerated the realignment of the Ombudsman Rules of
Procedure and violation of Agdeppas right to the speedy disposition of
his case. There is utter lack of evidence presented by Agdeppa that
Jarlos-Martin, Laurezo, and Junia conspired to maliciously and
deliberately conduct the preliminary investigation in OMB-0-99-1015 to
Agdeppas prejudice.

On the basis of Laurezos

certification, Junia personally
swore to his Complaint in
OMB-0-99-1015 before Laurezo
on October 6, 1999.

Agdeppa faults the Office of the Ombudsman for giving full faith and
credence to Laurezos allegation in his Counter-Affidavit in OMB-MIL-
CRIM-00-0470 that Junia personally appeared before him on October
6, 1999 to verify and swear to the Complaint in OMB-0-99-1015.
Agdeppa further challenges the authority of Laurezo to administer the
oath to Junia, when it was Jarlos-Martin, the investigating officer in
OMB-0-99-1015, who issued the Order dated September 23, 1999
directing Junia to appear before her at her office to swear to the
Complaint.

According to Laurezos certification, Junia personally appeared before

him on October 6, 1999 to swear to his Complaint in OMB-0-99-1015.
There is no question that Laurezo, as an investigating officer of the
Office of the Ombudsman, has the power to administer oaths.59 Since
Laurezo administered the oath to Junia on October 6, 1999 in the
performance of an official duty, his conduct of the same enjoys the
presumption of regularity and, hence, already satisfactory when not
contradicted and overcome by evidence. The Court observed that other
than raising the question, Agdeppa did not present an iota of proof that
Junia was actually not present before Laurezo on the date and place as
the latter certified.

Moreover, whether certain items of evidence should be accorded

probative value or weight, and whether or not certain documents
presented by one side should be accorded full faith and credit in the
face of protests as to their spurious character by the other side, are
issues of fact.60 Agdeppa wants the Court to look into the propriety of
or error in the appreciation of facts by the Office of the Ombudsman.
Petitioner cannot be unaware that the Court is not a trier of facts, more
so in the consideration of the extraordinary writ of certiorari where
neither questions of fact nor even of law are entertained, but only
questions of lack or excess of jurisdiction or grave abuse of discretion.
61chanrobleslaw

Lastly, Agdeppas argument that Junia should have appeared, verified,

and swore to his Complaint only before Jarlos-Martin, who issued the
Order dated September 23, 1999, is specious. Rule II, Section 4 of the
Ombudsman Rules of Procedure only provides that, [i]f the complaint
is not under oath or is based on official reports, the investigating officer
shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaints. Said provision did not
expressly state that in such a situation, the complainant or supporting
witnesses are to execute the affidavits only before the investigating
officer assigned to the case.

Despite the Order dated September 23, 1999 issued by Jarlos-Martin,

there is no explicit rule that only she, to the exclusion of all other
authorized officials, can administer the oath to Junia. Insisting on such
exclusivity will serve no purpose. Junia is only required to subscribe
and swear to his Complaint before an official authorized to administer
oath. To subscribe literally means to write underneath, as ones name;
to sign at the end of a document. To swear means to put on oath; to
declare on oath the truth of a pleading, etc.62 The identity of the
authorized official administering the oath, whether Jarlos-Martin or
Laurezo, is not relevant and would have had no significant legal effect
on the Complaint in OMB-0-99-1015. In the end, the Complaint became
a sworn affidavit just the same.

Absent a clear showing of grave abuse of discretion amounting to lack

or excess of jurisdiction by the Office of the Ombudsman in the
issuance of its Resolution dated July 31, 2000 and Order dated
September 28, 2000 in OMB-MIL-CRIM-00-0470, the Court cannot
depart from the policy of non-interference.

WHEREFORE, the Petition is hereby DISMISSED.

Costs against petitioner.

SO ORDERED.cralawlawlibrary

x--x

A.M. No. P-11-2979 November 18, 2014

[formerly OCA IPI No. 10-3352-P]

ELLA M. BARTOLOME, Complainant,

vs.
ROSALIE B. MARANAN, COURT STENOGRAPHER III, REGIONAL
TRIAL COURT, BRANCH 20, IMUS, CAVITE, Respondent.

DECISION

PER CURIAM:

This administrative matter started through the sworn affidavit

complaint1 in the vernacular, dated December 16, 2009, that Ella M.
Bartolome (complainant) filed against Rosalie B. Maranan [respondent,
Court Stenographer III, Regional Trial Court (RTC), Branch 20, Imus,
Cavite], charging her with extortion, graft and corruption, gross
misconduct and conduct unbecoming of a court employee.

The complainant alleged that the respondent asked money from her in
the amount of P200,000.00, which was later reduced to P160,000.00, to
facilitate the filing of her case for annulment of marriage. She further
alleged that the respondent undertook to have the case decided in her
favor without the need of court appearances during the proceedings of
the case. For a clear and complete picture of the accusations against
the respondent, we quote verbatim the pertinent portions of the
complainants narration of the incidents that gave rise to the filing of the
present administrative complaint

xxxx

2. Na noong October 21, 2009 nakilala ko si ROSALIE MARANAN na

isang stenographer sa Regional Trial Court ng Imus, Cavite. Nasabihan
ko siya ng aking kagustuhan na magsampa ng annulment of marriage
case. Agad niya akong inalok at pinangakuan na kaya niyang ipasok
ang aking annulment case sa RTC, Br. 20, Imus, Cavite kung saan siya
nagtratrabaho. Noong una ang hinihingi niya sa akin ay halagang TWO
HUNDRED THOUSAND PESOS (P200,000.00) pero humingi ako
sakanya ng discount at pumayag siya sa ONE HUNDRED SIXTY
THOUSAND PESOS (P160,000.00). Ako po ay naengganyo na
magtiwala sa kanya dahil nangako siya na siya na ang bahala sa lahat.
May kausap na daw siyang abogado na pipirma sa petisyon koat di ko
na daw kailangan pang umappear sa korte. Sinabi niya na malakas
daw siya sa judge at sa fiscal at siya lang daw ang pinapayagan na
magpasok ng mga aaregluhin na kaso sa kanilang korte. Sinabi niya
din na kasama na sa P160,000.00 ang para sa judge at sa fiscal kaya
siguradong maaaprubahan ang aking annulment case sa mabilis na
panahon. Kasama po ng Affidavit Complaint na ito ang transcript at ang
SIM Carday aking ipadadala kapag ako ay makasigurado na ang Korte
Suprema ay poprotektahan ang mga ebidensya laban kay MARANAN
sapagkat rito lahat nakatagon (sic) ang mga text messages at
nakarecord lahat ng calls nitong si ROSALIE MARANAN sa akin na
nagpapatunay ng panghihingi niya sa akin ng pera at pangako na
aaregluhin niya ang aking annulment of marriage case. Ang cellphone
number po na nagaappear dito sa SIM ay kay ROSALINA MARANAN,
ang numero niya ay 09175775982. Maaaring nagpalit na ng numero
ang inirereklamo ko kung kayat maganda rin na ipag-utos ang pag-
alam ng detalye mula sa Globe Telecoms kung saan post-paid
subscriber ang may-ari ng numero na iyan. [Emphasis supplied]

To put an end to the respondents extortion activities, the complainant

decided to report the matter to the police authorities. During the
entrapment operation conducted by police officers of Imus Police
Station, the respondent was apprehended inside the premises of the
RTC, Branch 20, Imus, Cavite, in the act of receiving the money from
the complainant.

In support of her allegations, the complainant attached to her affidavit-

complaint the transcribed electronic communications (text messages)
between her and the respondent;2 a copy of an Electronic Psychiatric
History form given to her by the respondent for her to accomplish in
filing the petition for annulment of marriage;3 a copy of the Imus Police
Station Blotter showing that the respondent was apprehended during
the entrapment operation conducted by police officers of Imus Police
Station on November 11, 2009 at 2:40 p.m.;4 and a versatile compact
disc (VCD) containing the video taken during the entrapment operation
conducted against the respondent.5

The Court, in a 1st Indorsement6 dated March 19, 2010, required the
respondent to comment onthe complaint against her.

In her Comment dated May 27, 2010,7 the respondent denied the
accusations against her. She alleged her belief that Bartolome is a
fictitious name as the affidavit-complaint does not indicate the
complainants exact address. She asserted that her detention at Imus
Police Station does not prove her culpability since no actual criminal
charges were filed against her. She claimed that the lapse of six (6)
months from the time of the alleged incident indicates that the
complaint is pure and simple harassment orchestrated by a lawyer or
litigant who has a grudge against her and who wants to
publiclybesmirch her reputation. In support of her defense, the
respondent mentioned that even Judge Fernando L. Felicen (Judge
Felicen), Presiding Judge of RTC, Branch 20, Imus, Cavite interceded
for her release from detention.

On July 29, 2010, the complainant sent a letter to the Office of the Court
Administrator (OCA),8 without indicating her address, alleging that she
has to constantly change residence because unidentified persons had
been seen in their neighborhood asking questions about her. She has
also been receiving text messages from the respondent telling her that
her complaint would only be dismissed because she knows people in
the Supreme Court. The respondent also threatened retaliation against
her after the case is terminated. The complainant further claimed that
the pieces of evidence she submitted are sufficient to prove the
respondents anomalous activities, and prayed for the immediate
resolution of her complaint.

Based on the complainants pleadings and evidence, the OCA,

(through then Deputy Court Administrator Nimfa C. Vilches and OCA
Chief of Legal Office Wilhelmina D. Geronga) submitted its Report to
the Court dated May 9, 2011,9 finding enough evidence to prove the
respondents involvement in anomalous activities and recommending
that

1) OCA IPI No. 10-3352-P be RE-DOCKETED as a regular

administrative matter;

2) respondent Rosalie B. Maranan, Court Stenographer III, Regional

Trial Court, Branch20, Imus, Cavite, be found GUILTY of Grave
Misconduct and Conduct Prejudicial to the Best Interest of the Service;
and

3) respondent Maranan be immediately DISMISSED from the service

with forfeiture of retirement benefits except her accrued leave credits,
and withperpetual disqualification from employment in any government
agencies or instrumentalities, including government owned and
controlled corporations.

In a Resolution dated September 5, 2011,10 the Court required the

parties to manifest whether they were willing to submit their case for
resolution on the basis of the pleadingsfiled. The respondent filed her
Manifestation dated November 17, 201111 submitting the case for
resolution by the Court. She reiterated her complete innocence and
"vigorous" and "vehement" denial ofthe allegations against her. She
insisted that the present complaint against her is plain and simple
harassment and a vexatious suit by the complainant who either has a
grudge against her or must have been used by another person with a
grudge against her. All she did was tosecure the services of a lawyer at
the complainants request; this act, she claimed, does not constitute
graft and corruption, gross misconduct, conduct unbecoming of a court
employee and extortion.

The complainant did not respond to our September 5, 2011 Resolution

as it was returned unserved on her. Wenevertheless considered the
case submitted for resolution considering her letter of July 16, 2010
praying for the immediate resolution of her complaint.

In our Internal Resolution dated December 7, 2011,12 we resolved to

refer the complaint to the OCA for evaluation, report and
recommendation.

The OCA responded through its Memorandum of July 16, 2012,13

finding that the pieces of evidence on record establish the guilt of the
respondent on the charges of Gross Misconduct and Conduct
Prejudicial to the Best Interest of the Service filed against her. It
recommended that the respondent be found guilty of the offenses
charged and be dismissed from the service, with forfeiture of retirement
benefits except her accrued leave credits and with perpetual
disqualification from employment in any government agency.

The Court fully agrees with the OCAs recommendation.

The respondents bare denial cannot overcome the evidence

supporting the complainants accusation that she demanded money on
the promise that she would facilitate the annulment of her
(complainants) marriage. The respondents actions from the time the
complainant started communicating with her on October 21, 2009 and
thereafter through a series of messages they exchanged via SMS,14
until the entrapment operation on November 11, 2009, showed that the
complaint is indeed meritorious. The respondents text messages sent
to the complainant corroborate that she promised to expedite in
exchange for a monetary consideration of P160,000.00 and that she
would provide the lawyer who would file the annulment case the
complainants annulment case once it is filed:15

21/19/09 8:40pm

Sino po to

21/10/09 8:53pm

Sino nagrefer sayo sakin ano pangalan?

21/10/09 8:54pm

San mo nakuha # ko

21/10/09 9:05pm

Ako rin magbibigay lawyer sayo

21/10/09 9:13pm

D kaba tlaga makakatawag ngayon

21/10/09 9:18pm

Ako n lang tatawag sayo kc mahirap ang txt lang

21/10/09 9:24pm

Tawag n lng ako ha

21/10/09 9:49pm
Natitiwala ako sayo ha dahil hindi lahat pinagbibigyan namin. Sally n
lang tawag mo sakin nagtataka lng kc ako kanina kc buong buong buo
yung txt ng name ko e.

21/10/09 9:51pm

Ay sorry mali pala sabi ko sayo 160k pala singil namin

22/10/09 10:05am

Gud am. Ano pwede k bukas

22/10/09 10:25am

ls txt bak naghihintay po kme

22/10/09 10:51am

Bukas lng available si atty

22/10/09 10:56am

Sana kung makakagawa ka daw paraan bukas kahit 40k n lng muna
down tapos 3pm bukas

22/10/09 11:04am

Ok pero d kita pilipilit ha nasayopa din and decision yan ang sakin lng
kc nagmamadali k at tsaka yun ang free time ng lawyer ha

22/10/09 11:11am

Ella pakihusto mo n daw pala 50k at ibabayad daw mua sa psychiatrist

at osg kahit sa susunod n lng daw yung sa kanya

22/10/09 1:09pm
The complainant described the respondent as an influence peddler in
the courts of Imus, Cavite who acts as a conduit to judges, prosecutors
and private law practitioners.

In her comment to the complaint,the respondent admitted that "she

suggested to the complainant the name of a lawyer friend, Atty.
Renante C. Bihasa (Atty. Bihasa), and forwarded to her the cell phone
number of this lawyer so that theycould discuss the case." While she
was in detention at Imus Police Station, she called Atty. Bihasa, who
told her that he was on his way and assured her that he had already
asked his lawyer friends to assist her. Atty. Bihasa arrived at about five
oclock in the afternoon. As it was already beyond office hours, she was
told by Atty. Bihasa of the possibility that she would be detained
pending investigation. Atty. Bihasa returned the following day and was
joined by Judge Felicen and her officemates. Judge Feliceninterceded
in her behalf that she begiven permission by the police officers to leave
her detention in order to take a bath and change clothes. She was
granted permission, with the full guaranty of Judge Felicen that she
would return.16

In an affidavit17 dated May 28, 2010, Atty. Bihasa corroborated the

respondents allegations. In his affidavit, he narrated that upon
receiving a call from the respondent that she was being detained, he
immediately called up two (2) of his lawyer friends based at Imus, Atty.
Wilfredo P. Saquilayan and Atty. Jose Emmanuel Montoya, to assist the
respondent. As he arrived at Imus Police Station at around past four
oclock in the afternoon, he told the respondent of the probability of her
detention until formal charges were filed against her. According to him,
"[he] took it upon [himself] to assist[the respondent] on that date and
accompanied her while the police officers of Imus PNP were doing their
routine work on suspects."

Atty. Bihasa further narrated thaton the next day at about five oclock in
the afternoon, he went backto Imus Police Station to wait for the
complainant. After a few hours, the respondents co-workers, including
Judge Felicen arrived. They waited for the complainant until seven
oclock in the evening but she failed to come. Only the complainants
lawyer arrived who informed the police investigator that the
complainant cannot come out of fear because of the death threats she
received.18
The concern that Atty. Bihasa and Judge Felicen showed to the
respondent while under detention at Imus PNP Station gives rise to the
suspicion that they have knowledge and tolerate the respondents
anomalous activities. The respondents text messages to the
complainant support this suspicion:19

At tsaka alam mo naman nakailang appointment n tayo sa abogado

hiyang hiya nga ako kahapon e

7/11/09 3:13pm

Tawagan ko muna si judge kung pwede pa kami tumanggap hanggang

wed

7/11/09 3:15pm

Try ko lng

7/11/09 3:25pm

Hanggang Tuesday na lg tayo after nun nxt year na. Yan ang sabi

7/11/09 3:28pm

Sayang kc ang haba n ng time mo dp natuloy sabi ko naman sayo e

kapag inabot ng naghigpit dn pwede none appearance. Yun nagan
nagpatulong sakin kahapon lng tumawag yun d sana nagka sabay n
kayo

7/11/09 3:59pm

Ok po mit po tayo bukas 10 am sinabi ko napo kay atty. Tnx po. See
you po

Ephemeral electronic communications are now admissible evidence,

subject to certain conditions. "Ephemeral electronic communication"
refers to telephone conversations, text messages, chatroom sessions,
streaming audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or retained.20 It
may be proven by the testimony of a person who was a party to the
communications or has personal knowledge thereof.21 In the present
case, we have no doubt regarding the probative value of the text
messages as evidence in considering the present case. The
complainant, who was the recipient of the text messages and who
therefore has personal knowledge of these text messages, identified
the respondent as the sender through cellphone number 09175775982.
The respondent herself admitted that her conversations with the
complainant had been thru SMS messaging and thatthe cellphone
number reflected in the complainants cellphone from which the text
messages originated was hers. She confirmed that it was her cellphone
number during the entrapment operation the Imus Cavite Police
conducted22

Sally:

Halika dito sa office, sa clerk of court. Pupunta ka ngayon? O sige,

sige, pupunta ka ngaun? Ah sige OK, salamat! Ang number ko

Lalaki:

Ibigay ko sa kanya?

Sally:

Oo, ang number ko ay 09175775982, ok thank you.

The complainant submitted two (2) copies of the VCD23 containing

pictures taken during the entrapment conducted by the Imus Cavite
Police on November 11, 2009.24

Under Section 1, Rule 11 of A.M. No. 01-7-01-SC, audio, photographic

and video evidence of events, acts or transactions shall be admissible
provided it shall be shown, presented or displayed to the court and
shall be identified, explained or authenticated by the person who made
the recording or by some other person competent to testify on the
accuracy thereof.

We viewed the VCD and the video showed the actual entrapment
operation. The complainant herself certified that the video and text
messages are evidence of her complaint against the respondent,
"Sapat at malinaw ang lahat ng ebidensya na kasama ng aking reklamo
na nagpapatunay na totoo lahat ang nakasaad sa aking reklamo.
Kitang kita sa video at sa mga text messages niya ang kanyang modus
operandi at paggamit niya ng pwesto sa gobyerno upang
makapanghingi ng malaking pera sa mga inosenteng tao." It is also well
to remember that in administrative cases, technical rules of procedure
and evidence are not strictly applied.25 A.M. No. 01-7-01-SC
specifically provides that these rules shall be liberally construed to
assist the parties in obtaining a just, expeditious and inexpensive
determination of cases.

The Court totally agrees with the OCAs finding that the respondent is
guilty of grave misconduct and conduct prejudicial to the best interest
of the service. The respondents assertion that Bartolome is a fictitious
name because the complainant has not stated in her complaint her
exact address is preposterous in light of the evidence of direct personal
and text message contacts between them. In the absence of
supporting evidence, the claim that the complaint against her is pure
and simple harassment orchestrated by persons with grudge against
her, is mere conjectural allegation.

As a public servant, nothing less than the highest sense of honesty and
integrity is expected of the respondent at all times.26 She should be the
personification of the principle that public office is a public trust.27 The
respondent unfortunately fell extremely short of the standards that
should have governed her life as a public servant. By soliciting money
from the complainant, she committed a crimeand an act of serious
impropriety that tarnished the honor and dignity of the judiciary and
deeply affected the peoples confidence in it. She committed an
ultimate betrayal of the duty to uphold the dignity and authority of the
judiciary by peddling influence to litigants, thereby creating the
impression that decision can be bought and sold.28 The Court has
never wavered in its vigilance in eradicating the socalled "bad-eggs" in
the judiciary.29 We have been resolute in our drive to discipline and, if
warranted, to remove from the service errant magistrates, employees
and even Justices of higher collegiate appellate courts for any
infraction that gives the Judiciary a bad name. To stress our
earnestness in this pursuit, we have, in fact, been unflinching in
imposing discipline on errant personnel or in purging the ranks of those
undeserving to remain in the service.30

WHEREFORE, the Court finds respondent Rosalie B. Maranan, Court

Stenographer Ill, Regional Trial Court, Branch 20, Imus, Cavite, GUILTY
of Grave Misconduct and Conduct Prejudicial to the Best Interest of the
Service and is accordingly DISMISSED from the service, with prejudice
to re-employment in any government agency including government-
owned or controlled corporations. Her retirement benefits, except
accrued leave credits are ordered forfeited.1wphi1 This decision shall
be immediately executory.

The Court further Resolves to REQUIRE Judge Fernando L. Felicen,

Regional Trial Court, Branch 20, Imus, Cavite and Atty. Renante C.
Bihasa, to file their Comments on their alleged participation in the
anomalous activities of the respondent, within fifteen ( 15) days from
notice. This directive is without prejudice to the investigation of all or
selected employees and officials of the Branch, who may have
participated in anomalous transactions relating to annulment of
marriage.

The Office of the Court Administrator is hereby directed to submit to this

Court, within thirty (30) days, a list of the annulment of marriage
decisions of Judge Fernando L. Felicen for the past ten (10) years,
indicating therein the judgments made and the names of participating
lawyers and prosecutors.

The Office of the Chief Attorney shall analyze the submitted data,
including the records of and the proceedings in the listed cases, and
recommend to the Court the actions it should take in the event a pattern
of corruption involving annulment of marriage cases emerges. The
Office of the Chief Attorney is given ninety (90) days from receipt of the
Office of the Court Administrator's list, within which to submit its
recommendations to the Court.

The Office of the Court Administrator shall likewise refer this

administrative case and its records to the Ombudsman for whatever
action it may take within its jurisdiction.

SO ORDERED.
x--x

THIRD DIVISION

G.R. No. 209212, February 10, 2016

PEOPLE OF THE PHILIPPINES, Plintiff and Appellee, v. ROMEL

SAPITULA Y PACULAN, Accused-Appellant.

RESOLUTION

PEREZ, J.:

Before us for review is the Decision1 of the Court of Appeals (CA) in CA

G.R. CR.-H.C. No. 05186 dated 19 February 2013 which dismissed the
appeal of accused-appellant Romel Sapitula y Paculan and affirmed
with modification the Judgment2 of the Regional Trial Court (RTC) of
Agoo, La Union, Branch 31, in Criminal Case No. A-6013 finding
accused-appellant guilty beyond reasonable doubt of attempted sale of
a dangerous drug in violation of Section 5 in relation to Section 26 of
Republic Act (R.A.) No, 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002.

Accused-appellant was charged with violation of Section 5, Article II of

R.A. No. 9165. The accusatory portion of the Information reads as
follows:ChanRoblesVirtualawlibrary

That on or about the 16th day of June 2011, in the Municipality of Sto.
Tomas, Province of La Union, Philippines and within the jurisdiction of
this Honorable Court, the above named accused, without authority of
law, did then and there, wilfully, unlawfully and knowingly, for and in
consideration of the amount of Three Hundred (Php 300.00) Pesos, sell,
convey, deliver and give away to a PO3 Ardic Oayo Palabay one (1)
heat sealed plastic sachet containing shabu with a weight of zero point
zero nine hundred forty six (0.0946) gram, a dangerous and prohibited
drug.
Contrary to ihe provision of Section 5, Art. 2 of R.A.
9165.3chanroblesvirtuallawlibrary
At his arraignment, accused-appellant pleaded not guilty. Trial ensued.

The prosecution presented as witnesses Police Senior Inspector

Diosdado Gagaoin (PSI Gagaoin), Police Officer 3 Ardie Palabay (PO3
Palabay), Police Inspector Maria Theresa Amor Manuel (PI Manuel),
PO3 Emmanuel Pimentel, Jr., and PSI Bedalyn Antonio (PSI Antonio),
whose testimonies sought to establish the following facts:

Acting on a tip from a confidential informant that accused-appellant

sells shabu, PSI Gagaoin instructed PO3 Palabay to conduct a
surveillance' and casing operation on him. Upon verification of
accused-appellant's involvement in illegal drug activities, PO3 Palabay
and his drug asset made a test-buy operation on 14 June 2011, which
yielded a purchase of Three Hundred Peso (P300.00) worth of shabu
from accused-appellant. Thereafter, PSI Gagaoin headed and
organized a buy-bust team composed of PO3 Palabay as poseur-buyer,
PO3 Arnel Gravidez as one of the arresting officers and SPO3 Armando
Eisma and PO2 Roger Malag as perimeter security. Six (6) pieces of
P50.00 bills were prepared as marked money on which PO3 Palabay
placed a marking of "A."4chanroblesvirtuallawlibrary

At four o'clock in the afternoon of 16 June 2011, the buy-bust team

proceeded to Barangay Ambitacay. PO3 Palabay had already been in
communication via short message system (SMS) with accused-
appellant regarding the amount of shabu to be purchased. It had also
been agreed via SMS that they would meet at Ambitacay crossing at six
o'clock in the evening.5chanroblesvirtuallawlibrary

At the crossing, at half past five o'clock in the afternoon when PO3
Palabay noticed accused-appellant coming his way, he disembarked
from the tricycle in which lie had been waiting. He approached
accused-appellant who immediately handed to him a heat-sealed
plastic sachet containing a white crystalline substance; and PO3
Palabay, in exchange, gave accused-appellant the marked money.
Accused-appellant then counted the money while PO3 Palabay placed
the sachet in his pocket and removed his cap to signal the arrest to the
other police officers. Accused-appellant attempted to flee but was
subsequently overcome and handcuffed by the other officers. PO3
Palabay informed accused-appellant of his constitutional rights; took a
photograph of the latter as well as the area and the plastic sachet
which he marked "AJP-1-11." He also made an inventory of the marked
money and the seized plastic sachet in the presence of the Barangay
Captain and another witness.6chanroblesvirtuallawlibrary

Accused-appellant was thereafter brought to the police station. There,

PO3 Palabay executed an affidavit of arrest, an affidavit of poseur-buyer
and a request for laboratory examination. Then, he brought accused-
appellant and the seized items to the crime laboratory, received by PSI
Antonio.7 Chemistry Report No. D-030-2011 signed by PI Manuel as
Forensic Chemist found the seized plastic sachet positive for the
presence of Methamphetamine hydrochlori.de or shabu.
8chanroblesvirtuallawlibrary

Accused-appellant, as the lone witness for the defense, testified that on

16 June 2011, on his way home with his wife and child after a day of
ferrying passengers in his tricycle, a male person and his companion
flagged him down. The man asked accused-appellant to get down from
his tricycle and thereafter, drew out a gun and introduced himself as a
policeman. Accused-appellant tried to run away from him but two (2)
other persons blocked his way and handcuffed him. These two forced
him to hold something and when accused-appellant refused, they
rubbed it onto his hands. Thereafter, a patrol car arrived and he was
brought to the police station.9chanroblesvirtuallawlibrary

On 5 August 2011, the RTC rendered judgment finding accused-

appellant guilty of attempted sale of a dangerous drug. The dispositive
portion of the RTC Decision reads:ChanRoblesVirtualawlibrary
The accused is found to have attempted to sell .0946 gram of
methainphetamine liydrochloride beyond reasonable doubt. The court
only found that he attempted to sell.

However, there is a catch provided in Section 26 of R.A. 9165 which

prescribes the same penalty as that provided in Section 5 in case of
unlawful acts that are enumerated in the aforesaid Section 26, thus the
penalty for attempt or conspiracy to commit violations thereof as
provided in Section 26 is the same as that provided in Section 5. HOC
QUIDEM PER QUAM DURUM EST, SED ITA LEX ESCRIPTA EST or
DURA LEX SED LEX is invoked.
Hence, accused Romel Sapitula is sentenced to life imprisonment and
is ordered to pay a fine of Five Hundred Thousand Pesos (Php
500.000.00) for attempting to sell less than one gram of
mcthamphetamine hydrochloride "shabu."

The penalty is harsh but that is the law on the matter. Less than one
gram of "shabu" and wham! One has to spend one's life in prison.

But that is the reality. Not an illusion.

So it is best to avoid drugseverytime.

The drug subject of this case is confiscated in favor of the government.

10chanroblesvirtuallawlibrary
Accused-appellant filed a Notice of Appeal'on 10 August 2011.11 On
19 February 2013, the CA rendered the assailed judgment affirming
with modification the trial court's decision. The CA found accused-
appellant guilty of the crime charged, or violation of Section 5, Article II
of R.A. 9165. The CA ruled that the sale of a dangerous drug was
consummated as there had been an exchange of money and the
sachet of shabu between PO3 Palabay and accused-appellant.

Accused-appellant appealed his conviction before this Court. In a

Resolution12 dated 04 December 2013, accused-appellant and the
Office of the Solicitor General (OSG) were asked to file their respective
supplemental briefs if they so desired. Both parties manifested that they
will no longer file supplemental briefs as their arguments in their
respective briefs are already sufficient.13chanroblesvirtuallawlibrary

Upon review of the records, the Court affirms the conviction of

accused-appellant.

The Court agrees with the CA finding that, contrary to the accused-
appellant's assertion, the trial court sufficiently stated the factual and
legal bases for its disposition of the case. In convicting accused-
appellant, the trial court explained that it gave credence to the
testimonies of the police officers pursuant to the presumption of
regularity in the performance of their official duties and absent any
showing of ill-motive to plant evidence against accused-appellant.14
The trial court also stated that it found accused-appellant's testimony
partly incredulous.15chanroblesvirtuallawlibrary

The Court, however, upholds the CA's ruling that the crime of sale of a
dangerous drug, in this case shabu, was consummated; different from
the trial court's ruling that the crime had been committed only at its
attempted stage. In so holding, the trial court stated that "[w]hen he
realized the trap he was about: to backout in the sale. Nevertheless, the
penalty is the same."16 This Court disagrees.

In every prosecution for illegal sale of shabu, the following elements

must be sufficiently proved: (1) the identity of the buyer and the seller,
the object of the sale and the consideration; and (2) the delivery of the
thing sold and the payment therefor.17chanroblesvirtuallawlibrary

The Court finds that all elements for illegal sale were duly established
with accused-appellant having been caught inflagrante delicto selling
shabu through a buy-bust operation conducted by the buy-bust team of
PO3 Palabay.

PO3 Palabay, who acted as the poseur buyer, testified that accused-
appellant handed to him the plastic sachet containing the prohibited
drug in exchange for Three Hundred Pesos (P300.00),
thus:ChanRoblesVirtualawlibrary
Q:
And at about what time was that when you wailed at that waiting shed?
A:
Around 5:30 in the afternoon, sir.
Q:
And what happened after that?
A:
While waiting I noticed the suspect approaching, sir.
Q:
So from where did he come home (sic)?
A:
From the road leading to barangay Pongpong, sir.
Q:
And when you saw him approaching what did you do if any?
A:
I immediately disembark from the tricycle, sir.
xxxx
Q:
When you alighted from the tricycle where did you go?
A:
I immediately approached him also, sir.
Q:
And what happened when you approached him, what did you tell him
or what happened?
A:
He immediately handed to me the heat sealed plastic sachet containing
white crystalline substance and then afterwards I in hand also the
marked money, sir.
Q:
He did not ask how much are you buying?
A:
He asked already through text, sir.
Q:
And where did you put the sachet that was handed to you'?
A:
I put in my pocket, sir.
Q:
You mentioned you handed the money to the subject, what did the
subject do if any?
A:
After he received the money, he counted the money, sir.
Q:
And while he was counting the money what did you do next?
A:
After counting the money, I frisked him, I said stop and I showed my
badge as an identification that I am a police but then he tried to run
towards east direction, sir.
Q:
By the way was there any a pre-arranged signal made by you with your
Chief of Police?
A:
Yes, sir.
Q:
What is your pre-arranged signal?
A:
When I removed my bull cup, sir.
Q:
What does that indicate?
A:
As a sign that the arrest shall be made bv the arresting officers, sir.
18chanroblesvirtuallawlibrary
This testimony was corroborated by PSI Gagaoin who was strategically
posted within the perimeter of the target area.19 The result of the
laboratory examination confirmed the presence of methamphetamine
hydrochloride or shabu on the white crystalline substance inside the
plastic sachet received from the accused-appellant. The delivery of the
illicit drug to the poseur-buyer and the receipt by the seller of the
marked money successfully consummated the buy-bust transaction.
20chanroblesvirtuallawlibrary

Accused-appellant's denial of the charges and assertion of a frame-up,

uncorroborated by any positive testimony of the people who were
allegedly with him during the incident, are indeed incredulous
juxtaposed with the positive evidence for his prosecution. Besides, as
adequately explained by PSI Antonio, the absence of ultraviolet (UV)
powder on accused-appellant's palms (although the dorsal parts of
accused-appellant's hands tested positive for UV powder presence)
may have been a result of perspiration, wiping or rubbing the hand on a
hard object.21 Thus, this matter does not completely negate accused-
appellant's culpability as he so asserts.

This Court has, time and again, deferred to the trial court's factual
findings and evaluation of the credibility of witnesses, especially when
affirmed by the CA, in the absence of any clear showing that the trial
court overlooked or misconstrued cogent facts and circumstances that
would justify altering or revising such findings and evaluation. The trial
court's determination proceeds from its first-hand opportunity to
observe the demeanor of the witnesses, their conduct and attitude
under grilling examination; the trial court is in a unique position to
assess the witnesses' Credibility and to appreciate their truthfulness,
honesty and candor.22 And in the instant case, accused-appellant has
not projected any strong and compelling reasons to sway the Court into
rejecting or revising such factual findings and evaluation in his favor.

We now come to accused-appellant's contention that the procedure for

the custody and disposition of confiscated drugs as provided in Section
21 of R.A. No. 0165, was not complied with as the police officers had
not conducted an inventory of the plastic sachet of shabu and the same
had not been photographed in the presence of accused-appellant and
representatives from, the media and the Department of Justice.
23chanroblesvirtuallawlibrary

First, it must be underscored that this issue was only brought up on

appeal and was never raised before the trial court. Nevertheless, a
review of PO3 Palaba/s testimony shows that the inventory and
photograph requirements had been met,
thus:ChanRoblesVirtualawlibrary
Q:
And after the subject was handcuff, what transpired next?
A:
After we handcuff the subject, we photographed the suspect, we
photographed the area, we photographed also the evidence and I
marked there with the presence of the Barangay Chairman and the
concerned citizens in the area and then I prepared also the inventory in
their presence, sir.24chanroblesvirtuallawlibrary
More importantly, the integrity and evidentiary value of the seized items
were duly preserved as the chain of custody remained intact.

The Court has ruled in People v. Enriquez,25 that the links that must be
established in the chain of custody in a buy-bust situation are: first, the
seizure and marking, if practicable, of the illegal drug recovered from
the accused by the apprehending officer; second, the turnover of the
illegal drug seized by the apprehending officer to the investigating
officer; third, the turnover by the investigating officer of the illegal drug
to the forensic chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized from the
forensic chemist to the court.

In the case at bar, PO3 Palabay, the poseur buyer, positively testified
that he placed in his pocket the plastic sachet of shabu handed to him
by accused-appellant. At the time of arrest, he photographed accused-
appellant, the area and the sachet of shabu, marked the same and
conducted the inventory before the Barangay Chairman and another
witness. PO3 Palabay further testified that he brought accused-
appellant and the sachet of shabu to the police station, and there,
executed affidavits of arrest and of the poseur buyer and made a
request for laboratory examination. PO3 Palabay then took accused-
appellant and the sachet of shabu to the crime laboratory and the latter
was received by PSI Antonio. Chemistry Report No. D-030-2011 signed
by PI Manuel as Forensic Chemist and PSI Antonio as Administering
Officer confirmed that the sachet is positive for the presence of
methamphetamine hydrochloride.26 And finally, in open court, PO3
Palabay opened the envelope from the Forensic Chemist and identified
its contents as the same sachet of shabu he had purchased from
accused-appellant.27 The same was offered in evidence and marked
as Exhibit "A."28chanroblesvirtuallawlibrary

All told, it has been established by proof beyond reasonable doubt that
accused-appellant sold shabu. Section 5, Article II of R.A. No. 9165,
states that the penalty of life imprisonment to death and fine ranging
from P500,000.00 to P1,000,000.00 shall be imposed upon any person
who, unless authorized by law, shall sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport
any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved. Thus, the CA correctly
imposed the penalty of life imprisonment and the line of P500,000.00.

WHEREFORE, the Decision dated 19 February 2013 of the Court of

Appeals in CA G.R. CR.-H.C. No. 05186, affirming with modification the
conviction of accused-appellant Romel Sapitula y Paculan by the
Regional Trial Court of Agoo, La Union, Branch 31, for violation of
Section 5, Article II of Republic Act No. 9165 and sentencing him to
suffer the penalty of life imprisonment and to pay a fine of P500,000.00
is hereby AFFIRMED.

SO ORDERED.

x--x

G.R. No. 210454, January 13, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee, v. RONALDO

CASACOP Y AMIL, Accused-Appellant.

RESOLUTION
PEREZ, J.:

On appeal is the Decision1 of the Court of Appeals promulgated on 10

July 2013 in CA-G.R. CR.-H.C. No. 05055 affirming the conviction by
the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 93 of
appellant Ronaldo Casacop y Amil for violation of Sections 5, 11 and 12
of Article II of Republic Act (R.A.) No. 9165.

Appellant was charged with the crime following a "buy-bust" operation.

The accusatory portion of the Information against appellant reads:

Criminal Case No. 5485-SPL

On July 21, 2005, in the Municipality of San Pedro, Province of Laguna

and within the jurisdiction of this Honorable Court the said above-
named accused not being authorized/permitted by law, did then and
there willfully, unlawfully and feloniously have in his possession, control
and custody dangerous drugs paraphernalia such as one (1) rolled
aluminum foil strip and one (1) improvised "tooter," both positive of
traces 'shabu'.2chanRoblesvirtualLawlibrary

Criminal Case No. 5486-SPL

On July 21, 2005, in the Municipality of San Pedro, Province of Laguna,

Philippines and within the jurisdiction of this Honorable Court above-
named accused without the authority of law, did then and there willfully,
unlawfully and feloniously have in his possession, custody and control
two (2) small heat-sealed transparent plastic sachet containing
METHAMPHETAMINE HYDROCHLORIDE, commonly known as shabu,
a dangerous drug, with a total weight of zero point nineteen (0.19)
gram.3chanRoblesvirtualLawlibrary

Criminal Case No. 5487-SPL

On July 21, 2005, in the Municipality of San Pedro, Province of Laguna,

Philippines and within the jurisdiction of this Honorable Court the said
accused without any legal authority, did then and there willfully,
unlawfully and feloniously in consideration of three (3) pieces one-
hundred peso bill, sell, pass and deliver to a police poseur-buyer one
(1) heat-sealed transparent plastic sachet of METHAMPHETAMINE
HYDROCHLORIDE weighing zero point zero six (0.06) gram.
4chanrobleslaw

When arraigned, appellant pleaded not guilty. Trial ensued.

Acting on a tip from an informant that a. certain Edong was selling

shabu in Quezon Street, Barangay San Antonio, San Pedro, Laguna,
the Chief of Police of San Pedro Police Station, Police Superintendent
Sergio Dimandal formed a team to conduct surveillance on appellant.
Upon receiving a positive result, Senior Police Officer 4 Melchor Dela
Pena (SPO4 Dela Pena) prepared a pre-operation report which was
sent to the Philippine Drug Enforcement Agency (PDEA).
5chanroblesvirtuallawlibrary

SPO4 Dela Pena then formed a buy-bust team composed of Police

Officer 1 Jifford Signap (POl Signap) as the poseur-buyer, SPO2
Diosdado Fernandez, SPO1 Jorge Jacob and POl Rommel Bautista, as
police backup." Thereafter, the buy-bust team proceeded to the target
area. POl Signap and the informant approached appellant's house.
PO1 Signap was introduced to appellant by the informant as the buyer
of shabu. He handed the marked money, consisting of three (3)
P100.00 bills, to appellant, who took a plastic sachet from his left
pocket and gave it to him. POl Signap made the prearranged signal of
calling SPO4 Dela Pena. The backup team rushed towards appellant's
house and arrested him. PO1 Signap frisked appellant and recovered
an improvised glass tooter, aluminum foil strip, cigarette lighter, two (2)
small heat-sealed transparent plastic sachets, and the marked money.
PO1 Signap conducted a physical inventory of the seized items and
correspondingly marked them in appellant's house.
6chanroblesvirtuallawlibrary

Thereafter, appellant was brought to the police station. Thereat, SPO4

Dela Pena prepared a certificate of inventory.7 A request letter8 was
sent to the Philippine National Police (PNP) Crime laboratory for the
examination of the seized items. Forensic Chemist Donna Villa P.
Huelgas issued Chemistry Report No. D-808-059 which confirmed the
seized items as positive for methamphetamine hydrochloride or shabu.
Appellant, for his part, denied the charges of possession of shabu and
its paraphernalia and sale of shabu. Appellant testified that he was
urinating at the back of his house on 21 July 2005 at around 12:00 pm
when five (5) police officers barged into his house. After confirming that
he is Edong, appellant was handcuffed and brought to the police
station. Appellant claimed that the police only planted evidence against
him because they were not able to pin him down in a robbery case.

On 7 January 2011, the RTC rendered a Decision10 finding appellant

guilty of all the charges against him. The dispositive portion of the
Decision reads:

WHEREFORE, the Court hereby renders judgment:

1)
Finding accused Ronaldo Casacop y Amil guilty beyond reasonable
doubt of the crime of violation of Section 12 of Republic Act No. 9165
otherwise known as The Comprehensive Dangerous Drugs Act of 2002
in Criminal Case No. 5485-SPL, hereby sentencing him to suffer the
penalty of imprisonment from two (2) years as minimum to four (4) years
as maximum, to pay a fine in the amount of Twenty Thousand
(P20,000.00) Pesos, and to pay the costs.
2)
Finding accused Ronaldo Casacop y Amil guilty beyond reasonable
doubt of the crime of violation of violation of Section 11 of Republic Act
No. 9165 otherwise known as The Comprehensive Dangerous Drugs
Act of 2002 in Criminal Case No. 5486-SPL, hereby sentencing him to
suffer an indeterminate penalty of imprisonment from an indeterminate
penalty of imprisonment from twelve (12) years and one (1) day as
minimum to fifteen (15) years as maximum and to pay a fine in the
amount of P300,000.00.
3)
Finding accused Ronaldo Casacop y Amil guilty beyond reasonable
doubt of the crime of violation of Section 5 of Republic Act No. 9165
otherwise known as The Comprehensive Dangerous Drugs Act of 2002
in Criminal Case No. 5487-SPL, and hereby sentencing him to suffer the
penalty of life imprisonment and to pay a fine in the amount of Five
Hundred Thousand (P500,000.00) Pesos and to pay the costs.
The drugs paraphernalia such as one (1) rolled aluminum foil strip and
one (1) improvised "tooter", the 0.19 and 0.06 grams (sic) of
Methamphetamine Hydrochloride "shabu" which constitutes the
instrument in the commission of the crime is confiscated and forfeited in
favor of the government. The Branch Clerk of Court of this Court is
hereby directed to immediately transmit the drugs paraphernalia such
as one (1) rolled aluminum strip and one (1) improvised "tooter", the
0.19 and 0.06 grams (sic) of Methamphetamine Hydrochloride "shabu"
to the Dangerous Drugs Board for proper disposition.11chanrobleslaw

Appellant seasonably filed a Notice of Appeal before the Court of

Appeals. On 10 July 2013, the appellate court affirmed in toto the
judgment of the RTC.

Appellant appealed his conviction before this Court, adopting the same
arguments in his Brief12 before the Court of Appeals.

Appellant asserts that the chain of custody of the object evidence was
never established. Moreover, appellant claims that Section 21 (a) of the
Implementing Rules and Regulations of R.A. No. 9165 was not
complied with.

For the successful prosecution of a case for illegal sale of shabu, the
following elements must be proven: (1) the identity of the buyer and the
seller, the object and the consideration; and (2) the delivery of the thing
sold

and the payment therefor.13 On the other hand, in prosecuting a case

for illegal possession of dangerous drugs, the following elements must
concur: (1) the accused is in possession of an item or object, which is
identified as a prohibited drug; (2) such possession is not authorized by
law; and (3) the accused freely and consciously possessed the drug.
14chanroblesvirtuallawlibrary

In this case, all the elements for the illegal sale of shabu were
established. POl Signap, the poseur-buyer, positively identified
appellant as the person who sold him the white crystalline substance in
one plastic sachet which was later proven to be positive for shabu. In
exchange for this plastic sachet; PO1 Signap handed the marked
money a.s payment. The delivery of the contraband to the poseur-buyer
and the receipt by the seller of the marked money successfully
consummated the buy-bust transaction.15chanroblesvirtuallawlibrary

All the elements in the prosecution for illegal possession of dangerous

drugs and paraphernalia were likewise established. Found in
appellant's pocket after he was caught in flagrante were two (2) more
plastic sachets containing shabu, an improvised glass tooter containing
shabu residue and the rolled aluminum foil with shabu residue. Under
Rule 126, Section 13, a person lawfully arrested may be searched for
anything which may have been used or constitute proof in the
commission of an offense without a warrant. There was no showing that
appellant had legal authority to possess the shabu and its
paraphernalia. Moreover, the fact that these contraband were found in
his physical possession shows that he freely and consciously
possessed them.

The dangerous drug itself, the shabu in this case, constitutes the very
corpus delicti of the offense and in sustaining a conviction under R.A.
No. 9165, the identity and integrity of the corpus delicti must definitely
be shown to have been preserved.16chanroblesvirtuallawlibrary

Records show that PO1 Signap recovered from appellant three (3)
plastic sachets of shabu, a glass tooter and aluminum foil. These items
were marked and inventoried in the house of appellant and in his
presence. Thereafter, these seized items were brought to the police
station where a request for qualitative examination was made. SPO4
Dela Pea signed the request and it was sent to the PNP Crime
Laboratory. Police Senior Inspector and Forensic Chemist Donna Villa P.
Huelgas conducted the examination. Thus, the chain of custody was
clearly accounted for.

As the preservation of the integrity and evidentiary value of the seized

items to establish the corpus delicti were proven, substantial
compliance with Section 21, paragraph 1, Article II of R.A. No. 9165 will
suffice.

The Court of Appeals successfully rebutted appellant's argument that

the. police officers failed to comply with procedure in the seizure and
custody of the dangerous drugs, thus:
Appellant contends that the police officers failed to comply with the
provisions of paragraph 1, Section 21 of R.A. No. 9165 for the proper
procedure in the custody and disposition of the seized drugs. This
cotention is untenable. It appears from the testimony of PO1 Signap
during direct and cross-examination, as appreciated and contained in
the decision of the court a quo, that after PO1 Signap showed the three
(3) marked one hundred peso (PI00.00) bills, appellant brought out a
plastic sachet containing white crystalline substance which was later
found out to contain "shabu," a dangerous drug. Two (2) more plastic
sachets containing "shabu" and other drug paraphernalia were
recovered from appellant after he was bodily searched. Thereafter, the
apprehending team, before proceeding to the Police Station, had the
seized drugs and drug paraphernalia inventoried and marked at
appellant's house in his presence. At the said station, SPO4 Dela Pena
prepared a Certification of Inventory as to the items seized from
appellant. The said certification was signed by one representative from
the media by the name of Edward Pelayo. A Booking Sheet/Arrest
Report was issued to appellant and a letter request was sent to the
PNP, Camp Vicente Lim, Calamba City, Crime Laboratory Office for
examination of the seized plastic sachets containing white crystalline
substance.17chanroblesvirtuallawlibrary

All told, it has been established by proof beyond reasonable doubt that
appellant sold and possessed shabu and shabu paraphernalia. Under
Section 5, Article II of R.A. No. 9165, the penalty of life imprisonment to
death and fine ranging from P500,000.00 to P10,000,000.00 shall be
imposed upon any person, who, unless authorized by law, shall sell,
trade,. administer, dispense, deliver, give away to another, distribute
dispatch in transit or transport any dangerous drug, including any and
all species of opium poppy regardless of the quantity. and purity
involved. For the crime of illegal sale of shabu, appellant was properly
sentenced to life imprisonment and ordered to pay a fine of
P500,000.00.

Appellant was also caught in possession of 0.19 gram of shabu. The

crime of illegal possession of dangerous drugs is punished under
Section 11, paragraph 2(3), Article II of R.A. No. 9165, which provides
an imprisonment of twelve (12) years and one (1) day to twenty (20)
years and a fine ranging from Three Hundred Thousand Pesos
(P300,000.00) to Four Hundred Thousand Pesos (P400,000.00), if the
quantities of dangerous drugs are less than five (5) grams of
methamphetamine hydrochloride or shabu.

Section 12, Article II of R.A. No. 9165 provides that the penalty of
imprisonment ranging from six (6) months and one (1) day to four (4)
years and a fine ranging from Ten Thousand Pesos (P10,000.00) to Fifty
Thousand Pesos (P50,000.00) shall be imposed upon any person, who
unless authorized by law, shall possess or have under his/her control
any equipment, instrument, apparatus and any other paraphernalia fit
or intended for smoking, consuming, administering, injecting, ingesting,
or introducing any dangerous drug into the body.

We sustain the penalty imposed by the RTC and affirmed by the Court
of Appeals for the crime of illegal possession of shabu.

WHEREFORE, the Decision dated 10 July 2013 of the Court of Appeals

affirming the conviction of appellant Ronaldo Casacop y Amil by the
Regional Trial Court of San Pedro, Laguna, Branch 93, for violation of
Sections 5, 11 and 12 of Article II of Republic Act No. 9165 is hereby
AFFIRMED.

SO ORDERED.cralawlawlibra

x--x

G.R. No. 184789, February 23, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BEVERLY

ALAGARME Y CITOY, Accused-Appellant.

DECISION

BERSAMIN, J.:

The importance of the State establishing a preserved chain of custody

in every criminal prosecution for the illegal sale of dangerous drugs
cannot be understated. The accused cannot be pronounced guilty of
the offense if all the links of the chain of custody of the drug subject of
the illegal sale - the corpus delicti itself- are not shown. The reason is
that the drug presented as evidence at the trial is not shown beyond
reasonable doubt that it was the drug subject of the illegal
sale.chanroblesvirtuallawlibrary

The Case

Under review is the decision promulgated on May 28, 2008,1 whereby

the Court of Appeals (CA) affirmed the judgment rendered on
September 15, 2006 in Criminal Case No. 05-568 and Criminal Case
No. 05-569 by the Regional Trial Court (RTC), Branch 64, in Makati
City2 finding the appellant guilty beyond reasonable doubt of violations
of Section 5 and Section 11, Article II of Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002).

Antecedents

The information in Criminal Case No. 05-568 charged the appellant with
violation of Section 5, Article II of Republic Act No. 9165,
viz:chanRoblesvirtualLawlibrary

That on or about the 14th day of March, 2005, in the City of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without the necessary license or
prescription and without being authorized by law, did then and there
willfully, unlawfully and feloniously sell, deliver and give away P200.00
worth of Methyl amphetamine Hydrochloride (Shabu) weighing zero
point zero three (0.03) gram, a dangerous drug.

CONTRARY TO LAW.3cralawred
cralawlawlibrary

while the information in Criminal Case No. 05-569 alleged violation of

Section 11, Article II of Republic Act No. 9165, as
follows:chanRoblesvirtualLawlibrary

That on or about the 14th day of March, 2005, in the City of Makati
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, not being lawfully authorized to
possess and/or use regulated drugs and without any license or proper
prescription, did then and there willfully, unlawfully and feloniously have
in her possession, custody and control Methylamphetamine
Hydrochloride (Shabu) weighing zero point fifteen (0.15) gram, which is
a dangerous drug, in violation of the aforesaid law.

CONTRARY TO LAW.4cralawred
cralawlawlibrary

The appellant pleaded not guilty to both informations.5cralawred

Version of the Prosecution

At the trial, the State presented as witnesses poseur buyer PO1 Percival
Mendoza, and Makati Anti-Drug Abuse Council (MADAC) Operative
Miguel Castillo.

The police and MADAC operatives apprehended the appellant during a

buy-bust operation conducted on Guiho Street, Barangay Cembo,
Makati City at around 4:40 p.m. on March 14, 2005.6 The buy-bust
team had been formed with prior coordination with the Philippine Drug
Enforcement Agency (PDEA) after P/Insp. Marietto Valerio, the Action
Officer of the Station Anti-Illegal Drugs Special Operations Task Force
(SAID-SOTF), had received information from a concerned citizen about
the appellant,7 whose name was on the police watch list, engaging in
the illegal sale of drugs.8 The buy-bust money, which consisted of two
P100.00 bills marked with C4, the acronym for Cluster 4 of the MAD AC
demarcating the area of operation,9 was handed over to POl Mendoza
as the designated poseur-buyer.10 The buy-bust team and the
confidential informant then proceeded to the target area on board a
Toyota Revo.11 The informant and POl Mendoza alighted from the
Toyota Revo upon reaching Guiho Street to await the arrival of the
appellant.12 When she finally arrived, the informant introduced POl
Mendoza to her as someone in need of shabu.13 She asked POl
Mendoza how much he wanted to buy.14 The latter replied: Katorse
long po.15 She asked for the payment; hence, POl Mendoza gave her
the marked bills.16 Upon receiving the marked bills, she went into an
alley and returned shortly thereafter with two plastic sachets containing
suspected shabu.17 Picking one of the plastic sachets, POl Mendoza
tucked it in his right front secret pocket, which was the pre-arranged
signal to alert the rest of the buy-bust team about the consummation of
the sale.18 At the same time, POl Mendoza held her by the hand to
arrest her.19 Upon seeing the pre-arranged signal, the rest of the buy-
bust team, including MAD AC Operative Castillo, rushed forward, and
assisted POl Mendoza in apprehending her. After apprising her of her
constitutional rights, POl Mendoza asked her to empty her pockets, and
when she complied, he recovered the buy-bust money from her.20 He
also recovered the other plastic sachet from her right hand.21cralawred

POl Mendoza required the appellant to board the Toyota Revo. It was
inside the vehicle where he marked the plastic sachets with his initials
PCM for the sachet subject of the sale, and PCM-1 for the sachet
recovered from her right hand.22cralawred

The buy-bust team brought the appellant and the confiscated items to
the office of the SAID-SOTF for documentation and investigation.23 The
team later brought her and the confiscated items to the PNP Crime
Laboratory for testing and examination.24 Her urine sample and the
white crystalline substances contained in the two plastic sachets tested
positive for methylamphetamine hydrochloride, otherwise known as
shabu.25cralawred

Version of the Defense

The appellant was the lone witness of the Defense.

The appellant denied the charges, and insisted that she had been the
victim of a frame-up. According to her, she was cleaning the house of
Gona Gonzales at No. 94 Guiho Street, Barangay Cembo, Makati City,
for whom she worked as househelper.26 She later on went out to buy
rice and on her way to the store, two men approached and announced
her that they were able to buy shabu from her.27 One of the men poked
his gun at her. They then brought her to the basketball court, where
they frisked and ordered her to bring out the shabu.28 They recovered
money amounting to P180.00 from her.29 They asked if she knew
anyone selling shabu, but she answered them in the negative.30 They
brought her to the MADAC office where she remained for a day.31 She
was later taken to the PNP Crime Laboratory for drug testing. She
admitted using shabu only once, a year prior to her arrest.32cralawred
Judgment of the RTC

On September 15, 2006, the RTC convicted the appellant of the two
offenses charged, ruling:chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing judgment is rendered as follows:

1. In Criminal Case No. 05-568, the Court finds accused BEVERLY

ALAGARME y CITOY GUILTY beyond reasonable doubt of the offense
of Violation of Section 5, Article II, Republic Act No. 9165 and
sentences her to suffer LIFE IMPRISONMENT and to pay a fine of FIVE
HUNDRED THOUSAND (P500,000.00) PESOS.

2. In Criminal Case No. 05-569, the Court finds the accused BEVERLY
ALAGARME y CITOY GUILTY beyond reasonable doubt of the offense
of Violation of Section 11, Article II, Republic Act No. 9165 and
sentences her to suffer the indeterminate imprisonment of Twelve (12)
years and one (1) day, as minimum to Fourteen (14) years, as
maximum, and to pay a fine of THREE HUNDRED THOUSAND
(P300,000.00) PESOS.

The period during which the accused was under detention shall be
considered in her favor pursuant to existing rules.

The Branch Clerk of Court is directed to submit to the Philippine Drug

Enforcement Agency (PDEA) the two (2) plastic sachets of shabu with a
combined weight of zero point eighteen (0.18) gram for said agency's
appropriate disposition.

SO ORDERED.33cralawred
cralawlawlibrary

Decision of the CA

The appellant appealed to the CA, contending that the Prosecution's

patent non-compliance with the requirements under Section 21 of
Republic Act No. 9165 warranted her acquittal.

On May 28, 2008, the CA affirmed the conviction of the appellant,34

holding that the integrity and evidentiary value of the confiscated items
had been safeguarded notwithstanding the Prosecution's failure to
comply with the requirements prescribed under Section 21 of Republic
Act No. 9165; and that her mere denial and unsubstantiated defenses
did not overcome the presumption of regularity of the buy-bust
operation over.chanroblesvirtuallawlibrary

Issue

Did the CA err in finding the appellant guilty beyond reasonable doubt
of the violations of Section 2 and Section 5, Article II of Republic Act
No. 9165 charged?

Ruling

After careful examination of the records, we acquit the appellant

because of the State's failure to prove her guilt beyond reasonable
doubt.

In every prosecution for the illegal sale of dangerous drugs, the

presentation of the drugs as evidence in court is material,35 because
the identity of the drugs seized should be established beyond any
reasonable doubt. What is more, the fact that the substance bought
during the buy-bust operation is the same substance offered in court
should be proven. The preservation of the chain of custody of the drugs
seized performs the function of ensuring that unnecessary doubts
attending the identity of the evidence are removed.36cralawred

Section 21(1) of Republic Act No. 9165 lays down the procedure to be
followed in the seizure and ensuing custody of the seized dangerous
drugs, viz.:chanRoblesvirtualLawlibrary

Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/
Paraphernalia and/or Laboratory Equipment. - The PDEA shall take
charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as
well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the
following manner:
(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a
copy thereof;ChanRoblesVirtualawlibrary

x x x xcralawlawlibrary

Section 21 (a), Article II of the Implementing Rules and Regulations

(IRR) of Republic Act No. 9165, states:chanRoblesvirtualLawlibrary

xxxx

(a) The apprehending office/team having initial custody and control of

the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a
copy thereof: Provided, that the physical inventory and photograph
shall be conducted at the place where the search warrant is served; or
at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items;ChanRoblesVirtualawlibrary

x x x xcralawlawlibrary

The foregoing procedure underscores the value of preserving the chain

of custody in relation to the dangerous drugs. To give effect to the
procedure, the Dangerous Drugs Board (DDB), which is the policy-
making and strategy-formulating body in the planning and formulation
of policies and programs on drug prevention and control tasked to
develop and adopt a comprehensive, integrated, unified and balanced
national drug abuse prevention and control strategy,37 has defined
chain of custody involving the dangerous drugs and other substances
in Section l(b) of DDB Regulation No. 1, Series of 200238
thusly:chanRoblesvirtualLawlibrary

b. "Chain of Custody" means the duly recorded authorized movements

and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time
of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized item,
the date and time when such transfer of custody were made in the
course of safekeeping and use in court as evidence, and the final
disposition; (Emphasis supplied)cralawlawlibrary

With this concern for the due recording of the authorized movement
and custody of the seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment, the presentation
as evidence in court of the dangerous drugs subject of the illegal sale
is material in every prosecution for the illegal sale of dangerous drugs.
39 This materiality derives from the dangerous drugs being themselves
the corpus delicti. Indeed, proof of the corpus delicti is essential in
every judgment of conviction.40 Without proof of the corpus delicti,
there is uncertainty about whether the crime really transpired or not. To
eliminate the uncertainty, the Prosecution should account for every link
in the chain of custody; otherwise, the crime is not established beyond
reasonable doubt. In other words, the Prosecution does not comply with
the indispensable requirement of proving the violation of Section 5 of
Republic Act No. 9165 either when the dangerous drugs are missing or
when there are substantial gaps in the chain of custody of the seized
dangerous drugs that raise doubts about the authenticity of the
evidence presented in court.41cralawred

A reading of the record indicates that the buy-bust team did not
observe the procedures laid down by Republic Act No. 9165 and its
IRR. The marking of the seized drugs or other related items immediately
upon seizure from the accused is crucial in proving the chain of
custody because it is the starting point in the custodial link. The
marking upon seizure serves a two-fold function, the first being to give
to succeeding handlers of the specimens a reference, and the second
being to separate the marked evidence from the corpus of all other
similar or related evidence from the time of seizure from the accused
until their disposition at the end of criminal proceedings, thereby
obviating switching, "planting," or contamination of evidence.42 This
requirement of marking as laid down by the law was not complied with.
Firstly, PO1 Mendoza simply stated that he did the marking of the
confiscated items with his initials inside the Toyota Revo. Although the
appellant was also inside the Toyota Revo at that time,43 he did not
state if his marking was done within the view of the appellant, or within
the view of any representative from the media, Department of Justice or
any elected public official. Secondly, both he and MADAC Operative
Castillo did not indicate if any media or DOJ representative or elected
public official had been present during the buy-bust operation and
when the drugs were recovered from the appellant at the scene of the
apprehension. The law unequivocally required such presence. Thirdly,
there was also no showing of any inventory of the confiscated items
being undertaken or prepared. The lack of the inventory was confirmed
by the absence of any certificate of inventory being formally offered as
evidence by the Prosecution.44 Lastly, the Prosecution did not produce
any photographs taken of the sachets of shabu immediately following
their seizure.

The last paragraph of Section 21 (a), Article II of the IRR of Republic

Act No. 9165 provides a saving mechanism to ensure that not every
case of non-compliance with the safeguards to preserve the chain of
custody will irretrievably prejudice the Prosecution's case against the
accused. However, in order for such saving mechanism to apply, the
Prosecution must first recognize the lapse or lapses in the prescribed
procedures and then explain the lapse or lapses.45 Here, however, the
Prosecution did not bother to show that a media representative, DOJ
representative or elected public official had been notified of the buy-
bust operation or, assuming that the DOJ representative or public
official had been so priorly informed, the lawmen did not explain why
none of such representatives was around to witness the actual marking
of the evidence. Indeed, the Prosecution did not even try to show that
the application of the saving mechanism provided in Section 21 (a),
Article II of the IRR of Republic Act No. 9165 would be justified. Under
the circumstances, the identification of the seized evidence in court
during the trial became ambiguous and unreliable, rendering the proof
of the links in the chain of custody of the corpus delicti unworthy of
belief.

Where the State did not establish a preserved chain of custody of the
dangerous drugs according to the statutory procedure for doing so, we
have no need to review the claim of the appellant about her being
framed up on trumped-up charges. In view of the presumption of her
innocence, she did not need to explain her arrest for the crimes
charged against her. The presumption should be overcome only by
strong evidence of her guilt.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision

promulgated on May 28, 2008 by the Court of Appeals; ACQUITS
appellant BEVERLY ALAGARME y CITOY on the ground of the failure of
the Prosecution to establish her guilt beyond reasonable doubt; and
ORDERS her IMMEDIATE RELEASE from the Correctional Institute for
Women of the Bureau of Corrections, unless she is confined for another
lawful cause.

The Director of the Correctional Institute for Women of the Bureau of

Corrections is directed to implement this decision and to report to this
Court the compliance within 10 days from receipt hereof.

SO ORDERED.cralawlawl

x--x

SCC CHEMICALS CORPORATION, PETITIONER, VS. THE

HONORABLE COURT OF APPEALS, STATE INVESTMENT HOUSE,
INC., DANILO ARRIETA AND LEOPOLDO HALILI, RESPONDENTS.

RESOLUTION
QUISUMBING, J.:

Before us is a petition for review, pursuant to Rule 45 of the Rules of

Court, of the Decision of the Court of Appeals dated in November 12,
1996 in CA-G.R. CV No. 45742 entitled "State Investment House, Inc., v.
Danilo Arrieta, et al., and SCC Chemical Corporation." The questioned
decision affirmed in toto the decision of the Regional Trial Court of
Manila, Branch 33, dated March 22, 1993, in Civil Case No. 84-25881,
the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiff and against the defendants ordering the latter to
pay jointly and severally the plaintiff the following: a) To pay plaintiff
State Investment House, Inc., the sum of P150,483.16 with interest
thereon at 30% per annum reckond (sic) from April, 1984 until the whole
amount is fully paid; b) To pay plaintiff an amount equivalent to 25% of
the total amount due and demandable as attorney's fees and to pay the
cost(s) of suit.

SO ORDERED.[1]
Equally challenged in this petition is the Resolution of the appellate
court dated February 27, 1997, denying SCC Chemicals Corporation's
motion for reconsideration.

The background of this case, as culled from the decision of the Court of
Appeals, is as follows:

On December 13, 1983, SCC Chemicals Corporation (SCC for brevity)

through its chairman, private respondent Danilo Arrieta and vice
president, Pablo (Pablito) Bermundo, obtained a loan from State
Investment House Inc., (hereinafter SIHI) in the amount of P129,824.48.
The loan carried an annual interest rate of 30% plus penalty charges of
2% per month on the remaining balance of the principal upon non-
payment on the due date-January 12, 1984. To secure the payment of
the loan, Danilo Arrieta and private respondent Leopoldo Halili
executed a Comprehensive Surety Agreement binding themselves
jointly and severally to pay the obligation on the maturity date. SCC
failed to pay the loan when it matured. SIHI then sent demand letters to
SCC, Arrieta and Halili, but notwithstanding receipt thereof, no payment
was made.

On August 2, 1984, SIHI filed Civil Case No. 84-25881 for a sum of
money with a prayer for preliminary attachment against SCC, Arrieta,
and Halili with the Regional Trial Court of Manila.
In its answer, SCC asserted SIHI's lack of cause of action. Petitioner
contended that the promissory note upon which SIHI anchored its
cause of action was null, void, and of no binding effect for lack or failure
of consideration.

The case was then set for pre-trial. The parties were allowed to meet
out-of-court in an effort to settle the dispute amicably. No settlement
was reached, but the following stipulation of facts was agreed upon:
1 Parties agree that this Court has jurisdiction over the plaintiff and
the defendant and that it has jurisdiction to try and decide this
case on its merits and that plaintiff and the defendant have each
the capacity to sue and to be sued in this present action;
2
3 Parties agree that plaintiff sent a demand letter to the defendant
SCC Chemical Corporation dated April 4, 1984 together with a
statement of account of even date which were both received by
the herein defendant; and
4
5 Parties finally agree that the plaintiff and the defendant SCC
Chemical Corporation the latter acting through defendants Danilo
E. Arrieta and Pablito Bermundo executed a promissory note last
December 13, 1983 for the amount of P129,824.48 with maturity
date on January 12, 1984.[2]
The case then proceeded to trial on the sole issue of whether or not the
defendants were liable to the plaintiff and to what extent was the
liability.

SIHI presented one witness to prove its claim. The cross-examination of

said witness was postponed several times due to one reason or another
at the instance of either party. The case was calendared several times
for hearing but each time, SCC or its counsel failed to appear despite
notice. SCC was finally declared by the trial court to have waived its
right to cross-examine the witness of SIHI and the case was deemed
submitted for decision.

On March 22, 1993, the lower court promulgated its decision in favor of
SIHI.

Aggrieved by the verdict, SCC elevated the case to the Court of

Appeals where it was docketed as CA-G.R. CV No. 45742.
On appeal, SCC contended that SIHI had failed to show, by a
preponderance of evidence, that the latter had a case against it. SCC
argued that the lone witness presented by SIHI to prove its claim was
insufficient as the competency of the witness was not established and
there was no showing that he had personal knowledge of the
transaction. SCC further maintained that no proof was shown of the
genuineness of the signatures in the documentary exhibits presented
as evidence and that these signatures were neither marked nor offered
in evidence by SIHI. Finally, SCC pointed out that the original copies of
the documents were not presented in court.

On November 12, 1996, the appellate court affirmed in toto the

judgment appealed from.

On December 11, 1996 SCC filed its motion for reconsideration, which
the Court of Appeals denied in its resolution dated February 27, 1997.

Hence, petitioner's recourse to this Court relying on the following

assignments of error:

I
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT PRIVATE RESPONDENT PROVED ITS CAUSE OF
ACTION AND OVERCAME IT'S BURDEN OF PROOF.

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN

AWARDING ATTORNEY'S FEES TO THE PRIVATE RESPONDENT.
We find the pertinent issues submitted for resolution to be:
(1)
Whether or not the Court of Appeals made an error of law in holding
that private respondent SIHI had proved its cause of action by
preponderant evidence; and

(2)
Whether or not the Court of Appeals erred in upholding the award of
attorney's fees to SIHI.
Anent the first issue, petitioner contends that SIHI introduced
documentary evidence through the testimony of a witness whose
competence was not established and whose personal knowledge of the
truthfulness of the facts testified to was not demonstrated. It argues that
the same was in violation of Sections 36[3] and 48,[4] Rule 130 of the
Rules of Court and it was manifest error for the Court of Appeals to
have ruled otherwise. In addition, SCC points out that the sole witness
of SIHI did not profess to have seen the document presented in
evidence executed or written by SCC. Thus, no proof of its genuineness
was adduced. SIHI thus ran afoul of Section 2,[5] Rule 132 of the Rules
of Court, which requires proof of due execution and authenticity of
private documents before the same can be received as evidence.
Petitioner likewise submits that none of the signatures affixed in the
documentary evidence presented by SIHI were offered in evidence. It
vehemently argues that such was in violation of the requirement of
Section 34,[6] Rule 132 of the Rules of Court. It was thus an error of law
on the part of the appellate court to consider the same. Finally,
petitioner posits that the non-production of the originals of the
documents presented in evidence allows the presumption of
suppression of evidence provided for in Section 3 (e),[7] Rule 131 of the
Rules of Court, to come into play.

Petitioner's arguments lack merit; they fail to persuade us.

We note that the Court of Appeals found that SCC failed to appear
several times on scheduled hearing dates despite due notice to it and
counsel. On all those scheduled hearing dates, petitioner was
supposed to cross-examine the lone witness offered by SIHI to prove its
case. Petitioner now charges the appellate court with committing an
error of law when it failed to disallow the admission in evidence of said
testimony pursuant to the "hearsay rule" contained in Section 36, Rule
130 of the Rules of Court.

Rule 130, Section 36 reads:

SEC. 36. Testimony generally confined to personal knowledge; hearsay
excluded. - A witness can testify only to those facts which he knows of
his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules.
Petitioner's reliance on Section 36, Rule 130 of the Rules of Court is
misplaced. As a rule, hearsay evidence is excluded and carries no
probative value.[8] However, the rule does admit of an exception. Where
a party failed to object to hearsay evidence, then the same is
admissible.[9] The rationale for this exception is to be found in the right
of a litigant to cross-examine. It is settled that it is the opportunity to
cross-examine which negates the claim that the matters testified to by a
witness are hearsay.[10] However, the right to cross-examine may be
waived. The repeated failure of a party to cross-examine the witness is
an implied waiver of such right. Petitioner was afforded several
opportunities by the trial court to cross-examine the other party's
witness. Petitioner repeatedly failed to take advantage of these
opportunities. No error was thus committed by the respondent court
when it sustained the trial court's finding that petitioner had waived its
right to cross-examine the opposing party's witness. It is now too late
for petitioner to be raising this matter of hearsay evidence.

Nor was the assailed testimony hearsay. The Court of Appeals correctly
found that the witness of SIHI was a competent witness as he testified
to facts, which he knew of his personal knowledge. Thus, the
requirements of Section 36, Rule 130 of the Rules of Court as to the
admissibility of his testimony were satisfied.

Respecting petitioner's other submissions, the same are moot and

academic. As correctly found by the Court of Appeals, petitioner's
admission as to the execution of the promissory note by it through
private respondent Arrieta and Bermundo at pre-trial sufficed to settle
the question of the genuineness of signatures. The admission having
been made in a stipulation of facts at pre-trial by the parties, it must be
treated as a judicial admission. Under Section 4,[11] Rule 129 of the
Rules of Court, a judicial admission requires no proof.

Nor will petitioner's reliance on the "best evidence rule"[12] advance its
cause. Respondent SIHI had no need to present the original of the
documents as there was already a judicial admission by petitioner at
pre-trial of the execution of the promissory note and receipt of the
demand letter. It is now too late for petitioner to be questioning their
authenticity. Its admission of the existence of these documents was
sufficient to establish its obligation. Petitioner failed to submit any
evidence to the contrary or proof of payment or other forms of
extinguishment of said obligation. No reversible error was thus
committed by the appellate court when it held petitioner liable on its
obligation, pursuant to Article 1159 of the Civil Code which reads:

ART. 1159. Obligations arising from contracts have the force of law
between the contracting parties and should be complied with in good
faith.

On the second issue, petitioner charges the Court of Appeals with

reversible error for having sustained the trial court's award of attorney's
fees. Petitioner relies on Radio Communications of the Philippines v.
Rodriguez, 182 SCRA 899,909 (1990), where we held that when
attorney's fees are awarded, the reason for the award of attorney's fees
must be stated in the text of the court's decision. Petitioner submits that
since the trial court did not state any reason for awarding the same, the
award of attorney's fees should have been disallowed by the appellate
court.

We find for petitioner in this regard.

It is settled that the award of attorney's fees is the exception rather than
the rule, hence it is necessary for the trial court to make findings of fact
and law, which would bring the case within the exception and justify the
grant of the award.[13] Otherwise stated, given the failure by the trial
court to explicitly state the rationale for the award of attorney's fees, the
same shall be disallowed. In the present case, a perusal of the records
shows that the trial court failed to explain the award of attorney's fees.
We hold that the same should thereby be deleted.

WHEREFORE, the instant petition is PARTLY GRANTED. The decision

dated November 12, 1996 of the Court of Appeals is AFFIRMED WITH
MODIFICATION that the award of attorney's fees to private respondent
SIHI is hereby deleted. No pronouncement as to costs.

SO ORDERED.

x--x

G.R. No. 190846, February 03, 2016

TOMAS P. TAN, JR., Petitioner, v. JOSE G. HOSANA, Respondent.

DECISION

BRION, J.:

Before us is a petition for review on certiorari1 challenging the August

28, 2009 decision2 and November 17, 2009 resolution3 of the Court of
Appeals (CA) in CA-G.R. CV No. 88645.chanRoblesvirtualLawlibrary

The Facts

The respondent Jose G. Hosana (Jose) married Milagros C. Hosana

(Milagros) on January 14, 1979.4 During their marriage, Jose and
Milagros bought a house and lot located at Tinago, Naga City, which lot
w a s c o v e re d b y Tr a n s f e r C e r t i fi c a t e o f T i t l e ( T C T ) N o .
21229.5chanroblesvirtuallawlibrary

On January 13, 1998, Milagros sold to the petitioner Tomas P. Tan, Jr.
(Tomas) the subject property, as evidenced by a deed of sale executed
by Milagros herself and as attorney-in-fact of Jose, by virtue of a
Special Power of Attorney (SPA) executed by Jose in her favor.6 The
Deed of Sale stated that the purchase price for the lot was
P200,000.00.7 After the sale, TCT No. 21229 was cancelled and TCT
N o . 3 2 5 6 8 w a s i s s u e d i n t h e n a m e o f To m a s .
8chanroblesvirtuallawlibrary

On October 19, 2001, Jose filed a Complaint for Annulment of Sale/

Cancellation of Title/Reconveyance and Damages against Milagros,
Tomas, and the Register of Deeds of Naga City.9 The complaint was
filed before the Regional Trial Court (RTC), Branch 62, Naga City. In the
complaint, Jose averred that while he was working in Japan, Milagros,
without his consent and knowledge, conspired with Tomas to execute
the SPA by forging Jose's signature making it appear that Jose had
authorized Milagros to sell the subject property to Tomas.
10chanroblesvirtuallawlibrary

In his Answer, Tomas maintained that he was a buyer in good faith and
for value.11 Before he paid the full consideration of the sale, Tomas
claimed he sought advice from his lawyer-friend who told him that the
title of the subject lot was authentic and in order.12 Furthermore, he
alleged that the SPA authorizing Milagros to sell the property was
annotated at the back of the title.13chanroblesvirtuallawlibrary

Tomas filed a cross-claim against Milagros and claimed compensatory

and moral damages, attorney's fees, and expenses, for litigation, in the
event that judgment be rendered in favor of Jose.
14chanroblesvirtuallawlibrary

The RTC declared Milagros in default for her failure to file her answer to
Jose's complaint and Tomas' cross-claim.15 On the other hand, it
dismissed Tomas' complaint against the Register of Deeds since it was
only a nominal party.16chanroblesvirtuallawlibrary

After the pre-trial conference, trial on the merits ensued.

17chanroblesvirtuallawlibrary

Jose presented his brother, Bonifacio Hosana (Bonifacio), as sole

witness. Bonifacio testified that he learned of the sale of the subject
property from Milagros' son.18 When Bonifacio confronted Milagros that
Jose would get angry because of the sale, Milagros retorted that she
sold the property because she needed the money. Bonifacio
immediately informed Jose, who was then in Japan, of the sale.
19chanroblesvirtuallawlibrary

Jose was furious when he learned of the sale and went back to the
Philippines. Jose and Bonifacio verified with the Register of Deeds and
discovered that the title covering the disputed property had been
transferred to Tomas.20chanroblesvirtuallawlibrary

Bonifacio further testified that Jose's signature in the SPA was forged.21
Bonifacio presented documents containing the signature of Jose for
comparison: Philippine passport, complaint-affidavit, duplicate original
of SPA dated 16 February 2002, notice of lis pendens, community tax
certificate, voter's affidavit, specimen signatures, and a handwritten
letter.22chanroblesvirtuallawlibrary

On the other hand, Tomas submitted his own account of events as

corroborated by Rosana Robles (Rosana), his goddaughter. Sometime
in December 1997, Tomas directed Rosana to go to the house of
Milagros to confirm if Jose knew about the sale transaction. Through a
phone call by Milagros to Jose, Rosana was able to talk to Jose who
confirmed that he was aware of the sale and had given his wife
authority to proceed with the sale. Rosana informed Tomas of Jose's
confirmation.23chanroblesvirtuallawlibrary

With the assurance that all the documents were in order, Tomas made a
partial payment of P350,000.00 and another P350,000.00 upon the
execution of the Deed of Absolute Sale (Deed of Sale). Tomas noticed
that the consideration written by Milagros on the Deed of Sale was only
P200,000.00; he inquired why the written consideration was lower than
the actual consideration paid. Milagros explained that it was done to
save on taxes. Tomas also learned from Milagros that she needed
money badly and had to sell the house because Jose had stopped
sending her money.24chanRoblesvirtualLawlibrary

The RTC Ruling

In its decision dated December 27, 2006,25 the RTC decided in favor
of Jose and nullified the sale of the subject property to Tomas. The RTC
held that the SPA dated June 10, 1996, wherein Jose supposedly
appointed Milagros as his attorney-in-fact, was actually null and void.

Tomas and Milagros were ordered to jointly and severally indemnify

Jose the amount of P20,000.00 as temperate damages.
26chanRoblesvirtualLawlibrary

The CA Ruling

Tomas appealed the RTC's ruling to the CA.

In a decision dated August 28, 2009,27 the CA affirmed the RTC ruling
that the deed of sale and the SPA were void. However, the CA modified
the judgment of the RTC: first, by deleting the award of temperate
damages; and second, by directing Jose and Milagros to reimburse
Tomas the purchase price of P200,000.00, with interest, under the
principle of unjust enrichment. Despite Tomas' allegation that he paid
P700,000.00 for the subject lot, the CA found that there was no
convincing evidence that established this claim.
28chanroblesvirtuallawlibrary
Tomas filed a motion for the reconsideration of the CA decision on the
ground that the amount of P200,000.00 as reimbursement for the
purchase price of the house and lot was insufficient and not supported
by the evidence formally offered before and admitted by the RTC.
Tomas contended that the actual amount he paid as consideration for
the sale was P700,000.00, as supported by his testimony before the
RTC.29chanroblesvirtuallawlibrary

The C A denied the motion for reconsideration for lack of merit" in a

resolution dated November 17, 2009.30chanRoblesvirtualLawlibrary

The Petition

Tomas filed the present petition for review on certiorari to challenge the
CA ruling which ordered the reimbursement of P200,000.00 only,
instead of the actual purchase price he paid in the amount of
P700,000.00.31chanroblesvirtuallawlibrary

Tomas argues that, first, all matters contained in the deed of sale,
including the consideration stated, cannot be used as evidence since it
was declared null and void; second, the deed of sale was not
specifically offered to prove the actual consideration of the sale;32third,
his testimony establishing the actual purchase price of P700,000.00
paid was uncontroverted;33 and, fourth, Jose must return the full
amount actually paid under the principle of solutio indebiti.
34chanroblesvirtuallawlibrary

Jose, on the other hand, argues that first, Jose is estopped from
questioning the purchase price indicated in the deed of dale for failing
to immediately raise this question; and second, the terms of an
agreement reduced into writing are deemed to include all the terms
agreed upon and no other evidence can be admitted other than the
terms of the agreement itself.35chanRoblesvirtualLawlibrary

The Issues

The core issues are (1) whether the deed of sale can be used as the
basis for the amount of consideration paid; and (2) whether the
testimony of Tomas is sufficient to establish the actual purchase price of
the sale.chanRoblesvirtualLawlibrary

OUR RULING

We affirm the CA ruling and deny the petition.

Whether Tomas paid the purchase price of P700,000.00 is a question of

fact not proper in a petition for review on certiorari. Appreciation of
evidence and inquiry on the correctness of the appellate court's factual
findings are not the functions of this Court, as we are not a trier of facts.
36chanroblesvirtuallawlibrary

This Court does not address questions of fact which require us to rule
on "the truth or falsehood of alleged facts,"37 except in the following
cases:ChanRoblesVirtualawlibrary
(1) when the findings are grounded entirely on speculations, surmises,
or conjectures; (2) when the inference made is manifestly mistaken,
absurd, or impossible; (3) when there is a grave abuse of discretion; (4)
when the judgment is based on misappreciation of facts; (5) when the
findings of fact are conflicting; (6) when in making its findings, the same
are contrary to the admissions of both appellant and appellee; (7) when
the findings are contrary to those of the trial court; (8) when the findings
are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent;
and (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record.
38chanroblesvirtuallawlibrary
The present case does not fall under any of these exceptions.

Whether Tomas sufficiently proved that he paid P700,000.00 for the

subject property is a factual question that the CA had already resolved
in the negative.39 The CA found Tomas' claim of paying P700,000.00
for the subject property to be unsubstantiated as he failed to tender any
convincing evidence to establish his claim.

We uphold the CA's finding.

In civil cases, the basic rule is that the party making allegations has the
burden of proving them by a preponderance of evidence.40 Moreover,
the parties must rely on the strength of their own evidence, not upon the
weakness of the defense offered by their opponent.
41chanroblesvirtuallawlibrary

Preponderance of evidence is the weight, credit, and value of the

aggregate evidence on either side and is usually considered to be
synonymous with the term "greater weight of the evidence" or "greater
weight of the credible evidence."42 Preponderance of evidence is a
phrase that, in the last analysis, means probability of the truth. It is
evidence that is more convincing to the court as it is worthier of belief
than that which is offered in opposition thereto.
43chanroblesvirtuallawlibrary

We agree with the CA that Tomas' bare allegation that he paid Milagros
the sum of P700,000.00 cannot be considered as proof of payment,
without any other convincing evidence to establish this claim. Tomas'
bare allegation, while uncontroverted, does not automatically entitle it to
be given weight and credence.

It is settled in jurisprudence that one who pleads payment has the

burden of proving it;44 the burden rests on the defendant to prove
payment, rather than on the plaintiff to prove non-payment.45 A mere
allegation is not evidence,46 and the person who alleges has the
burden of proving his or her allegation with the requisite quantum of
evidence, which in civil cases is preponderance of evidence.

The force and effect of a void contract is distinguished from its

admissibility as evidence.

The next question to be resolved is whether the CA correctly ordered

the reimbursement of P200,000.00, which is the consideration stated in
the Deed of Sale, based on the principle of unjust enrichment.

The petitioner argues that the CA erred in relying on the consideration

stated in the deed of sale as basis for the reimbursable amount
because a null and void document cannot be used as evidence.

We find no merit in the petitioner's argument.

A void or inexistent contract has no force and effect from the very
beginning.47 This rule applies to contracts that are declared void by
positive provision of law, as in the case of a sale of conjugal property
without the other spouse's written consent.48 A void contract is
equivalent to nothing and is absolutely wanting in civil effects.49 It
cannot be validated either by ratification or prescription.50 When,
however, any of the terms of a void contract have been performed, an
action to declare its inexistence is necessary to allow restitution of what
has been given under it.51chanroblesvirtuallawlibrary

It is basic that if a void contract has already "been performed, the

restoration of what has been given is in order."52 This principle springs
from Article 22 of the New Civil Code which states that "every person
who through an act of performance by another, or any other means,
acquires or comes into possession of something at the expense of the
latter without just or legal ground, shall return the same." Hence, the
restitution of what each party has given is a consequence of a void and
inexistent contract.

While the terms and provisions of a void contract cannot be enforced

since it is deemed inexistent, it does not preclude the admissibility of
the contract as evidence to prove matters that occurred in the course of
executing the contract, i.e., what each party has given in the execution
of the contract.

Evidence is the means of ascertaining in a judicial proceeding the truth

respecting a matter of fact, sanctioned by the Rules of Court.53 The
purpose of introducing documentary evidence is to ascertain the
truthfulness of a matter at issue, which can be the entire content or a
specific provision/term in the document.

The deed of sale as documentary evidence may be used as a means to

ascertain the truthfulness of the consideration stated and its actual
payment. The purpose of introducing the deed of sale as evidence is
not to enforce the terms written in the contract, which is an obligatory
force and effect of a valid contract. The deed of sale, rather, is used as
a means to determine matters that occurred in the execution of such
contract, i.e., the determination of what each party has given under the
void contract to allow restitution and prevent unjust enrichment.
Evidence is admissible when it is relevant to the issue and is not
excluded by the law of these rules.54 There is no provision in the Rules
of Evidence which excludes the admissibility of a void document. The
Rules only require that the evidence is relevant and not excluded by the
Rules for its admissibility.55chanroblesvirtuallawlibrary

Hence, a void document is admissible as evidence because the

purpose of introducing it as evidence is to ascertain the truth
respecting a matter of fact, not to enforce the terms of the document
itself.

It is also settled in jurisprudence that with respect to evidence which

appears to be of doubtful relevancy, incompetency, or admissibility, the
safer policy is to be liberal and not reject them on doubtful or technical
grounds, but admit them unless plainly irrelevant, immaterial, or
incompetent; for the reason that their rejection places them beyond the
consideration of the court, if they are thereafter found relevant or
competent. On the other hand, their admission, if they turn out later to
be irrelevant or incompetent, can easily be remedied by completely
discarding them or ignoring them.56chanroblesvirtuallawlibrary

In the present case, the deed of sale was declared null and void by
positive provision of the law prohibiting the sale of conjugal property
without the spouse's consent. It does not, however, preclude the
possibility that Tomas paid the consideration stated therein. The
admission of the deed of sale as evidence is consistent with the liberal
policy of the court to admit the evidence: which appears to be relevant
in resolving an issue before the courts.

An offer to prove the regular execution of the deed of sale is basis for
the court to determine the presence of the essential elements of the
sale, including the consideration paid.

Tomas argues that the Deed of Sale was not specifically offered to
prove the actual consideration of the sale and, hence, cannot be
considered by the court. Tomas is incorrect.

The deed of sale in the present case was formally offered by both
parties as evidence.57 Tomas, in fact, formally offered it for the purpose
of proving its execution and the regularity of the sale.
58chanroblesvirtuallawlibrary

The offer of the deed of sale to prove its regularity necessarily allowed
the; lower courts to consider the terms written therein to determine
whether all the essential elements59 for a valid contract of sale are
present, including the consideration of the sale. The fact that the sale
was declared null and void does not prevent the court from relying on
consideration stated in the deed of sale to determine the actual amount
paid by the petitioner for the purpose of preventing unjust enrichment.

Hence, the specific offer of the Deed of Sale to prove the actual
consideration of the sale is not necessary since it is necessarily
included in determining the regular execution of the sale.

The consideration stated in the notarized Deed of Sale is prima facie

evidence of the amount paid by the petitioner.

The notarized deed of sale is a public document and is prima facie

evidence of the truth of the facts stated therein.
60chanroblesvirtuallawlibrary

Prima facie evidence is defined as evidence good and sufficient on its

face. Such evidence as, in the judgment of the law, is sufficient to
establish a given fact, or the group or chain of facts constituting the
party's claim or defense and which if not rebutted or contradicted, will
remain sufficient.61chanroblesvirtuallawlibrary

In the present case, the consideration stated in the deed of sale

constitutes prima facie evidence of the amount paid by Tomas for the
transfer of the property to his name. Tomas failed to adduce satisfactory
evidence to rebut or contradict the consideration stated as the actual
consideration and amount paid to Milagros and Jose.

The deed of sale was declared null and void by a positive provision of
law requiring the consent of both spouses for the sale of conjugal
property. There is, however, no question on the presence of the
consideration of the sale, except with respect to the actual amount
paid. While the deed of sale has no force and effect as a contract, it
remains prima facie evidence of the actual consideration paid.
As earlier discussed, Tomas failed to substantiate his claim that he paid
to Milagros the amount of P700,000.00, instead of the amount of
P200,000.00 stated in the deed of sale. No documentary or testimonial
evidence to prove payment of the higher amount was presented, apart
from Tomas' sole testimony. Tomas' sole testimony of payment is self-
serving and insufficient to unequivocally prove that Milagros received
P700,000.00 for the subject property.

Hence, the consideration stated in the deed of sale remains sufficient

evidence of the actual amount the petitioner paid and the same amount
which should be returned under the principle of unjust enrichment.

Unjust enrichment exists "when a person unjustly retains a benefit at the

loss of another, or when a person retains money or property of another
against the fundamental principles of justice, equity, and good
conscience."62 The prevention of unjust enrichment is a recognized
public policy of the State and is based on Article 22 of the Civil Code.
63chanroblesvirtuallawlibrary

The principle of unjust enrichment requires Jose to return what he or

Milagros received under the void contract which presumably benefitted
their conjugal partnership.

Accordingly, the CA correctly ordered Jose to return the amount of

P200,000.00 since this the consideration stated in the Deed of Sale and
given credence by the lower court. Indeed, even Jose expressly stated
in his comment that Tomas is entitled to recover the money paid by him
in the amount of P200,000.00 as appearing in the contract.

WHEREFORE, we hereby DENY the petition for review on certiorari. The

decision dated August 28, 2009 and the resolution dated November 17,
2009, of the Court of Appeals in CA-G.R. CV No. 88645 is AFFIRMED.
Costs against the petitioner.

SO ORDERED.cralawlawlibrary

x--x
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOERAL
GALLENO, accused-appellant.
DECISION

PER CURIAM:

What could be more compelling than deciding a case which involves

the sexual abuse of a five-year old child? Equally important is the fact
that the case before us involves the highest penalty imposable by law.
Being the guardian of the most fundamental liberties of every citizen,
the Court must pass upon every intricate detail of the case at bar to
determine whether or not accused-appellant committed the gruesome
act imputed against him.

Accused-appellant Joeral Galleno seeks reversal of the judgment of

Branch 14 of the Regional Trial Court of the 6th Judicial Region
stationed in Roxas City, relying on the defense of denial. Since the case
involves the death penalty, the matter has been elevated to this Court
for automatic review.

Accused-appellant was charged in an Information docketed as

Criminal Case No. C-4629 for the crime of Statutory Rape, reading as
follows:

The undersigned Assistant Provincial Prosecutor, upon prior authority

and approval of the Provincial Prosecutor, and the original complaint
filed by the guardian of the offended party, accuses Joeral Galleno of
the crime of STATUTORY RAPE, committed as follows:

That on or about 5:00 o'clock in the afternoon of August 16, 1994, at

Brgy. Balighot, Maayon, Capiz, and within the jurisdiction of this Court,
the said accused did, then and there, wilfully and feloniously, and
without the permission of anyone, enter the house of EVELYN
OBLIGAR, a five-year old child, and succeeded in having carnal
knowledge of her thereby inflicting upon the latter a vaginal laceration
which caused continuous bleeding and her admission of five (5) days
at the Roxas Memorial Hospital.

CONTRARY TO LAW.
(p. 9, Rollo.)

Accused-appellant entered a plea of not guilty. Thereafter, trial on the

merits ensued, resulting in a judgment of conviction, the dispositive
portion of which reads:

IN THE LIGHT OF THE FOREGOING ESTABLISHED FACTS, the Court

finds accused JOERAL GALLENO GUILTY beyond reasonable doubt
under Section 11 of Republic Act No. 7659 amending Article 335 of the
Revised Penal Code.

Accordingly, accused JOERAL GALLENO is sentenced to suffer the

supreme penalty of DEATH and to indemnify the victim Evelyn Obligar
Garganera the sum of FIFTY THOUSAND (P50,000.00) PESOS.

Let this DECISION serve as clear signal warning the perverts, the
misguided elements of our society, especially their lackadaisical
parents in their innate moral obligation and responsibility in educating
their children that in this corner of the world the wheels of justice is not
asleep and its unforgiving hands and watchful eyes are as vigilant as
ever.

(pp. 44-45, Rollo.)

In flashback, let us visualize the events.

Evelyn Obligar Garganera is the 5-year old daughter of Rosita Obligar

Garganera who had to leave the province to find work in Manila after
separating from her husband. Evelyn, together with her younger
brother, 3-year old Eleazar, was thus left under the care and custody of
their uncle, Emetario Obligar, and aunt, Penicola Obligar.

Less than kilometer away from their place of residence lived accused-
appellant, 19-year old Joeral Galleno, known well Evelyn's family due to
his frequent visits at the Obligars' abode as he was paying court to
Emetario's eldest child, Gina.

On August 16, 1994, Emetario and Penicola left their residence to work
at sugarcane plantation owned by Magdalena Dasibar. Their three
children had all ealier left for school. The only persons left in the house
were niece Evelyn and nephew Eleazar.

At around 4 o'clock in the afternoon, accused-appellant was on his way

to his Lola Esing to have his pants tailored. Since it was drizzling, he
passed by the Obligars' residence and found the two children left to
themselves. The prosecution and the defense presented conflicting
versions on what occurred at said residence. However, the result is
undisputed. Evelyn sustained a laceration in her vagina which result in
profuse, and to our mind, life-threatening bleeding due to her tender
age.

The prosecution's version of what took place at the Obligars' residence

is based on the testimony of Evelyn herself, her uncle Emetario, and the
doctors who examined and treated her. The Solicitor General
summarized the same in this wise:

2. Appellant took advantage of the situation by sexually molesting

Evelyn. After lowering her shorts, he made Evelyn sit on his lap, facing
him. As Evelyn was only five-years old while appellant was fully-grown
man, the penetration caused the child's vagina to bleed, making her
cry in pain. (pp.10-11 and 18-25, tsn, Garganera, January 10, 1995).

3. Appellant tried to stop the bleeding by applying, with his finger, the
sap of "madre de cacao" leaves on her vagina. Unsuccessful in his
attempt, he left Evelyn grimacing and crying in pain. (pp. 14-15, tsn
Garganera, January 10, 1995; pp. 6-7, tsn, Obligar, February 7, 1995).

4. Shortly, Emeterio and Penicola came home from work. The spouses
were laborers in a sugarcane plantation about two kilometers away from
their house. They arrived to find Evelyn crying. Emetario noticed that
there was blood in Evelyn's dress and she was pressing a rug against
her genital organ. (pp. 11-12, tsn, Obligar, January 10, 1995; pp. 8-9,
tsn, Obligar, February 7, 1995).

5. Emeterio asked Evelyn what happened but she did not answer.
Emetario spread the child's legs and saw that her vagina had been
lacerated and blood was oozing therefrom. He summoned a "quack"
doctor who applied herbal medicine on Evelyns's vagina but did not
stop the bleeding. (pp.12-14, tsn, Obligar, January 12, 1995).
6. The following day, August 17, 1994, Emeterio brought Evelyn to the
clinic of Dr. Alfonso D. Orosco, the Rural Health Physician of Maayon,
Capiz. Dr. Orosco reported, upon examining Evelyn, that he found (1)
clotted blood, about 1 centimeter in diameter, in her vaginal opening,
and (2) a vaginal laceration, measuring 1.0 centimeter x o.5 centimeter,
between the 3:00 o'clock and 6:00 o'clock position. He also affirmed
that Evelyn's vaginal laceration could have been by blunt instrument
inserted into the vigina, that it was possible that a human penis in full
erection had been forcibly inserted into her vagina, and that a human
penis in full errection is considered a blunt intrument (pp. 4-7, tsn,
Orosco, November 28, 1994; p. 14, tsn, Obligar, January 12, 1995).

7. While he was examining Evelyn, Dr. Orosco asked Evelyn what

caused her injuries. The child told him that a penis was inserted into her
vagina and that its insertion caused her pain. (pp. 9-10, 14 and 18-19,
tsn, Orosco, November 28, 1994).

8. Since his clinic lacked the proper medical facilities needed to treat
Evelyn, Dr. Orosco, after dressing the victim's wound which continued
to bleed, advised Emeterio and Penicola to bring the child to the
hospital for further medical treatment. (p.8, tsn, Orosco, November 28,
1994; pp. 14-16, tsn, Obligar, January 12, 1995)

9. On August 18, 1994, Emeterio brought Evelyn to the Roxas Memorial

General Hospital were she was examined by resident physician Dr. Ma.
Lourdes Laada. Dr. Laada, upon examining Evelyn found that "there
was a 3 cm. lacerated wound at the left anterior one-third of the vagina"
and "the pressence of about 10-15cc of blood" at the vaginal vault. Dr.
Laada recommended that evelyn be admitted for confinement in the
hospital because the wound in her vagina, which was bleeding, had to
be repaired. Due to financial constraints, Evelyn was not admitted into
the Hospital that day and went home with Emeterio to Barangay
Balighot. (pp.6-8,tsn Laada, January 4, 1995; pp. 15-16, ts, Obligar,
January 12, 1995).

10. Upon her examination of the victim on August 18, 1994, Dr. Laada
opined that "a lot of things will cause the lacerated wound in the
vagina." (p. 9, tsn, Laada, January 4, 1995). According to Dr. Laada,
the vaginal laceration may be caused (1) by trauma to the area, when a
girl falls and hits her genital area on a blunt instrument; (2) by medical
instrumentation, like the insertion of a speculum into the vagina; or (3)
by the insertion of blunt foreign object into the vagina, like a finger or a
penis of a man in full erection. (pp. 8-9, tsn, Laada, January 4, 1995).

11. On August 19, 1994, Emetario brought Evelyn back to the Roxas
Memorial General Hospital where she was attended to by Dr. Machael
Toledo, the resident physician on duty, who found blood clots and
minimal bleeding in the genital area. Dr. Toledo " pack(ed) the area to
prevent further bleeding and (he) admitted the patient for possible
repair of the laceration and blood transfusion because she has anaemia
2ndary to bleeding." Two hundred fifty five (255) cc of blood was
transfused to Evelyn and she was given antibiotics to prevent infection.
However, she was no longer operated on because the laceration had
healed. Five days later, Evelyn was discharged and sent home with
medication. (pp. 11-13, 17 and 26, tsn, Toledo, December 2, 1994).

12. Upon his examination of Evelyn on August 19, 1994, Dr. Toledo
disclosed that the child suffered severe compound laceration which
could have been caused by a normal and fully developed penis of a
man in a state of erection that was forcibly inserted into her vagina and
that the insertion caused her vagina to hemorrhage which thus required
the transfusion of 255 cc of blood (pp. 14-16 and 26, tsn, Toledo,
December 2, 1994.

13. Prior to her confinement in the Roxas Memorial General Hospital on

August 19, Emetario and Penicola Obligar brought Evelyn to the
Maayon Police Station on August 18, 1994, where they reported the
crime to SPO1 Paulino Durana. That same day, appellant was
apprehended in a house near the Balighot Elementary School and
brought to the police station (pp17-19, tsn, Obligar, January 12, 1995;
pp. 5-9, 16-17 and 21, tsn, Durana, January 16, 1995).

(pp. 164-171, Rollo.)

Denial is presented as the defenses. Accused-appellant testified that

when he arrived at the Obligar residence that afternoon of August 16,
1994, he found the two children, Evelyn and Eleazar (also referred to in
the record as Pilfo). While seated at the balcony, accused-appellant
was approached by Evelyn, who knew him (tsn, April 5, 1995, pp.5 and
8). He cajoled her by throwing her up and down, his right hand holding
the child and his left hand covering her vagina (Ibid., p. 21). Upon
lifting up the child the first time, his left ring finger was accidentally
inserted into the vagina of child since his fingernail was long and the
child was not wearing any underwear. Consequently, Evelyn began to
cry because her vagina started to bleed. Upon seeing this, he
immediately went down the house and got some bark or leaves of
madre de cacao tree and applied the sap on the child's wound. The
bleeding ceased and Evelyn stopped crying. Thereafter, accused-
appellant went home. (Ibid., pp.9-10).

Accused-appellant further testified that on August 18, 1994, at around 9

o'clock in the morning, he was arrested. On the same day, Emeterio
Obligar asked him to admit the offense so that he could be released the
next day, but accused-appellant did not do so (Ibid., pp. 26-27).

Accused-appellant's father Raul Galleno was called to the witness

stand and he testified that he learned about the arrest of his son on
August 18, 1994 (tsn, May 12, 1995, p.6). The following day, he went to
the house of the Obligars to ask Evelyn what happened to her. The
child allegedly answered that a finger was accidentally inserted into her
genital organ, but that Penicola who was then present, butted into the
conversation and told Raul Galleno that the penis of accused-appellant
was likewise inserted (Ibid., p.8).

The trial court did not accord credence to the version of the defense,
pointing out in its decision that accused-appellant's defense of denial
hinged on the argument that the statement of Evelyn as to how she
sustained her vaginal laceration was mere concoction and a plain
distortion of facts by her guardian. The trial court called this a
"desperate attempt of the defense to becloud the charge of rape."

The trial court believed and accepted the testimony of Police Officer
Paulino Durana that during the interrogation of Evelyn which he
conducted at the PNP Station of Maayon, Emeterio and Penicola
Obligar did not interfere with the responses of Evelyn, although, true
enough, it was difficult to obtain answer from her because of her tender
age.
The trial deemed the following circumstances significant in finding
accused-appellant culpable:

1. Accused-appellant failed to explain how his left finger accidentally

came in contact with Evelyn's vagina, while in the process of throwing
her up and down. Besides, the prosecution was able to establish that
Evelyn was wearing shorts. And assuming for the sake of argument that
Evelyn was not wearing any pants or underwear at that time, accused-
appellant failed to explain how his finger could possibly penetrate the
victim's vagina by about one-fourth of an inch (p. 23, tsn, April 5, 1995).

2. After satisfying his lust, accused-appellant left the victim with her 3-
year old brother, in pain and bleeding.

3. Evelyn's statement given to Dr. Ma. Lourdes Laada, the physician

who examined her at the Roxas Memorial General Hospital, that it was
accused-appellant's finger which injured her, was a consequence of the
victim's confusion.

4. The formal offer of settlement made by accused-appellant's father

Raul Galleno militates against the cause of the defense.

Hence, the instant appeal and review, with accused-appellant

assigning the following errors:

THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE

TO THE TESTIMONIES OF THE MEDICAL DOCTORS WHEN THE
SAME FAILED TO CONCLUSIVELY AND SUFFICIENTLY ESTABLISH
THE CAUSE OF THE LACERATION IN THE OFFENDED PARTY'S
VAGINA

THE TRIAL COURT SHOWED MANIFEST BIAS THEREBY DEPRIVING

THE ACCUSED-APPELLANT TO A FAIR AND IMPARTIAL TRIAL AND
DISREGARDED THE RIGHT OF THE ACCUSED TO BE PRESUMED
INNOCENT, WHEN HE ACTIVELY PARTICIPATED IN THE CROSS
EXAMINATIUON OF THE ACCUSED

THE TRIAL COURT ERRED IN NOT DECLARING THE WARRANTLESS

ARREST OF THE ACCUSED AS UNJUSTIFIED
THE TRIAL COURT ERRED IN INTERPRETING THE FINANCIAL
ASSISTANCE EXTENDED BY THE PARENTS OF THE ACCUSED TO
THE OFFENDED PARTY AS AN IMPLIED ADMISSION OF GUILT

(pp. 81-82, Rollo.)

One can not escape the feeling of utmost compassion for any rape
victim, and more especially so for a 5-year old statutory rape victim.
However, in our consideration of the matter before us, we set aside
emotion and observe impartiality and coldness in drawing conclusions.

Under the first assigned error, accused-appellant contends that the

testimony of the three expert witnesses presented by the prosecution,
namely, Dr. Alfonso Orosco, Dr. Ma. Lourdes Laada, and Dr. Machael
Toledo, which convinced the trial court that rape was committed against
the offended party, is not impeccable considering that they found that
there was no presence of spermatozoa, and that they were not sure as
to what caused the laceration in the victim's vagina; that Dr. Laada
herself testified that Evelyn told her that it was the finger of accused-
appellant which caused the laceration. In addition, accused-appellant
banks on the victim's testimony on cross-examination, that it was the
finger of accused-appellant which caused the laceration; and that she
even disclosed this to accused-appellant's father, Raul Galleno.

We are not persuaded.

As a general rule, witnesses must state facts and not draw conclusions
or give opinions. It is the court's duty to draw conclusions from the
evidence and form opinions upon the facts proved (Francisco,
Pleadings and Trial Practice, Vol. I. 1989 ed., pp. 889-890). However,
conclusions and opinions of witnesses are received in many cases, and
are not confined to expert testimony, based on the principle that either
because of the special skill or expert knowledge of the witness, or
because of the nature of the subject matter under observation, of for
other reasons, the testimony will aid the court in reaching a judgment.
(Ibid., p.886).

In the case at bar, the trial court arrived at its conclusions not only with
the aid of the expert testimony of doctors who gave their opinions as to
the possible cause of the victim's laceration, but also the testimony of
the other prosecution witness, especially the victim herself. In other
words, the trial court did not rely solely on the testimony of the expert
witnesses. Such expert testimony merely aided the trial court in the
exercise of its judgment on the facts. Hence, the fact that the experts
enumerated various possible causes of the victim's laceration does not
mean the trial court's interference is wrong.

The absence of spermatozoa in the victim's vagina does not negate the
conclusion that it was his penis which was inserted in the victim's
vagina (People vs. Caada, 253 SCRA 277 [1996]). In rape, the
important consideration is not the emission of semen but the
penetration of the female genitalia by the male organ (People vs.
Dadles, 254 SCRA 696 [1996]). Verily, it is entirely probable that climax
on the part of accused-appellant was not reached due to the cries of
pain of the victim and the profuse bleeding of her vagina.

As regards the inconsistencies in Evelyn's declaration, particularly as to

what really caused the laceration, we are convinced that the child, due
to her tender age, was just confused. This is best exemplified by the
testimony of Dr. Lourdes Laada on cross-examination, as follows:

Q Now, Doctor, at the time that you conducted your examination, you
were aware that this child was only five years old?

A Yes, sir.

Q And at that tender age, Doctor, is it possible that the child may not
know the difference of distinction between fingers of the hands and a
finger protruding between the legs of a person?

A Yes, sir, it is possible.

Q So that is possible, Doctor, that the child may have referred to a

finger that is between the legs?

WITNESS

You mean the penis?

PROSECUTOR OBIENDA
Yes.

WITNESS

It is possible.

(TSN, p.27, March 30, 1995.)

Of vital consideration and importance too is the unreliability, if not the

outright incredulity of the version of accused-appellant which is not in
accord with ordinary human experience. We thus can not help
expressing sentiments similar of those of the trial court when is said:

The contention of accused Joeral Galleno raises serious doubts to his

credibility. He failed to explain how his ring finger accidentally came in
contact with the genitalia of Evelyn, while it was established by the
prosecution that at that time Evelyn was wearing shorts. Even assuming
"ex gratia argumente" that Evelyn was pantyless, how could it be
possible for his finger to penetrate to the vagina for about one-fourth of
an inch when she was in shorts. The Supreme Court, in People vs.
Fulgencio Baquiran, 20 SCRA 451, (held that) evidence, to be believed
must not only proceed from the mouth of a credible witness, but it must
be credible in itself. Human perception can be warped by the impact of
events and testimony colored by the unconscious workings of the mind.
No better test has yet been found to measure the value of a witness'
testimony than its conformity to the knowledge and common
experience of mankind.

(pp.42-43, Rollo.)

Section 4, Rule 128 of the Rules of Court provides that "(e)vidence must
have such a relation to the fact in issue as to induce belief in its
existence or nor-existence." This simply means that relevancy is
determinable by the rules of logic and human experience (Regalado,
Remedial Law Compendium, Vol. II, 1988 ed., p.434). There is no
precise and universal test of relevancy provided by law. However, the
determination of whether particular evidence is relevant rests largely at
the discretion of the court, which must be exercised according to the
teachings of logic and everyday experience (Sibal and Salazar,
Compendium on Evidence, 1995 ed., citing Alfred Asmore Pope
Foundation vs. New York, 138 A. 444, 106 Conn. 432).

There is no explanation how the left ring finger (allegedly with long
fingernail) of accused-appellant penetrated the victim's vagina by a
depth of one fourth of an inch. Admittedly, accused-appellant's right
hand held the child while his left hand supposedly held her in the
vagina area. Why would the hold the child's vagina if his only intention
was to frolic and kid around with her?

Accused-appellant likewise failed to explain why after injuring Evelyn

(and after applying to the wound the sap of madre de cacao), he left
her in the company of an even younger child, the victim's 3-year old
brother. He did not even make an effort to immediately inform Emeterio
and Penicola of what happened. Instead, he went home and kept mum
about the incident.

Accused-appellant also said that after the alleged accident, before

going home, he removed Eleazar's shorts and put them on Evelyn.
Assuming this to be true, this only shows that the child was still
bleeding. Why then would he leave the child considering that there was
no adult to attend her? Significantly, his act of immediately leaving the
place, when considered in the light of the other evidence, reflects his
fear because of what he had done. The proverb "the wicked fleeth even
when no man pursueth, but the innocent are as bold as a lion" was
correctly adopted by the trial court in drawing its conclusions.

All of these loopholes are palpable and manifest, and clearly work
against the credibility of accused-appellant's story on which his
defense is based.

Besides, the trial court's conclusions finds supports in the testimony of

accused-appellant's own witness, Dr. Lourdes Laada (who was earlier
presented during the trial as a prosecution witness), who testified that a
laceration is caused by a blunt instrument and that a fingernail is not a
blunt but a sharp instrument (TSN, pp.32-33, March 30, 1995).

As regards accused-appellant's argument that the victim's testimony is

just a concocted story of what really happened, we apply the rule that
the revelation of an innocent child whose chastity was abused deserves
full credence (People vs. Cagto, 253 SCRA 455 [1996]). We likewise
consider the fact that her uncle and aunt, virtually her foster parents,
themselves support her story of rape. It is unnatural for a parent to use
her offspring as an engine of malice, especially if it will subject a
daughter to embarrassment and even stigma (People vs. Dones,
supra.)

Accused-appellant's father, Raul Galleno, tried to destroy the credibility

of Evelyn when he took the stand and testified that the child disclosed
to him that is was accused-appellant's finger which was inserted into
her vagina. Nevertheless, this testimony cannot prevail over the
testimony of the victim, to wit:

FISCAL OBIENDA

Q You said that Joeral Galleno the accused in this case hurt you while
you were in the farm, can you tell in the farm, can you tell the Honorable
Court which part of your body was hurt by Joeral Galleno?

A (Witness pointing to her vagina) Here.

Q When you said you were hurt did you bleed?

WITNESS

A Yes, Sir.

FISCAL OBIENDA

Q What was used by Joeral Galleno in hurting your sexual organ

A His (Pitoy). Penis.

COURT

Make the translation of "Pitoy" into Penis. Do you agree that the
translation of Pitoy is Penis in English?

ATTY. DISTURA
Agreeable, Your Honor.

FISCAL OBIENDA

Q What did Joeral Galleno do with his Pitoy (Penis) to your vagina
(Putay)?

A It was inserted (ginsulod) to my vagina (Putay).

Q When Joeral Galleno inserted his penis (Pitoy) to your vagina (Putay),
that was the reason why it bleed?

A Yes, sir.

Q And it was very painful?

A Yes, Sir.

Q And you cried because of pain?

A Yes, Sir.

FISCAL OBIENDA

Q And you were brought to the Doctor and admitted to the hospital
because of that?

A Yes, Sir.

(TSN, pp.10-12, January 10, 1995)

Under the second assigned error, accused-appellant alleges that he

was deprived of a fair and impartial trial since the trial court showed
bias by discounting his testimony, and by actually participating in the
cross-examination of accused-appellant.

We recently pronounced in People vs. Malabago (265 SCRA 198

[1996]) that a judge may not properly intervene in the presentation of
evidence to expedite and prevent unnecessary waste of time and
clarify obscure and incomplete details after the witness was given
direct testimony cannot be assailed as a specie of bias.

Of course, we are aware of Rule 3.06 of the Code of Judicial Conduct

provides:

While a judge may, to promote justice, prevent waste of time or clear up

some obscurity, properly intervene in the presentation of evidence
during the trial, it should always be borne in mind that undue
interference may prevent the proper presentation of the cause or the
ascertainment of truth.

And there is undoubtedly undue interference if the judge extensively

propounds question to the witness which will have the effect of or will
tend to build or bolster the case for one of the parties. We have,
however, carefully examined the record and transcript of stenographic
notes of the instant case. The trial court judge, the Honorable Salvador
S. Gubaton, did not to build the case for one of the parties. For
instance, accused-appellant, in his brief, refers to the questions
propounded by the trial court on his of cajoling the child. A perusal of
the line of questioning referred to hardly shows bias on the part of the
trial court, but pure clarification.

In the third assigned error, accused-appellant questions the validity of

his arrest.

It is settled jurisprudence that any objection involving a warrant of arrest

or procedure in the acquisition by the court of jurisdiction over the
person of the accused must be made before he enters his plea,
otherwise the objection is deemed waived (People vs. Lopez, Jr., 245
SCRA 95[1995]). An accused should question the validity of his arrest
before he enters his plea in the trial court (Filoteo, Jr. vs.
Sandiganbayan, 263 SCRA 222 [1996]). He is estopped from
questioning any defect in the manner of his arrest if he fails to move for
the quashing of the information before the trial court (People vs.
Compil, 244 SCRA 135 [1995]) or if he voluntarily submits himself to the
jurisdiction of the court by entering a plea and by participating in the
trial (People vs. De Guzman, 22 4 SCRA 93 [1993); People vs. Lopez,
Jr., supra).
It does not appear in the record that accused-appellants raised this
matter before entering his plea of "not guilty" to the charge (pp. 63 & 67,
Record). Further, this issue was not even touched during the trial.

Lastly, accused-appellant, in his fourth assigned error, argues that the

trial court misinterpreted the financial assistance extended by his
parents as an attempt to settle the case. Accused-appellant even
banks on the alleged close relationship between Emeterio Obligar and
Raul Galleno as compadres, and the fact that Emeterio borrowed forty
pesos from Raul Galleno, despite the fact that Emeterio already knew
that accused-appellant caused the laceration in Evelyn's vagina.

Accused-appellant also draws attention to two incidents involving

alleged financial assistance extended by Raul Galleno to the spouses
Emeterio and Penicola Obligar. First, Emeterio Obligar, whom Raul
Galleno said is his compadre, borrowed P40.00 for fare going Roxas
City where Evelyn was confined. Decond, on August 20, 1994, Raul
Galleno and his wife and one of the brothers of Penicola Obligar went to
Roxas Memorial General Hospital. There he gave P400.00 financial
assistance to Penicola Obligar. Raul Galleno later admitted that the sum
of P440.00 was returned to him by the spouses. Accused-appellant
insists that these offers of financial assistance were not attempts at an
amicable settlement but were prompted out of a sincere desire on the
part of Raul Galleno to help the offended party.

We find no merit in the above-stated argument. It may be inferred that

Raul Galleno wanted to settle the case by offering an amount to the
spouses Obligar, to wit:

Q Now according to you, you were paid in the amount of Four Hundred
Pesos (P400.00) then you expected your Comareng Pening as financial
assistance to Evelyn Garganera, isn't it?

A Yes, Your Honor.

Q How long after August 19, 1994, that your Comareng Pening returned
to you the amount of Four Hundred Pesos (P400.00)?

A A week after when Evelyn had already checked up from the hospital.
Q It was given by you or as voluntary financial assistance, why did you
receive the amount or the payment returned to that amount of Four
Hundred Pesos (P400.00)?

A That was telling me that they refused already for the settlement of the
case.

Q And that is why they returned the amount of Four Hundred Pesos
(P400.00).

(tsn, pp. 29-30, May 12, 1995.)

From the above-stated clarificatory questions by the trial court, it may

gleaned that Raul Galleno no longer had any interest in aiding the
victim when he found that the Obligar spouses would still pursue the
case against his son, accused-appellant, and hence he found that his
offer for settlement was unavailing. Hence, on this point we likewise
agree with the trial court when it took the financial assistance to mean
an act of settling the case. This does manifest a father's attempt to
rescue his guilty son sure incarceration.

The nightmare that was forced into the tender mind of 5-year old Evelyn
Obligar Garganera may fortunately haunt her all her life. Justice may
not be able to save from this nightmare but it can calm and assure her
that her tormentor and abuser shall undoubtedly face retribution.

Four members of the Court - although maintaining their adherence to

the separate opinions expressed in People vs. Echegaray (G.R. No.
117472, February 7, 1997) that Republic Act No. 7659, insofar as it
prescribes the death penalty is unconstitutional - nevertheless submit to
the ruling of the Court, by a majority vote, that the law is constitutional
and that the death penalty should accordingly be imposed.

WHEREFORE, finding the conviction of accused-appellant justified by

the evidence on record, the assailed decision is hereby AFFIRMED in
toto.

In accordance with Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this decision, let
the record of the case be forthwith forwarded to the Office of the
President for possible exercise of the pardoning power.

SO ORDERED.

x--x

[G.R. No. 151857. April 28, 2005]

CALAMBA STEEL CENTER, INC. (formerly JS STEEL CORPORATION),

petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, respondent.
DECISION
PANGANIBAN, J.:

A tax refund may be claimed even beyond the taxable year following
that in which the tax credit arises. Hence, excess income taxes paid in
1995 that have not been applied to or used in 1996 may still be the
subject of a tax refund in 1997, provided that the claim for such refund
is filed with the internal revenue commissioner within two years after
payment of said taxes. As a caveat, the Court stresses that the
recognition of the entitlement to a tax refund does not necessarily mean
the automatic payment of the sum claimed in the final adjustment return
of the taxpayer. The amount of the claim must still be proven in the
normal course.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court,

assailing the January 10, 2002 Decision[2] of the Court of Appeals (CA)
in CA-GR SP No. 58838. The assailed Decision disposed as follows:

IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED

and the assailed Decision and Resolution are AFFIRMED. Costs against
Petitioner.[3]

The Facts
Quoting the Court of Tax Appeals (CTA), the CA narrated the
antecedents as follows:

Petitioner is a domestic corporation engaged in the manufacture of

steel blanks for use by manufacturers of automotive, electrical,
electronics in industrial and household appliances.

Petitioner filed an Amended Corporate Annual Income Tax Return on

June 4, 1996 declaring a net taxable income of P9,461,597.00, tax
credits of P6,471,246.00 and tax due in the amount of P3,311,559.00.

Petitioner also reported quarterly payments for the second and third
quarters of 1995 in the amounts of P2,328,747.26 and P1,082,108.00,
respectively.

It is the proposition of the [p]etitioner that for the year 1995, several of
its clients withheld taxes from their income payments to [p]etitioner and
remitted the same to the Bureau of Internal Revenue (BIR) in the sum of
P3,159,687.00. Petitioner further alleged that due to its income/loss
positions for the three quarters of 1996, it was unable to use the excess
tax paid for and in its behalf by the withholding agents.

Thus, an administrative claim was filed by the [p]etitioner on April 10,

1997 for the refund of P3,159,687.00 representing excess or unused
creditable withholding taxes for the year 1995. The instant petition was
subsequently filed on April 18, 1997.

Respondent, in his Answer, averred, among others, that:

1) Petitioner has no cause of action;

2) Petitioner failed to comply with the procedural requirements set out in

Section 5 of Revenue Regulations No. [(RR)] 12-94;

3) It is incumbent upon [p]etitioner to prove by competent and sufficient

evidence that the tax refund or tax credit being sought is allowed under
the National Internal Revenue Code and its implementing rules and
regulations; and
4) Claims for tax refund or tax credit are construed strictly against the
taxpayer as they partake the nature of tax exemption.

To buttress its claim, [p]etitioner presented documentary and

testimonial evidence. Respondent, on the other hand, presented the
[r]evenue [o]fficer who conducted the examination of [p]etitioners claim
and found petitioner liable for deficiency value added tax. Petitioner
also presented rebuttal evidence.

The sole issue submitted for [o]ur determination is whether or not

[p]etitioner is entitled to the refund of P3,159,687.00 representing
excess or overpaid income tax for the taxable year 1995.[4]

Ruling of the Court of Appeals

In denying petitioners refund, the CA reasoned out that no evidence

other than that presented before the CTA was adduced to prove that
excess tax payments had been made in 1995. From the inception of the
case to the formal offer of its evidence, petitioner did not present its
1996 income tax return to disclose its total income tax liability, thus
making it difficult to determine whether such excess tax payments were
utilized in 1996.

Hence, this Petition.[5]

The Issue

Petitioner raises this sole issue for our consideration:

Whether the Court of Appeals gravely erred when, while purportedly

requiring petitioner to submit its 1996 annual income tax return to
support its claim for refund, nonetheless ignored the existence of the
tax return extant on the record the authenticity of which has not been
denied or its admissibility opposed by the Commissioner of Internal
Revenue.[6]

The Courts Ruling

The Petition is partly meritorious.

Sole Issue:
Entitlement to Tax Refund

Section 69 of the National Internal Revenue Code (NIRC)[7] provides:

Sec. 69. Final adjustment return. -- Every corporation liable to tax under
Section 24 shall file a final adjustment return covering the total taxable
income for the preceding calendar or fiscal year. If the sum of the
quarterly tax payments made during the said taxable year is not equal
to the total tax due on the entire taxable net income of that year the
corporation shall either:

(a) Pay the excess tax still due; or

(b) Be refunded the excess amount paid, as the case may be.

In case the corporation is entitled to a refund of the excess estimated

quarterly income taxes paid, the refundable amount shown on its final
adjustment return may be credited against the estimated quarterly
income tax liabilities for the taxable quarters of the succeeding taxable
year.

Tax Refund
Allowed by NIRC

A perusal of this provision shows that a taxable corporation is entitled to

a tax refund when the sum of the quarterly income taxes it paid during a
taxable year exceeds its total income tax due also for that year.
Consequently, the refundable amount that is shown on its final
adjustment return may be credited, at its option, against its quarterly
income tax liabilities for the next taxable year.

Petitioner is a corporation liable to pay income taxes under Section 24

of the NIRC. Hence, it is a taxable corporation. In 1995, it reported that
it had excess income taxes that had been paid for and on its behalf by
its withholding agents; and that, applying the above-quoted Section 69,
this excess should be credited against its income tax liabilities for 1996.
However, it claimed in 1997 that it should get a refund, because it was
still unable to use the excess income taxes paid in 1995 against its tax
liabilities in 1996. Is this possible? Stating the argument otherwise, may
excess income taxes paid in 1995 that could not be applied to taxes
due in 1996 be refunded in 1997?

The answer is in the affirmative. Here are the reasons:

Claim of Tax Refund Beyond the

Succeeding Taxable Year

First, a tax refund may be claimed even beyond the taxable year
following that in which the tax credit arises.

No provision in our tax law limits the entitlement to such a refund, other
than the requirement that the filing of the administrative claim for it be
made by the taxpayer within a two-year prescriptive period. Section
204(3) of the NIRC states that no refund of taxes shall be allowed
unless the taxpayer files in writing with the Commissioner [the] claim for
x x x refund within two years after the payment of the tax.

Applying the aforequoted legal provisions, if the excess income taxes

paid in a given taxable year have not been entirely used by a taxable
corporation against its quarterly income tax liabilities for the next
taxable year, the unused amount of the excess may still be refunded,
provided that the claim for such a refund is made within two years after
payment of the tax. Petitioner filed its claim in 1997 -- well within the
two-year prescriptive period. Thus, its unused tax credits in 1995 may
still be refunded.

Even the phrase succeeding taxable year in the second paragraph of

the said Section 69 is a limitation that applies only to a tax credit, not a
tax refund. Petitioner herein does not claim a tax credit, but a tax
refund. Therefore, the statutory limitation does not apply.

Income Payments Merely

Declared Part of Gross Income

Second, to be able to claim a tax refund, a taxpayer only needs to

declare the income payments it received as part of its gross income
and to establish the fact of withholding.

Section 5 of RR 12-94[8] states:

xxxxxxxxx

(a) Claims for Tax Credit or Refund of income tax deducted and
withheld on income payments shall be given due course only when it is
shown on the return that the income payment received has been
declared as part of the gross income and the fact of withholding is
established by a copy of the Withholding Tax Statement duly issued by
the payor to the payee showing the amount paid and the amount of tax
withheld therefrom.

(b) Excess Credits. -- A taxpayer's excess expanded withholding tax

credits for the taxable quarter/taxable year shall automatically be
allowed as a credit for purposes of filing his income tax return for the
taxable quarter/taxable year immediately succeeding the taxable
quarter/taxable year in which the aforesaid excess credit arose,
provided, however, he submits with his income tax return a copy of his
income tax return for the aforesaid previous taxable period showing the
amount of his aforementioned excess withholding tax credits.

If the taxpayer, in lieu of the aforesaid automatic application of his

excess credit, wants a cash refund or a tax credit certificate for use in
payment of his other national internal tax liabilities, he shall make a
written request therefor. Upon filing of his request, the taxpayer's
income tax return showing the excess expanded withholding tax credits
shall be examined. The excess expanded withholding tax, if any, shall
be determined and refunded/credited to the taxpayer-applicant. The
refund/credit shall be made within a period of sixty (60) days from date
of the taxpayer's request provided, however, that the taxpayer-applicant
submitted for audit all his pertinent accounting records and that the
aforesaid records established the veracity of his claim for a refund/
credit of his excess expanded withholding tax credits.

That petitioner filed its amended 1995 income tax return in 1996 is
uncontested. In addition, the resulting investigation by the BIR on
August 15, 1997, reveals that the income accounts were correctly
declared based on the existing supporting documents.[9] Therefore,
there is no need for petitioner to show again the income payments it
received in 1995 as part of its gross income in 1996.
That petitioner filed its 1996 final adjustment return in 1997 is the crux of
the controversy. However, as will be demonstrated shortly, the lack of
such a return will not defeat its entitlement to a refund.

Tax Refund Provisions:

Question of Law

Third, it is a cardinal rule that only legal issues may be raised[10] in

petitions for review under Rule 45.[11]

The proper interpretation of the provisions on tax refund is a question of

law that does not call for an examination of the probative value of the
evidence presented by the parties-litigants.[12] Having been unable to
use the excess income taxes paid in 1995 against its other tax liabilities
in 1996, petitioner clearly deserves a refund. It cannot by any sweeping
denial be deprived of what rightfully belongs to it.

The truth or falsity of the contents of or entries in the 1996 final

adjustment return, which has not been formally offered in evidence and
examined by respondent, involves, however, a question of fact. This
Court is not a trier of facts. Neither is it a collection agency for the
government. Although we rule that petitioner is entitled to a tax refund,
the amount of that refund is a matter for the CTA to determine
judiciously based on the records that include its own copy of petitioners
1996 final adjustment return.

Liberal Construction
of Rules

Fourth, ordinary rules of procedure frown upon the submission of final

adjustment returns after trial has been conducted. However, both the
CTA law and jurisprudence mandate that the proceedings before the
tax court shall not be governed strictly by technical rules of evidence.
[13] As a rule, its findings of fact[14] (as well as that of the CA) are final,
binding and conclusive[15] on the parties and upon this Court;
however, as an exception, such findings may be reviewed or disturbed
on appeal[16] when they are not supported by evidence.[17]

Our Rules of Court apply by analogy or in a suppletory[18] character

and whenever practicable and convenient[19] and shall be liberally
construed in order to promote their objective of securing a just, speedy
and inexpensive disposition of every action and proceeding.[20] After
all, [t]he paramount consideration remains the ascertainment of truth.
[21]

In the present case, the 1996 final adjustment return was attached as
Annex A to the Reply to Comment filed by petitioner with the CA.[22]
The return shows a negative amount for its taxable income that year.
Therefore, it could not have applied or used the excess tax credits of
1995 against its tax liabilities in 1996.

Judicial Notice
of Attached Return

Fifth, the CA and CTA could have taken judicial notice of the 1996 final
adjustment return which had been attached in CTA Case No. 5799.
Judicial notice takes the place of proof and is of equal force.[23]

As a general rule, courts are not authorized to take judicial notice of the
contents of records in other cases tried or pending in the same court,
even when those cases were heard or are actually pending before the
same judge. However, this rule admits of exceptions, as when reference
to such records is sufficiently made without objection from the opposing
parties:

. . . [I]n the absence of objection, and as a matter of convenience to all

parties, a court may properly treat all or any part of the original record
of a case filed in its archives as read into the record of a case pending
before it, when, with the knowledge of the opposing party, reference is
made to it for that purpose, by name and number or in some other
manner by which it is sufficiently designated; or when the original
record of the former case or any part of it, is actually withdrawn from the
archives by the court's direction, at the request or with the consent of
the parties, and admitted as a part of the record of the case then
pending.[24]

Prior to rendering its Decision on January 12, 2000, the CTA was
already well-aware of the existence of another case pending before it,
involving the same subject matter, parties and causes of action.[25]
Because of the close connection of that case with the matter in
controversy, the CTA could have easily taken judicial notice[26] of the
contested document attached in that other case.

Furthermore, there was no objection raised to the inclusion of the said

1996 final adjustment return in petitioners Reply to Comment before the
CA. Despite clear reference to that return, a reference made with the
knowledge of respondent, the latter still failed to controvert petitioners
claim. The appellate court should have cast aside strict
technicalities[27] and decided the case on the basis of such
uncontested return. Verily, it had the authority to take judicial notice of
its records and of the facts [that] the record establishes.[28]

Section 2 of Rule 129 provides that courts may take judicial notice of
matters x x x ought to be known to judges because of their judicial
functions.[29] If the lower courts really believed that petitioner was not
entitled to a tax refund, they could have easily required respondent to
ascertain its veracity and accuracy[30] and to prove that petitioner did
not suffer any net loss in 1996.

Contrary to the contention of petitioner, BPI-Family Savings Bank v.

CA[31] (on which it rests its entire arguments) is not on all fours with the
facts of this case.

While the petitioner in that case also filed a written claim for a tax
refund, and likewise failed to present its 1990 corporate annual income
tax return, it nonetheless offered in evidence its top-ranking officials
testimony and certification pertaining to only two taxable years (1989
and 1990). The said return was attached only to its Motion for
Reconsideration before the CTA.

Petitioner in this case offered documentary and testimonial evidence

that extended beyond two taxable years, because the excess credits in
the first (1995) taxable year had not been used up during the second
(1996) taxable year, and because the claim for the refund of those
credits had been filed during the third (1997) taxable year. Its final
adjustment return was instead attached to its Reply to Comment filed
before the CA.

Moreover, in BPI-Family Savings Bank, petitioner was able to show the

undisputed fact: that petitioner had suffered a net loss in 1990 x x x.[32]
In the instant case, there is no such undisputed fact as yet. The mere
admission into the records of petitioners 1996 final adjustment return is
not a sufficient proof of the truth of the contents of or entries in that
return.

In addition, the BIR in BPI-Family Savings Bank did not controvert the
veracity of the return or file an opposition to the Motion and the return.
Despite the fact that the return was ignored by both the CA and the
CTA, the latter even declared in another case (CTA Case No. 4897) that
petitioner had suffered a net loss for taxable year 1990. When attached
to the Petition for Review filed before this Court, that Decision was not at
all claimed by the BIR to be fraudulent or nonexistent. The Bureau
merely contended that this Court should not take judicial notice of the
said Decision.

In this case, however, the BIR has not been given the chance to
challenge the veracity of petitioners final adjustment return. Neither has
the CTA decided any other case categorically declaring a net loss for
petitioner in taxable year 1996. After this return was attached to
petitioners Reply to Comment before the CA, the appellate court should
have required the filing of other responsive pleadings from respondent,
as was necessary and proper for it to rule upon the return.

Admissibility Versus Weight

Indeed, [a]dmissibility x x x is one thing, weight is another.[33] To admit

evidence and not to believe it are not incompatible with each other x x
x.[34] Mere allegations by petitioner of the figures in its 1996 final
adjustment return are not a sufficient proof of the amount of its refund
entitlement. They do not even constitute evidence[35] adverse to
respondent, against whom they are being presented.[36]

While it seems that the [non-production] of a document which courts

almost invariably expect will be produced unavoidably throws a
suspicion over the cause,[37] this is not really the conclusion to be
arrived at here. When petitioner purportedly filed its administrative claim
for a tax refund on April 10, 1997, the deadline for filing the 1996 final
adjustment return was not yet over. Hence, it could not have attached
this return to its claim.
For reasons unknown even to this Court, petitioner failed to offer such
return as evidence during the trial phase of this case. For its
negligence, petitioner cannot be allowed to seek refuge in a liberal
application of the [r]ules[38] by giving it a blanket approval of the total
refund it claims. While in certain instances, we allow a relaxation in the
application of the rules, we never intend to forge a weapon for erring
litigants to violate the rules with impunity. The liberal interpretation and
application of rules apply only in proper cases of demonstrable merit
and under justifiable causes and circumstances.[39]

It would not be proper to allow petitioner to simply prevail and compel a

refund in the amount it claims, without affording the government a
reasonable opportunity to contest the formers allegations.[40]
Negligence consisting of the unexplained failure to offer the exhibit
should not be rewarded with undeserved leniency. Petitioner still bears
the burden of proving the amount of its claim for tax refund. After all,
[t]ax refunds are in the nature of tax exemptions[41] and are to be
construed strictissimi juris against the taxpayer.

Finally, even in the absence of a final adjustment return or any claim for
a tax refund, respondent is authorized by law to examine any book,
paper, record or other data that may be relevant or material to such
inquiry.[42] Failure to make an assessment of petitioners proper tax
liability or to contest the return could be errors or omissions of
administrative officers that should never be allowed to jeopardize the
governments financial position.

Verily, the officers of the Bureau of Internal Revenue should receive the
support of the courts when these officers attempt to perform in a
conscientious and lawful manner the duties imposed upon them by law.
[43] Only after it is shown that if something is received when there is no
right to demand it, and it was duly delivered through mistake, the
obligation to return it arises.[44]

In brief, we hold that petitioner is entitled to a refund; however, the

amount must still be proved in proper proceedings before the CTA.

WHEREFORE, the Petition is hereby PARTLY GRANTED, and the

assailed Decision SET ASIDE. The case is REMANDED to the Court of
Tax Appeals for the proper and immediate determination of the amount
to be refunded to petitioner on the basis of the latters 1996 final
adjustment return. No pronouncement as to costs.

SO ORDERED.

x--x

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

-versus-

RODRIGO SALAFRANCA
y BELLO,
Accused-Appellant.
G.R. No. 173476

Present:

CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO,
BERSAMIN,
VILLARAMA, JR., and
*PERLAS-BERNABE, JJ.

Promulgated:

February 22, 2012

x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:
An ante-mortem declaration of a victim of murder, homicide, or
parricide that meets the conditions of admissibility under the Rules of
Court and pertinent jurisprudence is admissible either as a dying
declaration or as a part of the res gestae, or both.

Rodrigo Salafranca y Bello was charged with and tried for murder for
the fatal stabbing of Johnny Bolanon, and was ultimately found guilty of
the felony by the Regional Trial Court, Branch 18, in Manila on
September 23, 2004. On appeal, his conviction was affirmed by the
Court of Appeals (CA) through its decision promulgated on November
24, 2005.[1]

Salafranca has come to the Court on a final appeal, continuing to

challenge the credibility of the witnesses who had incriminated him.

The established facts show that past midnight on July 31, 1993 Bolanon
was stabbed near the Del Pan Sports Complex in Binondo, Manila; that
after stabbing Bolanon, his assailant ran away; that Bolanon was still
able to walk to the house of his uncle Rodolfo B. Estao in order to seek
help; that his uncle rushed him to the Philippine General Hospital by
taxicab; that on their way to the hospital Bolanon told Estao that it was
Salafranca who had stabbed him; that Bolanon eventually succumbed
at the hospital at 2:30 am despite receiving medical attention; and that
the stabbing of Bolanon was personally witnessed by Augusto
Mendoza, then still a minor of 13 years, who was in the complex at the
time.[2]

As stated, Salafranca fled after stabbing Bolanon. He evaded arrest for

a long period, despite the warrant for his arrest being issued. He was
finally arrested on April 23, 2003, and detained at the Manila City Jail.
After trial, the RTC convicted Salafranca, stating:

The evidence is clear that it was Rodrigo Salafranca who delivered two
(2) stabbing blows to the victim while holding Johnny Bolanon with his
left arm encircled around Bolanons neck stabbing the latter with the use
of his right hand at the right sub costal area which caused Bolanons
death. Not only because it was testified to by Augusto Mendoza but
corroborated by Rodolfo Estao, the victims uncle who brought Bolanon
to the hospital and who relayed to the court that when he aided
Bolanon and even on their way to the hospital while the latter was
suffering from hard breathing, victim Bolanon was able to say that it was
Rodrigo Salafranca who stabbed him.[3]

The RTC appreciated treachery based on the testimony of Prosecution

witness Mendoza on how Salafranca had effected his attack
against Bolanon, observing that by encircling his (accused) left arm,
while behind the victim on the latters neck and stabbing the victim with
the use of his right hand, Salafranca did not give Bolanon any
opportunity to defend himself.[4] The RTC noted inconsistencies in
Salafrancas and his witness testimonies, as well as the fact that he had
fled from his residence the day after the incident and had stayed away
in Bataan for eight years until his arrest. The RTC opined that had he
not been hiding, there would be no reason for him to immediately leave
his residence, especially because he was also working near the area.
[5]
The RTC disposed thus:

With the above observations and findings, accused Rodrigo Salafranca

is hereby found guilty of the crime of Murder defined and punished
under Article 248 as amended by Republic Act No. 7659 in relation to
Article 63 of the Revised Penal Code with the presence of the qualifying
aggravating circumstance of treachery (248 par. 1 as amended) without
any mitigating nor other aggravating circumstance attendant to its
commission, Rodrigo Salafranca is hereby sentenced to suffer the
penalty of reclusion perpetua.

He shall be credited with the full extent of his preventive imprisonment

under Article 29 of the Revised Penal Code.

His body is hereby committed to the custody of the Director of the

Bureau of Correction, National Penitentiary, Muntinlupa City thru the City
Jail Warden of Manila.

He is hereby ordered to indemnify the heirs of the victim the sum of

P50,000.00 representing death indemnity.
There being no claim of other damages, no pronouncement is hereby
made.

SO ORDERED.[6]

On appeal, the CA affirmed the findings and conclusions of the RTC,[7]

citing the dying declaration made to his uncle pointing to Salafranca as
his assailant,[8] and Salafrancas positive identification as the culprit by
Mendoza.[9] It stressed that Salafrancas denial and his alibi of being in
his home during the incident did not overcome the positive
identification, especially as his unexplained flight after the stabbing,
leaving his home and employment, constituted a circumstance highly
indicative of his guilt.[10]
Presently, Salafranca reiterates his defenses, and insists that the State
did not prove his guilt beyond reasonable doubt.

The appeal lacks merit.

Discrediting Mendoza and Estao as witnesses against Salafranca
would be unwarranted. The RTC and the CA correctly concluded that
Mendoza and Estao were credible and reliable. The determination of
the competence and credibility of witnesses at trial rested primarily with
the RTC as the trial court due to its unique and unequalled position of
observing their deportment during testimony, and of assessing their
credibility and appreciating their truthfulness, honesty and candor.
Absent a substantial reason to justify the reversal of the assessment
made and conclusions reached by the RTC, the CA as the reviewing
court was bound by such assessment and conclusions,[11]
considering that the CA as the appellate court could neither substitute
its assessment nor draw different conclusions without a persuasive
showing that the RTC misappreciated the circumstances or omitted
significant evidentiary matters that would alter the result.[12] Salafranca
did not persuasively show a misappreciation or omission by the RTC.
Hence, the Court, in this appeal, is in no position to undo or to
contradict the findings of the RTC and the CA, which were entitled to
great weight and respect.[13]

Salafrancas denial and alibi were worthless in the face of his positive
identification by Mendoza as the assailant of Bolanon. The lower courts
properly accorded full faith to such incrimination by Mendoza
considering that Salafranca did not even project any ill motive that
could have impelled Mendoza to testify against him unless it was upon
the truth.[14]

Based on Mendozas account, Salafranca had attacked Bolanon from

behind and had encircled his left arm over the neck (of Bolanon) and
delivered the stabbing blow using the right(hand) and coming from
wnnt (sic) up right sideways and another one encircling the blow
towards below the left nipple.[15] Relying on Mendozas recollection of
how Salafranca had attacked Bolanon, the RTC found treachery to be
attendant in the killing. This finding the CA concurred with. We join the
CAs concurrence because Mendozas eyewitness account of the
manner of attack remained uncontested by Salafranca who merely
insisted on his alibi. The method and means Salafranca employed
constituted a surprise deadly attack against Bolanon from behind and
included an aggressive physical control of the latters movements that
ensured the success of the attack without any retaliation or defense on
the part of Bolanon. According to the Revised Penal Code,[16]
treachery is present when the offender commits any of the crimes
against the person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make.

The Court further notes Estaos testimony on the utterance by Bolanon

of statements identifying Salafranca as his assailant right after the
stabbing incident. The testimony follows:

Q Can you tell what happened on the said date?

A My nephew arrived in our house with a stab wound on his left chest.

Q What time was that?

A 12:50 a.m.

Q When you saw your nephew with a stab wound, what did he say?

A Tito dalhin mo ako sa Hospital sinaksak ako.

Q What did you do?

A I immediately dressed up and brought him to PGH.

Q On the way to the PGH what transpired?

A While traveling toward PGH I asked my nephew who stabbed him?,

and he answered, Rod Salafranca.

Q Do you know this Rod Salafranca?

A Yes, Sir.

Q How long have you known him?

A Matagal na ho kasi mag-neighbor kami.

Q If you see him inside the courtroom will you be able to identify him?

A Yes, Sir.

Q Will you look around and point him to us?

A (Witness pointing to a man who answered by the name of Rod

Salafranca.)

COURT
When he told you the name of his assailant what was his condition?

A He was suffering from hard breathing so I told him not to talk anymore
because he will just suffer more.

Q What happened when you told him that?

A He kept silent.

Q What time did you arrive at the PGH?

A I cannot remember the time because I was already confused at that

time.

Q When you arrived at the PGH what happened?

A He was brought to Emergency Room.

Q When he was brought to the emergency room what happened?

A He was pronounced dead.[17]

It appears from the foregoing testimony that Bolanon had gone to the
residence of Estao, his uncle, to seek help right after being stabbed by
Salafranca; that Estao had hurriedly dressed up to bring his nephew to
the Philippine General Hospital by taxicab; that on the way to the
hospital, Estao had asked Bolanon who had stabbed him, and the latter
had told Estao that his assailant had been Salafranca; that at the time of
the utterance Bolanon had seemed to be having a hard time breathing,
causing Estao to advise him not to talk anymore; and that about ten
minutes after his admission at the emergency ward of the hospital,
Bolanon had expired and had been pronounced dead. Such
circumstances qualified the utterance of Bolanon as both a dying
declaration and as part of the res gestae, considering that the Court
has recognized that the statement of the victim an hour before his death
and right after the hacking incident bore all the earmarks either of a
dying declaration or part of the res gestae either of which was an
exception to the hearsay rule.[18]

A dying declaration, although generally inadmissible as evidence due

to its hearsay character, may nonetheless be admitted when the
following requisites concur, namely: (a) that the declaration must
concern the cause and surrounding circumstances of the declarants
death; (b) that at the time the declaration is made, the declarant is
under a consciousness of an impending death; (c) that the declarant is
competent as a witness; and (d) that the declaration is offered in a
criminal case for homicide, murder, or parricide, in which the declarant
is a victim.[19]

All the requisites were met herein. Bolanon communicated his ante-
mortem statement to Estao, identifying Salafranca as the person who
had stabbed him. At the time of his statement, Bolanon was conscious
of his impending death, having sustained a stab wound in the chest
and, according to Estao, was then experiencing great difficulty in
breathing. Bolanon succumbed in the hospital emergency room a few
minutes from admission, which occurred under three hours after the
stabbing. There is ample authority for the view that the declarants belief
in the imminence of his death can be shown by the declarants own
statements or from circumstantial evidence, such as the nature of his
wounds, statements made in his presence, or by the opinion of his
physician.[20] Bolanon would have been competent to testify on the
subject of the declaration had he survived. Lastly, the dying declaration
was offered in this criminal prosecution for murder in which Bolanon
was the victim.

A declaration or an utterance is deemed as part of the res gestae and

thus admissible in evidence as an exception to the hearsay rule when
the following requisites concur, to wit: (a) the principal act, the res
gestae, is a startling occurrence; (b) the statements are made before
the declarant had time to contrive or devise; and (c) the statements
must concern the occurrence in question and its immediately attending
circumstances.[21]

The requisites for admissibility of a declaration as part of the res gestae

concur herein. Surely, when he gave the identity of the assailant to
Estao, Bolanon was referring to a startling occurrence, i.e., his stabbing
by Salafranca. Bolanon was then on board the taxicab that would bring
him to the hospital, and thus had no time to contrive his identification of
Salafranca as the assailant. His utterance about Salafranca having
stabbed him was made in spontaneity and only in reaction to the
startling occurrence. The statement was relevant because it identified
Salafranca as the perpetrator.

The term res gestae has been defined as those circumstances which
are the undesigned incidents of a particular litigated act and which are
admissible when illustrative of such act.[22] In a general way, res
gestae refers to the circumstances, facts, and declarations that grow
out of the main fact and serve to illustrate its character and are so
spontaneous and contemporaneous with the main fact as to exclude
the idea of deliberation and fabrication.[23] The rule on res gestae
encompasses the exclamations and statements made by either the
participants, victims, or spectators to a crime immediately before,
during, or immediately after the commission of the crime when the
circumstances are such that the statements were made as a
spontaneous reaction or utterance inspired by the excitement of the
occasion and there was no opportunity for the declarant to deliberate
and to fabricate a false statement.[24] The test of admissibility of
evidence as a part of the res gestae is, therefore, whether the act,
declaration, or exclamation is so intimately interwoven or connected
with the principal fact or event that it characterizes as to be regarded
as a part of the transaction itself, and also whether it clearly negatives
any premeditation or purpose to manufacture testimony.[25]

We modify the limiting of civil damages by the CA and the RTC to only
the death indemnity of P50,000.00. We declare that the surviving heirs
of Bolanon were entitled by law to more than such indemnity, because
the damages to be awarded when death occurs due to a crime may
include: (a) civil indemnity ex delicto for the death of the victim (which
was granted herein); (b) actual or compensatory damages; (c) moral
damages; (d) exemplary damages; and (e) temperate damages.[26]

We hold that the CA and the RTC should have further granted moral
damages which were different from the death indemnity.[27] The death
indemnity compensated the loss of life due to crime, but appropriate
and reasonable moral damages would justly assuage the mental
anguish and emotional sufferings of the surviving family of the victim.
[28] Although mental anguish and emotional sufferings of the surviving
heirs were not quantifiable with mathematical precision, the Court must
nonetheless strive to set an amount that would restore the heirs of
Bolanon to their moral status quo ante. Given the circumstances, the
amount of P50,000.00 is reasonable as moral damages, which,
pursuant to prevailing jurisprudence,[29] we are bound to award
despite the absence of any allegation and proof of the heirs mental
anguish and emotional suffering. The rationale for doing so rested on
human nature and experience having shown that:

xxx a violent death invariably and necessarily brings about emotional

pain and anguish on the part of the victims family. It is inherently human
to suffer sorrow, torment, pain and anger when a loved one becomes
the victim of a violent or brutal killing. Such violent death or brutal killing
not only steals from the family of the deceased his precious life,
deprives them forever of his love, affection and support, but often
leaves them with the gnawing feeling that an injustice has been done to
them.[30]
The CA and the RTC committed another omission consisting in their
non-recognition of the right of the heirs of Bolanon to temperate
damages. It is already settled that when actual damages for burial and
related expenses are not substantiated by receipts, temperate
damages of at least P25,000.00 are warranted, for it would certainly be
unfair to the surviving heirs of the victim to deny them compensation by
way of actual damages.[31]
Moreover, the Civil Code provides that exemplary damages may be
imposed in criminal cases as part of the civil liability when the crime
was committed with one or more aggravating circumstances.[32] The
Civil Code permits such damages to be awarded by way of example or
correction for the public good, in addition to the moral, temperate,
liquidated or compensatory damages.[33] Conformably with such legal
provisions, the CA and the RTC should have recognized the entitlement
of the heirs of the victim to exemplary damages because of the
attendance of treachery. It was of no moment that treachery was an
attendant circumstance in murder, and, as such, inseparable and
absorbed in murder. The Court explained so in People v. Catubig:[34]

The term aggravating circumstances used by the Civil Code, the law
not having specified otherwise, is to be understood in its broad or
generic sense. The commission of an offense has a two-pronged effect,
one on the public as it breaches the social order and the other upon the
private victim as it causes personal sufferings, each of which is
addressed by, respectively, the prescription of heavier punishment for
the accused and by an award of additional damages to the victim. The
increase of the penalty or a shift to a graver felony underscores the
exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike
the criminal liability which is basically a State concern, the award of
damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an
award of exemplary damages to be due the private offended party
when the aggravating circumstance is ordinary but to be withheld when
it is qualifying. Withal, the ordinary or qualifying nature of an
aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the
offender. In fine, relative to the civil aspect of the case, an aggravating
circumstance, whether ordinary or qualifying, should entitle the
offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.

For the purpose of fixing the exemplary damages, the sum of

P30,000.00 is deemed reasonable and proper,[35] because we think
that a lesser amount could not result in genuine exemplarity.

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals

promulgated on November 24, 2005, but MODIFIES the awards of civil
damages by adding to the amount of P50,000.00 awarded as death
indemnity the amounts of P50,000.00 as moral damages; P25,000.00 as
temperate damages; and P30,000.00 as exemplary damages, all of
which awards shall bear interest of 6% per annum from the finality of
this decision.

The accused shall further pay the costs of suit.

SO ORDERED.

x--x

G.R. No. 179535, June 09, 2014

JOSE ESPINELI A.K.A. DANILO ESPINELI, Petitioner, v. PEOPLE OF

THE PHILIPPINES, Respondent.

RESOLUTION

DEL CASTILLO, J.:

Jurisprudence teaches us that for circumstantial evidence to be

sufficient to support a conviction, all circumstances must be consistent
with each other, consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with the hypothesis that he is
innocent x x x.1 Thus, conviction based on circumstantial evidence
can be upheld provided that the circumstances proven constitute an
unbroken chain which leads to one fair and reasonable conclusion that
points to the accused, to the exclusion of all others, as the guilty
person.2cralawred
Assailed in the present Petition for Review on Certiorari3 is the July 6,
2007 Decision4 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
02252 which modified the August 31, 1999 Decision5 of the Regional
Trial Court (RTC) of Imus, Cavite, Branch 90, by finding petitioner Jose
Espineli a.k.a. Danilo Danny Espineli (petitioner) guilty of the crime of
homicide instead of murder. Also questioned is the CAs September 14,
2007 Resolution6 denying petitioners Motion for Reconsideration.
7cralawred

Factual Antecedents

On June 24, 1997, an Information8 charging petitioner with the crime of

murder was filed before the RTC,9 the accusatory portion of which
reads as follows:ChanRoblesVirtualawlibrary

That on or about the 15th day of December, 1996 in the Municipality of

Imus, Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, together with one (1)
Sotero Paredes and three (3) other unidentified persons, whose real
names, identities and whereabouts are still unknown, said Sotero
Paredes having been earlier charged with the same offense, and is now
undergoing trial before Branch 90, of the Regional Trial Court of Cavite,
then armed with firearms, conspiring, confederating and mutually
helping one another, with intent to kill, with treachery and evident
premeditation and taking advantage of superior strength, did then and
there, willfully, unlawfully and feloniously, attack, assault and shoot one
Alberto Berbon y Downie with the use of said firearms, thereby inflicting
upon the latter multiple gunshot wounds on his head and different parts
of his body which caused his instantaneous death, to the damage and
prejudice of the heirs of said Alberto Berbon y Downie.

CONTRARY TO LAW.10

Petitioner was arrested on July 1, 1997 and when arraigned on July 7,

1997 with the assistance of counsel, entered a plea of not guilty.
11cralawred

The facts show that in the early evening of December 15, 1996, Alberto
Berbon y Downie (Alberto), a 49-year old Senior Desk Coordinator of
the radio station DZMM, was shot in the head and different parts of the
body in front of his house in Imus, Cavite by unidentified malefactors
who immediately fled the crime scene on board a waiting car.

Meanwhile, the group of Atty. Orly Dizon (Atty. Dizon) of the National
Bureau of Investigation (NBI) arrested and took into custody one
Romeo Reyes (Reyes) for the crime of Illegal Possession of Deadly
Weapon. Reyes confided to the group of Atty. Dizon that he was willing
to give vital information regarding the Berbon case. In due course, NBI
Agent Dave Segunial (NBI Agent Segunial) interviewed Reyes on
February 10, 1997 and reduced his statement into writing whereby
Reyes claimed that on December 15, 1996, he saw petitioner and
Sotero Paredes (Paredes) board a red car while armed with a .45
caliber firearm and armalite, respectively; and that petitioner told
Paredes that ayaw ko nang abutin pa ng bukas yang si Berbon.12
Subsequently, Reyes posted bail and was released on February 14,
1997. Thenceforth, he jumped bail and was never again heard of. NBI
Agent Segunial testified on these facts during the trial.

The victims widow, Sabina Berbon (Sabina) likewise testified.

According to her, sometime in the third week of February 1997 Reyes
sought financial help so he could transfer his family to the province and
protect them from any untoward consequence that may result from his
giving information to the NBI regarding the death of Sabinas husband.
Sabina gave him the total amount of P1,500.00 and promised to help
him in applying for the witness protection program. This was affirmed
on the witness stand by Sabinas brother, Bartolome Pakingan. After
that, however, Reyes never came back.

Another prosecution witness, Rodolfo Dayao (Rodolfo), testified that he

sold his red Ford Escort car to three persons who came to his
residence in the afternoon of September 1, 1996. He later identified the
said car from the photographs presented to him by the police officers.

Dr. Ludivino J. Lagat (Dr. Lagat), the NBI Medico-Legal Officer who
conducted a post-mortem examination on Alberto, declared in his
Autopsy Report that the victim suffered multiple gunshot wounds in the
head and body. He also stated that based on the size of the gunshot
wounds or entrance, high-powered guns were used in the killing.
Petitioner, on the other hand, did not adduce evidence for his defense.
Instead, he filed a Demurrer to Evidence13 without leave of court. As
no action whatsoever was taken thereon by the trial court, petitioner just
moved that the case be deemed submitted for decision.

Ruling of the Regional Trial Court

In its Decision14 dated August 31, 1999, the trial court adjudged
petitioner guilty of murder, thus:ChanRoblesVirtualawlibrary

WHEREFORE, premises considered, accused JOSE ESPINELI a.k.a.

DANILO Danny Espineli, is found guilty beyond reasonable doubt of
committing the crime of Murder as charged. He is, therefore,
sentenced to suffer the penalty of RECLUSION PERPETUA, and is
likewise ordered to pay the heirs of Alberto Berbon y Downie, the civil
indemnity of P50,000.00, and actual and compensatory damages in the
total amount of P135,000.00 as funeral expenses (Exhibit H),
interment fee of P8,360.00 (Exhibit C), medical expenses in the total
amount of P1,519.45 (Exhibit[s] D, D-1 and D-2) and for the
contract fees of Memorial Park Care the amount of P15,700.00 (Exhibit
E).

Furthermore, considering that he is a high risk prisoner, his transfer to

the National Penitentiary at Muntinlupa City, Metro Manila, is
immediately ordered.

SO ORDERED.15

Petitioner seasonably appealed his conviction before this Court.

Pursuant, however, to the Courts pronouncement in People v. Mateo,16
the case was ordered transferred to the CA for appropriate action and
disposition through a Resolution17 dated March 22, 2006.

Ruling of the Court of Appeals

In its Decision18 promulgated on July 6, 2007, the CA affirmed with

modification the findings of the trial court. It ratiocinated that since
none of the prosecution witnesses saw how the killing of the victim was
perpetrated, the qualifying circumstance of abuse of superior strength
cannot be appreciated. Neither can nighttime serve as an aggravating
circumstance as the time of the commission of the crime was not even
alleged in the Information. In view thereof, the CA found petitioner
guilty only of homicide instead of murder. The decretal portion of the
appellate courts Decision reads:ChanRoblesVirtualawlibrary

WHEREFORE, premises considered, the present appeal is hereby

DISMISSED. The appealed Decision dated August 31, 1999 of the
Regional Trial Court of Imus, Cavite, Branch 90 is hereby AFFIRMED
with MODIFICATION in that accused-appellant is hereby found GUILTY
beyond reasonable doubt of the crime of Homicide and is hereby
sentenced to an indeterminate prison term of ten (10) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of
reclusion temporal, as maximum.

In all other respects, the said decision STANDS.

In the service of his sentence, accused-appellant shall be credited in

full with the period of his preventive imprisonment.

With costs against the accused-appellant.

SO ORDERED.19

Dissatisfied, petitioner filed a Motion for Reconsideration20 which the

CA denied in its Resolution21 dated September 14, 2007.

Hence, this Petition.

Arguments of the Parties

Petitioner posits that the CA should not have affirmed the Decision of
RTC as the latter erred:ChanRoblesVirtualawlibrary

x x x [in admitting, considering and giving] probative value to Exhibit

A, the Sinumpaang Salaysay of [Reyes] because [he] was not
presented in court to confirm, affirm and authenticate the contents of
his sworn statement. It resulted in the denial of petitioners
constitutional right to confront and cross-examine his accusers.
22cralawred
x x x [in convicting] the [petitioner] based on unproven, inadmissible
circumstantial evidence.23cralawred

x x x in not acquitting the petitioner for failure of the prosecution to

prove [his guilt] beyond reasonable doubt x x x.24

In sum, petitioner anchors his quest for the reversal of his conviction on
the alleged erroneous admission in evidence of the Sinumpaang
Salaysay25 of Reyes for being hearsay and inadmissible. He avers that
the said sworn statement should not have been given probative value
because its contents were neither confirmed nor authenticated by the
affiant. Thus, all circumstances emanating from or included in the sworn
statement must be totally brushed aside as lacking any evidentiary and
probative value. Petitioner emphasizes that as found by the courts
below, there was no direct evidence linking him to the crime; therefore,
he wants this Court to review the sufficiency of the circumstantial
evidence upon which his conviction was based as he believes that the
same failed to establish his guilt beyond reasonable doubt.

For its part, the Office of the Solicitor General (OSG), representing
respondent People of the Philippines, concurs with the petitioner and
recommends his acquittal.26 It is also of the view that the prosecution
failed to discharge its burden of proving petitioners guilt beyond
reasonable doubt.

The Courts Ruling

The Petition is devoid of merit.

Truly, direct evidence of the commission of a crime is not the only basis
from which a court may draw its finding of guilt.27 The rules of
evidence allow a trial court to rely on circumstantial evidence to support
its conclusion of guilt. Circumstantial evidence is that evidence which
indirectly proves a fact in issue through an inference which the fact-
finder draws from the evidence established.28 Under Section 4, Rule
133 of the Rules of Court, circumstantial evidence would be sufficient to
convict the offender if i) there is more than one circumstance; ii) the
facts from which the inference is derived are proven; and iii) the
combination of all circumstances is such as to produce a conviction
beyond reasonable doubt.29 All the circumstances must be
consistent with one another, consistent with the hypothesis that the
accused is guilty and at the same time inconsistent with the hypothesis
that he is innocent. Thus, conviction based on circumstantial evidence
can be upheld provided that the circumstances proved constitute an
unbroken chain which leads to one fair and reasonable conclusion that
points to the accused, to the exclusion of all others as the guilty person.
30cralawred

In this case, the circumstances found by the CA as forming an

unbroken chain leading to one fair and reasonable conclusion that
petitioner, to the exclusion of all others, is the guilty person are the
following:

1. In the morning of December 15, 1996, petitioner was heard telling

his co-accused Sotero Paredes (Sotero) ayaw ko nang abutin pa ng
bukas yang si Berbon before boarding a red car. Sotero was holding
an armalite rifle while petitioner was armed with a .45 caliber pistol;

2. The said red car was identified or recognized by prosecution

witness Rodolfo to be the same car he had sold to Sotero for
P10,000.00 in September 1996;

3. The victim Alberto was fatally shot later in the day (December 15,
1996) by unidentified gunmen who thereafter immediately fled riding a
red car; and

4. Post-mortem examination of the victims body showed that he

sustained multiple gunshot wounds, the nature, severity and
characteristics of which indicate that they were inflicted using high-
powered guns, possibly an armalite rifle and .22 caliber pistol.
31cralawred

The records reveal that there was no eyewitness to the actual killing of
Alberto. Thus the courts below were forced to render their verdict of
conviction on circumstantial evidence as sanctioned under Section 4,
Rule 13332 of the Rules of Court. The central issue now confronting
this Court is whether the prosecution has amply proved by
circumstantial evidence petitioners guilt beyond reasonable doubt.

The circumstantial evidence relied upon

by the Court of Appeals sufficiently support
petitioners conviction.

The Court has carefully scrutinized the evidence presented in this case
in the light of the standards discussed above and finds the foregoing
circumstantial evidence sufficient to support a judgment of conviction.
Several reasons deserve our acceptance of the circumstances upon
which petitioners conviction was based, to wit:

First, NBI Agent Segunial testified that he had investigated Reyes and
reduced the latters statement into writing declaring, among others, that
in the morning of December 15, 1996, he (Reyes) overheard petitioner
telling Sotero Ayaw ko nang abutin pa ng bukas yang si Berbon and
saw them armed with .45 caliber pistol and an armalite, respectively,
before boarding a red car. The CA gave weight to Reyes sworn
statement in this wise:ChanRoblesVirtualawlibrary

The probative value of Romeo Reyes sworn statement as to the words

spoken by appellant to his co-accused Sotero Paredes in the morning
of December 15, 1996 cannot be disputed. x x x33

Petitioner takes vigorous exception to the said findings, insisting that

the said sworn statement belongs to the category of hearsay evidence
and therefore inadmissible. He asserts that its contents were never
confirmed or authenticated by Reyes, thus, it lacks probative value.

The Court is unconvinced.

The hearsay evidence rule as provided under Section 36, Rule 130 of
the Rules of Court states:ChanRoblesVirtualawlibrary

Sec. 36. Testimony generally confined to personal knowledge; hearsay

excluded. A witness can testify only to those facts which he knows of
his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules.

Evidence is hearsay when its probative force depends in whole or in

part on the competency and credibility of some persons other than the
witness by whom it is sought to produce. However, while the testimony
of a witness regarding a statement made by another person given for
the purpose of establishing the truth of the fact asserted in the
statement is clearly hearsay evidence, it is otherwise if the purpose of
placing the statement on the record is merely to establish the fact that
the statement, or the tenor of such statement, was made. Regardless
of the truth or falsity of a statement, when what is relevant is the fact that
such statement has been made, the hearsay rule does not apply and
the statement may be shown. As a matter of fact, evidence as to the
making of the statement is not secondary but primary, for the statement
itself may constitute a fact in issue or is circumstantially relevant as to
the existence of such a fact.34 This is known as the doctrine of
independently relevant statements.35cralawred

In the present case, the testimony of NBI Agent Segunial that while he
was investigating Reyes, the latter confided to him that he (Reyes)
heard petitioner telling Sotero Ayaw ko nang abutin pa ng bukas yang
si Berbon and that he saw the two (petitioner and Sotero) armed with a
.45 caliber pistol and an armalite, respectively, before boarding a red
car, cannot be regarded as hearsay evidence. This is considering that
NBI Agent Segunials testimony was not presented to prove the truth of
such statement but only for the purpose of establishing that on
February 10, 1997, Reyes executed a sworn statement containing such
narration of facts. This is clear from the offer of the witness oral
testimony.36 Moreover, NBI Agent Segunial himself candidly admitted
that he is incompetent to testify on the truthfulness of Reyes statement.
37 Verily then, what the prosecution sought to be admitted was the fact
that Reyes made such narration of facts in his sworn statement and not
necessarily to prove the truth thereof. Thus, the testimony of NBI Agent
Segunial is in the nature of an independently relevant statement where
what is relevant is the fact that Reyes made such statement and the
truth and falsity thereof is immaterial. In such a case, the statement of
the witness is admissible as evidence and the hearsay rule does not
apply.38 Moreover, the written statement of Reyes is a notarized
document having been duly subscribed and sworn to before Atty.
Cesar A. Bacani, a supervising agent of the NBI. As such, it may be
presented in evidence without further proof, the certificate of
acknowledgment being a prima facie evidence of the due execution of
this instrument or document involved pursuant to Section 30 of Rule 132
of the Rules of Court. As held in Gutierrez v. Mendoza-Plaza,39 a
notarized document enjoys a prima facie presumption of authenticity
and due execution which must be rebutted by clear and convincing
evidence. Here, no clear and convincing evidence was presented by
petitioner to overcome such presumption. Clearly, therefore, the CA did
not err in its appreciation of Reyes sworn statement as testified to by
NBI Agent Segunial.

Second, the identification and recognition through photograph by

Rodolfo of the 1971 Ford Escort red colored car as the same car he
had sold to Sotero in September 1996 clearly and convincingly prove
that it was the very same red car used in the killing of Alberto on
December 15, 1996.

Third, Alberto was shot and killed on December 15, 1996 and the
gunmen immediately fled the scene riding a red car which was
identified as the same car previously sold by Rodolfo to Sotero.

Fourth, though the testimony of Dr. Lagat was limited to the post-
mortem examination of the cadaver of Alberto, his findings that the
victim suffered multiple gunshot wounds and that the same were
caused by high-powered guns, served as corroborative evidence and
contributed in a significant way in establishing the level of proof that the
law requires in convicting petitioner.

Lastly, petitioners escape from detention on August 26, 1998 while the
case was pending can also be considered as another circumstance
since it is a strong indication of his guilt.

All told, this Court finds the concordant combination and cumulative
effect of the alleged established circumstances, which essentially were
the same circumstances found by the trial court and the appellate
court, to have satisfied the requirement of Section 4, Rule 133 of the
Rules of Court. Indeed, the incriminating circumstances, when taken
together, constitute an unbroken chain of events enough to arrive at the
conclusion that petitioner was responsible for the killing of the victim.

Besides, it is [a]n established rule in appellate review x x x that the trial

courts factual findings, including its assessment of the credibility of the
witnesses and the probative weight of their testimonies, as well as the
conclusions drawn from the factual findings, are accorded respect, if
not conclusive effect. These factual findings and conclusions assume
greater weight if they are affirmed by the CA,40 as in this case.
The Crime Committed and the Proper Penalty.

The Court agrees with the CA that petitioner is guilty only of the crime of
homicide in view of the prosecutions failure to prove any of the alleged
attendant circumstances of abuse of superior strength and nighttime.
As aptly observed by the appellate court:ChanRoblesVirtualawlibrary

The circumstance of abuse of superior strength is present whenever

there is inequality of forces 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. However, as none of the prosecution witnesses saw how
the killing was perpetrated, abuse of superior strength cannot be
appreciated in this case. Neither can nighttime serve as an aggravating
circumstance, the time of the commission of the crime was not even
alleged in the Information.41 (Citations omitted)

The penalty prescribed by law for the crime of homicide is reclusion

temporal.42 In view of the absence of any mitigating or aggravating
circumstance and applying the Indeterminate Sentence Law, the
maximum of the sentence should be within the range of reclusion
temporal in its medium term which has a duration of fourteen (14)
years, eight (8) months and one (1) day to seventeen (17) years and
four (4) months, while the minimum should be within the range of prision
mayor which has a duration of six (6) years and one (1) day to twelve
(12) years. Thus, the imposition by the CA of an indeterminate prison
term of ten (10) years of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum, is in
order.

Petitioners Civil liability

While the CA correctly imposed the amount of P50,000.00 as civil

indemnity, it failed, however, to award moral damages. These awards
are mandatory without need of allegation and proof other than the death
of the victim, owing to the fact of the commission of murder or
homicide.43 Thus, for moral damages, the award of P50,000.00 to the
heirs of the victim is only proper.
Anent the award of actual damages, this Court sees no reason to
disturb the amount awarded by the trial court as upheld by the CA
since the itemized medical and burial expenses were duly supported
by receipts and other documentary evidence.

The CA did not grant any award of damages for loss of earning
capacity and rightly so. Though Sabina testified as to the monthly
salary of the deceased, the same remains unsubstantiated. Such
indemnity cannot be awarded in the absence of documentary evidence
except where the victim was either self-employed or a daily wage
worker earning less than the minimum wage under current labor
laws.44 The exceptions find no application in this case.

In addition and in conformity with current policy, an interest at the legal

rate of 6% per annum is imposed on all the monetary awards for
damages from date of finality of this judgment until fully paid.

WHEREFORE, in light of all the foregoing, the Petition is hereby

DENIED. The Decision dated July 6, 2007 and Resolution dated
September 14, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No.
02252 are AFFIRMED with the MODIFICATIONS that petitioner JOSE
ESPINELI a.k.a. DANILO DANNY ESPINELI is further ordered to pay
the heirs of the victim ALBERTO BERBON y DOWNIE P50,000.00 as
moral damages as well as interest on all the damages assessed at the
legal rate of 6% per annum from date of finality of this judgment until
fully paid.

SO ORDERED.

x--x

G.R. No. 207662, April 13, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee, v. FABIAN

URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA,
Accused.

FABIAN URZAIS Y LANURIAS, Accused-Appellant.

DECISION

PEREZ, J.:

Before us for review is the Decision1 of the Court of Appeals (CA) in

C.A. G.R. CR.-H.C. No. 04812 dated 19 November 2012 which
dismissed the appeal of accused-appellant Fabian Urzais y Lanurias
and affirmed with modification the Judgment2 of the Regional Trial
Court (RTC) of Cabanatuan City, Branch 27, in Criminal Case No. 13155
finding accused-appellant guilty beyond reasonable doubt of the crime
of carnapping with homicide through the use of unlicensed firearm.

Accused-appellant, together with co-accused Alex Bautista and Ricky

Bautista, was charged with Violation of Republic Act (R.A.) No. 6539,
otherwise known as the Anti-Carnapping Act of 1972, as amended by
R.A. No. 7659, with homicide through the use of an unlicensed firearm.
The accusatory portion of the Information reads as follows:
chanRoblesvirtualLawlibrary

That on or about the 13th day of November, 2002, or prior thereto, in the
City of Cabanatuan, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating with and abetting one another, with intent to
gain and by means of force, violence and intimidation, did then and
there, wilfully, unlawfully and feloniously take, steal and carry away, a
Isuzu Highlander car, colored Forest Green, with Plate No. UUT-838 of
one MARIO MAGDATO, valued at FIVE HUNDRED THOUSAND PESOS
(P500,000.00) Philippine Currency, owned by and belonging to said
MARIO MAGDATO, against his will and consent and to his damage and
prejudice in the aforestated amount of P500,000.00, and on the
occasion of the carnapping, did assault and use personal violence
upon the person of one MARIO MAGDATO, that is, by shooting the
latter with an unlicensed firearm, a Norinco cal. 9mm Pistol with Serial
No. 508432, thereby inflicting upon him gunshot wound on the head
which caused his death.3ChanRoblesVirtualawlibrary
At his arraignment, accused-appellant pleaded not guilty. The trial
proceeded against him. His two co-accused remain at large.
The prosecution presented as witnesses Shirley Magdato (Shirley),
Senior Police Officer 2 Fernando Figueroa (SPO2 Figueroa) and Dr. Jun
Concepcion (Dr. Concepcion).

Shirley, the widow of the victim, testified mainly regarding her

husband's disappearance and discovery of his death. She narrated
that her husband used to drive for hire their Isuzu Highlander with plate
number UUT-838 from Pulilan, Bulacan to the LRT Terminal in Metro
Manila. On 12 November 2002, around four o'clock in the morning, her
husband left their house in Pulilan and headed for the terminal at the
Pulilan Public Market to ply his usual route. When her husband did not
return home that day, Shirley inquired of his whereabouts from his
friends to no avail. Shirley went to the terminal the following day and the
barker there told her that a person had hired their vehicle to go to
Manila. Shirley then asked her neighbors to call her husband's mobile
phone but no one answered. At around 10 o'clock in the morning of 13
November 2002, her husband's co-members in the drivers' association
arrived at their house and thereafter accompanied Shirley to her
husband's supposed location. At the Sta.Rosa police station in Nueva
Ecija, Shirley was informed that her husband had passed away. She
then took her husband's body home.4 Shirley retrieved their vehicle on
21 November 2002 from the Cabanatuan City Police Station. She then
had it cleaned as it had blood stains and reeked of a foul odor.5

SPO2 Figueroa of the Philippine National Police (PNP), Cabanatuan

City, testified concerning the circumstances surrounding accused-
appellant's arrest. He stated that in November 2002, their office
received a "flash alarm" from the Bulacan PNP about an alleged
carnapped Isuzu Highlander in forest green color. Thereafter, their
office was informed that the subject vehicle had been seen in the AGL
Subdivision, Cabanatuan City. Thus, a team conducted surveillance
there and a checkpoint had been set up outside its gate. Around three
o'clock in the afternoon of 20 November 2002, a vehicle that fit the
description of the carnapped vehicle appeared. The officers
apprehended the vehicle and asked the driver, accused-appellant, who
had been alone, to alight therefrom. When the officers noticed the
accused-appellant's waist to be bulging of something, he was ordered
to raise his shirt and a gun was discovered tucked there. The officers
confiscated the unlicensed 9mm Norinco, with magazine and twelve
(12) live ammunitions. The officers confirmed that the engine of the
vehicle matched that of the victim's. Found inside the vehicle were two
(2) plates with the marking "UUT-838" and a passport. Said vehicle
contained traces of blood on the car seats at the back and on its
flooring. The officers detained accused-appellant and filed a case for
illegal possession of firearm against him. The subject firearm was
identified in open court.6

Dr. Concepcion testified about the wounds the victim sustained and the
cause of his death. He stated that the victim sustained one (1) gunshot
wound in the head, the entrance of which is at the right temporal area
exiting at the opposite side. The victim also had several abrasions on
the right upper eyelid, the tip of the nose and around the right eye. He
also had blisters on his cheek area which could have been caused by a
lighted cigarette.7

Accused-appellant testified in his defense and interposed the defense

of denial.

Accused-appellant testified that he had ordered in October 2002 from

brothers Alex and Ricky Bautista, an owner-type jeepney worth
P60,000.00 for use in his business. The brothers, however, allegedly
delivered instead a green Isuzu Highlander around half past three
o'clock in the afternoon of 13 November 2002. The brothers told
accused-appellant that his P60,000.00 would serve as initial payment
with the remaining undetermined amount to be paid a week after.
Accused-appellant agreed to this, amazed that he had been given a
new vehicle at such low price. Accused-appellant then borrowed
money from someone to pay the balance but the brothers never replied
to his text messages. On 16 November 2002, his friend Oscar Angeles
advised him to surrender the vehicle as it could be a "hot car."
Accused-appellant was initially hesitant to this idea as he wanted to
recover the amount he had paid but he eventually decided to sell the
vehicle. He removed its plate number and placed a "for sale" sign at the
back. On 18 November 2002, he allegedly decided to surrender the
vehicle upon advice by a certain Angie. But when he arrived home in
the afternoon of that day, he alleged that he was arrested by Alex
Villareal, a member of the Criminal Investigation and Detection Group
(CIDG) of Sta. Rosa, Nueva Ecija.8 Accused-appellant also testified
that he found out in jail the owner of the vehicle and his unfortunate
demise.9 On cross-examination, accused-appellant admitted that his
real name is "Michael Tapayan y Baguio" and that he used the name
Fabian Urzais to secure a second passport in 2001 to be able to return
to Taiwan.10

The other defense witness, Oscar Angeles (Angeles), testified that he

had known the accused-appellant as Michael Tapayan when they
became neighbors in the AGL subdivision. Accused-appellant also
served as his computer technician. Angeles testified that accused-
appellant previously did not own any vehicle until the latter purchased
the Isuzu Highlander for P30,000.00 from the latter's friends in Bulacan.
Angeles advised accused-appellant that the vehicle might have been
carnapped due to its very low selling price. Angeles corroborated
accused-appellant's testimony that he did not want to surrender the car
at first as he wanted to recover his payment for it.11

On 18 October 2010, the RTC rendered judgment finding accused-

appellant guilty of the crime charged. The RTC anchored its ruling on
the disputable presumption that a person found in possession of a thing
taken in the doing of a recent wrongful act is the taker and the doer of
the whole act.12 It held that the elements of carnapping were proven by
the prosecution beyond reasonable doubt through the recovery of the
purportedly carnapped vehicle from the accused-appellant's
possession and by his continued possession thereof even after the
lapse of one week from the commission of the crime.13 The dispositive
portion of the RTC Decision reads:
chanRoblesvirtualLawlibrary
WHEREFORE, in view of all the foregoing, the Court finds accused
Fabian Urzais alias Michael Tapayan y Lanurias GUILTY beyond
reasonable doubt of the crime of carnapping as defined and penalized
by Republic Act 6539 (Anti-Carnapping Act of 1972) as amended by
R.A. 7659 with homicide thru the use of unlicensed firearm.
Accordingly, he is hereby sentenced to suffer imprisonment of forty (40)
years of reclusion perpetua.

In the service of the sentence, accused shall be credited with the full
time of his preventive detention if he agreed voluntarily and in writing to
abide by the disciplinary rules imposed upon convicted prisoners
pursuant to Article 29 of the Revised Penal Code.
Accused is further sentenced to indemnify the heirs of Mario Magdato
the sum of Php50,000.00 as death indemnity, Php50,000.00 as moral
damages, and Php672,000.00 as loss of earning capacity.
14ChanRoblesVirtualawlibrary
Accused-appellant filed a Notice of Appeal on 22 December 2010.15

On 19 November 2012, the CA rendered the assailed judgment

affirming with modification the trial court's decision. The CA noted the
absence of eyewitnesses to the crime yet ruled that sufficient
circumstantial evidence was presented to prove accused-appellant's
guilt, solely, accused-appellant's possession of the allegedly
carnapped vehicle.

Accused-appellant appealed his conviction before this Court. In a

Resolution16 dated 12 August 2013, accused-appellant and the Office
of the Solicitor General (OSG) were asked to file their respective
supplemental briefs if they so desired. Accused-appellant filed a
Supplemental Brief17 while the OSG manifested18 that it adopts its
Brief19 filed before the CA for the purpose of the instant appeal.

Before the Court, accused-appellant vehemently maintains that there is

no direct evidence that he robbed and murdered the victim; and that
the lower courts erred in convicting him based on circumstantial
evidence consisting only of the fact of his possession of the allegedly
carnapped vehicle. Accused-appellant decries the appellate court's
error in relying on the disputable presumption created by law under
Section 3 (j), Rule 131 of the Rules of Court to conclude that by virtue of
his possession of the vehicle, he is considered the author of both the
carnapping of the vehicle and the killing of its owner. Accused-
appellant asserts that such presumption does not hold in the case at
bar.

The Court agrees.

Every criminal conviction requires the prosecution to prove two (2)

things: 1. The fact of the crime, i.e. the presence of all the elements of
the crime for which the accused stands charged; and (2) the fact that
the accused is the perpetrator of the crime. The Court finds the
prosecution unable to prove both aspects, thus, it is left with no option
but to acquit on reasonable doubt.
R.A. No. 6539, or the Anti-Carnapping Act of 1972, as amended,
defines carnapping as the taking, with intent to gain, of a motor vehicle
belonging to another without the latter's consent, or by means of
violence against or intimidation against persons, or by using force upon
things.20 By the amendment in Section 20 of R.A. No. 7659, Section 14
of the Anti-Carnapping Act now reads:
chanRoblesvirtualLawlibrary
SEC. 14. Penally for Carnapping. Any person who is found guilty of
carnapping, as this term is defined in Section two of this Act, shall,
irrespective of the value of the motor vehicle taken, be punished by
imprisonment for not less than fourteen years and eight months and not
more than seventeen years and four months, when the carnapping is
committed without violence or intimidation of persons, or force upon
things, and by imprisonment for not less than seventeen years and four
months and not more than thirty years, when the carnapping is
committed by means of violence or intimidation of any person, or force
upon things; and the penalty of reclusion perpetua to death shall be
imposed when the owner, driver or occupant of the carnapped motor
vehicle is killed or raped in the course of the commission of the
carnapping or on the occasion thereof. (Emphasis supplied)
Three amendments have been made to the original Section 14 of the
Anti-Carnapping Act: (1) the penalty of life imprisonment was changed
to reclusion perpetua, (2) the inclusion of rape, and (3) the change of
the phrase "in the commission of the carnapping" to "in the course of
the commission of the carnapping or on the occasion thereof." This third
amendment clarifies the law's intent to make the offense a special
complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of the
Revised Penal Code on robbery with violence against or intimidation of
persons. Thus, under the last clause of Section 14 of the Anti-
Carnapping Act, the prosecution has to prove the essential requisites of
carnapping and of the homicide or murder of the victim, and more
importantly, it must show that the original criminal design of the culprit
was carnapping and that the killing was perpetrated "in the course of
the commission of the carnapping or on the occasion thereof."
Consequently, where the elements of carnapping are not proved, the
provisions of the Anti-Carnapping Act would cease to be applicable
and the homicide or murder (if proven) would be punishable under the
Revised Penal Code.21
In the instant case, the Court finds the charge of carnapping
unsubstantiated for failure of the prosecution to prove all its elements.
For one, the trial court's decision itself makes no mention of any direct
evidence indicating the guilt of accused-appellant. Indeed, the CA
confirmed the lack of such direct evidence.22 Both lower courts solely
based accused-appellant's conviction of the special complex crime on
one circumstantial evidence and that is, the fact of his possession of
the allegedly carnapped vehicle.

The Court notes that the prosecution's evidence only consists of the
fact of the victim's disappearance, the discovery of his death and the
details surrounding accused-appellant's arrest on rumors that the
vehicle he possessed had been carnapped. Theres is absolutely no
evidence supporting the prosecution's theory that the victim's vehicle
had been carnapped, much less that the accused-appellant is the
author of the same.

Certainly, it is not only by direct evidence that an accused may be

convicted, but for circumstantial evidence to sustain a conviction,
following are the guidelines: (1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proven; and (3)
the combination of all the circumstances is as such as to produce a
conviction beyond reasonable doubt.23 Decided cases expound that
the circumstantial evidence presented and proved must constitute an
unbroken chain which leads to one fair and reasonable conclusion
pointing to the accused, to the exclusion of all others, as the guilty
person. All the circumstances must be consistent with each other,
consistent with the hypothesis that the accused is guilty and at the
same time inconsistent with the hypothesis that he is innocent, and with
every other rationale except that of guilt.24

In the case at bar, notably there is only one circumstantial evidence.

And this sole circumstantial evidence of possession of the vehicle does
not lead to an inference exclusively consistent with guilt. Fundamentally,
prosecution did not offer any iota of evidence detailing the seizure of
the vehicle, much less with accused-appellant's participation. In fact,
there is even a variance concerning how accused-appellant was
discovered to be in possession of the vehicle. The prosecution's
uncorroborated evidence says accused-appellant was apprehended
while driving the vehicle at a checkpoint, although the vehicle did not
bear any license plates, while the latter testified he was arrested at
home. The following testimony of prosecution witness SPO2 Figueroa
on cross-examination raises even more questions:
chanRoblesvirtualLawlibrary
Q:
You mentioned the car napping incident, when was that, Mr. witness?
ATTY. GONZALES:
Your Honor, I noticed that every time the witness gave his answer, he is
looking at a piece of paper and he is not testifying on his personal
knowledge.
xxxx
COURT:
The witness is looking at the record for about 5 min. now. Fiscal, here is
another witness who has lapses on the mind.
FISCAL MACARAIG:
I am speechless, Your Honor.
WITNESS:
It was not stated in my affidavit, sir the time of the carnapping incident.
ATTY. GONZALES:
Your Honor, if he can no longer remember even the simple matter when
this car napping incident happened then he is an incompetent witness
and we are deprive (sic) of the right to cross examine him. I move that
his testimony would be stricken off from the record.
xxxx
Q:
Mr. Witness, what is the date when you arrested the accused Fabian
Urzais?
A:
It was November 20, 2002 at around 3 o'clock in the afternoon, sir.
Q:
You said earlier that on November 3, 2002 that you met the accused is
that correct, Mr. Witness?
A:
Yes, sir.
Q:
Why did you see the accused on November 3, 2002, Mr. Witness?
A:
During that time, we conducted a check point at AGL were (sic) the
Highlander was often seen, sir.
Q:
So, since on November 3, 2002, you were conducting this check point
at AGL, it is safe to assume that the carnapping incident happened
earlier than November 3, 2002?
A:
Yes, sir.
Q:
Were you present when this vehicle was car napped, Mr. Witness?
A:
No, sir.
Q:
Since you were not present, you have no personal knowledge about
this car napping incident, right, Mr. Witness?
A:
Yes, sir.
Q:
No further question, Your Honor.25
Considering the dearth of evidence, the subject vehicle is at best
classified as "missing" since the non-return of the victim and his vehicle
on 12 November 2002. Why the check-point had begun before then, as
early 3 November 2002, as stated by the prosecution witness raises
doubts about the prosecution's version of the case. Perhaps, the
check-point had been set up for another vehicle which had gone
missing earlier. In any event, accused-appellant's crime, if at all, was
being in possession of a missing vehicle whose owner had been found
dead. There is perhaps guilt in the acquisition of the vehicle priced so
suspiciously below standard. But how this alone should lead to a
conviction for the special complex crime of carnapping with homicide/
murder, affirmed by the appellate court is downright disturbing.

The application of disputable presumption found in Section 3 (j), Rule

131 of the Rules of Court, that a person found in possession of a thing
taken in the doing of a recent wrongful act is the taker and doer of the
whole act, in this case the alleged carnapping and the homicide/
murder of its owner, is limited to cases where such possession is either
unexplained or that the proffered explanation is rendered implausible in
view of independent evidence inconsistent thereto.26 In the instant
case, accused-appellant set-up a defense of denial of the charges and
adhered to his unrebutted version of the story that the vehicle had been
sold to him by the brothers Alex and Ricky Bautista. Though the
explanation is not seamless, once the explanation is made for the
possession, the presumption arising from the unexplained possession
may not anymore be invoked and the burden shifts once more to the
prosecution to produce evidence that would render the defense of the
accused improbable. And this burden, the prosecution was unable to
discharge. In contrast to prosecution witness SPO2 Figueroa's
confused, apprehensive and uncorroborated testimony accused-
appellant unflinchingly testified as follows:
chanRoblesvirtualLawlibrary
Q:
Will you please tell us how you came into possession of this Isuzu
Highlander with plate number UTT 838?
A:
That vehicle was brought by Ricky Bautista and Alex Bautista, sir.
xxxx
Q:
Do you know why Alex and Ricky Bautista gave you that Isuzu
Highlander?
A:
Actually that was not the vehicle I ordered form (sic) them, I ordered an
owner type jeep worth Php60,000 but on November 13, 2002 they
brought that Isuzu Highlander, sir.
Q:
Why did you order an owner type jeep from them?
A:
Because I planned to install a trolley, cause I have a videoke for rent
business, sir.
xxxx
Q:
What happened upon the arrival of this Alex and Ricky Bautista on that
date and time?
A:
I was a little bit surprise (sic) because Alex alighted from an Isuzu
Highlander colored green, sir.
Q:
What happened after that?
A:
I told them that it was not I ordered from you and my money is only
Php60,000, sir.
Q:
What did he told (sic) you?
A:
He told me to give them the Php60,000 and they will leave the vehicle
and when I have the money next week I will send text message to them,
sir.
Q:
What was your reaction?
A:
I was amazed because the vehicle is brand new and the price is low,
sir.
xxxx
Q:
Did you find out anything about the Isuzu highlander that they left to
you?
A:
When I could not contact them I went to my friend Oscar Angeles and
told him about the vehicle then he told me that you better surrender the
vehicle because maybe it is a hot car, sir. "Nung hindi ko na po sila
makontak ay nagpunta ako sa kaibigan kong si Oscar Angeles at sinabi
ko po yung problema tungkol sa sasakyan at sinabi nya sa akin na
isurrender na lang at baka hot car yan"27
xxxx
Q:
Mr. Witness, granting for the sake that what you are saying is true,
immediately on the 16th, according to your testimony, and upon
confirming it to your friend, you then decided to surrender the vehicle,
why did you not do it on the 16th, why did you still have to wait until you
get arrested?
A:
Because I was thinking of my Sixty Thousand Pesos (Php60,000.00) at
that time, and on how I can take it back, sir. ("Kasi nanghinayang po
ako sa Sixty Thousand (Php60,000.00) ko nung oras na un ... pano ko
po yun mabawi sabi ko".)
xxxx
Q:
So Mr. Witness, let us simplify this, you have purchased a carnapped
vehicle, your intention is to surrender it but you never did that until you
get caught in possession of the same, so in other words, that is all that
have actually xxx vehicle was found dead, the body was dumped
somewhere within the vicinity of Sta. Rosa, those are the facts in this
case?
A:
I only came to know that there was a dead person when I was already
in jail, sir.
Q:
What about the other facts that I have mentioned, are they correct or
not?
A:
When I gave the downpayment, I do not know yet that it was a hot car
and I came to know it only on the 16th, sir.28
Significantly, accused-appellant's testimony was corroborated by
defense witness Angeles who had known accused-appellant by his real
name "Michael Tapayan y Baguio," to wit:
chanRoblesvirtualLawlibrary
Q:
Do you know if this Michael Tapayan owns any vehicle sometime in
2002?
A:
At first none, sir, he has no vehicle.
Q:
What do you mean when you say at first he has no vehicle?
A:
Later, sir, I saw him riding in a vehicle.
xxxx
Q:
Did Michael Tapayan tell you how much he bought that vehicle?
A:
I remember he told me that he bought that vehicle for Thirty Thousand
(Php30,000.00) Pesos, sir.
Q:
What was your reaction when you were told that the vehicle was
purchased for only Thirty Thousand Pesos (Php30,000.00)?
A:
I told him that it's very cheap and also told him that it might be a carnap
(sic) vehicle.
Q:
What was the reaction of Michael Tapayan when you told him that?
A:
He thought about it and he is of the belief that the person who sold the
vehicle to him will come back and will get the additional payment, sir.
Q:
Aside from this conversation about that vehicle, did you have any other
conversation with Michael Tapayan concerning that vehicle?
A:
After a few days, sir, I told him to surrender the said vehicle to the
authorities because the persons who sold it to him did not come back
for additional payment.
Q:
What was the reaction of Michael Tapayan to this suggestion?
A:
He told me that he will think about it because he was thinking about the
money that he already gave to them.29
Evidently, the disputable presumption cannot prevail over accused-
appellant's explanation for his possession of the missing vehicle. The
possession having been explained, the legal presumption is disputed
and thus, cannot find application in the instant case. To hold otherwise
would be a miscarriage of justice as criminal convictions necessarily
require proof of guilt of the crime charged beyond reasonable doubt
and in the absence of such proof, should not be solely based on legal
disputable presumptions.

The carnapping not being duly proved, the killing of the victim may not
be treated as an incident of carnapping. Nonetheless, even under the
provisions of homicide and murder under the Revised Penal Code, the
Court finds the guilt of accused-appellant was not established beyond
reasonable doubt.

There were no eyewitnesses to the killing of the victim, Mario Magdato.

Again, both courts relied only on the circumstantial evidence of
accused-appellant's possession of the missing vehicle for the latter's
conviction. Shirley, the widow, testified that her husband and their
vehicle went missing on 12 November 2002. Dr. Concepcion gave
testimony on the cause of death of Mario Magdato and the injuries he
had sustained. Most glaringly, no connection had been established
between the victim's gunshot wound which caused his death and the
firearm found in the person of accused-appellant. Only SPO2
Figueroa's testimony gave light on how allegedly accused-appellant
was found to have been in possession of the missing vehicle of the
victim. But even if this uncorroborated testimony was true, it does not
link accused-appellant to the carnapping, much less, the murder or
homicide of the victim. And it does not preclude the probability of
accused-appellant's story that he had merely bought the vehicle from
the Bautista brothers who have themselves since gone missing.

The equipoise rule states that where the inculpatory facts and
circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other consistent
with his guilt, then the evidence does not fulfil the test of moral certainty
and is not sufficient to support a conviction. The equipoise rule
provides that where the evidence in a criminal case is evenly balanced,
the constitutional, presumption of innocence tilts the scales in favor of
the accused.30

The basis of the acquittal is reasonable doubt, which simply means that
the evidence of the prosecution was not sufficient to sustain the guilt of
accused-appellant beyond the point of moral certainty. Proof beyond
reasonable doubt, however, is a burden particular to the prosecution
and does not apply to exculpatory facts as may be raised by the
defense; the accused is not required to establish matters in mitigation
or defense beyond a reasonable doubt, nor is he required to establish
the truth of such matters by a preponderance of the evidence, or even
to a reasonable probability.31

It is the primordial duty of the prosecution to present its side with clarity
and persuasion, so that conviction becomes the only logical and
inevitable conclusion. What is required of it is to justify the conviction of
the accused with moral certainty. Upon the prosecution's failure to meet
this test, acquittal becomes the constitutional duty of the Court, lest its
mind be tortured with the thought that it has imprisoned an innocent
man for the rest of his life.32 The constitutional right to be presumed
innocent until proven guilty can be overthrown only by proof beyond
reasonable doubt.33

In the final analysis, the circumstances narrated by the prosecution

engender doubt rather than moral certainty on the guilt of accused-
appellant.chanrobleslaw

WHEREFORE, in view of the foregoing, the Decision of the Court of

Appeals dated 19 November 2012 in C.A. G.R. CR.-H.C. No. 04812 is
REVERSED and SET ASIDE. FABIAN URZAIS Y LANURIAS alias
Michael Tapayan y Baguio is ACQUITTED on reasonable doubt of the
crime of carnapping with homicide, without prejudice to investigation
for the crime of fencing penalized under Presidential Decree 1612. His
immediate release from confinement is hereby ordered, unless he is
being held for some other lawful cause.

SO ORDERED.

x--x

G.R. No. 191185, February 01, 2016

GUILBEMER FRANCO, Petitioner, v. PEOPLE OF THE PHILIPPINES,

Respondent.

DECISION

REYES, J.:

The Constitution presumes a person innocent until proven guilty by

proof beyond reasonable doubt. The prosecution cannot be allowed to
draw strength from the weakness of the defense's evidence for it has
the onus probandi in establishing the guilt of the accused - ei incumbit
probatio qui elicit, non que negat he who asserts, not he who denies,
must prove.1chanRoblesvirtualLawlibrary

Nature of the Case

Before the Court is a Petition for Review on Certiorari2 under Rule 45 of

the Rules of Court where petitioner Guilbemer Franco (Franco) assails
the Decision3 dated September 16, 2009 of the Court of Appeals (CA),
in CA-G.R. CR No. 31706, affirming the Decision4 dated February 27,
2008 of the Regional Trial Court (RTC) of Manila, Branch 15, in Criminal
Case No. 05-238613. The RTC convicted Franco of the crime of Theft
under an Information, which reads as
follows:ChanRoblesVirtualawlibrary
That on or about November 3, 2004, in the City of Manila, Philippines,
the said accused did then and there willfully, unlawfully and feloniously,
with intent to gain and without the knowledge and consent of the owner
thereof, take, steal and carry away one (1) Nokia 3660 Model cellular
phone worth Php 18,500.00 belonging to BENJAMIN JOSEPH
NAKAMOTO Y ERGUIZA to the damage and prejudice of the said
owner in the aforesaid amount of Php 18,500.00, Philippine Currency.

Contrary to law.5chanroblesvirtuallawlibrary
On September 5, 2005, Franco, assisted by counsel, pleaded not guilty
to the crime charged.6chanRoblesvirtualLawlibrary

The Facts

The evidence for the prosecution established the following facts:

On November 3, 2004 at around 11:00 a.m., Benjamin Joseph

Nakamoto (Nakamoto) went to work out at the Body Shape Gym
located at Malong Street, Tondo, Manila. After he finished working out,
he placed his Nokia 3660 cell phone worth PI8,500.00 on the altar
where gym users usually put their valuables and proceeded to the
comfort room to change his clothes. After ten minutes, he returned to
get his cell phone, but it was already missing. Arnie Rosario (Rosario),
who was also working out, informed him that he saw Franco get a cap
and a cell phone from the altar. Nakamoto requested everyone not to
leave the gym, but upon verification from the logbook, he found out that
Franco had left within the time that he was in the shower.
7chanroblesvirtuallawlibrary

The gym's caretaker, Virgilio Ramos (Ramos), testified that he saw

Franco in the gym but he was not working out and was just going
around the area. In fact, it was just Franco's second time at the gym.
Ramos even met him near the door and as Franco did not log out, he
was the one who indicated it in their logbook. When Nakamoto
announced that his cell phone was missing and asked that nobody
leaves the place, he put an asterisk opposite the name of Franco in the
logbook to indicate that he was the only one who left the gym after the
cell phone was declared lost.8chanroblesvirtuallawlibrary

Nakamoto, together with Jeoffrey Masangkay, a police officer who was

also working out at the gym, tried to locate Franco within the gym's
vicinity but they failed to find him. They proceeded to the police station
and while there, a report was received from another police officer that
somebody saw Franco along Coral Street, which is near the gym and
that he was holding a cell phone. They went to Coral Street but he was
already gone. A vendor told them that he saw a person who was
holding a cell phone, which was then ringing and that the person was
trying to shut it off. When they went to Franco's house, they were initially
not allowed to come in but were eventually let in by Franco's mother.
They talked to Franco who denied having taken the cell phone.
9chanroblesvirtuallawlibrary

Nakamoto then filed a complaint with the barangay but no settlement

was arrived thereat; hence, a criminal complaint for theft was filed
against Franco before the City Prosecutor's Office of Manila, docketed
as I.S. No. 04K-25849.10chanroblesvirtuallawlibrary

In his defense, Franco denied the charge, alleging that if Nakamoto had
indeed lost his cell phone at around 1:00 p.m., he and his witnesses
could have confronted him as at that time, he was still at the gym,
having left only at around 2:45 p.m.11 He also admitted to have taken a
cap and cell phone from the altar but claimed these to be his.
12chanRoblesvirtualLawlibrary

Ruling of the RTC

In its Decision dated February 27, 2008, the RTC convicted Franco of
theft, the dispositive portion of which reads:ChanRoblesVirtualawlibrary
IN VIEW OF THE FOREGOING, this Court finds [Franco], GUILTY
beyond reasonable doubt of the crime of theft penalized in paragraph I
of Article 309 in relation to Article 308 of the Revised Penal Code and
hereby imposes upon him the penalty of imprisonment of two (2) years,
four (4) months and one (1) day as minimum to seven (7) years and four
(4) months as maximum and to pay the complainant Php 18,500.00.

SO ORDERED.13chanroblesvirtuallawlibrary
The RTC did not find Franco's defense credible and ruled that his
denial cannot be given evidentiary value over the positive testimony of
Rosario.14chanroblesvirtuallawlibrary

Franco then appealed to the CA.15chanRoblesvirtualLawlibrary

Ruling of the CA
In affirming the RTC decision, the CA found the elements of theft to
have been duly established. It relied heavily on the "positive testimony"
of Rosario who declared to have seen Franco take a cap and a cell
phone from the altar. The CA likewise gave credence to the testimony of
Ramos who confirmed that it was only Franco who left the gym
immediately before Nakamoto announced that his cell phone was
missing. Ramos also presented the logbook and affirmed having put an
asterisk opposite the name "ELMER," which was entered by the
accused upon logging in. The CA stated that taken together, the
foregoing circumstances are sufficient to support a moral conviction
that Franco is guilty, and at the same time, inconsistent with the
hypothesis that he is innocent.16 The CA further ruled that the RTC
cannot be faulted for giving more weight to the testimony of
Nakamoto17 and Rosario,18 considering that Franco failed to show that
they were impelled by an ill or improper motive to falsely testify against
him.19chanroblesvirtuallawlibrary

In his petition for review, Franco presented the following issues for
resolution, to wit:ChanRoblesVirtualawlibrary
I.

WHETHER THE HONORABLE [CA] ERRED IN GIVING WEIGHT AND

CREDENCE TO THE PROSECUTION WITNESSES' INCONSISTENT
AND IRRECONCILABLE TESTIMONIES.chanRoblesvirtualLawlibrary

II.

WHETHER THE HONORABLE [CA] ERRED IN AFFIRMING [FRANCO'S]

CONVICTION DESPITE THE FACT THAT THE SAME WAS BASED ON
FABRICATIONS AND PRESUMPTIONS.chanRoblesvirtualLawlibrary

III.

WHETHER. THE HONORABLE [CA] ERRED IN ACCEPTING THE

VALUE OF THE ALLEGEDLY STOLEN CELLULAR PHONE WITHOUT
SUBSTANTIATING EVIDENCE.20chanroblesvirtuallawlibrary
Ruling of the Court
Preliminarily, the Court restates the rule that only errors of law and not of
facts are reviewable by this Court in a petition for review on certiorari
under Rule 45 of the Revised Rules of Court. This rule applies with
greater force when the factual findings of the CA are in full agreement
with that of the RTC.21chanroblesvirtuallawlibrary

The rule, however, is not ironclad. A departure therefrom may be

warranted when it is established that the RTC ignored, overlooked,
misconstrued or misinterpreted cogent facts and circumstances, which,
if considered, will change the outcome of the case. Considering that
what is at stake here is liberty, the Court has carefully reviewed the
records of the case22 and finds that Franco should be acquitted.

Failure of the prosecution to prove Franco's guilt beyond reasonable

doubt

The burden of such proof rests with the prosecution, which must rely on
the strength of its case rather than on the weakness of the case for the
defense. Proof beyond reasonable doubt, or that quantum of proof
sufficient to produce a moral certainty that would convince and satisfy
the conscience of those who act in judgment, is indispensable to
o v e rc o m e t h e c o n s t i t u t i o n a l p re s u m p t i o n o f i n n o c e n c e .
23chanroblesvirtuallawlibrary

In every criminal conviction, the prosecution is required to prove two

things beyond reasonable doubt: first, the fact of the commission of the
crime charged, or the presence of all the elements of the offense; and
second, the fact that the accused was the perpetrator of the crime.
24chanroblesvirtuallawlibrary

Under Article 308 of the Revised Penal Code, the essential elements of
the crime of theft are: (1) the taking of personal property; (2) the
property belongs to another; (3) the taking away was done with intent to
gain; (4) the taking away was done without the consent of the owner;
and (5) the taking away is accomplished without violence or intimidation
against person or force upon things.25cralawred

The corpus delicti in theft has two elements, to wit: (1) that the property
was lost by the owner; and (2) that it was lost by felonious taking.26 In
this case, the crucial issue is whether the prosecution has presented
proof beyond reasonable doubt to establish the corpus delicti of the
crime. In affirming Franco's conviction, the CA ruled that the elements
were established. Moreover, the RTC and the CA apparently relied
heavily on circumstantial evidence.

To sustain a conviction based on circumstantial evidence, Section 4,

Rule 133 of the Rules of Court provides that the following requisites
must concur: (1) there must be more than one circumstance to convict;
(2) the facts on which the inference of guilt is based must be proved;
and (3) the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt. With respect to the third
requisite, it is essential that the circumstantial evidence presented must
constitute an unbroken chain, which leads one to a fair and reasonable
conclusion pointing to the accused, to the exclusion of others, as the
guilty person.27chanroblesvirtuallawlibrary

The prosecution presented three (3) witnesses - Nakamoto, the

complainant; Ramos, the gym's caretaker; and Rosario, another gym
user.

Their testimonies established the following circumstances: (1)

Nakamoto placed his cell phone on the altar,28 left and went to change
his clothes, and alter ten minutes, returned to get his cell phone but the
same was already missing;29 (2) Rosario saw Franco get a cap and a
cell phone from the same place;30 and (3) Ramos saw Franco leave
the gym at 1:15 p.m. and the latter failed to log out in the logbook.31
The RTC and the CA wove these circumstances in order to arrive at the
" p o s i t i v e i d e n t i fi c a t i o n " o f F r a n c o a s t h e p e r p e t r a t o r.
32chanroblesvirtuallawlibrary

A perusal of their testimonies, however, shows that certain facts have

been overlooked by both courts.

For one, it was only Rosario who saw Franco get a cap and a cell
phone from the altar. His lone testimony, however, cannot be
considered a positive identification of Franco as the perpetrator.
33chanroblesvirtuallawlibrary

In People v. Pondivida,34 the Court held:ChanRoblesVirtualawlibrary

Positive identification pertains essentially to proof of identity and not per
se to that of being an eyewitness to the very act of commission of the
crime. There are two types of positive identification. A witness may
identify a suspect or accused in a criminal case as the perpetrator of
the crime as an eyewitness to the very act of the commission of the
crime. This constitutes direct evidence. There may, however, be
instances where, although a witness may not have actually seen the
very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as for
instance when the latter is the person or one of the persons last seen
with the victim immediately before and right after the commission of the
crime. This is the second, type of positive identification, which forms
part of circumstantial evidence, which, when taken together with other
pieces of evidence constituting an unbroken chain, leads to only fair
and reasonable conclusion, which is that the accused is the author of
the crime to the exclusion of all others. x x x.35 (Emphasis omitted and
underscoring ours)
Rosario's testimony definitely cannot fall under the first category of
positive identification. While it may support the conclusion that Franco
took a cell phone from the altar, it does not establish with certainty that
what Franco feloniously took, assuming that he did, was Nakamoto's
cell phone. Rosario merely testified that Franco took "a cell phone." He
stated:ChanRoblesVirtualawlibrary
Q:
How did you know that the said cell phone was taken by the accused?
A:
[W]e were then in a conversation when I asked him to spot or assist me
with the weights that I intended to carry. We were then situated in an
area very near the altar where his cap and cell phone were placed.
After assisting me, he went to the area and took the cell phone and the
cap at the same time.
Q:
[W]ho were you talking [sic] at that time?
A:
Guilbemer Franco.
Q:
It was also [G]uilbemer Franco who helped or spot you in the work out?
A:
Yes, sir.
Q:
And after assisting you, what did Franco do?
A:
He took the cell phone of Mr. Nakamoto and his cap at the same time
and covered the cell phone by his cap and left the place.
Q:
Where was that cell phone of the private complainant placed at that
time?
A:
At the top of the altar where is [sic] cap is also located.
Q:
How far was that altar from where you were working?
A:
Only inches.
Q:
It was directly in front of you?
A:
Yes, sir.
Q:
What did you do when the accused took the cap as well as the cell
phone of the private complainant?
A:
None, sir. I thought the cap and cell phone was his.
Q:
How did you know that the cell phone belongs to the private
complainant?
A:
After Mr. Nakamoto came out from the shower, he went directly to the
altar to get his cell phone which was not there anymore and asked us
where his cell phone and I told him that I saw Mr. Franco get a cell
phone from that area.36 (Emphasis ours)
On cross-examination, Rosario also stated that he did not actually see
Franco take Nakamoto's cell phone37 but on re-direct, he clarified that
he did not see the cell phone of Nakamoto because he thought that the
cell phone was owned by Franco.38chanroblesvirtuallawlibrary

What was firmly established by Rosarios testimony is that Franco took a

cell phone from the altar. But Franco even admitted such fact.39 What
stands out from Rosario's testimony is that he was unable to particularly
describe at first instance what or whose cell phone Franco took from
the altar. lie only assumed that it was Nakamoto's at the time the latter
announced that his cell phone was missing. This was, in tact, observed
b y t h e R T C i n t h e c o u r s e o f R o s a r i o ' s t e s t i m o n y,
thus:ChanRoblesVirtualawlibrary
COURT:
What you actually saw was, [G]uilbemer Franco was taking his cap
together with the cell phone placed beside the cap but you do not know
that [the] cell phone was Bj's or Nakamoto's?
A:
[Y]es, Your Honor.
COURT:
You just presumed that the cell phone taken by Guilbemer Franco was
his?
A:
Yes, Ma'am.40 (Emphasis ours)
Moreover, it must be noted that save for Nakamoto's statement that he
placed his cell phone at the altar, no one saw him actually place his cell
phone there. This was confirmed by Rosario -
COURT:
Q:
And on that day, you were able to see that Nakamoto on four incidents,
when he logged-in, during work-out and when he went inside the C.
[R].?
A:
Yes, sir.
Q:
Therefore, you did not see Nakamoto place his cell phone at the Altar?
A:
Yes, sir.41 (Emphasis ours)
Ramos, the gym caretaker, also testified that he did not see Franco take
Nakamoto's cell phone and only assumed that the cell phone on the
altar was Nakamoto's, thus -
Q:
And do you know who owns that cell phone put [sic] over the altar?
A:
Benjamin Nakamoto.
Q:
How do you know that it belongs to Benjamin Nakamoto?
A:
He is the only one who brings a cell phone to the gym.
xxxx
Q:
[D]id you actually see him take the cell phone of Nakamoto?
A:
I did not see him take the [cell] phone but as soon as the cell phone
was lost, he was the only one who left the gym.
42chanroblesvirtuallawlibrary
Neither can the prosecution's testimonial evidence fall under the
second category of positive identification, that is, Franco having been
identified as the person or one of the persons last seen immediately
before and right after the commission of the theft. Records show that
there were other people in the gym before and after Nakamoto lost his
cell phone. In fact, Nakamoto himself suspected Rosario of having
taken his cell phone, thus:ChanRoblesVirtualawlibrary
ATTY. SANCHEZ:
Q:
You said that you stayed inside the rest room for more or less 10
minutes?
A:
[Y]es, sir.
Q:
After 10 minutes, you don't know whether aside from Franco somebody
went out from the gym because you were inside the c.r.?
A:
Yes. sir.
xxxx
Q:
As a matter of fact, one of your witness[es] who went near the place
where your cell phone was placed was this Arnie Rosario?
A:
Yes, sir.
Q:
And it was only the accused and [Rosario] who were near the place
where you said you placed the cell phone?
A:
Yes, sir.
Q:
You did not suspect [Rosario] to have taken the cell phone?
A:
I also suspected, sir.43 (Emphasis ours)
Moreover, the prosecution witnesses confirmed that the altar is the
usual spot where the gym users place their valuables. According to
Rosario:ChanRoblesVirtualawlibrary
ATTY. SANCHEZ:
Q:
And in that place, you said there was a Sto. Nino?
A:
At the Altar.
Q:
Those who work-out in that gym usually place their things [on top of] the
altar.
A:
Yes, sir.
Q:
Therefore, there were people who place their cell phones on top [of] the
Altar?
A:
Yes, sir.
Q:
Aside from Nakamoto, other people place their things on top [of] the
Altar?
A:
Yes, sir.44 (Emphasis ours)
The prosecution's evidence does not rule out the following possibilities:
one, that what Franco took was his own cell phone; two, even on the
assumption that Franco stole a cell phone from the altar, that what he
feloniously took was Nakamoto's cell phone, considering the feet that at
the time Nakamoto was inside the changing room, other people may
have placed their cell phone on the same spot; and three, that some
other person may have taken Nakamoto's cell phone.

It must be emphasized that "[c]ourts must judge the guilt or innocence

of the accused based on facts and not on mere conjectures,
presumptions, or suspicions."45 It is iniquitous to base Franco's guilt on
the presumptions of the prosecution's witnesses for the Court has, time
and again, declared that if the inculpatory facts and circumstances are
capable of two or more interpretations, one of which being consistent
with the innocence of the accused and the other or others consistent
with his guilt, then the evidence in view of the constitutional
presumption of innocence has not fulfilled the test of moral certainty
a n d i s t h u s i n s u f fi c i e n t t o s u p p o r t a c o n v i c t i o n .
46chanroblesvirtuallawlibrary

Franco also asserts that the logbook from which his time in and time out
at the gym was based was not identified during the trial and was only
produced after Ramos testified.47 Ramos testified that when Nakamoto
announced that his cell phone was missing and asked that nobody
leaves the place, he put an asterisk opposite the name of Franco in the
logbook to indicate that he was the only one who left the gym after the
cell phone was declared lost.48chanroblesvirtuallawlibrary

Under the Rules on Evidence, documents are either public or private.

Private documents are those that do not fall under any of the
enumerations in Section 19, Rule 132 of the Rules of Court.49 Section
20 of the same Rule, in turn, provides that before any private document
is received in evidence, its due execution and authenticity must be
proved either by anyone who saw the document executed or written, or
by evidence of the genuineness of the signature or handwriting of the
maker.50chanroblesvirtuallawlibrary

In this case, the foregoing rule was not followed. The testimony of
Ramos shows that the logbook, indeed, was not identified and
authenticated during the course of Ramos' testimony. At the time when
Ramos was testifying, he merely referred to the log in and log out time
and the name of the person at page 104 of the logbook that appears on
line 22 of the entries for November 3, 2004. This was photocopied and
marked as Exhibit "C-1."51 Meanwhile, when Nakamoto was presented
as rebuttal witness, a page from the logbook was again marked as
Exhibit "D."52 The logbook or the particular page referred to by Ramos
was neither identified nor confirmed by him as the same logbook which
he used to log the ins and outs of the gym users, or that the writing and
notations on said logbook was his.

The prosecution contends, meanwhile, that the RTC's evaluation of the

witnesses' credibility may no longer be questioned at this stage.53 The
Court is not unmindful of the rule that the assignment of value and
weight to the testimony of a witness is best left to the discretion of the
RTC. But an exception to that rule shall be applied in this ease where
certain facts of substance and value, if considered, may affect the
re s u l t . 5 4 I n L e j a n o v. P e o p l e , 5 5 t h e C o u r t
stated:ChanRoblesVirtualawlibrary
A judge must keep an open mind. He must guard against slipping into
hasty conclusion, often arising from a desire to quickly finish the job of
deciding a case. A positive declaration from a witness that he saw the
accused commit the crime should not automatically cancel out the
accused's claim that he did not do it. A lying witness can make as
positive an identification as a truthful witness can. The lying witness can
also say as forthrightly and unequivocally, "He did it!" without blinking
an eye.56chanroblesvirtuallawlibrary
The facts and circumstances proven by the prosecution, taken together,
are not sufficient to justify the unequivocal conclusion that Franco
feloniously took Nakamoto's cell phone. No other convincing evidence
was presented by the prosecution that would link him to the theft.57 The
fact Franco took a cell phone from the altar does not necessarily point
to the conclusion that it was Nakamoto's cell phone that he took. In the
appreciation of circumstantial evidence, the rule is that the
circumstances must be proved, and not themselves presumed. The
circumstantial evidence must exclude the possibility that some other
person has committed the offense charged.
58chanroblesvirtuallawlibrary

Franco, therefore, cannot be convicted of the crime charged in this

case. There is not enough evidence to do so. As a rule, in order to
support a conviction on the basis of circumstantial evidence, all the
circumstances must be consistent with the hypothesis that the accused
is guilty. In this case, not all the facts on which the inference of guilt is
based were proved. The matter of what and whose cell phone Franco
took from the altar still remains uncertain.chanRoblesvirtualLawlibrary

Franco's defense of denial

The evidence of the prosecution must stand on its own weight and not
rely on the weakness of the defense.59 In this case, Franco did not
deny that he was at the Body Shape Gym on November 3, 2004, at
around 1:00 p.m. and left the place at around 2:45 p.m.60 He did not
even deny that he took a cell phone from the altar together with his cap.
What he denied is that he took Nakamoto's cell phone and instead,
claimed that what he took is his own cell phone.61 Denial may be weak
but courts should not at once look at them with disfavor. There are
situations where an accused may really have no other defenses but
denial, which, if established to be the truth, may tilt the scales of justice
in his favor, especially when the prosecution evidence itself is weak.
62chanroblesvirtuallawlibrary

While it is true that denial partakes of the nature of negative and self-
serving evidence and is seldom given weight in law,63 the Court admits
an exception established by jurisprudence that the defense of denial
assumes: significance when the prosecution's evidence is such that it
does not prove guilt beyond reasonable doubt.64 The exception
applies in the case at hand. The prosecution failed to produce sufficient
evidence to overturn the constitutional guarantee that Franco is
presumed to be innocent.chanRoblesvirtualLawlibrary

Value of the cell phone

It is also argued by Franco that the value of the cell phone must be duly
proved with reasonable degree of certainty. On the other hand, the
people contended that there has been a judicial admission of the same.
65 This issue, however, is now moot and academic considering
Franco's acquittal.chanRoblesvirtualLawlibrary

Conclusion

The circumstantial evidence proven by the prosecution in this case

failed to pass the test of moral certainty necessary to warrant Franco's
conviction. Accusation is not synonymous with guilt.66 Not only that,
where the inculpatory facts and circumstances are capable of two or
more explanations or interpretations, one of which is consistent with the
innocence of the accused and the other consistent with his guilt, then
the evidence does not meet or hurdle the test of moral certainty
required for conviction.67chanroblesvirtuallawlibrary

WHEREFORE, the petition is GRANTED. The Decision of the Court of

Appeals dated September 16, 2009 in CA-GR. CR No. 31706 is hereby
REVERSED and SET ASIDE. Petitioner Guilbemer Franco is
ACQUITTED of the crime of Theft charged in Criminal Case No.
05-238613 because his guilt was not proven beyond reasonable doubt.

No costs.
SO ORDERED.cralawlawlibrary

x--x

DENNIS MANGANGEY, GABRIEL WANASON, and ANSELMO

FORAYO,
Petitioners,

- versus -

HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE OF

THE PHILIPPINES,
Respondents.

G.R. Nos. 147773-74

Present:

QUISUMBING, J., Chairperson, CARPIO,

CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

Promulgated:

February 18, 2008

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

Sometime in October 1986, the Municipality of Paracelis, Mountain

Province undertook the widening and partial relocation of the Banilag-
Minoli Road. The project was awarded to private contractor Leon
Acapen. The description of the work to be done and the terms of the
contract included, among others:

1. Roadways and Drainage excavation (removal of slides and

overbreaks) [for] 1,800 cubic meters at P18.00/cu.m.; and

2. Roadways and Drainage Excavation (widening and construction)

for 4.010 cubic meters at P20.00/cu.m. x x x

Quantities given above are only approximate and payments of the work
shall be based on the quantities actually accomplished and completed
which shall be measured and determine[d] accurately and shall be
accepted by the Municipal Mayor.[1]

The project was allegedly completed on December 8, 1986 as shown in

the Certificate of Inspection and Acceptance dated December 8, 1986.
The certificate was prepared and signed by Construction and
Maintenance Foreman Dennis Mangangey, petitioner herein, who
attested that he personally inspected the project and that it was 100%
completed in accordance with the agreed specifications. In another
Certificate of Inspection and Acceptance, with the same date, the
signatories, namely: Municipal Planning and Development Coordinator
Gabriel Wanason, petitioner herein, as the Mayors representative;
Municipal Revenue Clerk Anselmo Forayo, petitioner herein, as the
Treasurers representative; and Bernardo Acapen (now deceased), as
the Engineers representative, all attested that they personally inspected
the work done by Leon and found the work in accordance with the
approved program of work. The Government subsequently issued a
check for PhP 106,970 as payment for the project.[2]

In February 1989, a certain Simon Naigsan wrote to the Regional Office

of the Commission of Audit (COA) and complained about the anomalies
in the construction of the road. The COA Regional Director directed
Technical Audit Specialist Engr. Hospicio Angluben to conduct an
actual site inspection. Part of his affidavit/report on the inspection
stated:
That Item 105-1 started from Sta. 0+000 to Sta. 4+620, having a total
volume of 1,800 cu.m. for excavation; and Item 105-11 started from Sta.
+620 to Sta. 6+420, and had a volume of 4,010 cu.m. for excavation;

That all the above works were awarded to Mr. Leon Acapen for P112,
600.00;

That for Item 105-1 there was no accomplishment and for Item 105-11
there was only 365 cu.m. actually accomplished;

That the contract was certified 100% accomplished and was fully paid
for P112,600.00, the full amount of the contract.[3]

As an offshoot of the affidavit/report and for failure to complete the

Banilag-Minoli Road, provincial officers Engineer Dionisio Padua, Senior
Civil Engineer Francisco Tigcangay, and Paracelis Municipal Treasurer
Tomas Pocyao, and project contractor Leon were charged before the
Sandiganbayan in an Information[4] dated August 14, 1991, alleging
that they conspired with evident bad faith to defraud the government in
violation of Section 3(e)[5] of Republic Act No. 3019 also known as the
Anti-Graft and Corrupt Practices Act. The Information was docketed as
Crim. Case No. 17007. All the accused in this case were acquitted on
October 27, 2000 on Amended Informations to include private
contractor Leon as an accused. Amended Informations for this case
and Crim. Case No. 17008 were filed by the Office of the Special
Prosecutor and a joint trial was held. Criminal Case No. 17007 is not a
subject of this petition.

The Amended Information docketed as Crim. Case No. 17008 for

Estafa thru Falsification of Public Documents charged Paracelis Mayor
Matthew Wandag, Municipal Revenue Clerk Forayo, Municipal Planning
and Development Coordinator Wanason, and Construction and
Maintenance Foreman of the Office of the Provincial Engineer
Mangangey. It reads:

CRIM. CASE NO. 17008

That on or about the 8th day of December, 1986, in the Municipality of

Paracelis, Mountain Province, and within the jurisdiction of this
Honorable Court, the above-named accused, all public officers,
MATTHEW WANDAG, being then the Municipal Mayor of Paracelis,
Mountain Province, ANSELMO FORAYO, being then the Municipal
Revenue Clerk of Paracelis, Mountain Province, GABRIEL WANASON,
being then the Municipal Planning and Development Coordinator of
Paracelis, Mountain Province, and DENNIS MANGANGEY, being then
the Maintenance Foreman, Office of the Provincial Engineer, Mountain
Province, while in the performance of their official functions taking
advantage of their official position, committing the offense in relation to
their office and conspiring and confederating with one another, and with
accused Leon Acapen, a private contractor, did then and there willfully,
unlawfully, feloniously and by means of deceit defraud the Government
by making untruthful statements in the Certificate of Inspection and
Acceptance signed by accused Gabriel Wanason and Anselmo Forayo
in one and by accused Dennis Mangangey in the other and both dated
December 8, 1986, and in which they had the obligation to disclose the
truth, by making it appear that they have personally inspected the work
for the widening and partial relocation of the Banilag-Minoli Road in
Paracelis, Mountain Province, consisting of the removal of slides and
overbreaks and the widening and construction thereof, and thereafter
found the same to have been fully accomplished 100% in accordance
with the plans, specifications and requirements thereof, when in truth
and in fact, as all the accused well knew, there was no accomplishment
on the removal of slides and overbreaks and only 365 cu. m. out of
4,010 cu. m. for the widening and construction had actually been
accomplished, and as a result of such false certifications, Leon Acapen
was paid the amount of ONE HUNDRED SIX THOUSAND NINE
HUNDRED SEVENTY PESOS (P106,970.00), Philippine Currency,
through a check which accused Matthew Wandag subsequently
encashed after obtaining the same from accused Leon Acapen and
causing the latter to affix his signature thereon, thereby inflicting
damage and prejudice to the government in the aforesaid sum.

CONTRARY TO LAW.[6]

All the accused in both cases were arraigned a second time on August
9, 1993, except accused Wandag who took flight to the United States.
All pleaded not guilty.
All the accused were acquitted in Crim. Case No. 17007 but
convicted in Crim. Case No. 17008 excluding Leon

After a joint trial, the Sandiganbayan, on October 27, 2000, exonerated

all the accused in Crim. Case No. 17007 while it convicted petitioners
for the crime of estafa through falsification of public documents, with
the exception of Leon in Crim. Case No. 17008.
In its Decision, the Sandiganbayan found that the signatories of the
Certificate of Inspection and Acceptance, namely, Mangangey,
Wanason, Forayo, and the late Bernardo, in their own official functions,
falsified a public document when they attested that they personally
inspected the work of Leon and reported that it was 100% completed in
accordance with the plans, specifications, and contract requirements
notwithstanding that the work on the aforesaid project was not yet
finished. The Sandiganbayan found that petitioners conspired with the
accused Wandag to defraud the Government.

The dispositive portion of the Decision reads:

WHEREFORE, judgment is hereby rendered, as follows:

1. In Criminal Case No. 17007, accused Dionisio Padua, Francisco

Tigcangay, Tomas Pocyao and Leon Acapen are hereby ACQUITTED of
the crime of Violation of Section 3(e) of Republic Act 3019, as amended
on ground of reasonable doubt. The bail bonds posted for their
provisional liberty are ordered cancelled.

2. In Criminal Case No. 17008, accused Dennis Mangangey, Gabriel

Wanason and Anselmo Forayo are hereby found GUILTY beyond
reasonable doubt as principals of the crime of Estafa through
Falsification of Public Documents defined and penalized under Articles
315 and 171 in relation to Article 48 of the Revised Penal Code. Absent
any modifying circumstance and applying the Indeterminate Sentence
Law, each is hereby sentenced to suffer an indeterminate penalty
ranging from SIX (6) YEARS of prision correccional as minimum, to
TWELVE (12) YEARS of prision mayor as maximum, with accessories
provided by law; to pay a fine of P2,000.00 without subsidiary
imprisonment in case of insolvency; to indemnify jointly and severally,
the Republic of the Philippines in the amount of NINETY-NINE
THOUSAND SIX HUNDRED SEVENTY PESOS (P99,670.00); and, to
pay their proportionate share of the costs. Accused Leon Acapen is
hereby ACQUITTED on ground of reasonable doubt. The property bail
bond posted by said accused is ordered cancelled.

Let alias warrant of arrest be issued against accused Matthew Wandag.

SO ORDERED.[7]

Petitioners motion for reconsideration was denied for lack of merit.

Hence, we have this petition for review under Rule 45, raising the sole
issue:
Whether or not, under the facts alleged and proven, the accused may
be held liable for the offense of ESTAFA through FALSIFICATION of
PUBLIC DOCUMENT.[8]

Our Ruling

We deny the petition.

Prefatorily, the Sandiganbayan acquitted Leon, the purported

contractor of the project on ground of reasonable doubt. It noted that
during the preliminary investigation, Leon admitted that he was not the
real contractor; that he did not do any work on the road; that he signed
the Letter of Acceptance printed below the Resolution of Award dated
October 21, 1986[9] and the Municipal Voucher; that he received the
PhP 106,970 net contract payment;[10] that he indorsed the PNB check
payment for PhP 106,970 to Wandag; and that it was Wandag who
exchanged the said check with a demand draft in Wandags name, all
because he was being threatened and coerced by Wandag. Leon
reported these matters as early as January 8, 1987 in an affidavit,
shortly after he signed the certificate to the Monitoring Committee of
Paracelis, Department of Local Government. His affidavit was
appended to his counter-affidavit executed during the preliminary
investigation. In our view, Wandag had coerced Leon and used him as
a dummy so he could himself get payment for the unfinished road.

Essentially, petitioners contend that the findings of the Sandiganbayan

are bereft of factual and legal basis, and that the circumstances relied
upon by the Sandiganbayan are insufficient to convict them of estafa
through falsification of public document. They reason that the facts from
which the inferences were derived were not proven. Furthermore,
according to petitioners, these circumstances are insufficient to convict
them beyond reasonable doubt.

The Sandiganbayan, petitioners claim, relied on the following

circumstantial pieces of evidence in convicting petitioners: (1)
Mangangey erroneously testified on the starting point of the project; (2)
Alfonso Dilog and Franklin Odsey, who Mangangey mentioned in his
testimony as his companions during the actual inspection of the project,
were not presented to corroborate Mangangeys testimony; (3) during
the preliminary investigation, Forayo and Wanason testified that no
actual inspection was conducted; (4) Bernardo, before his death,
admitted he did not personally inspect the project; (5) during the
inspection, Mangangey could not attest to the measurements of the
actual volume/quantity accomplished by the contractor in accordance
with the pakyaw contract; and (6) Wandag took flight to evade
prosecution.

As to the first circumstance, petitioners contend that the

Sandiganbayan merely speculated that Mangangey did not know the
starting point of the road project. They claim that this conclusion of the
Sandiganbayan was based alone on the uncorroborated testimony of
COA Technical Audit Specialist Engr. Angluben who said that when he
conducted the audit, he was accompanied by Bernardo and Leon, the
private contractors and some residents of Paracelis. Yet, petitioners
claim these companions of Angluben were not presented in court to
corroborate the latters testimony. They insist that the Sandiganbayans
reliance alone on Anglubens testimony, without corroboration, could not
be used against them as this would violate their right to due process.
[11]

As to the second, petitioners assert that for the same reason,

Mangangeys testimony that he conducted an inspection accompanied
by Dilog and Odsey could not be used against petitioners since Dilog
and Odsey were not presented in court to corroborate Mangangeys
statement. According to petitioners, the failure to present Dilog and
Odsey again violated their rights to remain silent and be presumed
innocent. Besides, they posit that the burden of proof to establish their
guilt lies with the prosecution.[12]
As to the third, petitioners submit that the alleged admissions of Forayo
and Wanason during the preliminary investigation, embodied in the July
15, 1988 Resolution of the Deputized Tanodbayan Prosecutor, are
inadmissible and hearsay since the investigating officer was not
presented to attest to the alleged admissions. Moreover, petitioner
Mangangey asserts that even if the admissions were admissible, using
these as evidence against him would still violate his constitutional right
to due process, under the res inter alios acta rule provided under Sec.
28 of Rule 130, Revised Rules on Evidence, which states that the rights
of a party cannot be prejudiced by an act, declaration, or omission of
another.[13]

As to the fourth, petitioners assail the admission by the late Bernardo

that he did not personally inspect the project as a circumstance that led
to their conviction.

As to the fifth, petitioners submit that the interpretation of the pakyaw

contract on the volume of the work accomplished is not a finding of fact
but only the Sandiganbayans conclusion and consequently cannot be
considered circumstantial evidence. Moreover, they aver that only facts
from which the inferences are derived, and not conclusions, must be
proven.[14]

Finally, petitioners assert that the Sandiganbayan should not have

considered the flight of Wandag as circumstantial evidence against
them for not only have they been steadfast in their claims that they were
innocent, but they were also willing to submit to judicial inquiry, unlike
Wandag who took flight.[15]
Petitioners insist that from the evidence submitted, it has not been
established that petitioners conspired to falsify documents to defraud
the government. They posit that aside from the lone circumstance that
the Government paid for an incomplete project, no other evidence or
circumstance was adduced to prove that they indeed conspired with
Wandag. No proof was shown that they had knowledge of Wandags
criminal intent to defraud the Government as it was established that
Wandag alone committed the offense. Moreover, they point out that it
was Wandag alone who benefited from the crime as petitioners were
never shown to have shared the proceeds with Wandag. Consequently,
petitioners conclude that absent proof of conspiracy, they could not be
held liable for estafa. In all, they assert that the evidence of the
prosecution did not overcome petitioners constitutional and legal right
to be presumed innocent.

Wandag masterminded the falsification of the documents

The Sandiganbayan found that Wandag masterminded the fraud and

that the local government funded road project was neither submitted to
public bidding nor were the required documents on the road project in
order when it was launched. Ostensibly, Leon was merely pressured to
sign the contract.

The Sandiganbayan convicted petitioners of the complex crime of

estafa through falsification of a public document penalized under
Articles 315 and 171 in relation to Art. 48 of the Revised Penal Code
(RPC). We quote these provisions below:

ART. 315. Swindling (estafa).Any person who shall defraud another by

any of the means mentioned hereinbelow shall be punished by x x x.

xxxx

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

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

xxxx
(a) By using a fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.
ART. 171. Falsification by public officer, employee or notary or
ecclesiastic minister.The penalty of prision mayor and a fine not to
exceed P5,000 pesos shall be imposed upon any public officer,
employee, or notary who, taking advantage of his official position, shall
falsify a document by committing any of the following acts:

xxxx

2. Causing it to appear that persons have participated in any act or

proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in any act or
proceeding statements other than those in fact made by them;

4. Making untruthful statements in a narration of facts;

ART. 48. Penalty for complex crimes.When a single act constitutes two
or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period.

To convict for falsification of a public document under Art. 171,

paragraph 4 of the RPC, the following requisites must concur: (1) the
offender makes in a document untruthful statements in a narration of
facts; (2) the offender has a legal obligation to disclose the truth of the
facts narrated; (3) the facts narrated by the offender are absolutely
false; and (4) the perversion of truth in the narration of facts was made
with the wrongful intent to injure a third person.[16]

The elements of the crime of estafa under Art. 315, par. 2 of the RPC
are: (1) the accused made false pretenses or fraudulent representations
as to his power, influence, qualifications, property, credit, agency,
business, or imaginary transactions; (2) such false pretenses or
fraudulent representations were made prior to or simultaneous with the
commission of the fraud; (3) such false pretenses or fraudulent
representations constitute the very cause which induced the offended
party to part with his money or property; and (4) as a result thereof, the
offended party suffered damage.[17]

Falsification of public document proven

There is no question that petitioners were public officials and

employees performing their official duty when they certified in a public
document that they inspected and found that the road project was
100% complete per contract specifications.

COA Examining Technical Audit Specialist Angluben testified on

October 28, 1994[18] and stated in his affidavit dated August 27, 1987
that the facts in the certificates of inspection and acceptance were
false. His testimony was based on the specifications of the pakyaw
contract as evinced by the Individual Project Program for Roads and
Bridges in the Mountain Province,[19] the original Cross-Section of the
Program for Banilag-Minoli Road widening and partial relocation road
project,[20] and the earthwork computations. According to Angluben,
the earthworks dug were only 364.5 cu. m.,[21] short of the estimated
4,010 cu. m. He also found that no earthworks were done on the
estimated 1,800 cu. m. for removal of slides and overbreaks.[22] The
payment of the completed road project was going to be based on the
actual volume of the earthworks as clearly specified in the pakyaw
contract, vis--vis the estimates of the volume of earthworks in the
project. The only conclusion that could be drawn is that the Banilag-
Minoli Road was far from finished at the time the certifications were
signed by petitioners and when the government paid for the road
project.

Based on the aforesaid documents and Anglubens testimony, we agree

with the Sandiganbayan that Mangangey lied in his declarations. First,
his erroneous identification of the starting point of the project puts into
doubt his claim that he personally inspected the road project. Second,
we find it suspect that Mangangey, a foreman and a supposed
technical expert of the Provincial Engineers Office, could not specify
the width and the extent of the work done on the road. Third,
Mangangeys report that the actual earthworks excavated were exactly
the same as the approximated volume of earthworks to be excavated is
highly improbable. He also offered no proof to rebut the results of the
technical audit of Angluben.

As to the credibility of Angluben, it is a familiar and fundamental

doctrine that the determination of the credibility of witnesses is the
domain of the trial court as it is in the best position to observe the
witnesses demeanor.[23] Anglubens oral testimony is supported by
documentary evidence. Under the circumstances of this case, we are
not inclined to depart from this principle.

Besides, Forayo and Wanason clearly admitted in their counter-

affidavits that they did not personally inspect the project when they
affixed their signatures on the Certificate of Inspection and Acceptance.
According to Forayo, he merely relied on the late Bernardos signature.
Wanason said he signed because he was threatened by Wandag.
Now, as to the requirement that the accused had a legal obligation to
disclose the truth of the facts narrated, suffice it to say that a Certificate
of Inspection and Acceptance is required in the processing of vouchers
for the payment of government projects. Patently, the falsification of this
document by the petitioners caused the release of the payment for an
unfinished road at great cost to the Government.
Elements of estafa duly proven

Similarly, we find that the charge of estafa through falsification of public

documents under Art. 315, par. 2(a) of the RPC was likewise proven.
The first element, that the accused made false pretenses or fraudulent
representations, need not be discussed all over. We have sufficiently
gone over this matter. The same holds true with the requirement that
these falsifications were made during the commission of the crime. The
falsified certificates of inspection and acceptance resulted in the
government paying for the unfinished project to the disadvantage and
injury of the State. Altogether, the elements of the complex crime of
estafa through falsification of public document are present.

The question of conspiracy

Did petitioners conspire with Wandag to defraud the Government by

making untruthful statements in the certificates of inspection and
acceptance?

There is conspiracy when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.[24]
Direct proof of previous agreement to commit a crime is not necessary.
Conspiracy may be shown through circumstantial evidence, deduced
from the mode and manner in which the offense was perpetrated, or
inferred from the acts of the accused themselves when such lead to a
joint purpose and design, concerted action, and community of interest.
[25] Conspiracy must be proven as convincingly as the criminal act
itselflike any element of the offense charged, conspiracy must be
established by proof beyond reasonable doubt.[26] For a co-
conspirator to be liable for the acts of the others, there must be
intentional participation in the conspiracy with a view to further a
common design.[27] Except for the mastermind, it is necessary that a
co-conspirator should have performed some overt actactual
commission of the crime itself, active participation as a direct or indirect
contribution in the execution of the crime, or moral assistance to his co-
conspirators by being present at the commission of the crime or by
exerting moral ascendancy over the other co-conspirators.[28]

In this case, the ascertained facts abovementioned and the

encashment of the contract payment check obtained through the
falsified certificate of inspection prove the commission of the crime.
Wandags guilt has been proven with moral certainty. As co-conspirators
of Wandag, petitioners are equally guilty, for in a conspiracy, every act
of one of the conspirators in furtherance of a common design or
purpose of such a conspiracy is the act of all.[29]

Now, had the conspiracy of petitioners been proven beyond reasonable

doubt?

Recall that petitioners were convicted allegedly on circumstantial

evidence. Under Sec. 4, Rule 133 of the Rules of Court on Revised
Rules of Evidence, circumstantial evidence would be sufficient to
convict the offender if (1) there is more than one circumstance; (2) the
facts from which the inferences are derived are proven; and (3) the
combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. A judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven
constitute an unbroken chain that leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the
guilty person, that is, the circumstances proven must be consistent with
each other, consistent with the hypothesis that the accused is guilty,
and at the same time inconsistent with any other hypothesis except that
of guilty.[30]

Based on our earlier discussion, the facts and the circumstances earlier
mentioned when strung together duly prove guilt beyond reasonable
doubt. Mangangey did not inspect the road project. He could not say
where the starting point of the subject project was when he was
supposed to have inspected it. He certified that the subject project was
completed exactly to the approximate volume of excavated earth
without making any measurements of the earthworks accomplished.
Forayo and Wanason willfully signed the Certificate of Inspection and
Acceptance, and certified that they personally inspected the road when
in fact they did not as admitted in their counter-affidavits during the
preliminary investigation. Wandag took flighta sign of guilt.

In addition, it has not been shown that Forayo and Wanason were under
duress when they signed the falsified documents nor that any of their
constitutional rights have been violated when they made their
declarations in their counter-affidavits. Both Forayo and Wanason did
not dispute the finding that Mangangey did not inspect the road
project. They instead only gave separate excuses on why they signed
the certificate. Also, the non-presentation of the investigating officer
who conducted the preliminary investigation to testify on the admissions
is insignificant as this would only be corroborative. Although petitioners
vehemently deny receiving money from Wandag as their share in the
loot, this information is of no moment. The concerted acts of the co-
conspirators resulted in the processing and release of the payment for
an unfinished road to the disadvantage and damage to the
government. All these circumstances are based on facts proven by the
prosecution, pointing to Wandag and petitioners as conspiring to
defraud the Government. Finally, we do not agree with petitioners that
as lowly employees, they were only prevailed upon by Wandag. As
succinctly observed by the Sandiganbayan, if indeed there was duress,
this duress is not the exempting circumstance of irresistible force in Art.
12, par. 5 of the RPC sufficient to exculpate petitioners. A moral choice
was available to them.

Further, we have reviewed the records and we agree with the

Sandiganbayan that the testimony of Angluben was credible, consistent
and categorical in contrast with the testimony of Mangangey, and there
is no need to corroborate Anglubens testimony. Corroborative evidence
is necessary only when there are reasons to suspect that the witness
falsified the truth or that his observations were inaccurate.[31]

Petitioners are likewise mistaken that the interpretation of the provision

in the pakyaw contract on the volume of the work accomplished is not
factual but merely a conclusion by the Sandiganbayan. Angluben
testified that that there was only 364.5 cu. m. of excavation work
compared to the projected 5,810 cu. m. per program of work. The
aggregate estimate of 5,810 cu. m. is based on the cross-section of the
project and the Individual Project Program. The Sandiganbayan
observed that the contract specifies the approximate volume of
excavation as a basis for payment, and consequently, full payment was
due only when the actual work done had been measured and verified
corresponding to the maximum approximate volume of work. That there
was only 364.5 cu. m. of excavation and there was actual payment for
5,810 cu. m. are not mere interpretations of the contract as petitioners
want us to believe. These are physical evidence of the amount of work
done and evidence of the incompleteness of the work on the road. All
told, we rule that the guilt of petitioners has been proven beyond any
iota of doubt.
WHEREFORE, we DENY the petition, and AFFIRM IN TOTO the assailed
October 27, 2000 Decision and April 6, 2001 Resolution of the
Sandiganbayan Fifth Division in Criminal Case Nos. 17007-08. No
pronouncement as to costs.

SO ORDERED.

x--x

G.R. No. 206291, January 18, 2016

PEOPLE OF THE PHILIPPINES, Appellee, v. ZALDY SALAHUDDIN AND

THREE (3) OTHER UNIDENTIFIED COMPANIONS, Appellants.

DECISION

PERALTA, J.:

This is an appeal from the Decision1 dated October 25, 2011 of the
Court of Appeals in CA-G.R. CR-HC No. 00638-MIN, which affirmed the
decision2 of the Regional Trial Court (RTC) of Zamboanga City, Branch
16, finding Zaldy Salahuddin guilty beyond reasonable doubt of the
crime of murder in Criminal Case No. 20664.

Appellant Zaldy Salahuddin was charged with the crime of murder in

the Information dated June 9, 2004, the accusatory portion of which
reads:

That on or about February 10, 2004, in the City of Zamboanga,

Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with a .45 caliber pistol and
other handguns, conspiring and confederating (sic) together, mutually
aiding and assisting one another, by means of treachery, evident
premeditation and abuse of superior strength, and with intent to kill, did
then and there, wilfully, unlawfully and feloniously, assault, attack and
shoot with the use of said weapons ATTY. SEGUNDO SOTTO, JR. y
GONZALO, employing means, manner and form which tended directly
and specially to insure its execution without any danger to the persons
of the herein accused, as a result of which attack, said Ally. Segundo
Sotto, Jr. y Gonzalo sustained mortal gunshot wounds on the fatal parts
of his body which directly caused his death, to the damage and
prejudice of the heirs of said victim;

That the commission of the above-stated offense has been attended by

the following aggravating circumstances, to wit:
Use of unlicensed firearm; and

Use of motorcycle to facilitate not only the commission of the crime but
also the escape of the accused from the scene of the crime.

That the crime be committed at night time.

CONTRARY TO LAW.3ChanRoblesVirtualawlibrary
Upon arraignment, appellant pleaded not guilty to the murder charge.
Trial ensued afterwards.

Appellant was also charged with frustrated murder in Criminal Case No.
20665 for having fatally wounded Liezel Mae Java, the niece of the
victim, during the same shooting incident. Since Java was alleged in
the Information to be a minor, the said case was transferred to Branch
15 of the RTC of Zamboanga City, which is the only designated family
court in the city.

To establish its murder case against appellant, the prosecution

presented the testimonies of nine (9) witnesses, namely: (1) Juanchito
Vicente Delos Reyes, the security guard who witnessed the shooting
incident; (2) Dr. Melvin Sotto Talaver, the one who assisted the doctor
who examined the victim's cadaver; (3) Java, the niece and companion
of the victim at the time of the incident; (4) Michal Maya, the secretary
of the victim in his law office; (5) Vicente Essex Minguez, the National
Bureau of Investigation Agent who investigated the incident; (6) SPO3
Ronnie Eleuterio, a police officer attending to records of firearms and
licenses; (7) Police Chief Inspector Constante Sonido, the one who
conducted ballistic examination over the 2 empty shells; (8) Atty.
Wendell Sotto, the son of the victim; and (9) Gloria Sotto, the victim's
wife.

As summarized by the Court of Appeals (CA), the facts established by

the evidence for the prosecution are as follows:
On February 10, 2004, at around 5:30 in the afternoon, Atty. Segundo
Sotto Jr., a prominent law practitioner in Zamboanga City, together with
his niece, Liezel Mae Java[,] left the former's law office and went home
driving an owner[-]type jeep. On the way towards their house at
farmer's Drive, Sta. Maria, Zamboanga City, they passed by Nunez
Street, then turned left going to Governor Camins Street and through
Barangay Sta. Maria. When the jeep was nearing farmer's Drive, the
jeep slowed down, then, there were two gun shots. Liezel Mae, the one
sitting at the right side of the jeep felt her shoulder get numb. Thinking
that they were (he ones being fired at, she bent forward and turned left
towards her uncle. While bending downwards, she heard a sound of a
motorcycle at her right side. Then, she heard another three (3)
[gunshots] from the person in the motorcycle. After that, the motorcycle
left.

While Liezel's head was touching the abdomen of her uncle, she was
crying and calling out his name. A few minutes later, rescuers arrived.
Liezel and Alty. Segundo, with the use of tricycles, were brought to
Western Mindanao Medical Center (WMMC).

Juanchito Vicente Delos Reyes, a Security Guard at the house of

George Camins, located in Brgy. Sta. Maria, while seated on a stool at
the inner side of the gale, lacing the road, noticed that in the early
evening of February 10, 2004, he saw a man driving a jeep, with a
woman inside. He then heard two [gunshots]. Immediately after that,
the jeep bumped at an interlink wire at the left side of the road, going to
the entrance of farmer's Drive, lie peeped through the jeep and saw the
face of the person in the driver's seat slammed on the steering wheel.
Me thereafter saw the motorcycle in front of the victim and the latter was
shot again. The motorcycle went to the right side of the jeep and the
backrider again shot the victim. Seeing the shooting incident, Delos
Reyes aimed his gun at the person shooting. When the latter saw this,
he made a sign - with his extended left hand, moving his left with open
palms sidewards. To Delos Reyes' mind, the sign means that the
assailant does not want to be interfered [with]. When the motorcycle
was about to leave, the assailant fired again.

After the motorcycle left, Delos Reyes called two tricycles in the
highway to bring (he wounded victims to the hospital. After the tricycles
left, three (3) policemen from Sta. Maria Police Station arrived. Delos
Reyes right away contacted the manager of WW Security Agency, Mr.
Will redo Manlangit and told him about the incident. When the police
officers were already in the crime scene, Delos Reyes told them that he
still cannot relay everything that happened for he was still in a state of
shock. It was his first time to see such an incident.

Atty. Wendell Sotto, the son of the victim, on the dale of the incident,
came from the law office and went home to their house at farmer's Drive
ten (10) minutes after the victim and his niece left the office. When Atty.
Wendell was about to turn right to farmer's Drive, he saw his lather's
jeep stalled at the left side of the said street. Upon seeing his father's
jeep, he stopped his car and saw his father already slouching on the
steering wheel of the jeep and his cousin slouching on his father's side.
He noticed that his father was already full of blood. He went to the left
side of the jeep, tried to pull his father out and shouted for help. Atty.
Wendell brought his lather to the Operating Room of WMMC. Dr. Lim
and Dr. Melvin Talaver attended to the victim, but they pronounced the
victim to be dead on arrival.

Dr. Melvin Sotto Talaver, the one who assisted Dr. Lim in the examination
of the cadaver testified that on February 10, 2004, at around 5:30 in the
afternoon, he was at home, taking a rest from his duty. At around 6
o'clock, he was called by a staff of the Emergency Room of WMMC
informing him about what happened to his relative, Atty. Segundo.
Immediately thereafter, he went to the hospital. When he arrived there,
Dr. Lim already declared the patient to be dead. After that
announcement, the deceased was transferred to a smaller room. Dr.
"Palaver and Dr. Lim examined the body and made the recording of the
entry and exit wounds. Dr. Talaver witnessed how Dr. Lim used a sketch
of the human body, front and back, to document her findings.

As seen in the Physical Examination Form, there were lour wounds in

the front anatomy one in the neck area, another on the chest above
the left nipple, the third one was in the solarplexus between the two
breasts, and the last is somewhere in the abdominal area. For the back
anatomy, they discovered exit wounds, from where they recovered the
two (2) slugs, which they gave to Atty. Wendell, the son of the victim.
Based on the Medical Certificate issued by Dr. Lim, the diagnosis
stated Dead on Arrival - Cardiorespiratory arrest, secondary to
hypovolemia, secondary to multiple gunshot wounds.

Vicente Essex Minguez, an NBI agent assigned at Western Mindanao

Regional Office, Zamboanga City stated under oath that on February
13, 2004, Mayor Sotto of the Municipality of Siay, Zamboanga Sibugay,
the brother of the deceased, filed a complaint before the NBI Office. On
March 17, 2004, the NBI Office also received a Resolution from the City
Ciovernment of Zamboanga City requesting the said agency to conduct
an investigation regarding the killer of Atty. Segundo Sotto. Upon
receipt of the resolution, NBI Agent Minguez then coordinated with his
civilian agents to gather information about the death of Atty. Segundo.
lie also went to Sta. Maria Police Station and asked the police officers
the progress of the investigation that they conducted. Sta. Maria Police
then gave him a copy of the Report and told him that the empty shells
were turned over to the crime laboratory. Subsequently, lie tacked (sic)
some investigation agents to look for witnesses of the said crime. When
they came to know the name of the Security Guard Delos Reyes, they
asked him to be a witness.

On March 3, 2004, Delos Reyes was brought by his manager Manlangit

at the NBI Office, and there he gave a statement as to what happened
during the incident on February 10, 2004. Delos Reyes also mentioned
in his testimony that on February 17, 2004, at around 10 o'clock in the
evening, while he was at the side of the gate inside the fence of the
residence of George Camins, a motorcycle with two (2) males riding on
it stopped. Delos Reyes called on the two (2) maids of George Camins
to peep through the persons outside. After that, the maids returned and
told him that they saw the backrider holding something and
demonstrated the left or right hand pulling something backward and
pulled it again forward, as if making a cocking action. The next day
after the said incident, Delos Reyes stopped reporting for work, with the
permission of his manager, because it came to his mind that those were
the people who killed Atty. Segundo.
On March 16, 2004, Delos Reyes was again at the NBI Office, and was
asked to piece together the eyes, ears, mouth and nose of the
accused. After having the sketch of the assailant, NBI Agent Minguez
designated it to his informants to gather more information. During the
later part of March 2004, an informant told Agent Minguez that he can
identify the gunman. On March 28, 2004, the NBI then conducted a
surveillance in Barangay Dita where the assailant was residing, as
informed by the informant. In the said area, the NBI spotted the
gunman riding a motorcycle.

On April 1, 2004, NBI agents, about ten (10) of them, together with
Delos Reyes, disguised themselves as campaigners of the late
Fernando Poe Jr. During that time, accused was spotted in a shop
talking to two (2) women agents. Agent Minguez asked confirmation
from Delos Reyes if the person in the sketch was the same person that
they saw in the shop. Thereafter, the agents backed out, Minguez went
to the NBI Office and prepared into writing the surveillance that was
conducted.

On April 22, 2004, NBI filed the case with the Office of the City
Prosecutor. Thereafter, a warrant of arrest was issued. On July 22, 2004,
Minguez. and some of the NBI agents served the warrant at Barangay
Vitali and arrested the accused. Upon his arrest, the agents recovered
a .45 caliber firearm from the accused.

On the next day, Agent Minguez invited Delos Reyes and Liezel Mae to
identify if the person that they arrested was the same person whom they
saw kill the victim. Both [eyewitnesses] positively identified the person
to be the gunman.

Michal Macaya, the secretary of the law office of deceased Atty.

Segundo, testified that on February 10, 2004, at about 10:30 in the
morning, while Atty. Segundo was having a hearing at Branch 13, two
men arrived at the office, looked for Atty. Segundo and asked where he
was having a hearing. They left but returned thirty (30) minutes later.
Maeaya told them to come inside the office, but they refused to do so.
They left again, and when they came back at past eleven, there were
already four (4) of them, looking for Atty. Segundo. The four (4) men left
and came back at about 12 o'clock in the morning. After the accused
was arrested, Macaya was asked to come to the NBI Office to identify
the accused. She stated that the accused and the person who went to
the law office four (4) times have the same shape of the face.

Mrs. Gloria Sotto, the wife of the deceased, testified that at the time of
the incident, she was at home. She came to know about what
happened to her husband when her neighbors came shouting that Atty.
Segundo was shot outside. She trembled and her children cried, but
still she managed to go to the crime scene, and found that her husband
was no longer there. She immediately went to the hospital and saw her
husband already dead. The body of the victim was released at around
7:30 to 8 o'clock on that same night. The body of her husband was
made to lie at La Merced Memorial Homes for nine (9) days and was
buried at Forest Lake.

SPO3 Ronnie Eleuterio, a Police Ofl1ce[r| attending records pertaining

to firearms and licenses, testified that on August 5, 2004, he received a
request for verification from the Fiscal Office to issue a Certification
whether accused Zaldy Salahuddin has a licensed firearm. Me checked
the records and found that accused has no existing record of any
firearms license, permit to transport or permit to carry firearms outside
of his residence.

Police Chief Inspector Constantc Sonido, Regional Chief and Firearm

Examiner of the Regional Crime Laboratory, Region IX, testified that on
February 11, 2004, he received a request from Sta. Maria Police Station
for the conduct of a ballistic examination on the 2 empty shells. Based
on his examination and as seen in the Firearms Identification Section
Report No. FA1S-003-04, the two (2) cartridge cases were part from the
same .45 caliber firearm.4ChanRoblesVirtualawlibrary
To substantiate appellant's defenses of denial and alibi, on the other
hand, the defense presented the testimonies of 9 witnesses, namely: (1)
appellant; (2) Sarabi Hussin; (3) Jauhari Hussin; (4) Sairaya Temong; (5)
SPO1 Vicente Alama y Tanuan; (6) PO2 Donato Acosta y Mendoza; (7)
Wilfredo Manlangit; (8) P/Sr. Ins. Hado Edding; and (9) P/Chief Insp.
Roman Cornel Arugay.

As summarized by the CA, the facts established by the evidence for the
defense are as follows:
The accused, on the other hand, interposed the defense of denial, lie
averred that on February 10, 2004, he was on duty as a Barangay
Tanod, together with Jauhari Hussin, a Barangay Kagawad. On that
day, he reported for duty at 7 o'clock in the morning until 5 o'clock in
the afternoon, and stayed, during the whole day, in the barangay hall,
and in some instances at the nearby elementary school. Alter 5 o'clock
P.M. of that day, he passed by the house of Barangay Chairman, Sarabi
Hussin, the brother of the above-named Kagawad. Fie stayed there and
had a long conversation with the Barangay Chief and went home at
around 9 o'clock in the evening. He claimed that he does not know
about any participation in the killing of Atty. Segundo. During the time of
the incident, accused insisted that he was at the house of the Barangay
Captain for the latter did not go to the Barangay Hall.

Major Wilfredo Manlangit, a Major of the Philippine Army and Operator

of WW Security Agency testified that based on the Monthly Disposition
Report of WW Security Agency for the month of February 2004, no
name of Juanchito Delos Reyes appears as one of the security guards
for the month of February. A Certification dated September 30, 2004
slated that Juanchito Delos Reyes was on active duty at "Tu Casa"
residence under the residence of Mrs. Corazon Camins as of March 3,
2004 only. However, on cross-examination, Major Manlangit affirmed
that Delos Reyes was already one of the Security Guards of the agency.
He remembered that Delos Reyes had already started working as one
of its security guards in February 2004. He explained that Delos Reyes'
name did not appear in the report because he did not complete the
30[-]day period in one month. It was required that he completes the 30-
day period because the names in the report reflected only the names of
the guards who completed the whole month.

Another defense witness Police Officer Donato Acosta, the assigned

duty investigator for the killing of Arty. Segundo testified that he,
together with his assistant PO1 Alama, under the supervision of Police
Chief Edding, tried to find witnesses on the incident. He spoke with a
certain Bayot, the seller of the store, near the place of the incident. The
seller told the investigator that she saw the driver wearing a closed
helmet, and the one riding at the back wore a shade. The result of their
investigation was that a certain Toto Amping is the alleged assailant.
These findings were written down by another defense witness PO1
Vicente Alama, who prepared a Special Investigation Report dated
February 25, 2004, which was submitted to NBI Agent Minguez, but
was unsigned by Chief of Police Edding.
Chief of Police Hado Edding testified that he did not sign the Special
Investigation Report because the name mentioned in the report,
purporting to be the assailant, was not supported by witnesses. He
stated that the Special Investigation Report could not be taken as an
official report of the Sta. Maria Police Station because as a matter of
procedure, a report is considered official when the Chief of Police
approves it. x x x.

Sarabi Hussin, the Barangay Chairman of Barangay Dita, testified that

on February 10, 2004, he was at the Barangay Hall of Barangay Dita
from 7 o'clock in the morning until 5 o'clock in the afternoon. He
affirmed that he and accused Zaldy just stayed at the Barangay hall the
whole day. He left the barangay hall at around 5 o'clock in the afternoon
with the accused Salahuddin, through a motorcycle. Accused Zaldy,
and Kagawad Jauhari Hussi[n] stayed at the house of the barangay
chairman, ate there and left at around 8 o'clock in the evening.

Jauhari Hussin, a Barangay Kagawad of Barangay Dita corroborated

the testimony of the barangay chairman. He declared that on February
10, 2004, he reported for duty with accused Salahuddin. Accused and
the barangay chairman went home together, with the use of a
motorcycle. He just walked home a little later.

Another defense witness, Saiyara Temong, the barangay secretary of

Dita supported the testimony of the barangay chairman, kagawad and
accused. She declared that the persons present on February 10, 2004
were Brgy. Kagawad, Jauhari Hussin, Brgy. Chairman Sarabi Hussin
and accused Barangay Tanod Salahuddin.

Chief of Firearm Explosive Security Agencies and Guard Section

(FESAGS) Roman Arungay, testified that he received a request from
Atty. Mendoza of the Public Attorney's Office to submit some data
regarding a Security Guard named Juanchito Delos Reyes. He issued a
Certification stating that Delos Reyes was not included in the monthly
disposition of the guards of WW Security Agency Specialist Services
covering the period from 01 to 29 February 2004. Delos Reyes was,
however, included in the list of security guards employed under the said
agency.5ChanRoblesVirtualawlibrary
After trial, the RTC convicted appellant of the crime of murder. The
dispositive portion of its Decision dated March 28, 2008 states:
WHEREFORE, the Court finds accused ZALDY SALAHUDDIN y MUSU
GUILTY BEYOND REASONABLE DOUBT of the crime of Murder, as
principal, for the unjustified killing of Atty. Segundo Sotto, Jr. y Cionzalo
with the qualifying circumstances of treachery and evident
premeditation and the ordinary aggravating circumstances of use of
unlicensed firearm and use of motor vehicle which facilitated the
commission of the crime and the escape of the accused and his
companion from the crime scene, and SENTENCES said accused to
suffer the penalty of RECLUSION PERPETUA and its accessory
penalties; to pay the heirs of the late Atty. Segundo G. Sotto, Jr. the
amount of Php50,000.00 indemnity for his death; Php100,000.00 as
moral damages; Php50,000.00 as exemplary damages; Php197,548.25
as actual damages; and Php4,378,000.00 for loss of earning capacity;
and to pay the costs.

SO ORDERED.6ChanRoblesVirtualawlibrary
The trial court found that two (2) eyewitnesses positively and
categorically identified appellant as the gunman who shot Atty.
Segundo and Java at around 6:00 p.m. on February 1.0, 2004 at
Farmer's Drive, Sta. Maria, Zamboanga City. The trial court stressed
that Java could not have been mistaken in identifying appellant as the
gunman as he was just a meter away when he shot Atty. Segundo,
while Juanchito Delos Reyes, a security guard on-duty at an
establishment near the crime scene, also positively identified appellant
as the gunman, and could not be mistaken as to the latter's identity
because they had an eye-to-cye contact for about 5 seconds at a
distance of 6 meters. The trial court added that the testimonies of the
defense witnesses were replete with inconsistencies and
contradictions, and were incredible when ranged against the positive
testimonies of the prosecution witnesses who were not shown to have
any improper motive to falsely testify against appellant.

On appeal, the CA affirmed with modification the trial court's decision

by increasing the civil indemnity from P50,000.00 to P75,000.00, and
reducing the award of exemplary damages from P50,000.00 to
P30,000.00. The dispositive portion of the CA decision reads:
WHEREFORE, the appeal is DENIED. We affirm the Regional Trial Court
Branch 16 of Zamboanga City Decision dated March 28, 2008 in
Criminal Case No. 20664, finding ZALDY SALAHUDDIN y MUSU guilty
of Murder and sentencing him to suffer Reclusion Perpertua and its
accessory penalties, subject to the modification that he is held liable to
pay the heirs of [the] late Atty. Segundo G. Sotto, Jr., death indemnity of
PhP75,000.00, moral damages of PhP100,000.00, Php30,000.00 as
exemplary damages, Php197,548.25 as actual damages and
PhP4,378,000.00 for loss of earning capacity and to pay the costs.

SO ORDERED.7ChanRoblesVirtualawlibrary
The CA found that Java, Atty. Segundo's niece, positively identified
appellant as the gunman, as it was not yet dark and she was just about
1 meter away from him, while Delos Reyes, a security guard at a nearby
establishment, was about 4 to 6 meters away from the crime scene
when he aimed his service firearm at the appellant who, in turn, made a
hand sign at him not to interfere. The CA ruled that appellant failed to
present convincing evidence that he was indeed at the barangay hall
the whole day of February 10, 2004, and that his defenses were
anchored on the testimonies of the Barangay Chairman, Kagawad and
Secretary, which were all inconsistent from his very own testimony. Even
if appellant's denial and alibi were corroborated by said defense
witnesses, the CA rejected such defenses as unworthy of belief and
credence, as they were established mainly by appellant himself, his
friends and comrades-in-arms. The CA also found that it was not
physically impossible for appellant to be present at the crime scene
because the barangay hall where he supposedly stayed the whole day
was just about 44 kilometers away and can be reached within a travel
time of about 1 hour and 30 minutes.

On the issue of whether the crime was committed with evident

premeditation, the CA noted that although the prosecution has clearly
established the second element of overt act indicating that appellant
had clung to his determination to commit the crime, no evidence was
adduced to prove the first and third elements, i.e., the time when the
appellant had determined to commit the crime, and the sufficient lapse
of time between the decision to commit and the execution of such
crime. Nevertheless, the CA upheld appellant's conviction for murder,
as the prosecution has established beyond reasonable doubt that the
killing of the victim was qualified by treachery.

Hence, this appeal.

In support of his theory that the trial court gravely erred in convicting
him despite the failure of the prosecution to provide evidence of his
guilt beyond reasonable doubt, appellant reiterates the same
arguments he raised before the CA.

According to appellant, he was at the barangay hall on February 10,

2004 at 7:00 a.m. and rendered duty together with Barangay Kagawad
Jauhari Hussin until 5:00 p.m. Thereafter, he passed by the house of
Barangay Chairman Sarabi Hussin, who was his neighbor and stayed
there until 9:00 p.m. before he finally went home. For his part, Barangay
Chairman Sarabi corroborated appellant's alibi, and testified that
appellant had reported for duty on February 10, 2004 from 7:00 a.m. to
5:00 p.m., and that they went home together afterwards. Barangay
Kagawad Jaurai Hussin and Barangay Secretary Saiyara Temong also
confirmed that appellant had indeed reported for duty on even date.
They added that appellant and the Barangay Chairman rode a
motorcycle and went home together at 5:00 p.m. The barangay logbook
showed that appellant timed in at 7:30 a.m. and timed out at 5:00 p.m.
on February 10, 2004.

Considering the foregoing evidence that he was at the barangay hall

from 7:30 a.m. to 5:00 p.m. on February 10, 2004, appellant insists that
the defense has shown that it was impossible for him to have committed
the crime by going to Atty. Segundo's law office which is about 44
kilometers away or 1 1/2 hour-ride from the city proper. Fie asserts that
the said barangay officials are credible witnesses, and that their
testimonies are worthy of full faith and credit, since they testified in a
categorical and frank manner, and were not shown to have any
improper motive to falsely testify in court. He concedes that there are a
few discrepancies and inconsistencies in the testimonies of the defense
witnesses, which pertain only to minor details, and are not of a nature
and magnitude that would impair their credibility.

The appeal lacks merit.

It is well settled that the trial court's evaluation of the credibility of

witnesses is entitled to great respect because it is more competent to
so conclude, having had the opportunity to observe the witnesses'
demeanor and deportment on the stand, and the manner in which they
gave their testimonies.8 The trial judge, therefore, can better determine
if such witnesses were telling the truth, being in the ideal position to
weigh conflicting testimonies. Further, factual findings of the trial court
as regards its assessment of the witnesses' credibility are entitled to
great weight and respect by the Court, particularly when the Court of
Appeals affirms the said findings, and will not be disturbed absent any
showing that the trial court overlooked certain facts and circumstances
which could substantially affect the outcome of the case. After a careful
review of the records, the Court finds that no compelling reason exists
to warrant, a deviation from the foregoing principles, and that the RTC
and the CA committed no error in, giving credence to the testimonies of
the prosecution witnesses.

Prosecution witnesses Java and Delos Reyes were clear and consistent
in the identification of appellant as the one who fatally shot Atty.
Segundo several times. As aptly held by the CA:
In the case at bar, eyewitnesses Liezel Mae Java and Juanchito Delos
Reyes positively and categorically identified the accused-appellant to
be the assailant of the murder (sic). Liezel Mae Java, in her testimony,
stated that she was one hundred percent (100%) sure that the
accused-appellant was the man who shot her uncle. She could not
forget the man because even if it was around 6 o'clock in the evening it
was not yet totally dark and she was only about one meter from the
accused. Juanchito Delos Reyes also declared that he was about lour
(4) to six (6) meters away from the scene of the crime and he saw the
accused making a sign at him, by the time he aimed his gun at die
assailant. These direct, straightforward and positive testimonies of the
aforesaid witnesses pointing to the accused appellant as the gunman
created strong and credible evidence against him, thus no weight can
be given to the alibi of the accused.9ChanRoblesVirtualawlibrary
Murder is defined under Article 24810 of the Revised Penal Code as the
unlawful killing of a person, which is not parricide or infanticide,
attended by circumstances such as treachery or evident premeditation.
11 The essence of treachery is the sudden attack by the aggressor
without the slightest provocation on the part of the victim, depriving the
latter of any real chance to defend himself, thereby ensuring the
commission of the crime without risk to the aggressor.12 Two conditions
must concur for treachery to exist, namely, (a) the employment of
means of execution gave the person attacked no opportunity to defend
himself or to retaliate; and (b) the means or method of execution was
deliberately and consciously adopted.13 In People v. Biglete,14 the
Court ruled:
x x x Indeed, the victim had no inkling of any harm that would befall him
that fateful night of August 27, 2001. He was merely plying his regular
[jeepney] route. He was unarmed. The attack was swift and
unexpected. The victim's arms were on the steering wheel; his focus
and attention on the traffic before him. All these showed that the victim
was not forewarned of any danger; he also had no opportunity to offer
any resistance or to defend himself from any attack.
15ChanRoblesVirtualawlibrary
In this case, the trial court correctly ruled that the fatal shooting of Atty.
Segundo was attended by treachery because appellant shot the said
victim suddenly and without any warning with a deadly weapon, thus:
x x x Atty. Segundo G. Sotto, Jr., who was driving his jeep with his
teenage niece as passenger sitting on his right side on the front seat,
was totally unaware that he will be treacherously shot just 200 meters
away from his residence. He was unarmed and was not given any
opportunity to defend himself or to escape from the deadly assault.
After he was hit when the gunman fired the first two shots at him and his
niece and after he lost control of his jeep which bumped an interlink
wire fence and stopped, he was again shot three times by the gunman.
x x x16ChanRoblesVirtualawlibrary
The essence of evident premeditation, on the other hand, is that the
execution of the criminal act must be preceded by cool thought and
reflection upon the resolution to carry out the criminal intent during a
space of time sufficient to arrive at a calm judgment.17 For it to be
appreciated, the following must be proven beyond reasonable doubt:
(1) the time when the accused determined to commit the crime; (2) an
act manifestly indicating that the accused clung to his determination;
and (3) sufficient lapse of time between such determination and
execution to allow him to reflect upon the circumstances of his act.18
As aptly pointed out by the Office of the Solicitor General, the trial court
conceded that the specific time when the accused determined to
commit the crime, and the interval between such determination and
execution, cannot be determined.19 After a careful review of the
records, the Court agrees with the CA's finding that no evidence was
adduced to prove the first and third elements of evident premeditation.

In seeking his acquittal, appellant raises the defenses of denial and

alibi. However, such defenses, if not substantiated by clear and
convincing evidence, are negative and self-serving evidence
undeserving of weight in law.20 They are considered with suspicion
and always received with caution, not only because they are inherently
weak and unreliable but also because they are easily fabricated and
concocted.

Denial cannot prevail over the positive testimony of prosecution

witnesses who were not shown to have any ill-motive to testify against
the appellants.21 Between the categorical statements of the
prosecution eyewitnesses Java and Delos Reyes, on one hand, and the
bare denial of the appellant, on the other, the former must prevail. After
all, an affirmative testimony is far stronger than a negative testimony
especially when it conies from the mouth of a credible witness. In order
for the defense of alibi to prosper, it is also not enough to prove that the
accused was somewhere else when the offense was committed, but it
must likewise be shown that he was so far away that it was not possible
for him to have been physically present at the place of the crime or its
immediate vicinity at the time of its commission.22 The Court sustains
the CA in rejecting appellant's defenses of denial and alibi, as follows:
In the instant case, accused-appellant failed to present convincing
evidence that he was indeed at the barangay hall the whole day of
February 10, 2004. Accused anchored his defense from the testimonies
of [the] Barangay Chairman, Barangay Kagawad and Barangay
Secretary, which were all inconsistent from his very own statements in
court. First, accused claimed that on February 10, 2004, he just stayed
at the Barangay flail and then did some rounds at the school nearby.
However, Barangay Chairman flussin claimed that accused just stayed
only at the barangay hall for the whole day. Second, accused claimed
that at around 5 o'clock in the afternoon, he went home walking
together with Barangay Kagawad Jauhari Hussin. On the other hand,
Barangay Chairman testified that he went home together with the
accused at around 5 o'clock in the afternoon of that day. Jauhari Hussin
corroborated [the] Barangay Chairman's statement saying that accused
and the latter went home together with the accused driving the
motorcycle. Third, accused claimed that they did not eat at the house of
the Barangay Captain, for they only had long conversations and he only
ate at their house, at around 9 o'clock. Conversely, Barangay Captain
Hussin testified that accused stayed at their house and ate dinner
there. Fourth, accused claimed that he does not know how to drive a
motorcycle for he was just learning the skill. On the other hand, the
barangay captain, corroborated by the testimony of his brother
Barangay Kagawad affirmed that the accused and the former went
home together by the use of a motorcycle, with the accused driving it.
All of these are declarations of the defense witnesses which, instead of
corroborating accused's defense of alibi and denial, tend to diminish
the credibility of the accused.

Furthermore, even if the defense of alibi was corroborated by [the]

testimonies of the Barangay Chairman, Barangay Kagawad, and
Barangay Secretary, it is undeserving of belief because it has been
held that alibi becomes more unworthy of merit where it is established
mainly by the accused himself and his or her relatives, friends, and
comrades-in-arms, and not by credible persons.
23ChanRoblesVirtualawlibrary
In contrast to the credible testimonies of the prosecution witnesses
Delos Reyes and Java who positively identified appellant as the
gunman, the testimonies of the defense witnesses in support of
appellant's denial and alibi, are tainted with material inconsistencies.

On the one hand, Barangay Chairman Sarabi Hussin testified that he,
together with appellant, reported for work at the Barangay Hall of Dita
on February 10, 2004 at 7 o'clock in the morning and left at 5 o'clock in
the afternoon, and that he let appellant drive his motorcycle from his
home, to the barangay hall, and back.24 Despite his insistence that he
signed the attendance logbook on February 10, 2004, Sarabi later
admitted that his signature does not appear thereon.25 On the other
hand, appellant testified that Sarabi did not report for work that day,
and that aside from himself, the two (2) other persons at the Barangay
Hall that day were Barangay Kagawad Jauhari Hussin and Barangay
Secretary Sairaya Temong.26 Appellant added that after 5 o'clock in the
afternoon of February 10, 2004, his companion in going home was
Barangay Kagawad Jauhari, and not Sarabi.

With respect to the aggravating circumstances alleged in the

Information, the Court finds that the trial court duly appreciated the
presence of the use of unlicensed firearm in the commission of the
crime, as well as the use of motor vehicle to facilitate its commission
and escape of the accused from the crime scene.
To establish the special aggravating circumstance of use of unlicensed
firearm in the fatal shooting of Atty. Segundo, the prosecution presented
the following evidence: (1) testimony of Delos Reyes that the gun used
by appellant was a "short gun";27 (2) the testimony of SPO3 Ronnie
Eleuterio and the Certification28 from the Firearms, Explosives, Security
Agencies and Guards Section (FESAGS) of the Police Regional Office 9
of the Philippine National Police (PNP) to the effect that records of the
said office do not show that a firearms license, permit to carry or permit
to transport firearms outside of residence were issued to appellant; (3)
the request29 for ballistics examination of two pieces .45 caliber slugs
recovered by the attending physicians on the body of the victim and
two pieces of .45 caliber slugs that were test-fired from the .45 caliber
pistol recovered from appellant when he was arrested by NB1
operatives; and (4) FID Report No. 192-2-2-8-200430 dated September
15, 2004 which contain the result of the said examination.

hi People v. Dulay,31 the Court ruled that the existence of the firearm
can be established by testimony even without the presentation of the
firearm. In the said case, it was established that the victims sustained
and died from gunshot wounds, and the ballistic examinations of the
slugs recovered from the place of the incident showed that they were
fired from a .30 carbine rifle and a .38 caliber firearm. The prosecution
witnesses positively identified appellant therein as one of those who
were holding a long firearm, and it was also proven that he was not a
licensed firearm holder. Hence, the trial court and the CA correctly
appreciated the use of unlicensed firearm as a special aggravating
circumstance.

In contrast, in People v. De Leon,32 the Court found that the said

aggravating circumstance was not proven by the prosecution because
it failed to present written or testimonial evidence to prove that
appellant did not have a license to carry or own a firearm. Although
jurisprudence dictates that the existence of the firearm can be
established by mere testimony, the fact that appellant therein was not a
licensed firearm holder must still be established.33

Despite the result of the ballistic examination that the slugs test-fired
from the gun recovered from appellant when he was arrested, were
different from the 2 slugs recovered from the body of the victim, the
prosecution was still able to establish the special aggravating
circumstance of use of unlicensed firearm in the commission of the
crime. Given that the actual firearm used by appellant in shooting the
victim was not presented in court, the prosecution has nonetheless
proven through the testimony of Delos Reyes that the firearm used by
appellant was a "short gun."34 It has also established through the
testimony of SPO3 Ronnie Eleuterio and the Certification35 from the
FESAGS of the PNP that appellant was not issued a firearms license, a
permit to carry or permit to transport firearms outside of residence.

Notably, the term unlicensed firearm includes the unauthorized use of

licensed firearm in the commission of the crime, under Section 536 of
Republic Act (RA) No. 8294.37 Assuming arguendo that the actual
firearm used by appellant was licensed, he still failed to prove that he
was so authorized to use it by the duly licensed owner. The prosecution
having proven that appellant was not issued a firearms license or
permit to carry or permit to transport firearms, the burden of evidence is
then shifted to appellant to prove his authorization to use the firearm. All
told, the trial court correctly appreciated the presence of the said
aggravating circumstance in imposing the penalty against appellant.

Meanwhile, the use of a motor vehicle is aggravating when it is used

either to commit the crime or to facilitate escape,38 but not when the
use thereof was merely incidental and was not purposely sought to
facilitate the commission of the offense or to render the escape of the
offender easier and his apprehension difficult.39 In People v. Herbias,
40 the Court held:
The use of motor vehicle may likewise be considered as an aggravating
circumstance that attended the commission of the crime. The records
show that assailants used a motorcycle in trailing and overtaking the
jeepney driven by Saladio after which appellant's back rider mercilessly
riddled with his bullets the body of Jciemias. There is no doubt that the
motorcycle was used as a means to commit the crime and lo facilitate
their escape after they accomplished their mission.
41ChanRoblesVirtualawlibrary
The prosecution has proven through the testimonies of Java and Delos
Reyes that appellant was riding a motorcycle behind the unknown
driver when he twice shot Atty. Segundo who thus lost control of his
owner-type jeep and crashed into the interlink wire fence beside the
road. The motorcycle then stopped near the jeep, and appellant shot
Atty. Segundo again thrice, before leaving the crime scene aboard the
motorcycle. Clearly, the trial court correctly appreciated the generic
aggravating circumstance of use of motor vehicle in the commission of
the crime.

Since the fatal shooting of the victim was attended by the qualifying
circumstance of treachery, the Court upholds the trial court in
convicting appellant of the crime of murder. The penalty for murder
under Article 248 of the Revised Penal Code is reclusion perpetua to
death. Article 63 of the same Code provides that, in all cases in which
the law prescribes a penalty composed of two indivisible penalties, the
greater penalty shall be applied when the commission of the deed is
attended by one aggravating circumstance. Although evident
premeditation was not established, the other aggravating
circumstances of use of unlicensed firearm and use of motor vehicle in
the commission thereof, were alleged in the Information and proven
during the trial. The presence of such aggravating circumstances
warrants the imposition of the death penalty. However, in view of the
enactment of RA No. 9346,42 the death penalty should be reduced to
reclusion perpetua "without eligibility for parole1' pursuant to A.M. No.
15-08-02-SC.43

Anent the civil liability of appellant, the award of actual damages in the
amount of P197,548.25 is in order because the victim's spouse, Gloria
Sotto, had testified that funeral expenses were incurred and they were
duly supported by official receipts.44

In addition, the award of civil indemnity is mandatory and granted to the

heirs of the victim without need of proof other than the commission of
the crime.45 Even if the penalty of death is not to be imposed because
of the prohibition in R.A. No. 9346, the award of civil indemnity of
P75,000.00 is proper, because it is not dependent on the actual
imposition of the death penalty but on the fact that qualifying
circumstances warranting the imposition of the death penalty attended
the commission of the offense.46 In recent: jurisprudence,47 the Court
has increased the award of civil indemnity from P75,000.00 to
P100,000.00.

Moreover, in line with current jurisprudence48 on heinous crimes where

the imposable penalty is death but reduced to reclusion perpetua
pursuant to R.A. No. 9346, the award for moral damages has been
increased from P75,000.00 to P100,000.00, while the award for
exemplary damages has likewise been increased from P30,000.00 to
P100,000.00. Hence, while the CA correctly affirmed the trial court's
award of P100,000.00 as moral damages, the award of civil indemnity
and exemplary damages in the amounts of P50,000.00 each should be
both increased to P100,000.00. The award of moral damages is called
for in view of the violent death of the victim, and these do not require
any allegation or proof of the emotional sufferings of the heirs.49 The
award of exemplary damages is also proper because of the presence
of the aggravating circumstances of use of unlicensed firearm and use
of a motor vehicle in the commission of the crime.

However, the Court is constrained to disallow the award of

P4,398,000.00 as compensation for loss of earning capacity for
insufficiency of evidence. The rule is that documentary evidence should
be presented to substantiate a claim for loss of earning capacity.50 By
way of exception, damages for loss of earning capacity may be
awarded despite the absence of documentary evidence when: (1) the
deceased is self-employed and earning less than the minimum wage
under current labor laws, in which case, judicial notice may be taken of
the fact that in the deceased's line of work, no documentary evidence is
available; or (2) the deceased is employed as a daily wage worker
earning less than the minimum wage under current labor laws.51 None
of such exceptions was shown to obtain in this case.

Even if the testimony of Gloria Sotto, the victim's spouse, was not
disputed by the defense, the prosecution failed to present any
documentary evidence to prove the victim's monthly income. Thus, the
Court disagrees with the trial court in awarding P4,398,000.00 as
compensation for loss of earning capacity based on the
unsubstantiated testimony of Gloria that her husband had a good law
practice and earned at least P50,000.00 a month or P600,000.00, as
one of the prominent law practitioners in Zamboanga City with almost
daily appearance in court. Be that as it may, in light of settled
jurisprudence and of Gloria's undisputed testimony, the Court finds it
reasonable to award P1,000,000.00 as temperate damages in lieu of
actual damages for loss of earning capacity. As held in Tan, el al. v.
OMC Carrier, Inc., et al.:52
In the past, we awarded temperate damages in lieu of actual damages
for loss of earning capacity where earning capacity is plainly
established but no evidence was presented to support the allegation of
the injured party's actual income.

In Pleno v. Court of Appeals, we sustained the award of temperate

damages in the amount of P200,000.00 instead of actual damages for
loss of earning capacity because the plaintiffs" income was not
sufficiently proven.

We did the same in People v. Singh, and People v. Almedilla, granting

temperate damages in place of actual damages for the failure of the
prosecution to present sufficient evidence of the deceased's income.

Similarly, in Victory Liner, Inc. v. Gammad, we deleted the award of

damages for loss of earning capacity for lack of evidentiary basis of the
actual extent of the loss. Nevertheless, because the income-earning
capacity lost was clearly established, we awarded the heirs
P500,000.00 as temperate damages.53ChanRoblesVirtualawlibrary
Finally, all the damages awarded shall incur legal interest at the rate of
six percent (6%) per annum from the finality of judgment until fully paid.
54

WHEREFORE, the appeal is DISMISSED. The Decision dated October

25, 2011 of the Court of Appeals in CA-G.R. CR-HC No. 00638-MIN is
AFFIRMED with the following MODIFICATIONS: (1) to qualify the
penalty of reclusion perpetua to be "without eligibility for parole"; (2) to
increase the award of civil indemnity from P75,000.00 to P100,000.00;
(3) to increase the award of exemplary damages from P30,000.00 to
P100,000.00; (4) to award P1,000,000.00 as temperate damages in lieu
of the award of P4,398,000.00 as compensation for loss of earning
capacity of Atty. Segundo G. Sotto Jr.; and (5) to impose the legal
interest rate of six percent (6%) per annum on all the damages awarded
from the finality of judgment until fully paid.

SO ORDERED.

x--x

G.R. No. 161308, January 15, 2014

RICARDO MEDINA, JR. Y ORIEL, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Credibility of witnesses is determined by the conformity of their

testimonies to human knowledge, observation and experience.

The Case

Ricardo Medina Jr. (Ricardo) appeals by petition for review on certiorari

the affirmance of his conviction for homicide with modification of the
penalty and civil liability by the Court of Appeals (CA) through the
decision promulgated on July 7, 2003.1 He had assailed his conviction
handed down under the decision rendered on January 31, 2001 by the
Regional Trial Court (RTC), Branch 266, in Pasig City.2 His brother and
coaccused, Randolf Medina (Randolf), was acquitted by the RTC for
insufficiency of evidence.

Antecedents

This case concerns the fatal stabbing of Lino Mulinyawe (Lino) between
9:00 and 10:00 oclock in the evening of April 3, 1997 at Jabson Street
in Acacia, Pinagbuhatan, Pasig City. The stabbing was preceded by a
fight during a basketball game between Ross Mulinyawe, Linos son,
and Ronald Medina, the younger brother of Ricardo and Randolf. In that
fight, Ronald had hit Ross with a piece of stone. Hearing about the
involvement of his brother in the fight, Randolf rushed to the scene and
sent Ronald home. Ross was brought to the hospital for treatment.
Once Lino learned that his son had sustained a head injury inflicted by
one of the Medinas, he forthwith went towards the house of the Medinas
accompanied by his drinking buddies, Jose Tapan and Abet Menes. He
had a bread knife tucked in the back, but his companions were
unarmed. Along the way, Lino encountered Randolf whom he
confronted about the fight. The two of them had a heated argument.
Although Randolf tried to explain what had really happened between
Ross and Ronald, Lino lashed out at Randolf and gripped the latters
hand. Tapan almost simultaneously punched Randolf in the face. Lino,
already holding the knife in his right hand, swung the knife at Randolf
who was not hit. Randolf retreated towards the store and took two
empty bottles of beer, broke the bottles and attacked Lino with them.
Arriving at the scene, Ricardo saw what was happening, and
confronted Lino. A commotion ensued between them. Ricardo entered
their house to get a kitchen knife and came out. Lino made a thrust at
Ricardo but failed to hit the latter, who then stabbed Lino on the left side
of his chest, near the region of the heart. Lino fell face down on the
ground. After that, Ricardo walked away, while Randolf threw the
broken bottles at the fallen Lino.

Linos injuries were described as follows:

Fairly nourished, fairly developed male cadaver, in rigor mortis, with

postmortem lividity at the dependent portions of the body. Conjunctive
lips and nailbeds are pale.

HEAD, CHEST AND LEFT KNEE:

(1) Lacerated wound, left parietal region, measuring 2 by 0.7 cm, 5 cm

from the midsagittal line.

(2) Abrasion, left parietal region, measuring 1.2 by 0.6 cm, 8 cm from
the anterior midline.

(3) Abrasion left maxillary region, measuring 2 by 0.3, 4.5 cm, from the
anterior midline.

(4) Stab wound, left mammary region, measuring 3.6 by 1.4 cm, 5.5 cm
from the anterior line, 12 cm deep, directed posteriorwards,
downwards, and medialwards, thru the 4th left intercostal space,
piercing the pericardial sac and left ventricle.

Cause of death is Stab wound of the chest.

3ChanRoblesVirtualawlibrary

On April 4, 1997, the Office of the City Prosecutor of Pasig City charged
Randolf with homicide.4 The information was amended with leave of
court to include Ricardo as a coconspirator, alleging thusly:
On or about April 3, 1997 in Pasig City and within the jurisdiction of this
Honorable Court, the accused, conspiring and confederating together
and both of them mutually helping and aiding one another, with intent to
kill, did then and there willfully, unlawfully and feloniously attack,
assault, stab and employ personal violence upon the person of Lino M.
Mulinyawe, thereby inflicting upon the latter stab wound, which directly
caused his death.

Contrary to law.5

The Defense claimed that it was Lino who had attacked Ricardo with a
knife, and that Lino had accidentally stabbed himself by falling
frontward and into his own knife.

Judgment of the RTC

In its judgment rendered on January 31, 2001,6 the RTC acquitted

Randolf but convicted Ricardo of homicide. It found no evidence of
conspiracy between Randolf and Ricardo because their actions
appeared to be independent and separate from each other and did not
show that they had mounted a joint attack against Lino. It rejected
Ricardos defense that the fatal stab wound of Lino had been self
inflicted, ratiocinating that:

The fatal wound of the deceased is: stab wound, left mamary [sic]
region, measuring 3.6 by 1.4 cm, 5.5 cm from the anterior midline, 12
cm deep, directed posteriorwards, downwards, and medialwards, thru
the 4th left intercostal space, piercing the pericardial sac and left
ventricle. (See Exh. J).

Randolf Medina testified that Lino Mulinyawe attacked him with a knife
held with his right hand. The trajectory of the stab wound sustained by
Lino Mulinyawe at his left mammary region as shown by the Medico
Legal Report and Medico Legal Examination on the cadaver of the
deceased (Exhs. J and L) is incompatible and inconsistent with the
defense of the accused that when Mulinyawe was making a thrust, he
fell frontward and accidentally stabbed himself. If the knife was held
with the right hand of Lino Mulinyawe, the stab wound would not have
been from the anterior midline, 12 cm deep, directed posteriorwards,
downwards, and medialwards, thru the 4th left intercostal space,
piercing the pericardial sac and left ventricle. The trajectory of the stab
wound would have been leftward and upward the body of the
deceased if he really fell frontward upon it.7 (Emphasis supplied)

The RTC disposed and decreed:

WHEREFORE, postulates considered, this Court ACQUITS Randolf

Medina for insufficiency of evidence to prove his guilt of the charge of
homicide against him.

However, the evidence of the prosecution has proven beyond

reasonable doubt the GUILT of the accused Ricardo Medina, Jr. y Oriel
for homicide and he is hereby sentenced with a penalty of
imprisonment of Fourteen (14) years and Eight (8) Months and One (1)
day to Seventeen (17) years and Four (4) Months of reclusion temporal
in its medium period there being neither aggravating nor mitigating
circumstance (Art. 64, par. 1, Revised Penal Code).

The widow Marivi Mulinyawe is hereby awarded the amount of Thirty

Thousand Pesos (P30,000.00) as actual damages and the amount of
Fifty Thousand Pesos (P50,000.00) as moral damages, payable by
Ricardo Medina, Jr. y Oriel.

The bonds posted by both accused are hereby cancelled.

SO ORDERED.8ChanRoblesVirtualawlibrary

Decision of the CA

Ricardo appealed, but the CA affirmed his conviction with modification

of the penalty and the civil liability under the decision promulgated on
July 7, 2003,9 to wit:

WHEREFORE, premises considered, the present appeal is hereby

DISMISSED and the decision appealed from in Criminal Case No.
112091 is hereby AFFIRMED with MODIFICATIONS in that accused
appellant Ricardo Medina, Jr. y Oriel is hereby instead sentenced to
suffer an indeterminate prison term of eight (8) years and one (1) day to
prision mayor, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as maximum, and that the award of
actual damages is hereby reduced from Thirty Thousand Pesos
(P30,000.00) to Twenty Thousand Pesos (P20,000.00) and the sum of
Fifty Thousand Pesos (P50,000.00) is further granted as death
indemnity in addition to the award of Fifty Thousand Pesos (P50,000.00)
as moral damages.

With costs against the accusedappellant.

SO ORDERED.
After his motion for reconsideration was denied on November 21,
2003,10 Ricardo appealed to the Court.

Issues

Ricardo now submits the following errors for consideration, namely:

THE LOWER COURT GRAVELY ERRED IN ITS FACTUAL FINDING

THAT THE [PETITIONER] STABBED LINO MULINYAWE IN SPITE OF
THE FACT THAT:

THE PROSECUTION WITHHELD THE PRESENTATION OF THE

ACTUAL KNIVES DURING THE HEARING OF THE CASE WHICH
PRESENTATION AND BLOOD ANALYSIS ON THE TWO KNIVES
COULD HAVE PROVEN THAT LINO MULINYAWE FELL ON HIS OWN
KNIFE.

THE MEDICOLEGAL TESTIMONY CORROBORATED THE FACT THAT

LINO MULINYAWE FELL ON HIS OWN KNIFE.

II

THE COURT OF APPEALS GRAVELY ERRED IN ADOPTING THE TRIAL

COURTS OPINION THAT THE FATAL WOUND COULD NOT HAVE
BEEN SELFINFLICTED WHICH WAS THE DIRECT OPPOSITE OF THE
OPINION OF THE ONLY MEDICOLEGAL EXPERT PRESENTED WHO
POSITIVELY TESTIFIED THAT THE FATAL WOUND CAN POSSIBLY BE
SELFINFLICTED.
III

THE COURT OF APPEALS ERRED IN MAKING A FINDING THAT THE

[PETITIONER] STABBED THE DECEASED BUT DISREGARDED X X X
THE JUSTIFYING CIRCUMSTANCE OF DEFENSE OF A RELATIVE (ART.
11, RPC) X X X

IV

THE COURT OF APPEALS, EVEN ON THE ASSUMPTION THAT

PETITIONER STABBED LINO MULINYAWE, DID NOT IMPOSE THE
PROPER SENTENCE BY DISREGARDING THE PRESENCE OF
MITIGATING CIRCUMSTANCES AND THE LACK OF AGGRAVATING
CIRCUMSTANCE ATTENDANT TO THE CASE.11

Ruling of the Court

The appeal has no merit.

First of all, Ricardo argues that his stabbing and inflicting of the fatal
wound on Lino were not proven beyond reasonable doubt.

The argument of Ricardo is a mere reiteration of his submissions that

the CA had already exhaustively considered and passed upon. He has
not added anything of substance or weight to persuasively show that
the CA had erred in affirming the RTC.

Time and again, this Court has deferred to the trial courts factual
findings and evaluation of the credibility of witnesses, especially when
affirmed by the CA, in the absence of any clear showing that the trial
court overlooked or misconstrued cogent facts and circumstances that
would justify altering or revising such findings and evaluation.12 This is
because the trial courts determination proceeds from its firsthand
opportunity to observe the demeanor of the witnesses, their conduct
and attitude under grilling examination, thereby placing the trial court in
the unique position to assess the witnesses credibility and to
appreciate their truthfulness, honesty and candor.13 But here Ricardo
has not projected any strong and compelling reasons to sway the Court
into rejecting or revising such factual findings and evaluation in his
favor.

Secondly, Ricardo contends that the State did not present as evidence
in court the two knives wielded by him and Lino despite repeated
demands for their presentation; that had the knives been presented, it
could have been demonstrated to the trial court that the smaller knife
used by Lino had more blood stains than the knife held by him and
would fit the size of the mortal wound; that his assertion that Lino had
stabbed himself when he stumbled and lost his balance while swinging
his knife at Randolf would have been thereby validated; and that in his
testimony, Dr. Emmanuel Aranas of the PNP Crime Laboratory Service,
Southern Police District, did not rule out the possibility that the wounds
sustained by Lino were selfinflicted.

The contention deserves no serious consideration.

To start with, the following findings of the CA indicate that the evidence
supporting the conviction for homicide was already overwhelming even
without the presentation of the knife held by the victim, to wit:

Reviewing the records, We find that appellants guilt as the perpetrator

of the unlawful killing of the victim Lino Mulinyawe had been adequately
proven by prosecution evidence, both testimonial and physical. The
credible and categorical testimonies of two (2) eyewitnesses during the
entire incident on the night of April 3, 1997, Jeffrey and Sherwin,
positively point to appellant as the one (1) who delivered the single fatal
stabbing blow upon the victim while the latter was trying to counter the
assault of appellants brother, coaccused Randolf who was then
holding a broken bottle. The lone knife thrust was directed at the heart
of the victim, the wound penetrating said vital organ up to 12
centimeters deep, the direction, trajectory and depth of the stab wound
clearly showing the intent to kill him. The medicolegal findings of Dr.
Aranas sufficiently corroborate the account of said eyewitnesses that
the victim was attacked frontally and the fatal stab wound caused by a
singlebladed kitchen knife such as the one (1) identified in court,
previously identified by the witness but only the photographs thereof
were formally offered in evidence by the prosecution.
The totality of prosecution evidence more than satisfactorily proves the
commission of the offense and appellants authorship thereof. Contrary
to appellants contention, the nonpresentation of blood samples from
the victim and the accused as well as the instrument which accused
used in perpetrating his felonious acts do not negate criminal liability
it is enough for the prosecution to establish by the required quantum of
proof that a crime was committed and the accused was the author
thereof. The presentation of the weapon is not a prerequisite for
conviction. Such presentation and identification of the weapon used
are not indispensable to prove the guilt of the accused much more so
where the perpetrator has been positively identified by a credible
witness. Appellants insistence, therefore, that the presentation of the
two (2) knives would prove his innocence is futile, irrelevant and
immaterial, in the face of positive identification by two unbiased and
credible eyewitnesses. Positive identification where categorical and
consistent and without any showing of illmotive on the part of the
eyewitnesses testifying on the matter prevails over a denial. Denial
being negative evidence which is selfserving in nature, cannot prevail
over the positive identification of prosecution witnesses. More so in this
case where the defense of denial is not corroborated by disinterested
and credible witnesses: the mother of the accused whose presence in
the crime scene was not sufficiently established and Edgar Erro whose
testimony is found to be doubtful and not without bias.14

The nonidentification and nonpresentation of the weapon actually

used in the killing did not diminish the merit of the conviction primarily
because other competent evidence and the testimonies of witnesses
had directly and positively identified and incriminated Ricardo as the
assailant of Lino.15 Hence, the establishment beyond reasonable doubt
of Ricardos guilt for the homicide did not require the production of the
weapon used in the killing as evidence in court, for in arriving at its
findings on the culpability of Ricardo the RTC, like other trial courts,
clearly looked at, considered and appreciated the entirety of the record
and the evidence. For sure, the weapon actually used was not
indispensable considering that the finding of guilt was based on other
evidence proving his commission of the crime.16

In addition, the witnesses incriminating Ricardo were not only credible

but were not shown to have harbored any illmotive towards him. They
were surely entitled to full faith and credit for those reasons, and both
the RTC and the CA did well in according such credence to them. Their
positive identification of him as the assailant prevailed over his mere
denial, because such denial, being negative and selfserving evidence,
was undeserving of weight by virtue of its lack of substantiation by clear
and convincing proof.17 Hence, his denial had no greater evidentiary
value than the affirmative testimonies of the credible witnesses
presented against him.18

And, thirdly, Ricardos attribution of serious error to the CA for not

appreciating the justifying circumstance of defense of a relative in his
favor was bereft of any support from the records.

In order that defense of a relative is to be appreciated in favor of

Ricardo, the following requisites must concur, namely: (1) unlawful
aggression by the victim; (2) reasonable necessity of the means
employed to prevent or repel the aggression; and (3) in case the
provocation was given by the person attacked, that the person making
the defense took no part in the provocation.19 Like in selfdefense, it is
the accused who carries the burden to prove convincingly the
attendance and concurrence of these requisites because his invocation
of this defense amounts to an admission of having inflicted the fatal
injury on the victim.

In invoking defense of a relative, Ricardo states that his immediate

impulse upon seeing Randolf being attacked by Lino with a knife was to
get his own weapon and to aid in the defense of Randolf. But that
theory was inconsistent with his declaration at the trial that Linos fatal
wound had been selfinflicted, as it presupposes direct responsibility
for inflicting the mortal wound. Thus, his defense was unworthy of belief
due to its incongruity with human experience.

Verily, the issue of credibility, when it is decisive of the guilt or

innocence of the accused, is determined by the conformity of the
conflicting claims and recollections of the witnesses to common
experience and to the observation of mankind as probable under the
circumstances. It has been appropriately emphasized that [w]e have
no test of the truth of human testimony, except its conformity to our
knowledge, observation, and experience. Whatever is repugnant to
these belongs to the miraculous and is outside of judicial
cognizance.20
In fine, Ricardo has not convinced the Court in this appeal that the RTC
and the CA overlooked, or misappreciated, or misread some fact or
circumstance of weight and consequence that would have changed the
outcome of the case in his favor.

The Court needs to raise the civil indemnity from P50,000.00 to

P75,000.00 in order to conform to the current judicial policy on the
matter.21 The other awards of civil liability are sustained because of the
absence of any challenge against them.

WHEREFORE, the Court DENIES the petition for review for its lack of
merit; AFFIRMS the decision promulgated on July 7, 2003 in all
respects, subject to the MODIFICATION that the civil indemnity is
increased to P75,000.00; and ORDERS the petitioner to pay the costs of
suit.ChanRoblesVirtualawlibrary

SO ORDERED.

x--x

G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:

The accused-appellant claimed his business was selling watches but

he was nonetheless arrested, tried and found guilty of illegally
transporting marijuana. The trial court, disbelieving him, held it was
high time to put him away and sentenced him to life imprisonment plus
a fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after

disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in
Iloilo City. The PC officers who were in fact waiting for him simply
accosted him, inspected his bag and finding what looked liked
marijuana leaves took him to their headquarters for investigation. The
two bundles of suspect articles were confiscated from him and later
taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs
Act was filed against him. 2 Later, the information was amended to
include Farida Ali y Hassen, who had also been arrested with him that
same evening and likewise investigated. 3 Both were arraigned and
pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss
the charge against Ali on the basis of a sworn statement of the arresting
officers absolving her after a 'thorough investigation." 5 The motion was
granted, and trial proceeded only against the accused-appellant, who
was eventually convicted . 6

According to the prosecution, the PC officers had earlier received a tip

from one of their informers that the accused-appellant was on board a
vessel bound for Iloilo City and was carrying marijuana. 7 He was
Identified by name. 8 Acting on this tip, they waited for him in the
evening of June 25, 1984, and approached him as he descended from
the gangplank after the informer had pointed to him. 9 They detained
him and inspected the bag he was carrying. It was found to contain
three kilos of what were later analyzed as marijuana leaves by an NBI
forensic examiner, 10 who testified that she conducted microscopic,
chemical and chromatographic tests on them. On the basis of this
finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he

had in his bag was his clothing consisting of a jacket, two shirts and
two pairs of pants. 11 He alleged that he was arbitrarily arrested and
immediately handcuffed. His bag was confiscated without a search
warrant. At the PC headquarters, he was manhandled to force him to
admit he was carrying the marijuana, the investigator hitting him with a
piece of wood in the chest and arms even as he parried the blows while
he was still handcuffed. 12 He insisted he did not even know what
marijuana looked like and that his business was selling watches and
sometimes cigarettes. 13 He also argued that the marijuana he was
alleged to have been carrying was not properly Identified and could
have been any of several bundles kept in the stock room of the PC
headquarters. 14

The trial court was unconvinced, noting from its own examination of the
accused that he claimed to have come to Iloilo City to sell watches but
carried only two watches at the time, traveling from Jolo for that
purpose and spending P107.00 for fare, not to mention his other
expenses. 15 Aminnudin testified that he kept the two watches in a
secret pocket below his belt but, strangely, they were not discovered
when he was bodily searched by the arresting officers nor were they
damaged as a result of his manhandling. 16 He also said he sold one of
the watches for P400.00 and gave away the other, although the
watches belonged not to him but to his cousin, 17 to a friend whose full
name he said did not even know. 18 The trial court also rejected his
allegations of maltreatment, observing that he had not sufficiently
proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering

that it was the trial judge who had immediate access to the testimony of
the witnesses and had the opportunity to weigh their credibility on the
stand. Nuances of tone or voice, meaningful pauses and hesitation,
flush of face and dart of eyes, which may reveal the truth or expose the
lie, are not described in the impersonal record. But the trial judge sees
all of this, discovering for himself the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's
conclusion that the accused-appellant was not really beaten up
because he did not complain about it later nor did he submit to a
medical examination. That is hardly fair or realistic. It is possible
Aminnudin never had that opportunity as he was at that time under
detention by the PC authorities and in fact has never been set free
since he was arrested in 1984 and up to the present. No bail has been
allowed for his release.

There is one point that deserves closer examination, however, and it is

Aminnudin's claim that he was arrested and searched without warrant,
making the marijuana allegedly found in his possession inadmissible in
evidence against him under the Bill of Rights. The decision did not even
discuss this point. For his part, the Solicitor General dismissed this after
an all-too-short argument that the arrest of Aminnudin was valid
because it came under Rule 113, Section 6(b) of the Rules of Court on
warrantless arrests. This made the search also valid as incidental to a
lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who

testified for the prosecution, that they had no warrant when they
arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and
regular informer who reported to them that Aminnudin was arriving in
Iloilo by boat with marijuana. Their testimony varies as to the time they
received the tip, one saying it was two days before the arrest, 20
another two weeks 21 and a third "weeks before June 25." 22 On this
matter, we may prefer the declaration of the chief of the arresting team,
Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to

the coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
sources.

Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we have
already reports of the particular operation which was being participated
by Idel Aminnudin.

Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.
Q Did you receive any other report aside from this intelligence
report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling operation.

COURT:

Q Previous to that particular information which you said two days before
June 25, 1984, did you also receive daily report regarding the activities
of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of Idel

Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of

information, maybe for security reason and we cannot Identify the
person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo with

marijuana was received by you many days before you received the
intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that minnudin
was coming?

A Before June 23,1984, I, in my capacity, did not know that he was

coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his activities,
we have reports that he was already consummated the act of selling
and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was

mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search
of the subject mentioned in your intelligence report?
A No, more.

Q Why not?

A Because we were very very sure that our operation will yield
positive result.

Q Is that your procedure that whenever it will yield positive result you do
not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes

from a mere lieutenant of the PC. The Supreme Court cannot
countenance such a statement. This is still a government of laws and
not of men.

The mandate of the Bill of Rights is clear:

Sec. 2. The right of the people to be secure in their persons, houses,

papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.

In the case at bar, there was no warrant of arrest or search warrant

issued by a judge after personal determination by him of the existence
of probable cause. Contrary to the averments of the government, the
accused-appellant was not caught in flagrante nor was a crime about to
be committed or had just been committed to justify the warrantless
arrest allowed under Rule 113 of the Rules of Court. Even expediency
could not be invoked to dispense with the obtention of the warrant as in
the case of Roldan v. Arca, 24 for example. Here it was held that
vessels and aircraft are subject to warrantless searches and seizures
for violation of the customs law because these vehicles may be quickly
moved out of the locality or jurisdiction before the warrant can be
secured.
The present case presented no such urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two
days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was Identified. The date of its arrival was
certain. And from the information they had received, they could have
persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because
the PC lieutenant who was the head of the arresting team, had
determined on his own authority that a "search warrant was not
necessary."

In the many cases where this Court has sustained the warrantless arrest
of violators of the Dangerous Drugs Act, it has always been shown that
they were caught red-handed, as a result of what are popularly called
"buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the
act of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so
or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that
called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when
the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the
furtive finger that triggered his arrest. The Identification by the informer
was the probable cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest
him.

Now that we have succeeded in restoring democracy in our country

after fourteen years of the despised dictatorship, when any one could
be picked up at will, detained without charges and punished without
trial, we will have only ourselves to blame if that kind of arbitrariness is
allowed to return, to once more flaunt its disdain of the Constitution and
the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for
indeed his very own words suggest that he is lying, that fact alone does
not justify a finding that he is guilty. The constitutional presumption is
that he is innocent, and he will be so declared even if his defense is
weak as long as the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin,

the case of the prosecution must fall. That evidence cannot be
admitted, and should never have been considered by the trial court for
the simple fact is that the marijuana was seized illegally. It is the fruit of
the poisonous tree, to use Justice Holmes' felicitous phrase. The search
was not an incident of a lawful arrest because there was no warrant of
arrest and the warrantless arrest did not come under the exceptions
allowed by the Rules of Court. Hence, the warrantless search was also
illegal and the evidence obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against

drug addiction and commends the efforts of our law-enforcement
officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill
of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the
mantle of its protection the innocent and the guilty alike against any
manner of high- handedness from the authorities, however praiseworthy
their intentions.

Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. Order is
too high a price for the loss of liberty. As Justice Holmes, again, said, "I
think it a less evil that some criminals should escape than that the
government should play an ignoble part." It is simply not allowed in the
free society to violate a law to enforce another, especially if the law
violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as

evidence against the accused-appellant, his guilt has not been proved
beyond reasonable doubt and he must therefore be discharged on the
presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the
accused-appellant is ACQUITTED. It is so ordered.

Narvasa, Gancayco and Medialdea, JJ., concur.

x--x

G.R. No. 128587 March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding
Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y CHEN,
Respondents.

DECISION

GARCIA, J.:

On pure questions of law, petitioner People of the Philippines has

directly come to this Court via this petition for review on certiorari to
nullify and set aside the Resolution1 dated 13 March 1997 of the
Regional Trial Court of Manila, Branch 18, in Criminal Case Nos.
96-149990 to 96-149992, entitled People of the Philippines v. Lawrence
Wang y Chen, granting private respondent Lawrence C. Wangs
Demurrer to Evidence and acquitting him of the three (3) charges filed
against him, namely: (1) Criminal Case No. 96-149990 for Violation of
Section 16, Article III in relation to Section 2(e)(2), Article I of Republic
Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No.
96-149991 for Violation of Presidential Decree No. 1866 (Illegal
Possession of Firearms); and (3) Criminal Case No. 96-149992 for
Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166
(COMELEC Gun Ban).

The three (3) separate Informations filed against Lawrence C. Wang in

the court of origin respectively read:
Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):

That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control a
bulk of white and yellowish crystalline substance known as SHABU
contained in thirty-two (32) transparent plastic bags weighing
approximately 29.2941 kilograms, containing methamphetamine
hydrochloride, a regulated drug, without the corresponding license or
prescription therefor.

Contrary to law.2

Criminal Case No. 96-149991 (Illegal Possession of Firearms):

That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control
one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine
and one AMT Cal. .380 9mm automatic backup pistol with magazine
loaded with ammunitions without first having secured the necessary
license or permit therefor from the proper authorities.

Contrary to law. 3

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control
one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine
and one (1) AMT Cal. 380 9mm automatic backup pistol with magazine
loaded with ammunitions, carrying the same along Maria Orosa St.,
Ermita, Manila, which is a public place, on the date which is covered by
an election period, without first securing the written permission or
authority from the Commission on Elections, as provided by the
COMELEC Resolution 2828 in relation to Republic Act 7166.

Contrary to law. 4
During his arraignment, accused Wang refused to enter a plea to all the
Informations and instead interposed a continuing objection to the
admissibility of the evidence obtained by the police operatives. Thus,
the trial court ordered that a plea of "Not Guilty" be entered for him.5
Thereafter, joint trial of the three (3) consolidated cases followed.

The pertinent facts are as follows:

On 16 May 1996, at about 7:00 p.m., police operatives of the Public

Assistance and Reaction Against Crime of the Department of Interior
and Local Government, namely, Captain Margallo, Police Inspector
Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de
Dios, Rogelio Anoble and a certain Arellano, for unlawful possession of
methamphetamine hydrochloride, a regulated drug popularly known as
shabu. In the course of the investigation of the three arrested persons,
Redentor Teck, alias Frank, and Joseph Junio were identified as the
source of the drug. An entrapment operation was then set after the
three were prevailed upon to call their source and pretend to order
another supply of shabu.

At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio
were arrested while they were about to hand over another bag of shabu
to SPO2 De Dios and company. Questioned, Redentor Teck and
Joseph Junio informed the police operatives that they were working as
talent manager and gymnast instructor, respectively, of Glamour
Modeling Agency owned by Lawrence Wang. Redentor Teck and
Joseph Junio did not disclose their source of shabu but admitted that
they were working for Wang.6 They also disclosed that they knew of a
scheduled delivery of shabu early the following morning of 17 May
1996, and that their employer (Wang) could be found at the Maria
Orosa Apartment in Malate, Manila. The police operatives decided to
look for Wang to shed light on the illegal drug activities of Redentor
Teck and Joseph Junio. Police Inspector Cielito Coronel and his men
then proceeded to Maria Orosa Apartment and placed the same under
surveillance.

Prosecution witness Police Inspector Cielito Coronel testified that at

about 2:10 a.m. of 17 May 1996, Wang, who was described to the
operatives by Teck, came out of the apartment and walked towards a
parked BMW car. On nearing the car, he (witness) together with Captain
Margallo and two other police officers approached Wang, introduced
themselves to him as police officers, asked his name and, upon hearing
that he was Lawrence Wang, immediately frisked him and asked him to
open the back compartment of the BMW car.7 When frisked, there was
found inside the front right pocket of Wang and confiscated from him an
unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with
ammunitions. At the same time, the other members of the operatives
searched the BMW car and found inside it were the following items: (a)
32 transparent plastic bags containing white crystalline substance with
a total weight of 29.2941 kilograms, which substance was later
analyzed as positive for methamphetamine hydrochloride, a regulated
drug locally known as shabu; (b) cash in the amount of P650,000.00;
(c) one electronic and one mechanical scales; and (d) an unlicensed
Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the
warrantless arrest and search.8

On 6 December 1996, the prosecution rested its case and upon motion,
accused Wang was granted 25 days from said date within which to file
his intended Demurrer to Evidence.9 On 19 December 1996, the
prosecution filed a Manifestation10 to the effect that it had rested its
case only in so far as the charge for Violation of the Dangerous Drugs
Act in Criminal Case No. 96-149990 is concerned, and not as regards
the two cases for Illegal Possession of Firearms (Crim. Case No.
96-149991) and Violation of the Comelec Gun Ban (Crim. Case No.
96-149992). Accordingly, trial continued.

On 9 January 1997, Wang filed his undated Demurrer to Evidence,11

praying for his acquittal and the dismissal of the three (3) cases against
him for lack of a valid arrest and search warrants and the inadmissibility
of the prosecutions evidence against him. Considering that the
prosecution has not yet filed its Opposition to the demurrer, Wang filed
an Amplification12 to his Demurrer of Evidence on 20 January 1997. On
12 February 1997, the prosecution filed its Opposition13 alleging that
the warrantless search was legal as an incident to the lawful arrest and
that it has proven its case, so it is now time for the defense to present
its evidence.

On 13 March 1997, the respondent judge, the Hon. Perfecto A.S.

Laguio, Jr., issued the herein assailed Resolution14 granting Wangs
Demurrer to Evidence and acquitting him of all charges for lack of
evidence, thus:

WHEREFORE, the accused's undated Demurrer to Evidence is hereby

granted; the accused is acquitted of the charges against him for the
crimes of Violation of Section 16, Article III of the Dangerous Drugs Act,
Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for
lack of evidence; the 32 bags of shabu with a total weight of 29.2941
kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and
one Daewoo Cal. 9mm. are ordered confiscated in favor of the
government and the branch clerk is directed to turn over the 32 bags of
shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two
firearms to the Firearms and Explosive Units, PNP, Camp Crame,
Quezon City, for proper disposition, and the officer-in-charge of PARAC,
Department of Interior and Local Government, is ordered to return the
confiscated amount of P650,000.00 to the accused, and the
confiscated BMW car to its registered owner, David Lee. No costs.

SO ORDERED.

Hence, this petition15 for review on certiorari by the People, submitting

that the trial court erred -

X X X I N H O L D I N G T H AT T H E U N D I S P U T E D FA C T S A N D
CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE WITHIN
THE CONTEMPLATION OF SECTION 2, ARTICLE III OF THE
CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND
CIRCUMSTANCES NEITHER JUSTIFIED THE WARRANTLESS SEARCH
OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND
THEREIN.

ll

XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS

CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN
INCIDENT TO A LAWFUL ARREST.

lII
XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED
AND THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL.

IV

XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A

RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE
SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO
THE ADMISSION OF THE EVIDENCE SEIZED.

XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND

OFFERED BY THE PROSECUTION AND IN NOT DENYING
ACCUSED'S DEMURRER TO EVIDENCE.

In its Resolution16 of 9 July 1997, the Court, without giving due course
to the petition, required the public and private respondents to comment
thereon within ten days from notice. Private respondent Wang filed his
comment17on 18 August 1997.

On 10 September 1997, the Court required the People to file a reply,18

which the Office of the Solicitor General did on 5 December 1997, after
several extensions.19

On 20 October 2004, the Court resolved to give due course to the

petition and required the parties to submit their respective memoranda,
20 which they did.

The case presents two main issues: (a) whether the prosecution may
appeal the trial courts resolution granting Wangs demurrer to evidence
and acquitting him of all the charges against him without violating the
constitutional proscription against double jeopardy; and (b) whether
there was lawful arrest, search and seizure by the police operatives in
this case despite the absence of a warrant of arrest and/or a search
warrant.
First off, it must be emphasized that the present case is an appeal filed
directly with this Court via a petition for review on certiorari under Rule
45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court
raising only pure questions of law, ordinary appeal by mere filing of a
notice of appeal not being allowed as a mode of appeal directly to this
Court. Then, too, it bears stressing that the right to appeal is neither a
natural right nor a part of due process, it being merely a statutory
privilege which may be exercised only in the manner provided for by
law (Velasco v. Court of Appeals21). Although Section 2, Rule 122 of
the Rules on Criminal Procedure states that any party may appeal, the
right of the People to appeal is, in the very same provision, expressly
made subject to the prohibition against putting the accused in double
jeopardy. It also basic that appeal in criminal cases throws the whole
records of the case wide open for review by the appellate court, that is
why any appeal from a judgment of acquittal necessarily puts the
accused in double jeopardy. In effect, the very same Section 2 of Rule
122 of the Rules on Criminal Procedure, disallows appeal by the People
from judgments of acquittal.

An order granting an accuseds demurrer to evidence is a resolution of

the case on the merits, and it amounts to an acquittal. Generally, any
further prosecution of the accused after an acquittal would violate the
constitutional proscription on double jeopardy. To this general rule,
however, the Court has previously made some exceptions.

The celebrated case of Galman v. Sandiganbayan22 presents one

exception to the rule on double jeopardy, which is, when the
prosecution is denied due process of law:

No court whose Presiding Justice has received "orders or suggestions"

from the very President who by an amendatory decree (disclosed only
at the hearing of oral arguments on November 8, 1984 on a petition
challenging the referral of the Aquino-Galman murder cases to the
Tanodbayan and Sandiganbayan instead of to a court martial, as
mandatorily required by the known P.D. 1850 at the time providing for
exclusive jurisdiction of courts martial over criminal offenses committed
by military men) made it possible to refer the cases to the
Sandiganbayan, can be an impartial court, which is the very essence of
due process of law. As the writer then wrote, "jurisdiction over cases
should be determined by law, and not by preselection of the Executive,
which could be much too easily transformed into a means of
predetermining the outcome of individual cases." This criminal collusion
as to the handling and treatment of the cases by public respondents at
the secret Malacaang conference (and revealed only after fifteen
months by Justice Manuel Herrera) completely disqualified respondent
Sandiganbayan and voided ab initio its verdict. This renders moot and
irrelevant for now the extensive arguments of respondents accused,
particularly Generals Ver and Olivas and those categorized as
accessories, that there has been no evidence or witness suppressed
against them, that the erroneous conclusions of Olivas as police
investigator do not make him an accessory of the crimes he
investigated and the appraisal and evaluation of the testimonies of the
witnesses presented and suppressed. There will be time and
opportunity to present all these arguments and considerations at the
remand and retrial of the cases herein ordered before a neutral and
impartial court.

The Supreme Court cannot permit such a sham trial and verdict and
travesty of justice to stand unrectified. The courts of the land under its
aegis are courts of law and justice and equity. They would have no
reason to exist if they were allowed to be used as mere tools of
injustice, deception and duplicity to subvert and suppress the truth,
instead of repositories of judicial power whose judges are sworn and
committed to render impartial justice to all alike who seek the
enforcement or protection of a right or the prevention or redress of a
wrong, without fear or favor and removed from the pressures of politics
and prejudice. More so, in the case at bar where the people and the
world are entitled to know the truth, and the integrity of our judicial
system is at stake. In life, as an accused before the military tribunal
Ninoy had pleaded in vain that as a civilian he was entitled to due
process of law and trial in the regular civil courts before an impartial
court with an unbiased prosecutor. In death, Ninoy, as the victim of the
"treacherous and vicious assassination" and the relatives and sovereign
people as the aggrieved parties plead once more for due process of
law and a retrial before an impartial court with an unbiased prosecutor.
The Court is constrained to declare the sham trial a mock trial the
non-trial of the century and that the predetermined judgment of
acquittal was unlawful and void ab initio.
1. No double jeopardy. It is settled doctrine that double jeopardy
cannot be invoked against this Court's setting aside of the trial courts'
judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due
process. As the Court stressed in the 1985 case of People vs. Bocar,

Where the prosecution is deprived of a fair opportunity to prosecute

and prove its case, its right to due process is thereby violated.

The cardinal precept is that where there is a violation of basic

constitutional rights, courts are ousted of their jurisdiction. Thus, the
violation of the State's right to due process raises a serious
jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons,
L-30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over
or disregarded at will. Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of that right is
void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25,
19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416
Feb. 27, 1973]). Any judgment or decision rendered notwithstanding
such violation may be regarded as a "lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever it exhibits
its head" (Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and
void for lack of jurisdiction, the same does not constitute a proper basis
for a claim of double jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) a valid plea having been
entered; and (e) the case was dismissed or otherwise terminated
without the express consent of the accused (People vs. Ylagan, 58 Phil.
851). The lower court was not competent as it was ousted of its
jurisdiction when it violated the right of the prosecution to due process.

In effect, the first jeopardy was never terminated, and the remand of the
criminal case for further hearing and/or trial before the lower courts
amounts merely to a continuation of the first jeopardy, and does not
expose the accused to a second jeopardy.
Another exception is when the trial court commits grave abuse of
discretion in dismissing a criminal case by granting the accuseds
demurrer to evidence. In point is the fairly recent case of People v. Uy,
23 which involved the trial courts decision which granted the two
separate demurrers to evidence filed by the two accused therein, both
with leave of court, resulting in their acquittal of their respective charges
of murder due to insufficiency of evidence. In resolving the petition for
certiorari filed directly with this Court, we had the occasion to explain:

The general rule in this jurisdiction is that a judgment of acquittal is final

and unappealable. People v. Court of Appeals explains the rationale of
this rule:

In our jurisdiction, the finality-of-acquittal doctrine as a safeguard

against double jeopardy faithfully adheres to the principle first
enunciated in Kepner v. United States. In this case, verdicts of acquittal
are to be regarded as absolutely final and irreviewable. The cases of
United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero,
People v. Cabarles, People v. Bao, to name a few, are illustrative cases.
The fundamental philosophy behind the constitutional proscription
against double jeopardy is to afford the defendant, who has been
acquitted, final repose and safeguard him from government oppression
through the abuse of criminal processes. As succinctly observed in
Green v. United States "(t)he underlying idea, one that is deeply
ingrained in at least the Anglo-American system of jurisprudence, is
that the State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent, he may be
found guilty." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence

is granted. As held in the case of People v. Sandiganbayan:

The demurrer to evidence in criminal cases, such as the one at bar, is

"filed after the prosecution had rested its case," and when the same is
granted, it calls "for an appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction beyond reasonable
doubt, resulting in a dismissal of the case on the merits, tantamount to
an acquittal of the accused." Such dismissal of a criminal case by the
grant of demurrer to evidence may not be appealed, for to do so would
be to place the accused in double-jeopardy. The verdict being one of
acquittal, the case ends there. (Italics in the original)

Like any other rule, however, the above-said rule is not absolute. By
way of exception, a judgment of acquittal in a criminal case may be
assailed in a petition for certiorari under Rule 65 of the Rules of Court
upon a clear showing by the petitioner that the lower court, in acquitting
the accused, committed not merely reversible errors of judgment but
also grave abuse of discretion amounting to lack or excess of
jurisdiction or a denial of due process, thus rendering the assailed
judgment void. (Emphasis supplied.)

In Sanvicente v. People,24 the Court allowed the review of a decision of

the Court of Appeals (CA) which reversed the accuseds acquittal upon
demurrer to evidence filed by the accused with leave of court, the CA
ruling that the trial court committed grave abuse of discretion in
preventing the prosecution from establishing the due execution and
authenticity of certain letter marked therein as Exhibit "LL," which
supposedly "positively identified therein petitioner as the perpetrator of
the crime charged." The Court, in a petition for certiorari, sustained the
CAs power to review the order granting the demurrer to evidence,
explaining thus:

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure,

as amended, the trial court may dismiss the action on the ground of
insufficiency of evidence upon a demurrer to evidence filed by the
accused with or without leave of court. In resolving accuseds demurrer
to evidence, the court is merely required to ascertain whether there is
competent or sufficient evidence to sustain the indictment or support a
verdict of guilt.

The grant or denial of a demurrer to evidence is left to the sound

discretion of the trial court and its ruling on the matter shall not be
disturbed in the absence of a grave abuse of discretion. Significantly,
once the court grants the demurrer, such order amounts to an acquittal
and any further prosecution of the accused would violate the
constitutional proscription on double jeopardy. This constitutes an
exception to the rule that the dismissal of a criminal case made with the
express consent of the accused or upon his own motion bars a plea of
double jeopardy. The finality-of-acquittal rule was stressed thus in
People v. Velasco:

The fundamental philosophy highlighting the finality of an acquittal by

the trial court cuts deep into the "humanity of the laws and in jealous
watchfulness over the rights of the citizens, when brought in unequal
contest with the State xxx. Thus Green expressed the concern that
"(t)he underlying idea, one that is deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to convict
an individual for an alleged offense thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent, he may be found guilty."

It is axiomatic that on the basis of humanity, fairness and justice, an

acquitted defendant is entitled to the right of repose as a direct
consequence of the finality of his acquittal. The philosophy underlying
this rule establishing the absolute nature of acquittals is "part of the
paramount importance criminal justice system attaches to the
protection of the innocent against wrongful conviction." The interest in
the finality-of-acquittal rule, confined exclusively to verdicts of not guilty,
is easy to understand: it is a need for "repose", a desire to know the
exact extent of ones liability. With this right of repose, the criminal
justice system has built in a protection to insure that the innocent, even
those whose innocence rests upon a jurys leniency, will not be found
guilty in a subsequent proceeding.

Given the far-reaching scope of an accuseds right against double

jeopardy, even an appeal based on an alleged misappreciation of
evidence will not lie. The only instance when double jeopardy will not
attach is when the trial court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, such as where the
prosecution was denied the opportunity to present its case or where the
trial was a sham. However, while certiorari may be availed of to correct
an erroneous acquittal, the petitioner in such an extraordinary
proceeding must clearly demonstrate that the trial court blatantly
abused its authority to a point so grave as to deprive it of its very power
to dispense justice. (Emphasis supplied.)

By this time, it is settled that the appellate court may review dismissal
orders of trial courts granting an accuseds demurrer to evidence. This
may be done via the special civil action of certiorari under Rule 65
based on the ground of grave abuse of discretion, amounting to lack or
excess of jurisdiction. Such dismissal order, being considered void
judgment, does not result in jeopardy. Thus, when the order of dismissal
is annulled or set aside by an appellate court in an original special civil
action via certiorari, the right of the accused against double jeopardy is
not violated.

Unfortunately, what petitioner People of the Philippines, through then

Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General
Silvestre H. Bello, III, filed with the Court in the present case is an
appeal by way of a petition for review on certiorari under Rule 45 raising
a pure question of law, which is different from a petition for certiorari
under Rule 65.

In Madrigal Transport Inc. v. Lapanday Holdings Corporation,25 we

have enumerated the distinction between the two remedies/actions, to
wit:

Appeal and Certiorari Distinguished

Between an appeal and a petition for certiorari, there are substantial

distinctions which shall be explained below.

As to the Purpose. Certiorari is a remedy designed for the correction of

errors of jurisdiction, not errors of judgment. In Pure Foods Corporation
v. NLRC, we explained the simple reason for the rule in this light:

"When a court exercises its jurisdiction, an error committed while so

engaged does not deprive it of the jurisdiction being exercised when
the error is committed. If it did, every error committed by a court would
deprive it of its jurisdiction and every erroneous judgment would be a
void judgment. This cannot be allowed. The administration of justice
would not survive such a rule. Consequently, an error of judgment that
the court may commit in the exercise of its jurisdiction is not
correct[a]ble through the original civil action of certiorari."

The supervisory jurisdiction of a court over the issuance of a writ of

certiorari cannot be exercised for the purpose of reviewing the intrinsic
correctness of a judgment of the lower court -- on the basis either of the
law or the facts of the case, or of the wisdom or legal soundness of the
decision. Even if the findings of the court are incorrect, as long as it has
jurisdiction over the case, such correction is normally beyond the
province of certiorari. Where the error is not one of jurisdiction, but of an
error of law or fact -- a mistake of judgment -- appeal is the remedy.

As to the Manner of Filing. Over an appeal, the CA exercises its

appellate jurisdiction and power of review. Over a certiorari, the higher
court uses its original jurisdiction in accordance with its power of
control and supervision over the proceedings of lower courts. An
appeal is thus a continuation of the original suit, while a petition for
certiorari is an original and independent action that was not part of the
trial that had resulted in the rendition of the judgment or order
complained of. The parties to an appeal are the original parties to the
action. In contrast, the parties to a petition for certiorari are the
aggrieved party (who thereby becomes the petitioner) against the lower
court or quasi-judicial agency, and the prevailing parties (the public
and the private respondents, respectively).

As to the Subject Matter. Only judgments or final orders and those that
the Rules of Court so declared are appealable. Since the issue is
jurisdiction, an original action for certiorari may be directed against an
interlocutory order of the lower court prior to an appeal from the
judgment; or where there is no appeal or any plain, speedy or adequate
remedy.

As to the Period of Filing. Ordinary appeals should be filed within fifteen

days from the notice of judgment or final order appealed from. Where a
record on appeal is required, the appellant must file a notice of appeal
and a record on appeal within thirty days from the said notice of
judgment or final order. A petition for review should be filed and served
within fifteen days from the notice of denial of the decision, or of the
petitioners timely filed motion for new trial or motion for reconsideration.
In an appeal by certiorari, the petition should be filed also within fifteen
days from the notice of judgment or final order, or of the denial of the
petitioners motion for new trial or motion for reconsideration.

On the other hand, a petition for certiorari should be filed not later than
sixty days from the notice of judgment, order, or resolution. If a motion
for new trial or motion for reconsideration was timely filed, the period
shall be counted from the denial of the motion.

As to the Need for a Motion for Reconsideration. A motion for

reconsideration is generally required prior to the filing of a petition for
certiorari, in order to afford the tribunal an opportunity to correct the
alleged errors. Note also that this motion is a plain and adequate
remedy expressly available under the law. Such motion is not required
before appealing a judgment or final order.

Also in Madrigal, we stressed that the special civil action of certiorari

and appeal are two different remedies mutually exclusive; they are
neither alternative nor successive. Where appeal is available, certiorari
will not prosper. In the dismissal of a criminal case upon demurrer to
evidence, appeal is not available as such an appeal will put the
accused in double jeopardy. Certiorari, however, is allowed.

For being the wrong remedy taken by petitioner People of the

Philippines in this case, this petition is outrightly dismissible. The Court
cannot reverse the assailed dismissal order of the trial court by appeal
without violating private respondents right against double jeopardy.

Even assuming that the Court may treat an "appeal" as a special civil
action of certiorari, which definitely this Court has the power to do,
when there is a clear showing of grave abuse of discretion committed
by the lower court, the instant petition will nevertheless fail on the merits
as the succeeding discussion will show.

There are actually two (2) acts involved in this case, namely, the
warrantless arrest and the warrantless search. There is no question that
warrantless search may be conducted as an incident to a valid
warrantless arrest. The law requires that there be first a lawful arrest
before a search can be made; the process cannot be reversed.26
However, if there are valid reasons to conduct lawful search and seizure
which thereafter shows that the accused is currently committing a
crime, the accused may be lawfully arrested in flagrante delicto27
without need for a warrant of arrest.

Finding that the warrantless arrest preceded the warrantless search in

the case at bar, the trial court granted private respondent's demurrer to
evidence and acquitted him of all the three charges for lack of
evidence, because the unlawful arrest resulted in the inadmissibility of
the evidence gathered from an invalid warrantless search. The trial
courts ratiocination is quoted as follows:

The threshold issue raised by the accused in his Demurrer to Evidence

is whether his warrantless arrest and search were lawful as argued by
the prosecution, or unlawful as asserted by the defense.

Under Section 5, Rule 113 of the New Rules of Court, a peace officer
may arrest a person without a warrant: (a) when in his presence, the
person to be arrested has committed, is actually committing, or is
attempting to commit an offense; (b) when an offense has in fact just
been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it, and (c) when the
person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or
temporarily confined while being transferred from one confinement to
another. None of these circumstances were present when the accused
was arrested. The accused was merely walking from the Maria Orosa
Apartment and was about to enter the parked BMW car when the police
officers arrested and frisked him and searched his car. The accused
was not committing any visible offense at the time of his arrest. Neither
was there an indication that he was about to commit a crime or that he
had just committed an offense. The unlicensed AMT Cal.380 9mm
Automatic Back-up Pistol that the accused had in his possession was
concealed inside the right front pocket of his pants. And the handgun
was bantam and slim in size that it would not give an outward indication
of a concealed gun if placed inside the pant's side pocket as was done
by the accused. The arresting officers had no information and
knowledge that the accused was carrying an unlicensed handgun, nor
did they see him in possession thereof immediately prior to his arrest.

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal.
9mm Pistol with magazine that were found and seized from the car. The
contraband items in the car were not in plain view. The 32 bags of
shabu were in the trunk compartment, and the Daewoo handgun was
underneath the drivers seat of the car. The police officers had no
information, or knowledge that the banned articles were inside the car,
or that the accused had placed them there. The police officers
searched the car on mere suspicion that there was shabu therein.

On this matter, pertinent portions of the testimonies of Police Inspector

Cielito Coronel and SP03 Reynaldo are hereunder quoted:

POLICE INSPECTOR CIELITO CORONELS TESTIMONY

"PROSECUTOR TO WITNESS: Direct-Examination

Q. Mr. Witness, what was your role or participation in this case?

A. I am one of those responsible for the arrest of the accused.

xxx xxx xxx

Q. Where did you make that arrest, Mr. Witness?

A. The apprehension was made in front of an apartment along Maria

Orosa Street, Ermita, Manila.

Q. What date was that when you arrested the accused?

A. It was on May 17, 1996, at about 2:10 a.m.

xxx xxx xxx

Q. What was the reason why you together with other policemen effected
the arrest of the accused?

A. We arrested him because of the information relayed to us by one of

those whom we have previously apprehended in connection with the
delivery of shabu somewhere also in Ermita, Manila.

xxx xxx xxx

Q. When you established that he was somewhere at Maria Orosa, what
did you do?

A. We waited for him.

xxx xxx xxx

Q. You yourself, Mr. Witness, where did you position yourself during that
time?

A. I was inside a vehicle waiting for the accused to appear.

Q. What about your other companions where were they?

A. They were position in strategic places within the area.

Q. What happened when you and your companions were positioned in

that place?

A. That was when the accused arrived.

Q. How many of your approached him.

A. Inspector Margallo, myself and two other operatives.

Q. What happened when you approached the accused, Mr. Witness?

A. We introduced ourselves as police officers and we frisked him and

we asked him to open the back compartment of his car.

Q. You said you frisked him, what was the result of that?

A. He was found in possession of one back-up pistol with one loaded

magazine and likewise when the compartment was opened several
plastic bags containing white crystalline substance suspected to be
shabu (were found).

Q. What did you do when you found out Mr. Witness?

A. When the car was further search we later found another firearm, a
Daewoo Pistol at the place under the seat of the driver.

Q. Then what happened?

A. He was brought to our headquarters at Mandaluyong for further

investigation.

Q. What about the suspected shabu that you recovered, what did you
do with that?

A. The suspected shabu that we recovered were forwarded to the NBI

for laboratory examination.

Q. Did you come to know the results?

A. It was found positive for methamphetamine hydrochloride. (TSN, pp.

3-8, November 15, 1996).

ATTY. LOZANO TO WITNESS: CROSS

Q. You arrested Joseph Junio and Redentor Teck for alleged

transporting of shabu on May 16, 1996, at 11:00 p.m., is it not?

A. Yes, Sir.

Q. You asked Redentor Teck where he is employed, is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Redentor Teck told you that he is a talent manager at the Glenmore

Modeling Agency, is it not?

A. Yes, Sir.

.Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it

not?
A. I supposed, Sir.

Q. And that is why immediately after Redentor Teck told you that he is
an employee of the Glenmore Modeling Agency owned by Lawrence
Wang, naturally, you and your companions look for Lawrence Wang to
shed light on the transporting of shabu by Redentor Teck and Joseph
Junio, is it not?

A. Yes, Sir.

Q. Thereafter, you spotted a person previously described by Redentor

Teck as Lawrence Wang, is it not?

A. Yes, Sir.

Q. While you were arresting Lawrence Wang, your companions at the

same time searched the BMW car described in your affidavit of arrest,
is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Lawrence Wang was not inside the BMW car while the same was
searched, is it not?

A. He was outside, Sir.

Q. The driver of the car was inside the car when the arrest and search
were made, is it not?

A. He was likewise outside, Sir.

Q. Lawrence Wang did resist arrest and search is it not?

A. Yes, Sir.

Q. When you effected the arrest, there was no warrant of arrest, is it

not?
A. Yes, Sir.

Q. When the search was made on the BMW car, there was no search
warrant, is it not?

A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

SPO3 REYNALDO CRISTOBALS TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. What is you role or participation in this case?

A. I was one of the arresting officers and investigator, Sir.

xxx xxx xxx

Q. What kind of specific offense did the accused allegedly do so that

you arrested him, Mr. Witness?

A. He was arrested on the basis of the recovered drugs in his

possession placed inside his car.

xxx xxx xxx

Q. Mr. witness, you said that you recovered drug from the car of the
accused, please tell us the antecedent circumstances which led you to
recover or confiscate these items?

A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one
Redentor Teck and Joseph Junio.

COURT: Where did you arrest these people?

A They were arrested in Metro Manila also.

COURT: The same date?

A. May 16, about 11:00 p.m. They were arrested and when they were
investigated, Teck mentioned the name of Lawrence Wang as his
employer.

COURT: Why were these people, arrested?

A. For violation of R.A. 6425.

COURT: How were they arrested?

A. They were arrested while in the act of transporting shabu or handling

shabu to another previously arrested person. It was a series of arrest.

COURT: So, this involved a series of operation?

A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3)
persons, SPO2 Vergel de Dios, a certain Arellano and a certain Rogelio
Noble. When they were arrested they divulged the name of the source.

COURT: They were arrested for what, for possession?

A. Yes, Your Honor. For unlawful possession of shabu . Then they

divulged to us the name of the person from whom they get shabu.

COURT: Whose name did they mention:

A. One Alias Frank, who turned out to be Redentor Teck and Joseph
Junio. We let them call Redentor Teck and Joseph Junio thru the
cellphone and pretend and to order another supply of shabu.

COURT: So there was an entrapment?

A. Yes, Your Honor.

COURT: So, these two (2) were arrested?

A. While they were about to hand over another bag of shabu to Noble
and company.
COURT: And these two reveals (revealed) some information to you as to
the source of the shabu?

A. Yes, Your Honor.

COURT: What was the information?

A. Teck told us that he is an employee of Lawrence Wang.

COURT: What did you do when you were told about that?

A. They also told us that there was an ongoing delivery of shabu on that
morning.

COURT: When?

A. Of that date early morning of May 17, 1996.

COURT: At what place?

A. We asked them where we could find Lawrence Wang and Teck lead
us to Maria Orosa Apartment where we conducted a stake out which
lasted up to 2:00 a.m.

xxx xxx xxx

COURT: What happened during the stake out?

A. When the person of the accused was identified to us, we saw him
opening his car together with his driver.

COURT: So, he was about to leave when you saw him?

A. Probably, Sir.

COURT: What did you do?

A. We saw him opened his car and we have a suspicion that there was
a shabu inside the compartment of the car.
xxx xxx xxx

COURT: All right, when you saw the accused opened his car, what did
you do?

A. We approached him.

COURT: What happened when you approached him?

A. We suspected the shabu inside the compartment of his car.

COURT: And this shabu that you saw inside the compartment of the car,
what did you do with that?

A. Well, he was first arrested by Captain Margallo and Lt. Coronel while
I was the one who inspected and opened the compartment of the car
and saw the shabu. (TSN, pp. 15-24, December 16, 1996).

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE

COURT

COURT: From your testimony and that of Police Inspector Cielito

Coronel, this Court has gathered that prior to the arrest of the accused
there were three (3) men that your team arrested. One of whom is a
police officer.

A: Yes, Sir.

xxx xxx xxx

COURT: And on the occasion of the arrest of these three men shabu
were confiscated from them?

A: Yes, Sir.

Q: And in the course of the investigation of these three men, you were
able to discover that Redentor Teck and Joseph Junio were the source
of the regulated drug that were confiscated from the three men that you
have arrested?
A: Yes, Sir.

Q: Now, thru entrapment base[d] on your testimony you were able to

apprehend also these two men, Redentor Teck and Joseph Junio?

A: Yes, Sir.

xxx xxx xxx

Q: These two men, Redentor Teck and Joseph Junio they were also
investigated by your team?

A: Yes, Sir.

Q: You were present while they were investigated?

A: I was the one whom investigated them.

xxx xxx xxx

Q: Did you ask Redentor and Joseph the source of shabu that you
confiscated from them at the time of the (their) arrest?

A: Yes, Sir. They refuse to say the source, however, they told me that
they were working for the accused.

Q: You also testified that Redentor informed you that there was another
delivery of shabu scheduled that morning of (stop) was it May 16 or 17?
The other delivery that is scheduled on?

A: On the 17th.

xxx xxx xxx

Q: Did he tell you who was to make the delivery?

A: No, Sir.

xxx xxx xxx

Q: At that time when you decided to look for the accused to ask him to
shed light on the matter concerning the arrest of these two employees
in possession of shabu. Did you and did your team suspect the
accused as being involved in the transaction that lead (led) to the arrest
of Redentor and Joseph?

A: Yes, Sir. We suspected that he was the source of the shabu.

xxx xxx xxx

Q: When you saw the accused walking towards his car, did you know
whether he was carrying a gun?

A: No, Sir. It cannot be seen.

Q: It was concealed?

A: Yes, Sir.

Q: So, the only time that you and your team learned that he was in
possession of the gun is when he was bodily search?

A: Yes, Sir. That is the only time that I came to know about when Capt.
Margallo handed to me the gun.

Q: Other than walking towards his car, the accused was not doing
anything else?

A: None, Sir.

Q: That would invite your suspicion or give indication that he was

intending to do something unlawful or illegal?

A: No, Sir.

Q: When you searched the car, did the accused protest or try to prevent
your team from searching his car?

A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)

Clearly therefore, the warrantless arrest of the accused and the search
of his person and the car were without probable cause and could not
be licit. The arrest of the accused did not fall under any of the exception
to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of
Court) and is therefore, unlawful and derogatory of his constitutional
right of liberty. x x x

The trial court resolved the case on the basis of its findings that the
arrest preceded the search, and finding no basis to rule in favor of a
lawful arrest, it ruled that the incidental search is likewise unlawful. Any
and all pieces of evidence acquired as a consequence thereof are
inadmissible in evidence. Thus, the trial court dismissed the case for
lack of evidence.

Contrary to its position at the trial court, the People, however, now
posits that "inasmuch as it has been shown in the present case that the
seizure without warrant of the regulated drugs and unlicensed firearms
in the accuseds possession had been validly made upon probable
cause and under exigent circumstances, then the warrantless arrest of
the accused must necessarily have to be regarded as having been
made on the occasion of the commission of the crime in flagrante
delicto, and therefore constitutionally and statutorily permissible and
lawful."28 In effect, the People now contends that the warrantless
search preceded the warrantless arrest. Since the case falls under an
exception to the general rule requiring search warrant prior to a valid
search and seizure, the police officers were justified in requiring the
private respondent to open his BMW cars trunk to see if he was
carrying illegal drugs.

The conflicting versions as to whether the arrest preceded the search

or vice versa, is a matter of credibility of evidence. It entails
appreciation of evidence, which may be done in an appeal of a criminal
case because the entire case is thrown open for review, but not in the
case of a petition for certiorari where the factual findings of the trial
court are binding upon the Court. Since a dismissal order consequent
to a demurrer to evidence is not subject to appeal and reviewable only
by certiorari, the factual finding that the arrest preceded the search is
conclusive upon this Court. The only legal basis for this Court to
possibly reverse and set aside the dismissal order of the trial court
upon demurrer to evidence would be if the trial court committed grave
abuse of discretion in excess of jurisdiction when it ruled that there was
no legal basis to lawfully effect a warrantless arrest.

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure

on warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a

private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable

cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from

a penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

Section 5, above, provides three (3) instances when warrantless arrest

may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b)
arrest of a suspect where, based on personal knowledge of the
arresting officer, there is probable cause that said suspect was the
author of a crime which had just been committed; (c) arrest of a
prisoner who has escaped from custody serving final judgment or
temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in flagrante delicto under

paragraph (a) of Section 5 to be valid, two requisites must concur: (1)
the person to be arrested must execute an overt act indicating that he
has just committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within the view
of the arresting officer.291awphi1.nt

The facts and circumstances surrounding the present case did not
manifest any suspicious behavior on the part of private respondent
Lawrence Wang that would reasonably invite the attention of the police.
He was merely walking from the Maria Orosa Apartment and was about
to enter the parked BMW car when the police operatives arrested him,
frisked and searched his person and commanded him to open the
compartment of the car, which was later on found to be owned by his
friend, David Lee. He was not committing any visible offense then.
Therefore, there can be no valid warrantless arrest in flagrante delicto
under paragraph (a) of Section 5. It is settled that "reliable information"
alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to
constitute probable cause that would justify an in flagrante delicto
arrest.30

Neither may the warrantless arrest be justified under paragraph (b) of

Section 5. What is clearly established from the testimonies of the
arresting officers is that Wang was arrested mainly on the information
that he was the employer of Redentor Teck and Joseph Junio who were
previously arrested and charged for illegal transport of shabu. Teck and
Junio did not even categorically identify Wang to be their source of the
shabu they were caught with in flagrante delicto. Upon the duos
declaration that there will be a delivery of shabu on the early morning of
the following day, May 17, which is only a few hours thereafter, and that
Wang may be found in Maria Orosa Apartment along Maria Orosa
Street, the arresting officers conducted "surveillance" operation in front
of said apartment, hoping to find a person which will match the
description of one Lawrence Wang, the employer of Teck and Junio.
These circumstances do not sufficiently establish the existence of
probable cause based on personal knowledge as required in
paragraph (b) of Section 5.

And doubtless, the warrantless arrest does not fall under paragraph (c)
of Section 5.

The inevitable conclusion, as correctly made by the trial court, is that

the warrantless arrest was illegal. Ipso jure, the warrantless search
incidental to the illegal arrest is likewise unlawful.

In People v. Aminnudin,31 the Court declared as inadmissible in

evidence the marijuana found in appellants possession during a search
without a warrant, because it had been illegally seized, in disregard of
the Bill of Rights:
In the case at bar, the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so
or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that
called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when
the informer pointed to him as the carrier of the marijuana that he
suddenly became a suspect and so subject to apprehension. It was the
fugitive finger that triggered his arrest. The identification of the informer
was the probable cause as determined by the officer (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest
him.

The Peoples contention that Wang waived his right against

unreasonable search and seizure has no factual basis. While we agree
in principle that consent will validate an otherwise illegal search,
however, based on the evidence on record, Wang resisted his arrest
and the search on his person and belongings.32 The implied
acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the
purview of the constitutional guarantee.33 Moreover, the continuing
objection to the validity of the warrantless arrest made of record during
the arraignment bolsters Wangs claim that he resisted the warrantless
arrest and search.

We cannot close this ponencia without a word of caution: those who are
supposed to enforce the law are not justified in disregarding the rights
of the individual in the name of order. Order is too high a price for the
loss of liberty. As Justice Holmes once said, "I think it is less evil that
some criminals should escape than that the government should play an
ignoble part." It is simply not allowed in free society to violate a law to
enforce another, especially if the law violated is the Constitution itself.34

WHEREFORE, the instant petition is DENIED.

SO ORDERED.

x--x
G.R. No. 196784

PEOPLE OF THE PHILIPPINES, Plantiff-Appellee,

vs.
MA. FE TORRES SOLINA a.k.a. MA. FE BAYLON GALLO, Accused-
Appellant.

DECISION

PERALTA, J.:

Accused-appellant Ma. Fe Torres Solina a.lea. Ma. Fe Baylon Gallo

appeals her case to this Court after the Court of Appeals (CA) in its
Decision1 dated March 11, 20 I 0 affirmed with modification her
conviction beyond reasonable doubt of the crime of illegal recruitment
in large scale under Republic Act No. 8042, otherwise known as the
Migrant Workers and Overseas Filipinos Act of 1995 (R.A. 8042)
imposing the penalty of life imprisonment and ordered to pay a fine in
the amount of I!200,000.00 with subsidiary liability in case of insolvency
and six (6) counts of Estafa under Article 315 (2) (a) of the Revised
Penal Code (RPC), imposing the indeterminate penalty of one (1) year,
eight (8) months and twenty (20) days prision correccional, as
minimum, to five (5) years, five (5) months and eleven (11) days of
prision mayor, as maximum, for each count and ordered to return to
each complainant the amount of P20,000.00 as actual damages,
handed down by the Regional Trial Court (RTC), Branch 147, in Makati
City.

Accused-appellant was arraigned and tried under an Information dated

June 16, 2006 charging her of the crime of illegal recruitment in large
scale under R.A. 8042, thus:

That in or about and sometime during the period from September, 2005
up to February 2006, in the City of Makati, Philippines, a place within
the jurisdiction of this Honorable Court, the above-named accused,
representing herself to have capacity to contract, enlist, transport and
refer workers for employment abroad, did then and there, without any
license or authority, recruit for overseas employment and for a fee, the
following complainants, to wit:
MONICA B. HIMAN

ERWIN B. DELA VEGA

GLADYSZ. REMORENTO

JOEY P. BACOLOD

MARLON B. DELA CRUZ

AUGUSTO A. CEZAR GARCES

LEYNARD B. TUTANES

thus in a large scale amounting to economic sabotage but said

accused failed to deploy said complainants and likewise failed to return
the money incurred by them and the documents submitted despite
demands, to the latter's damage and prejudice.

CONTRARY TO LAW.2

Accused-appellant was also charged and tried under seven (7)

separate informations for estafa under Article 315 par. 2 (a) of the RPC,
to wit:

1) That in or about and sometime during the month of September 2005,

in the City of Makati, Philippines, a place within the jurisdiction or this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously, defraud complainant MONICA HIMAN y
BASAMOT in the following manners, to wit: the said accused by means
of false manifestations and fraudulent representations made prior and
simultaneously with the commission of fraud, to the effect that she have
the capacity to deploy complainant for overseas employment and could
facilitate the necessary papers, in connection therewith if given the
necessary amount and by means of other deceit of similar import,
induced and succeeded in inducing complainant to give and deliver
and, in fact, the complainant gave and delivered to said accused the
total amount of Php20,000.00 on the strength of said manifestation and
representation which turned out to be false, to the damage and
prejudice or said complainant in the aforementioned amount of
P20,000.00

CONTRARYTOLAW.3

2) That in or about and sometime during the month of October, 2005, in

the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously, defraud complainant JOEY BACOLOD y
PORTILLES in the following manners, to wit: the said accused by
means of false manifestations and fraudulent representations made
prior and simultaneously with the commission of fraud, to the effect that
she have the capacity to deploy complainant for overseas employment
and could facilitate the necessary papers, in connection therewith if
given the necessary amount and by means of other deceit of similar
import, induced and succeeded in inducing complainant to give and
deliver and, in fact, the complainant gave and delivered to said
accused the total amount of Php20,000.00 on the strength of said
manifestation and representation which turned out to be false, to the
damage and prejudice of said complainant in the aforementioned
amount of P20,000.00.

CONTRARY TO LAW.4

3) That in or about and sometime during the month of October, 2005, in

the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously, defraud complainant MARLON DELA CRUZ
y BOLESA in the following manners, to wit: the said accused by means
of false manifestations and fraudulent representations made prior and
simultaneously with the commission of fraud, to the effect that she have
the capacity to deploy complainant for overseas employment and could
facilitate the necessary papers, in connection therewith if given the
necessary amount and by means of other deceit of similar import,
induced and succeeded in inducing complainant to give and deliver
and, in fact, the complainant gave and delivered to said accused the
total amount of Php20,000.00 on the strength of said manifestation and
representation which turned out to be false, to the damage and
prejudice of said complainant in the aforementioned amount of
P20,000.00.
CONTRARY TO LAW.5

4) That in or about and sometime during the month of November, 2005,

in the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously, defraud complainant ERWIN DELA VEGA y
BRIONES in the following manners, to wit: the said accused by means
of false manifestations and fraudulent representations made prior and
simultaneously with the commission of fraud, to the effect that she have
the capacity to deploy complainant for overseas employment and could
facilitate the necessary papers, in connection therewith if given the
necessary amount and by means of other deceit of similar import,
induced and succeeded in inducing complainant to give and deliver
and, in fact, the complainant gave and delivered to said accused the
total amount of Php20,000.00 on the strength of said manifestation and
representation which turned out to be false, to the damage and
prejudice of said complainant in the aforementioned amount of
P20,000.00.

CONTRARY TO LAW.6

5) That in or about and sometime during the month of November, 2005,

in the City or Makati, Philippines, a place within the jurisdiction or this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously, defraud complainant GLADYS REMORENTO
y ZAMORA in the following manners, to wit: the said accused by means
of false manifestations and fraudulent representations made prior and
simultaneously with the commission of fraud, to the effect that she have
the capacity to deploy complainant for overseas employment and could
facilitate the necessary papers, in connection therewith if given the
necessary amount and by means of other deceit of similar import,
induced and succeeded in inducing complainant to give and deliver
and, in fact, the complainant gave and delivered to said accused the
total amount of Php20,000.00 on the strength of said manifestation and
representation which turned out to be false, to the damage and
prejudice or said complainant in the aforementioned amount of
P20,000.00.

CONTRARY TO LAW.7
6) That in or about and sometime during the month of February, 2006, in
the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the abovenarned accused, did then and there
willfully, unlawfully and feloniously, defraud complainant AUGUSTO
CEZAR GARCES y ALIMAGNO in the following manners, to wit: the said
accused by means of false manifestations and fraudulent
representations made prior and simultaneously with the commission of
fraud, to the effect that she have the capacity to deploy complainant for
overseas employment and could facilitate the necessary papers, in
connection therewith if given the necessary amount and by means of
other deceit of similar import, induced and succeeded in inducing
complainant to give and deliver and, in fact, the complainant gave and
delivered to said accused the total amount of Php20,000.00 on the
strength of said manifestation and representation which turned out to
be false, to the damage and prejudice of said complainant in the
aforementioned amount of P20,000.00.

CONTRARY TO LAW. 8

7) That in or about and sometime during the month of February, 2006, in

the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously, defraud complainant LEYNARD TUTANES y
BADTOLA in the following manners, to wit: the said accused by means
of false manifestations and fraudulent representations made prior and
simultaneously with the commission of fraud, to the effect that she have
the capacity to deploy complainant for overseas employment and could
facilitate the necessary papers, in connection therewith if given the
necessary amount and by means of other deceit of similar import,
induced and succeeded in inducing complainant to give and deliver
and, in fact, the complainant gave and delivered to said accused the
total amount of Php20,000.00 on the strength of said manifestation and
representation which turned out to be false, to the damage and
prejudice of said complainant in the aforementioned amount of
P20,000.00.

CONTRARY TO LAW.9
Accused-appellant pleaded "not guilty" and after trial on the merits, the
RTC found accused-appellant guilty beyond reasonable doubt of the
crimes charged except for one charge of estafa which was provisionally
dismissed by the RTC, upon motion of accused-appellant, without
prejudice to reinstatement considering that the subpoena sent to
complainant Monica B. Himan had not been duly served upon her
person. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is rendered in these

cases as follows:

1. In Crim. Case No. 06-1275, finding herein accused Ma. Fe Torres

Solina a.k.a. Ma. Fe Baylon Gallo, Guilty Beyond Reasonable Doubt of
Illegal Recruitment in Large Scale and sentencing her to suffer the
indeterminate penalty of six (6) years and one (1) day as minimum to
eight (8) years as maximum, and to pay a fine in the amount of
P200,000.00 with subsidiary liability in case of insolvency;

2. In Crim. Cases Nos. 06-1277 to 06-1282, finding the said accused

Ma. Fe Torres Solina a.lea. Ma. Fe Baylon Gallo, Guilty Beyond
Reasonable Doubt of six (6) counts of Estafa under Art. 315, par. 2 (a),
Revised Penal Code, and sentencing her to suffer for each count, the
indeterminate penalty of one (1) year, eight (8) months, and twenty (20)
days prision correccional as minimum to five (5) years, five (5) months,
and eleven (11) days of prision mayor as maximum; to return to each
private complainant, namely, Joey P. Bacolod, Marlon B. dela Cruz,
Erwin B. Dela Vega, Gladys Z. Remorento, Augusto Cezar A. Garces,
and Leynard B. Tutanes, the amount of P20,000.00 as actual damages.

SO ORDERED.

Makati City, October 30, 2007.10

Thereafter, accused-appellant filed a Notice of Appeal,11 thus elevating

the cases to the CA. On March 11, 2010, the CA affirmed the decision
of the RTC with modification, the dispositive portion of which reads as
follows:

WHEREFORE, the foregoing considered, the instant appeal is hereby

DENIED. However, the assailed Decision dated 30 October 2007 is
MODIFIED in that the appellant is hereby sentenced to suffer the
penalty of LIFE IMPRISONMENT as penalty for the crime of illegal
recruitment in large scale and is ordered to pay a fine in the amount of
P200,000.00 with subsidiary liability in case of insolvency. No costs.

SO ORDERED.

Thus, the case is now before this Court after accused-appellant filed
her Notice of Appeal on March 24, 2010.12

Accused-appellant and the Office of the Solicitor General (OSG) both

adopted their respective briefs filed before the CA.13

In her BrieC accused-appellant assigned the following errors:

I.

THE COURT A QUO GRAVELY ERRED IN REJECTING THE ACCUSED-

APPELLANT'S DEFENSE.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUIU'Y DESPITE THE PROSECUTION'S FAILURE TO
PROVE HER GUJU' BEYOND REASONABLE DOUBT.

Accused-appellant maintains her denial that she was engaged in the

business of recruiting possible workers for jobs abroad. She insists that
like all the private complainants, she was also an applicant for a job as
an overseas worker and that she merely accompanied them to a
recruitment agency. She alleges that private complainant Dela Vega
and Dela Cruz conspired together, used her name, and represented
themselves to the other applicants as being authorized to collect
documents and fees and that she only met the other private
complainants in the trainings/seminars she attended. Anent the
acknowledgment receipt signed by her and presented by the
prosecution as evidence, accused-appellant argues that it does not
prove that the money received by her was the consideration for private
complainant Garces' placement abroad.
As to the charges of estafa, accused-appellant claims that the
prosecution failed to prove that she employed deceit to entice private
complainants to part with their money because she did not represent or
pass herself off as a licensed recruiter.

After a careful review of the records, this Court finds no reason to

reverse the decision of the CA.

All the elements of the crime of illegal recruitment in large scale are
present, namely: (1) the offender has no valid license or authority
required by law to enable him to lawfully engage in recruitment and
placement of workers; (2) the offender undertakes any of the activities
within the meaning of "recruitment and placement" under Article 13
(b)14 of the Labor Code, or any of the prohibited practices enumerated
under Article 34 of the said Code (now Section 6 of R.A. 8042); and (3)
the offender committed the same against three (3) or more persons,
individually or as a group. More importantly, all the said elements have
been established beyond reasonable doubt. Thus, as ruled by the CA:

First off, the first element is admittedly present. Appellant had no

license to recruit or engage in placement activities and she herself had
admitted to her lack of authority to do so. The Certification elated 7 April
2006 issued by the POEA also undeniably establishes this fact.

In like manner, the second and third elements also obtain in this case.
On separate occasions and under different premises, appellant met
with and herself recruited the private complainants, six (6) in number,
giving them the impression that she had the capability to facilitate
applications for employment as factory workers in Japan. All these
complainants testified that appellant had promised them employment
for a lee amounting to P20,000.00. Their testimonies corroborate each
other on material points, such as the amount exacted by appellant as
placement fee, the country of destination, the training that they had to
undergo to qualify for employment and the submission of documentary
requirements needed for the same. The private complainants were
positive and categorical in testifying that they personally met the
appellant and that she asked for, among others, the payment of
placement fees in consideration for the promised employment in Japan.
15
Accused-appellant's defense of denial cannot overcome the positive
testimonies of the witnesses presented by the prosecution.1avvphi1 As
is well-settled in this jurisdiction, greater weight is given to the positive
identification of the accused by the prosecution witnesses than the
accused's denial and explanation concerning the commission of the
crime.16 Based on the factual findings of the RTC, the combined and
corroborative testimonies of the witnesses for the prosecution show that
it was appellant herself who informed them of the existence of the job
vacancies in Japan and of the requirements needed for the processing
of their applications. It was properly established that it was accused-
appellant who accompanied the private complainants to undergo
training and seminar conducted by a person who represented himself
as connected with the Technical Education and Skills Development
Authority (TESDA). Evidence was also presented that the private
complainants, relying completely on accused-appellant's
representations, entrusted their money to her. Finally, since there were
six (6) victims, the RTC therefore did not commit any error in convicting
accused-appellant of the charge of illegal recruitment in large scale.

This Court is also in agreement with the ruling of the CA that accused-
appellant is guilty of six (6) counts of estafa under Article 315, par. 2 (a)
or the Revised Penal Code, as amended. It is settled that a person may
be charged and convicted separately of illegal recruitment under R.A.
8042, in relation to the Labor Code, and estafa under Article 315 (2) (a)
of the Revised Penal Code.17 The elements of estqfa are: (a) that the
accused defrauded another by abuse of confidence or by means of
deceit, and (b) that damage or prejudice capable of pecuniary
estimation is caused to the offended party or third person.18 As aptly
found by the RTC and affirmed by the CA, accused-appellant
defrauded the private complainants into believing that she had the
authority and capability to send them for overseas employment in
Japan and because of such assurances, private complainants each
parted with P20,000.00 in exchange for said promise of future work
abroad. Still, accused--appellant's promise never materialized, thus,
private complainants suffered damages to the extent of the sum of
money that they had delivered to accused-appellant.

To reiterate, settled is the rule that the findings and conclusion or the
trial court on the credibility of witnesses are entitled to great respect
because the trial courts have the advantage of observing the demeanor
of witnesses as they testify.19 The determination by the trial court of the
credibility of witnesses, when affirmed by the appellate court, as in this
case, is accorded full weight and credit as well as great respect, if not
conclusive effect.20

Anent the CA's modification as to the penalty imposed, this Court finds
no reason for its correction. The trial court imposed the indeterminate
penalty of six (6) years and one (1) day, as minimum, to eight (8) years,
as maximum, for the crime of illegal recruitment in large scale, whereas
the proper penalty should have been life imprisonment, as provided
under Section 7 (b) of R.A. 8042. As ruled by the CA:

Be that as it may, this Court finds reversible error on the part of the trial
court respecting the penalty imposed on the appellant for the crime or
large scale illegal recruitment. Under the last paragraph of Section 6 or
R.A. 8042, illegal recruitment shall be considered an offense involving
economic sabotage if committed in large scale, viz., committed against
three or more persons individually or as a group. In the present case,
six (6) private complainants testified against appellant's acts of illegal
recruitment, thereby rendering her acts tantamount to economic
sabotage. Under Section 7 (b) of R.A. 8042, the penalty of life
imprisonment and a fine of not less than P500,000.00 nor more than
P1,000,000.00 shall be imposed if illegal recruitment constitutes
economic sabotage.

Nevertheless, the CA erred in not increasing the amount of fine

imposed by the RTC. In modifying the penalty to life imprisonment, the
CA cited Section 7 (b) of R.A. 8042 because the present case involves
economic sabotage, however, the same provision reads, [t]he penalty
of life imprisonment and a fine of not less than five hundred thousand
pesos (P500,000.00) nor more than one million pesos (P1,000,000.00)
shall be imposed if illegal recruitment constitutes economic sabotage.
Hence, the fine imposed should have been not less than five hundred
thousand pesos (P500,000.00) nor more than one million pesos (Pl,
000,000.00) and not two hundred thousand pesos (P200,000.00) as
ruled by the RTC and the CA.

WHEREFORE, the appeal is DISMISSED and the Court of Appeals

Decision dated March 11, 20l0 is AFFIRMED with the MODIFICATION
that accused-appellant Ma. Fe Torres Solina a.k.a. Ma Fe Baylon Gallo
is ORDERED to PAY a fine in the amount of Five Hundred Thousand
(P500,000.00) Pesos with subsidiary liability in case of insolvency,
instead of the ,P200,000.00 adjudged earlier by the RTC and the CA for
the crime of illegal recruitment in large scale. Anent the six (6) counts of
Estafa under Article 315, paragraph 2 (a), Revised Penal Code,
accused-appellant is ORDERED to RETURN to each private
complainant the amount of Twenty Thousand Pesos (P20,000.00), plus
the legal interest of six percent (6%) per annum from the finality of
judgment until fully paid, as actual damages.

SO ORDERED.

x--x

G.R. No. 207535, February 10, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RICARDO LAGBO

A.K.A RICARDO LABONG Y MENDOZA, Accused-Appellant.

DECISION

PERALTA, J.:

Before the Court is an ordinary appeal filed by accused-appellant

Ricardo Lagbo (Lagbo) assailing the Decision1 of the Court of Appeals
(CA), dated June 15, 2012, in CA-GR. CR-HC No. 04060, which
affirmed with modification the Decision2 of the Regional Trial Court
(RTC) of Malabon City, Branch 169, in Criminal Case Nos. 28711-MN,
28712-MN and 28713-MN, finding Lagbo guilty of three counts of
qualified rape.

The antecedents are as follows:

The eldest of six (6) children, AAA,3 was born on February 17, 1988, as
evidenced by her certificate of live birth.4 She was 12 years old when
her father, accused-appellant, first raped her.

One afternoon in October 2000, AAA was washing dishes inside their
house. She was alone with her father, as her mother was at the
marketplace selling vegetables while her siblings were playing outside
the house. All of a sudden, accused-appellant grabbed her and forcibly
removed her short pants and her panty. After removing his short pants,
accused appellant pushed AAA and made her lie down on their
"papag". Thereafter, he boxed AAA's face twice and threatened to kill
her mother and siblings. He then placed himself on top of AAA and
made pumping motions while covering her mouth and pulling her hair.
AAA felt pain and cried as accused-appellant's sex organ penetrated
hers. After gratifying himself, accused-appellant put on his clothes, sat
beside AAA and told her to stop crying. AAA did not relate this incident
to her mother for fear that accused-appellant would make good his
threat to harm her mother and siblings.

In March 2001, accused-appellant, again, violated AAA's womanhood.

Reminiscent of the first rape, while she and accused-appellant were
alone inside their house, the latter again boxed AAA's face, forced her
to lie down on the "papag", undressed her, threatened her, placed
himself on top of her, covered her mouth and pulled her hair while
repeatedly making pumping motions. This time, however, AAA
mustered the courage to relate the incident to her mother when the
latter arrived. To AAA's disappointment, though, her mother refused to
believe her.

Accused-appellant committed the third rape on February 14, 2002. He

and AAA were again left alone inside their house. She was made to lie
down on the kitchen floor where accused-appellant succeeded in
sexually defiling her.

AAA was finally able to report her rape to the police when her mother
filed a complaint against accused-appellant, on April 3, 2003, for
allegedly mauling her. Taking advantage of this opportunity, AAA
related her misfortune to the authorities.

Thus, in three (3) separate Informations,5 all dated April 4, 2003,

accused-appellant was indicted for rape qualified by his relationship
with, and the minority of, AAA. Pertinent portions of the Information in
Criminal Case No. 28712-MN read as
follows:ChanRoblesVirtualawlibrary
That sometime in the month of October, 2000 in the Municipality of
Navotas, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being the father of [AAA]
exercising moral ascendancy and overwhelming influence over the
latter, with lewd design and by means of force and intimidation, did,
then and there, willfully, unlawfully and feloniously have sexual
intercourse with the said [AAA], a minor of 12 years old, by then and
there inserting his organ at the victim's vagina against her will and
without her consent, which act debases, degrade[s] or demeans the
instrinsic worth and dignity of a child as a human being thereby
endangering her youth, nor mal growth and development.
6chanroblesvirtuallawlibrary
The two other Informations, which were docketed as Crim. Case Nos.
28711-MN and 28713-MN, are similarly worded as to place, the
elements of the crime charged, and the persons involved, except for
date of the commission of the crime and the age of the victim. In Crim.
Case No. 28711-MN, the crime was alleged to have been committed in
March, 2001 when AAA was already fifteen (15) years old, while in
Crim. Case No. 28713-MN, AAA was also fifteen (15) years old but the
crime was allegedly committed on February 14, 2002.

On July 9, 2003, accused-appellant was arraigned and pleaded not

guilty to the charges.7 The cases were jointly tried after accused-
appellant waived his right to pre-trial.8chanroblesvirtuallawlibrary

On March 2, 2009, the RTC rendered its Decision finding accused-

appellant guilty as charged, the dispositive portion of which reads as
follows:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, accused RICARDO LAGBO
A.K.A. RICARDO LABONG, is hereby found GUILTY beyond
reasonable doubt of three (3) counts of Qualified Rape. For each count,
he is sentenced to suffer the penalty of RECLUSION PERPETUA without
eligibility for parole, and he is further ordered to pay the victim in the
amount of SEVENTY-FIVE THOUSAND PESOS (P75,000.00) as civil
indemnity; SEVENTY-FIVE THOUSAND PESOS (P75,000.00) as moral
damages; and TWENTY-FIVE THOUSAND PESOS (P25,000.00) as
exemplary damages, plus costs.

SO ORDERED.9chanroblesvirtuallawlibrary
The RTC gave full faith and credence to the testimony of AAA and held
that accused-appellant's mere denial without any corroborative
evidence leaves the court without any option but to convict him.

Accused-appellant appealed the RTC Decision with the CA.

On June 15, 2012, the CA promulgated its assailed Decision affirming,

with modification, the judgment of the RTC. The dispositive portion of
the CA Decision reads, thus:ChanRoblesVirtualawlibrary
WHEREFORE, the foregoing premises considered, the instant appeal is
DENIED and the assailed Judgment dated March 2, 2009 of the
Regional Trial Court, Branch 169, Malabon City in Criminal Cases No.
28711-MN, 28712-MN and 28713-MN are hereby AFFIRMED with
MODIFICATION as to the award of exemplary damages which is hereby
increased to Thirty Thousand Pesos (Php30,000.00).

SO ORDERED.10chanroblesvirtuallawlibrary
On July 5, 2012, accused-appellant, through counsel, filed a Notice of
Appeal11 manifesting his intention to appeal the CA Decision to this
Court.

In its Resolution12 dated August 16, 2012, the CA gave due course to
accused-appellant's Notice of Appeal and directed its Judicial Records
Division to elevate the records of the case to this Court.

Hence, this appeal was instituted.

In a Resolution13 dated July 29, 2013, this Court, among others,

notified the parties that they may file their respective supplemental
briefs, if they so desire.

In its Manifestation and Motion,14 the Office of the Solicitor General

(OSG) informed this Court that it will no longer file a supplemental brief
because it had already fully discussed and refuted all the arguments of
the accused-appellant in its brief filed before the CA.

In the same manner, accused-appellant filed a Manifestation In Lieu of

Supplemental Brief15 indicating that he no longer intends to file a
supplemental brief and is adopting his brief which was filed with the
CA.
The primary issue to be resolved by this Court, in the instant case, is
whether or not the accused-appellant's guilt has been proven beyond
reasonable doubt.

The Court rules in the affirmative.

Rape under paragraph 1, Article 266-A of the Revised Penal Code

(RPC) is committed as follows:ChanRoblesVirtualawlibrary
ART. 266-A. Rape, When and How Committed. - Rape is committed

1. By a man who shall have carnal knowledge of a woman under any of

the following circumstances:

a. Through force, threat or intimidation;

b. When the offended party is deprived of reason or is otherwise

unconscious;

c. By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under twelve (12) years of age or is

demented, even though none of the circumstances mentioned above
be present.
If committed by a parent against his child under eighteen (18) years of
age, the rape is qualified under paragraph 1, Article 266-B of the same
Code, viz.:ChanRoblesVirtualawlibrary
ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding
article shall be punished by reclusion perpetua.

xxxx

The death penalty shall also be imposed if the crime of rape is

committed with any of the following aggravating/qualifying
circumstances:ChanRoblesVirtualawlibrary
1. When the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common law spouse of the
parent of the victim.
xxxx
Thus, the elements of qualified rape are: (1) sexual congress; (2) with a
woman; (3) done by force and without consent; (4) the victim is under
eighteen years of age at the time of the rape; (5) the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common law spouse of the
parent of the victim.16chanroblesvirtuallawlibrary

In this case, both the RTC and the CA found that the prosecution has
alleged and proved beyond reasonable doubt all the elements of
qualified rape. This court sees no reason to depart from the findings of
the lower courts. As correctly held by the CA, AAA's recollection of the
heinous acts of her father was vivid and straightforward. She was able
to positively identify the accused-appellant as her sexual assailant.
While there are minor inconsistencies, her testimony was given in a
categorical, straightforward, spontaneous and candid manner.

The rule is that the findings of the trial court, its calibration of the
testimonies of the witnesses and its assessment of the probative weight
thereof, as well as its conclusions anchored on said findings are
accorded respect if not conclusive effect.17 This is more true if such
findings were affirmed by the appellate court.18 When the trial court's
findings have been affirmed by the appellate court, said findings are
generally binding upon this Court.19chanroblesvirtuallawlibrary

Indeed, upon review, the Court finds that accused-appellant's appeal is

bereft of merit and there is, thus, no cogent reason to reverse his
conviction.

First, the Court does not agree with accused-appellant's contention that
AAA's inconsistent testimony with respect to the places where she was
raped in 2000 and 2002 bears heavily against her credibility. With
respect to the first rape, accused-appellant argues that AAA's
testimony that the crime was committed in 2000 in their house in Bacog,
Navotas could not be true because, during that time, they were still
residing somewhere in Kadiwa, Navotas, a place which is far from
Bacog. In a similar manner, accused-appellant contends that AAA's
claim that she was raped on February 14, 2002 inside their house in
Kadiwa, Navotas is also not true because at that time, they were
already residing in Bacog, Navotas.
This Court has ruled that since human memory is fickle and prone to
the stresses of emotions, accuracy in a testimonial account has never
been used as a standard in testing the credibility of a witness.20
Moreover, the Court considers AAA's alleged inconsistency in testifying,
with respect to the place where the first and third rapes were
committed, as a minor inconsistency which should generally be given
liberal appreciation considering that the place of the commission of the
crime in rape cases is alter all not an essential element thereof. What is
decisive is that accused-appellant's commission of the crime charged
has been sufficiently proved.21 The alleged disparity in the victim's
testimony may also be attributed to the feet that, during her direct
examination, AAA was first questioned regarding her third rape in 2002,
while questions with respect to her first rape in 2000 were the last to be
asked. In any case, Courts expect minor inconsistencies when a child-
victim narrates the details of a harrowing experience like rape.22 Such
inconsistencies on minor details are in fact badges of truth, candidness
and the fact that the witness is unrehearsed.23 These discrepancies as
to minor matters, irrelevant to the elements of the crime, cannot, thus,
be considered a ground for acquittal.24 In this case, the alleged
inconsistency in AAA's testimony regarding the exact place of the
commission of rape does not make her otherwise straightforward and
coherent testimony, on material points, less worthy of belief.

Second, accused-appellant attributes ill motive against AAA and claims

that she may have concocted a story against him as she never had a
harmonious relationship with accused-appellant by reason of his
constant mauling of her mother and siblings.

However, this Court has held that it takes much more for a young lass to
fabricate a story of rape, have her private parts examined, subject
herself to the indignity of a public trial and endure a lifetime of ridicule.
25 Even when consumed with revenge, it takes a certain amount of
psychological depravity for a young woman, like AAA, to concoct a
story which would put her own father for the most of his remaining life to
jail and drag herself and the rest of her family to a lifetime of shame.
26chanroblesvirtuallawlibrary

Third, the Court is neither persuaded by accused-appellant's argument

that the physical evidence on record does not support AAA's allegation
of rape considering that the examination made by the physician
showed that there was no laceration in the hymen and there was no
evident injury found at the time of the examination.

Contrary to accused-appellant's assertions, there was no definitive

statement in the medico-legal report of Dr. Punongbayan, the physician
who examined AAA, that the victim could not have been subjected to
sexual abuse. On the contrary, the said report stated that the "[g]enital
findings do not exclude sexual abuse and may still be compatible with
the patient's disclosure [of physical and sexual abuse]."27 In her direct
examination, Dr. Punongbayan explained that AAA's hymen was
estrogenized, making it elastic, such that a fully erect male sex organ
can penetrate AAA's vagina without causing hymenal injury.28 This
Court, in a number of cases, has affirmed the conviction of the accused
for rape despite the absence of laceration on the victim's hymen, since
medical findings suggest that it is possible for the victim's hymen to
remain intact despite repeated sexual intercourse.29 It has been
elucidated that the strength and dilatability of the hymen varies from
one woman to another, such that it may be so elastic as to stretch
without laceration during intercourse. In any case, this Court has
previously stated that a medical examination and a medical certificate,
albeit corroborative of the commission of rape, are not indispensable to
a successful prosecution for rape.30 Moreover, it is settled that the
absence of physical injuries or fresh lacerations does not negate rape,
and although medical results may not indicate physical abuse or
hymenal lacerations, rape can still be established since medical
findings or proof of injuries are not among the essential elements in the
prosecution for rape.31 In the present case, the credible disclosure of
AAA that accused-appellant raped her is the most important proof of
the commission of the crime. Indeed, the testimony of a single witness
may be sufficient to produce a conviction, if the same appears to be
trustworthy and reliable.32 If credible and convincing, that alone would
be sufficient to convict the accused.33 Moreover, testimonies of child-
victims are normally given full weight and credit, since when a girl,
particularly if she is a minor, says that she has been raped, she says in
effect all that is necessary to show that rape has, in fact, been
committed.34 When the offended party is of tender age and immature,
courts are inclined to give credit to her account of what transpired,
considering not only her relative vulnerability but also the shame to
which she would be exposed if the matter to which she testified is not
true.35 Youth and immaturity are generally badges of truth and
sincerity.36 In the instant case, the Court finds no cogent reason to
depart from the findings of both the RTC and the CA as to the credibility
of the victim and her testimony.

Lastly, accused-appellant contends that his defense of denial and alibi

should not have been outrightly discounted in light of the failure of the
prosecution to prove his guilt beyond reasonable doubt.

The settled rule is that both denial and alibi are inherently weak
defenses which cannot prevail over the positive and credible testimony
of the prosecution witness that the accused committed the crime.37
Thus, as between a categorical testimony which has a ring of truth on
one hand, and a mere denial and alibi on the other, the former is
generally held to prevail.38 In the case at bar, the Court finds no
compelling reason to depart from the findings of the trial court that, in
light of the positive and categorical testimony of AAA that accused-
appellant raped her, the mere denial of accused-appellant, without any
corroborative evidence leaves the court with no option but to
pronounce a judgment of conviction.

As to the penalty, Article 266-B of the RPC, as amended, provides that

the death penalty shall be imposed if the victim is under eighteen (18)
years of age and the offender, among others, is the victim's parent.
However, following Republic Act No. 9346,39 the RTC, as affirmed by
the CA, correctly imposed upon accused-appellant the penalty of
reclusion perpetua in lieu of death, without eligibility for parole.
Likewise, the RTC correctly awarded in AAA's favor the amounts of
P75,000.00 as civil indemnity and P75,000.00 as moral damages. An
award of civil indemnity ex delicto is mandatory upon a finding of the
fact of rape, and moral damages may be automatically awarded in rape
cases without need of proof of mental and physical suffering.40 The
CA, in turn, correctly modified the RTC ruling by increasing the award of
exemplary damages from P25,000.00 to P30,000.00. Exemplary
damages are also called for, by way of public example, and to protect
the young from sexual abuse.41chanroblesvirtuallawlibrary

However, the assailed CA Decision should be modified by ordering

accused-appellant to pay interest at the rate of six percent (6%) per
annum from the finality of this judgment until all the monetary awards for
damages are fully paid, in accordance with prevailing jurisprudence.
42chanroblesvirtuallawlibrary

WHEREFORE, the instant appeal is DISMISSED. The Decision dated

June 15, 2012 of the Court of Appeals in CA-G.R. CR-HC No. 04060 is
hereby AFFIRMED with the MODIFICATION that accused-appellant
RICARDO LAGBO is further ORDERED to pay the victim interest, at the
rate of six percent (6%) per annum, on all damages awarded, from the
date of finality of this Decision until fully paid.

SO ORDERED.

x--x

PEOPLE OF THE PHILIPPINES,

G.R. No. 175980

Appellee,

Present:

- versus -

CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO,

BERSAMIN,
ADRIANO CABRILLAS,

DEL CASTILLO, and

Accused,
VILLARAMA, JR., JJ.

BENNY CABTALAN,

Promulgated:
Appellant.

February 15, 2012

x---------------------------------------------------
-----x

DECISION

DEL CASTILLO, J.:

Minor inconsistencies and discrepancies pertaining to trivial matters do

not affect the credibility of witnesses, as well as their positive
identification of the accused as the perpetrators of the crime.

Factual Antecedents

For our review is the August 29, 2006 Decision[1] of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 00039 which affirmed with
modifications the August 29, 2002 Decision[2] of the Regional Trial
Court, Branch 33, Calbiga, Samar, in Criminal Case No. CC-2000-1310,
finding appellant Benny Cabtalan (Benny) guilty beyond reasonable
doubt of the crime of murder.
The Information[3] against Benny and his co-accused Adriano Cabrillas
(Adriano) contains the following accusatory allegations:

That on or about the 11th day of July 1999, at nighttime which was
purposely sought, in Barangay Laygayon, Municipality of Pinabacdao,
Province of Samar, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping one another, with deliberate intent to kill,
with treachery and abuse of superior strength, did then and there
willfully, unlawfully and feloniously, attack, assault, and stab one Jesus
Cabujat with the use of long bolos (sundang), with which both accused
have provided themselves for the purpose, thereby inflicting upon the
victim multiple stab wounds, which wounds resulted to his
instantaneous death.

CONTRARY TO LAW.[4]

Two years after the incident, Benny was arrested in Las Pias City[5]
while to date, Adriano remains at large. During his arraignment, Benny
entered a plea of not guilty.[6] Trial thereafter ensued.

Version of the Prosecution

Prosecution witness Wilfredo Pacayra (Wilfredo) narrated that on July

11, 1999 at around 7:00 p.m., he went to the store of Susan Cabtalan
(Susan) to buy salt. While thereat, Benny and Adriano asked him to join
them in their drinking spree to which Wilfredo obliged. In the course of
their drinking spree, Wilfredo noticed that Benny and Adriano had
bolos, locally known as sundang, tucked on their waists. He also heard
the two talking about their plan to assault someone that same night.[7]
Sensing that something wrong would happen, Wilfredo left them and
walked home.[8]

Upon reaching his house, Wilfredo soon noticed Benny and Adriano
circling the house of Jesus Cabujats (Jesus) daughter, Elena Raypan
(Elena), which is just about two arms length away from his house.[9]
Thereafter, the duo stood on a dark portion of the road.[10] Later on, he
saw Jesus and his 9-year-old granddaughter Jonalyn C. Raypan
(Jonalyn) walking towards the house of Jonalyns mother, Elena. Jesus
stopped and turned towards a grassy area to urinate when suddenly,
Benny and Adriano emerged from their hiding place. They held Jesus
by his shoulders and alternately stabbed him. At that moment, Jesus
shouted I am wounded, please help me because I was stabbed by
Benny and Adriano.[11] Jesus then fell to the ground while Benny and
Adriano immediately fled from the crime scene.[12]

For her part, prosecution witness Jonalyn narrated that on the night of
the incident, she fetched her grandfather Jesus from her Ate Susans
house.[13] She and her grandfather walked side by side in going back
to their house.[14] However, upon reaching the vicinity of their house,
her grandfather went across the street to urinate. It was then that she
saw Benny and Adriano on the same street.[15] She knew the two
because Benny and her father are cousins while Adriano and her
mother are also cousins.[16] She saw the two men take hold of her
grandfathers arms, after which Benny stabbed her grandfather with a
long bolo. She heard her grandfather say Donie, help me, I am
wounded.[17] After that, Jonalyn saw Benny go home.[18]

Elena also testified that when she heard her father shouting for help,
she immediately went outside the house and saw Benny releasing her
father. As she got nearer to Jesus, Benny and Adriano ran away.[19]
When Elena asked her father as to who stabbed him, the latter replied
that it was Benny and Adriano.[20]

Jesus was rushed to a hospital where he was pronounced dead due to

multiple stab wounds.[21] His family spent P18,500.00 for his wake and
burial. At the time of his death, Jesus was earning P1,000.00 a week as
a farmer.

A case for murder was accordingly filed against Benny and Adriano
and a warrant was issued for their arrest which was, however, returned
unserved since they could no longer be located. It appears that on July
13, 1999, at around noontime, Benny and Adriano escaped by
ferryboat to Catbalogan, Samar.[22] Two years later, or on July 31,
2001, Benny was arrested in Las Pias City by virtue of an alias warrant
of arrest.[23]

Version of the Defense

Benny testified that he was in his mothers house in the morning of July
11, 1999 until lunchtime. He then proceeded to the store of Susan in
Barangay Laygayon and saw Adriano and a certain Manuel Cabigayan
drinking tuba. He accepted their invitation to join in their drinking spree
and stayed there until 6:00 p.m. Thereafter, he went home to Barangay
Pilaon which was about three kilometers away. He reached his
destination after walking for nearly an hour and no longer went out. He
learned from his neighbors of the death of Jesus only the following day.
[24]
In the succeeding days, Benny went to Paraaque City after receiving a
letter from his brother informing him of a job opportunity in the city as
gardener.[25]

Bennys mother, Gertrudes, testified that on July 11, 1999, she was in
her farm in Barangay Laygayon, Pinabacdao, Samar, together with her
husband and Adrianos mother, Pacita Ocenar. At around 9:00 p.m.,
Adriano arrived and confided to her that he attacked and injured a
person in said barangay. The following day Adriano departed and was
never seen again.[26]

Ruling of the Regional Trial Court

On August 29, 2002, the trial court rendered a Decision[27] convicting

Benny of the crime of murder. Discarding minor inconsistencies,
relationship, and delay in testifying in court, it gave more credence to
the testimonies of the prosecutions two eyewitnesses since their
positive declarations that Benny and Adriano stabbed the helpless
Jesus were never refuted. Besides, the ad mortem statement of Jesus
that the two stabbed him would serve to cleanse any doubt on their
responsibility.[28] Also telling is the fact that Benny and Adriano
immediately fled to Catbalogan, Samar after the incident.

The trial court appreciated the presence of the qualifying circumstance

of treachery since the attack upon Jesus who was unarmed and
unsuspecting was without any warning. It also found the existence of
the aggravating circumstance of abuse of superior strength as both
Benny and Adriano held, subdued and attacked the 69-year-old
defenseless Jesus. The trial court further held that conspiracy was
evident since Benny and Adriano had common criminal intent and were
united in its execution.[29]

The dispositive portion of the trial courts Decision reads:

WHEREFORE, the prosecution [having] clearly established the guilt of

the accused, BENNY CABTALAN beyond reasonable doubt, he is
found guilty of the crime of Murder, and is sentenced to suffer the
penalty of Death by lethal injection, to pay the heirs of Jesus Cabujat
the amount[s] of Php75,000.00 as civil liability; Php15,000.00 as
exemplary damages, and Php10,000.00 in moral damages, to
reimburse the amount of Php5,000.00 spent for the coffin; Php5,000.00
for the wake, although no receipts were presented for these last two
expenses yet these are legitimate and reasonable amounts under the
circumstances.

Let the case against co-accused Adriano Cabrillas be sent to the

archives without prejudice, and issue another alias order for his arrest
as soon as possible.

The Samar Provincial Jail Warden is ordered to proceed accordingly in

so far as the continued detention of the herein accused and his
eventual transfer to the National Penitentiary, and to inform this court in
writing on the matter as soon as possible.

The Acting Branch Clerk of court is advised to proceed accordingly.

[SO ORDERED.][30]

The case was forwarded to this Court for automatic review, but same
was later referred to the CA in accordance with the ruling in People v.
Mateo.[31]

Ruling of the Court of Appeals

The CA affirmed the trial courts judgment of conviction through its

August 29, 2006 Decision.[32] However, it did not anymore consider the
aggravating circumstance of abuse of superior strength as the
qualifying circumstance of treachery already absorbed it.[33] Thus, the
CA modified the penalty imposed upon Benny by reducing it from
death to reclusion perpetua. Likewise modified were the amounts of
damages granted to the heirs of Jesus. It disposed of the case in the
following manner:

WHEREFORE, premises considered, the assailed Decision of the

Regional Trial Court is hereby AFFIRMED with the modification that the
penalty is Reclusion Perpetua, accused-appellant is ordered to pay the
heirs of Jesus Cabujat Php50,000.00 as civil indemnity, Php50,000.00
as moral damages and Php25,000.00 as exemplary damages and to
suffer accessory penalties attached to the offense committed.
SO ORDERED.[34]

Assignment of Errors

Benny attempts to secure his acquittal by assigning the following

errors:

I. THE LOWER COURT ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
C H A R G E D D E S P I T E T H E PAT E N T W E A K N E S S O F T H E
PROSECUTIONS EVIDENCE.

II. ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS

ACCOUNTABLE FOR THE DEATH OF THE VICTIM, THE LOWER
COURT ERRED IN HOLDING THAT TREACHERY QUALIFIED THE
KILLING INTO MURDER.

X X X X[35]

Benny insists that the evidence adduced to establish his culpability is

not sufficient and credible. He posits that Wilfredo is not a credible
witness because it took him three years to come out and reveal the
identities of the alleged perpetrators without any adequate explanation
for the delay. He likewise impugns the credibility of the prosecution
witnesses since Wilfredo is a relative of the victims son-in-law while
Jonalyn is a grandchild. In addition, Benny asserts that the
prosecutions evidence is glaring with inconsistencies. According to
him, Wilfredos testimony that he and Adriano took turns in stabbing
Jesus is diametrically opposed to Jonalyns declaration that only he
stabbed Jesus. Furthermore, the testimony of Elena that she inquired
from Jesus who his assailants were is inconsistent with her own affidavit
and that of her sister, Julita, as the affidavits indicated that it was Julita
and not Elena who asked their father about the identity of his assailants.

Benny therefore concludes that the prosecutions evidence is weak and

cannot prevail over his defense of alibi. Moreover, he asserts that the
prosecution failed to prove that he killed Jesus in a treacherous manner,
hence, he should not be held guilty of murder.

Our Ruling

The appeal lacks merit.

Treachery attended the killing of Jesus, hence, the crime committed is

murder.

Murder is the unlawful killing by the accused of a person, which is not

parricide or infanticide, committed with any of the attendant
circumstances enumerated in Article 248[36] of the Revised Penal
Code, among which is treachery.

There is no dispute that the killing of the victim in this case is neither
parricide nor infanticide. The issue that must therefore be resolved is
whether treachery attended the killing as to qualify the crime to murder.

There is treachery when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
the offender arising from the defense which the victim might make.[37]
The essence of treachery is that the attack comes without a warning
and in a swift, deliberate, and unexpected manner, affording the
hapless, unarmed, and unsuspecting victim no chance to resist or
escape.[38]

Based on the account of the prosecutions eyewitnesses, there is no

doubt that treachery was present. It was established that Benny and
Adriano were in the crime scene prior to the incident. They hid in a dark
portion of the road and assaulted Jesus with their bolos while he was
urinating with his back to them. They even held him by his shoulders to
render him defenseless and unable to resist the attack on him by his
assailants. Wilfredo testified viz:

Q. What else did you observe while the dogs were barking?
A. While the dogs were barking, I saw two (2) persons who were
[circling] the house of Elena Raypan, they were walking back and forth
in front of the house of Elena Raypan.

Q. Were you able to recognize these two (2) persons walking back and
forth near the house of Elena Raypan?
A. Yes, sir.

Q. Who were they?

A. Benny Cabtalan and Adriano Cabrillas.

Q. How did you recognize them?

A. Because the house was lighted.

Q. After they were going back and forth in front of the house of Elena
Raypan, where did these persons go?
A. They went to the dark portion of the road.

xxxx

Q. After they went to the dark portion of the road, what did you observe
next?
A. They just stood by [there].

Q. After that what happened next?

A. I saw Jesus Cabujat walking towards the house of Elena Raypan.

Q. Was he alone?
A. He was accompanied by a child.

xxxx

Q. When you saw Jesus Cabujat walking towards the house of Elena
Raypan, what did Jesus Cabujat do before going to the house of Elena
Raypan?
A. When Jesus Cabujat reached the place where the two persons
Benny [Cabtalan] and Adriano Cabrillas were standing, Jesus Cabujat
urinated.

xxxx
Q. To what direction was he facing?
A. He was facing towards the grassy area.

Q. What happened while Jesus Cabujat was urinating as you said?

A. Thats the time when Jesus Cabujat was held on his shoulder.

xxxx

Q. Who held the left shoulder of Jesus Cabujat?

A. Benny Cabtalan.
xxxx

Q. [H]ow about Adriano Cabrillas, what did he do?

xxxx

A. He also stabbed the victim.

Q. Were you able to see the weapon used by Benny Cabtalan?

A. Yes, sir.

Q. What was the weapon used?

INTERPRETER:
The witness demonstrated that it was more or less 14 inches.

Q. That includes the handle?

A. Yes, sir.

xxxx

Q. How many times did Benny Cabtalan stab the victim?

A. Three (3) times.

Q. How about Adriano Cabrillas?

A. Three (3) times also.

Q. From the first blow of Benny Cabtalan to the first blow of Adriano
Cabrillas, how long did it take?
A. It just happened so quickly; as the first one delivered his stab blow
the other one also delivered his stab blow, alternately stabbing the
victim.

Q. So, what happened to Jesus Cabujat?

A. He asked for help and said: I am wounded, please help me because
(I) was stabbed by Benny Cabtalan and Adriano Cabrillas.

Q. After he shouted what happened to him.

A. After that he fell down.

Q. How about Benny Cabtalan and Adriano Cabrillas, what did they do
when Jesus Cabujat fell down?
A. When Jesus Cabujat shouted for help, that was the time the two (2)
culprits [fled].

Q. To what direction?
A. To the route going to a farm.[39]

Jonalyn corroborated the testimony of Wilfredo on relevant details as

follows:

Q. When you x x x [reached] your house, what did your lolo do?
A. He went across the street and urinated there and saw Benny also on
the street.

Q. Was Benny alone?

A. [There] were two (2) of them.

Q. Do you recognize the other one?

A. Yes, sir.

Q. Who?
A. It was Adriano.

Q. Do you know the surname of Benny?

A. Cabtalan.

Q. How about Adriano, do you know the surname of Adriano?

A. I cannot remember.

Q. Why do you know the surname of Benny Cabtalan?

A. Because my father and his father are cousins. Benny and my father
are cousins.

xxxx

Q. You saw them also in the street while your lolo was urinating so, what
did Benny and Adriano do at that time?
A. They held both arms of my grandfather.
xxxx

Q. And after holding x x x your grandfather, what did Benny do if any?

A. They suddenly stabbed my lolo.

Q. With what?
A. It was a long bolo.[40]

All told, Jesus was unaware of the imminent peril to his life and was
rendered incapable of defending himself. From the suddenness of the
attack upon Jesus and the manner it was committed, there is no doubt
that treachery indeed attended his killing.

The trial courts assessment of the credibility of witnesses usually

remains undisturbed.

The trial and appellate courts reached the same conclusion that the
testimonies of eyewitnesses Wilfredo and Jonalyn deserve credence as
both narrated in a straightforward manner the details of Benny and
Adrianos attack upon Jesus. Benny, however, still disputes the
credibility of these witnesses by pointing out that Wilfredos testimony
that he and Adriano took turns in stabbing Jesus differs from that of
Jonalyn who stated that while the two assailants attacked Jesus in
unison, it was only Benny who inflicted the mortal wounds. The Court,
however, finds this inconsistency to pertain merely to the manner the
fatal stab wounds were inflicted on Jesus. The materiality of the
assailants exact position during their attack on the victim is a trivial and
insignificant detail which cannot defeat the witnesses positive
identification of Benny as one of the assailants. Besides, [i]t is perfectly
natural for different witnesses testifying on the occurrence of a crime to
give varying details as there may be some details which one witness
may notice while the other may not observe or remember. In fact,
jurisprudence even warns against a perfect dovetailing of narration by
different witnesses as it could mean that their testimonies were
[fabricated] and rehearsed.[41]
Bennys assertion that Wilfredo is not a credible witness since he
surfaced three years after the incident to testify for the prosecution also
fails to impress. It is worthy to mention that the proceedings in this case
was suspended for two years because Benny and Adriano left
Pinabacdao, Samar and the warrant for their arrest could not be served
on them. Also, deference or reluctance in reporting a crime does not
destroy the truth of the charge nor is it an indication of deceit. Delay in
reporting a crime or an unusual incident in a rural area is well-known.
[42] It is common for a witness to prefer momentary silence for fear of
reprisal from the accused.[43] The fact remains that Wilfredo fulfilled his
duty as a good member of society by aiding the family of Jesus when
they were seeking justice. In the absence of other circumstances that
would show that the charge was a mere concoction and that Wilfredo
was impelled by some evil motives, delay in testifying is insufficient to
discredit his testimony.

The fact that Wilfredo and Jonalyn are related to the victim also does
not diminish their credibility. While admittedly, Wilfredo is a relative of
the husband of Julita, who is the daughter of Jesus, and Jonalyn is
Jesuss granddaughter, relationship per se does not evince ulterior
motive nor does it ipso facto tarnish the credibility of witnesses.[44]
Mere relationship to a party cannot militate against the credibility of
witnesses or be taken as destructive of the witnesses credibility.[45]
What matters is that Wilfredo and Jonalyn positively identified Benny
and Adriano as the assailants of Jesus and that they testified in a
straightforward manner. These indicate that the two are telling the truth.

As to the inconsistencies in Elenas testimony and in her affidavit as to

who asked her father the identity of the assailants, the same deserves
scant consideration. It is settled that affidavits or statements taken ex
parte are generally considered incomplete and inaccurate. Thus, by
nature, they are inferior to testimony given in court, and whenever there
is inconsistency between the affidavit and the testimony of a witness in
court, the testimony commands greater weight.[46] The trial court
therefore did not err in affording more credence to Elenas testimony
given in open court despite her having previously executed an affidavit
which was inconsistent with her testimony. To stress, appellate courts
do not disturb the findings of the trial courts with regard to the
assessment of credibility of witnesses. The reason for this is that trial
courts have the unique opportunity to observe the witnesses first hand
and note their demeanor, conduct, and attitude under grilling
examination.[47]

Bennys defense of alibi was properly rejected.

Alibi is the weakest of all defenses since it is easy to concoct and

difficult to disprove.[48] For this defense to prosper, proof that the
accused was in a different place at the time the crime was committed is
insufficient. There must be evidence that it was physically impossible
for him to be within the immediate vicinity of the crime during its
commission.[49]

Here, Benny did not satisfactorily demonstrate that it was physically

impossible for him to be at the locus criminis at the night of its
commission. While he denies being at the scene of the crime when it
happened, he claims to be within a reasonably near area which is his
residence in Barangay Pilaon.[50] The murder of Jesus occurred in
Barangay Laygayon, which is more or less 3 kilometers away from the
place where Benny claimed he was in.[51] Benny testified that the
distance between these two barangays can be covered in an hours
walk.[52] Thus, even if he traveled by foot to another barangay, it was
still not too far away to render it physically impossible for him to be at
the crime scene at the time of its commission. Furthermore, Bennys
alibi is uncorroborated. Courts may give credence to alibi only if there
are credible eyewitnesses who can corroborate the alibi of accused.
[53] In contrast, alibi becomes weaker in the face of the positive
identification made by the witnesses for the prosecution, as in this case.
[54]

Benny cannot escape liability by imputing the crime to Adriano.

Bennys assertion that Adriano was solely responsible for the murder of
Jesus is likewise undeserving of consideration. Such a claim is
common among conspirators in their veiled attempt to escape
complicity. It is a desperate strategy to compensate for a weak
defense. We are not readily influenced by such a proposition since its
obvious motive is to distort the truth and frustrate the ends of justice.
[55]

Besides, it is the victim himself who pointed to Benny as one of his

assailants. Such statement of Jesus before his death is a dying
declaration that is admissible in evidence against Benny.[56] A dying
declaration is an evidence of the highest order; it is entitled to the
utmost credence on the premise that no x x x person who knows of his
impending death would make a careless and false accusation. At the
brink of death, all thoughts on concocting lies disappear.[57]

All told, the Court finds no reason to depart from the judgment of
conviction rendered against Benny by the trial court and affirmed by the
CA.

The Penalty and Award of Damages

When the circumstance of abuse of superior strength concurs with

treachery, the former is absorbed in the latter.[58] Hence, the trial court
should have no longer considered the aggravating circumstance of
abuse of superior strength. And there being no aggravating or
mitigating circumstance in this case, the proper penalty therefore is
reclusion perpetua, it being the lesser penalty between the two
indivisible penalties for the crime of murder which is reclusion perpetua
to death.[59] Hence, we agree with the CA when it imposed upon
Benny the penalty of reclusion perpetua. In addition, Section 3 of
Republic Act No. 9346[60] provides:

Section 3. Persons convicted of offenses punishable with reclusion

perpetua or whose sentences will be reduced to reclusion perpetua by
reason of this Act, shall not be eligible for parole under Act No. 4103
otherwise known as the Indeterminate Sentence Law, as amended.
Pursuant to the above provision, Benny is therefore not eligible for
parole.

As to the award of damages, the heirs are entitled to the following

awards when death occurs due to a crime: (1) civil indemnity ex delicto
for the death of the victim; (2) actual or compensatory damages; (3)
moral damages; (4) exemplary damages; and, (5) temperate damages.
[61]

Civil indemnity in the amount of P75,000.00 is mandatory and is

granted without need of evidence other than the commission of the
crime.[62] Hence, the Court modifies the civil indemnity awarded by the
CA from P50,000.00 to P75,000.00. We likewise increase the award for
moral damages from P25,000.00 to P50,000.00 in accordance with the
latest jurisprudence on the matter. Moral damages in the sum of
P50,000.00 shall be awarded despite the absence of proof of mental
and emotional suffering of the victims heirs.[63] As borne out by human
nature and experience, a violent death invariably and necessarily
brings about emotional pain and anguish on the part of the victims
family.[64] Moreover and with the finding of the qualifying circumstance
of treachery, exemplary damages is correctly awarded but only in the
amount of P30,000.00 in line with current jurisprudence.[65]

As regards actual damages, Jesuss daughter Julita testified that they

spent P18,500.00 for burial and funeral expenses, though she was
unable to present receipts to substantiate her claim. Where the amount
of actual damages for funeral expenses cannot be ascertained due to
the absence of receipts to prove them, temperate damages in the sum
of P25,000.00 may be granted, as it is hereby granted, in lieu thereof.
[66] This award is adjudicated so that a right which has been violated
may be recognized or vindicated, and not for the purpose of
indemnification.[67]

The trial court and the appellate court are unanimous in not awarding
loss of earning capacity to the heirs of Jesus for lack of basis. There
was no error on their part since there was no documentary evidence to
substantiate this claim. The testimony that Jesus earned P1,000.00 a
week can be used as basis for granting such an award only if he is
either (1) self-employed earning less than the minimum wage under
current labor laws, and judicial notice may be taken of the fact that in
[his] line of work no documentary evidence is available; or (2)
employed as a daily-wage worker earning less than the minimum wage
under current labor laws.[68] Here, the prosecution did not offer proof
that would determine whether Jesus was self-employed or a daily-wage
earner. Thus, the exceptions to the rule cannot be applied in this case.
[69]
The heirs of Jesus are also entitled to an interest on all the awards of
damages at the legal rate of 6% per annum from the finality of this
judgment until fully paid.[70]

WHEREFORE, the Decision dated August 29, 2006 of the Court of

Appeals in CA-G.R. CR-HC No. 00039 that affirmed with modifications
the Decision of the Regional Trial Court of Calbiga, Samar, Branch 33, is
AFFIRMED with further modifications. Appellant Benny Cabtalan is
found GUILTY beyond reasonable doubt of the crime of Murder and
sentenced to suffer the penalty of reclusion perpetua without eligibility
for parole. He is ordered to indemnify the heirs of Jesus Cabujat the
following: (1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral
damages; (3) P 30,000.00 as exemplary damages; (4) P 25,000.00 as
temperate damages; and (5) interest on all damages awarded at the
legal rate of 6% per annum from the finality of this judgment until fully
paid.

SO ORDERED.

x--x

G.R. No. 189850 September 22, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
REYNALDO TORRES, JAY TORRES, BOBBY TORRES @ ROBERTO
TORRES y NAVA, and RONNIE TORRES, Accused,

BOBBY TORRES @ ROBERTO TORRES y NAVA, Accused-Appellant.

DECISION

DEL CASTILLO, J.:

This is an appeal from the July 23, 2009 Decision1 ofthe Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02925, which modified the
December 5, 2006 Decision2 of the Regional Trial Court (RTC), Manila,
Branch 27 in Criminal Case No. 02-200171. The RTC found appellant
Bobby Torres @Roberto Torres y Nava (appellant) guilty beyond
reasonable doubt of the crime of murder but on appeal, the CA found
appellant guilty of the special complex crime of robbery with homicide.

Factual Antecedents

On January 28, 2004, an Amended lnformation3 was filed before the

charging siblings Reynaldo Torres (Reynaldo), Jay Torres (Jay), Ronnie
Torres (Ronnie) and appellant with the special complex crime ofrobbery
withhomicide committed against Jaime M. Espino (Espino). The
Amended Information contained the following accusatory allegations:

That on or about September 21, 2001, inthe City of Manila, Philippines,

the said accused, armed with bladed weapons, conspiring and
confederating together with one malefactor whose true name, real
identity and present whereabouts [is] still unknown and helping one
another, did then and there willfully, unlawfully and feloniously, with
intent of gain and by means of force, violence, and intimidation,to wit:
while one JAIME M. ESPINO was on board his car and travelling along
C.M. Recto Avenue corner Ylaya St., Tondo , this City, by blocking his
path and forcibly grabbing from the latter his belt-bag; that on the
occasion of the said robbery and by reason thereof, the herein
accused, in pursuance of their conspiracy, did thenand there willfully,
unlawfully and feloniously, with intent to kill, attack, assault, use
personal violence and abuse of superior strength upon the said JAIME
M.ESPINO and that when the latter resisted, by then and there stabbing
the latter with bladed weapons on x x x different parts of his body,
thereby inflicting upon the latter multiple stab wounds which were the
direct and immediate cause of his death thereafter, and afterwhich,
divest, take, rob and carry away a belt-bag, wallet, necklace, watch
and ring of undetermined amount, belonging to said JAIME M. ESPINO.

Contrary to law.4
Only appellant was arrested. Reynaldo, Jay and Ronnie remain at-large
to date. During arraignment, appellantentered a plea of "not guilty".5
After the termination of the pre-trial conference, trial ensued.6

Version of the Prosecution

The prosecution presented as eyewitnesses Eduardo Umali (Umali), a

butcher, and MerlitoMacapar (Macapar), a cigarette vendor. Also
presented were Dr. Romeo T. Salen (Dr. Salen), who testified on the
cause of death of Espino. From their testimonies,7 the following facts
emerged:

At around 10:00 p.m. of September 21,2001, Espino was driving his car
along C.M. Recto Avenue in Divisoria, Manila when Ronnie suddenly
blocked his path. Espino alighted from his vehicle and approached
Ronnie, who tried to grab his belt-bag. Espino resisted and struggled
with Ronnie for the possession of his belt-bag but the latters brothers,
Jay, Rey, appellant, and an unidentified companion suddenly
appeared. With all of them brandishing bladed weapons, appellant and
his brothers took turns in stabbing Espino in different parts of his body
while the unidentified companion held him by the neck. When Espino
was already sprawled on the ground, they took his belt-bag, wallet and
jewelries and immediately fled.

Espino was rushed to the hospital butwas pronounced dead on arrival.

In his Medico-Legal Report No. W-658-2001,8 Dr. Salen concluded that
Espino died of multiple stab wounds caused by sharp
bladedinstruments. The back portion of his head bore two stab wounds
while his body suffered four stab wounds which proved fatal.
Considering the number and varying measurements of the wounds, Dr.
Salen opined that there weremore than one assailant.

To prove the civil aspect of the case, Espinos daughter, Winnie

EspinoFajardo (Winnie) testified that the pieces of jewelry stolen from
her father consisted of a necklace worth P35,000.00, bracelet worth
P15,000.00, wristwatch worth P10,000.00 and two rings worth
P10,000.00 each. As for their expenses, Winnie said that P25,000.00
was spent for the burial lot and P37,000.00 for the funeral services. She
stated further that Espino was 51 years old at the time of his death and
was earning P3,000.00 a day asa meat vendor.9
Version of the Defense

Appellant denied any participation in the crime. He testified that at

around 10:00 p.m. of September 21, 2001, he was with his girlfriend,
Merlita Hilario (Merlita). They proceeded to the house oftheir friend,
Marilou Garcia (Marilou), in Villaruel, Tayuman, Manila where they had a
drinking session which lasted until they fell asleep. They did not leave
their friends house until the following morning when they went home.
Thereupon, he was told that policemen were looking for him because
his brothers got involved in an altercation that resulted in the death of
someone.10 Merlita and Marilou corroborated appellants alibi in their
respective testimonies.11

From the testimony of another defense witness, Jorna Yabut-Torres

(Jorna), wife of Ronnie, the defenses version of the incidentemerged as
follows:

In the evening of September 21, 2001, Jorna and Ronnie were sharing
jokes with other vendors in Divisoria when a car stopped a few meters
from their stall. The driver alighted and asked why they were laughing.
Ronnie replied that it had nothing to do with him. The driver seemed
drunk since he walked back to his vehicle in an unsteady manner.
Moments later, the driver returned and stabbed Ronnie on the wrist with
a knife. Jay saw the assault on his brother, Ronnie, and got a bolo
which he used to hack the driver repeatedly. Thereafter, Ronnie and Jay
fled.12 Ditas Biescas-Mangilya, a vegetable vendor in Divisoria,
corroborated Jornas version of the incident in her testimony.13

Ruling of the Regional Trial Court

In its December 5, 2006 Decision,14 the RTC held that appellant could
not have committed robbery. It ratiocinated, viz:

Prosecution witness Merlito D. Macapar testified that Ronnie took the

belt bag of the deceased while Bobby and the rest took his wristwatch,
ring and necklace. However, on cross-examination, witness admitted
that he did not see who took the ring, wristwatch and necklace because
as soon as the deceased fell on the ground, accused and companions
surrounded him. Merlitos testimony was contradicted by Eduardo Umali
on a vital point. Thus, Merlito testified that there was an exchange of
heated words. There was no intimation whatsoever what the altercation
was about. He was ten meters away. No such altercation, however, took
place according to Eduardo who was barely five meters away. This
tainted the testimony of Merlitoand Eduardo with suspicion. When
material witnesses contradict themselves on vital points, the element of
doubt is injected and cannot be lightly disregarded. That was not all
though. Merlito testified [that] several people witnessed the incident.
The stall of the victims daughter was about ten meters from the crime
scene, which was a few meters from the stall of Ronnie. They both had
been in their respective stalls for quite sometime. The principal
prosecution witnesses are familiar with the deceased and the accused
except for the unidentified companion as they often see them at the
vicinity. Thus, in all likelihood, accused and the victim are familiar if not
know each other very well. The perpetration of robbery at the place was
thus unlikely.

Even granting that the element of taking is present, still, accused

cannot be held liable for the complex crime of robbery with homicide
for the reason that it was not indubitably shown that the mainpurpose of
the accused was to rob the victim. To the mind of the Court, this is
precisely the reason why the prosecution skipped the utterances made
by the protagonist[s] during the attack. To sustain a [conviction] for the
special complex crime of robbery with homicide, the original criminal
design of the culprit must be robbery and the homicide is perpetrated
with a view to the consummation of the robbery, or by reason or on the
occasion of the robbery (People vs. Ponciano, 204 SCRA 627).

xxxx

The crime of robbery not having been indubitably established, the

accused cannot be convicted of the special complex crime of robbery
with homicide.15

The RTC thus concluded that appellant can only be liable for the killing
of Espino. It held him guilty of murder after it found the qualifying
circumstance of abuse of superior strength, which was alleged in the
Information and duly established by the prosecution. Moreover, the RTC
ruled that conspiracy among the accused attended the crime.
Anent the civil aspect of the case, the RTC granted civil indemnity,
actual and moral damages to the heirs of Espino,but denied the claim
for loss of earning capacity for lack of documentary evidence.

The dispositive portion of the RTC Decision reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court finds

accused Bobby Torres y Nava, "Guilty" beyond reasonable doubt of the
crime of Murder as the qualifying circumstance of abuse of superior
strength attended the commission of the crime and hereby sentences
him to suffer the penalty of Reclusion Perpetua, to indemnify the heirs of
the victim the sum of P50,000.00, the additional sum of P50,000.00 as
moral damages, actual damages in the amount of P62,000.00 and to
pay the costs.

Let alias warrant of arrest issue against accused Reynaldo Torres, Jay
Torres and Ronnie Torres.

SO ORDERED.16

Appellant filed a Motion for Reconsideration17which was denied in an

Order18 dated April 10, 2007.

Hence, appellant appealed to the CA.19

Ruling of the Court of Appeals

In modifying the ruling of the RTC, i.e., finding appellant guilty of

robbery with homicide instead of murder, the CA found that the primary
intention of appellant and his co-accusedwas to rob Espino and his
killing was only incidental to the robbery. The blocking of Espinos car
and the struggle for possession of his belt-bag after he alighted are
clear manifestations of the intent to commit robbery. The dispositive
portion of the July 23, 2009 Decision20 of the CA reads as follows:

WHEREFORE, in view of foregoing, the appealed decision of the RTC

Manila, Branch 27 dated December 5, 2006 is hereby MODIFIED in that
appellant is found GUILTY beyond reasonable doubt of the crime of
ROBBERY with HOMICIDE and he is hereby sentenced to suffer the
penalty of reclusion perpetua. The trial courts award to the heirs of the
victim, Jaime Espino, of civil indemnity in the amount of P50,000.00,
moral damages in the amount of P50,000.00, and actual damages in
the amount of P62,000.00 as well as its order to appellant to pay the
costs of suit, are hereby AFFIRMED.

SO ORDERED.21

Hence, this present appeal.

Assignment of Errors

Appellant imputes upon the CA the following errorsin his Supplemental

Brief.22

The acquittal of the accused-appellant in the robbery charge should be

left undisturbed as being final and executory which cannot be
overturned without violating the proscription against double jeopardy.23

The appellate court exceeded its jurisdiction when it reviewed the entire
case despite the fact that the accused-appellant only appealed his
conviction for murder.24

It was an error to convict the accused-appellant of the crimes charged

considering that his guilt was notproven beyond reasonable doubt.25

Our Ruling

The appeal is unmeritorious.

In an appeal by an accused, he waives his right not to be subject to

double jeopardy.

Appellant maintains thatthe CA erred in finding him liable for robbery

with homicide as charged in the Amended Information. He argues that
his appeal to the CA was limited to his conviction for murder and
excluded his acquittal for robbery. And by appealing his conviction for
murder, he does not waive his constitutional right not to be subject to
double jeopardy for the crime of robbery. He claims that even assuming
that the RTC erred in acquitting him of the robbery charge, such error
can no longer be questioned on appeal.
We cannot give credence to appellants contentions. "An appeal in [a]
criminal case opens the entire case for review on any question
including one not raised by the parties."26 "[W]hen an accused appeals
from the sentence of the trial court, he waives the constitutional
safeguard against double jeopardy and throws the whole case open to
the review of the appellate court, which is then called upon to render
such judgment as law and justice dictate, whether favorable or
unfavorable to the appellant."27 In other words, when appellant
appealed the RTCs judgment of conviction for murder, he is deemed to
have abandoned his right to invoke the prohibition on double jeopardy
since it became the duty of the appellate court to correct errors as may
be found in the appealed judgment. Thus, appellant could not have
been placed twice in jeopardy when the CA modified the ruling of the
RTC by finding him guilty of robbery with homicide as charged in the
Information instead of murder.

Appellant is guilty of the crime of robbery with homicide.

"Robbery with homicide exists when a homicide is committed either by

reason, or on occasion, of the robbery. To sustain a conviction for
robbery with homicide, the prosecution must prove the following
elements: (1) the taking of personal property belonging to another; (2)
with intent togain; (3) with the use of violence or intimidation against a
person; and (4) on the occasion or by reason of the robbery, the crime
of homicide, as usedin its generic sense, was committed. A conviction
requires certitude that the robbery is the main purpose and objective of
the malefactor and the killing ismerely incidental to the robbery. The
intent to rob must precede the taking of human life but the killing may
occur before, during or after the robbery."28

In this case, the prosecution adduced proof beyond reasonable doubt

that the primary intention of appellant and his companions was to rob
Espino. Umali and Macapar, the eyewitnesses presented by the
prosecution, testified that at around 10:00 p.m. of September 21, 2001,
appellants brother and co-accused, Ronnie, blocked Espinos car at
the corner of C.M. Recto Avenue and Ylaya Street. When Espino
alighted from his vehicle, Ronnie attempted to grab his beltbag. A
struggle for possession of the belt-bag ensued. It was at this juncture
that appellant and the other co-accused joined the fray and stabbed
Espino several times in the head and body. When Espino fell to the
pavement from his stab wounds, appellant, Ronnie and their cohorts
got hold of the victims wallet, beltbag, wristwatch and jewelry then fled
together.29

From the foregoing, it is clear that the primordial intention of appellant

and his companions was to rob Espino. Had they primarily intended to
kill Espino, they would have immediately stabbed him to death.
However, the fact that Ronnie initially wrestled with appellant for
possession of the belt-bag clearly shows that the central aim was to
commit robbery against Espino.This intention was confirmed by the
accuseds taking of Espinos belt-bag, wallet, wrist-watch and jewelries
after he was stabbed to death. The killing was therefore merely
incidental, resulting by reason oron occasion of the robbery.

The testimonies of the prosecution eyewitnesses are worthy of

credence.

Appellant attempts to discredit Umali and Macapar by asserting that

there are glaring contradictions in their testimonies. He calls attention to
the RTCs observation that Macapar gave conflicting testimonies on
whether he actually witnessed who among appellant and his cohorts
took Espinos valuables after he fell to the ground. Appellant asserts
further that Umalis testimony that an altercation did not precede the
commission of the crime contradicts the testimony of Macapar that a
heated exchange of words occurred prior to the incident. He also
claims that it is contrary to human nature for Espino to alight from his
car at 10:00 p.m. while in possession of a large amount of money
without fear of an impending hold-up.

We are not persuaded. The inconsistencies attributed to the

prosecutions eyewitnesses involve minor details, too trivial to adversely
affect their credibility. Said inconsistencies do not depart from the fact
that these eyewitnesses saw the robbery and the fatal stabbing of
Espino by appellant and his cohorts. "[T]o the extent that
inconsistencies were in fact shown, they appear to the Court to relate to
details of peripheral significance which do not negate or dissolve the
positive identification by [Umali and Macapar of appellant] as the
perpetrator of the crime."30 "Inaccuracies may in fact suggest that the
witnesses are telling the truth and have not been rehearsed. Witnesses
are not expected to remember every single detail of an incident with
perfect or total recall."31

Moreover, it is unlikely that Espino feared alighting from his vehicle at a

late hour while in possessionof a huge amount of money since he was a
vendor doing business in the vicinity where the incident occurred. He
was familiar with the people and their activities in the premises. In view
of the above, the Court finds that the CA properly lent full credence to
the testimonies of Umali and Macapar.

The weapons are not the corpus delicti.

Appellant contends that the evidence is insufficient for his conviction

since the weapons used in the stabbing of Espino were not presented.
In other words, he asserts that it was improper to convict him because
the corpus delictihad not been established.

We disagree. "[C]orpus delictirefers to the fact of the commission of the

crime charged or to the body or substance of the crime. In its legal
sense, it does not refer to the ransom money in the crime of kidnapping
for ransom or to the body of the person murdered or, in this case, [the
weapons used in the commission of robbery with homicide]. Since the
corpus delictiis the fact of the commission of the crime, this Court has
ruled that even a single witness uncorroborated testimony, if credible
may suffice to prove it and warrant a conviction therefor. Corpus
delictimay even be established by circumstantial evidence."32

In this case, the corpus delictiwas established by the evidence on

record. The prosecution eyewitnesses testified that appellant and his
cohorts used knives to perpetrate the crime. Their testimonies on the
existence and use of weapons in committing the offense was supported
by the medical findings of Dr. Salen who conducted the post-mortem
examination. Dr. Salen found that Espino sustained several stab
wounds with varying measurements which were caused by sharp
bladed instruments. Appellant is therefore mistaken in arguing that the
failure to present the weapons used in killing Espino was fatal to the
cause of the prosecution.

The defenses of denial and alibi cannot prosper.

We are in complete agreement with the RTC and the CA in finding lack
of merit in appellants defenses of denialand alibi.

Appellant claims that he was in a drinking session in his friends house

in Villaruel, Tayuman,Manila, from 10:00 p.m. of September 21, 2001
until 1:00 a.m. of the following day. He alleges to have slept atthe place
and went home at around 7:00 a.m. of September 22, 2001. According
to appellant, he did not depart from his friends house from the time
they started drinking until he went home the following morning.

Appellants alibi is unworthy of credence. Appellant himself testified that

Villaruel is less than two kilometers awayfrom Divisoria and that it would
only take a few minutes to go toDivisoria from Villaruel.33 Clearly, it was
not impossible for appellant to be physicallypresent at the crime scene
during its commission. "For alibi to prosper, it muststrictly meet the
requirements of time and place. It is not enough to prove that the
accused was somewhere else when the crime was committed, but it
must also be demonstrated that it was physically impossible for him to
have been at the crime scene at the time the crime was committed."34

The fact that appellant presented witnesses to corroborate his alibi

deserves scant consideration. Their testimonies are viewed with
skepticism due to the very nature of alibi the witnesses affirm.35
Appellant can easily fabricate an alibi and ask relatives and friends to
corroborate it.36

We have always ruled that alibi and denial are inherently weak defenses
and must be brushed aside when the prosecution has sufficiently and
positively ascertained the identity of the accused. Moreover, it is only
axiomatic thatpositive testimony prevails over negative testimony.37

The evidence was sufficient to establish the presence of abuse of

superior strength.

Appellant argues that mere superiority in numbers does not indicate the
presence of abuse of superior strength. In the samemanner, appellant
claims that the number of wounds inflicted on the victim is not the
criterion for the appreciation of this circumstance.
"There is abuse of superior strength when the offenders took advantage
of their combined strength in order to consummate the offense."38
Here, appellant and his four companions not only took advantage of
their numerical superiority, they were also armed with knives. Espino, on
the other hand, was unarmed and defenseless. While Ronnie was
wrestling with Espino, appellant and his coaccused simultaneously
assaulted the latter. The unidentified companion locked his arm around
the neck of Espino while appellant and his co-accused stabbed and
hacked him several times. While Espino was lying defenseless on the
ground, they divested him of all his valuables. Thereafter, they
immediately fled the scene of the crime.39 It is clear that they executed
the criminal act by employing physical superiorityover Espino.

The Proper Penalty

Nonetheless, the presence of abuse of superiorstrength should not

result in qualifying the offense to murder.1wphi1 When abuse of
superior strength obtains in the special complex crime of robbery with
homicide, it is to be regarded as a generic circumstance, robbery
withhomicide being a composite crime with its own definition and
special penalty in the Revised Penal Code. With the penalty of reclusion
perpetuato death imposed for committing robbery with homicide,40
"[t]he generic aggravating circumstance of[abuse of superior strength]
attending the killing of the victim qualifies the imposition of the death
penalty on [appellant]."41 In view, however, of Republic Act No. 9346,
entitled "An Act Prohibiting the Imposition of the Death Penalty in the
Philippines," the penalty that must be imposed on appellant is reclusion
perpetua without eligibility for parole.42

The Civil Liabilities

In robbery with homicide, civil indemnity and moral damages are

awarded automatically without need ofallegation and evidence other
than the death of the victim owing to the commission of the crime.43
Here, the RTC and CA granted civil indemnity and moral damages to
Espinos heirs in the amount of P50,000.00 each. These courts were
correct in granting the awards, but the awards should have been
P100,000.00 each.Recent jurisprudence44 declares that when the
imposable penalty is death, the awards of civil indemnity and moral
damages shall be P100,000.00 each.
In granting compensatory damages, the prosecution must "prove the
actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and the best evidence obtainable to the injured
party."45 "Receipts should support claims of actual damages. Thus, as
correctly held by the [RTC] and affirmed by the CA, the amount of
[P62,000.00] incurred as funeral expenses can be sustained since
these are expenditures supported by receipts."46 The existence of one
aggravating circumstance also merits the grant of exemplary damages
under Article 2230 of the New Civil Code. Pursuant to prevailing
jurisprudence, we likewiseaward P100,000.00 as exemplary damages
to the victims heirs.47 An interest at the legal rate of 6% per annum on
all awards of damages from the finality of this judgment until fully paid
should likewise be granted to the heirs of Espino.48

Lastly, the RTC did not err in refusing to award indemnity for loss of
earning capacity of Espino despite the testimony of his daughter that
he earned P3,000.00 a day as a meat dealer. "Such indemnity is not
awarded in the absence of documentary evidence except where the
victim was either self-employed or was a daily wage worker earning
less than the minimum wage under current labor laws. Since it was
neither alleged nor proved that the victim was either selfemployed or
was a daily wage earner, indemnity for loss of earning capacity cannot
be awarded to the heirs of the victim."49

WHEREFORE, the July 23, 2009 Decision of the Court of Appeals in

CA-G.R. CR-H.C. No. 02925 that affirmed with modifications the
December 5, 2006 Decision of the Regional Trial Court of Manila,
Branch 27, in Criminal Case No. 02-200171 is AFFIRMED with further
MODIFICATIONS. Appellant Bobby Torres@ Roberto Torres y Nava is
ordered to pay the heirs of the victim, Jaime M. Espino, P100,000.00 as
civil indemnity; P100,000.00 as moral damages, and Pl00,000.00 as
exemplary damages. The interest rate of 6% per annum is imposed on
all damages awarded from the finality of this Decision until fully paid.

SO ORDERED.

x--x
G.R. No. 148423 December 6, 2006

ESPERANZA G. FRONDARINA, joined by her husband, PEDRO A.

FRONDARINA, petitioners,
vs.
NAPOLEON MALAZARTE and LAURA P. MALAZARTE, respondents.

DECISION

VELASCO, JR., J.:

There is no standard by which the weight of conflicting evidence can

be ascertained. We have no test of the truth of human testimony except
its conformity to our knowledge, observation, and experience.1

The Case

This petition for review seeks to overturn the Decision of the Court of
Appeals (CA) in CA-G.R. SP No. 61335 which sustained the Olongapo
City Regional Trial Courts dismissal of the forcible entry complaint
originally filed by petitioners Frondarina spouses against the
respondent Malazarte spouses in Civil Case No. 2853 before the
Olongapo City Municipal Trial Court in Cities (MTCC).

The Facts

Evidence culled from the records of the Olongapo City MTCC2 shows
that on July 22, 1970, Lot 5, Block 15-B, Gordon Heights Subdivision,
Olongapo City (disputed lot), with an area of 450 square meters, was
acquired by Flordelina Santos from Iluminado Amar. On June 17, 1971,
Cirila Gongora, petitioner Esperanza Frondarinas sister, in turn,
acquired the disputed lot from Santos, as shown in the Deed of Transfer
of Possessory Right over a Lot (Exhibit "B"). On the same date,
Gongora, as Esperanza Frondarinas predecessor-in-interest, filed a
Miscellaneous Sales Application (MSA) (Exhibit "D") with the Bureau of
Lands.
The disputed lot was also declared in Gongoras name for taxation
purposes under Tax Declaration No. 32821 in 1970 (Exhibit "E"), under
Tax Declaration No. 16-0611 in 1974 (Exhibit "F"), and under Tax
Declaration No. 16-0431 in 1980 (Exhibit "G"). She also paid the real
estate taxes due on said property as shown by the April 12, 1985
Official Receipt No. 7841503, representing real estate taxes on the
property for the years 1980 to 1985 (Exhibit "H").

Petitioner Esperanza Frondarina, in turn, obtained the disputed lot from

her sister, Cirila Gongora, on February 19, 1985, as evidenced by the
Waiver and/or Renunciation of Rights to a Parcel of Land (Exhibit "A").
On July 1, 1985, said petitioner likewise filed an MSA with the Bureau of
Lands over the disputed lot.

Petitioner Esperanza Frondarina also declared the disputed lot in her

name in 1986 under Tax Declaration No. 004-3574 (Exhibit "J") and paid
real estates taxes on the property for the years 1986 to 1988 (inclusive
of Exhibits "K" to "K-3"). She also had the lot surveyed (inclusive of
Exhibits "L," "L-1," "M," "N," "N-1," "N-2," and "O"), fenced it with four (4)
strands of barbed wire, and tended two (2) mango and one (1) coconut
trees and planted different kinds of vegetables on the lot.

Meanwhile, respondents Malazartes alleged that on March 1, 1988,

they bought the said lot from Romeo Valencia (Exhibit "S"); and that they
resided on the lot since May 1988. On the said date, respondents
immediately started the construction of their house on the lot without a
building permitas their application was denied due to petitioners
complaint. They also admitted that an employee of the City Engineers
Office told them to stop the construction because of the complaint and
absence of a building permit.

In the meantime, the records reveal that on March 18, 1988, after they
allegedly bought the said lot, respondents threatened petitioners
caretaker, Lorenza Andrada. More so, according to petitioner
Esperanza Frondarina, in her testimony, the respondents dug holes to
put up posts, riprapped the rear of the lot, and deposited hollow blocks
to construct a house. On March 28, 1988, when confronted by
petitioners Frondarinas on why they entered petitioners lot,
respondents replied that they got permission to enter the land from Mr.
Valencia, as they had bought it from him. Petitioners then reported the
matter to the City Engineers Office; and Mr. Malik of said office went to
the said place and told the respondents to stop the construction of the
house as they had no building permit.

The respondents, however, continued the construction on the lot as

shown in the photographs taken by petitioner Esperanza Frondarina on
May 18, 1988 (Exhibits "T," "T-1," "T-2," and "T-3"). Aggrieved, on April 5,
1988, petitioners sent a letter request to City Engineer Nicolas D. de
Leon (Exhibits "P," "P-1," and "S"); and on April 28, 1989, they also sent
letters to then Mayor Richard Gordon and Atty. Ma. Ellen Aguilar about
respondents intrusion on their lot (Exhibits "R" and "Q," respectively).

Furthermore, the Olongapo City MTCC found that respondents witness,

Romeo Valencia, admitted that his possession of the disputed lot had
already been questionedfor almost three (3) yearsby petitioners
before he sold it to respondents.3 Thus, according to the MTCC, "it is
very clear from the evidence that [petitioners] did not only have prior
possession of the subject lot, but it is also clear that the possession of
the land by [petitioners]4 was not adverse, uninterrupted, open and in
the concept of owners."

The Ruling of the Olongapo City MTCC

Finding that the "totality of evidence preponderates in favor of

[petitioners Frondarinas] who have sufficiently established their cause
of action against [respondents Malazartes],"5 the MTCC rendered its
February 28, 2000 Decision in favor of petitioners, the fallo of which
reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and

against the defendants, as follows:

1. ordering the defendants and all and any other persons claiming
under them to vacate the parcel of land located at No. 5 Latires Street,
Gordon Heights, Olongapo City, also identified as Lot 5, Block 15-B,
Gordon Heights Subdivision, Gordon Heights, Olongapo City, with an
area of 450 square meters, declared in the name of plaintiff Esperanza
G. Frondarina under Tax Declaration No. 004-3574 and more
particularly described under paragraph 2 of the complaint, and to
deliver its possession to the plaintiffs;
2. ordering the defendants to remove from the subject premises all
constructions that they built thereat;

3. ordering the defendants, jointly and severally to pay unto the

plaintiffs actual damages in the amount of P3,000.00 and reasonable
rentals of P500.00 every month from the time of forcible entry on March
18, 1988 until the time defendants have vacated the premises and
delivered possession thereof to the plaintiffs; and

4. ordering the defendants to pay jointly and severally, unto the plaintiffs
the sum of P15,000.00, as attorneys fees, plus costs.6

On April 26, 2006, respondents Malazartes filed a Notice of Appeal7

from the adverse Decision of the Olongapo City MTCC with the
Olongapo City Regional Trial Court (RTC) Branch 72.

The Ruling of the Olongapo City RTC

Upon respondents appeal, the Olongapo City RTC Branch 72 arrived

at factual findings8 diametrically opposed to the facts culled by the
Olongapo City MTCC. According to the trial court, it was convinced that
respondents were in actual and physical possession of the disputed lot
through their predecessor-in-interest, Romeo Valencia; because they
bought it from him on March 1, 1988 and they started to occupy the
disputed lot on March 18, 1988 according to the testimony of Laura
Malazarte. The trial court said that "this [testimonial evidence] is the
strong point in the evidence on record in favor of the [respondents]."

The trial court further discoursed that:

[P]laintiffs failed to prove, with preponderance of evidence, that they

were in actual and physical possession of the subject land. The
plaintiffs were not in personal actual and physical possession of the
subject land. The plaintiffs possession was through a caretaker.
Esperanza Frondarina testified on this fact:

Q Did you occupy the property after it was sold to you by your sister?

A I have a caretaker, sir.

Q What is the name of your caretaker Mrs. Witness?

A Andrada sir.

(TSN, p. 4, Nov. 16, 1989).

The plaintiffs have only hearsay knowledge of who planted the two
mango trees and one coconut tree.

Q Mrs. Frondarina, do you know who planted this two mango trees
and one (1) coconut tree?

A Santos [Flordelina] from whom my sister bought the lot sir.

xxx

Q You were there present when these trees were planted Mrs.
Witness?

A I was not present sir.

(TSN, pp. 11 to 12, Nov. 16, 1989).

The evidence of the plaintiffs in the imputed forcible entry sometime on

March 18, 1988 was also hearsay. Mrs. Esperanza Frondarinas
testimony went this way:

Q You said that you a have a caretaker of this lot on or about March
18, 1988, how was it possible for the Malazarte to enter your lot if you a
have a "bantay" there?

A My caretaker told me that she was being threatened.

Q Who threatened her?

A She told that she was threatened by the Malazarte and certain Mr.
Valencia.

(TSN, p. 21, Nov. 16, 1988).

Moreover, the trial court reasoned that petitioners pieces of evidence
on the issues of possession and forcible entry were of "hearsay
nature"which could have been remedied by presenting their
caretaker, Andrada, who, according to the trial court, was not presented
as witness. Further, the Olongapo City RTC stated that petitioners did
not explain why their caretaker could not testifywhich led to its
presumption that "if Andrada is presented, her testimony will be
adverse to the cause of [petitioners]." Thus, it found that the
respondents were in personal, actual, and physical possession of the
disputed lot; they did not commit forcible entry; and the evidence on
record supported their cause.

On September 13, 2000, the Olongapo City RTC rendered a Decision in

favor of respondents Malazartes:

WHEREFORE, judgment is hereby rendered reversing in toto the

Decision in Civil Case No. 2853 and a new decision is issued
dismissing the complaint. The plaintiffs are ordered to pay the
defendants the sum of P6, 400.00 by way of attorneys fees; and the
costs of this suit.9

Unconvinced, the Frondarina spouses filed a petition for review10 with

the CA on November 8, 2000 which was docketed as CA-G.R. SP No.
61335.

The Ruling of the Court of Appeals

Finding no reversible error in the Olongapo City RTCs ruling, the Court
of Appeals (CA) on March 13, 2001 rendered a Decision affirming in
toto11 the September 13, 2000 Decision of the trial court.

The CA sustained the findings and conclusions of the Olongapo City

RTC that petitioners Frondarina spouses failed to prove that they were
in actual and physical possession of the disputed lot. It ruled that the
Frondarina spouses possession was through a caretaker, Lorenza
Andrada, who did not appear as witness because of alleged threats
made by respondents Malazartes and their predecessor-in-interest,
Romeo Valencia. However, the court a quo concluded that petitioner
Esperanza Frondarinas testimony on the alleged threat to her caretaker,
Andrada, constituted hearsay evidence, as it was based on the
personal knowledge of said petitioner. Thus, the CA declared that
respondents Malazartes imputed forcible entry was not supported by
evidence on record.12

Aggrieved, petitioners Frondarina spouses filed the instant petition for

review on July 11, 2001 raising the following issues:13

I - THE COURT OF APPEALS RENDERED THE DECISION IN GRAVE

ABUSE OF ITS DISCRETION IN THE APPRECIATION OF FACTS;

II - THE AFFIRMING DECISION OF THE COURT OF APPEALS

OMITTED PETITIONERS PRIOR, ACTUAL POSSESSION ON THE
DISPUTED PROPERTY, ESSENTIAL TO THE ISSUE IN FORCIBLE
ENTRY;

III - THE APPELLATE DECISION RENDERS RECOGNITION OF PRIVATE

RESPONDENTS UNLAWFUL ENTRY AS LAWFUL, DISREGARDED THE
MENACING ATTITUDE [OR] INTENT TO FORCIBLY ACQUIRE THE
LAND BY FORCE.

The Courts Ruling

This petition for review is meritorious.

The preliminary matter to be addressed is whether the Court should

entertain questions of fact in this petition.

A close perusal of the three issues presented for review before the
Court readily reveals a lone issuewho between petitioners Frondarina
spouses and respondents Malazarte spouses have prior possession of
the disputed lot. Undeniably, this is a question of fact which is
proscribed by Rule 45 of the 1997 Rules of Civil Procedure.

It is clear under Section 1, Rule 45 of the 1997 Rules of Civil Procedure

that petitions for review on certiorari shall ONLY raise questions of law.
Questions of fact are not permitted because generally, the findings of
fact of the CA are final, conclusive, and cannot be reviewed on appeal.
The reason behind the rule is that the Court is not a trier of facts and it
is not its duty to review, evaluate, and weigh the probative value of the
evidence adduced before the lower courts.

The bar on factual issues, however, admits of certain reasonable

deviations like when the judgment is based on misappreciation of facts
or when the findings of facts of the CA are conflicting or contrary to the
trial courts own findings.14

The records manifest that the conclusions of facts of the CA and the
Olongapo City RTC are both contradictory or conflicting with those of
the Olongapo City MTCC. For this reason alone and so as to dispense
equitable justice to those deserving, a departure from the "factual issue
bar rule" is timely and in order.

To reiterate, the core issue in this instant petition is who between

petitioners Frondarinas and respondents Malazartes are entitled to the
possession of Lot 5, Block 15-B of the Gordon Heights Subdivision in
Olongapo City.

After examining closely the transcripts of testimonies, the Court gives

credence to petitioners claim that they and their predecessors-in-
interest had been in peaceful, physical possession of the said lot since
1971 for the following reasons:

1. Petitioner Esperanza Frondarina, housekeeper, resided at 81 Fendler

Street, East Tapinac, Olongapo City;15 while Romeo Valencia, driver of
Olongapo City Councilor Jesus Danugrao, resided at Block 14, Gordon
Heights, Olongapo City. Petitioners visited the lot three (3) to four (4)
times a week16 and had a caretaker in the person of Lorenza Andrada.
Romeo Valencia claimed to have occupied the lot for 15 years from
1975 and had put up a riprap fence in 1980.17 Thus, it is apparent that
none of the parties actually resided at the said lot. The Court believes
that the Frondarinas went to the lot three (3) or four (4) times a week
and exercised acts of ownership and possession over it by fencing the
sides of the lot with barbwire, planting vegetables like camote, okra,
and others, and by tending two (2) mango trees and one (1) coconut
tree planted by Esperanzas sister, Cirila Gongora;18 and when they
were not on the lot, their caretaker, Lorenza Andrada, a neighbor
residing at an adjacent lot, oversaw the disputed lot. The actuations of
petitioners Frondarinas are more in accordance with the usual course of
human conduct and common experience. On the other hand, Mr.
Romeo Valencias claim that he occupied the lot for 15 years deserves
scant consideration for it was not possible for him to be on the said lot
most of the time because his job as Councilor Jesus Danugraos driver
took up most of his time.

2. Mr. Romeo Valencia testified that he checked with the Bureau of

Lands and City Assessor if there was no owner of the lot before he
occupied it in 1975; and he was told that the lot had not been declared
in the name of any person.19 This is false, for as early as 1970, the lot
was declared for taxation with the City Assessor in the name of Cirila
Gongora through Tax Declaration No. 32821 (Exhibit "E"), which
became effective in 1970; and Tax Declaration No. 16-0611 (Exhibit "F"),
which became effective in 1974. In addition, the said lot was registered
with the Bureau of Lands on June 17, 1971 by Cirila Gongora,
predecessor-in-interest of petitioners, through a Miscellaneous Sales
Application (Exhibit "D"). Considering that Mr. Valencia made a false
statement on an essential point material to the determination of the
issue of possession, his testimony on all other matters is not worthy of
belief and necessarily bereft of truth. It is a settled axiom that "if
witnesses testify falsely as to any material fact of their own testimony,
their testimony should be discarded as a whole and cannot be relied on
for whatever purpose."20 Falsus in uno, falsus in omnibus (false in one
thing, false in everything).21 Also long established is the fundamental
precept that witnesses willfully falsifying the truth in one particular
testimony, when upon oath, ought never to be believed upon the
strength of their own testimony, whatever they may assert.22 While
there is a presumption that witnesses will generally declare the truth,
this belief "ceases as soon as it manifestly appears that they are
capable of perjury."23 Considering that Mr. Valencia lied by stating that
the lot was not registered in the name of another person with the
Bureau of Lands and the Olongapo City Assessor before he allegedly
started possessing the same lot in 1975, then the Court rules that his
testimony on the fact of possession of the lot does not constitute
evidence of the truth of said allegations and consequently disregards
the same testimony, because it is bereft of weight and credit.

3. Petitioner Esperanza Frondarinas testimony revealed acts that are

consistent with one who has been deprived of possession by force,
strategy, and stealth by respondents as follows:
a. Petitioner immediately confronted respondents why they unlawfully
entered their land on March 18, 1988, and asked them why
respondents were building a riprap and digging holes in the ground
and why they deposited hollow blocks in the premises. Respondents
simply replied that they acquired their rights over the said lot from a
certain Valencia;

b. After respondents unlawfully entered petitioners land on March 18,

1988, petitioners verbally reported the incident to the Office of the City
Engineer and when the latter ordered one of its employees to go to the
premises to investigate, said employee told respondents to stop any
construction as they were not granted a building permit.
Notwithstanding the warning from the City Engineers Office,
respondents continued with their construction without any building
permit;

c. On April 5, 1988, through a letter request, petitioners informed the

Office of the City Engineer of the defiance of respondents and said
office told petitioners that respondents were backed up by influential
people;24

d. On April 29, 1988, petitioner sent a letter to then Mayor Richard

Gordon about their problem with the respondents (Exhibit "R"); and on
the same date, petitioners complained to the City Legal Officer, Atty.
Ma. Ellen Aguilar (Exhibit "Q"); and

e. When nothing happened to their written complaints, petitioners filed

the Complaint for ejectment with the Olongapo City MTCC.

The aforementioned acts of petitioners were all in accordance with the

behavior of a person who had been illegally and unfairly deprived of
possession, and these clearly demonstrated that they had actually
been in possession of said lot prior to respondents forcible entry.

The appellate court completely disregarded petitioners claim of

possession simply because their caretaker, Ms. Lorenza Andrada, was
not able to testify to corroborate petitioners claim of possession. The
court a quo gave short shrift of the justification for non-appearance of
Ms. Andradathat she was threatened by Mr. Valencia, the
predecessor-in-interest of the Malazartes.

However, the Court finds that the threats on caretaker Lorenza Andrada
to prevent her from testifying were substantiated by petitioner
Esperanza Frondarina and policeman Eduardo Labrador; and the Court
is convinced that Ms. Andrada was intimidated by respondents to
prevent her from testifying, the latter knowing the importance of such
parol evidence. Thus, the presumption that "evidence willfully
suppressed would be adverse if produced" would not apply to the case
at bar because it was not petitioners who restrained Ms. Andrada from
testifying but respondents themselves; hence, petitioners had every
reason to have the caretakers testimony adduced as evidence.

Moreover, despite the inability of Ms. Andrada to testify, there was

ample documentary and parol evidence to support petitioners claim of
possession. Petitioners Frondarinas physical possession of the
disputed lot was strongly corroborated by PO3 Labrador, who stated
under oath that he saw petitioner Esperanza in possession of the lot.
This jibes with petitioner Esperanza Frondarinas story that she used to
go to the lot at least three (3) times a week; and that on days petitioner
Esperanza Frondarina was not in actual possession of the lot, Ms.
Andrada oversaw it and exercised acts of possession in representation
of petitioners. More importantly, the undisputed pieces of documentary
proof like the tax declarations, tax receipts, and miscellaneous sales
applications, which antedate those of respondents, unquestionably
demonstrate the truth and factual basis of petitioners claim of
possession. Mr. Valencias testimony on his alleged occupation of the
said lot must give way to the clearly established facts that petitioners
and their predecessors-in-interest had been in possession of the lot
much earlier than respondents and Mr. Valencia. Under the admitted
facts rule, "evidence of whatever description must yield to the extent
that it conflicts with admitted or clearly established facts."25 The Court
gives superior credit to petitioners witnesses whose testimonies on
material points are in accord with facts already established, rather than
to respondents and witness Romeo Valencia whose testimonies were
shown to be false or "bereft of weight and credence."26

On the allegation that the inability of caretaker Andrada to testify

prejudiced the claim of petitioners that respondents Malazartes
committed acts of forcible entry in the subject lot, we find that
undisputed documentary evidencethe letters to City Engineer De
Leon (Exhibit "P"), to City Legal Officer Aguilar (Exhibit "Q"), and to then
Mayor Gordon (Exhibit "R"), and the complaint for ejectment; as well as
the convincing testimonies of petitioner Esperanza Frondarina and PO3
Labrador and the admission against interest made by respondent
Laura Malazarte that she and Napoleon Malazarte entered the land only
on March 18, 1998 and constructed their house on the lot despite the
absence of a mayors permitcan only lead to the inference that they
entered the land by strategy and stealth. We find strong "circumstantial
evidence" from established facts to warrant the conclusion that, indeed,
respondents committed forcible entry on the disputed lot.

Circumstantial or presumptive evidence is defined as "the existence of

the principal facts x x x only inferred from one or more circumstances
which have been established directly." It is further explained as "an
inference of a fact from other facts proved, and the fact thus inferred
and assented to by the mind is said to be presumed, that is to say, it is
taken for granted until the contrary is proved."27 In effect, the absence
of Andradas testimony did not do any damage to petitioners cause of
actionas ample circumstantial evidence is extant on record sufficient
to convince the Court that respondents committed acts of forcible entry.

4. The chain of transfers from the original owner of the lotMr.

Iluminado Amarto petitioner Frondarinas readily reveals possession of
the said lot since July 22, 1970:

a. On July 22, 1970, Iluminado Amar executed a Deed of Transfer of

Possessory Right (Exhibit "C") in favor of Flordelina Santos;

b. On June 17, 1971, Flordelina Santos executed a Deed of Transfer of

Possessory Right Over a Lot (Exhibit "B") in favor of Cirila Gongora; and

c. On February 19, 1985, Cirila Gongora executed a Waiver and/or

Renunciation of Rights to a Parcel of Land (Exhibit "A") in favor of
petitioner Esperanza Frondarina.

On the other hand, the Deed of Renunciation and Quitclaim (Exhibit "5"),
executed by Romeo Valencia on March 1, 1988 in favor of the spouses
Malazartes, pales in comparison with the three (3) successive
transferswhich started on July 22, 1970that eventually resulted in
the transfer of said rights in favor of petitioner Esperanza Frondarina.
The first in time is the first in right. Thus, the much earlier conveyance
by Iluminado Amar on July 22, 1970, without doubt, prevails over the
Deed of Renunciation and Quitclaim executed on March 1, 1988 in
favor of the Malazartes.

5. The tax declarations and tax receipts of petitioners and their

predecessors-in-interest are dated much earlier than those of Romeo
Valencia and respondents Malazartes.

The following tax declarations over the said lot support petitioners
position, thus:

a. Tax Declaration No. 32821 (Exhibit "E") in the name of Cirila Gongora,
predecessor-in-interest of petitioners. This declaration became effective
in 1970;

b. Tax Declaration No. 16-0611 (Exhibit "F") also in the name of Cirila
Gongora which became effective in 1974;

c. Tax Declaration No. 16-0431 (Exhibit "G") in the name of Cirila

Gongora which became effective in 1980; and

d. Tax Declaration No. 004-3574 (Exhibit "J") in the name of petitioner

Esperanza Frondarina which became effective in 1986.

On the other hand, respondents Malazartes could only present Tax

Declaration No. 004-5057 (Exhibit "3") in the name of Romeo Valencia,
which became effective in 1985 and Tax Declaration No. 004-5228
(Exhibit "7") in the names of respondents Malazartes, which became
effective in 1988.

Clearly, the tax declarations of petitioners and that of their

predecessors-in-interest are earlier than and superior to those of
respondents, and these buttress petitioners claim that they had been in
actual and peaceful possession of the said lot prior to respondents
intrusion in 1988. Simply put, tax declarations are clear manifestations
and strong indications of possession and occupation of a parcel of
land.
In the same vein, the old tax receipts of petitioners are evidential and
suggestive demonstration of their possession of the subject lot in the
concept of an ownerconsider Tax Receipt No. 7841503 (Exhibit "H") in
the name of Cirila Gongora (predecessor-in-interest of petitioners)
which reflects the tax payments from 1980-1985; and Tax Receipts Nos.
014949 (Exhibit "K"), 014899 (Exhibit "K-1"), 022657 (Exhibit "K-2"), and
022620 (Exhibit "K-3"), all in the name of Esperanza Frondarina,
showing real estate tax payments for the years 1986 to 1988.
Juxtaposed with petitioners receipts are Tax Receipts Nos. 013487
(Exhibit "4") and 013435 (Exhibit "4-A") in the name of Romeo Valencia
issued for the year 1987, and Tax Receipt No. 024196 (Exhibit "8") for
real estate taxes paid for 1988. Undeniably, the tax payments over the
disputed lot by the Frondarinas are much earlier than those made by
the Malazartes. These pieces of denotative evidence tend to show that
petitioners had been in possession of the said lot not later than 1980.

Verily, it has been settled jurisprudence that although tax declarations

or real estate payments of property are not conclusive evidence of
ownership, nevertheless, they are good indicia of possession in the
concept of an owner.28 Based on the tax declarations and tax receipts
of both parties, we rule that petitioners have sufficiently adduced
convincing evidence of possession over the disputed lot.

6. The Miscellaneous Sales Application (Exhibit "D") filed by

predecessor-in-interest Cirila Gongora on June 17, 1971 is much ahead
in time than the Miscellaneous Sales Application filed by Romeo
Valencia (predecessor-in-interest of Malazartes) on October 14, 1977.
Thus, the earlier filing of sales application by the predecessor-in-
interest of petitionersCirila Gongoraindicates petitioners
occupation and possession of the disputed lot ahead of Romeo
Valencias alleged occupation and possession of it.

In the light of the foregoing reasons, the Court rules that petitioners
have established their right to physical possession over the subject lot.

Considering that respondents were informed by petitioners that the

disputed lot was owned by them and had the right of possession over
said lot, but still, respondents persisted in building their house on it,
respondents are therefore declared builders in bad faith and shall lose
their house without any right to reimbursement.

WHEREFORE, the petition is GRANTED. The March 13, 2001 Decision

of the Court of Appeals in CA-G.R. SP No. 61335 and the September
13, 2000 Decision of the Olongapo City Regional Trial Court in Civil
Case No. 192-0-2000 are REVERSED and SET ASIDE; and the February
28, 2000 Decision of the Olongapo City MTCC in Civil Case No. 2853 is
hereby REINSTATED.

No costs.

SO ORDERED

x--x

PEOPLE OF THE PHILIPPINES, appellee, vs. ROBERTO NEGOSA alias

JOVIN, appellant.
DECISION
CALLEJO, SR., J.:

Before us on automatic review is the Decision[1] of the Regional Trial

Court of Camiguin, Branch 28, convicting the appellant Roberto
Negosa alias Jovin of rape in Criminal Case No. 918, and sentencing
him to the supreme penalty of death; and convicting the said appellant
guilty of acts of lasciviousness in Criminal Case No. 919, and
sentencing him to an indeterminate penalty of six months of arresto
mayor maximum, as minimum, four years and two months of prision
correccional medium, as maximum. The appellant was also ordered to
pay the victim Gretchen Castao the sum of P50,000.00 as civil
indemnity ex delicto in Criminal Case No. 918, and the amount of
P25,000.00 in Criminal Case No. 919.

In Criminal Case No. 918, the Information filed against the appellant
reads:

That on or about June 28, 1997 at 9:00 oclock in the morning more or
less, at their residence, in Bura, Catarman, Camiguin, Philippines,
within the jurisdiction of this Honorable Court, the above-named
accused, stepfather of the victim and resident of Bura, Catarman,
Camiguin, employing force and intimidation upon the victim, did then
and there willfully, unlawfully and feloniously have sexual intercourse
with one Gretchen Castao, who was ten years old at the time of the
commission of the crime.

CONTRARY to law and in violation of Article 335 of the Revised Penal

Code.[2]

The said appellant was charged with the same felony in Criminal Case
No. 919 under an Information which reads:

That on or about September 4, 1998 at 10:00 oclock in the morning

more or less, at their residence in Bura, Catarman, Camiguin,
Philippines, within the jurisdiction of this Honorable Court, the above-
named accused, stepfather of the victim and resident of Bura,
Catarman, Camiguin, employing force and intimidation upon the victim,
did then and there willfully, unlawfully and feloniously have sexual
intercourse with one Gretchen Castao, who was eleven years old at the
time of the commission of the crime.

CONTRARY to law and in violation of Article 335 of the Revised Penal

Code.[3]

The appellant, assisted by counsel, was arraigned in both cases on

April 8, 1999, and entered a plea of not guilty to both charges.

The Case for the Prosecution

Living as husband and wife without the benefit of marriage,[4] Senador

Acosta and Cenilda Castao had a daughter Gretchen Castao who was
born on May 26, 1986.[5] However, Senador and Cenilda fell out of love
for each other and went their separate ways, with Cenilda having to
keep their daughter Gretchen.

Thereafter, Cenilda met the appellant who himself was also separated
from his erstwhile wife, Tonia Gok-ong, with whom he had four children
namely, Levy, 19; Sammy, 18; Ruel, 16; and Sheila, 13.[6] Sometime in
1992, Cenilda and the appellant decided to live together in Bura,
Catarman, Camiguin. Cenilda entrusted Gretchen to the care of her
parents who also resided in Bura, Catarman, Camiguin.[7] In 1996,
Gretchen eventually joined her mother and the appellant.[8] Gretchen
was then enrolled in Grade IV at the Bura Elementary School. In the
meantime, Cenilda gave birth to a son, Ronel (Dodong), fathered by the
appellant.

When school year 1997-1998 started, Gretchen went to live with her
mothers sister, Elsita Rabongue, in Lawigan, Catarman, Camiguin. She
enrolled in Grade V at the Lawigan Elementary School, but went home
every Saturday in Bura to visit her mother.[9]

June 28, 1997, a Saturday,[10] was the eve of the fiesta in Sitio Lumad,
Bura, Catarman. Cenilda went to Catarman to buy some items to sell
during the fiesta the next day. Gretchen and the appellant were left in
the house. He asked Gretchen to get some liniment for him and
Gretchen did as she was told. When Gretchen was about to hand over
the liniment to the appellant, he suddenly held her hand, pulled her
towards himself and made her lie down on the floor. The appellant
pulled down and removed her shorts and panties, after which, he also
removed his shorts and underwear. Placing himself on top of Gretchen,
Roberto inserted his aroused phallus into her vagina. Gretchen felt
excruciating pain but was too afraid to cry for help, for fear that the
appellant would harm her, as he used to whenever he was angry at her.
[11] The appellant pulled out his penis after having ejaculated.
Gretchen felt a sticky substance flowing on the periphery of her vagina
which the appellant wiped off. He warned Gretchen not to tell her
mother what he had done to her.[12] Gretchen kept the harrowing
experience to herself because she was afraid that her mother would
side with the appellant if she found out what happened. Every now and
then the appellant abused her sexually but she did not tell her mother
about it. However, she revealed her ordeal to some of her close friends
in school, like Germalin Bacorro, Rogelyn Madale, Recheney Pole,
Corazon Apal, Mary Ann Ihong and Greta Bacorro.[13]

The following school year, 1998-1999, Gretchen went back to Bura and
lived with the appellant and her mother Cenilda. She was enrolled as a
Grade VI pupil at the Bura Elementary School.[14] Gretchen decided to
record her ordeal at the hands of the appellant in the pages of a
notebook. Recalling the sexual abuse she suffered on June 28, 1997,
Gretchen wrote on September 2, 1998, thus:

Gretchen Castao

I am Gretchen Castao, nicknamed Belen. My mother is Nenil and my

father is Mador but they are separated and her live-in partner now is
Oben together with my brother Dodong.

This Oben is my step-father. One day during the fiesta of Lumad, a

Saturday year 1997 my mother was in Catarman and while she was
there he raped me; first he asked me to get haplas (a liniment) then he
immediately held my hand and pulled me and let me lie down and he
started to rape me. After that he warned me not to tell my mother and
because of fear I did not report; after that he always abused me when
my mother was out or when we are alone with Dodong only. But he
does not do it when Dodong is still awake. This incident is known by my
female classmates Germelyn or Dayet, Roselyn, Retchale or Cheche,
Cristi (illegible), Charry me and Oben.[15]

My Secrets

Sep. (sic) 2, 1998

My mother got married to another man and my father was the second
partner of mom and they resided and brought me to Bura. My mother
again left for Bukidnon. I was still very young and do not know my father
and mother and I stayed with nanay (mother) and they let me study until
I reached third grade. During the fiesta of Bura my mother returned
home. I was still young and not familiar with her and she again left;
thereafter she again came back, this time bringing with her a male
partner named Oben. Later they were able to buy a house and we
transferred there. A few days later during the fiesta of Lumad, a
Saturday 1997, my mother went to Catarman to buy some stuff to be
sold during the fiesta of Lumad and the only ones left in our house was
Oben and myself; and he asked me to get a liniment (haplas). When it
was handed to him, he immediately held my hand and let me lie down
and he rape me. After that he warned me not to tell anyone and I never
told my mother.[16]
because of fear; after that he repeatedly molested knowing that I did
not tell my mother although I told some of my female classmates.
Others I did not tell.

Sgd. Gretchen Castao

And I thought now of starting making notes of what he did to me.

In the morning of September 4, 1998, Gretchen was wearing a pair of

loose short pants and was looking after her sleeping baby brother,
Ronel. The appellant grabbed and caressed her. He started kissing her
neck and shoulder. He then mashed her prepubescent breasts. Not
contented, the appellant slapped her. She wrote the incident in the
notebook:

Friday 10:30 date: 4th day, he sucked my breast and fondled it and he
abused me slightly after that he slapped me. I came from Catarman
because I bought poultry feeds and my mother was searching for
coconuts.[17]

Gretchen tore off the pages and hid them. She inserted her diary in a
notebook and placed it with her things.

On September 9, 1998, at around 4:30 p.m., Gretchen had just arrived

home from school. Her grandmother asked her to buy rice in a nearby
store. She left her school things in her grandmothers house and
proceeded to the store.[18] Her auntie, Josilyn Estaciones,[19] saw
Gretchens things and decided to read the notebooks to find out how
her niece was doing in school.[20] Upon opening one of the notebooks,
the torn pages of Gretchens diary fell. Josilyn read the torn pages and
was appalled to discover that the appellant had been sexually abusing
Gretchen.

When Gretchen returned from the store, Josilyn confronted her about
the notes, and asked whether the entries therein were all true. Gretchen
admitted the veracity of what she had written. Josilyn immediately
informed her parents, brothers and sisters about Gretchens revelation.
They decided not to tell Cenilda what had happened to her daughter as
she might get angry and cause trouble in their house. Without Cenildas
knowledge, they brought Gretchen to a doctor for physical examination.
[21]

Dr. Wilfredo T.E. Dublin, Jr. examined Gretchen at the Catarman District
Hospital on September 14, 1998. He forthwith issued a Certificate of
Treatment/ Confinement[22] quoted as follows:

CERTIFICATE OF TREATMENT/CONFINEMENT

00019
Record Number

September 14, 1998

Date

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that MISS GRETCHEN CASTAO, 12 years old,

female, child, a resident of Bura, Catarman, Camiguin, was seen and
examined by the undersigned on September 14, 1998 for an alleged
sexual abuse.

Pertinent Physical Examination Findings:

Skin : (-) hematoma, (-) abrasions

Breast : (-) hematoma, (-) abrasions
GUT : Hymen not intact, (+) abrasion left labia minora (8 oclock
position);vaginal opening 6 mm.
Speculum exam: (+) bloody discharge at cervical os, (+) abrasion
upper cervical lip

IMPRESSION: Sexual abuse child molestation and sexual intercourse.

This certification is being issued at the request of SPO4 Teodomiro G.

Dayo for filing criminal complaint against the respondent.

(SGD.) DR. WILFREDO T.E. DUBLIN, JR., M.D.

Medical Officer IV
License No. 085551
Thereafter, two criminal complaints for rape were filed against the
appellant with the Municipal Circuit Trial Court for preliminary
examination. Finding a prima facie case against the appellant for two
counts of statutory rape, the record of the case was forwarded to the
Provincial Prosecutors Office for the filing of the appropriate
Informations in court.[23] Consequently, two Informations[24] for
statutory rape were filed with the RTC.

The Evidence of the Appellant

The appellant denied having raped Gretchen. He interposed the

defense of alibi. He testified that he was self-employed and raised
fighting cocks. At around 8:00 a.m. on June 28, 1997, he left the house
for Sitio Lumad, to help Tado Calustre butcher a pig in preparation for
the fiesta. At that time, he was with Bulao Castao, Ruben Castao, and
Tados son-in-law. The group also butchered a goat for an hour or so.
Thereafter, they had a drinking spree until 1:00 p.m. When he got home,
he saw only his live-in partner, Cenilda. He had not seen Gretchen that
day since she was in Lawigan with her aunt Elsita.[25]

When confronted by Cenilda about what happened on September 4,

1998, the appellant admitted that he attempted to have carnal
knowledge with Gretchen, but desisted when he realized that he would
be committing a sin. He testified that he could have easily
consummated the dastardly act since Gretchen could not have resisted
him.[26] He admitted that a year before, he had spanked Gretchen for
not helping in the household chores. However, he also admitted that
there was no reason for Gretchen to fabricate the charges against him.
[27]

Gretchens mother Cenilda testified for the appellant. She testified that
she was at home on June 28, 1997. Gretchen did not go to their house
in Bura. At 8:00 a.m., the appellant left and went to the house of Tado
Calustre. He returned home at 1:00 p.m. On September 4, 1998,
Cenilda was at home washing their dirty laundry and had not noticed
anything unusual that had happened between Gretchen and the
appellant. Gretchen was taking care of her younger brother Ronel, while
the appellant was taking care of his fighting cocks in front of their yard.
However, Cenilda admitted that the appellant asked for her forgiveness
for attempting to rape Gretchen on September 4, 1998. [28] He told her
that it was the devils act (sic) that I chose (sic). He told her that he
desisted because he remembered God.

The appellants counsel planned to call Tado Calustre to the witness

stand to corroborate the appellants testimony. However, his counsel,
upon meeting with Tado Calustre, found that the latter had asked the
appellant to butcher a pig in 1996, and not in 1997 as the appellant
claimed.

On March 2, 2000, the trial court rendered judgment finding the

appellant guilty of rape in Criminal Case No. 918 and imposed upon
him the supreme penalty of death, and found him guilty only of acts of
lasciviousness in Criminal Case No. 919:

WHEREFORE, finding the accused Roberto Negosa y Redondo of

Rape as charged in Criminal Case No. 918, and of Acts of
Lasciviousness, instead of Rape in Criminal Case No. 919, engendered
by proof beyond reasonable doubt, the Court hereby strikes a verdict of
conviction and accordingly sentences him, Roberto Negosa y
Redondo, to suffer the penalty of death in Criminal Case No. 918, and
in Criminal Case No. 919 the penalty of imprisonment for an
indeterminate period of from 6 months of arresto mayor maximum, as
minimum, to 4 years and 2 months of prision correccional medium, as
maximum. The said accused is ordered to pay the victim, Gretchen
Castao, in the amount of P50,000.00 in Criminal Case No. 918, and the
amount of P25,000.00 in Criminal Case No. 919.

SO ORDERED.[29]

The appellant did not file any notice of appeal from the decision of the
trial court in Criminal Case No. 919.

In his brief, the appellant assails the decision of the trial court
contending that:

THE LOWER COURT ERRED IN GIVING CREDENCE TO THE

TESTIMONY OF THE VICTIM DESPITE THE LONG DELAY IN
REPORTING THE INCIDENT OF RAPE ESPECIALLY WHEN THERE IS
NO SHOWING THAT THE DELAY WAS DUE TO THREATS ON HER LIFE
OR DUE TO THE MORAL ASCENDANCY OF THE ACCUSED OVER
THE COMPLAINANT.

II

THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.

III

THE LOWER COURT ERRED IN APPRECIATING THE AGGRAVATING

CIRCUMSTANCE OF STEPFATHER-STEPDAUGHTER RELATIONSHIP
BETWEEN THE ACCUSED AND COMPLAINANT AS ALLEGED IN THE
INFORMATION WHEN THE ACCUSED IS NOT LEGALLY MARRIED TO
COMPLAINANTS MOTHER.[30]

Anent the first and second assigned errors, the appellant asserts that
Gretchens testimony is incredible; hence, has no probative weight. She
never divulged the sexual assault by the appellant to her mother, or to
her aunts Elsita Rabongue and Josilyn Estaciones for that matter.
Although Gretchen told some of her classmates of her harrowing
experience, it was unnatural for her to keep it from her mother and her
aunts, who were in a better position to help her. He contends that the
victims failure to report the rape incident would have been
understandable if he had threatened to inflict bodily harm on her.
However, there is no evidence on record that he had so threatened the
victim. There is likewise no evidence that the victim attempted to resist
the appellants alleged sexual advances.

The trial court also erred when it relied on the victims account of events
as contained in her diary. The victims notes were entered only on
September 2, 1998, more than a year after the appellant had allegedly
abused her on June 28, 1997.

The testimony of the victim is even inconsistent on material points. She

testified on direct examination that the penis of the appellant was able
to penetrate her vagina on September 4, 1998. However, on cross
examination, she testified that she and the appellant were wearing short
pants and underwear. It was physically impossible for his penis to
penetrate her vagina. Even the trial court did not believe her testimony
and convicted him only of acts of lasciviousness in Criminal Case No.
919. Moreover, the victim claimed that she was raped by the appellant
on June 28, 1997. Despite this, she still agreed to live with the appellant
and her mother. It is incredible that Gretchen would continue to live with
the appellant even after the latter had been sexually abusing her as she
intractably claimed.

The contentions of the appellant do not persuade. It bears stressing

that Gretchen was only in Grade V, barely eleven years old when the
appellant raped her on June 28, 1997. At such a tender age, still
inexperienced in the vagaries of life, she could not be expected to act
and react like an adult. Being subjected to a vicious sexual assault was
an emotional and psychological experience on the part of the young
victim. In People v. Aquino,[31] this Court held that the range of
emotions shown by rape victims is yet to be captured even by calculus.
It is thus unrealistic to expect information from rape victims.[32]

This Court has repeatedly ruled that "the workings of the human mind
placed under a great deal of emotional and psychological stress are
unpredictable, and different people react differently. There is no
standard form of human behavioral response when one is confronted
with a strange, startling, frightful or traumatic experience -some may
shout, some may faint, and some may be shocked into insensibility."[33]
Some may choose to keep to themselves the harrowing and debilitating
experience rather than suffer the embarrassment, humiliation and
ostracization from relatives after divulging the terrible secret. In this
case, the evidence on record shows that the victim was the secretive
and silent type, who chose not to confide in her relatives.[34]

The appellants assertion that he never threatened nor intimidated the

victim and, as such, is not criminally liable for statutory rape, is
unbelievable.

First. Gretchen testified that she was afraid to resist or to shout because
on prior occasions, the appellant intimidated her by stepping on her
feet:
Q At about 10:00 oclock in the morning, more or less, of June 28, 1997,
can you inform us if there were unusual incidents that happened?

A Yes, sir.

Q Please tell the Court what is that unusual incident?

A I was rape (sic) by my stepfather.

Q Can you inform this Honorable Court how did your stepfather, the
accused in this case, rape you?

A At first I was requested by my stepfather to get some leniment (sic)

for massage. And when I returned I was suddenly pulled my hand was
suddenly pulled that made me lay down, and when I was already on the
floor, he removed by short pants and panty.

Q What did you do next after he removed your short pants and panties?

A He also removed his short pants and brief.

Q What did he do next after removing his short pants and brief?

A He put himself on top of me and he inserted his penis to my organ.

Q And, what did you feel?

A I felt so much pain.

Q What did you do, if any. Did you not shout?

A No, sir.

Q Why did you not shout?

A Because I am (sic) afraid that he will harm me.

Q Why, was there any occasion that he harmed you?

A Yes, sir.
Q How did he harm you?

A He stepped me with his feet.

Q When you, according to you, his penis was inserted into your vagina,
did he succeed inserting his penis?

A Yes, sir.[35]

Second. In her diary, Gretchen wrote that the appellant warned her not
to tell her mother that he had raped her. This Court ruled that it is not
uncommon for a young girl of tender age to be intimidated into silence
by the mildest threat against her life.[36]

Furthermore, the fact that Gretchen started making entries in her diary
only on September 2, 1998, more than a year after the first rape
incident occurred (June 28, 1997), does not lessen the probative
weight of the said entries.

Third. Even assuming that the appellant did not threaten nor intimidate
the victim, this, and the fact that the latter agreed to live with her mother
and her abuser, are purely inconsequential matters. This does not affect
the veracity of the victims testimony.

It bears stressing that when the appellant raped the victim, she was
only eleven years old, and under Article 335, paragraph 3 of the
Revised Penal Code, as amended by Republic Act No. 7659, the
appellant is guilty of statutory rape. In statutory rape, the under twelve-
year-old victim is conclusively presumed incapable of giving consent to
sexual intercourse with another.[37]

The trial court disbelieved Gretchens testimony that on September 4,

1998, the appellant managed to insert a small portion of his penis
through the side of his short pants and the side of the victims loose
short pants and convicted the appellant only of acts of lasciviousness.
This, however, does not impair Gretchens credibility and the probative
weight of her testimony that she was raped by the appellant on June
28, 1997. In People vs. Lucena,[38] we ruled that the testimony of a
witness may be partly believed or disbelieved, depending on the
corroborative evidence and intent on the part of the witness to pervert
the truth. The principle FALSUS IN UNO FALSUS IN OMNIBUS is not
strictly applied in this jurisdiction.

The maxim falsus in uno, falsus in omnibus deals only with the weight of
evidence and is not a positive rule of law; the rule is not an inflexible
one of universal application. Modern trend in jurisprudence favors more
flexibility when the testimony of a witness may be partly believed and
partly disbelieved depending on the corroborative evidence presented
at the trial. Thus, where the challenged testimony is sufficiently
corroborated in its material points, or where the mistakes arise from
innocent lapses and not from an apparent desire to pervert the truth,
the rule may be relaxed. It is a rule that is neither absolute nor
mandatory and binding upon the court, which may accept or reject
portions of the witness testimony based on its inherent credibility or on
the corroborative evidence in the case.[39]

In this case, the trial court believed Gretchens testimony that the
appellant inserted his penis through the side of his short pants and the
side of her loose shorts, but disbelieved that part of her testimony that a
small part of his penis was able to penetrate her vagina.[40]

There is no evidence that Gretchen intended to pervert the truth as to

the extent of the sexual abuse done to her on September 4, 1998.
Neither can it be claimed that she prevaricated when she testified that
the appellant raped her on June 28, 1997.

The Proper Penalty for the Crime

We agree with the appellants contention that he is guilty only of simple

statutory rape and not of rape in its qualified form under Article 335,
paragraph 3 of the Revised Penal Code, as amended. The prosecution
was burdened to prove the allegation in the Information that the
appellant was the stepfather of the victim. However, the prosecution
failed to prove the same. The evidence on record shows that the
appellant was merely the common-law husband of the victims mother.
This special qualifying circumstance, that the appellant was the
common-law husband of the mother of the victim, was not alleged in the
Information. Even if such special qualifying circumstance was proved, it
cannot be appreciated against the appellant in order to qualify the
crime; otherwise, the appellant would be deprived of his right to be
informed of the charge lodged against him. This was the ruling of the
Court in People vs. Lizada,[41] thus:

We agree with the accused-appellant that he is guilty only of two counts

of simple rape, instead of qualified rape. The evidence on record shows
that the accused-appellant is the common-law husband of Rose, the
mother of the private complainant. The private complainant, as of
October 1998, was still 13 years old, and under Article 335 as
amended by Republic Act 7659, the minority of the private complainant,
concurring with the fact that the accused-appellant is the common-law
husband of the victims mother, is a special qualifying circumstance
warranting the imposition of the death penalty. However, the said
circumstance was not alleged in the Informations as required by
Section 8, Rule 110 of the Revised Rules on Criminal Procedure which
was given retroactive effect by this Court because it is favorable to the
accused. Hence, even if the prosecution proved the special qualifying
circumstance of minority of the private complainant and relationship,
the accused-appellant being the common-law husband of her mother,
accused-appellant is guilty only of simple rape. Under the given law,
the penalty for simple rape is reclusion perpetua.[42]

Thus, the appellant is guilty only of simple statutory rape for which the
imposable penalty is reclusion perpetua under Article 335 of the
Revised Penal Code, as amended by Rep. Act No. 7659.

Civil Liabilities of the Appellant

The trial court directed the appellant to pay the victim the amount of
P50,000. The court did not award moral damages. The decision of the
trial court shall, thus, be modified. The appellant is directed to pay the
victim the amount of P50,000 as civil indemnity and the amount of
P50,000 as moral damages, conformably to current jurisprudence.[43]

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial

Court, Camiguin, Branch 28, in Criminal Case No. 918 is AFFIRMED
with MODIFICATION. The appellant Roberto Negosa alias Jovin is
found guilty of statutory rape under Article 335, paragraph 3 of the
Revised Penal Code, as amended by Rep. Act No. 7659, and is hereby
sentenced to reclusion perpetua. The appellant is directed to pay the
victim Gretchen Castao the amount of P50,000 as civil indemnity ex
delicto and P50,000 as moral damages. Costs against the appellant.

SO ORDERED.

x--x

G.R. No.190798

RONALD IBAEZ, EMILIO IBAEZ, and DANIEL "BOBOT" IBAEZ,

Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PEREZ, J.:

On appeal is the September 25, 2009 Decision1 of the Court of

Appeals (CA) in CA-G.R. CR. No. 31285 which affirmed with
modifications the July 17, 2007 Decision2 of the Regional Trial Court
(RTC), Branch 255 of Las Pias City, convicting Ronald Ibaez
(Ronald), Emilio Ibaez (Emilio) and Daniel "Bobot" Ibaez (Bobot)
(collectively, petitioners) of the crime of frustrated homicide.

The Facts

For allegedly stoning, hitting and stabbing Rodolfo M. Lebria (Rodolfo),

the petitioners together with their co-accused, Boyet Ibaez (Boyet)
and David Ibaez (David), who have remained at large, were charged
with the crime of frustrated homicide in an Information3 dated October
11, 2001. The accusatory portion thereof reads:

"That on or about 15th day of July, 2001, in the City of Las Pias,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together, acting
in common accord and mutually helping and aiding one another, with
intent to kill and without justifiable cause, did then and there willfully,
unlawfully and feloniously attack, assault, stone, hit with an spade and
stab with bladed weapons one RODOLFO M. LEBRIA, thereby inflicting
upon him physical injuries, thus performing all the acts of execution
which would produce the crime of Homicide as a consequence but
which, nevertheless, did not produce it by reason of causes
independent of the will of the accused, that is, by the timely and able
medical assistance rendered to said RODOLFO M. LEBRIA, which
prevented his death.

CONTRARY TO LAW."

After posting their bail bond at P24,000.00 each, Ronald, Bobot and
Emilio were released on bail.4 Arraignment of Ronald and Bobot was
held on May 9, 2002. Emilio was, in turn, arraigned on December 10,
2002. All the petitioners entered a plea of not guilty to the crime
charged.5 After termination of pre-trial on April 23, 2003,6 trial on the
merits immediately followed. In the course of trial, two versions of what
transpired on the early morning of July 15, 2001 surfaced. These
conflicting versions of the incident, as culled from the records, are as
follows:

Version of the Prosecution

In his narration, Rodolfo claimed that Ronald and his sons Emilio,
Bobot, Boyet and David were his neighbors in CAA, Las Pias City.
Rodolfo recalled that he had visitors on the day of the incident. When
his guests left at around 1:00 a.m. of July 15, 2001, Rodolfo
accompanied them outside his house. After about thirty minutes and as
he was about to go inside, Rodolfo noticed some garbage in front of his
house. Addressing nobody in particular, Rodolfo uttered in the
vernacular "bakit dito tinambak ang basura sa harap ng aking bahay na
malawak naman ang pagtataponan ng basura?"7 Emilio and Boyet,
who was then present and angered by what they heard, threw stones at
the private complainant hitting him twice on the forehead. With blood
oozing from his forehead, Rodolfo went inside his house to cleanse his
face obscured by blood and emerged again, this time, carrying a 2" x
2" (dos por dos) piece of wood. Rodolfo was caught off guard when he
was hit on the head with a shovel by another accused, David.8 Then,
Ronald held Rodolfo, rendering him helpless, as Boyet and Bobot
simultaneously stabbed him in the abdomen.9 At this point, Rodolfo fell
to the ground, lying flat and eventually lost consciousness. When he
regained consciousness, Rodolfo found himself at the Las Pias District
Hospital (LPDH) but was later on transferred to the Philippine General
Hospital (PGH) for the much-needed surgical procedure. At the PGH,
Rodolfo was operated on, confined for nine days and incurred hospital
expenses amounting to P30,000.00.10

PO2 Sulit testified that he was the investigating police officer who took
the statements of Rodolfos daughter Ruth Ann Lebria (Ruth) and
Rodolfos wife, Salvacion Lebria (Salvacion) when they went to the
police station to complain about the incident. PO2 Sulit disclosed that
when he asked Ruth and Salvacion why Rodolfo was not with them, he
was informed that Rodolfo was still undergoing medication and
treatment for the injuries suffered from the petitioners. PO2 Sulit also
testified that he endorsed the complaint against the petitioners to the
Office of the City Prosecutor of Las Pias for proper disposition.11

To corroborate Rodolfos testimony, the prosecution presented Ruth and

Salvacion as witnesses.

Ruth testified that she actually witnessed the entire incident which she
admitted was preceded by the utterance made by his father.12 Her
testimony on how Ronald, Emilio, Bobot, Boyet and David ganged up
on her father and who among them stoned, hit, held and stabbed
Rodolfo perfectly matched the latters sworn declarations.13

Salvacion, who was also home on that fateful morning, confirmed the
beating and stabbing her husband endured in the hands of the
petitioners and their co-accused. Salvacion also submitted receipts in
the total amount of P2,174.80, representing the medical expenses
incurred for the treatment of Rodolfos injuries resulting from the
incident.14

The prosecution presented the Medico-Legal Certificate issued by the

Records Division of the PGH showing that Rodolfo suffered multiple
stab wounds in the abdomen and underwent an exploratory
laparotomy,15 the standard surgery in abdominal trauma cases
involving life-threatening injuries.16
Version of the Defense

To refute the accusations against them, the petitioners offered an

entirely different scenario.

Not only did he deny the allegations against him but Ronald even
claimed that he was the one who was stabbed by Rodolfo. Ronald
averred that the incident happened within the vicinity of his home,
which was about four meters away from the house of Rodolfo.17 When
Ronald heard Rodolfo shouting at around 2:00 a.m., he tried pacifying
Rodolfo by telling him that they would just talk later in the day.
Unappeased, Rodolfo allegedly destroyed the bicycle belonging to
Ronalds son-in-law. Rodolfo then attacked Ronald by stabbing him on
his right arm. It was during this time that Ronalds son, Bobot, came to
his rescue but was prevented from doing so as Bobot was also struck
with a knife by Rodolfo. Ronald and his son instituted a criminal
complaint against Rodolfo for attempted homicide but nothing came out
of it. In support of his testimony, Ronald presented a picture taken the
day after the incident showing a slipper purportedly belonging to
Rodolfo and a balisong. Ronald further insisted that all the other
accused were not around as they were residing elsewhere at that
crucial time.

Bobot testified that he immediately rushed outside his house, which is

located beside his fathers, upon hearing Ronald shout, "Tulungan mo
ako, ako'y sinaksak."18 However, he was not able to save his father as
he himself was stabbed twice with a knife by Rodolfo. A struggle for the
possession of the knife between Bobot and Rodolfo ensued and in the
process, the latter accidentally sustained a stab wound in the
abdomen. Still, Bobot asserted that it was Rodolfo who ran away from
the scene of the crime. Meanwhile, Ronald had already left for the
nearby police detachment to seek help.

Accused Emilio, for his part, interposed denial and alibi as his
defenses. He emphatically denied that he threw a stone at Rodolfo. On
the date and time of the incident, Emilio claimed that he was working
overtime as a laborer in Moonwalk, Las Pias City, which is one
kilometer away from the crime scene. He argued that he was just
unfortunately dragged into this case which had nothing to do with him
at all.19
The defense likewise proffered two medical certificates to support the
petitioners claims. The July 15, 2001 medical certificate issued by Dr.
Ma. Cecilia Leyson (Dr. Leyson), of the Ospital ng Maynila, declared
that Ronalds body bore lacerations and hematoma at the time she
attended to him. Nevertheless, Dr. Leyson acknowledged that she had
no idea how the injuries were sustained by Ronald. The other medical
certificate dated March 20, 2006 was issued by Dr. Renato Borja (Dr.
Borja), a physician affiliated with the Paraaque Community Hospital
where Bobot was taken after getting injured. Based on the hospital
records, Dr. Borja testified that Bobot had sustained wounds on the
head and chest, possibly caused by a sharp instrument.20

Petitioners Representation in the Trial Court Proceedings

In view of the petitioners allegation that they were denied of right to

counsel, a narration of petitioners representation in the trial court
proceedings is imperative.

During the arraignment on May 9, 2002, Ronald and Bobot were

assisted by Atty. Bibiano Colasito, who was selected as their counsel
de oficio only for that occasion. At his arraignment on December 10,
2002, Emilio appeared with the assistance of Atty. Antonio Manzano
(Atty. Manzano), who was then appointed by the trial court as counsel
de oficio for all the accused. In the pre-trial conference that followed,
Atty. Manzano appeared for the petitioners. Atty. Manzano was
informed that the trial for the presentation of prosecution evidence was
set on June 18, 2003.

Both Rodolfo and PO2 Sulit completed their respective testimonies

during the June 18, 2003 hearing. However, Atty. Manzano failed to
appear at the said hearing despite prior notice. Likewise, Ronald, one
of the petitioners, absented himself from the same hearing. As a result,
the RTC issued the June 18, 2003 Order,21 the pertinent portion of
which reads:

Due to the failure of Atty. Manzano to appear in todays proceeding

despite due notice and so as not to delay the proceedings herein, his
right to cross-examine the said two (2) witnesses is deemed waived. At
the same time, Atty. Manzano is hereby fined the amount of P2,000.00
for his absence in todays proceedings despite the fact that the same
has been previously set and known to him, without even filing any
motion or pleading regarding his inability to appear herein which clearly
indicates a show of disrespect to the authority of this Court.

Let a warrant of arrest be issued against accused Ronald Ibaez for

failing to appear in todays hearing despite notice and the bond posted
by him for his provisional liberty confiscated in favor of the government.
As such, the bondsman BF General Insurance Company, Inc., is hereby
directed to produce the body of the said accused within thirty (30) days
from receipt of this Order and to show cause why no judgment should
be rendered against the bond.

The Director of the National Bureau of Investigation and the Director of

the Criminal Investigation Service Command, PNP, Camp Crame, are
hereby directed to explain within five (5) days from receipt of this Order
why the warrants of arrest issued against Boyet Ibaez and David
Ibaez remain unimplemented and/or no return submitted to this Court.

Thereafter, Atty. Manzano withdrew as petitioners counsel de oficio. In

its Order22 dated September 3, 2003, the trial court appointed Atty.
Gregorio Caeda, Jr. (Atty. Caeda) as the new counsel de oficio of the
petitioners. On the same date, Atty. Caeda conducted the cross-
examination of Ruth and even expressed his desire to continue with the
cross-examination of said witness on the next scheduled hearing. In the
hearing of September 17, 2003, Atty. Caeda appeared for the
petitioners but Bobot and Emilio did not show up. This prompted the
trial court to issue the corresponding warrants for their arrest and the
bonds posted by them for their provisional liberty were ordered
confiscated in favor of the government. Despite the continued absence
of his clients, Atty. Caeda religiously attended the succeeding
hearings. On November 5, 2003, upon his request, the trial court
relieved Atty. Caeda of his designation as counsel de oficio for the
petitioners.

Per the trial courts Order23 dated February 10, 2004, Atty. Ma. Teresita
C. Pantua (Atty. Pantua), of the Public Attorneys Office, was designated
as the petitioners counsel de oficio. However, Atty. Pantuas
designation was recalled upon her manifestation that she had
previously assisted Rodolfo in initiating the present case. In her stead,
the trial court appointed the petitioners current counsel de oficio, Atty.
Juan Sindingan (Atty. Sindingan).

Since then, Atty. Sindingan has been representing the petitioners. With
his help, all three petitioners finally appeared before the trial court on
May 5, 2005. Atty. Sindingan handled the cross-examination of another
prosecution witness, Salvacion, as well as the presentation of evidence
for the defense.

After both parties had rested their case, they were required to submit
their respective memoranda in thirty (30) days. Atty. Sindingan
submitted the Memorandum for the petitioners while no memorandum
was ever filed by the prosecution. Thereafter, the case was deemed
submitted for decision.

The RTCs Ruling

The RTC accorded more weight to the positive testimonies of the

prosecution witnesses over the declarations of the defense, thus, the
dispositive portion of its judgment reads:

WHEREFORE, the foregoing considered, the Court finds accused

Ronald Ibaez, Emilio Ibaez and Daniel "Bobot" Ibaez GUILTY
beyond reasonable doubt of the crime of frustrated homicide and
hereby sentences them to each suffer the penalty of imprisonment of
SIX (6) YEARS AND ONE (1) DAY of prision mayor, as minimum, up to
EIGHT (8) YEARS of prision mayor, as maximum, as well as to suffer the
accessory penalties provided for by law.

Also, accused Ronald Ibaez, Emilio Ibaez and Daniel "Bobot" Ibaez
are ordered to pay to private complainant or victim Rodolfo Lebria the
sum of P2,174.80 representing his actual medical expenses.

With costs de officio.

SO ORDERED.24

The petitioners filed a motion for reconsideration of the RTC Decision

but this was denied in an Order25 dated October 11, 2007. Undaunted,
the petitioners elevated their case to the CA. They faulted the trial court
for totally disregarding their claim that Rodolfo was the aggressor and
for not recognizing that Bobot was merely acting in self-defense when
Rodolfo was stabbed. The petitioners also asserted that they were
deprived of their constitutional right to counsel.

The CAs Ruling

The CA agreed with the trial courts judgment of conviction but modified
the penalty imposed. The appellate court sentenced the petitioners to
suffer the indeterminate penalty of six (6) years of prision correccional,
as minimum, to eight (8) years and one (1) day of prision mayor as
maximum. The CA also found it proper to award P15,000.00 as
temperate damages and P30,000.00 as moral damages to Rodolfo. The
petitioners sought a reconsideration of the CAs decision. Still, their
motion was denied in the Resolution26 of December 28, 2009.

The Issue

Hence, the present petition for review on certiorari raising the lone issue
of whether the petitioners were deprived of their constitutionally
guaranteed right to counsel.

The Court's Ruling

The Court sustains the conviction of the petitioners with modification.

No Deprivation of Right to Counsel

The right invoked by the petitioners is premised upon Article III, Section
14 of the Constitution which states that:

Section 14. (1) No person shall be held to answer for a criminal offense
without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, x x x.

Guided by the constitutionally guaranteed right of an accused to

counsel and pursuant to its rule-making authority, the Court, in
promulgating the Revised Rules of Criminal Procedure, adopted the
following provisions:

Rule 115, SEC. 1. Rights of accused at the trial. In all criminal

prosecutions, the accused shall be entitled to the following rights:

xxxx

(c) To be present and defend in person and by counsel at every stage

of the proceedings, from arraignment to promulgation of the judgment.
xxx

xxxx

Rule 116 of the same Rules makes it mandatory for the trial court to
designate a counsel de oficio for the accused in the absence of private
representation. It provides:

SEC. 6. Duty of court to inform accused of his right to counsel. Before

arraignment, the court shall inform the accused of his right to counsel
and ask him if he desires to have one. Unless the accused is allowed to
defend himself in person or has employed counsel of his choice, the
court must assign a counsel de officio to defend him.

SEC. 7. Appointment of counsel de officio. The court, considering the

gravity of the offense and the difficulty of the questions that may arise,
shall appoint as counsel de officio such members of the bar in good
standing who, by reason of their experience and ability, can
competently defend the accused. But in localities where such members
of the bar are not available, the court may appoint any person, resident
of the province and of good repute for probity and ability, to defend the
accused.

The right to be assisted by counsel is an indispensable component of

due process in criminal prosecution.27 As such, right to counsel is one
of the most sacrosanct rights available to the accused.28 A deprivation
of the right to counsel strips the accused of an equality in arms
resulting in the denial of a level playing field.29 Simply put, an accused
without counsel is essentially deprived of a fair hearing which is
tantamount to a grave denial of due process.30
On the basis of this ratiocination and as a last ditch effort to be
exculpated, the petitioners insisted that they were denied of their right
to counsel when their counsel de oficio failed to appear on the June 18,
2003 trial court hearing during which Rodolfo and PO2 Sulit gave their
testimonies. As a consequence, the petitioners argued that they were
divested of the opportunity to cross-examine the said two prosecution
witnesses.

The Office of the Solicitor General (OSG), for its part, disputed the
petitioners claim that they were deprived of their constitutional right to
counsel. In their May 5, 2010 Comment31 on the instant petition, the
OSG pointed out that since the beginning of the proceedings in the trial
court until the filing of the present petition before this Court, three (3)
counsel de oficio were appointed and represented the petitioners32
and to which designation the latter did not raise any protest.33 The
OSG opined that the trial court judge made sure that the petitioners
were adequately assisted by a counsel de oficio when they failed to
engage the services of a lawyer of their own choice. Thus, the OSG
recommended the dismissal of the petition.

The Court agrees with the position taken by the OSG.

There was no denial of right to counsel as evinced by the fact that the
petitioners were not only assisted by a counsel de oficio during
arraignment and pre-trial but more so, their counsel de oficio actively
participated in the proceedings before the trial court including the
direct and cross-examination of the witnesses.34 As aptly found by the
CA, the petitioners were duly represented by a counsel de oficio all
throughout the proceedings except for one hearing when their court
appointed lawyer was absent and Rodolfo and PO2 Sulit presented
their testimonies.35 As previously stated, it was during said hearing
when the trial court declared that the cross-examination of the said two
prosecution witnesses was deemed waived.

Mere opportunity and not actual cross-examination is the essence of

the right to cross-examine.36 The case of Savory Luncheonette v.
Lakas ng Manggagawang Pilipino, et al. thoroughly explained the
meaning and substance of right to cross-examine as an integral
component of due process with a colatilla that the same right may be
expressly or impliedly waived, to quote:

The right of a party to confront and cross-examine opposing witnesses

in a judicial litigation, be it criminal or civil in nature, or in proceedings
before administrative tribunals with quasi-judicial powers, is a
fundamental right which is part of due process. However, the right is a
personal one which may be waived expressly or impliedly, by conduct
amounting to a renunciation of the right of cross-examination. Thus,
where a party has had the opportunity to cross-examine a witness but
failed to avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the witness
will be received or allowed to remain in the record.37

Such is the scenario in the present case where the reason why Rodolfo
and PO2 Sulit were not subjected to cross-examination was not
because the petitioners were not given opportunity to do so. Noticeably,
the petitioners counsel de oficio omitted to mention that in the June 18,
2003 hearing, Ronald, one of the accused, did not show up despite
prior notice. Thus, the bail bond posted for his provisional liberty was
ordered confiscated in favor of the government. Ironically, Ronald
comes to this Court asserting the very right he seemingly waived and
abandoned for not attending the scheduled hearing without justifiable
cause. Moreover, neither did the petitioners interpose any objection to
the presentation of testimony of the prosecution witnesses during the
June 18, 2003 hearing nor did their counsel de oficio subsequently
seek a reconsideration of the June 18, 2003 Order.

Further, the trial court judge, when he issued the June 18, 2003 Order,
was merely exercising a judicial prerogative. No proof was presented
by the defense showing that the exercise of such discretion was either
despotic or arbitrary.

Going by the records, there is no indication that any of the counsel de

oficio had been negligent in protecting the petitioners interests. As a
matter of fact, the counsel de oficio kept on attending the trial court
hearings in representation of the petitioners despite the latters
unjustified absences.
In sum, the Court is not persuaded that the absence of the counsel de
oficio in one of the hearings of this case amounts to a denial of right to
counsel. Nor does such absence warrant the nullification of the entire
trial court proceedings and the eventual invalidation of its ruling. In
People v. Manalo, the Court held that the fact that a particular counsel
de oficio did not or could not consistently appear in all the hearings of
the case, is effectively a denial of the right to counsel, especially so
where, as in the instant case, there is no showing that the several
appointed counsel de oficio in any way neglected to perform their
duties to the appellant and to the trial court and that the defense had
suffered in any substantial sense therefrom.38

Guilt Proven Beyond Reasonable Doubt

At any rate, the factual findings of the RTC as affirmed by the CA, which
are backed up by substantial evidence on record, led this Court to no
other conclusion than that the petitioners are guilty of frustrated
homicide.

The elements of frustrated homicide are: (1) the accused intended to

kill his victim, as manifested by his use of a deadly weapon in his
assault; (2) the victim sustained fatal or mortal wound/s but did not die
because of timely medical assistance; and (3) none of the qualifying
circumstance for murder under Article 248 of the Revised Penal Code,
as amended, is present.39 There being no prior determination by both
the trial and appellate courts of any qualifying circumstance that would
elevate the homicide to murder, the Court will simply limit its discussion
to the first two elements.

In ascertaining whether intent to kill exists, the Court considers the

presence of the following factors: (1) the means used by the
malefactors; (2) the nature, location and number of wounds sustained
by the victim; (3) the conduct of the malefactors before, during, or
immediately after the killing of the victim; and (4) the circumstances
under which the crime was committed and the motives of the accused.
40

Here, intent to kill Rodolfo was evident in the manner in which he was
attacked, by the concerted actions of the accused, the weapon used
and the nature of wounds sustained by Rodolfo.
Both the RTC and CA correctly appreciated the presence of
conspiracy. Conspiracy presupposes unity of purpose and unity of
action towards the realization of an unlawful objective among the
accused.41 Its existence can be inferred from the individual acts of the
accused, which if taken as a whole are in fact related, and indicative of
a concurrence of sentiment.42 In this case, conspiracy was manifested
in the spontaneous and coordinated acts of the accused, where two of
them delivered the initial attack on Rodolfo by stoning, while another
struck him with a shovel and the third held him so that the other two can
simultaneously stab Rodolfo. It was only when Rodolfo laid helpless on
the ground and had lost consciousness that the accused hurriedly left
the scene. This chain of events leading to the commission of the crime
adequately established a conspiracy among them.

Plainly, the kind of weapon used for the attack, in this case, a knife and
the vital parts of Rodolfos body at which he was undeniably stabbed
demonstrated petitioners intent to kill. The medico-legal certificate
revealed that Rodolfo sustained multiple stab wounds in the
epigastrium, left upper quadrant of the abdomen resulting to internal
injuries in the transverse colon (serosal), mesentery and left kidney.43
Given these injuries, Rodolfo would have succumbed to death if not for
the emergency surgical intervention.

With respect to the petitioners defenses of denial and alibi, the Court
concurs with the lower courts rejection of these defenses. An
assessment of the defenses of denial and alibi necessitates looking into
the credibility of witnesses and their testimonies. Well-settled is the rule
that in determining who between the prosecution and defense
witnesses are to be believed, the evaluation of the trial court is
accorded much respect for the simple reason that the trial court is in a
better position to observe the demeanor of the witnesses as they deliver
their testimonies.44 As such, the findings of the trial court is accorded
finality unless it has overlooked substantial facts which if properly
considered, could alter the result of the case.45

In the instant case, the Court finds no cogent reason to deviate from
this rule considering the credibility of the prosecution witnesses.
The trial and appellate courts were right in not giving probative value to
petitioners denial. Denial is an intrinsically weak defense that further
crumbles when it comes face-to-face with the positive identification and
straightforward narration of the prosecution witnesses.46 Between an
affirmative assertion which has a ring of truth to it and a general denial,
the former generally prevails.47 The prosecution witnesses recounted
the details of the crime in a clear, detailed and consistent manner,
without any hint of hesitation or sign of untruthfulness, which they could
not have done unless they genuinely witnessed the incident. Besides,
the prosecution witnesses could not have mistakenly identified the
petitioners as Rodolfos perpetrators considering there is so much
familiarity among them. The records are also bereft of any indication
that the prosecution witnesses were actuated by ill motives when they
testified against the petitioners. Thus, their testimonies are entitled to
full faith and credit.

In contrast, the petitioners testimonies are self-serving and contrary to

human reason and experience.

The Court notes that the defense presented no witnesses, other than
themselves, who had actually seen the incident and could validate their
story. Additionally, aside from the medical certificates of Ronald and
that of Bobot which was issued almost five (5) years since the incident
occurred, the defense have not submitted any credible proof that could
efficiently rebut the prosecutions evidence.

Further, the Court finds it contrary to human reason and experience that
Ronald, would just leave his son Bobot, while the latter was being
stabbed and struggling for the possession of the knife with Rodolfo, to
go to a police station for assistance. Logic dictates that a father would
not abandon a son in the presence of actual harm.

For the defense of alibi to prosper, the petitioners must not only prove
by clear and convincing evidence that he was at another place at the
time of the commission of the offense but that it was physically
impossible for him to be at the scene of the crime.48 Emilio himself
admitted that he was just one kilometer away from the crime scene
when the incident happened during the unholy hour of 1:00 a.m. of July
15, 2001. As such, Emilio failed to prove physical impossibility of his
being at the crime scene on the date and time in question. Just like
denial, alibi is an inherently weak defense that cannot prevail over the
positive identification by the witnesses of the petitioners as the
perpetrators of the crime.49 In the present case, Emilio was positively
identified by the prosecution witnesses as one of the assailants.
Moreover, alibi becomes less credible if offered by the accused himself
and his immediate relatives as they are expected to make declarations
in his favor,50 as in this case, where Emilio, his father and brother
insisted that the former was somewhere else when the incident
occurred. For these reasons, Emilios defense of alibi will not hold.

Anent Bobot's claim of self-defense, it is undeserving of any serious

consideration or credence. Basic is the rule that the person asserting
self-defense must admit that he inflicted an injury on another person in
order to defend himself.51 Here, there is nothing on record that will
show that Bobot categorically admitted that he wounded Rodolfo.

Based on the foregoing, the Court upholds the trial and appellate
courts' conviction of the petitioners for frustrated homicide.1wphi1

Penalty and Civil Liability

Article 249 of the Revised Penal Code provides that the imposable
penalty for homicide is reclusion temporal. Article 50 of the same Code
states that the imposable penalty upon principals of a frustrated crime
shall be the penalty next lower in degree than that prescribed by law for
the consummated felony. Hence, frustrated homicide is punishable by
prision mayor. Applying the Indeterminate Sentence Law, there being
no aggravating or mitigating circumstances present in this case, the
minimum penalty to be meted on the petitioners should be anywhere
within the range of six (6) months and one (1) day to six (6) years of
prision correccional and the maximum penalty should be taken from the
medium period of prision mayor ranging from eight (8) years and one
(1) day to ten (10) years. Thus, the imposition by the CA of
imprisonment of six (6) years of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum, is
proper.

As regards the civil liability of the petitioners, the Court sustains the
award of moral and temperate damages with modification as to the
latter's amount.
Pursuant to Article 2224 of the Civil Code, temperate damages may be
recovered when some pecuniary loss has been suffered but the amount
of which cannot be proven with certainty. In People v. Villanueva52 and
Serrano v. People,53 the Court ruled that in case the amount of actual
damages, as proven by receipts during trial is less than P25,000.00, the
victim shall be entitled to P25,000.00 temperate damages, in lieu of
actual damages of a lesser amount. In the instant case, only the
amount of P2,174.80 was supported by receipts. Following the
prevailing jurisprudence, the Court finds it necessary to increase the
temperate damages from P15,000.00 to P25,000.00.

The award of moral damages is justified under Article 2219 of the Civil
Code as Rodolfo sustained physical injuries which were the proximate
effect of the petitioners' criminal offense. As the amount is left to the
discretion of the court, moral damages should be reasonably
proportional and approximate to the degree of the injury caused and
the gravity of the wrong done.54 In light of the attendant circumstances
in the case, the Court affirms that P30,000.00 is a fair and reasonable
grant of moral damages.

WHEREFORE, the assailed Court of Appeals Decision dated

September 25, 2009 in CA-G.R. CR. No. 31285 is AFFIRMED with
MODIFICATION. Petitioners RONALD IBAEZ, EMILIO IBAEZ and
DANIEL "BOBOT" IBAEZ are found guilty of frustrated homicide and
sentenced to a prison term of six (6) years of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as
maximum. They are also ordered to pay RODOLFO LEBRIA Twenty Five
Thousand Pesos (P25,000.00) as temperate damages and Thirty
Thousand Pesos (P30,000.00) as moral damages.

SO ORDERED.

x--x

PEOPLE OF THE PHILIPPINES, appellee, vs. ERNIE BARO, appellant.

DECISION
PANGANIBAN, J.:
The prosecution must prove the guilt of the accused beyond
reasonable doubt. It must avoid pushing the judge to the pitfall of either
convicting the innocent or acquitting the guilty. The hornbook rule is
that where there is reasonable doubt, the accused must be acquitted. It
would be far more acceptable to acquit the guilty erroneously than to
convict the innocent wrongly.

The Case

Ernie Baro appeals the Decision[1] dated October 30, 2000 issued by
the Regional Trial Court (RTC) of Quezon City (Branch 86), finding him
guilty beyond reasonable doubt of three (3) counts of rape and
sentencing him to reclusion perpetua for each count. The decretal
portion of the Decision reads as follows:

WHEREFORE, PREMISES CONSIDERED, JUDGMENT is hereby

rendered finding the accused Ernie Baro guilty beyond reasonable
doubt of three (3) counts of rape committed against Roda Ongatan and
hereby sentences him to suffer the penalty of reclusion perpetua for
each of the offense charged and to indemnify the victim Roda Ongotan
the amount of P75,000.00 as civil indemnity and P50,000.00 as moral
damages, plus costs.[2]

Three Complaints, docketed as Criminal Case Nos. Q-98-76279,

Q-98-76280 and Q-98-76282 were filed against appellant for raping
Roda Ongotan on January 5, 1995, March 5, 1995 and April 16, 1996.
Except for the dates of the commission of the offense, the three
Complaints were similarly worded as follows:

That on or about the 5th day of January, 1995 in Quezon City,

Philippines, the said accused, by means of force and intimidation did
then and there, willfully, unlawfully and feloniously enter the room where
the undersigned complainant was sleeping, and covered her mouth,
poked a knife at her neck, undressed her and removed her panty, and
thereafter have carnal knowledge of her against her will and without her
consent.[3]

During his arraignment on August 3, 1998,[4] appellant, with the

assistance of his counsel de oficio,[5] pleaded not guilty to all three
charges. After trial in due course, the RTC rendered the assailed
Decision.

The Facts
Version of the Prosecution

In its Brief,[6] the Office of the Solicitor General presents the

prosecutions version of the facts as follows:

Roda Ongotan was an adopted daughter of Rodrigo and Leticia

Ongotan. Rodrigo and Leticia have eight (8) other children, namely:
Ricardo, 21 years old; Ronald, 20 years old; Rogelio, 19 years old;
Roberto, 18 years old; Rose, 16 years old; Rochelle, 13 years old;
Rodel, 10 years old and Racquel, 8 years old. They lived in a two-storey
house at 104 Zusuaregui, Old Balara, Quezon City. Rodas family
occupied the second floor of the house, which had three (3) bedrooms.
The first bedroom was occupied by Roda s parents and three (3)
sisters. The second bedroom was occupied by the brother of Rodas
mother, Vivencio Padora, while the third bedroom was occupied by
Roda. Rodas five (5) brothers sleep in the sala. Rodas bedroom was
adjacent to the kitchen. Her room was about two armslength wide and
one-and-a-half armslength long. It had no door and only a curtain
covered and separated it from the rest of the house. Appellant, who
was the uncle of Rodas mother, slept just outside Rodas bedroom.
When the rape incidents occurred in 1995 and 1996, the ground floor of
the Ongotan house was rented by Teresita Ongotans (the sister of
Rodas father) family.

On January 5, 1995, around 5:00 a.m., Roda had just awakened and
was still lying down when appellant entered her room. Appellant
immediately covered her mouth with a handkerchief and threatened to
kill her if she shouted. Using his left hand, appellant poked a knife
(balisong) at her. Appellant was then wearing a white shirt and black
short pants while Roda was wearing an orange-colored short pants and
a pink dress. Appellant took off his short pants and removed Rodas
short pants and underwear. He forcibly spread her legs and inserted
his penis into her vagina. Roda could not remember how long was
appellants penis remained inserted in her vagina. After raping her,
appellant dressed up and left her room.
On March 5, 1995, Roda went to bed around 8:00 p.m. Around 5:00
a.m. the following day, Roda was awakened by the presence of
appellant inside her bedroom. Upon seeing appellant, Roda asked him
what he wanted from her. Appellant told her to be quiet and
immediately covered her mouth with a handkerchief. Appellant wound
the handkerchief around Rodas head. Appellant then told her that
should she shout or report what was happening to anyone, he would kill
her. Thereupon, appellant raised her duster. Roda resisted, but her
strength was no match for appellants. Appellant told her not to resist
and to make her immobile, appellant poked a knife (balisong) at the left
side of her neck. Roda started to cry when she realized the futility of her
resistance to appellants lustful intention. Thereupon, appellant removed
her underwear. When this was removed, appellant lowered his maong
pants and underwear. Then, using his knees which were placed
between Rodas legs, appellant forced her legs apart. Appellant
inserted his penis into Rodas vagina. Roda could not do anything but
cry as she felt weak. When appellant inserted his penis into her vagina,
Roda felt pain. She could not remember how long appellants penis
stayed inside her vagina. When appellant was finished with her, he
dressed up and removed the handkerchief around her head. When
morning came, Roda did not tell her mother of the incident out of fear of
appellant.

On April 16, 1996, around midnight, Roda was at the kitchen preparing
the food to be brought by her parents and five (5) siblings on their trip
to the province. After she had prepared their baon, her parents, four (4)
brothers and one (1) sister left the house. Only Roda, Rochelle, Rodel
and appellant were left in the house. Thereafter, she put to sleep
Rochelle and Rodel who slept at their parents bedroom. Roda did not
sleep because she was afraid of appellant who was with them in the
house. Before her parents left, Roda had pleaded with them not to
leave. She could not tell them the reason out of fear of appellant. She
could not ask them either to bring them all because no one would be
left at the house. Neither could she go with them because no one would
look after her young brother and sister.

Thereupon, Roda saw appellant already inside her room and appellant,
upon seeing her immediately covered her mouth to prevent her from
making any noise. Appellant used a handkerchief to cover her mouth
and poked a knife at her neck. Roda resisted but appellant was
stronger. As they were still standing, appellant ordered her to lie down.
Appellant told her not to report the incident to anyone. Thereupon,
appellant took off his short pants, and followed that by removing Rodas
short pants and underwear. When this was done, appellant forced her
legs open and inserted his penis into her vagina. Roda could not do
anything but cry. She could not remember how long appellant inserted
his penis into her vagina. After appellant raped her, he ordered her to
dress up and threatened her that should she report what had happened
to anyone, he would kill her.

On December 17, 1997, Roda summoned enough courage to file a

complaint against appellant. She first confided in her aunt, Antonia
Espos, about her unfortunate ordeal in the hands of appellant. Her aunt
assured her that she would help her file charges against appellant.

Dr. Cristina Freyra, a Medico-Legal Officer at the Philippine National

Police Crime Laboratory, EDSA, Q.C., stated that she performed a
genital examination on Roda Ongotan on December 16, 1997. At the
time of Rodas examination, Roda was fifteen (15) years old. Dr. Freyras
examination revealed that Rodas hymen had deep-healed lacerations
at 3:00 and 9:00 oclock positions and a healed laceration at 5:00
oclock position. Dr. Freyra opined that these lacerations could have
been caused by a hard blunt object like an erect male organ. Dr. Freyra
concluded that Roda was in a non-virgin state physically.[7] (Citations
omitted)

Version of the Defense

On the other hand, appellant narrates in his Brief[8] his version of the
facts as follows:

Accused-appellant, Ernie Baro, was a former resident of Catubig,

Northern Samar. He was engaged in copra farming from the plantation
of his parents prior to November 15, 1996, when he came to Manila with
his wife and three (3) children to find work upon the request and
invitation of his niece, Leticia Ongotan.

In Manila, accused-appellant Ernie Baro and his wife, with their three
(3) children, the eldest being 3 years old and the youngest at 1 year
old, stayed at the place located at Orocoy St., Montessorie, Manila.
Later on, they transferred to the house of his niece, Leticia Ongotan at
104 Scout Zuzuarigue St., Old Balara, Quezon City, where they stayed
for about 1 year. Th[e]reat, accused, Ernie Baro met herein complainant
Roda Ongot[a]n, who later on charged him of three (3) counts of rape
on December 17, 1997, allegedly committed by him on January 5;
March 5, 1995 and April 16, 1996. The herein accused vehemently
denied the charges despite his denial, the trial court nonetheless found
him guilty of the charge.[9] (Citations omitted)

Ruling of the Trial Court

The RTC gave credence to complainants testimony, citing the principle

that when a woman says she has been raped, she says all that is
necessary to prove her accusation. It also held that her delay in
reporting the incidents did not at all affect her credibility, for the delay
had satisfactorily been explained. Furthermore, it ruled that the Medico-
legal Report and the testimony of the examining physician bolstered her
claim that she had experienced violent sexual intercourse at a young
age.[10]

The RTC did not give credence to the alibi and the denial interposed by
the accused. It ruled that neither would prevail over the positive
testimony of complainant and that, as between a positive identification
of the accused by the victim herself and an alibi, the former is to be
given greater weight, especially when the victim has no motive to testify
falsely against the accused.[11]

Hence, this appeal.[12]

Assignment of Errors

In his Brief, appellant faults the court a quo with the following alleged
errors:

The lower court erred in giving full faith and credence to the testimony
of complainant, Roda Ongotan y Padora, despite its inherent
incredibility, contradictions and implausibility.
II

The lower court likewise erred in disregarding accused-appellants

defense of alibi despite having clearly satisfied the legal criteria for its
being, and supported by the attendant milieu and circumstances of the
case.[13]

The Courts Ruling

The appeal is meritorious. This Court believes that the guilt of appellant
was not proven beyond reasonable doubt.

First Issue:
Credibility of Complainants Testimony

Appellant submits that the RTC erred in according full faith and
credence to complainants testimony despite its inherent incredibility,
contradictions and implausibility.

We agree. While it is true that it may be the sole basis for convicting the
accused in a rape case,[14] the complaining witness testimony must be
credible.[15] In reviewing rape cases, this Court has always been
guided by the following principles: (a) an accusation of rape can be
made with facility -- while it may be difficult for the prosecution to prove,
it is usually more difficult for the person accused, though innocent, to
disprove; (b) in view of the intrinsic nature of the crime in which only two
persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and (c) the evidence for the
prosecution must stand or fall on its own merits -- it cannot be allowed
to draw strength from the weakness of the evidence for the defense.
[16]

After a painstaking review of the records of the case, this Court finds
several circumstances creating reasonable doubt as to appellants guilt.
These are: (1) delay in filing the Complaint, (2) failure of the prosecution
to prove appellants moral ascendancy over complainant, (3) lack of
support from the records for the RTCs finding of violent sexual
intercourse between appellant and complainant, and (4) discrepancies
in the complainants testimony.
Delay in Filing the Complaint

In rape, the complainants delayed disclosure of the crime to kith or kin

or persons of authority does not always warrant the conclusion that the
woman was not sexually molested or that her charges against the
accused are baseless and fabricated.[17] However, the delay must be
adequately and satisfactorily explained; otherwise, it would generate
doubt as to the guilt of the accused.[18]

In the present case, the first rape was allegedly committed by appellant
on January 5, 1995. After two months, on March 5, 1995, he
purportedly raped complainant again. More than a year after the
second rape, on April 16, 1996, the third rape supposedly occurred.
Complainant reported the alleged crimes only on December 17, 1997,
or more than two years after the first rape and more than a year after
the third one allegedly occurred.

Her explanation for the delay was the threat of appellant to kill her if she
reported the incident to anyone. Note that at the time she reported the
incident, he was still residing with her family. She herself testified that he
left their residence only on December 16, 1997,[19] after she had
confided the alleged rapes to her aunt and had herself examined by a
doctor. Hence, the threat of death, if any, was still hanging precariously
over her at the time. She merely said that she no longer wanted to ruin
her life, so she decided to reveal the rapes to her aunt. The relevant
portion of her testimony reads thus:

xxx xxx xxx

Q: What prompted you to tell the story to your auntie despite the fact
that one year has lapsed already?

A: Because I dont want to ruin my life anymore because it [is] already

ruined.[20]

The above quote does not, however, explain the gaps between the
dates of the three instances of the alleged rapes. The prosecution failed
to show satisfactorily what finally prompted complainant to report the
purported crime after a period of two long years from the time first rape
supposedly took place and to disregard the threats allegedly made by
appellant.

Proof of Moral Ascendancy

The RTC erred in stating that appellant had exercised moral

ascendancy over complainant. This was not proven during the trial.
Neither do the records show that he exercised moral ascendancy over
her. He is in fact not much older than her brothers. It was not shown
whether he was her benefactor -- a source of financial support -- or
whether he exercised discipline over her. In other words, there is no
proof beyond reasonable doubt that it was his moral ascendancy that
prevented her from putting up a resistance.[21] Presumptions of moral
ascendancy cannot and should not prevail over the constitutional
presumption of innocence.

Violent Sexual Intercourse Not Borne by the Records

The trial court likewise erred when it held that the Medico-legal Report
and the testimony of Dr. Ma. Cristina Freyra of the PNP Crime
Laboratory indicated that the lacerations in the vagina of complainant
showed that she had experienced violent sexual intercourse during her
younger years, and that such experience caused those lacerations. The
Report merely indicated that healed lacerations were found in her
hymen at the 5, the 3, and the 9 oclock positions. We reproduce
pertinent portions of the Report as follows:

FINDINGS:

GENERAL AND EXTRAGENITAL:

Fairly developed, fairly nourished and coherent female subject. Breasts

are hemispherical with pale brown areola and nipples from which no
secretion could be pressed out. Abdomen is flat and soft.

GENITAL:

There is moderate growth of pubic hair. Labia majora are full, convex
and coadapted with pinkish brown labia minora presenting in between.
On separating the same disclosed an elastic, fleshy-type hymen with
shallow, sealed laceration at 5 and deep-healed lacerations at 3 and 9
oclock positions. External vaginal orifice offers moderate resistance to
the introduction of the examining index finger. Vaginal canal is narrow
with prominent rugosities. Cervix is normal in size, color and
consistency.

CONCLUSION:

Subject is in a non-virgin state physically.

There are no external signs of recent application of any form of trauma

at the time of the examination.[22]

Furthermore, during her testimony, Dr. Freyra admitted that such

lacerations[23] could have been caused by any hard blunt object or
even by a finger or a vibrator.[24] She never mentioned violent sexual
intercourse. This fact is clear from the Transcript of Stenographic Notes,
which we quote:

Q: What was [sic] your findings if any in connection with your

examination?

A: On examination, there were deep-healed lacerations at 3:00 and

9:00 oclock positions and there was healed laceration at 5:00 oclock
position.

Q: Could you tell us what could have caused the lacerations?

A: Any hard blunt object could produce the lacerations.

Q: Could you mention any?

A: An erect male organ.

Q: Could you tell us the size of that male organ that caused the
laceration?

Atty Venturanza:
The question of the prosecutor is quite misleading. What was stated by
the witness is any hard blunt object and she just mentioned as one of
the objects is an erect male organ and now he [is] asking the size.

Court:

Lay the basis.

Fiscal Jamolin:

If you said that one of the causes of the laceration is an erect male
organ. On the basis of this possibility, could you tell us the size of that
male organ that caused the lacerations?

A: It could be any size but it should be bigger. [B]y 1 cm. [i]norder to

produce laceration, the diameter of the hard thing that entered the
hymen should be bigger by 1 cm.[25]

It must be noted that the healed lacerations found in complainants

hymen were not proven to have been caused by rapes that supposedly
happened two years earlier. Such lacerations may simply mean that,
depending on the changes observed in the affected tissues, a period
ranging from four days to one month passed from the time they had
been inflicted up to the time they were examined.[26]

Discrepancies in the Testimony of Complainant

More damaging to the prosecution, the discrepancies in the testimony

of complainant cast doubts on appellants guilt.

First, during her testimony on September 17, 1998, complainant said

that she was surprised when appellant entered her room on the night of
March 5, 1995.[27] On January 22, 1999, she again testified that she
was shocked to see appellant inside her room on the night of January
5, 1995.[28]

For reasons known only to the prosecution, complainant testified on the

second rape before she testified on the first one. Stranger still is her
statement that she asked him what he wanted from her when she saw
him in her room the second time.[29] We note that she had allegedly
been raped by him already prior to that date. Thus, she need not have
asked him what he wanted from her. By then, she should have at the
very least been able to guess his evil intentions and felt alarmed
accordingly.

Second, the house where the rapes allegedly took place was described
during the trial as not bigger than one half of the courtroom.[30] It was
occupied by at least twelve people, most of whom were members of
her immediate family. At any given night, at least ten people would be
asleep there. We cannot help but wonder why she allowed appellant to
commit such dastardly act three times, with her parents and four fully
grown brothers within shouting distance. Considering the cramped
space and the quietness of the night, the faintest cry from her would
have been heard by one or more of her family members who were in
that same house.

Third, complainant described each rape in a very uniform and even

seemingly systematic manner. Each rape always started with appellant
entering the room and complainant asking what he wanted from her. It
always began with appellant covering her mouth with a handkerchief
and pulling down her underwear. There was no difference at all in the
way the rapes were committed. The manner in which she described
them engenders the suspicion that her testimony had been coached,
rehearsed, or contrived.

Second Issue:
Alibi as a Defense

Appellant's Alibi a Plausible Excuse

Alibi, the plea of having been somewhere other than at the scene of the
crime at the time of its commission, is a plausible excuse for the
accused. Contrary to the common notion, alibi is not always a weak
defense. Sometimes, the fact that the accused was somewhere else
may just be the plain and unvarnished truth.

But to be valid for purposes of exoneration from a criminal charge, the

defense of alibi must be so airtight that it would admit of no exception.
[31] The rule is well-settled that in order for it to prosper, it must be
demonstrated that the person charged with the crime was not only
somewhere else when the offense was committed, but was so far away
that it would have been physically impossible to have been at the place
of the crime or its immediate vicinity at the time of its commission.[32]
The reason is that no person can be in two places at the same time.

This Court has ruled in numerous cases that where the accused was
only thirty minutes[33] or just a few kilometers from the place where the
crime was committed,[34] the defense of alibi will not prosper.

Complainant alleges that appellant raped her three times -- one on

each of the following dates: January 5, 1995, March 5, 1995, and April
16, 1996. During his testimony, appellant stated that he was in Catubig,
Northern Samar until November 15, 1996, when he came to Manila
upon the invitation of complainants mother.[35] He likewise testified that
it would take twenty-four hours for a bus to travel from Catubig,
Northern Samar, to Manila.[36] It would have been highly unlikely for
him to take the 24-hour bus ride to Manila, commit the dastardly act
upon complainant, and then return to Catubig, Samar, by taking another
24-hour bus ride. He would have had to do so three times in order to
commit the three alleged rapes on the dates given.

No evidence was adduced by the prosecution to prove that appellant

was indeed in Manila when the alleged rapes were committed. It would
have been a simple matter for it to present the testimony of
complainants mother, Leticia Ongotan, to contradict his testimony. It
would also have been a simple matter for it to present the testimony of
any of the brothers or the sisters of complainant to establish exactly on
what date he had arrived in Manila.

Truly, the evidence for the prosecution must stand or fall on its own
merits. It cannot be allowed to draw strength from the weakness of that
for the defense. In the present case, the testimony of appellant that he
was in Catubig, Northern Samar, on the dates when the alleged rapes
were committed remain uncontradicted by the prosecution. Moreover,
he testified that it was upon the invitation of complainants mother, his
niece, that he moved his family to Manila in November 1996 or seven
months after the last rape allegedly occurred.

The Constitutional Presumption of Innocence

Indeed, when a woman says she was raped, she in effect says all that
is necessary to prove her accusation.[37] Still, the presumption of
innocence of the accused should not be thrown out of the window and
forgotten altogether. Such presumption holds until the contrary is
proven. Every circumstance favoring it must be taken into account in a
criminal case. If the inculpatory facts and circumstances are capable of
two or more explanations, one of which is consistent with innocence
and the other with guilt, then the evidence does not pass the test of
moral certainty and is not sufficient to support a conviction.[38]

In order to convict the accused of a crime, the prosecution must

produce evidence showing guilt beyond reasonable doubt.[39] A
person charged with a serious crime stands to lose not only reputation,
but also liberty and maybe even life. Because of the gravity of the
charge and the great loss involved in the present case, the prosecution
should not have rested easy on haphazard facts and hastily thrown-in
principles, forgetting in the process their duty of overcoming the
presumption of innocence of the accused in a criminal action.

The prosecution should take an active and direct part in the trial of the
case, since it has the onus probandi of showing the guilt of the
accused.[40] Even if it is, perhaps, the inadequacy of details in the
prosecutions evidence rather than the actual facts themselves that
makes it difficult for this Court to arrive at definite conclusions, still we
cannot pin responsibility on appellant. The moral conviction that may
serve as basis for a finding of guilt in a criminal case should be that
which is the logical and inevitable result of the evidence on record,
exclusive of any other consideration. Short of this minimum
requirement, it is not only the right of the accused to be freed; it is, even
more, this Courts constitutional duty to acquit them. Only then may
there be fealty to the constitutional presumption of innocence.[41]

The innocence of a defendant in a criminal case is always presumed

until the contrary is proven.[42] Where two probabilities arise from the
evidence, the one compatible with the presumption of innocence will be
adopted.[43] Mere suspicion is not enough to take away ones liberty
and destroy ones reputation. Guilt must be proven by proof as clear as
daylight, by evidence so airtight that no room is left for any reasonable
doubt.
WHEREFORE, the appeal is GRANTED and the assailed Decision
issued on October 30, 2000 by the Regional Trial Court of Quezon City,
Branch 86, is hereby REVERSED and appellant ACQUITTED, with costs
de oficio.

SO ORDERED.

x--x

THIRD DIVISION

G.R. No. 213832, December 07, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GILBERT

MERCADO A.K.A. "BONG", Accused-Appellant.

RESOLUTION

REYES, J.:

Subject of this appeal1 is the Decision2 dated November 29, 2013 of

the Court of Appeals (CA) in CA-GR CR-HC No. 00941-MIN, which
affirmed with modification the Decision3 dated March 28, 2011 of the
Regional Trial Court (RTC) of Zamboanga City, Branch 16, in Criminal
Case Nos. 18497 and 18498, convicting accused-appellant Gilbert
Mercado a.k.a. "Bong" (Mercado) for two counts of Murder.

Mercado was charged in separate informations with two counts of

Murder for the deaths of Victor Dulap y Vargas (Victor) and Charlie
Dulap y Vargas (Charlie) on October 31, 2001 in Zamboanga City,
specifically:

IN CRIMINAL CASE NO. 18497

That on or about October 31, 2001, in the City of Zamboanga,

Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, armed with a handgun, by means of treachery
and with intent to kill, did then and there willfully, unlawfully and
feloniously, suddenly and without any warning, assault, attack and
shoot with the use of said weapon that he was then armed with, at the
person of [Victor], thereby inflicting mortal gunshot wound on the fatal
part of the latter's body which directly caused his death, to the damage
and prejudice of the heirs of said victim; furthermore, there being
present an aggravating circumstance in that the weapon used in the
commission of the crime is an unlicensed firearm.4

IN CRIMINAL CASE NO. 18498

That on or about October 31, 2001, in the City of Zamboanga,

Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, armed with a handgun, by means of treachery
and with intent to kill, did then and there willfully, unlawfully and
feloniously, suddenly and without any warning, assault, attack and
shoot with the use of said weapon that he was then armed with, at the
person of [Charlie], thereby inflicting mortal gunshot wounds on the
fatal part of the latter's body which directly caused his death, to the
damage and prejudice of the heirs of said victim; furthermore, there
being present an aggravating circumstance in that the weapon used in
t h e c o m m i s s i o n o f t h e c r i m e i s a n u n l i c e n s e d fi re a r m .
5ChanRoblesVirtualawlibrary
During the arraignment, Mercado pleaded "not guilty" to both charges.
After pre-trial, trial on the merits ensued.6

The prosecution presented several witnesses to support their cases

against Mercado. Based on the witnesses' testimonies, the killings
happened on the evening of October 31, 2011 at the residence of
Rosario Isad y Solis (Rosario) in Gemelina Drive, San Roque,
Zamboanga City. Rosario had visitors on that day because it was her
daughter Restie Ann's birthday. Among those present were her
neighbors Victor and Charlie, Analiza Sahibul (Analiza) with boyfriend
Mercado and companions Edwin Udja and a certain "Eddie". The
visitors were at the sala, sitting on the floor and singing while having
food and alcoholic drinks.7

While Rosario was at the kitchen reheating more food, she heard three
gunshots. She then went to the sala and there found Victor and Charlie;
her other visitors had left. Rosario saw Charlie still holding a glass of
tuba, while Victor's head was bowed down, like he was drunk. She saw
blood on Victor, Charlie, and the floor. She shouted, "Hay Sangre" (Oh,
blood), collapsed and lost her consciousness. She later learned that
both Victor and Charlie had died.8 In their death certificates, it was
stated that the victims died due to hemorrhage secondary to gunshot
wounds.9

Witnesses Rosario and Analiza identified in court Mercado as the same

"Bong" who was with them on October 31, 2011. Analiza further
identified Mercado as the person who shot Victor and Charlie. She
claimed that no fight or altercation ensued between Mercado and his
victims before the shooting. Mercado also did not say anything before
he fired gunshots at them.10

The victims' deaths were reported to the Sta. Maria Police Station by
their sister at about 11:00 p.m. on October 31, 2001. Among the
policemen who proceeded to the crime scene was Senior Police Officer
3 Fernando Gregorio, who claimed to have seen the victims with
gunshot wounds on their faces. Victor had a gunshot wound on his right
nostril, while Charlie had gunshot wounds on both eyeballs.11 Prior to
their demise, Victor and Charlie worked as carpenters. Victor was
married to one Rowena and had one child, while Charlie was married to
one Gigi, with whom he had two children.12

To refute the prosecution's claims, the defense presented two

witnesses, namely Mercado and his father, Carlos Mercado y Torres.13
Mercado denied material points in the testimonies of the prosecution
witnesses, particularly: first, knowing prosecution witness Analiza;
second, being at Rosario's residence on October 31, 2001; and, third;
shooting Victor and Charlie.14 The defense claimed that on the evening
of October 31, 2001, Mercado was at his family's home in Barangay
Tetuan,15 then to his father's home that was also within the area. By
9:00 p.m., he was back to his house, where he then slept together with
his wife and four children. The following day, he worked at his father's
shop in Sta. Catalina, Zamboanga City, where he painted motor
vehicles. Mercado did not know of any reason why Rosario and Analiza
would falsely testify against him and implicate him in the killings.16

On March 28, 2011, the RTC rendered its joint Decision,17 with
dispositive portion that reads:
WHEREFORE, the Court finds accused GILBERT MERCADO y
CABUCOS GUILTY beyond reasonable doubt, as principal, of the
crimes of Murder charged in Criminal Case No. 18497 and Criminal
Case No. 18498, with the aggravating circumstance in both cases of
use of an unlicensed firearm, and SENTENCES said accused as
follows:chanRoblesvirtualLawlibrary

1. In Criminal Case No. 18497 for Murder, in connection with the

untimely death of VICTOR DULAP y VARGAS, to suffer the penalty of
RECLUSION PERPETUA and its accessory penalties, without eligibility
for parole; to pay the heirs of Victor Dulap y Vargas Php 75,000.00 as
indemnity for his death; Php 75,000.00 as moral damages; Php
50,000.00 as exemplary damages; Php 30,000.00 as temperate
damages in lieu of actual damages and to pay the costs; and

2. In Criminal Case No. 18498 for Murder, in connection with the

untimely death of CHARLIE DULAP y VARGAS, to suffer the penalty of
RECLUSION PERPETUA and its accessory penalties, without eligibility
for parole; to pay the heirs of [Charlie] Dulap y Vargas Php 75,000.00
as indemnity for his death; Php 75,000.00 as moral damages; Php
50,000.00 as exemplary damages; Php 30,000.00 as temperate
damages in lieu of actual damages and to pay the costs.

SO ORDERED.18ChanRoblesVirtualawlibrary
Upon appeal, the CA affirmed with modification the RTC's judgment.
The CA affirmed Mercado's conviction for two counts of murder;
however, it ruled that the ciggravating circumstance of use of an
unlicensed firearm was wrongly considered by the RTC. It explained:
The aggravating circumstance must be proved with equal certainty as
the commission of the crime charged. The prosecution is burdened to
prove that [Mercado] used an unlicensed firearm to perpetrate the
crime of murder. Unfortunately, the prosecution failed to discharge such
burden. It has offered no documents which would prove such allegation
when it could have easily secured a certification from the Philippine
National Police to the effect that no firearm license was issued to
[Mereado] to possess and carry the gun used in the killing.19 (Citation
omitted)
Given the prosecution's failure to establish the aggravating
circumstance, the CA likewise modified the amount of damages due
the victims' heirs, through the deletion of the award of exemplary
damages. Thus, the dispositive portion of its Decision dated November
29, 2013 reads:
WHEREFORE, premises considered, the appeal is DENIED. The
appealed joint Decision dated March 28, 2011 of the [RTC], Branch 16
of Zamboanga City, in Criminal Case Nos. 18497 and 18498 is hereby
AFFIRMED with modification as to the damages awarded, such that
[Mercadoj is ORDERED to pay the heirs of Victor Dulap y Vargas, in
Criminal Case No. 18497, the following: 1) Moral damages of
P75,000.00; 2) Civil indemnity of P75,000.00[;] and 3) Temperate
damages in the amount of P30,000.00. Moreover, he is ORDERED to
pay the heirs of Charlie Dulap y Vargas, in Criminal Case No. 18498,
the following: 1) Moral damages of P75,000.00; 2) Civil indemnity of
P75,000.00[;] and 3) Temperate damages of P30,000.00.

SO ORDERED.20ChanRoblesVirtualawlibrary
Hence, this appeal.

Upon review, the Court finds the appeal bereft of merit.

In challenging his conviction, Mercado's arguments delve primarily on

the matter of the prosecution witnesses' account that he was
responsible for the shooting of the deceased brothers, Victor and
Charlie. Particularly, he maintained that the prosecution failed to prove
the identity of the victims' assailant. He specifically questioned the
credibility of witness Analiza and the truth of her accusations against
him.

These arguments of Mercado fail to persuade the Court to rule on his

acquittal. First, it is a settled doctrine that "factual findings of the trial
court, its assessment of the credibility of witnesses and the probative
weight of their testimonies and the conclusions based on these factual
findings are to be given highest respect."21 The Court considers the
RTC's "unique position in directly observing the demeanor of a witness
on the stand. From its vantage point, the trial court is in the best
position to determine the truthfulness of witnesses."22 Thus, the Court
"accords great respect and even finality to the findings of credibility of
the trial court, more so if the same were affirmed by the CA, as in this
case."23 Although jurisprudence cites certain exceptions to this
doctrine, none of these exceptional circumstances attend the present
case.24
In addition to the foregoing, jurisprudence tells us that where there is no
evidence that the witnesses of the prosecution were actuated by ill
motive, it is presumed that they were not so actuated and their
testimony is entitled to full faith and credit.25 It bears stressing that the
defense failed to present any possible reason for Analiza, Rosario, and
the other prosecution witnesses to wrongly implicate Mercado in the
crimes. The prosecution's case against Mercado was not even
weakened by the mere fact that he was the lone accused sitting on the
prisoners' bench at the time he was identified by prosecution witnesses
inside the courtroom during hearings. The prosecution witnesses
sufficiently explained in court how they came to know of Mercado, and
their degree of familiarity with him, especially Analiza who was his
girlfriend.26

Given the credibility of the prosecution witnesses and their testimonies,

as against the denial and alibi presented by the defense, there is no
reason for the Court to reverse the conviction of Mercado. His denial
and the alibi that he was at some other place at the time the shootings
happened failed to sufficiently support his plea for an acquittal.
Jurisprudence holds that for alibi to prosper, it is necessary that the
corroboration is credible, the same having been offered preferably by
disinterested witnesses.27 The defense failed in this regard, as only the
testimony of Mercado's father was presented to substantiate his claim.
More importantly, the Court has emphasized in a line of cases that the
appreciation of a claim of alibi shall be guided by the following
parameters:
For the defense of alibi to prosper, "the accused must prove (a) that he
was present at another place at the time of the perpetration of the
crime, and (b) that it was physically impossible for him to be at the
scene of the crime" during its commission. "Physical impossibility refers
to distance and the facility of access between the situs criminis and the
location of the accused when the crime was committed. He must
demonstrate that he was so far away and could not have been
physically present at the scene of the crime and its immediate vicinity
when the crime was committed."28 (Citations omitted)
Such physical impossibility was not established in this case, given the
RTC's finding that Barangay Tetuan, where Mercado claimed to be at
when the killings happened on the evening of October 31, 2001, was a
mere seven kilometers away from Barangay San Roque. As the Court
ruled in People v. Adallom29 "denial and alibi are self-serving negative
evidence; they cannot prevail over the spontaneous, positive, and
credible testimonies of the prosecution witnesses who pointed to and
identified the accused-appellant as the malefactor."30

As to the penalties imposed and damages awarded, the CA correctly

affirmed the pronouncement that Mercado was ineligible for parole, and
in deleting the award of exemplary damages. Section 3 of Republic Act
No. 934631 provides that "[pjerson convicted of offenses punished with
reclusion perpetua, or whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for parole under
Act No. 4103, otherwise known as the Indeterminate Sentence Law, as
amended." Exemplary damages, on the other hand, may be granted
under Article 2230 of the Civil Code when the crime was committed
with one or more aggravating circumstance.32 Although there are
instances when it may be granted despite the absence of any
aggravating circumstance,33 the circumstances attending the present
case fail to warrant an award.

Several modifications, however, need to be effected on the other

damages. The award of civil indemnity should be reduced from
P75,000.00 to P50,000.00, consistent with prevailing jurisprudence.34
Considering that no aggravating circumstance was found to attend the
subject killings, the award of moral damages is also decreased to
P50,000.00.35 The amount of temperate damages is likewise reduced
from P30,000.00 to P25,000.00.36 Further to these, interest at the rate
of six percent (6%) per annum is imposed on all damages awarded, to
be computed from the date of finality of judgment until full payment.37

WHEREFORE, the Decision dated November 29, 2013 of the Court of

Appeals in CA-G.R. CR-HC No. 00941-MIN is AFFIRMED with
MODIFICATION in that the damages that accused-appellant Gilbert
Mercado is ordered to pay the heirs of Victor Dulap y Vargas are as
follows: (1) civil indemnity of P50,000.00; (2) moral damages of
P50,000.00; (3) temperate damages of :P25,000.00; and (4) interest on
all damages at the legal rate of six percent (6%) per annum from the
date of finality of this judgment until full payment.

Similarly, the damages that accused-appellant Gilbert Mercado is

ordered to pay the heirs of Charlie Dulapy Vargas are as follows: (1)
civil indemnity of P50,000.00; (2) moral damages of P50,000.00; (3)
temperate damages of P25,000.00; and (4) interest on all damages at
the legal rate of six percent (6%) per annum from the date of finality of
this judgment until full payment.

SO ORDERED.chanroblesvirtuallawlibrary

x--x

[G.R. Nos. 132635 & 14387275. February 21, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAMBERTO

VELASQUEZ, accused-appellant.
DECISION
MENDOZA, J.:

This is an appeal from the decision,[1] dated February 12, 1998, of the
Regional Trial Court, Branch 59, Angeles City, convicting accused-
appellant Lamberto Velasquez of (1) acts of lasciviousness committed
against his granddaughter Aira Velasquez and sentencing him to suffer
imprisonment from 12 years and 1 day of reclusion temporal minimum,
as minimum, to 17 years of reclusion temporal medium, as maximum,
and to indemnify Aira Velasquez in the amount of P30,000.00; and (2)
rape of his stepdaughter Mary Joy Ocampo and sentencing him to
suffer the penalty of death and to indemnify Mary Joy Ocampo in the
amount of P50,000.00.

In another case for acts of lasciviousness, accused-appellant was

acquitted, while two other ones, also for acts of lasciviousness, were
dismissed by the court for lack of jurisdiction.

In Criminal Case No. 97-307, it was alleged

That sometime in the month of April, 1997, Brgy. Dau, Municipality of

Mabalacat, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being
the grandfather of the complainant, with lewd design and taking
advantage of the innocence and tender age of the victim, did then and
there willfully, unlawfully and feloniously commit acts of lasciviousness
upon the person of AIRA G. VELASQUEZ, a girl of 2 years of age, by
inserting his finger into Airas vagina, by means of force and against the
will of the said complainant.

ALL CONTRARY TO LAW.[2]

In Criminal Case No. 97-308, the charge was

That sometime in the month of October, 1994, in Brgy. Dau, Municipality

of Mabalacat, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being
the stepfather of the complainant, with lewd design and taking
advantage of the innocence and tender age of the victim, did then and
there willfully, unlawfully and feloniously commit acts of lasciviousness
upon the person of MARY JOY D. OCAMPO, then 13 years old, by
inserting his finger into Mary Joys vagina, by means of force and
against the will of the said complainant.

ALL CONTRARY TO LAW.[3]

In Criminal Case No. 97-309, it was alleged

That sometime in the month of April, 1997, in Brgy. Dau, Municipality of

Mabalacat, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being
the stepfather of the complainant, with lewd design and taking
advantage of the innocence and tender age of the victim, did then and
there willfully, unlawfully and feloniously commit acts of lasciviousness
upon the person of MARY JOY D. OCAMPO, a girl of 16 years of age,
by then and there kissing her, caressing and fondling her private parts,
by means of force and against the will of the said complainant.

ALL CONTRARY TO LAW.[4]

In Criminal Case No. 97-310, it was recited

That sometime in the month of March, 1997, in Brgy. Dau, Municipality

of Mabalacat, Province of Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, being
the grandfather of the complainant, with lewd design and taking
advantage of the innocence and tender age of the victim, did then and
there willfully, unlawfully and feloniously commit acts of lasciviousness
upon the person of KIMBERLY O. VELASQUEZ, a girl of 2 years of age,
by inserting his finger into Kimberlys vagina, by means of force and
against the will of the said complainant.

ALL CONTRARY TO LAW.[5]

In Criminal Case No. 97-311, it was alleged

That sometime in the month of October, 1994, in Brgy. Dau, Municipality

of Mabalacat, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being
the stepfather of the complainant, with lewd design and taking
advantage of the innocence and tender age of the victim, did then and
there willfully, unlawfully and feloniously have carnal knowledge with
one MARY JOY D. OCAMPO, then 13 years old, by means of force and
against her will and consent.

ALL CONTRARY TO LAW.[6]

Accused-appellant pleaded not guilty to the charges against him,[7]

whereupon the cases were consolidated and jointly tried.

The prosecution presented Mary Joy Ocampo, Angelina Velasquez,

Ma. Regail Velasquez, Mary Grace Velasquez, Dr. Edwin Manson, and
NBI medico-legal officer Dr. Dominic Aguda as witnesses. On the other
hand, the defense presented accused-appellant, Adelaido Velasquez,
Sonia Velasquez, Mario Manarang, Rochelle Velasquez, Renato Cruz,
and Roberto Velasquez as its witnesses.

The evidence for the prosecution is as follows:

Accused-appellant Lamberto Velasquez married Caridad Guevarra on

March 14, 1965 and begot six children by her, namely, Randy, Rochelle,
[8] Regail, Ranold, Renel,[9] and Ryan. During their marriage, he lived
in common-law relation with Dolores Cabinan, by whom he had five
children, namely, Robert, Rhea,[10] Roan, Roel, and Judan. He lived
with Dolores and their children for more than eight years in a house
which they rented from Eladio Dungca.[11]
After Dolores died in 1984,[12] accused-appellant lived in common-law
relation with Eladios married daughter, Angelina.[13] Angelina already
had three children by her husband Roberto Ocampo, namely, Mary
Grace, Mary Joy, and Edward.[14] She begot two more children by
accused-appellant, named Raymond and Raygel. In 1987, accused-
appellants wife, Caridad, died of cancer.[15] On November 8, 1989,
accused-appellant married Angelina Dungca[16] and brought his
children by Caridad and Dolores to live with them in Angelinas three-
bedroom house at 5069 New York Street, Don Cornelio, Dau,
Mabalacat, Pampanga.[17]

In October 1994, Mary Joy Ocampo, then 13 years of age, slept in a

room she shared with accused-appellant, her mother Angelina, and her
two half-brothers, Raygel, 12, and Raymond, 5. When she woke up in
the morning, she found accused-appellant beside her on the floor, her
mother having left for the market. Accused-appellant kissed her on the
mouth and the breasts. Then he raised her shirt, pulled down her shorts
and underwear, and kissed her private parts. Afterward, accused-
appellant inserted his middle finger into Mary Joys vagina. Mary Joy felt
a sharp pain and tried to resist by kicking accused-appellant, which
made the latter remove his finger although he continued kissing her.
Accused-appellant then left, but not before warning her to keep quiet
and not to tell anyone what he had done to her.[18]

Mary Joy ran to the bathroom and examined herself. Her underwear
had bloodstains, and her vagina was bleeding. She felt pain when she
washed herself. Her mother returned as she was about to go to school,
but because of fear of accused-appellant she said nothing.[19]

Two weeks later, still in the month of October, while Mary Joy was
watching television alone in the living room, accused-appellant
approached her and, though she tried to evade him, he succeeded in
forcing her to their room. He lowered her shorts and underwear, raised
her shirt and bra, and started kissing her. Then he inserted his middle
finger into her vagina and later had sexual intercourse with her. Mary
Joy cried out in pain, prompting him to stop, although he continued
kissing and fondling her.[20]
Up to April 1997, accused-appellant continuously molested Mary Joy,
sometimes forcing her to masturbate him and at other times licking her
vagina.[21]

Regail Velasquez, accused-appellants daughter by Caridad, has a

daughter named Aira. On April 16, 1997, at 3 oclock in the afternoon,
while Regail was folding clothes, Aira walked into the room crying. Aira
complained that her grandfather did something to her, which she
demonstrated by opening her right leg and moving one of her right
fingers toward her vagina.[22]

Regail did not want to believe her daughter and thought that her father
was just joking with the latter. However, Aira started to cry. In the days
that followed, she noticed that Aira complained of pain in her vagina
while taking a bath. When Regail asked her why her vagina hurt, Aira
said it was because of the things her grandfather had been doing to her
vagina, showing her mother what had been done to her.[23]

On April 28, 1997, Regail noticed pus coming out of Airas vagina. She
also noticed that her daughter was running a fever, and that her vagina
was red and swollen. She took Aira to Dr. Lydia Buyboy, a private
physician, who told her that her daughter had lacerations in her vaginal
area and that she had probably been fingered. However, the doctor
declined to give a medical certificate as she did not want to get
involved in any case.[24]

Regail went home and told her stepmother everything. Angelina cried
as she could not believe what she had been told. Remembering that a
similar thing had happened to her sister-in-laws daughter, Regail talked
to Mary Grace.

Mary Grace Ocampo Velasquez, Angelinas daughter, married Ranold

Velasquez, accused-appellants son by Caridad and Regails brother.
Mary Grace testified that she had been molested by her father when
she was nine years old. She recalled when, as a new couple, Angelina
and accused-appellant spent the night at an aunts house in San
Fernando, Pampanga. Mary Grace was with them. According to Mary
Grace, accused-appellant went to her side, raised her clothes, and
fondled her breasts. His hands went lower. She was unable to resist
accused-appellants advances because of his strength and threats. To
prevent a recurrence of the event, Mary Grace moved out of their house
and went to live with her aunt in Angeles City.[25] Kimberly was around
Airas age, and Regail remembered hearing that pus had also come out
of the childs vagina. When she told her about Dr. Buyboys findings,
Mary Grace lost no time and took Kimberly to Dr. Buyboy, who made
the same findings.[26]

That evening, Mary Grace told her husband Ranold about the doctors
examination and findings. But they did not know what to do. They could
not talk to accused-appellant as he was always drunk and they were
afraid of him.[27]

On April 30, 1997, a despedida was held for Angelinas sister Loida
Kellow, who was leaving for the United States. On that occasion, Regail
told her aunt about Airas and Kimberlys ordeal. Angelina was brought
in. They also called Mary Joy who, after drinking beer, began to tell
everything. Mary Grace and Regail were summoned, and eventually
they pieced together accused-appellants pattern of abuse. They
decided to file a case against him.

Early the next morning, Angelina and Loida went to the police station to
make a report. They then went back to the house, fetched the children,
and brought them to Dr. Lydia Buyboy for medical examination.
However, Dr. Buyboy refused to examine the children. They next went to
the Mabalacat District Hospital. Meeting the same rejection, they went
to the Department of Social Welfare and Development (DSWD), where
they obtained the assistance of a certain Mrs. Dimabuyu. They
proceeded to the Ospital ng Angeles where, with Mrs. Dimabuyus help,
they were able to prevail on Dr. Edwin Manson to conduct a physical
examination of Aira, Kimberly, and Mary Joy. However, Dr. Manson told
them that Sige, titingnan ko sila pero walang magandang resulta akong
maibibigay sa inyo.[28]

After the examination, they went home. Accused-appellant was no

longer there. They gathered their things and, with their relatives,
checked in at the Monte Carlo Hotel in Dau, Mabalacat. There were
over 40 of them. They went back to the Mabalacat Police Station and
gave their statements.[29]
They stayed at the Monte Carlo Hotel for over four days. When they
returned home, accused-appellant had not returned.

On May 9, 1997, at Loidas prompting, they went to the National Bureau

of Investigation (NBI) for another physical examination. NBI medico-
legal officer Dr. Dominic Aguda reported the following findings on Aira
Velasquez:

GENERAL PHYSICAL EXAMINATION: (Aira Velasquez)

Height: 82 cms. Weight: _____
Fairly nourished/developed, conscious, coherent, ambulatory subject
Breasts - underdeveloped, immature
No extragenital physical injury noted on the subject.
GENITAL EXAMINATION:
Pubic hair - absent; Labia majora and minora, underdeveloped,
coaptated; Hymennal opening - barely admits the tip of the small finger
Hymen - short, thin, with old healed incomplete lacerations at 11 and 5
oclock position, corresponding to the walls of a clock; Fourchette-
classically V-shaped.
CONCLUSIONS:
1. No evidence of extragenital findings noted on the subject at the time
of examination.
2. Genital findings compatible with penetration of an object, on or about
the alleged date of commission.[30]

On the other hand, Mary Joy Ocampos medical examination yielded

the following results:

GENERAL PHYSICAL EXAMINATION: (Mary Joy Ocampo)

Height: 410 Weight: 90 lbs.
Well developed/nourished, conscious, coherent, ambulatory subject
Breasts, developed, hemispherical, doughy, areolae, light brown, 2.0
cms. in diameter. Nipples, protruding, 0.9 cm. in diameter.
GENITAL EXAMINATION:
Pubic hair - thick, fully grown;
Labia majora and minora -coaptated, Fourchette, V-shaped, tense.
Vestibular mucosa, pinkish. Hymen-short, thin, with old healed
lacerated wound complete at 11, 6 oclock; incomplete at 4, 9 oclock
position, corresponding to the face of a clock. Hymenal orifice - admits
a tube, 2.0 cms. in diameter with slight resistance. Vaginal walls -
moderately tight. Rugosities - deep
CONCLUSIONS:
1. No extragenital physical injuries noted on the subject at the time of
examination.
2. The above described genital findings are compatible with sexual
intercourse with man, on or about the alleged date of commission.[31]

The defense then presented the following evidence:

In 1965, accused-appellant worked as a photographer/laboratory

technician in the Audio Visual American Company at Clark Air Field. In
August 1967, as a result of a reduction of the labor force, he was forced
to leave the company and thereafter worked as a jeepney driver until
1982 when he was reinstated.[32] In 1988, he was transferred to the
Department of Defense Police, with the rank of major, earning P560.00
a day. He worked at Clark Air Field in January 1991.[33] At that time, he
was living with Angelina. They earned a living as fish dealers while
receiving financial help from relatives abroad.[34]

Accused-appellant remembered having met Angelina Dungca for the

first time in the middle of 1984. Toward the end of that year, he started
courting her, because he thought that her marriage was void as it had
been performed by a barangay captain. It was only when he was
already detained at the Angeles City Jail that he asked his brother to
verify the legal status of Angelina Dungcas previous marriage.[35]

Accused-appellant denied the allegations against him.[36] He said

there were always several people in their house at any time, and so it
was impossible for him to have an opportunity to molest any of the
complainants.[37]

Accused-appellant believed that Mary Joy had accused him because

he always noticed whenever she came home late and scolded her.[38]
As for Mary Grace Ocampos complaint, accused-appellant claimed he
was in fact the one who caught Kimberly playing with her organ and
that he reported this to Kimberlys parents.[39] Accused-appellant
believes that Regail filed the complaint against him because he had
scolded her and punished her when she went out on a date with a
married man, and again when she went out with her cousin after she
had married Meryll Robertson.[40] As to Roan, accused-appellant
claimed he never molested her.[41] Of his granddaughter Aira,
accused-appellant said:[42]

COURT:

How about this Aira, the daughter of Regale Velasquez, did you take
care of your granddaughter Aira?

A Yes, sir. Si Aira ay nagpunta sa amin noong galing siya sa mga auntie
niya sa Mabalacat at ang nanay niya sometimes in January dahil
pakakasal nga siya sa Amerikano. Noong napunta sa amin si Aira, si
Aira ay isang maldita at lumalaban ng bata. Madaldal ang batang iyan.
Ano man ang gawin mo sa kanya marunong nang magsinungaling.
Kunin niya o mo ang pera at tanungin mo kung sino ang kumuha ng
pera, ang sasabihin niyan si Tatay. Paluin mo maski hindi ikaw ang
kumuha ng pera, ang sasabihin si tatay. Paluin mo maski hindi ikaw ang
pumalo sasabihin niyan si Tatay. Pero may insidenteng nangyari diyan
noong nagdumi siya sa labas, wala siyang panty. Sabi ko, pumasok ka
sa loob at mag-panty ka dahil maraming sasakyang dumadaan diyan.
Umasta siyang paganoon. Pinalo ko siya ng flies wiper (sic).

COURT:

That was the reason why she pointed to you?

A Maari po. Hindi lang po iyon. Noong sinasawata kong lumalaban

siyang paganoon, sabi ko pumasok kat mag-panty, kinuha ko ang
lighter. Sabi ko, susunugin ko iyan pekpek mo kako. Lumalaban pa at
pinalo ko. Doon tumakbo siyang umiiyak.

Q And you did what you threatened?

A No, sir. Pinalo ko lang ng flies wiper (sic).

Q And Aira was then only less than two (2) years old?

A Opo. Madaldal na po iyan maski bata pa.

On April 30, 1997, during Loida Kellows despedida, he was drinking
with his friends when he developed a headache and decided to sleep.
At around 10 oclock in the evening, he was awakened by his son Renel
who gave him glass of bitter liquid to drink. The drink contained
sleeping pills.[43] After taking one sip, he set it aside. When he woke
up the next morning, he looked for his family, but they were not around.
He got home at 8 oclock in the evening, but there was still no sign of
them.[44]

The following day, he went to Manila. He pawned his watch and ring
and bought a ticket on the Super Ferry 10. At 9 oclock that evening, he
sailed for Cebu and stayed with his eldest son, Rolando Velasquez.[45]

Three weeks later, he learned of the cases filed against him from the
newspapers and television. However, because he had no job and no
money, he was unable to return to Pampanga to clear his name. He was
found in Cebu and arrested in July.[46]

Accused-appellants younger brother, Adelaido Velasquez, a teacher by

profession, testified that accused-appellant Lamberto Velasquez is a
man of good repute and moral character. They respect and obey him.
[47]

Sonia Velasquez, a younger sister of accused-appellant, described the

latter as a brave and strict man with a loud voice. She also testified that
he is a karate instructor, and could hurt another by merely holding him.
According to her, Angelina Dungca had disclosed to her and to
Adelaido accused-appellants abuses, but she never got around to
confronting him.[48]

Rochelle, accused-appellants daughter by his first wife, also described

her father as a disciplinarian. She testified that while her father was still
married to her mother Caridad, he divided his time between her mother
and Dolores. When Dolores died, her father lived with Angelina Dungca
but occasionally visited her mother Caridad.

She said that her sister Regail had told her what accused-appellant had
done to Aira. Her brother Ranold Velasquez and sister-in-law Mary
Grace Velasquez also told her that Kimberly had been molested by
their father. Angelina and Loida then suggested that their father should
be killed. As her brothers Ranold, Renel, and Roberto did not agree,
Angelina and Loida decided to leave the house and escape from
Lamberto Velasquez. [49]

Renato Cruz, Rochelles husband, testified that, from the window in their
house, he saw accused-appellant being given a drink containing a
sleeping pill. He also testified that Loida and Angelina wanted accused-
appellants children to cover their fathers mouth with a pillow while he
was asleep, but they did not have the courage to do so.[50]

Roberto Velasquez, another son of Lamberto Velasquez, also testified

for his father, saying that her aunt Loida ordered his brothers to kill their
father but Renel did not agree and suggested instead to give him
sleeping tablets.[51]

Mario Manarang, a barangay councilman of Dau, Mabalacat,

Pampanga and a long-time friend and neighbor of Lamberto
Velasquez, testified that he used to play cards and mahjong almost
everyday after lunch with the Velasquez family. He admitted having
asked Angelina Velasquez to have the cases dismissed and to settle
things peacefully, but the latter refused. He was not familiar with the
former women in accused-appellants life, only with Angelina, and
admitted that, though he gambled with accused-appellant almost
everyday, he was not very familiar with his friends family life.[52]

On April 14, 1998, the trial court rendered a decision,[53] the

dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as

follows:

1. In Criminal Case No. 97-310, for insufficiency of evidence, the

accused is hereby ACQUITTED of the crime charged in the Complaint;

2. Criminal Cases No. 97-308 and Criminal Case No. 97-309 are hereby
DISMISSED for lack of jurisdiction;

3. In Criminal Case No. 97-307, the accused is found GUILTY beyond

reasonable doubt of the crime of Acts of Lasciviousness and is hereby
sentenced to suffer imprisonment ranging from twelve (12) years and
one (1) day of reclusion temporal minimum as minimum to seventeen
(17) years of reclusion temporal medium as maximum;

4. In Criminal Case No. 97-311, the accused is found GUILTY beyond

reasonable doubt of the crime of Incestuous Rape and is hereby
sentenced to suffer the supreme penalty of DEATH.

Accused Lamberto Velasquez is further ordered to indemnify the victim

Mary Joy Ocampo in Criminal Case No. 97-311 the sum of P50,000.00
and Aira Velasquez in Criminal Case No. 97-307 the sum of P30,000.00.

For review in these proceedings, therefore, is the trial courts decision in

Criminal Case No. 97-307 for acts of lasciviousness against accused-
appellants granddaughter Aira Velasquez, and in Criminal Case No.
97-811 for rape against his stepdaughter Mary Joy Ocampo. Accused-
appellant assigns the following errors as having been committed by the
trial court:

I The trial court erred in denying the accused of his right to preliminary
investigation.

II. The trial court erred in admitting the testimony of Regail Velasquez
even if it is hearsay evidence and polluted testimony.

III. The trial court erred in holding there was rape on October, 1994 and
erred in giving credibility to Mary Joy Ocampos testimony despite her
unbeli[e]vable and inconsistent testimonies.

IV. The trial court erred in not giving credence to the testimonies of
Lamberto Velasquez, Adelaido Velasquez, Sonia Velasquez, Mario
Manarang, Roselle Velasquez-Cruz, Renato Cruz and Roberto
Velasquez.

First. Accused-appellants claim that he was deprived of the right to a

preliminary investigation deserves scant consideration. As the Solicitor
General points out in his brief for the appellee:

It is an established jurisprudence that the issue of lack of or a defective

preliminary investigation should be raised before or during trial and
such statutory right to a preliminary investigation is deemed waived
when appellant, as in this case, failed to claim it before plea (People vs.
Paras, 56 SCRA 248).

Moreover, in appellants arguments, it is unclear whether this alleged

motion for preliminary investigation which was denied by the trial court
was anchored on the lack of it or merely a defect thereon or a mere
motion for reinvestigation. When it does not appear from the record that
a preliminary investigation was not granted the accused, it must be
presumed that the proceedings in the trial court were in accordance
with law. So that where no objection has been made at the trial,
appellant must be taken to have waived his right to a preliminary
investigation if in fact he was not given the benefit thereof. Failing to
raise the issue of lack of preliminary investigation during the trial,
appellant is now estopped to raise this issue (for) the first time on
appeal. At any rate, absence of preliminary investigation merely affects
the regularity of the proceedings but does not affect the trial courts
jurisdiction or impair the validity of the information.[54]

Indeed, under Rule 112, 7(3) of the Revised Rules of Criminal

Procedure, requests for preliminary investigation must be made to the
trial court within five days from the time the accused learns of the filing
of complaint or information. Here, the complaints against accused-
appellant were filed in the Regional Trial Court of Angeles on May 22,
1997.[55] By his own admission, accused-appellant learned of the filing
thereof shortly thereafter, when he heard of the same on television and
read it in the newspapers in Cebu City. Yet, he did not ask for
preliminary investigation until September 3, 1997. The trial court,
therefore, correctly denied his motion, thus:

[I]t appearing that the accused was indeed aware of the filing of the
charges against him several months ago before the Office of the City
Prosecutor and that instead of participating in the said preliminary
investigation, he went into hiding and [was] arrested only recently after
the cases were filed against him several months ago, the accuseds
motion for reinvestigation and to defer arraignment was denied in open
court.

Upon being arraigned, the accused assisted by his counsel pleaded

NOT GUILTY to all the charges filed against him.[56]
The case of People v. Rolito Go,[57] which accused-appellant invokes,
is different because there the accused asked the public prosecutors
office for preliminary investigation on the same day the information for
murder was filed in the trial court. In contrast, accused-appellant
Lamberto Velasquez waited until he was arrested and brought to court
before invoking his right to a preliminary investigation. He is obviously
late in invoking his right. The presumption is that an investigation had
been held but accused-appellant could not be found. Failing to invoke
his right to a preliminary investigation during the trial, accused-
appellant is deemed to have waived the same.

Second. The trial court based its conviction of accused-appellant for

acts of lasciviousness against Aira Velasquez on the testimony of Regail
Velasquez, Airas mother, who testified on what her daughter had told
her. Aira herself was not presented in court, being a mere child of two
and a half years old.

To aapreciate Regails testimony, the relevant portion of the same should

be quoted:

Q In the month of April 1997 at about 3:00 oclock in the afternoon, do

you recall where were you?

A Opo.

Q Where were you then on that time and day?

A Nasa kuwarto po ako nagtutupi ako ng sinampay.

Q While you were doing all those things, do you recall of any unusual
incident that came into your personal knowledge?

A Opo. Umakyat po sa kuwarto si Aira. Umiiyak po siya na nagsasabi

siya sa akin na inaano po siya ng tatay ko, minomolestiya.

Q What exactly did you notice when Aira went up to your room and
reported this matter to you?

A Sinabi niya sa akin kung paano inaano ng tatay ko. Binukaka niya
iyong isa niyang paa tapos inaano ang daliri sa ari niya.
Q What do you mean by inaano?

A Tinutusok ang daliri.

(Witness demonstrating how it was done by exactly opening her right

foot and her finger pointing to her vagina and doing to and fro
movement)

PROS. PORNILLOS:

You mean to tell us, she demonstrated how the act was done?

A Yes, sir.

Q Will you please stand up and demonstrate how Aira demonstrated

what was done to her?

A Ganoon nga po.

(Witness demonstrating by raising her right foot with the right finger
pointing to her sex organ doing to and from movement towards her
vagina)

Q Did you come to know from her who was doing that?

A Opo.

Q What did you receive from Aira was the one who was doing that?

A Tatay ko daw po. Ang tawag niya sa tatay ko ay tatang.

....

Q Who is this Tatay or Tatang you are referring to?

Siya po, si Lamberto Velasquez.

(Witness pointing to Lamberto Velasquez)

COURT:

When was that when your daughter came to you?

WITNESS:

April po iyon. April 16, 3:00 oclock in the afternoon.

COURT:

How old was Aira then?

WITNESS:

2 years old and 4 months, po.

Q 2 years old and 4 months?

A Opo.

Q She went to you crying?

A Opo.

Q What were the exact word uttered by that Aira?

A Mama, Mama sabi niya tapos umiiyak po siya, tapos sabi ko, ninano
ka? I-tatang, i-tatang. Bakit ninanu na kang tatang sabi ko.

Q She was crying with tears flowing from her eyes?

A Opo.

Q When she uttered, Mama what did you say?

A Ninanu ka. (What happened to you)

Q What did Aira tell you?

A Si Tatang kakayan na ku pu.

INTERPRETER:

Tatang is doing something on me.

COURT:

Then what happened next?

WITNESS:

Tinanong ko siya kung ano ang ginawa sa kanya, Binukaka ang paa.

(Witness demonstrating that she slightly opened her foot and her finger
pointing to her vagina making to and fro movement)

COURT:

Then what happened next?

WITNESS:

Sinabi ko sa kanya baka niloloko ka lang, tapos umiiyak po siya.

COURT:

She was crying?

WITNESS:

Iyon nga po. Inaano daw po ng tatay ko, masakit daw ang ari niya.

Q What is the exact word?

A Masakit ang pek-pek ko. (My vagina hurts)

Q Then what did you do next?

A Hindi ko gaanong pinansin dahil baka binibiro lang siya ng tatay ko.
PROS. PORNILLOS:

After that you said you did not mind the same because you said he was
just joked upon or teased. After that April 16, 1997, what did you find
out next?

WITNESS:

Noong sumunod na iyon, araw-araw ko siyang pinapaliguan

dumadaing po siya, masakit daw ang kanyang ari, tapos tinanong ko
siya kung bakit dahil wala naman akong alam na dahilan na ikakasakit
ng ari niya. Iyon nga po laging sinasabi sa akin na inaano daw ng tatay
ko.

COURT:

Ano ang eksaktong salita ng bata.

WITNESS:

Sabi niya. I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya.

WITNESS (Interpretation)

(Tatang is doing something on me on my vagina)

COURT:

Did you ask her what her tatang did to her vagina?

WITNESS:

Opo. Ganoon din po dinemonstrate kung paano.

Q The answer, she will demonstrate?

A Opo.

Q How?
A Binuka iyong isang paa. Ginanon o.

(Witness demonstrating how it was done by slightly opening her right

foot or raising her foot and by using her right finger pointing to her
vagina with a to and fro movement)

Q What did you notice on the vagina of your daughter?

A My lumalabas na nana.

Q Did you inspect the vagina?

A Opo. Pulang-pula tapos may lumalabas na nana sa vagina.

Q When you notice this nana on the vagina of your daughter, what
action did you take, if any?

A Nilalagnat po siya noon, tapos dinala ko siya sa doctor Pinatignan ko

po siya. Dinala ko kay Dra. Lydia Buyboy Sa private doctor, po.

Q What happened at the clinic of Dra. Buyboy?

A Sinabi niya na may laceration iyong ari ng anak ko tapos may

impeksiyon po siya.[58]

As the Solicitor General contends, Airas acts and statements constitute

exceptions to the hearsay rule because they were part of the res
gestae. The inculpatory and spontaneous statements were: (1) Si
Tatang kakayan na ku pu. (Tatang (accused-appellant) has been doing
something to me.) (2) I-tatang kasi, kinayi ne pu ing pekpek ku kaya
masakit ya. (Because Tatang has been doing something to my private
part, that is why it hurts.) (3) She showed her mother her private part,
which was swollen and oozing with pus, and then she gestured, by
slightly opening or raising her right foot and using her right finger, to
show what accused-appellant had done to it.

In People v. Cloud,[59] Josephine Aguilar was at the emergency room

of a hospital to have some stitches removed from her daughter's head
when she saw a boy being carried by a man, followed by an old woman
who was shouting hysterically. The boys face was swollen and bruised
and his body covered with dry blood. The old woman, apparently the
boys grandmother, cried and repeatedly screamed, "Pinatay siya ng
sariling ama!" (He was killed by his own father.) The old woman told the
people inside the emergency room that the boy's father had beaten him
up, tied his hands, and stabbed him. On the question of the
admissibility of Mrs. Aguilars testimony, this Court ruled:

Insofar as the statements of Rufina Alconyes are concerned, they are

admissible as part of the res gestae, they having been caused by and
did result from the startling, if not gruesome, occurrence that she
witnessed; and these were shortly thereafter uttered by her with
spontaneity, without prior opportunity to contrive the same. The report
made thereof by Josephine Aguilar is not hearsay since she was
actually there and personally heard the statements of Alconyes which
she recounted in court. Her account of said statements of Alconyes are
admissible under the doctrine of independently relevant statements,
with respect to the tenor and not the truth thereof, since independent of
the truth or falsity of the same they are relevant to the issue on the
cause of the death of the victim.[60]

We hold, therefore, that Airas statements and acts constitute res

gestae, as it was made immediately subsequent to a startling
occurrence, uttered shortly thereafter by her with spontaneity, without
prior opportunity to contrive the same. Regails account of Airas words
and, more importantly, Airas gestures, constitutes independently
relevant statements distinct from hearsay and admissible not as to the
veracity thereof but to the fact that they had been thus uttered.

Under the doctrine of independently relevant statements, regardless of

their truth or falsity, the fact that such statements have been made is
relevant. The hearsay rule does not apply, and the statements are
admissible as evidence. Evidence as to the making of such statement
is not secondary but primary, for the statement itself may constitute a
fact in issue or be circumstantially relevant as to the existence of such a
fact.[61]

Accused-appellant seeks to discredit the testimony of Regail Velasquez

by attempting to prove that she is a woman of loose morals. We fail to
see, however, how proof of her past relationships with other men can
have any bearing on her credibility as a witness in her daughters trial.
As the trial court reminded accused-appellants counsel, the witness is
not the accused in this case.[62]

Regails testimony is buttressed by Dr. Agudas testimony and medico-

legal report. While he admitted that the pus in the vagina could be
caused by an infection, bad hygiene, or improper urination, he also
said the infection could have been caused by the insertion of the finger.
Dr. Aguda testified:

WITNESS:

I am referring to the findings of the hymen. Since an examination of the

hymen, it was found out that there is an incomplete laceration at 11
o'clock and 5 oclock position. Meaning that there was an object that
forcefully entered into the hymenal opening causing the incomplete
laceration.

Q: Like what?

A: Finger but not erected penis.[63]

Accused-appellant also questions the fact that when Aira was

examined on May 9, 1997, Dr. Aguda discovered an old healed
laceration, which usually indicates that the injury was inflicted more
than one month prior to the examination, whereas the date of the
alleged molestation was on April 16, 1997, one week short of a month.

This discrepancy was already explained by Dr. Aguda to the

satisfaction of the trial court. According to the doctor, the medical
classifications and periods were based on adult cases, whereas Aira
was a little child with a very small hymen, and the laceration was very
superficial. Understandably, then, the results varied slightly. [64]

The Court is not unaware of the caution to be observed when

circumstantial evidence is to be considered as inculpatory indicia in a
criminal prosecution. That is why it has spent an unusual amount of time
and effort to reflect upon all the circumstances which the lower court
accepted as an unbroken chain of events, reinforced by corroboration
and yielding a conclusion of guilt, all consonant with the requisites
therefor.[65]
But, in this case, the chain of facts cannot but produce an inference
consistent with guilt and not with innocence. It is highly unlikely that a
child of Airas age would be able to concoct such a depraved tale and
compliment it with such disturbing gestures with only the fantastic
intention of implicating her grandfather.

To sum up, the following circumstances establish accused-appellants

guilt: Regails account of her daughters words and actions, her personal
knowledge of the pus discharged from her daughters vagina and the
NBI medico-legal report confirming it, and accused-appellants bare
denials, compounded with his unexplained flight to Cebu, bringing little
more with him than the clothes on his back.[66] Taken together, these
are sufficient to convince us of the truth of the allegations against
accused-appellant.

The rule is settled that we give due deference to the observations of

trial courts on questions of credibility of witnesses since they have a
better opportunity for observation than appellate courts. For this reason,
the trial courts evaluation of testimonial evidence is accorded great
respect.[67] Aira is a two-year old child. The penalty imposable for acts
of lasciviousness against children under 12 years of age should be that
provided by R.A. 7610, which is reclusion temporal in its medium
period. Accused-appellant is Airas grandfather. His relationship to his
victim aggravates the crime, and, as provided by R.A. 7610, Section
31, the penalty shall be imposed in the maximum period when the
perpetrator is an ascendant, parent, guardian, stepparent or collateral
relative within the second degree of consanguinity or affinity. Hence, the
maximum period of reclusion temporal medium should be imposed.
Applying the provisions of the Indeterminate Sentence Law, the
minimum of the penalty to be imposed should be reclusion temporal
minimum.[68]

In Criminal Case No. 97-307, the trial court sentenced accused-

appellant to suffer a prison term ranging from 12 years and 1 day of
reclusion temporal minimum, as minimum, to 17 years of reclusion
temporal medium, as maximum, and to indemnify complainant Aira
Velasquez in the amount of P30,000.00. This is correct, and we,
therefore, affirm it.
Third. The trial court convicted accused-appellant for the rape of Mary
Joy Ocampo based on her testimony and the physical evidence
presented. Indeed, the accused may be convicted solely on the basis
of the testimony of the rape victim, if such testimony is credible, natural,
convincing, and consistent with human nature and the normal course of
things. We adhere to this principle in the case at bar.

Accused-appellant questions the credibility of Mary Joy Ocampo

because of a three-year delay in reporting the alleged rape.

Delay in reporting an incident of rape is not necessarily an indication

that the charge is fabricated.[69] In these cases, the delay was caused
by fear. It is apparent from the testimony of witnesses, both of the
prosecution and of the defense, that accused-appellant was a man to
be feared. He brooked no disobedience even from his own brothers
and sisters and was so feared that, even when his life and his freedom
were gravely threatened, nobody, not even his own brother, was willing
to wake him and confront him with the accusations. His wife, his
children, and close relatives fled their home and lived in a hotel for four
days to escape his ire.

Physically, he was intimidating. He is a black belter in karate and,

according to his own sisters testimony, he could hurt a person merely
by holding his hand. In fact, accused-appellant threatened Mary Joy
with harm if she told anyone what accused-appellant had done to her.
[70] It is, therefore, easy to see why Mary Joy kept her silence.

Accused-appellant contends that there were several inconsistencies in

the testimony of Mary Joy Ocampo. As the trial court said, however:

Similarly, Mary Joys alleged inconsistent testimonies as to whether or

not she knew Jesus Tootsie Mendoza or Robertson is inconsequential.
At any rate, Mary Joy clarified these points:

1. If this Robertson is a family name, she knew (him) as the person who
will marry her sister (p. 41, tsn, December 31, 1997).

2. As to Jesus Mendoza alias Tootsie, Mary Joy claims that she does
not know Jesus Mendoza although her mother declared that Mary Joy
knew Tootsie Mendoza. It is apparent that Mary Joy knew of a Tootsie
Mendoza, but not a Jesus Mendoza.

So, also, Mary Joys alleged inconsistent testimony as to whether her

mother was in the market or asleep in the house when she was raped is
readily explicable or reconcilable. Mary Joy testified that the first time
Lamberto inserted his finger on her sexual organ, her mother was in the
market and when appellant finally succeeded in inserting his sexual
organ into Mary Joys, nobody was at home except her other brothers
who were asleep. Evidently, in both instances, Mary Joys mother was
not in the house.[71]

Inconsistencies on minor or inconsequential matters do not impair the

essential integrity of the prosecutions evidence as a whole, nor detract
from the witnesses testimony. On the contrary, they strengthen rather
than weaken the credibility of the prosecution witnesses because they
erase the suspicion of a rehearsed testimony.[72] A rape victim cannot
be expected to keep an accurate account of her traumatic experience.
Discrepancies could be caused by the natural fickleness of human
memory.[73]

Mary Joys testimony is corroborated by medical findings of hymenal

lacerations, which the trial court found meritorious. Dr. Aguda testified
on cross examination:

ATTY. CLEMENTE:

You mentioned about this conclusion that the above description genital
findings were compatible on sexual intercourse with a man on or about
the alleged date of commission. When you said date or commission
when was that?

A As I stated earlier, the types of laceration were old and healed and it
[is] possible that those laceration[s] were made on the victim at the time
of the commission of the crime. As relayed to me it started on October
1994 up to April 1997, it is possible.

Q You mentioned that the described findings were possible with sexual
intercourse with a man and you confirmed to this Honorable court that
the most logical object that entered the female organ of Mary Jane was
the penis of a man?

A Yes an erected penis, sir.

Q In degree of compatibility, how much percent sure that it is an

erected penis that entered the female organ of Mary Joy?

A 80%, sir.

....

Q So the most probable is male organ?

A Yes, sir.[74]

On the other hand, accused-appellant merely makes a bare denial of

the charges against him. Yet, despite the fact that he had no money
and no extra clothes to bring with him for a long trip, he hastily left for
Cebu City. His only excuse was that masama ang loob ko[75] and that
he feared for his life. He did not, however, report the alleged attempt on
his life, nor did he surrender himself to the Cebu authorities when he
learned of the cases filed against him.

Accused-appellant said that there was always a large number of

people in their house, such that he would have had no opportunity to
commit the crimes charged against him.

Rape has been known to be committed in places ordinarily considered

as unlikely. The scene of the rape is not always nor necessarily isolated
or secluded. It can be committed in places where people congregate,
in parks, along the roadside, within school premises, inside an
occupied house, and even in a room where other members of the family
are sleeping. Among couples with big families who live in cramped
quarters, the presence of other members of the family is not necessarily
a deterrent to the commission of this crime.[76] In this case, it is not
impossible for the rape to have taken place inside a small room with
five occupants therein, including accused-appellant and Mary Joy.
Nor is there merit in accused-appellants claim that Angelina instigated
their children to file these cases so she can be free to marry an
American. As we have observed, it is unnatural for a parent, especially
a mother, to use her offspring as an engine of malice and expose her
daughters to the pity attached to rape victims simply for a stab at a
better life.[77] Besides, accused-appellants children are already grown
up, and Regail is not even Angelinas daughter. At the time of the trial,
Regail was 28, Mary Joy was 17, and Mary Grace, who testified on
Airas behalf and admitted she too had been molested as a child, was
20, lived in another house, and had a family of her own. It is
inconceivable that they would concoct a story of defloration and
expose either themselves or their daughters to public trial unless they
were motivated by the desire to have the culprit apprehended and
punished.[78]

Fourth. The penalty imposed by the trial court on accused-appellant in

Criminal Case No. 97-311 must be modified. Art. 335 of the Revised
Penal Code, as amended by 11 of R.A. 7659, provides in pertinent part:

The death penalty shall also be imposed if the crime of rape is

committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common-law spouse of the
parent of the victim.

The concurrence of the minority of the victim and her relationship to the
offender being a special qualifying circumstance, which increases the
penalty (distinguished from a generic aggravating circumstance which
only affects the period of the penalty), should be alleged in the
information, consistent with the constitutional right of the accused to be
informed of the nature and cause of the accusation against him.

In People v. Manggasin,[79] the information charged the accused with

the rape of his stepdaughter but the evidence showed that the accused
and the complainants mother were not married but had merely been
living in common-law relationship. The accused was convicted of
simple rape only. Thus, although a common-law husband is subject to
punishment by death in case he commits rape against his wifes
daughter, nevertheless the death penalty cannot be imposed on
accused-appellant in this case because the relationship alleged in the
information in Criminal Case No. 97-311 against him is different from
that actually proven. Accordingly, accused-appellant must be held
liable only for simple rape and sentenced to reclusion perpetua as the
proper penalty.

In this case, the information in the Criminal Case No. 97-311 alleged
that accused-appellant, who is the stepfather of the complainant,
succeeded in having carnal knowledge of the latter, who was then 13
years old. However, while it appears that accused-appellant married
Angelina Dungca on November 8, 1989 (Exh. F), the Court has serious
doubts about the validity of their marriage, considering that Angelinas
previous marriage to Roberto Ocampo, the father of Mary Joy Ocampo,
was still subsisting at that time. In fact, Mary Joy admitted that her
father Roberto Ocampo was still alive when her mother contracted her
second marriage.

As to the civil liability of accused-appellant, the Court finds that the

award of P50,000.00 for civil indemnity is in order. In addition, however,
he should be ordered to pay P50,000.00 as moral damages which
requires no proof because it is assumed that the victim has suffered
moral injuries entitling her to such an award.[80]

WHEREFORE, in Criminal Case No. 97-307, the decision of the

Regional Trial Court, Branch 59, Angeles City, finding accused-
appellant Lamberto Velasquez guilty of acts of lasciviousness and
sentencing him to suffer the penalty of imprisonment ranging from 12
years and 1 day of reclusion temporal minimum, as minimum, to 17
years of reclusion temporal medium, as maximum, and ordering him to
indemnify Aira Velasquez in the sum of P30,000.000, is hereby
AFFIRMED.

In Criminal Case No. 97-311, the decision of the same court finding
accused-appellant Lamberto Velasquez guilty of rape and sentencing
him to death is hereby MODIFIED. Accused-appellant Lamberto
Velasquez is found guilty beyond reasonable doubt of simple rape and
sentenced to reclusion perpetua and ordered to pay P50,000.00 in
moral damages in addition to the amount of P50,000.00 as civil
indemnity ordered by the trial court to be paid by him.
SO ORDERED.

x--x

[G.R. No. 129566. October 7, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL NAVARRO,

accused-appellant.
DECISION
PANGANIBAN, J.:

In rejecting this appeal, the Court reiterates the following doctrines: (1)
a retraction does not necessarily negate an earlier credible testimony;
(2) the testimony of a single witness, if positive and clear, is sufficient to
sustain a judgment of conviction, even in a charge for murder; (3) the
rule on res gestae relates to the admissibility of evidence, not to its
weight and sufficiency; (4) alleged violations of the rights against illegal
arrest and seizure are deemed waived by the appellant's failure to
assert them prior to arraignment; (5) where the killing is qualified by
treachery, which is alleged in the information, the crime committed is
murder; and (6) where the existence of the unlicensed firearm allegedly
used in the killing has not been clearly established, the charge of illegal
possession of firearm cannot be considered an aggravating
circumstance in murder.

The Case

On January 6, 1994, two Informations, one for murder[1] and the other
for violation of Presidential Decree 1866,[2] were filed at the Regional
Trial Court of Alaminos, Pangasinan against Noel Navarro. On January
19, 1994, Navarro, through Counsel Romeo L. Gutierrez, filed two
motions, one to remand the case to the provincial prosecutor for
preliminary investigation and the other to suspend the proceedings
before the court.[3] Judge Segundo B. Paz granted the motions.[4]
Thereafter, on March 3, 1994, filed against the appellant was this
amended Information for murder:[5]

"That on or about January 5, 1991, in the evening, near Enok Theater at

Poblacion, [M]unicipality of Alaminos, [P]rovince of Pangasinan, New
[sic] Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, with
treachery and evident premeditation, did then and there, wilfully,
unlawfully and feloniously shoot FERDINAND RABADON @ "BOYET"
several times which caused his instantaneous death as a
consequence, to the damage and prejudice of his heirs.

Contrary to Art. 248 of the Revised Penal Code."[6]

Affirmed, on the other hand, was this Information for violation of PD

1866:

"That on or about January 5, 1991, in the [M]unicipality of Alaminos,

[P]rovince of Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused did then and there wilfully, unlawfully
and feloniously have in his possession, control and custody one short
firearm without first securing the necessary license and permit to
possess the same and said firearm was used in the killing of Ferdinand
Rabadon.

Contrary to P.D. 1866."[7]

On April 5, 1994, appellant, assisted by his aforementioned counsel,

pleaded not guilty to the charges against him.[8] He then filed a petition
for bail. A protracted full-blown hearing on the matter then ensued,
during which the prosecution and the defense presented their
respective witnesses and documentary evidence. The petition was
denied. The trial court adopted the proceedings during said hearing
and thereafter, rendered the assailed 22-page Decision,[9] the
dispositive portion of which reads:

"WHEREFORE, in consideration of the foregoing premises, judgment is

hereby rendered declaring the accused GUILTY beyond reasonable
doubt of the crime of [m]urder as described in the Information in
Criminal Case No. 2762-A and, therefore, he is ordered to suffer the
single and indivisible penalty of reclusion perpetua. The said accused
should indemnify the heirs of the deceased in the sum of P50,000.00 as
provided for by law plus another sum of P50,000.00 for actual damages
that the mother of the victim has spent for the funeral services and
wake.
"That the illegal possession of firearm subject of the Information in
Criminal Case No. 2763-A is considered merely as an aggravating
circumstance in the commission of the crime of murder, considering
that the alleged firearm used was not recovered by the authorities and
never presented in court.

xxxxxxxxx

"SO ORDERED."[10]

Hence, this appeal.[11]

The Facts According to the Prosecution

The solicitor general narrated the People's version of the facts as

follows:

"On January 5, 1991, around 9:00 in the evening, Jose Rabago went to
Enoc Theater located at Poblacion, Alaminos, Pangasinan to view some
stationary pictures exhibited outside the theater (p. 11, TSN, May 20,
1994). When he was about to go home on board his motorcycle, he was
invited by Ferdinand Rabadon, who was drinking beer inside Adela's
Restaurant, to join him. Rabago obliged (p.12, id.).

"Later, Rabadon borrowed Rabago's motorcycle which he used in going

to the bus terminal to check if his wife had already arrived from
Zamboanga (p. 13, id.) Upon his return, Rabadon invited Rabago to
Five Doors Disco but the latter opted to go home (p. 14, id.). Rabadon,
who was still on the motorcycle holding its handle bars, offered to drive
Rabago home. (id.).

"When Rabago was about to mount the motorcycle, he was pushed by

one Ming Basila, causing him to fall on his buttocks, after which Basila
shot Rabadon twice at the back. While Rabadon was already lying
down with his leg pinned by the motorcycle, appellant shot him three
(3) times (pp. 14-15, id.).
"Rabago ran away, but after noticing that appellant and Basila [had] left
the scene, he returned and saw Rabadon dying and gasping for breath
(pp. 17-18, id.).

"Rabago saw Virgilio "Itlog" Rabadon, a policeman, to whom he

reported Rabadon's killing (pp. 19-20, id.). On January 6, 1991,
Rabago was investigated by policeman Rolando Rabadon but he said
that he did not see anything (p. 3, TSN, June 13, 1994).

"During the hearing of the case, Rabago explained that he did not
divulge the identities of the assailants for fear of his life (p. 37, TSN,
May 20, 1994). He claimed that some policemen in Alaminos,
Pangasinan [were] members of the Aguila Gang which kill[ed] people
(pp. 41-42, TSN, June 13, 1994). The gang [was] allegedly led by one
Ramon Navarro, appellant's brother.

"The National Bureau of Investigation (NBI) interrogated Rabago on

January 3, 1994, at which time, Rabago named appellant and Ming
Basila as the authors of Rabadon's killing (p. 20, TSN, June 13, 1994).

"Dr. Francisco Viray, who autopsied Rabadon's cadaver, found five (5)
gunshot wounds and concluded that the immediate cause of death
[was] "cardio-respiratory arrest; antecedent cause: brain injury and
underlying cause: gunshot wounds" (p. 11, TSN, August 8, 1994)."[12]

According to the Defense

Appellant Noel Navarro denied any participation in the killing of

Rabadon in his 16-page Brief,[13] which we quote:

"On January 5, 1991, in the evening, one Ferdinand Rabadon was shot
to death near the Enoc Theater at Poblacion, Alaminos, Pangasinan.
Almost immediately after the shooting incident, Jose Rabago reported
the incident to one policeman, Virgilio "Itlog" Rabadon, was inside a
restaurant near the Victory Liner Terminal that his (Jose Rabago)
companion was shot without him telling the policeman Virgilio "Itlog"
Rabadon who shot his companion. Policeman Rabadon responded by
going to the place pointed to by Jose Rabago, but the victim was no
longer at the place of the incident as he was brought to the hospital.
Later, Jose Rabago was investigated by policeman Rolando "Lando"
Rabadon regarding the shooting incident, but Jose Rabago, when
asked, told policeman Rolando[14] Lando Rabadon that he did not see
anything. Considering the negative result of the police investigation, no
case was filed by the police against anybody for the shooting to death
of Ferdinand Rabadon.

"Three (3) years later, on January 5, 1994, at about 8:00 o' clock in the
evening, a composite team of the National Bureau of Investigation led
by Atty. Teofilo Gallang served a search warrant and warrant of arrest to
one Ramon Navarro, brother of accused-appellant in his residence and
failing to find Ramon Navarro, the composite team of the NBI went to
the house where accused-appellant was staying where they saw him
(Noel Navarro). Accused-appellant was searched, but [nothing was
found] in his body. Accused-appellant was arrested right then and there
without any warrant of arrest shown to him by the NBI. In fact, it was
admitted that the NBI composite team at the time [had] no warrant of
arrest against accused-appellant.

"The NBI composite team boarded accused-appellant in a white van

and was brought to the house of now Congressman Hernani Braganza
in Alaminos, Pangasinan. Later, the NBI composite team went to Lucap,
Alaminos, Pangasinan to fetch Fiscal Rabina and from there, they all
proceeded to the police station of Alaminos, Pangasinan. Accused-
appellant inquired from Fiscal Rabina if there [was] a warrant for his
arrest and Fiscal Rabina simply said, sorry, my son, I cannot do
anything, okay?

"The following day, January 6, 1994, Prosecutor Rabina filed the

[I]nformation charging accused-appellant of [m]urder, x x x for
allegedly killing Ferdinand Rabadon on January 5, 1991, three (3) years
earlier, without conducting a preliminary investigation. Also filed [was]
an [I]nformation for [violation] of P.D. 1866 x x x."[15]

The defense presented three witnesses: Jose Rabago, who recanted

his previous testimony; NBI Director Teodoro Galang, who testified as to
the circumstances surrounding the arrest of the appellant without
warrant; and Noel Navarro, the appellant himself.

The Ruling of the Trial Court

The trial court found the appellant guilty of murder, based on Jose
Rabago's testimony as a prosecution witness, which it found to be
positive, credible and sufficient to support a judgment of conviction. It
ratiocinated as follows:

"Jose Rabago was positive about the identity of the killers of the victim.
He was just one (1) meter away from Ming Basila and he was facing
Ming Basila when he fell down. He saw the gun firing when it was Noel
Navarro's turn to [shoot] the victim, and he [had] already taken three
steps to [run] away towards the Philippine Rabbit Bus Station, but he
claim[ed] that he looked back.

"There is no doubt from his testimony that Jose Rabago recognized

Noel Navarro. He knew Noel Navarro when they were both students of
the Royal Carpenter Academy. [In spite] of the hour of the night, he
recognized Noel Navarro because there were three lights x x x [h]is
distance [was] just three steps away from Noel Navarro. Even assuming
that he [had] his back turned toward the accused, because he
scampered away, Jose Rabago testified that upon reaching the bus
station, he looked at the two who lingered at the scene of the shooting.
He also saw them [leave] and disappear at the corner."[16]

Rabago's recantation of his testimony as a prosecution witness was

disregarded by the court a quo in this wise:

"x x x the Court cannot find any evidence or any indications that Jose
Rabago [had] a sinister scheme to prevaricate and therefore this Court
must respect as trustworthy, and with full faith and credence, his
testimony as eyewitness for the prosecution."[17]

Citing jurisprudence, the lower court further declared that "mere

retraction by [the] prosecution witness does not necessarily deshape
the original testimony, if credible," and that " [courts] look with disfavor
upon retractions of testimonies previously given in court. The rationale
for the rule is obvious; the retraction can easily be secured from
witnesses usually through intimidation or monetary consideration."[18]

In all, the trial court convicted the appellant of murder, after finding that
the killing was qualified by treachery and merely aggravated by illegal
possession of firearms.[19]
The Assigned Errors

The appellant contends that the lower court committed the following
errors:

"1. In not considering the report of Prosecution Witness Jose Rabago to

policeman Virgilio "Itlog" Rabadon that his companion was killed, but
did not tell policeman Virgilio "Itlog" Rabadon that accused-appellant
and one Ming Basila killed the deceased, as part of the res gestae;

"2. In not considering the result of the investigation conducted by

Policeman Rolando Lando Rabadon when Witness Jose Rabago was
asked if he saw the assailant and did not mention the name of the
accused-appellant and one Ming Basila, but instead, answered he did
not see anything, as part of the res gestae;

"3. In giving credence to the testimony of witness Jose Rabago despite

the fact that he narrated three (3) versions of the incident, in his report
to the police authorities and the investigation conducted by the police
authorities later immediately after the incident, and in his testimony as a
prosecution witness and as a defense witness;

"4. In finding accused-appellant guilty beyond reasonable doubt of the

crime of murder despite serious and material inconsistencies in the
testimony of Jose Rabago, the lone witness of the prosecution who
[claimed] to have [witnessed] the killing of Ferdinand Rabadon."[20]

In sum, the defense disputes the trial court's ruling identifying appellant
as one of the authors of the crime. To resolve the appeal fully, the
following issues will be discussed: (1) credibility and sufficiency of the
prosecution evidence, (2) res gestae, (3) the defenses of denial and
illegality of arrest and (4) the characterization of the killing. In addition,
the Court will discuss the validity of the lower court's ruling that illegal
possession of firearms should be appreciated as an aggravating
circumstance in the killing.

The Court's Ruling

The appeal is devoid of merit.

First Issue: Credibility and Sufficiency of Prosecution Evidence

In the present controversy, the judge who penned the assailed Decision
did not hear all the evidence presented by the parties. In fact, three
judges handled the case: Judge Segundo B. Paz, in whose court the
Informations were filed and the evidence of the parties was heard until
August 17, 1994; Judge Leo M. Rapatalo, who took over on December
7, 1994 and resolved the petition for bail; and Judge Jules A. Mejia,
who presided over the case from February 26, 1997 onwards. Hence,
the rule granting finality to the factual findings of trial courts is
inapplicable to this case. Accordingly, the Court meticulously pored
over the records, especially the transcript of stenographic notes, but
after a careful study and deliberation, the Court finds no reason to
disturb the factual findings of Judge Mejia.

Appellant contends that the testimony of Prosecution Witness Jose

Rabago was filled with serious and material inconsistencies, allegedly
because he gave three versions of the incident. First, he did not
mention appellant's name when he reported the incident to SPO2
Virgilio Rabadon; and when asked by Patrolman Rolando Rabadon, he
said that he did not see anything. Second, he identified the appellant as
one of Rabadon's killers only when he was questioned by agents of the
National Bureau of Investigation three years after the incident. As a
prosecution witness, he maintained this assertion. Third, when
presented as a defense witness, he changed his testimony and swore
that it was not the appellant who had shot Rabadon, but a "short and
stout man."[21]

The argument does not persuade. True, Rabago did not mention the
name of the appellant when he reported the killing to both SPO2 Virgilio
Rabadon and Patrolman Rolando Rabadon;[22] however, he explained
that he was apprehensive about talking to the police, as he suspected
that some of them were members of the dreaded Aguila Gang, viz.:

"x x x x x x x x x

Q Mr. Witness, when you were asked by policeman Lando Rabadon

about what you learned of the shooting to death of Boyet Rabadon, you
told him you did not see anything, why did you tell policeman Lando
Rabadon that you did not see anything?

A I was afraid, sir.

Q And why were you afraid?

A I did not have confidence [in] the police.

Q Didn't you have confidence [in] the police?

A Because some policemen are members of Aguila.

Q And what is Aguila?

xxxxxxxxx

A Aguila gang, sir.

xxxxxxxxx

Q What is the Aguila gang?

A It is killing people, sir.

x x x x x x x x x"[23]

He further testified to the pervasive climate of fear engulfing his town:

"x x x x x x x x x

Q In your affidavit, Mr. Witness, you mentioned that there were other
witnesses [to] the killing. [A]ccording to you, on January 5, 1994, there
were other witnesses x x x, and your answer was "yes", but nobody
there talked anymore due to fear for their lives.

A Yes, sir.

xxxxxxxxx
Q And what about your statement that these other witnesses fear for
their lives, was that not your statement in your sworn statement?

A Yes, sir, they are afraid.

Q And what about you, are you not afraid of the Navarros?

A I am afraid, sir.

Q Are you saying, Mr. Witness, that a lot of people here in Alaminos are
afraid of the Navarros?

A Yes, sir.

x x x x x x x x x"[24]

With regard to Rabago's recantation of his previous testimony as a

prosecution witness, narrating the killing of Rabadon and identifying the
appellant as one of the malefactors, suffice it to say that this earlier
testimony was clear, candid and consistent, as shown hereunder:

"x x x x x x x x x

Q After Ming Basila shot Boyet Rabadon, what happened next?

A Noel Navarro followed.

Q What did Noel Navarro do after Ming Basila shot Rabadon from
behind?

A Boyet Rabadon was already lying down and he [shot] him.

xxxxxxxxx

Q You said that Noel Navarro shot Ferdinand Rabadon, how many times
did Noel Navarro shoot Boyet Rabadon?

A Thrice, sir.

xxxxxxxxx
Q Mr. Witness, considering that it was about nine o' clock in the evening
when Ming Basila and Noel Navarro shot Boyet Rabadon, how were
you able to see Basila and Noel Navarro shoot Boyet Rabadon?

xxxxxxxxx

A There was a light, sir.

xxxxxxxxx

Q How many lights were there?

A About three.

xxxxxxxxx

Q How far were you from Boyet Rabadon when Ming Basila and Noel
Navarro shot him?

A About three steps, sir.

x x x x x x x x x"[25]

It must be stressed also that Rabago's testimony was compatible with

the findings of Dr. Francisco E. Viray,[26] the medicolegal officer who
autopsied the victim's body. Rabago said that Rabadon had been shot
five times, once in the nape and four times in other parts of his body.
[27] Such details of his testimony as a prosecution witness, aside from
the fact that no ill motive or bias was ascribed to him by the appellant,
lends earmarks of truth to said testimony.

In contrast, Rabago's testimony as a defense witness was bereft of

particulars that should have indicated, at the very least, that his
testimony as a prosecution witness was false. His testimony as a
defense witness, albeit brief, did point out that it was not the appellant
but a "stout and short" man, along with Ming Basila, who shot the victim.
He claimed that he was testifying anew because he was bothered by
his conscience; however, he did not state any reason why he had
previously identified the appellant as one of Rabadon's killers. Also
suspect was the way he parried questions regarding his appearance as
a defense witness. Worth repeating is the trial court's elucidation on the
matter:

"The Court wonders why of all things, Rabago will apply for witness
protection program of the government, if it [was] not true that he had
witnessed the occurrence of the events as he related them when he
was presented as [a] prosecution witness.

"And later on, after giving his version of the incident that happened as a
witness for the prosecution, why of all things, will he come to know the
date of the trial or hearing for [the] defense when according to him, not
even the accused, not even the lawyer of the accused, not even the
subpoena had reached him, and yet, surprisingly, he was present on
June 16, 1995 to given again his testimony in favor of the accused.

xxx xxx xxx

"His only reason why he [had] to testify for the defense [was] that his
conscience bothered him, but this Court cannot buy that kind of
explanation and believe it."[28]

Because the prosecution was able to substantiate its charge of murder

against the appellant through the detailed, clear and consistent
testimony of Rabago as a prosecution witness (pointing to the appellant
as one of the malefactors), the defense should have emphatically and
clearly established that such testimony was false and ill-motivated.
Appellant failed to do this.

The Court has held in a number of cases that a recantation of a

testimony is exceedingly unreliable, for there is always the probability
that such recantation may later on be itself repudiated.[29] Courts look
with disfavor upon retractions, because they can easily be obtained
from witnesses through intimidation or for monetary consideration.[30]
A retraction does not necessarily negate an earlier declaration.[31]
Where a witness who testified for the prosecution subsequently testifies
for the defense by retracting his previous testimony, as in the present
case, the test to decide which testimony to believe is a comparison
coupled with the application of the general rules of evidence.[32]
In all, we agree with the court a quo in upholding the detailed, clear and
straightforward testimony of Jose Rabago as a prosecution witness and
in debunking his brief and indecisive recantation of such testimony.

It is a legal truism that in criminal cases, the guilt of the accused must
be proven beyond reasonable doubt. To sustain conviction, the
prosecution must stand or fall on its own evidence; it cannot draw
strength from the weakness of that of the defense.

In the case at bar, the prosecution was able to prove the guilt of
Appellant Noel Navarro with moral certainty. Indeed, the Court has held
that the testimony of a single witness, if positive and credible, is
sufficient to sustain a judgment of conviction, even in a charge for
murder.[33]

Second Issue: Res Gestae

The appellant contends that, in considering the statements which

Rabago gave to both SPO2 Virgilio Rabadon and Patrolman Rolando
Rabadon, the trial court erred in concluding that such statements were
not part of res gestae.[34]

At the outset, it must be stated that res gestae pertains to the

admissibility of evidence, and not to its weight and sufficiency,[35] as
the Office of the Solicitor General correctly pointed out. The
admissibility of evidence depends on its relevance and competence,
while the weight of evidence pertains to evidence already admitted and
its tendency to convince and persuade.[36]

Res gestae is defined as follows:

"Statements made by a person while a startling occurrence is taking

place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal act material
to the issue, and giving it a legal significance, may be received as part
of the res gestae."[37]

Rabago's statement to SPO2 Rabadon that someone had killed his

companion can be considered part of the res gestae, and is thus
admissible in evidence as an exception to the hearsay rule. It was a
spontaneous statement that was made right after a startling occurrence
and that refers to such occurrence. However, the same cannot be said
of his statement to Patrolman Rabadon, as it lacked the requisite
spontaneity, having been given in answer to questions propounded in
an investigation, a day after the incident in question.

The appellant seems to imply that when Rabago reported the incident
to SPO2 Rabadon, Rabago's silence regarding the identity of the killers
created doubt as to the appellant's culpability for such killing and, thus,
should have been likewise considered by the lower court in appellant's
favor as part of the res gestae.[38] This proposition deserves scant
consideration. Such omission cannot be taken to mean that appellant
was not the culprit. The witness was simply silent as to the identity of
the assailant. Such omission, as has been discussed, can be attributed
to Rabago's fear of the Navarros.

Witnesses' delayed reporting of what they know about a crime does not
render their testimonies false or incredible, for the delay may be
explained by the natural reticence of most people and their abhorrence
to get involved in a criminal case. But more than this, there is always
the inherent fear of reprisal, which is quite understandable, especially if
the accused is a man of power and influence in the community.[39] In
People v. Vias,[40] it was held that "[t]he natural reluctance of a witness
to get involved in a criminal case, as well as to give information to the
authorities is a matter of judicial notice."

Third Issue: Denial and Illegal Arrest

While the appellant denied that he killed Ferdinand Rabadon,[41] he

did not offer any evidence to prove his assertion; instead, his testimony
focused on the circumstances surrounding his alleged illegal arrest and
subsequent detention.

Contrary to the appellant's assertion that he was denied due process

by virtue of his alleged illegal arrest, such claim is negated by his
voluntary submission to the jurisdiction of the trial court, as manifested
by the voluntary and counsel-assisted plea he entered during
arraignment and by his active participation in the trial thereafter.[42]
Faced with the detailed, clear and consistent testimony of Jose
Rabago, against whom no ill motive was imputed, Appellant Navarro,
whom the former pointed to as one of the killers of Ferdinand Rabadon,
cannot escape conviction merely by issuing an unsubstantiated denial
and resorting to constitutional guarantees which he has already
voluntarily waived.

Fourth Issue: The Crime

The crime committed was murder. As alleged in the Information, the trial
court correctly concluded that the killing of Ferdinand Rabadon was
qualified by treachery.

The essence of treachery is the sudden and unexpected attack, without

the slightest provocation on the part of the person attacked.[43]
Treachery exists when any of the crimes against persons is committed
with the employment of means, methods or forms that tend directly and
especially to insure its execution, such that the offender faces no risk
that may arise from the defense which the offended party might make.
[44] In the present case, not only was the victim caught off guard by the
unexpected attack of the appellant and Ming Basila, but the testimony
of Jose Rabago likewise indubitably established that the appellant shot
the victim when the victim was already lying prostrate and defenseless.
[45]

Illegal Possession of Firearms

While we affirm the trial court's conviction of the appellant for murder,
we do not agree with its disquisition finding the charge of illegal
possession of firearms to have aggravated the killing.

To prove illegal possession of firearms, the prosecution must establish

two things: first, the existence of the subject firearm; second, the fact
that the accused, who owned or possessed the firearm, did not have
the corresponding license or permit to carry the same outside his
residence.[46]

In the case at bar, the Information alleged that on January 5, 1991, the
appellant had in his possession an unlicensed firearm which he used in
killing Ferdinand Rabadon. This firearm was allegedly recovered on
January 5, 1994, when appellant was arrested. However, said firearm
was not presented in court or offered as evidence against the
appellant. Although Rabago testified that he saw the appellant with a
"short" firearm when the latter shot Rabadon on January 5, 1991, no
other proof was presented to show that such gun, allegedly used on
January 5, 1991, was the same one recovered on January 5, 1994. The
prosecution was not able to establish sufficiently the existence of the
subject firearm, and this fact was not offset by SPO1 Edmund Garcia of
the PNP Firearms and Explosives Unit, who testified that appellant was
not a licensed firearm holder in Pangasinan. Since the charge of illegal
possession of firearms was not proven, the same could not be
considered to have aggravated the killing of Ferdinand Rabadon.

The court a quo would have been correct in considering illegal

possession of a firearm an aggravating circumstance, if such
possession had been established beyond reasonable doubt. This is in
line with RA 8294 (amending PD 1866), which regards the use of an
unlicensed firearm simply as an aggravating circumstance in murder or
homicide.[47]

In any case, since the killing was qualified by treachery, the crime
committed was murder. Whether with or without this alleged generic
aggravating circumstance, the penalty, reclusion perpetua, would still
be the same, because the killing was committed in January 1991, when
the imposition of the capital penalty was still proscribed by the
Constitution, and RA 7659 had not yet been enacted.

Damages

While we affirm the award of P50,000 as indemnity for the death of

Ferdinand Rabadon, we have found no evidence in the records that
can support the lower court's additional award of P50,000 as actual
damages. To justify a grant of actual damages, it is necessary to show
the amount of actual loss with the best evidence obtainable.[48] In the
present case, while Ofelia Rabadon testified that P25,000 was spent for
the wake and burial of her son, she did not present receipts or any
other documents to substantiate such claim.
WHEREFORE, the appeal is hereby DENIED. The assailed Decision is
AFFIRMED, but the award of actual damages is DELETED. Costs
against the appellant.

SO ORDERED.

x--x

G.R. No. 201860 January 22, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee,

vs.
MARCELINO DADAO, ANTONIO SULINDAO, EDDIE MALOGSI
(deceased) and ALFEMIO MALOGSI,* Accused-Appellants.

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from a Decision1 dated May 16, 2011 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 00364, entitled People of the
Philippines v. Marcelino Dadao, Antonio Sulindao, Eddie Malogsi and
Alfemio Malogsi, which affirmed with modifications the Decision2 dated
January 31, 2005 of the Regional Trial Court of Manolo Fortich,
Bukidnon, Branch 11 that convicted appellants Marcelino Dadao,
Antonio Sulindao, Eddie Malogsi (deceased) and Alfemio Malogsi for
the felony of murder under Article 248 of the Revised Penal Code, as
amended, in Criminal Case No. 93-1272.

The genesis of this court case can be traced to the charge of murder
against the appellants in the trial court via an Information3 dated July
16, 1993. The accusatory portion of said indictment reads:

That on or about the 11th day of July 1993, at 7:30 in the evening more
or less at barangay Salucot, municipality of Talakag, province of
Bukidnon, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and
mutually helping with (sic) one another, with intent to kill, by means of
treachery, armed with guns and bolos, did then and there wilfully,
unlawfully and criminally attack, assault and sho[o]t PIONIO YACAPIN,
hitting his back and left leg, inflicting wounds that cause[d] his death
thereafter.

To the damage and prejudice [of] the heirs of the deceased PIONIO
YACAPIN in such sum they are entitled under the law.

Contrary to and in violation of Article 248 of the Revised Penal Code.

On September 27, 1993, the appellants were arraigned. All four (4)
accused pleaded "NOT GUILTY" to the charge leveled against them.4

The factual backdrop of this case as condensed in the trial courts

assailed January 31, 2005 judgment and adopted by the Court of
Appeals in its similarly assailed May 16, 2011 Decision is reproduced
hereunder:

Evidence for the Prosecution

Prosecutions first witness, Ronie Dacion, a 14-year old stepson of the

victim, Pionio Yacapin, testified that on July 11, 1993 at about 7:30 in
the evening he saw accused Marcelino Dadao, Antonio Sulindao, Eddie
Malogsi and [A]lfemio Malogsi helping each other and with the use of
firearms and bolos, shot to death the victim, Pionio Yacapin in their
house at Barangay Salucot, Talakag, Bukidnon.

The testimony of the second witness for the prosecution, Edgar Dacion,
a 12-year old stepson of the victim, corroborates the testimony of his
older brother Ronie Dacion.

Prosecutions third witness, Nenita Yacapin, the widow of the victim,

also corroborates the testimony of the prosecutions first and second
witness. The said witness further testified that she suffered civil and
moral damages [due to] the death of her husband.

Prosecutions fourth witness, Bernandino Signawan, testified that at

about 10:00 oclock in the evening of July 11, 1993, Ronie and Edgar
Dacion reached to [sic] his house and related to him that their
stepfather was killed by accused Eddie Malogsi, [A]lfemio Malogsi,
Marcelino Dadao and Antonio Sulindao. Witness Signawan further
testified that on the following morning, he and the other people in
Ticalaan including the barangay captain, Ronie and Edgar Dacion
returned to the house of the victim and found the latter already dead
and in the surrounding [area] of the house were recovered empty shells
of firearms.

Prosecutions fifth witness, SPO2 Nestor Aznar, testified that he was the
one who prepared the sketch of the hut where the incident happened
and further testified that the four accused were in the custody of the
government and in the following morning of the incident, he was at the
scene of the crime and found in the yard of the hut eight (8) garand
empty shells caliber 30m[m].

The prosecution presented its sixth and last witness, Modesto

Libyocan, who testified that on the evening of July 11, 1993, at
Barangay Salucot, he saw in the house of the victim, Pionio Yacapin,
lights caused by flashlights and heard several gunshots from the house
of the victim, and that the family left their house on that evening and
went to Ticalaan where they learned that Pionio Yacapin was killed in
his house and that early the following morning, July 12, 1993, he was
with some companions, barangay officials of Ticalaan in the house of
the victim where they found him dead and sustaining gunshot wounds.

Evidence for the Defense

Defenses first witness, Police Inspector Vicente Armada, testified that

on July 30, 1993, at 11:00 in the morning, he conducted an examination
for paraffin test on all four accused with the findings that they yielded
negative result x x x.

The defense presented Eddie Malogsi, one of the accused, as its

second witness, who testified that on July 11, 1993 at 7:30 in the
evening, he was at the farm of a certain Boyle together with his brother,
[A]lfemio Malogsi, one of the accused herein, being a worker of that
farm. He further testified that on the said date and time, he never fired a
gun.

Defenses third witness, [A]lfemio Malogsi, another accused in this

case, corroborates the testimony of his brother and co-accused, Eddie
Malogsi, that on the said date and time above-mentioned, he was at the
farm of a certain Boyle with his brother and that they heard several
gunshots. He further testified that he never owned a garand rifle.

Another accused, Antonio Sulindao, defenses fourth witness, testified

that on the date and time above-mentioned, he was at Salucot together
with his family and at 7:30 x x x in the evening, he heard some gun
shots. He further testified among others, that he has no grudge x x x
with the victim prior to the incident.

The testimony of defenses fifth witness, Fernandez Saplina, [was to]

establish the defense of denial and alibi in so far as accused Marcelino
Dadao, that on the whole evening of July 11, 1993, accused Marcelino
Dadao was all the time at his house in San Fernandez, Salucot,
Talacag, Bukidnon, and there was no occasion that said accused went
outside or left his house on the said date and time. The said witness
further testified that he visited the accused at the municipal jail of
Talakag, Bukidnon, where he was detained for having been the suspect
in the killing of Pionio Yacapin.

The defense presented its sixth witness, Camilo Dumalig, who

corroborates the testimony of Fernandez Saplina to the effect that
accused Marcelino Dadao has been residing at San Fernandez,
Salucot, Talakag, Bukidnon at the time of the incident on July 11, 1993
which place is about 7 kilometers from the place of the incident.

Defenses seventh witness, Venancio Payonda, father-in-law of accused

Antonio Sulindao, testified that the latter was in his house the whole day
of July 11, 1993.

The defense presented as its last witness, accused Marcelino Dadao,

who testified that three (3) months prior to July 11, 1993, he had been
staying at the house of one Fernandez Saplina at Sitio San Fernandez,
Salucot, Talakag, Bukidnon, which is about 7 kilometers away from the
house of the victim. He further testified that on July 11, 1993, he did not
leave the house of Fernandez Saplina until the following morning.5

After trial was concluded, a guilty verdict was handed down by the trial
court finding appellants guilty beyond reasonable doubt of murdering
Pionio Yacapin. The assailed January 31, 2005 Decision disposed of
the case in this manner:
WHEREFORE, premises considered, the Court finds accused, EDDIE
MALOGSI, [A]LFEMIO MALOGSI, ANTONIO SULINDAO and
MARCELINO DADAO, guilty beyond reasonable doubt of the crime of
Murder, as defined and penalized under Article 248 of the Revised
Penal Code, as amended, the said four accused are hereby sentenced
to suffer the penalty of reclusion perpetua and are ordered to pay the
heirs of the victim, the amount of SEVENTY-FIVE THOUSAND PESOS
(P75,000.00) as moral damages and TWENTY THOUSAND PESOS
(P20,000.00) as exemplary damages and to pay the cost of the suit.
Pursuant to Supreme Court Administrative Circular No. 2-92, dated
January 20, 1992, the bailbonds of all four accused are hereby ordered
cancelled and the latter are ordered detained, pending resolution of
any Appeal that may be pursued in this case.6

Appellants elevated their case to the Court of Appeals. During the

pendency of the appeal, the appellate court acted on a Manifestation
filed by Rogelio Tampil, bondsman for Eddie Malogsi, who sought the
cancellation of the memorandum of encumbrance that was reflected in
his land title (Original Certificate of Title No. P-13825, Entry No. 165683)
for the reason that Eddie Malogsi had already died on August 25, 2003.
Thus, on February 11, 2008, the Court of Appeals issued a resolution
granting Tampils request.7 Subsequently, after considering the
pleadings and memoranda of the parties, the Court of Appeals issued
its May 16, 2011 Decision, the dispositive portion of which states:

ACCORDINGLY, this appeal is DISMISSED and the Decision appealed

from is AFFIRMED with the modification the P75,000.00 as civil
indemnity and P25,000.00 as temperate damages shall be awarded in
addition to the moral and exemplary damages already awarded by the
lower court.8

Hence, appellants, through counsel, seek final recourse with the Court
and reiterate the following assignment of errors from their Appellants
Brief filed with the Court of Appeals:

I
THE COURT A QUO GRAVELY ERRED IN CONVICTING APPELLANTS
OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION
TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE

EVIDENCE OF THE DEFENSE.

III

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE

QUALIFYING CIRCUMSTANCE OF ABUSE OF SUPERIOR STRENGTH
WHEN THE SAME WAS NOT ALLEGED IN THE INFORMATION.9

The foregoing arguments were later on amplified by appellants

Supplemental Brief.10

Appellants reiterate that their guilt was not proven beyond reasonable
doubt because the testimonies of the witnesses for the prosecution
were afflicted with inconsistencies and improbabilities, thus, making
them of doubtful veracity. Furthermore, appellants faulted the trial court
for disbelieving their alibis and for disregarding the fact that the paraffin
test which all of them were subjected to produced a negative result.
Appellants also underscored the fact that they did not take flight
despite the knowledge that they were made suspects in the murder of
Pionio Yacapin. Lastly, appellants maintain that the qualifying
circumstance of abuse of superior strength should not have been
appreciated as it was not alleged in the criminal information filed
against them.

The petition is without merit.

In fine, the pivotal issue raised by appellants in questioning the validity

of their conviction for the crime of murder is whether or not the
eyewitness testimonies presented by the prosecution, specifically that
of the two stepsons (Ronie and Edgar Dacion) and the widow (Nenita
Yacapin) of the deceased victim, Pionio Yacapin, are credible enough
to be worthy of belief.
We have consistently held in jurisprudence that the resolution of such a
factual question is best left to the sound judgment of the trial court and
that, absent any misapprehension of facts or grave abuse of discretion,
the findings of the trial court shall not be disturbed. In People v. De la
Rosa,11 we yet again expounded on this principle in this wise:

[T]he issue raised by accused-appellant involves the credibility of [the]

witness, which is best addressed by the trial court, it being in a better
position to decide such question, having heard the witness and
observed his demeanor, conduct, and attitude under grueling
examination. These are the most significant factors in evaluating the
sincerity of witnesses and in unearthing the truth, especially in the face
of conflicting testimonies. Through its observations during the entire
proceedings, the trial court can be expected to determine, with
reasonable discretion, whose testimony to accept and which witness to
believe. Verily, findings of the trial court on such matters will not be
disturbed on appeal unless some facts or circumstances of weight
have been overlooked, misapprehended or misinterpreted so as to
materially affect the disposition of the case. x x x.

Jurisprudence also tells us that where there is no evidence that the

witnesses of the prosecution were actuated by ill motive, it is presumed
that they were not so actuated and their testimony is entitled to full faith
and credit.12 In the case at bar, no imputation of improper motive on
the part of the prosecution witnesses was ever made by appellants.

Furthermore, appellants contend that the prosecution witnesses made

inconsistent and improbable statements in court which supposedly
impair their credibility, such as whether or not the stepsons of the victim
left for Ticalaan together to report the incident, whether the accused
were still firing at the victim when they left or not, and whether or not the
accused went after the stepsons after shooting the victim. We have
reviewed the relevant portions of the transcripts pointed out by the
appellants and have confidently arrived at the conclusion that these are
matters involving minor inconsistencies pertaining to details of
immaterial nature that do not tend to diminish the probative value of the
testimonies at issue. We elucidated on this subject in Avelino v. People,
13 to wit:
Given the natural frailties of the human mind and its capacity to
assimilate all material details of a given incident, slight inconsistencies
and variances in the declarations of a witness hardly weaken their
probative value. It is well-settled that immaterial and insignificant details
do not discredit a testimony on the very material and significant point
bearing on the very act of accused-appellants. As long as the
testimonies of the witnesses corroborate one another on material points,
minor inconsistencies therein cannot destroy their credibility.
Inconsistencies on minor details do not undermine the integrity of a
prosecution witness. (Emphasis omitted.)

Notwithstanding their conflicting statements on minor details, Ronie,

Edgar and Nenita positively identified appellants as the perpetrators of
the dastardly crime of murder committed on the victim which they
categorically and consistently claimed to have personally witnessed.

In order to counter the serious accusation made against them,

appellants put forward the defense of alibi which necessarily fails in the
face of positive identification. It is a time-honored principle in
jurisprudence that positive identification prevails over alibi since the
latter can easily be fabricated and is inherently unreliable.14 Hence, it
must be supported by credible corroboration from disinterested
witnesses, and if not, is fatal to the accused.15 An examination of the
record would indicate that Eddie and Alfemio Malogsi were unable to
present a corroborating witness to support their alibi that they were
working at a farm owned by a certain Boyle on the date and time of
Pionio Yacapins murder. While the witnesses presented by the defense
to corroborate the respective alibis of Marcelino Dadao and Antonio
Sulindao consisted of friends and relatives who are hardly the
disinterested witnesses that is required by jurisprudence.

With regard to appellants assertion that the negative result of the

paraffin tests that were conducted on their persons should be
considered as sufficient ground for acquittal, we can only declare that
such a statement is misguided considering that it has been established
in jurisprudence that a paraffin test is not conclusive proof that a person
has not fired a gun.16 It should also be noted that, according to the
prosecution, only Eddie and Alfemio Malogsi held firearms which were
used in the fatal shooting of Pionio Yacapin while Marcelino Dadao and
Antonio Sulindao purportedly held bolos. Thus, it does not come as a
surprise that the latter two tested negative for powder burns because
they were never accused of having fired any gun. Nevertheless, the
evidence on record has established that all four accused shared a
community of criminal design. By their concerted action, it is evident
that they conspired with one another to murder Pionio Yacapin and
should each suffer the same criminal liability attached to the
aforementioned criminal act regardless of who fired the weapon which
delivered the fatal wounds that ended the life of the victim.

In People v. Nelmida,17 we elaborated on the principle of criminal

conspiracy and its ramifications in this manner:

There is conspiracy when two or more persons come to an agreement

concerning the commission of a felony and then decide to commit it. It
arises on the very instant the plotters agree, expressly or impliedly, to
commit the felony and forthwith decide to pursue it. Once established,
each and every one of the conspirators is made criminally liable for the
crime actually committed by any one of them. In the absence of any
direct proof, the agreement to commit a crime may be deduced from
the mode and manner of the commission of the offense or inferred from
acts that point to a joint purpose and design, concerted action, and
community of interest. As such, it does not matter who inflicted the
mortal wound, as each of the actors incurs the same criminal liability,
because the act of one is the act of all. (Citation and emphasis omitted.)

As to appellants argument that their act of bravely reporting to the

police station to answer the serious charge of murder against them
instead of fleeing militates against a finding of any criminal liability on
their part especially in light of the dubious evidence presented by the
prosecution, we can only dismiss this as a hollow line of reasoning
considering that human experience as observed in jurisprudence
instructs us that non-flight does not necessarily connote innocence.
Consequently, we have held:

Flight is indicative of guilt, but its converse is not necessarily true.

Culprits behave differently and even erratically in externalizing and
manifesting their guilt. Some may escape or flee a circumstance
strongly illustrative of guilt while others may remain in the same
vicinity so as to create a semblance of regularity, thereby avoiding
suspicion from other members of the community.18
Contrary to appellants claim that the aggravating circumstance of
abuse of superior strength was used by the trial court to qualify the act
of killing committed by appellants to murder despite it not having been
alleged in the criminal information filed against them, the text of the
assailed January 31, 2005 Decision of the trial court clearly shows that,
even though abuse of superior strength was discussed as present in
the commission of the crime, it was not appreciated as either a
qualifying or generic aggravating circumstance.

As correctly observed by the Court of Appeals, the lower court

appreciated treachery, which was alleged in the information, as an
aggravating circumstance which qualified the offense to murder. This is
proper considering that, even if abuse of superior strength was properly
alleged and proven in court, it cannot serve to qualify or aggravate the
felony at issue since it is jurisprudentially settled that when the
circumstance of abuse of superior strength concurs with treachery, the
former is absorbed in the latter.19

Time and again, we have declared that treachery is present when the
offender commits any of the crimes against persons, employing means,
methods, or forms in the execution, which tend directly and specially to
insure its execution, without risk to the offender arising from the defense
which the offended party might make.20 Furthermore, we have also
held that the essence of treachery is that the attack is deliberate and
without warning, done in a swift and unexpected manner, affording the
hapless, unarmed and unsuspecting victim no chance to resist or
escape.21 In the case at bar, the manner by which Pionio Yacapin was
killed carried all the indubitable hallmarks of treachery. We quote with
approval the following discussion of the Court of Appeals on this matter,
to wit:

Treachery, which was alleged in the information, was duly proven by the
prosecution.1wphi1 The Court notes, in particular, the testimony of
Nenita Yacapin who declared that when the victim was making a fire in
the kitchen, she heard shots and she saw the barrel of the gun inserted
on the bamboo split walling of their house. Exhibit "B", the anatomical
chart certified by the Philippine National Police (PNP) personnel, shows
the relative location of the gunshot wounds sustained by the victim. The
chart indicates that the victim was shot from behind. Clearly, the
execution of the attack made it impossible for the victim to defend
himself or to retaliate.22 (Citations omitted.)

After reviewing the penalty of imprisonment imposed by the trial court

and affirmed by the Court of Appeals, we declare that the imposition of
the penalty of reclusion perpetua on the appellants is correct and
should be upheld. Article 248 of the Revised Penal Code, as amended
by Republic Act No. 7659, provides for the penalty of reclusion
perpetua to death for the felony of murder. There being no aggravating
or mitigating circumstance, the proper penalty is reclusion perpetua
pursuant to Article 63, paragraph 2 of the Revised Penal Code.23

Anent the award of damages, it is jurisprudentially settled that when

death occurs due to a crime, the following may be recovered: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages;
(5) attorneys fees and expenses of litigation; and (6) interest, in proper
cases.24

Thus, the award of civil indemnity in the amount of P75,000.0025 is

proper. Likewise, the award of temperate damages, in lieu of actual
damages, in the amount of P25,000.0026 is warranted considering that
the death of the victim definitely caused his heirs some expenses for his
wake and burial though they were not able to present proof.

However, we must modify the amounts of moral and exemplary

damages already awarded in order to conform to existing
jurisprudence. Therefore, the exemplary damages awarded should be
increased from P20,000.00 to P30,000.00.27 Moreover, there being no
aggravating circumstance present in this case, the award of moral
damages in the amount of P75,000.00 should be decreased to
P50,000.00.28 Lastly, the interest rate of 6% per annum is imposed on
all damages awarded from the date of finality of this ruling until fully
paid.29

Finally, we observe that the Court of Appeals did not rule on the effect
of the death of Eddie Malogsi during the pendency of this case.
Considering that no final judgment had been rendered against him at
the time of his death, whether or not he was guilty of the crime charged
had become irrelevant because even assuming that he did incur
criminal liability and civil liability ex delicto, these were totally
extinguished by his death, following Article 89(1) of the Revised Penal
Code and, by analogy, our ruling in People v. Bayotas.30 Therefore, the
present criminal case should be dismissed with respect only to the
deceased Eddie Malogsi.

WHEREFORE, premises considered, the Decision dated May 16, 2011

of the Court of Appeals in CA-G.R. CR.-H.C. No. 00364 is hereby
AFFIRMED with the MODIFICATIONS that:

(1) The amount of exemplary damages to be paid by appellants

Marcelino Dadao, Antonio Sulindao and Alfemio Malogsi is increased
from Twenty Thousand Pesos (P20,000.00) to Thirty Thousand Pesos
(P30,000.00);

(2) The amount of moral damages to be paid by appellants Marcelino

Dadao, Antonio Sulindao and Alfemio Malogsi is decreased from
Seventy-Five Thousand Pesos (P75,000.00) to Fifty Thousand Pesos
(P50,000.00);

(3) Appellants Marcelino Dadao, Antonio Sulindao and Alfemio Malogsi

are ordered to pay the private offended party interest on all damages at
the legal rate of six percent (6%) per annum from the date of finality of
this judgment; and

(4) Criminal Case No. 93-1272 is DISMISSED with respect to Eddie

Malogsi in view of his death during the pendency of this case.

No pronouncement as to costs.

SO ORDERED.

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