1

EN BANC

[G.R. No. 130590. October 18, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RANILLO PONCE HERMOSO alias ALLAN, accused-appellant. DECISION Per Curiam: For review is the decision of the Regional Trial Court, Branch 19, Pagadian City, finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death with all the accessory penalties prescribed by law and to indemnify the heirs of the victim, Glery P. Geoca, in the amount of P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency. The amended information
[2] [1]

The prosecution also offered the following object and documentary evidence, to wit: the wallet (Exh. A) of accused-appellant containing his personal identification, such as Social Security System I.D. Card No. 0462677-7 (Exh. B), a photocopy of his SSS personal record (Exh. D), and his Community Tax Certificate No. 18046043 (Exh. E); five sweepstakes tickets bearing No. 236458 with April 21, 1996 as draw date (Exh. C); a picture of Miss Limpac (Exh. F), niece of Naciansino Hermoso, with a dedication at the back of the picture reading Love, take care, good health, good luck, God Bless You; a small picture (Exh. G); another picture (Exh. H); a picture of accusedappellants younger sister (Exh. I) a picture of his younger brother named Benjie (Exh. J); a group picture (Exh. K); and two coins (Exh. L) - a P1.00 coin and a P0.10 coin; the birth certificate of the victim Glery P. Geoca (Exh. M, with sub-markings) showing her date of birth as September 12, 1988; and a Certification issued by Dr. Atilano A. Ocampos (Exh. N and its sub-markings) on the postmortem examination conducted on the victim. The prosecution evidence shows the following: At about 6:00 p.m. of June 2, 1996, Ireneo Geoca, father of the victim Glery P. Geoca, became worried as his daughter had not come home from the Little Baguio Elementary School in Imelda, Zamboanga del Sur where she was in Grade II. Ireneo Geoca sent his other daughter Girlie Geoca to look for the victim. When the victim failed to be home at 7:00 p.m., Ireneo Geoca sought the help of the barangay officials and his [3] neighbors. In response, Barangay Captain Sonny Boy Altamera organized a search team composed of barangay tanods and other civilians. On their way to look for Glery, Altamera and his party met Josephine Gonzales who told them that she saw the victim in the company of accused-appellant at about 5:30 p.m. of that day as they passed by her house. The two were walking toward the house of one Helen Dabasol, according to the witness. Altamera was likewise informed by Lilia Bartido, who owned a nearby store, that she saw accused-appellant handing some candies to the victim at about [4] 6:00 p.m. of that day. Altamera and his party, therefore, proceeded to the house of accused-appellant where he met Federico Hermoso, father of the accused-appellant. Altamera informed the elder Hermoso that Glery was missing and that she was last seen with his son.Altamera was allowed inside the house but he did not find accused-appellant. He later found accused-appellant under a tree, about 10 meters away from the house. Accused-appellant denied knowledge of the whereabouts of the missing girl. At about 9:30 a.m., with the consent of his family, accused-appellant was taken by Altamera to his house. Accused-appellant was accompanied by Federico Hermoso, [5] Ernesto Pardillo, Jave Tamac, and some neighbors. At about 12:30 a.m. of June 3, 1996, Naciansino Hermoso and his group went to the house of Altamera bringing with them a mans wallet, which Naciansino said he found on a grassy area in Barangay Little Baguio. The wallet contained, among other things, accused-appellants SSS identification card, a photocopy of his SSS personal record, his Community Tax Certificate No. 18046043, five sweepstakes tickets, pictures [6] of accused-appellants younger brother and sister, and two coins. Naciansino turned over the wallet and its contents to Barangay Captain Altamera. Upon seeing his wallet, accused-appellant admitted raping and killing Glery P. Geoca and pointed out the place

against accused-appellant alleged

That on June 2, 1996 at about 9:30 oclock in the evening at Barangay Little Baguio, Municipality of Imelda, Province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Glery Geoca, a minor, seven (7) years of age, against the latters will and on said occasion and by reason of the rape, the said Glery Geoca died as a result of personal violence inflicted upon her by the accused. Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. On September 11, 1996, accused-appellant, assisted by counsel, was arraigned during which the information was read to him in the Cebuano dialect which he confirmed to have understood. He then entered a plea of not guilty. He was informed by the trial court of the names of the five prosecution witnesses and their respective addresses. Then the case was tried. The prosecution presented six witnesses, namely, Josephine Gonzales, Naciansino Hermoso, Sonny Boy Altamera, Joveniano Pansacala, Ireneo Geoca, father of the victim, and Dr. Atilano A. Ocampos, Chief of Hospital I of the Alicia District Hospital in Alicia, Zamboanga del Sur.

where the body of the victim could be found, which is about 200 meters away from where the wallet was discovered. A team led by Joveniano Pansacala found the body of the victim at about 1:00 a.m. of that day. The body showed signs that Glery had been subjected to violence and raped. Accused-appellant was thereafter turned over to the police. In the meantime, upon [7] instructions of the mayor, the body of the victim was examined. Per her Certificate of [8] Death, the cause of Glery P. Geocas death was cardio-respiratory failure, the antecedent cause was rape and the underlying cause was asphyxia by strangulation. Dr. Atilano A. Ocampos, who conducted an autopsy on the body on June 3, 1996, found the following:
= Multiple punctuate hematoma temporal right, abrasions inner canthi, bilateral; hematoma 8 inches in length, 1 inch in width, semi-circular, temporo-frontal area, face left, extending to the zygomztic area; multiple abrasions of buccal mucosa upper and lower lips = Multiple abrasions 1x1 in diameter, average, neck = Circular hematoma 2x3 in diameter, bilateral, mammary glands = Massive hematoma 3x3 in diameter, circular, lateral arm left; linear abrasions multiple, forearm right = Abrasion 1 centimeter diameter 5th finger, left, dorsum = Multiple abrasion lateral and medial aspect upper extending right = Hematoma massive vulva and mons pubis = Hematoma moderate 2 in number anterior thigh, right = Hematoma 1x 1 in diameter middle anterior shin, left = Linear abrasion 1 inch postero-lateral, level of the 10th posterior rib = Linear abrasion 6 inches in length running oblique lumbo-sacral area, posterior =Massive hematoma 4 inches in diameter level of the 10th thoracic vertebrae =Hematoma labia minora right upper quadrant = Laceration, entroitus, ruptured hymen = Hematoma cervix left, laceration vaginal canal right
[9]

On March 17, 1997, the defense manifested in open court that accused-appellant was changing his plea from not guilty to guilty. Defense counsel Atty. Pablito Pielago, Jr. informed the trial court that he had prepared for trial but accused-appellant insisted on changing his plea even after being told of the consequences of pleading guilty to the charge, including the probability that he would be sentenced to death should he be found guilty. Accordingly, the trial court issued an order on the same day stating: When the above-entitled case was called for continuation of trial for the purpose of presenting evidence of accused Ranillo Ponce Hermoso alias Allan, Prosecutor Edilberto Absin appeared for the state in collaboration with private prosecutor Atty. Marcial Empleo, while Atty. Pablito Pielago, Jr., appeared as counsel de oficio for the accused. In open court, Atty. Pablito Pielago, Jr., Manifested that the accused has intimated to him on his desire to change his plea of Not Guilty to one of GUILTY. When asked by the Court whether he has explained to the accused of the seriousness of the crime he is charged, Atty. Pablito Pielago, Jr., confirmed to the Court that he has explained in detail to the accused on the seriousness of the charge he is facing, but he still insisted on his desire to admit his guilt. In fact, according to Atty. Pielago, he went to the extent of telling the accused that it is possible that the Court may render the penalty of death, but accused insisted on his desire to change his plea of Not Guilty to one of Guilty. With such manifestation of Atty. Pielago, the Court called on the accused and asked him through the interpreter in Cebuano dialect, which he confirmed to have known and understood, on his desire to change his plea of Not Guilty to one of Guilty, and in open court, in the presence of his counsel, the public prosecutor and the private prosecutor, accused voluntarily admitted his guilt of the charge filed against him in this case. WHEREFORE, with such desire of the accused to change his plea from Not Guilty to one of Guilty, let him be arraigned anew. SO ORDERED.[11] The defense then informed the court that it was not presenting any evidence, for which reason the case was considered submitted for decision. On June 10, 1997, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court hereby finds accused RANILO PONCE HERMOSO alias Allan guilty beyond reasonable doubt of the crime of RAPE WITH HOMICIDE, and sentences him to the ultimate penalty of DEATH, with all the accessory penalties prescribed by law, and orders him to pay the heirs of Glery Geoca the sum of P500,000.00 as actual damages, P750,000.00 as moral damages and P500,000.00 as exemplary damages without subsidiary imprisonment in case of insolvency. No pronouncement as to costs.

Dr. Ocampos testified that the body was in a state of rigor mortis when he examined it. The victim sustained contusions and multiple hematoma and was thereafter choked to death. He opined that the hymenal laceration could have been [10] caused by pressure or trauma such as sexual intercourse.

After the prosecution had offered its testimonial and documentary evidence, accused-appellant filed a demurrer to which the prosecution filed a reply. On January 9, 1997, the trial court denied accused-appellants demurrer to evidence for lack of merit.

SO ORDERED.[12] Pursuant to Rule 122, section 10 of the Rules on Criminal Procedure, the case was elevated to this Court for automatic review in view of the imposition of the death penalty on accused-appellant. Accused-appellant maintains that, based on the evidence of the prosecution, his guilt has not been shown beyond reasonable doubt. Reiterating the grounds for his demurrer to the evidence, he contends that while Josephine Gonzales said she saw the victim and accused-appellant and other children pass by her house as they went towards the house of her neighbor Helen Rabasol, there was no testimony showing that he was the perpetrator of the crime. Accused-appellant also denies the testimony of Naciansino Hermoso who claimed to have found the wallet belonging to accusedappellant while looking for Glery P. Geoca. Accused-appellant avers that the wallet does not constitute direct evidence to link him to the crime. Naciansino Hermoso and accused-appellants father are brothers. Accused-appellant claims that Naciansino had a grudge against accused-appellants father because the latter had been occupying and cultivating the agricultural land of their parents to the exclusion of Naciansino. Accused-appellant alleges that Naciansino sought revenge towards accused-appellants father by testifying against accused-appellant. Accused-appellant alleges that the testimonies of Joveniano Pansacala, Dr. Atilano A. Ocampos, and Ireneo Geoca are hearsay evidence and do not prove his guilt. He argues that his confession is inadmissible in evidence because it was given without counsel while he was under custodial investigation by Barangay Captain Sonny Boy Altamera. These contentions are without merit. To be sure, a perusal of the records show that the trial court accepted accusedappellants plea of guilty to a capital offense without making a searching inquiry to determine whether he understood the consequences of his plea. This is contrary to Rule 116, section 3 of the Rules on Criminal Procedure which makes it the duty of the court, when an accused pleads guilty to a capital offense, to undertake the following: (1) conduct a searching inquiry into the voluntariness of the plea and the accuseds comprehension of the consequences thereof; (2) require the prosecution to prove the guilt of the accused and the precise degree of his culpability; and (3) ask the accused if [13] he desires to present evidence on his behalf and allow him to do so if he desires. To constitute a searching inquiry, the questioning must focus on (1) the voluntariness of the plea, and (2) whether the accused understood fully the consequences of his [14] plea. The judge must be convinced that in pleading guilty, the accused is truly guilty by requiring the accused to narrate the events leading to the crime, making him reenact it, or asking him to supply missing details. In the present case, the records show that the trial court did not observe these safeguards to ensure that the plea of guilty is not improvidently made. There was no affidavit presented nor statement made in court to show why accused-appellant changed his plea from Not guilty to guilty. The records merely contain an order, [15] dated March 17, 1997, allowing accused-appellant to be arraigned anew, the [16] Certificate of Arraignment, dated March 17, 1997, and the order, likewise dated

March 17, 1997, making accused-appellants plea of guilt of record. This last order states: Accused Ranillo Ponce Hermoso alias Allan having manifested in court duly assisted by his counsel to change his plea of Not Guilty to one of Guilty, the Court arraigned him anew by reading the Information in Cebuano dialect, and in open court, duly assisted by Atty. Pablito Pielago, Jr., his counsel de oficio, accused entered the plea of Guilty, changing in effect his original plea of Not Guilty. WHEREFORE, in view of the foregoing, and the Court having been satisfied on the voluntariness of the change of plea of Guilty from one of Not Guilty by accused Ranillo Ponce Hermoso, consider the above-entitled case as deemed submitted for decision. SO ORDERED.[17] In the case of People vs. Nadera, conducting a searching inquiry, thus:
[18]

we explained the importance of the trial court

The warnings given by the trial court in this case fall short of the requirement that it must make a searching inquiry to determine whether accused-appellant understood fully the import of his guilty plea. As has been said, a mere warning that the accused faces the supreme penalty of death is insufficient. (People v. Estomaca, 326 Phil. 429 (1996)). For more often than not, an accused pleads guilty upon bad advice or because he hopes for a lenient treatment or a lighter penalty. The trial judge must erase such mistaken impressions. (People v. Bello, G.R. Nos. 130411-14, October 13, 1999) He must be completely convinced that the guilty plea made by the accused was not made under duress or promise of reward. The judge must ask the accused the manner the latter was arrested or detained, and whether he was assisted by counsel during the custodial and preliminary investigations. In addition, the defense counsel should also be asked whether he conferred with the accused and completely explained to him the meaning and the consequences of a plea of guilt. Furthermore, since the age, educational attainment and socio-economic status of the accused may reveal insights for a proper verdict in the case, the trial court must ask questions concerning them. (People v. Estomaca, supra) In this case, absent any showing that these questions were put to accused-appellant, a searching inquiry cannot be said to have been undertaken by the trial court. However, although accused-appellants plea of guilty was improvidently made, there is no need to remand the case to the lower court for the reception of evidence in view of the fact that there exists other evidence on which accused-appellants conviction may be based. Independently of his plea, there is sufficient evidence showing that accused-appellant indeed committed the crime with which is charged. First. In the absence of eyewitnesses to the crime, a case of rape with homicide poses difficulty of proving by direct evidence the culpability of the accused because the victim can no longer testify. In such a case, the evidence necessarily must be [19] circumstantial. Under Rule 133, section 4 of the Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if (a) there is more than one circumstance;

(b) the facts from which the inferences are derived are proven; and (c) the combination [20] of all circumstances is such as to produce conviction beyond reasonable doubt. As has been said, facts and circumstances consistent with guilt and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass even [21] direct evidence in its effect upon the court. In this case, there is circumstantial evidence pointing to accused-appellant as the author of the crime of rape with homicide, to wit: 1. Accused-appellant was seen with the victim Glery P. Geoca by Josephine Gonzales and Lilia Bartido between 5:30 to 6:00 p.m. of June 2, 1996; 2. A wallet belonging to accused-appellant and containing the latters identification cards and other personal effects was found near the scene of the crime; 3. The body of the victim was found at about 1:00 a.m. of June 3, 1996 at the exact location pointed by accused-appellant; 4. The grass in the place where the accused-appellants wallet was found had been trampled upon as if there was a fight of pigs (maora ug gibugno-an ug baboy), suggesting that a struggle took place between the accused-appellant and the victim, as a result of which accused-appellant dropped his wallet; 5. The postmortem examination conducted by Dr. Atilano A. Ocampos at 6:30 p.m. of June 3, 1996 showed hematoma and abrasions on different parts of the victims body indicating that she had been strangled and lacerations on her hymen indicating that she had been sexually abused. Second. Accused-appellant confessed to Barangay Captain Sonny Boy Altamera that he had raped and killed the victim. Accused-appellant contends, however, that his confession before Barangay Captain Altamera is inadmissible. Article III, section 12 of the Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. The question in this case is whether the confession given to the barangay captain was made while accused-appellant was under custodial interrogation. It will be recalled

that accused-appellant had been pointed to by Josephine Gonzales and Lilia Bartido as the person Glery P. Geoca was with shortly before the latter disappeared. Accordingly, the barangay captain and his men looked for him in his house and, when they did not find him there, they continued their search until they found him under a tree. When they finally found him, they interrogated him in his house and, failing to get anything from him, took him to the barangay captains house where they continued questioning him. There, Naciansino produced a mans wallet containing the personal effects of accused-appellant. At that point, accused-appellant broke down and confessed to the crime. The investigation had thus ceased to be a general exploratory investigation of an unsolved crime. It had begun to focus on the guilt of accused-appellant so much so that he was no longer allowed to leave. This case therefore comes within the purview of Article III, section 12, paragraph (1). It is distinguishable from cases in which we found the confession to have been given under circumstances not constituting custodial interrogation. In People vs. Andan, the confession of the accused which he gave to the municipal mayor was held to be admissible in evidence because it was shown that the mayor was a confidant of the accused and he did not act as a law enforcement officer when he heard the confession of the accused. We held that constitutional procedures on custodial investigation do not apply to a spontaneous statement not elicited through questioning by the authorities but given in an ordinary manner whereby the accused orally admit having committed the crime. In another case, People vs. Marra, the accused, a security guard of the Lindas Ihaw-Ihaw restaurant, was charged with murder. A policeman, who received a report of a shooting incident, proceeded to the scene of the crime together with three other officers. They found the accused in a restaurant. When they asked whether he was the security guard of the restaurant, he answered in the affirmative. After answering several questions, he told the policemen that he was the security guard pointed to by a witness; that his tour of duty was from 7:00 p.m. of the preceding day to 6:00 a.m. of the following day; that he was on duty at around 2:30 a.m. of March 7, 1992 when the victim was shot; and that the firearm issued to him was in his house. Upon the request of the policemen to see the firearm, he took them to his house and showed them a .38 caliber revolver which he took from inside an aparador. The revolver had five bullets and one spent shell. The policemen smelled gunpowder from the barrel of the gun. They asked accused when he last fired the gun but the latter denied he ever did so. Then a police investigator asked him point-blank why he shot the victim. At first the accused denied the accusation, but when told that someone saw him shoot the victim, he admitted having done so although he claimed he had acted in self-defense. In that case, we ruled that the confession made by the accused was admissible because the inquiry had not yet reached a stage wherein the police considered the accused as a particular suspect. The police were just looking into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guards uniform.
[23] [22]

The case at bar is a far cry from these cases. As accused-appellants confession was made without the assistance of counsel, we hold that it is inadmissible in evidence under Article III, section 12, paragraphs (1) and (3) of the Constitution. However, it appears that the defense failed to object, as required by Rule 132, section 36, immediately when Altamera was presented as a witness for the prosecution or when specific questions concerning the confession were asked. Having failed to do so, accused-appellant is deemed to have waived his right to object to the inadmissibility of Altameras testimony. It is noteworthy that accused-appellants confession is corroborated by the corpus delicti. He in fact was even the one who informed the search team of the exact location where the body of the victim could be found. It is not necessary that an eyewitness should testify on having seen the accused committing the crime or seeing him under circumstances indicating that he committed the crime in order to hold the accused liable [24] under his own confession. Third. Nor was it shown that the prosecution witnesses, particularly Barangay Captain Altamera and his men, had any ill motive to testify falsely against accusedappellant. In fact, the father of accused-appellant was the kumpadre of [25] Altamera. Where there is nothing to show that the witnesses for the prosecution were [26] actuated by improper motive, their testimonies are entitled to full faith and credit. The trial judges evaluation of the testimony of witnesses is generally accorded not only the highest degree of respect but also finality, unless some circumstances of weight and substance, which could change the result of the case, have been ignored or misunderstood. As the trial judge had the opportunity to observe the witness on the stand, he was in a vantage position to assess his demeanor and determine whether or [27] not he was telling the truth. Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides that, when by reason or on the occasion of the rape of a woman under 12 years of age, a homicide is committed, the penalty shall be death. Being a single indivisible penalty an the only penalty prescribed by law for the crime of rape with homicide, the Court is constrained to apply the same regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime in accordance with Article 63 of the Revised Penal Code. Four (4) Members of the Court, although maintaining their adherence to the [28] separate opinions in People vs. Echegaray that R.A. No. 7659, insofar as it prescribed the penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. With respect to the civil liability of accused-appellant, the trial court awarded the heirs of the victim P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency. These awards are excessive. In accordance with our current rulings, the indemnity for the death of the victim Glery P. Geoca should be P100,000.00. On the
[29]

other hand, the award of P750,000.00 as moral damages must be reduced to [30] P50,000.00, also in line with recent cases. Moral damages are awarded to the heirs of the victim in a criminal proceeding by reason of the death of the victim as a consequence of the rape without the need for pleading or proving the basis thereof. The purpose of the award is not to enrich the heirs of the victim but to compensate them for the injuries to their feelings. Finally, the award of P500,000.00 for exemplary damages must be disallowed, there being no aggravating circumstances [31] which attended the commission of the crime. WHEREFORE, the decision of the Regional Trial Court, Branch 19, Pagadian City finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the MODIFICATION that accused-appellant is ordered to indemnify the heirs of the victim Glery P. Geoca in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. In accordance with Section 25 of R.A. No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 140740 April 12, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO BALOLOY, accused-appellant. PER CURIAM: At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening of 3 August 1996, the dead body of an 11-year-old girl Genelyn Camacho (hereafter GENELYN) was found. The one who caused its discovery was accused-appellant Juanito Baloloy (hereafter JUANITO) himself, who claimed that he had caught sight of it while he was catching frogs in a nearby creek. However, based on his alleged extrajudicial confession, coupled with circumstantial evidence, the girls unfortunate fate was pinned on him. Hence, in this automatic review, he seeks that his alleged confession be disregarded for having been obtained in violation of his constitutional rights, and that his conviction on mere circumstantial evidence be set aside. The information charging JUANITO with the crime of rape with homicide reads as follows: That on August 3, 1996 at about 6:30 oclock in the evening, at Barangay Inasagan, Municipality of Aurora, province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge with one Genelyn Camacho, a minor against the latters will and on said occasion and by reason of the rape, the said Genelyn Camacho died as a result of personal violence, inflicted upon her by the accused. Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. The case was docketed as Criminal Case No. AZ-CC-96-156. Upon arraignment on 10 December 1996, JUANITO entered a plea of not guilty. Trial on the merits ensued thereafter.
2 1

Jose Camacho, father of GENELYN and resident of Inasagan, Purok Mabia, Aurora, Zamboanga del Sur, testified that at about 5:00 p.m. of 3 August 1996, he asked GENELYN to borrow some rice from their neighbor Wilfredo Balogbog whose house was about 200 meters away. GENELYN forthwith left, but never returned. Thus, Jose went to the house of Wilfredo, who informed him that GENELYN had already left with one ganta of rice. Jose then started to look for GENELYN. Speculating that GENELYN might have taken shelter at the house of their neighbor Olipio Juregue while it was raining, Jose proceeded to Olipios house. Unfortunately, Jose did not find GENELYN there. Not losing hope, Jose proceeded to the house of Ernesto Derio. On his way, he met Wilfredo, who accompanied him to the house of Ernesto. GENELYN was not there either. They continued their search for GENELYN, but when it proved to be in vain, the 3 two decided to go home. A few minutes after Jose reached his house, Ernesto and JUANITO arrived. JUANITO informed Jose that he saw a dead body at the waterfalls, whose "foot was showing." When asked whose body it was, JUANITO answered that it was GENELYNs. Immediately, the three went to the waterfalls where JUANITO pointed the spot where he saw GENELYNs body. With the aid of his flashlight, Jose went to the spot, and there he saw the dead body floating face down in the knee-high water. True enough, it was GENELYNs. Jose reported the incident to Barangay Captain Luzviminda Ceniza. Upon Cenizas order, the Bantay Bayan members and some policemen retrieved and 4 brought GENELYNs dead body to Joses house. Wilfredo Balogbog corroborated the testimony of Jose that GENELYN came to his house in the afternoon of 3 August 1996 to borrow some rice. GENELYN had with her an umbrella that afternoon, as it was raining. He learned that GENELYN failed to reach 5 her home when Jose came to look for her. Ernesto Derio, JUANITOs uncle-in-law, testified that at about 6:30 p.m. of 3 August 1996, Jose, together with Wilfredo Balogbog, arrived at his house to look for GENELYN, but they immediately left when they did not find her. At about 7:30 p.m., JUANITO arrived at Ernestos house, trembling and apparently weak. JUANITO was then bringing a sack and a kerosene lamp. When Ernesto asked JUANITO where he was going, the latter said that he would catch frogs; and then he left. After thirty minutes, JUANITO returned and told Ernesto that he saw a foot of a dead child at the waterfalls. With the disappearance of GENELYN in mind, Ernesto lost no time to go the house of Jose. JUANITO followed him. There, JUANITO told Jose that he saw a foot of a dead child at the waterfalls. When Jose asked whether it was GENELYNs, JUANITO answered in the affirmative. The three then proceeded to the waterfalls, where JUANITO pointed the place where he saw the body of GENELYN. Jose immediately approached the body, and having confirmed that it was GENELYNs, he brought it to a 6 dry area. Ernesto also testified that on 4 August 1996, he saw Antonio Camacho hand over a black rope to Barangay Captain Ceniza. The latter asked those present as to who

owned the rope. When JUANITO admitted ownership of the rope, Ceniza brought him 7 away from the crowd to a secluded place and talked to him. Finally, Ernesto testified that JUANITO previously attempted to molest his (Ernestos) 8 child, an incident that caused a fight between him (JUANITO) and his (Ernestos) wife. Antonio Camacho, a cousin of Jose, testified that on 3 August 1996, he was informed by Joses brother that GENELYN was "drowned." He and the Bantay Bayan members proceeded to the place of the incident and retrieved the body of GENELYN. At 8:00 a.m. of the following day he, together with Edgar Sumalpong and Andres Dolero, went to the waterfalls to trace the path up to where GENELYN was found. There, they found a black rope and an umbrella. They gave the umbrella to Joses wife, and the black rope to Barangay Captain Ceniza, who was then attending the wake of GENELYN. Ceniza asked those who were at the wake whether anyone of them owned the rope. 9 JUANITO answered that he owned it. Thereafter Ceniza talked to JUANITO. Andres Dolero corroborated the testimony of Antonio on the recovery of the black rope 10 and umbrella at the waterfalls where GENELYNs body was found. Barangay Captain Ceniza of Inasagan, Aurora, Zamboanga del Sur, testified that at about 8:30 p.m. of 3 August 1996, Jose Camacho, Ernesto Derio, Porferio Camacho, and JUANITO arrived at her house to inform her that JUANITO found GENELYNs dead body at the waterfalls. Ceniza forthwith ordered the members of the Bantay Bayan to retrieve the body of GENELYN, and reported the incident to the police headquarters of Aurora, Zamboanga del Sur. She specifically named JUANITO as her suspect. She then went home and proceeded to Joses house for GENELYNs wake. She saw 11 JUANITO at the wake and noticed that he was very uneasy. Ceniza further revealed that on 4 August 1996, while she was on her way to Joses house, Antonio gave her a black rope, which he reportedly found at the spot where the dead body of GENELYN was retrieved. Ceniza then asked the people at the wake about the rope. JUANITO, who was among those present, claimed the rope as his. She brought JUANITO away from the others and asked him why his rope was found at the place where GENELYNs body was discovered. JUANITO answered: "I have to claim this as my rope because I can commit sin to God if I will not claim this as mine because this is mine." Ceniza further asked JUANITO to tell her everything. JUANITO told Ceniza that his intention was only to frighten GENELYN, not to molest and kill her. When GENELYN ran away, he chased her. As to how he raped her, JUANITO told Ceniza that he first inserted his fingers into GENELYNs vagina and then raped her. 12 Thereafter, he threw her body into the ravine. After such confession, Ceniza examined his body and found a wound on his right shoulder, as well as abrasions and scratches on other parts of his body. Upon further inquiry, JUANITO told her that the wound on his shoulder was caused by the bite of GENELYN. Ceniza then turned over JUANITO to a policeman for his own protection, as

the crowd became unruly when she announced to them that JUANITO was the culprit. 13 JUANITO was forthwith brought to the police headquarters. Victor Mosqueda, a member of the Philippine National Police (PNP) stationed at the Aurora Police Station, testified that at about 10:00 p.m. of 4 August 1996 he was at Joses house. Ceniza informed him that JUANITO was the suspect in the killing of GENELYN, and she turned over to him a black rope which belonged to JUANITO. He wanted to interrogate JUANITO, but Ceniza cautioned him not to proceed with his inquiry because the people around were getting unruly and might hurt JUANITO. Mosqueda immediately brought JUANITO to the police station, and on that same day, he took the affidavits of the witnesses. The following day, a complaint was filed against 14 JUANITO. Dr. Arturo Lumacad, Municipal Health Officer of the Aurora Rural Health Clinic, testified that he examined JUANITO so as to verify the information that JUANITO sustained 15 wounds in his body. His examination of JUANITO revealed the following injuries: 1. fresh abrasions on the right portion of the cheek; 2. multiple abrasions on the right shoulder; 3. abrasion on the left shoulder; and 4. abrasions on the left forearm.
16

Dr. Lumacad also testified that he examined the dead body of GENELYN on 4 August 1996 and found the following injuries: 1. 2.5-inch lacerated wound at her left neck, front of the head; 2. 1-inch wound at the right cheek just below the first wound; 3. multiple contusions on her chest; 4. contusion at the right hip; and 5. fresh lacerations on her vagina at 9 oclock and 3 oclock positions.
17

He opined that the fresh lacerations could have been caused by a large object inserted into GENELYNs vagina, such as a male sex organ, a rod, or a piece of wood or 18 metal.

Presiding Judge Celestino V. Dicon of the Municipal Trial Court of Aurora, Zamboanga del Sur, testified that when he arrived in his office at around 8:30 a.m. of 4 August 1996 several people, including Barangay Captain Ceniza, were already in his courtroom. He learned that they came to swear to their affidavits before him. After reading the affidavit of Ceniza, he asked Ceniza whether her statements were true. Ceniza answered in the affirmative and pointed to JUANITO as the culprit. Judge Dicon turned to JUANITO and asked him whether the charge against him was true. JUANITO replied in the dialect: "[N]apanuwayan ko, sir" ("I was demonized"). While Judge Dicon realized that he should not have asked JUANITO as to the truthfulness of the allegations against him, he felt justified in doing so because the latter was not under custodial investigation. Judge Dicon thus proceeded to ask JUANITO whether he had a daughter as old as the victim and whether he was aware of what he had done to GENELYN. Again, JUANITO responded that he was demonized, and he spontaneously narrated that after he struck 19 GENELYNs head with a stone he dropped her body into the precipice. Lopecino Albano, process server in the court of Judge Dicon, corroborated the testimony of the latter as to JUANITOs admission that he was demonized when he 20 raped and killed GENELYN. The sole witness for the defense was JUANITO, who invoked denial and alibi. He testified that he was at his mothers house at around 6:30 p.m. of 3 August 1996. An hour later, he left for the creek to catch frogs; and while catching frogs, he saw a foot. He forthwith headed for Ernesto Derios house to ask for help. There, he told Ernesto and his wife of what he had seen. Ernestos wife asked JUANITO whether the person was still alive, and JUANITO answered that he was not sure. At this point, Ernesto informed him that Jose Camacho was looking for GENELYN. JUANITO and Ernesto then proceeded to the house of Jose to inform the latter of what he, JUANITO, had seen. The three forthwith went to the creek. There, they found out that the foot was GENELYNs and that she was already dead. Upon Joses request, JUANITO and Ernesto informed Joses brother about the incident, and they proceeded to the house of Ceniza. Thereafter, they, along with the members of the Bantay Bayan, went back to 21 the creek to retrieve the body of GENELYN. JUANITO further recalled that after the body of GENELYN was brought to her parents house, he helped saw the lumber for her coffin. Thereafter, he went to Ernestos house to get the sack containing the seventeen frogs he had caught that night, which he earlier left at Ernestos house. He was shocked to find out that the rope which he used to tie the sack, as well as all the frogs he caught, was missing. As it was already dawn, JUANITO left his sack at his mothers house; then he proceeded to the house of Jose to help make the coffin of GENELYN. But, at around 8:00 a.m., policeman Banaag came looking for him. He stopped working on GENELYNs coffin and identified himself. Banaag took him away from the house of Jose and asked him whether he owned the rope. JUANITO answered in the affirmative. At this point, policeman Mosqueda came near them and escorted him and Banaag back to Joses house. At Joses house, Mosqueda announced to the crowd that JUANITO was the suspect in GENELYNs untimely demise. JUANITO was then detained and investigated at the police

station. During his investigation by the police officers and by Judge Dicon, he was 23 never assisted by a lawyer. In its challenged decision, the trial court found JUANITO guilty beyond reasonable doubt of the crime of rape with homicide. On the challenge on the admissibility of the admissions he made to Barangay Captain Ceniza and Judge Dicon, it ruled that they are not the law enforcement authorities referred to in the constitutional provisions on the conduct of custodial investigation. Hence, JUANITOs confessions made to them are admissible in evidence. Moreover, no ill-motive could be attributed to both Ceniza and Judge Dicon. It also found unsubstantiated JUANITOs claim that he was threatened by his fellow inmates to make the confession before Judge Dicon; and that, even assuming that he was indeed threatened by them, the threat was not of the kind contemplated in the Bill of Rights. The threat, violence or intimidation that invalidates confession must come from the police authorities and not from a civilian. Finally, it ruled that JUANITOs self-serving negative evidence cannot stand against the prosecutions positive evidence. The trial court, thus, convicted JUANITO of rape with homicide and imposed on him the penalty of death. It also ordered him to pay the heirs of the victim the amount of P50,000 by way of civil indemnity. Hence, this automatic review. In his Appellants Brief, JUANITO imputes to the trial court the following errors: I THE COURT A QUO GRAVELY ERRED IN ADMITTING THE ALLEGED CONFESSION OF THE ACCUSED-APPELLANT TO WITNESSES LUZVIMINDA CE[N]IZA AND JUDGE CELESTINO DICON AS EVIDENCE AGAINST THE ACCUSED. II ON ACCOUNT OF THE INADMISSIBILITY OF THE ACCUSEDS ALLEGED CONFESSION THE COURT GRAVELY ERRED IN CONVICTING THE ACCUSED BASED ON MERE CIRCUMSTANTIAL EVIDENCE. Anent the first assigned error, JUANITO maintains that the trial court violated Section 25 12(1) of Article III of the Constitution when it admitted in evidence his alleged extrajudicial confession to Barangay Captain Ceniza and Judge Dicon. According to him, the two failed to inform him of his constitutional rights before they took it upon themselves to elicit from him the incriminatory information. It is of no moment that Ceniza and Dicon are not police investigators, for as public officials it was incumbent upon them to observe the express mandate of the Constitution. While these rights may be waived, the prosecution failed to show that he effectively waived his rights through a
24

22

written waiver executed in the presence of counsel. He concludes that his extrajudicial confession is inadmissible in evidence. In his second assigned error, JUANITO asserts that the prosecution miserably failed to establish with moral certainty his guilt. He points to the contradicting testimonies of the witnesses for the prosecution concerning the retrieved rope owned by him. Consequently, with the inadmissibility of his alleged extrajudicial confession and the apparent contradiction surrounding the prosecutions evidence against him, the trial court should have acquitted him. In the Appellees Brief, the Office of the Solicitor General (OSG) supports the trial courts finding that JUANITO is guilty beyond reasonable doubt of the crime as charged. His bare denial and alibi cannot overcome the positive assertions of the witnesses for the prosecution. Moreover, he was unable to establish by sufficient evidence that Barangay Captain Ceniza and Judge Dicon had an ulterior motive to implicate him in the commission of the crime. The OSG recommends that the civil indemnity of P50,000 awarded by the trial court be increased to P75,000; and that in line with current jurisprudence, moral damages in the amount of P50,000 be awarded to the heirs of GENELYN. We shall first address the issue of admissibility of JUANITOs extrajudicial confession to Barangay Captain Ceniza. It has been held that the constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner whereby the suspect orally admits having committed the crime. Neither can it apply to admissions or confessions made by a suspect in the commission of a crime before he is placed under investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him 26 from freely and voluntarily telling the truth. In the instant case, after he admitted ownership of the black rope and was asked by Ceniza to tell her everything, JUANITO voluntarily narrated to Ceniza that he raped GENELYN and thereafter threw her body into the ravine. This narration was a spontaneous answer, freely and voluntarily given in an ordinary manner. It was given before he was arrested or placed under custody for investigation in connection with the commission of the offense. It may be stressed further that Cenizas testimony on the facts disclosed to her by JUANITO was confirmed by the findings of Dr. Lumacad. GENELYNs physical resistance and biting of the right shoulder of JUANITO were proved by the wound on JUANITOs right shoulder and scratches on different parts of his body. His admission

that he raped GENELYN was likewise corroborated by the fresh lacerations found in GENELYNs vagina. Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part of Ceniza, which could have compelled her to testify falsely against him. Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, the said 27 testimony is trustworthy. However, there is merit in JUANITOs claim that his constitutional rights during custodial investigation were violated by Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without the assistance of 28 counsel. Judge Dicons claim that no complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that at that time JUANITO was already under the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge Dicon for the administration of their oaths on their statements. While Mosqueda claims that JUANITO was not arrested but was rather brought to the police headquarters on 4 August 1996 for his protection, the records reveal that JUANITO was in fact arrested. If indeed JUANITOs safety was the primordial concern of the police authorities, the need to detain and deprive him of his freedom of action would not have been necessary. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense, and it is made by an actual restraint of the person to be arrested, or by his submission to the person making 29 the arrest. At any rate, while it is true that JUANITOs extrajudicial confession before Judge Dicon was made without the advice and assistance of counsel and hence inadmissible in evidence, it could however be treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it or who 30 conducted the investigation of the accused. JUANITOs defense of alibi is futile because of his own admission that he was at the scene of the crime. Alibi is a defense that places an accused at the relevant time of a crime in a place other than the scene involved and so removed therefrom as to render it 31 impossible for him to be the guilty party. Likewise, a denial that is unsubstantiated by clear and convincing evidence is a negative and self-serving evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who 32 testify on affirmative matters.

10

Anent the alleged inconsistencies in the details surrounding the recovery of the black rope, the same are irrelevant and trite and do not impair the credibility of the witnesses. Minor inconsistencies and honest lapses strengthen rather than weaken the credibility of witnesses, as they erase doubts that such testimonies have been coached or 33 rehearsed. What matters is that the testimonies of witnesses agree on the essential fact that JUANITO was the owner of the black rope and the perpetrator of the crime. Even if JUANITOs confession or admission is disregarded, there is more than enough evidence to support his conviction. The following circumstances constitute an unbroken chain proving beyond reasonable doubt that it was JUANITO who raped and killed GENELYN: 1. At about 5:00 p.m. of 3 August 1996, Jose Camacho bid his daughter GENELYN to borrow some rice from their neighbor Wilfredo Balogbog. GENELYN did so as told, but failed to return home. 2. About 7:30 p.m. of the same day, JUANITO arrived at Ernestos house bringing a sack and kerosene lamp, trembling and apparently weak. 3. Thirty minutes thereafter, JUANITO returned to Ernestos house and told Ernesto that he saw a foot of a dead child at the waterfalls, without disclosing the identity of the deceased. 4. When JUANITO and Ernesto were at Joses house, the former told Jose that it was GENELYNs foot he saw at the waterfalls. 5. GENELYN was found dead at the waterfalls with fresh lacerations on her vaginal wall at 9 and 3 oclock positions. 6. At about 8:00 a.m. of 4 August 1996, Antonio Camacho, Andres Dolero and Edgar Sumalpong recovered at the crime site a black rope, which they turned over to Ceniza, who was then at GENELYNs wake. 7. When Ceniza asked the people around as to who owned the black rope, JUANITO claimed it as his. 8. When Ceniza examined JUANITOs body, she saw a wound on his right shoulder and scratches on different parts of his body. 9. Dr. Lumancads physical examination of JUANITO revealed abrasions, which could have been caused by scratches. Guilt may be established through circumstantial evidence provided that the following requisites concur: (1) there is more than one circumstance; (2) the inferences are

based on proven facts; and (3) the combination of all circumstances produces a 34 conviction beyond reasonable doubt of the guilt of the accused. All these requisites are present in the case at bar. With JUANITOs guilt for rape with homicide proven beyond reasonable doubt, we are ** constrained to affirm the death penalty imposed by the trial court. Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, pertinently provides: "When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." As to JUANITOs civil liability, prevailing judicial policy has authorized the mandatory 35 award of P100,000 as civil indemnity ex delicto in cases of rape with homicide (broken down as follows: P50,000 for the death and P50,000 upon the finding of the fact of rape). Thus, if homicide is committed by reason or on occasion of rape, the indemnity in the amount of P100,000 is fully justified and properly commensurate with the seriousness of the said special complex crime. Moral damages in the amount of P50,000 may be additionally awarded to the heirs of the victim without the need for pleading or proof of the basis thereof; the fact that they suffered the trauma of mental, physical and psychological sufferings, which constitutes the basis for moral damages 36 under the Civil Code, is too obvious to still require the recital thereof at the trial. WHEREFORE, the decision of the Regional Trial Court, Branch 30, Aurora, Zamboanga Del Sur, in Criminal Case No. AZ-CC-96-156, finding accused-appellant Juanito Baloloy guilty of the crime of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the modification that he is ordered to pay the heirs of Genelyn Camacho P100,000 as indemnity and P50,000 as moral damages. In consonance with Section 25 of R.A. No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. Costs de oficio. SO ORDERED.

11

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 142932 May 29, 2002

firearm one NICANOR SURALTA, thereby inflicting upon the latter wounds which caused his death.
1w phi1.nt

CONTRARY TO LAW.2 When arraigned on December 1, 1992, the three entered a plea of not guilty, whereupon they were tried.3 On June 4, 1992, the accused filed a Joint Petition with Leave of Court for Reinvestigation, which the court granted. As a result of the reinvestigation, a Motion to Dismiss with respect to accused Joseph Bernaldez was filed. On September 9, 1993, the court issued an order stating On record is a motion to dismiss dated September 7, 1993 filed by OIC 1st Asst. Prov'l. Prosecutor Pableo B. Baldoza. Finding the grounds stated therein to be well-taken and in order, said motion is granted. WHEREFORE, the case against accused Joseph Bernaldez only is hereby ordered dismissed. The Provincial Warden is hereby directed to release immediately from custody the person of Joseph Bernaldez, if there is no other case that will warrant his further confinement in jail. SO ORDERED.4

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOEL GONZALES, JOSEPH BERNALDEZ, and ROMEO BERNALDEZ, accused, JOEL GONZALES and ROMEO BERNALDEZ, accused-appellants MENDOZA, J.: This is an appeal from the decision,1 dated February 10, 2000, of the Regional Trial Court, 11th Judicial Region, Branch 6, Mati, Davao Oriental, insofar as it finds accused-appellants Joel Gonzales and Romeo Bernaldez guilty as principals of the complex crime of robbery with homicide and sentences each of them to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law, and to indemnify jointly and severally the heirs of the victim Nicanor Suralta in the amounts of P50,000.00 as civil indemnity and P2,425.00, plus the costs of the proceedings. Accused-appellants Joel Gonzales and Romeo Bernaldez were charged with Joseph Bernaldez with robbery with homicide under Art. 294(1) of the Revised Penal Code in an information which alleged That on or about July 5, 1992, in the Municipality of San Isidro, Province of Davao Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of violence and intimidation, with intent to gain, in conspiracy with one another, did then and there wilfully, unlawfully and feloniously take, steal and carry away "Seiko" diver's watch valued at P1,000.00, one "Sanyo" cassette valued at P600.00 and cash amounting to P2,725.00, with a total value of FOUR THOUSAND THREE HUNDRED TWENTY FIVE (P4,325.00) PESOS, Philippine Currency, belonging to Nicanor Suralta to the damage and prejudice of his heirs, represented by his widow, Carolita U. Suralta in the aforestated sum; and on the occasion thereof, the said accused, armed with an unlicensed handgun and a knife, with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with said

Thereafter, trial proceeded against accused-appellants Joel Gonzales and Romeo Bernaldez. The facts are as follows: At about 9:30 o'clock in the evening of July 5, 1992, the spouses Nicanor and Carolita Suralta had visitors at their house in Bagsac, Manikling, San Isidro, Davao Oriental. Nicanor was having drinks with Arsenio Abonales, Bobong Lamanilao, and Nicasio Lamanilao when two armed men, one carrying a gun and the other a knife, suddenly entered the house through the kitchen door. The one carrying a gun had a bonnet over his face, with only his eyes exposed, while the other one carrying a knife had the lower half of his face covered with a handkerchief. The knife-wielder held Chona, the third child of the Suralta spouses, and announced a holdup. All persons in the house were ordered to go inside the bedroom, about two meters away from the sala. There, the man with a gun demanded a gun and money from Nicanor. Nicanor answered that he had no gun, but asked his wife to give money to the holduppers. Carolita gaveP2,100.00, which was intended to be deposited in the bank, to the knife-wielder, who placed it in his pocket. Then the knife-wielder ransacked the cabinet and took the remaining amount of P325.00, which was intended for the school expenses of the Suralta children. In addition, he

12

took the family's Sanyo cassette recorder and some clothes. The holduppers also divested Arsenio Abonales, one of the guests, of his Seiko diver's wristwatch and then left.5 As the holduppers were leaving, two gunshots rang out. Carolita thought that the first one was a mere warning shot, but later Nicanor was heard moaning. Carolita became hysterical after seeing her husband lying in a pool of his own blood. Nicanor was immediately brought to the Lupon Emergency Hospital where he was given first aid. Thereafter, he was transferred to the Tagum Regional Hospital but he eventually died.6 The death certificate (Exh. B) states the cause of his death as Immediate Cause: CARDIO-RESPIRATORY ARREST Antecedent Cause: MULTIPLE [GUNSHOT WOUNDS] PENETRATING ABDOMEN PERFORATING WITH MASSIVE CONTAMINATION, PERFORATING CECUM, APPENDECIAL TRANSECTION MESENTERIC VISSEL, ILEUM, JEJUNUM & SIGMOID Other significant conditions contributing to death: HYPOVOLEMIA. 7

Bernaldez was identified as the knife-wielder who wore a handkerchief to cover the lower portion of his face.11 Carolita volunteered that accused-appellant Bernaldez is in fact her nephew. Carolita and Arsenio said that they were able to recognize the suspects despite their disguises because they were only one to two meters away from each other during the holdup, and the rooms of the house were well-lighted.12 In addition, Carolita was able to identify the Sanyo cassette recorder (Exh. D) as the one taken from their house because of the broken antennae and the name "Nick Suralta" written inside the battery compartment. On the other hand, Arsenio likewise identified the Seiko diver's watch (Exh. A) as his.13 Accused-appellants put up the defense of denial and alibi. Accused-appellant Joel Gonzales testified that he was in Tandang Sora, Governor Generoso, Davao Oriental the whole day of July 5, 1992 working in his mother-inlaw's farm, piling coconut palm leaves together with his brother-in-law. In the evening, he had supper in his house and slept there together with his family.14 On July 13, 1992, Gonzales was suffering from a fever. While he was sleeping, he was awakened by Policeman Danny Cabanilas, Inspector Arnold Malintad and Eddie Tano, who took him to the Governor Generoso police station in connection with a robbery in the ACF bus compound. At the police station, he was investigated by Inspector Malintad and thereafter put in jail. While inside the jail, people came to see him. Malintad pointed at him and asked a woman companion if he was one of the persons who committed the robbery in San Isidro. The woman answered, "I do not know them." For this reason, both Malintad and the woman left. However, upon their return, the woman said that she recognized the men and pointed to him and accused-appellant Romeo Bernaldez as those who were involved in the robbery.15 On July 31, 1992, accused-appellant Gonzales was taken to Mati by Policemen Ernesto Bahan and Alfredo Castro, but, before reaching Mati, somewhere in Baas, they alighted from the jeep and he was made to kneel. He was beaten up by Bahan and Castro with the use of an armalite and hit on the chest and the back. He was then brought to the Mati Cemetery and there forced to confess. Thereafter, he was placed inside an open tomb for 12 minutes and then he was taken to the Mati Municipal Jail. After three days, he was taken to Governor Generoso. He denied participation in the crime and stated that the cassette recorder and other items were not confiscated from him.16 For his part, accused-appellant Romeo Bernaldez claimed that at around 9:30 o'clock in the evening of July 5, 1992, he was sleeping in his house in Tibanban, Governor Generoso together with his father, mother, and two sisters. On July 13,

The incident was reported to the San Isidro Police on the same night. Carolita Suralta and Arsenio Abonales gave descriptions of the holduppers and told the responding police investigators that they would be able to recognize the suspects if they saw them again.8 On July 12, 1992, there was another holdup inside the ACF passenger bus compound in the neighboring municipality of Magdug, Governor Generoso, Davao Oriental. The police team sent to investigate the incident was able to pick up suspects,9 one of whom was accused-appellant Joel Gonzales. He was wearing a wristwatch (Exh. A) and had a handgun (Exh. H). Other items, consisting of watches, a cassette recorder (Exh. D), a chain saw, and spare parts, were recovered from his house, some of which were claimed by passengers of the ACF bus line.10 Police Inspector Arnold Malintad of Governor Generoso, head of the team investigating the robbery of the ACF bus compound, informed Capt. Adane Sakkam, Police Chief of San Isidro, about the apprehension of accused-appellant Gonzales and the recovery of the items from him. Accordingly, on July 14, 1992, Capt. Sakkam, Carolita Suralta, and Arsenio Abonales proceeded to the Governor Generoso Police Station. Carolita and Arsenio identified accused-appellants Joel Gonzales and Romeo Bernaldez as the holduppers. Joel Gonzales was identified as the man armed with a gun who wore a bonnet to cover his face, while Romeo

13

1998, he went to the Municipal Jail of Governor Generoso to answer accusations by the police that he was concealing a firearm. At the police station, he was investigated by Inspector Malintad for the firearm he allegedly kept, which he denied. He was later placed in jail.17 Inspector Malintad, however, testified that Bernaldez was actually arrested in his house in Tibanban.18 Romeo Bernaldez further testified that on July 14, 1992, Carolita Suralta, accompanied by Policemen Sakkam and Malintad, went to the jail and made the prisoners stand up, after which they went to Malintad's office. Then, the two returned to the jail cell after a few minutes and Carolita pointed to him as among those involved in the robbery.19 Romeo Bernaldez also said that his residence was approximately 25 kilometers from Manikling, San Isidro, where the robbery with homicide took place, and could be reached by several means of land transportation.20 Except for accused-appellants, no other witness was presented by the defense. Thereafter, SPO4 Ernesto Bahan was presented to rebut accused-appellant Joel Gonzales's testimony. According to Bahan, at around 5 o'clock in the morning of July 21, 1992, he left for Governor Generoso on official mission together with SPO3 Castro, SPO1 Lindo, PO3 Jaljis, and PO3 Hassan, upon order of his superior to fetch Joel Gonzales, per letter-request of Assistant Provincial Director Supt. Melchisedeck Barggio. Acting on said letter-request, Judge Rodolfo Castro of Municipal Trial Court of Mati ordered Inspector Malintad, the Chief of Police of Governor Generoso, to turn over Joel Gonzales. The party left Sigaboy, Governor Generoso at past 11 o'clock in the morning and arrived in Mati at around 1:30 o'clock in the afternoon of July 21, 1992. To support his statement, SPO4 Bahan read to the court page 362 of the police blotter for July 21, 1992, 1350H, to wit: SPO3 Bahan, SPO3 Castro, SPO1 Lindo, PO3 Jaljis, PO3 Azan arrived [at the] Police Station from Governor Generoso and brought in the person of Joel Gonzales regarding the request of Chief Inspector Melchisedeck C Bargio PNP Davao Or Provincial Command, Mati Dvo Or to Mun. Trial Court of Governor Generoso, Province of Davao Or duly signed by [Judge] Rodolfo Castro to turn over the custody of accused to Mati Police Station for investigation, in relati[on] to CC No. 7183 for Robbery with Homicide which is now pending in the Mun. Trial Court of Mati, same the Chief of Police of Governor Generoso granted to be brought at Mati Police Station provided that maximum security must be implemented and to be returned said to Governor Generoso Police Station within three (3) days same said Joel Gonzales also involved in Robbery with Homicide in CC No. 7183 as pinpointed by two witnesses subject is hereby placed under

police custody as per verbal order of OIC SPO1 Fortuna to the Jailer guard "BJMP" SPO3 Cabillada.21 SPO4 Bahan denied having taken accused-appellant Joel Gonzales to the Mati Cemetery. He said that when they arrived in Mati, he immediately turned over Joel Gonzales to the Chief of Police, who then turned him over to the investigating section.22 He further testified that accused-appellant Joel Gonzales was taken to Mati in connection with Criminal Case No. 7183. Although SPO4 Bahan admitted he had been administratively charged with maltreating detention prisoners, he said the case was later dismissed and he was exonerated.23 After trial, judgment was rendered by the trial court finding accused-appellants guilty beyond reasonable doubt as principals of the crime of robbery with homicide. The dispositive portion of its decision reads: WHEREFORE, the Court finds accused Joel Gonzales and Romeo Bernaldez guilty beyond reasonable doubt as Principal[s] of the crime of Robbery with Homicide and hereby sentences each of them to suffer RECLUSION PERPETUA, with the accessory penalties provided by law, to indemnify jointly and severally, the Heirs of the victim, Nicanor Suralta, the sum of P50,000.00, to indemnify also jointly and severally said heirs the sum ofP2,425.00, plus the costs of the proceedings. The cassette [recorder] (Exhibit "D") is ordered returned to the Suralta family, while the wristwatch (Exhibit "A") to Arsenio Abonales. SO ORDERED.24 Counsel for accused-appellant Joel Gonzales assigns the following errors allegedly committed by the trial court:
I. THAT THE TRIAL COURT SERIOUSLY ERRED IN DECIDING THAT THE ACCUSED WERE POSITIVELY IDENTIFIED BY PROSECUTION WITNESSES; II. THAT THE EVIDENCE ADDUCED BY THE PROSECUTION DURING THE TRIAL ARE INADMISSIBLE IN LAW.25 On the other hand, the Public Attorney's Office, on behalf of both accused-appellants, assigns the following errors:

14

I. THE COURT A QUO GRAVELY ERRED IN CONVICTING BOTH ACCUSED OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE IDENTITIES OF THE ASSAILANTS BEYOND REASONABLE DOUBT. II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED BASED ON CIRCUMSTANTIAL EVIDENCE.26

that justice is done will not be served should the witness abandon his conscience and prudence and blame one who is innocent of the crime.31 Indeed, prosecution witnesses positively and categorically identified accusedappellants as the armed men who held them up on July 5, 1992 and killed the victim. There was no possibility of mistaken identification because prosecution witnesses were able to observe their movements and their body built and height despite the fact that accused-appellants covered their faces.32 As Carolita Suralta testified:
COURT TO THE WITNESS: Q A You stated that one of the robbers was wearing a bonnet, is that right? Yes, Your Honor.

We find accused-appellants' contentions to be without merit. After reviewing the records of this case, we find that the prosecution evidence establishes the guilt of accused-appellants beyond reasonable doubt. A conviction for robbery with homicide requires proof of the following elements: (a) the taking of personal property with violence or intimidation against persons or with force upon things; (b) the property taken belongs to another; (c) the taking be done with animus lucrandi (intent to gain); and (d) on the occasion of the robbery or by reason thereof, homicide in its generic sense is committed. The offense becomes the special complex crime of robbery with homicide under Art. 294 (1) of Revised Penal Code if the victim is killed on the occasion or by reason of the robbery. Even the Public Attorney's Office concedes that the prosecution was successful in proving the commission of the crime, questioning only the identification made by the prosecution witnesses of accused-appellants as the perpetrators of the crime.27 First. Accused-appellants contend that the trial court erred in giving credence to the identification made by the two prosecution witnesses, Carolita Suralta and Arsenio Abonales. They argue that the manner by which accused-appellants were identified was suggestive and showed partiality. They argue further that, most often, the bereaved families of victims are not concerned with the accuracy of identification because they are overwhelmed by passion for vindication, regardless of whether or not the suspect is the real culprit. This contention is without merit. We find no reason for setting aside the lower court's conclusion on the accuracy and correctness of the witnesses' identification of the accused-appellants as the persons who robbed the Suralta spouses and the couples' guest Arsenio Abonales and killed Nicanor Suralta. It is the most natural reaction of victims of criminal violence to strive to ascertain the appearance of their assailants and observe the manner in which the crime was committed. Most often, the face and body movements of the assailants create a lasting impression on the victims' minds which cannot be easily erased from their memory. 28 There is no evidence to show that the eyewitnesses were so paralyzed with fear that they mistook accused-appellants for the men who robbed and killed the victims. On the contrary, fear for one's life may even cause the witness to be more observant of his surroundings.29 Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, attain a high degree of reliability in identifying criminals. 30 The desire to see

Q And at that time when he was wearing a bonnet, you were not able to identify him? A Q A .... Q How is it that you can recognize his voice and his movements that he is the accused Joel Gonzales, considering that he was wearing a bonnet and he is not even your neighbor? A Because at the time he said, "silence", I recognized his voice, Your Honor. 33 I cannot recognize him, but I can recognize his voice and his actions. Why is it that you can recognize his voice and his actions? When they got inside, Your Honor.

Accused-appellants' counsels attempted to confuse prosecution witnesses during the trial by using the word "recognize" to simultaneously mean identification of face and knowledge of the name. But the witnesses were able to stand their ground. We agree with private prosecutor that a mistake is likely when one equates knowing the person by his movements and by his voice with knowing a person by his name. Although the names of accused-appellants were supplied by the police, the witnesses nevertheless recognized accused-appellants when they visited them in the Governor Generoso jail.34 What is important is not the ability of an eyewitness to give the true and correct names of the accused, but rather his ability to identify the persons actually seen committing the offense.35

15

Moreover, in the absence of proof that a witness is moved by improper motive, it is presumed that he was not so moved and, therefore, his testimony is entitled to full faith and credit.36 That presumption has not been overcome in this case. Consequently, the identification of accused-appellants as the killers of Nicanor Suralta stands. Nor is motive for the killing important when there is no doubt as to the identity of the perpetrators of the crime.37 But here the motive is plain: the victim was killed to rob him of his possessions. Furthermore, alibi is an inherently weak defense which cannot prevail over the positive identification of accused-appellants. The defense of denial and alibi, unsubstantiated by clear and convincing evidence, is self-serving and cannot be given greater evidentiary weight than the positive testimonies of credible witnesses.38 Second. Accused-appellant Gonzales contends that during the interrogation and investigation, he and his co-appellant Romeo Bernaldez were not informed of their rights to remain silent and to secure the services of counsel, in violation of 2 and 12, Art. III of the Constitution. Hence, their admission of the commission of the crime is inadmissible in evidence against them. This contention lacks merit. Inspector Arnold Malintad testified that on July 14, 1992, accused-appellant Joel Gonzales was picked up at around 8:00 a.m. near his residence in Tandang Sora, Governor Generoso. Accused-appellant Gonzales had a handgun tucked in his waistline and was wearing a wristwatch. According to Inspector Malintad, accusedappellant Gonzales admitted participation in the crime upon interrogation and voluntarily surrendered the stolen goods to him.
ATTY. LADERA: Q Where did you pick up Joel Gonzales? A At Barangay Tandang Sora, Governor Generoso. .... Q In his residence? A In the vicinity of his residence. Q Where? A At the barangay road. Q Was he sitting or standing? A He was standing. Q He was not bringing anything? A A handgun and a wristwatch. Q When did you recover the cassette [recorder]? A I told him to turn over the loot of the ACF. Q You told the accused to turn over the loot[?] A Yes.

.... Q Where? A He was apprehended with the gun and the wristwatch and I brought him to the police station and interrogated him and after the interrogation, he accepted the commission of the crime and he told me that he will voluntarily surrender the items in his house. .... Q When you went to the house of Joel Gonzales, when was that that you said he voluntarily turned over the loot? A On that date. Q The time when you went to the house? A Yes. .... Q Did you have any search warrant? A I did not go inside the house. Q How many of you went to the house? A About ten (10). Q You were armed? A Yes. Q You surrounded the house of Joel Gonzales? A No, because it is only a matter of asking his wife to surrender the items.39

To be sure, accused-appellants were already under custodial investigation when they made their admissions to the police. At that point, the investigation had ceased to be a general inquiry into an unsolved crime and had began to focus on the guilt of a suspect and for this reason the latter were taken into custody or otherwise deprived of freedom in a substantial way.40 Hence, the admissions made by accused-appellants are inadmissible in evidence pursuant to Art. III, 2(1) and (3) of the Constitution. However, the defense failed to raise its objections to the admissibility of these statements immediately, as required by Rule 132, 36, when Inspector Malintad was presented as a witness for the prosecution or when specific questions concerning the confession were asked of him. Consequently, accusedappellants are deemed to have waived their right to object to the admissibility of Inspector Malintad's testimony.41Indeed, it was even the defense counsel who provided the opportunity for Inspector Malintad to elaborate on the circumstances of accused-appellant Gonzales' admission in the course of his cross-examination of the said witness. Inspector Malintad also claimed that accused-appellant Joel Gonzales told him that one of his companions was Romeo Bernaldez. He said:
ATTY. LOPEZ: (CROSS EXAMINATION) For accused Romeo Bernaldez. ....

16

Q So, this Romeo Bernaldez was not a suspect in the Robbery? A He was picked up later. Q Where did you pick him up? A At Tibanban. Q Why did you pick him up? A It was Joel Gonzales who told me. Q You mean to tell us that Joel Gonzales told you that Romeo Bernaldez is one of his companions? A Yes and he told us that he is in Barangay Tibanban and we picked 42 him up. On the other hand, Capt. Sakkam testified that when he was in the Municipal Jail at the Police Station of Governor Generoso in order to identify the suspects, he asked them who killed the victim and accused-appellant Romeo Bernaldez answered that it was accused-appellant Joel Gonzales. COURT: .... Q Were you able to talk with all the accused? A When I saw them, I asked one of them as to who killed the victim, and the other one answered - I was not responsible in the killing - and he said, "Joel Gonzales killed the victim". Q Who was the one who told you that the one who shot the victim was Joel Gonzales? 43 A It was Romeo Bernaldez, the short one. Such admission by accused-appellant Bernaldez may be taken as evidence against his co-appellant Joel Gonzales. For the constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary 44 manner whereby the accused orally admitted having committed the crime. Accused-appellant Joel Gonzales also contends that Inspector Malintad had no warrant when the latter conducted a search of his residence. He contends that the alleged items taken during the robbery in the ACF bus compound and the cassette recorder and wristwatch are inadmissible in evidence against him. This contention deserves no merit. As explained by Inspector Malintad, accused-appellant Joel Gonzales voluntarily surrendered the stolen goods to him. When he went to the house of accused-appellant Joel Gonzales, the watches, cassette recorder, chainsaw, and spare parts were given to him. What thus happened was a consented search, which constitutes a waiver of the constitutional requirement for a search warrant. It has been held that the right to be secure from an unreasonable search may be waived either 45 expressly or impliedly. And when the accused himself waives his right against unreasonable search and seizure, as in this case, the exclusionary rule (Art. III, 3(2)) in the Constitution does not apply. Third. Accused-appellant Joel Gonzales denies that the stolen goods had been taken from him. Inspector Malintad testified that he recovered watches, a cassette recorder, a chainsaw, and spare parts from accusedappellant Joel Gonzales when he arrested the latter in his house. There is

no reason to doubt Inspector Malintad's claim that the stolen items were indeed recovered from accused-appellant Gonzales. These items were definitively identified by the owners as those taken from them. Between the testimonies of the police officers, who enjoy the presumption of regularity in their duties, and the bare denials of accused-appellants, we are more inclined to believe the police officers. This is true especially considering that the police officers have not been shown to have any motive to testify falsely against accused-appellants.

Rule 131, 3(j) of the Revised Rules on Evidence provides "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; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him." Since the subject items were found in the possession of accused-appellant Joel Gonzales, he is then presumed to be the taker of the stolen items. Accused-appellant Gonzales was unable to satisfactorily explain his possession of the stolen items. All told, we hold the evidence in this case establishes the guilt of accusedappellants beyond reasonable doubt. Under Art. 294(1) of the Revised Penal Code, as amended by R.A. No. 7659, the penalty for robbery with homicide ranges from reclusion perpetua to death. In view of the absence of aggravating and mitigating circumstances attending the commission of the crime, the penalty of reclusion perpetua was correctly imposed by the trial court on accusedappellants. The Court likewise sustains the award of P50,000.00 as civil indemnity for the death of the victim, Nicanor Suralta, the same being in line with prevailing jurisprudence.46 An additional amount of P50,000.00 as moral damages should also be awarded in favor of the heirs of the victim. Such damages require no further proof other than the death of the victim.47 The restitution of the cash and of the stolen items to their respective owners ordered by the trial court is affirmed. WHEREFORE, the decision, dated February 10, 2000, of the Regional Trial Court, 11th Judicial Region, Branch 6, Mati, Davao Oriental is AFFIRMED, with the modification that accused-appellants Joel Gonzales and Romeo Bernaldez are sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Nicanor Suralta the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P2,425.00 as restitution for the stolen cash, plus costs of the proceedings. The cassette recorder is ordered returned to the heirs of Nicanor Suralta, and the wristwatch to Arsenio Abonales.
1wphi 1.nt

SO ORDERED

17

THIRD DIVISION

worth of methamphetamine hydrochloride or shabu. The police officers did not immediately arrest him, however. Instead, they applied for a Search Warrant for [6] appellants residence from the Regional Trial Court (RTC) of Pasay City based on [7] their firm belief that there was a large quantity of illegal drugs in his house. On June 14, 1999, a raiding team composed of SPO1 Fernandez and SPO1 Serquea, together with PO2 Abulencia, PO3 Noel Adtu and PO2 Gerardo [8] Jimenez, proceeded to appellants above-said residence armed with Search Warrant [9] No. 99-0038 issued by Br. 109 of the RTC of Pasay City commanding them to make an immediate search anytime of the day or night of appellants residence and to seize and take possession of METAMPHETAMINE HYDROCHLORIDE (Shabu), weighing scale, other drug paraphernalias and proceeds of the above crime. Soon after the police officers arrived at appellants residence at around 6:00 in the [10] evening, they, to enable them to gain entry to the two-storey house, sideswept [11] (sinagi) a little appellants Toyota Corolla GLI car which was parked outside. Jack Go, appellants son and the only one present at the house at the time, thereupon opened the door of the house and the policemen at once introduced themselves, informed him that they had a warrant for the search of the premises, and promptly handcuffed him to a chair. SPO1 Fernandez, SPO1 Serquea and PO2 Abulencia [12] entered the house, while PO3 Adtu and PO2 Jimenez remained outside. On instruction of SPO1 Fernandez, SPO1 Serquea left to summon barangay officials to witness the search. SPO1 Serquea returned five minutes later with Barangay Kagawads Gaspar Lazaro (Kagawad Lazaro) and Emmanuel Manalo (Kagawad Manalo) who were advised by SPO1 Fernandez to be witnesses to the search and to afterwards sign the inventory receipt and affidavit of orderly search. As instructed, the two barangay kagawads proceeded to the upper floor of [13] appellants house with SPO1 Serquea and PO2 Abulencia. While SPO1 Fernandez, [14] who remained downstairs in the sala, instructed the handcuffed Jack Go to witness the search, the latter refused since there will be no more left in the sala of the house [15] anyway there is a barangay official. In the course of the search of the premises which took place from 6:00 to 11:00 in [16] the evening, Kagawad Lazaro and PO2 Abulencia recovered one knot tied [17] transparent plastic bag containing white crystalline substance from the drawer of a cabinet. Also seized from the residence of appellant were the following: (a) one plastic [18] [19] bag containing yellowish substance found by SPO1 Serquea; (b) a weighing scale discovered by SPO1 Fernandez; (c) assorted documents; (d) passports; (e) bank books; (f) checks; (g) a typewriter; (h) a check writer; (i) several dry seals and (j) stamp [20] [21] pads; (k) Chinese and Philippine currency; (l) and appellants Toyota Corolla [22] GLI car (the car). The plastic bag containing the white crystalline substance was marked by SPO1 Fernandez as EGF-A-1, while the plastic bag with the yellowish substance was [23] marked as EGF-A-2.

[5]

[G.R. No. 144639. September 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENNY GO, appellant. DECISION CARPIO-MORALES, J.: On direct appeal before this Court is the Decision of the Regional Trial Court of Manila, Branch 41, in Criminal Case No. 99-174439 finding appellant Benny Go guilty of violating Section 16, Article III in relation to Section 2 (e-2), Article I of Republic Act [1] No. 6425, as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P1,000,000.00. The Information filed against appellant charged as follows: That on or about June 14, 1999, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) knot tied transparent plastic bag containing TWO HUNDRED FOUR (204) grams of white crystalline substance known as Shabu containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription thereof. Contrary to law.
[2]

Upon arraignment, appellant, assisted by counsel, pleaded not guilty to the [3] offense charged. Subsequently, at the pre-trial conference on August 10, 1999, the parties stipulated that (1) the subject Search Warrant is valid; and (2) the Forensic [4] Chemist conducted only a qualitative examination on the subject specimen. The prosecution presented the following witnesses: (1) Police Inspector Edwin Zata, Forensic Chemical Officer of the Philippine National Police (PNP) Crime Laboratory; (2) PO2 Gerardo Abulencia (PO2 Abulencia); (3) SPO1 Edgardo G. Fernandez (SPO1 Fernandez); and (4) SPO1 Ver M. Serquea (SPO1 Ver Serquea) whose testimonies sought to establish the following facts: On April 28, 1999, SPO1 Fernandez, SPO1 Serquea and a confidential informant conducted a test buy operation at the residence of appellant at 1480 General Luna Street, Ermita, Manila during which they purchased from him P1,500.00

18

With the exception of the car, all the seized items were brought to the dining table [24] on the ground floor of appellants house for inventory. In the meantime, appellants wife Shi Xiu Ong and his friends Samson Go and [25] Peter Co arrived one after the other at the house. Appellant himself arrived at 9:30 in [26] the evening when the search was almost through. After the inventory had been taken, SPO1 Fernandez prepared a handwritten [27] [28] Inventory Receipt and a document captioned Affidavit of Orderly Search, the contents of which he read to appellant. On instruction of SPO1 Fernandez, Jack Go also explained the contents of the documents to appellant who then signed them as [29] did kagawads Manalo and Lazaro and Jack Go as witnesses. The police officers then brought appellant, his wife, son and friends, along with the seized items, to Camp Bagong Diwa, Bicutan, Taguig, Metro Manila for verification and investigation. Appellant was detained while the others were eventually released. The [31] arresting officers jointly prepared an Affidavit of Arrest dated June 15, 1999 which, among other things, contained an enumeration of the seized items identical to that in the handwritten Inventory Receipt. And SPO1 Fernandez prepared a Return of Search st [32] Warrant 99-0038 dated June 18, 1999 and a referral paper 1 Indorsement with the same enumeration of seized items. Also on June 15, 1999, SPO1 Serquea brought the plastic bag containing the white crystalline substance (Exhibit A) and the plastic bag containing the yellowish [33] substance (Exhibit B) to the PNP Crime Laboratory together with a request for [34] laboratory examination. Upon examination, Exhibit A was found to contain 204 grams of white crystalline substance containing methamphetamine hydrochloride, a [35] regulated drug. Exhibit B, on the other hand, was found negative for any prohibited [36] and/or regulated drug. Meanwhile, the seized documents, passports, dry seals and stamp pads were [37] brought to the Bureau of Immigration and Deportation, while the bank books were [38] forwarded to the corresponding banks for verification. The prosecution presented in evidence the Yamato weighing scale, claimed to have been recovered by SPO1 Fernandez from the top of appellants [40] refrigerator, although it was not among those listed in the handwritten Inventory [41] Receipt, Affidavit of Arrest or Return of the Search Warrant. Also presented by the prosecution, as a hostile witness, to corroborate in part the foregoing facts was Kagawad Lazaro. He claimed, however, that the first page of the handwritten Inventory Receipt submitted in evidence had been substituted with another, asserting that he and the other witnesses affixed their signatures on the left-hand margin of the first page of the handwritten Inventory Receipt which they were asked to sign whereas [42] that submitted in court did not bear their signatures. Kagawad Lazaro further claimed that the first entry on the first page of the Inventory Receipt, whereon he and his co-witnesses affixed their signatures, reading Chinese Medicine had been replaced with undetermined quantity of white crystalline
[39] [30]

granules; that what was recovered from the room of Jack Go by PO2 Abulencia was Exhibit B, the plastic bag containing the yellowish powder, and not Exhibit A, the plastic bag containing the suspected shabu; and that Exhibit A was not even among [44] the items seized and inventoried. The defense, which adopted the testimony of Kagawad Lazaro, presented appellant, his son Jack Go, and Kagawad Manalo whose version of the facts of the case follows: In November 1998, while appellant was walking along Gen. Luna Street, he was accosted by SPO1 Serquea and another police officer who accused him of manufacturing shabu and divested him of money amounting to more than P5,000.00. He was later released as the policemen could not charge him with [45] anything. On July 14, 1999 at around 5:30 in the afternoon, Jack Go opened the door of their house after hearing somebody shout that the car had been bumped. Five armed policemen then entered the house, one of whom handcuffed him while two went up to [46] the upper floor of the house and searched for about thirty (30) minutes. At past 6:00 p.m., as the two kagawads entered the house which was already in disarray, SPO1 Fernandez formed two groups to conduct the search at the second floor: (1) that of PO2 Abulencia, with Kagawad Lazaro to serve as witness, and (2) that [47] of SPO1 Serquea, with Kagawad Manalo to serve as witness. PO2 Abulencia, together with Kagawad Lazaro, searched the room of Jack Go. SPO1 Serquea, accompanied by Kagawad Manalo, searched the study room where he seized documents, passports and assorted papers. SPO1 Serquea and Kagawad Manalo then proceeded to the room of appellant followed by PO2 Abulencia and Kagawad Lazaro. From the room of appellant, the [48] policemen seized documents, passports, bankbooks and money. After the search, the policemen and barangay kagawads went down with three [49] boxes containing passports, money and assorted Chinese medicine. When appellants wife arrived at around 7:30 p.m., SPO1 Fernandez ordered her to open the safe (kaha de yero) inside appellants room where the police officers [51] seized money, passports, bankbooks, Chinese currency and pieces of jewelry. The seized items were placed on appellants table on the first floor of the house [52] where they were inventoried by SPO1 Fernandez during which the barangay kagawads did not see either Exhibit A, the plastic bag containing the [53] suspected shabu, or the weighing scale. After SPO1 Fernandez prepared a two-page Inventory Receipt and Affidavit of Orderly Search, he asked Jack Go to sign the receipt. While Jack Go initially refused, he eventually did sign both documents without having read them completely after he was hit by the policemen. The two barangay kagawads also signed both pages of the [54] Inventory Receipt as witnesses.
[50]

[43]

19

When appellant arrived at around 8:30 p.m., he was handcuffed and likewise made to sign the Inventory Receipt without having been able to read its [55] [56] contents. Jack Go was prevented from explaining its contents to him. The first page of the handwritten Inventory Receipt presented in court, which includes an undetermined quantity of white crystalline granules placed inside a transparent plastic envelope as among those seized from the residence of appellant, does not bear the signatures of appellant, the kagawads and Jack Go, hence, it is not the same first page of the handwritten Inventory Report on which they affixed their [57] signatures. In fact the policemen did not leave a copy of this Inventory Receipt with [58] either appellant or the barangay kagawads. The policemen continued to search appellants residence until around 11:00 p.m. when they brought appellant, Jack Go, Shi Xiu Ong, Samson Go and Peter Co, [59] together with the seized items, to Bicutan. On the way to Bicutan, PO2 Abulencia, who boarded the same vehicle as appellant, told the latter that the policemen wanted P10,000,000.00 from him or he would be charged with possession of illegal drugs. The amount demanded was later reduced toP5,000,000.00, then to P2,000,000.00, and finally to P500,000.00. Appellant refused, however, to heed the policemens demands since he did not commit any [60] crime. Finding for the prosecution, the trial court rendered the appealed Decision on June 7, 2000, the dispositive portion of which reads: WHEREFORE, judgment is hereby ordered rendered finding the accused Benny Go guilty of the offense charged in the information and sentencing him to suffer the penalty of reclusion perpetua and a fine of One Million Pesos (P1,000,000.00). The subject shabu is hereby ordered forfeited in favor of the government and the Clerk of Court is hereby directed to deliver and/or cause the delivery of the said shabu to the Dangerous Drugs Board for proper disposition, upon the finality of this Decision. SO ORDERED.
[61]

SECOND ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN HOLDING THAT 204 GRAMS OF SHABU WAS RECOVERED FROM THE HOUSE OF ACCUSED-APPELLANT ON JUNE 14, 1999 BASED ON THE TESTIMONY OF PO1 GERARDO ABULENCIA AND THE SUPPORTING INVENTORY RECEIPT, BOTH OF WHICH WERE COMPLETELY CONTRADICTED BY THE PROSECUTION WITNESS BARANGAY KAGAWAD GASPAR LAZARO AS WELL AS BY DEFENSE WITNESSES. THIRD ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN RENDERING JUDGMENT FINDING ACCUSEDAPPELLANT GUILTY OF ILLEGAL POSSESSION OF TWO HUNDRED FOUR (204) GRAMS OF SHABU AS CHARGED IN THE INFORMATION AND SENTENCING HIM TO SUFFER THE (sic) PENALTY OF RECLUSION PERPETUA AND A FINE OF ONE MILLION PESOS (P1,000,000.00), INSTEAD OF ACQUITTING ACCUSEDAPPELLANT FOR FAILURE OF THE PROSECUTION TO PROVE HIS GUILT [65] BEYOND REASONABLE DOUBT. (Emphasis supplied) During the pendency of the appeal, appellant filed a verified Motion for Return of [66] Personal Documents, Vehicle and Paraphernalia dated September 10, 2001 praying for the release of the following seized properties:
a. b. c. several pcs. transparent plastic envelopes one (1) unit Toyota Corolla GLI with PN UTT 658 Cash amounting to Fifty Two Thousand Seven Hundred Sixty Pesos (P52,760.00) in different denominations Twenty-Five Thousand Chinese Yuan (CY25,000.00) Sixty-Seven (67) pieces of Chinese passports Twenty-Eight (28) pieces of assorted bankbooks Two Hundred Eighty Five (285) pieces of assorted checks Fifty-Three (53) pcs. rubber stamp and related paraphernalia One (1) piece Underwood typewriter with SN 9861952 One (1) piece check writer

d. e.
[62]

His Motion for Reconsideration of the decision having been denied by Order of [63] [64] July 24, 2000, appellant lodged the present appeal. In his Brief, he assigns the following errors: FIRST ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN ACCORDING THE POLICE OFFICERS THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY IN IMPLEMENTING THE SEARCH WARRANT BASED ON THEIR TESTIMONIES, THERE BEING CONVINCING PROOFS TO THE CONTRARY.

f. g. h. i. j.

20

k. m. n.

Two (2) pieces of dry seal Five (5) boxes of assorted documents Three (3) bags of assorted documents[67]

exemption of his private affairs, books, and papers from the inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify [73] indifference to the basic principles of government. In arriving at the appealed decision, the trial court placed greater weight on the testimony of the police officers to whom it accorded the presumption of regularity in the performance of duty, viz: Coming to the first issue raised, the Court gives credence to the testimonies of the police officers and accords them the presumption of regularity in the performance of their duty. The Court has observed the demeanor of the witnesses and finds the prosecution witnesses more credible than the defense witnesses. x x x On the other hand, there is no showing that the police officers had ill motive when they applied for and secured the Search Warrant, raided the house of the accused and arrested him. Accused is a Chinese national who appeared to have no quarrel with the arresting police officers and thus the police officers had no reason to fabricate or trump up charges against him. Hence, there appears to be no reason the police officers should not be accorded the presumption of regularity in the performance of their duty. As held by the Supreme Court, (L)aw enforcers are presumed to have regularly performed their official duty, in the absence of the evidence to the contrary. x x x We see no valid obstacle to the application of the ruling in People vs. Capulong, (160 SCRA 533 {1988}) that credence is accorded to the testimonies of the prosecution witnesses who are law enforcers for it is presumed that they have regularly performed their duty in the absence of convincing proof to the contrary. The appellant has not shown that the prosecution witnesses were motivated by any improper motive other than that of accomplishing their mission. (People of the Philippines, Plaintiff-appellee, vs. Said Sariol Y Muhamading, accused-appellant, 174 [74] SCRA 238). (Emphasis supplied) At the same time, the trial court based its finding that the search of appellants residence was proper and valid on the so-called Affidavit of Orderly Search. On the second issue raised, the validity of the Search Warrant is clearly shown by the Affidavit of Orderly Search signed by the accused and his son Jack Go and his witnesses Salvador Manalo and Gaspar Lazaro. Such Affidavit of Orderly Search coupled with the testimonies of the police officers have clearly [75] established the propriety and validity of the search. (Emphasis supplied) The rule that a trial courts findings are accorded the highest degree of respect, it being in a position to observe the demeanor and manner of testifying of the [76] witnesses, is not absolute and does not apply when a careful review of the records

This Court is thus called upon to determine (1) whether appellants guilt has been proven beyond reasonable doubt; and (2) whether the items enumerated in appellants Motion for Return of Personal Documents, Vehicle and Paraphernalia, which items are allegedly not among those particularly described in Search Warrant No. 99-0038, should be returned to him. These issues shall be resolved in seriatim. Illegal Possession of 204 Grams of Shabu As appellant questions the legality of the search of his residence, the actions of the police officers, as agents of the State, must be carefully considered in light of appellants right against unreasonable searches and seizures guaranteed by Sections 2 [68] and 3, Article III of the Constitution. What constitutes a reasonable or unreasonable search or seizure is a purely judicial question determinable from a consideration of the attendant circumstances including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and [69] the character of the articles procured. Since no presumption of regularity may be invoked by an officer to justify an [70] encroachment of rights secured by the Constitution, courts must cautiously weigh the [71] evidence before them. As early as in the 1937 case of People v. Veloso, this Court held: A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued. Otherwise, it is void. The proceedings upon search warrants, it has rightly been held, must be absolutely legal, for there is not a description of process known to law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect. The warrant will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process [72] when an officer undertakes to justify under it. (Emphasis supplied; citations omitted) Indeed, a strict interpretation of the constitutional, statutory and procedural rules authorizing search and seizure is required, and strict compliance therewith is demanded because: x x x Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the

21

and a meticulous evaluation of the evidence reveal vital facts and circumstances which the trial court overlooked or misapprehended and which if taken into account would [77] alter the result of the case. In the case at bar, an examination of the testimonies of the police officers brings to light several irregularities in the manner by which the search of appellants residence was conducted. By PO2 Abulencias own account, in order to enter the premises to be searched, the police officers deliberately side-swiped appellants car which was parked alongside the road, instead of following the regular knock and announce procedure as outlined [78] in Section 7 (formerly Section 6), Rule 126 of the Rules of Court.
Q A Mr. Witness, how did you enter the house of Benny Go? Its really heard (sic) to enter the house. Before the door, there was a still (sic) supporting the door and they will not allow us to enter because they dont know us. Then, in order that we could enter the house, we side swept (sinagi) a little the vehicle that was parked in front of their house. And their neighbor knocked at the house of the subject and thats the time that we were able to enter.[79] (Emphasis supplied)

And is that an (sic) standard operating procedure Mr. witness, when you are serving a search warrant? A Yes, sir.[80] (Emphasis supplied)

There is no showing, however, of any action or provocation by Jack Go when the policemen entered appellants residence. Considering the degree of intimidation, alarm and fear produced in one suddenly confronted under similar circumstances, the forcible restraint of Jack Go all the more was unjustified as was his continued restraint even after Barangay Kagawads Lazaro and Manalo had arrived to justify his forcible restraint. While Search Warrant No. 99-99-0038 authorized the immediate search of appellants residence to seize METAMPHETAMINE HYDROCHLORIDE (Shabu), weighing scale, other drug paraphernalias and proceeds of the above crime, the policemen, by SPO1 Fernandezs admission, seized numerous other items, which are clearly unrelated to illegal drugs or illegal drug paraphernalia:
Q A In the presence of the barangay officials, what are those items which you seized or your raiding team seized, if any? With the permission of the Honorable Court, Your Honor, can I take a look at my notes.

Since the police officers had not yet notified the occupant of the residence of their intention and authority to conduct a search and absent a showing that they had any reasonable cause to believe that prior notice of service of the warrant would endanger its successful implementation, the deliberate sideswiping of appellants car was unreasonable and unjustified. Also by PO2 Abulencias own account, upon entry to appellants residence, he immediately handcuffed Jack Go to a chair. Justifying his action, PO2 Abulencia explained that not only was he unfamiliar with Jack Go and unsure of how the latter would react, but it was a standard operating procedure: Pros. Rebagay: Now, what happened on June 14, 1999 at 6:00 p.m. when you were armed with the Search Warrant issued by Judge Lilia Lopez? A We entered inside the house of the subject and we were able to see (nadatnan naming) Jack Go, the son of Benny Go, sir. xxx Q A And what was the reaction of Jack Go, if any? We introduced ourselves as police officers and we have a Search Warrant to conduct a search to the above subject place and also we handcuffed Jack Go to the chair, sir. Why did you do that, Mr. witness? Hindi naming kakilala iyong mga tao, sir kaya ganoon ang ginawa namin para hindi kami maano, eh hindi naming kabisado iyong ugali, sir.

Court Proceed. Witness Thank you very much. A Seized or confiscated form the said residence are: (1) undetermined quantity of white crystalline granules placed inside the transparent plastic envelope, (2) undetermined quantity of yellowish powder placed inside the transparent plastic envelope; (3) several pieces of transparent plastic envelopes; (4) one unit Toyota Corolla GLI with Plate No. UPT-658; (5) P52,760.00 in different denominations; (6) 25,000.00 Chinese Yuan; (7) 67 pieces of Chinese passports; (8) 28 pieces of assorted bank book; (9) 285 pieces of assorted checks; (10) 53 pieces rubber stamps and related paraphernalia; (11) one piece Underwood typewriter with Serial No. 9861952; (12) one piece checkwriter; (13) two pieces dry seals; (14) 5 boxes of assorted documents; (15) 3 bags of assorted documents; and I will add another one Your Honor, a weighing scale.[81]

While an inventory of the seized items was prepared, also by SPO1 Fernandezs admission, it did not contain a detailed list of all the items seized, particularly the voluminous documents: Q Why is it that you did not make a detailed inventory or receipt of the passports? Why did you not give any detailed receipt or inventory on the passports. There were lots of documents during the time on the table, voluminous documents that I was not able to make a listing of the said passports.

Q A

Pros. Rebagay:

22

Q A

And it was only this October 8, 1999 or four months after that you made a detailed receipt of those seized items, am I right? Yes, sir. xxx

In People v. Policarpio, this Court held that such practice of inducing suspects to sign receipts for property allegedly confiscated from their possession is unusual and violative of the constitutional right to remain silent, viz: What the records show is that appellant was informed of his constitutional right to be silent and that he may refuse to give a statement which may be used against him, that is why he refused to give a written statement unless it is made in the presence of his lawyer as shown by the paper he signed to this effect. However, he was made to acknowledge that the six (6) small plastic bags of dried marijuana leaves were confiscated from him by signing a receipt and to sign a receipt for the P20.00 bill as purchase price of the dried marijuana leaves he sold to Pat. Mangila. Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to sign receipts for what were taken from him. It is the police officers who confiscated the same who should have signed such receipts. No doubt this is a violation of the constitutional right of appellant to remain silent whereby he was made to admit the commission of the offense without informing him of his right. Such a confession obtained in violation of the Constitution is inadmissible in [89] evidence. (Emphasis supplied) The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellants custodial right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the search of appellants residence.
At the same time, it is unclear whether appellant was furnished a copy of the Inventory Receipt as mandated by Sec. 11, Rule 126 of the Rules of Court.[90] Q A Q A Now, while you were making an inventory of that, am I right, that you did not give a copy to Benny Go, am I right? I gave them a xerox copy. I remember I gave them a xerox copy. Is there any proof that they received an inventory report? Nothing, sir.[91]

[88]

Is it your standard operating procedure that when there are voluminous seized items you will not (sic) longer made (sic) an inventory report, am I right? Its not an SOP. Why did you not make a detailed inventory or receipt? As Ive said earlier, its voluminous. [82] (Emphasis supplied)
[83]

A Q A

In Asian Surety And Insurance Co., Inc. v. Herrera, this Court stressed the necessity for a detailed receipt of the items seized in order to adequately safeguard the constitutional rights of the person searched: Moreover, as contended by petitioner, respondents in like manner transgressed Section 10 of Rule 126 of the Rules for failure to give a detailed receipt of the things seized. Going over the receipts (Annexes B B-1, B-2, B-3 and B-4 of the Petition) issued, We found the following: one bordereau of reinsurance, 8 fire registers, 1 marine register, four annual statements, folders described only as Bundle gm-1 red folders; bundle 17-22 big carton folders; folders of various sizes, etc., without stating therein the nature and kind of documents contained in the folders of which there were about a thousand of them that were seized. In the seizure of two carloads of documents and other papers, the possibility that the respondents took away private papers of the petitioner, in violation of his constitutional rights, is not remote, for the NBI agents virtually had a field day with the broad and unlimited search warrant issued by respondent Judge as their [84] passport. (Emphasis and underscoring supplied) After the inventory had been prepared, PO2 Abulencia presented it to appellant [85] for his signature without any showing that appellant was informed of his right not to sign such receipt and to the assistance of counsel. Neither was he warned that the same could be used as evidence against him. Faced with similar circumstances, this [86] Court in People v. Gesmundo stated: It is true that the police were able to get an admission from the accused-appellant that marijuana was found in her possession but said admission embodied in a document entitled PAGPATUNAY previously prepared by the police, is inadmissible in evidence against the accused-appellant for having been obtained in violation of her rights as a person under custodial investigation for the commission of an offense. The records show that the accused-appellant was not informed of her right not to sign the document; neither was she informed of her right to the assistance of counsel and the fact that the document may be used as evidence [87] against her. (Emphasis and underscoring supplied, citations omitted)

Moreover, an examination of Exhibit Z, the Return of Search Warrant No. 990038 submitted by SPO1 Fernandez to Br. 109 of the RTC of Pasay City was not [92] verified under oath, as required by Section 12 (a) (formerly Section 12), Rule 126 of [93] the Rules of Court. The delivery of the items seized to the court which issued the warrant together with a true and accurate inventory thereof, duly verified under oath, is mandatory in [94] order to preclude the substitution of said items by interested parties. Under Section [95] 12 of Rule 126, the judge which issued the search warrant is mandated to ensure compliance with the requirements for (1) the issuance of a detailed receipt for the

23

property received, (2) delivery of the seized property to the court, together with (3) a verified true inventory of the items seized. Any violation of the foregoing constitutes contempt of court. Given the foregoing deviations from the normal and prescribed manner of conducting a search, as disclosed by the members of the raiding team themselves, the reliance by the trial court on the disputable presumption that the police officers regularly performed their official duty was evidently misplaced. The Affidavit of Orderly Search is not of any help in indicating the regularity of the search. Not having been executed under oath, it is not actually an affidavit, but a pre-prepared form which the raiding team brought with them. It was filled up after the search by team leader SPO1 Fernandez who then instructed appellant to sign it as he did instruct Jack Go, Kagawad Manalo and Kagawad Lazaro to sign as witnesses. More importantly, since the Affidavit of Orderly Search purports to have been executed by appellant, the same cannot establish the propriety and validity of the search of his residence for he was admittedly not present when the search took place, he having arrived only when it was almost through.
Q A Q A Q A And while your officers and the barangay kagawad were searching the house Mr. Benny Go is not yet present in that house, am I right? Yes, sir. And you made to sign Benny Go in the inventory receipt when the search was already over, am I right? He was already present when I was making the inventory. He arrived at around 9:30. Yes, and the search was already finished, am I right? Almost through.[96]

As pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor, which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the presence of either the lawful occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who was handcuffed to a chair on the ground floor). Such a procedure, whereby the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, violates both the spirit and letter of the law: Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened by the manner in which the search was conducted by the police authorities. The accused-appellant was seated at the sala together with Sgt. Yte when they heard someone in the kitchen uttered ito na. Apparently, the search of the accused-appellants house was conducted in violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of a house, room or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. This requirement is mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code. As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al. a procedure, wherein members of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed by law are made to witness a search conducted by the other members of the raiding party in another part of the house, is violative of both the spirit and [97] letter of the law. (Emphasis and underscoring supplied) That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no moment. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by two witnesses of sufficient age and discretion residing in the same locality only in the absence of either the lawful occupant of the premises or any member of his family. Thus, the search of appellants residence clearly should have been witnessed by his son Jack Go who was present at the time. The police officers were without discretion to substitute their choice of witnesses for those prescribed by the law. The claim of SPO1 Fernandez and PO2 Abulencia that Jack Go voluntarily waived his right to witness the search, allegedly because there would be no one left in the sala and anyway barangay officials were present, cannot be accepted. To be valid, [98] a waiver must be made voluntarily, knowingly and intelligently. Furthermore, the [99] presumption is always against the waiver of a constitutionally protected right. While Jack Go was present from the time the raiding team entered the premises until after the search was completed, he was, however, handcuffed to a chair in the

In fine, since appellant did not witness the search of his residence, his alleged Affidavit of Orderly Search, prepared without the aid of counsel and by the very police officers who searched his residence and eventually arrested him, provides no proof of the regularity and propriety of the search in question. On the contrary, from the account of the police officers, their search of appellants residence failed to comply with the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, viz: SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses. No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Underscoring supplied)

24

sala. All alone and confronted by five police officers who had deprived him of his liberty, he cannot thus be considered to have voluntarily, knowingly and intelligently waived his right to witness the search of the house. Consent given under such intimidating, coercive circumstances is no consent within the purview of the [101] constitutional guaranty. The search conducted by the police officers of appellants residence is essentially [102] no different from that in People v. Del Rosario where this Court observed: We thus entertain serious doubts that the shabu contained in a small canister was actually seized or confiscated at the residence of accused-appellant. In consequence, the manner the police officers conducted the subsequent and much-delayed search is highly irregular. Upon barging into the residence of accused-appellant, the police officers found him lying down and they immediately arrested and detained him in the living room while they searched the other parts of the house. Although they fetched two persons to witness the search, the witnesses were called in only after the policemen had already entered accused-appellants residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the policemen had more than ample time to plant the shabu. Corollary to the Constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved (Sec. 14 (2), Article III, Constitution of the Republic of the Philippines) is the rule that in order to convict an accused the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence (People vs. Tanchoco, 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out [103] the hypothesis that accused-appellant is innocent. (Emphasis supplied) The raiding teams departure from the procedure mandated by Section 8, Rule 126 of the Rules of Court, taken together with the numerous other irregularities attending the search of appellants residence, tainted the search with the vice of unreasonableness, thus compelling this Court to apply the exclusionary rule and declare the seized articles inadmissible in evidence. This must necessarily be so since it is this Courts solemn duty to be ever watchful for the constitutional rights of the [104] people, and against any stealthy encroachments thereon. In the oft-quoted language of Judge Learned Hand: As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it [105] cannot profit by their wrong, will that wrong be repressed. (Emphasis supplied) In all prosecutions for violation of The Dangerous Drugs Act, the existence of the dangerous drug is a condition sine qua non for conviction since the dangerous drug is [106] the very corpus delicti of the crime. With the exclusion of Exhibit A, the plastic bag

[100]

containing the shabu allegedly recovered from appellants residence by the raiding team, the decision of the trial court must necessarily be reversed and appellant acquitted. What is more, a thorough evaluation of the testimonies and evidence given before the trial court fails to provide the moral certainty necessary to sustain the conviction of appellant. In particular, Barangay Kagawads Lazaro and Manalo, the two witnesses to the search chosen by the police officers in substitution of Jack Go, both categorically testified under oath that no shabu was recovered from appellants residence by the police. Thus, Kagawad Lazaro testified that the plastic bag containing white crystalline granules, later found positive for shabu, was not recovered from the room of Jack Go: Atty. Reyes: You were shown a while ago by the prosecution of (sic) an Inventory Receipt allegedly prepared by Officer Fernandez which includes the list of the items seized from the premises of Benny Go, now, you said that theres no white crystalline granules included in that list which you signed during the inventory?
A Q A Q Yes, sir. Can you recall what was the first item included in that list which you signed in the first page? Chinese medicine, sir. Now, you also testified that you were with Officer Abulencia when you conducted the search inside the room of Jack Go, now, did you recover anything from the room of Jack Go? PO2 Abulencia recovered one small plastic in the drawer of Jack Go and Naphthalene balls, sir. xxx Atty. Reyes: If that small plastic will be shown to you, will you be able to identify it? A Yes, sir.

Atty. Reyes: I have here a plastic which contained yellowish powder. Could you go over this and tell us if this was the one recovered from the room of Jack Go? A Q This is the one, sir. I have here another plastic containing white crystalline substance marked by the prosecution as Exh. A. Will you tell us if this is also recovered from the room of Jack Go?

25

A Q A

No, this was not recovered from the room of Jack Go, sir. During the preparation of the inventory of the seized items, was this also included? I did not see that, sir.[107] (Emphasis supplied)

of Mr. Salvador Manalo. When I went upstairs, they were already inside the said room so the five of us saw the illegal drugs, sir. xxx Pros. Rebagay: Mr. witness, when Salvador Manalo testified here on cross-examination, he mentioned that after the search of the house of Benny Go, a certain investigator, a policeman pretended that he is making a follow-up with respect to the search made by you and your team, will you please tell us if immediately after the incident or after the investigation conducted by the City Prosecutors Office when you had an occasion to meet Salvador Manalo after that? A Q Yes, sir. And what happened to that meeting with Salvador Manalo after the preliminary investigation?

Similarly, Kagawad Manalo testified that neither the plastic bag of shabu nor the weighing scale was among the seized items inventoried by the raiding team: Q You said that you were present during the time when SPO1 Fernandez was preparing the inventory of all the items taken from the premises of Benny Go, can you recall what are these items? Yes sir, assorted Chinese medicines, assorted documents, papers, passports, stamp pad, bankbooks and checks and it was placed in five (5) boxes and three (3) ladies bag. What about a weighing scale? Is there a weighing scale, Mr. Witness? I did not see any weighing scale, sir. How about drugs or shabu contained in a plastic pack? I did not see any also.[108] (Emphasis supplied)

Q A Q A

Witness: Because during the preliminary investigation, we were surprised why our witness has taken side, it is on the side of the accused Benny Go so I decided to pay him a visit that day after that confrontation on June 23 and I asked him what happened, tinanong ko siya kung ano ang nangyari bakit mukhang nakampi na siya roon sa kabila. Ang sagot niya sa akin ang sabi sa amin ni Atty. Galing kakausapin ka rin niya. That is the exact words.
Atty. Reyes: We will object to that for being hearsay. May we move that the latter portion be stricken off the record. Court: Let it remain Pros. Rebagay: And will you please tell us exactly when this incident occur (sic), Mr. witness? A Q A Q That was after June 23, sir. Where? At his store in A. Linao Street, Paco, sir. And what was your response after you heard that answer from Salvador Manalo, if any, Mr. witness?

On rebuttal, SPO1 Fernandez alleged that the two barangay kagawads were lying when they claimed that no shabu was recovered from appellants residence, and implied that they had been asked to falsify their testimonies in court: Pros. Rebagay: Mr. witness, when Salvador Manalo testified before this Honorable Court when he was confronted with Exh. B which is the inventory receipt the said witness denied that the first page of Exh. B" was genuine on the fact that his signature and likewise [that of] his co-colleague did not appear on the first page of the said inventory receipt, what can you say to that statement made by Salvador Manalo? A Well, it has not been our practice to let the witness sign on the first page of the 2page inventory receipt and with regards to the said inventory receipt that he signed on June 4, it is the same inventory receipt that I prepared, sir. xxx Q Likewise, Mr. witness, the said witness Salvador Manalo also denied that the shabu which is the subject of this case has never been recovered by them, what can you say to that? Well, its a lie, sir. Why do you say that? Because when the illegal drug was found by PO2 Abulencia, he was accompanied by Gaspar Lazaro at that time. Then he called my attention and he also called the attention of SPO2 Serquea as well as the attention

A Q A

Witness: Siyempre nagtaka ako, bakit ganoon ibig sabihin implied baka nagkaaregluhan na, iyan ang iniisip ko, sir.[109] (Emphasis supplied)

26

Regrettably, no further evidence, aside from the foregoing allegations and suspicions of SPO1 Fernandez, was ever presented to substantiate the claim that the two kagawads had deliberately falsified their testimonies. On the contrary, it appears that the police officers did not actively pursue their complaint for obstruction of justice against the two kagawads with the Department of Justice. Moreover, to completely discount the testimonies of kagawads Lazaro and Manalo would be tantamount to having no witnesses to the search of appellants residence at all except the police officers themselves, a situation clearly contrary to the tenor and spirit of Section 8 of Rule 126. The prosecutions attempt to introduce the weighing scale, supposedly seized during the search, only casts more doubt on its case. Said weighing scale was conspicuously absent from the enumeration of seized items in the handwritten Inventory Receipt, the Return of the Search Warrant and the Affidavit of Arrest prepared by the police officers. SPO1 Fernandezs claim that the omission was an honest mistake, to wit: Pros. Rebagay
Q Mr. Witness, a while ago you added another item which was not included in the inventory list and this was the weighing scale. Please tell us, why is it only now that you are adding it to the list of those items that you seized? Well, with all honesty Your Honor, I cannot offer any alibi except to say that I committed an honest mistake when I did not include that weighing scale in the inventory receipts.[110]

A Q A

No, sir. As well as the time when Officer Fernandez was preparing this Inventory, you did not call his attention that there are some items missing in that Inventory? I did not call his attention. Honestly speaking (unfinished) xxx

Honestly speaking, we confiscated so many evidence including papers, boxes, voluminous quantity of evidence recovered and only one officer is conducting the Inventory. We cannot conduct Inventory two at a time or three at a time, only one. Because maybe, you see, hes only one. Maybe he did not list it because of that so many evidence confiscated.

Atty. Reyes: But the weighing scale is not a small item, is that correct? Its a big item? A Q A Q A Q A Yes, sir. Do you want to tell us that you missed that item? I was not the one who missed it, sir. How about your Affidavit of Arrest? Officer Fernandez prepared that Affidavit, sir. So you are not the one who prepared this? You merely signed it? I signed it in their presence, sir.[111]

does not inspire credence. Neither does SPO1 Serqueas explanation: Q A What was the search warrant all about? It commands you to search and seize what items? Regarding drugs, drug paraphernalias and proceeds of the crime, sir.

Atty. Reyes: What else? A Q A Q A Q A Q Weighing scale, sir. Weighing scale is included in the search warrant. So the warrant specifically commands you to seize drugs, drug paraphernalias and weighing scale? Yes, sir. And you read this Affidavit of Arrest before you signed this. Did you notice that the weighing scale is not included here? Yes, sir. Now I noticed. No, during the time that you signed this? No, sir. You did not notice that?

The foregoing explanations are improbable and far from persuasive. Considering that a weighing scale was among the items particularly described in Search Warrant No. 99-0038, it would be expected that the police officers would be actively searching for it and, if found, they would take care to include it in the inventory and the return of the search warrant. But while numerous seals, stamps, checks and documents not described in the search warrant were seized and carefully inventoried by the raiding team, none of the five police officers bothered to point out that the weighing scale had not been included in the inventory. The implausibility of the story put forward by the police officers leads to no other conclusion than that the weighing scale was introduced as an afterthought in order to bolster the case against appellant. With the persistence of nagging doubts surrounding the alleged discovery and seizure of the shabu, it is evident that the prosecution has failed to discharge its burden of proof and overcome the constitutional presumption of innocence. It is thus not only the accuseds right to be freed; it is, even more, this Courts constitutional duty to acquit [112] [113] him. Apropos is the ruling in People v. Aminnudin, viz: 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

27

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 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 right 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 is 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 [114] Constitution itself. Return of Seized Property Not Described in the Search Warrant Turning now to the Motion for Return of Personal Documents, Vehicle and Paraphernalia, the general rule is that only the personal properties particularly described in the search warrant may be seized by the authorities. Thus, in Tambasen [115] v. People, this Court held: Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed (Corro v. Lising, 137 SCRA 541, 547 [1985]; Bache & Co. [Phil.], Inc. v. [116] Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). (Emphasis supplied) There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through a warrantless search and seizure may be admissible under the following circumstances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; and (5) when the accused himself waives his right against [117] unreasonable searches and seizures. To be valid, therefore, the seizure of the items enumerated in appellants Motion for Return of Personal Documents, Vehicle and Paraphernalia must fall within the ambit of Search Warrant No. 99-0038 or under any of the foregoing recognized exceptions to the search warrant requirement. In this regard, the raiding team sought to justify the seizure of the car, the Fifty Two Thousand Seven Hundred Sixty Pesos (P52,760.00) in different denominations,

and the Twenty Five Thousand Chinese Yuan (CY25,000.00) as either proceeds of the offense or means of committing an offense within the purview of the warrant. Thus PO2 Abulencia testified: Q A Q A And how about the money, Mr. witness? Why did you confiscate the money? Its considered as proceed of the crime, sir. How about the vehicle, Mr. witness? Why did you took (sic) custody of the vehicle when it was not listed in the search warrant? This is part and parcel of the evidence, sir. Because its being used in [118] transporting drugs, sir.

Similarly, with respect to the car, SPO1 Fernandez stated: Q A Q A Q A Q A Q A This vehicle, Toyota Corolla GLI with Plate No. PNU-TT-658, where was it during the time that you. . . (unfinished) It was parked in front of the house of Benny Go. And you seized it? Yes, sir. Why? Because during the surveillance operation we saw some known pusher riding in that car? Who are these drug pushers? One of those guys is Mr. Peter Co, also a subject of our investigation. Which (sic) you released after the arrest, after he was invited for investigation in your office on June 14, 1999? Yes, sir.
[119]

The foregoing rationalizations are unacceptable. Admittedly, neither the money nor the car was particularly described in the search warrant. In seizing the said items then, the police officers were exercising their own discretion and determining for themselves which items in appellants residence they believed were proceeds of the crime or means of committing the offense. This is absolutely impermissible. It bears reiterating that the purpose of the constitutional requirement that the articles to be seized be particularly described in the warrant is to limit the things to be seized to those, and only those, particularly described in the search warrant to leave the officers of the law with no discretion regarding what articles they should seize. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a [120] crime.

28

At the same time, the raiding team characterized the seizure of the assorted documents, passports, bankbooks, checks, check writer, typewriter, dry seals and [121] stamp pads as seizure of evidence in plain view. Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be [122] presented as evidence. This Court had the opportunity to summarize the rules governing plain view searches in the recent case of People v. Doria, supra, to wit: The plain view doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. [123] (Underscoring supplied; citations omitted) Measured against the foregoing standards, it is readily apparent that the seizure of the passports, bankbooks, checks, typewriter, check writer, dry seals and stamp pads and other assorted documents does not fall within the plain view exception. The assertions of the police officers that said objects were inadvertently seized within their plain view are mere legal conclusions which are not supported by any clear narration of the factual circumstances leading to their discovery. PO2 Abulencia could not even accurately describe how the raiding team came across these items: Q A This Box A marked as Exhibit G, in what part of the room did you recover this? We recovered all the evidence within our plain view, sir. The evidence were scattered in his house. I cannot remember whether Box A or Box B, but all the evidence were within our plain view thats why we confiscated them, sir. What do you mean by plain view? Nakikita namin, sir. Yung kitang-kita namin. Where in the premises of Benny Go did you see all these documents? Ground floor and upstairs but mostly in the ground floor, on the table and on the floor, sir.

Atty. Reyes: Go ahead. A Q A Q A Q A Q A Box A contains different bundle of pieces of document, NBI and BI clearances, Application of Chinese National, different papers, sir. Can you remember where in particular did you recover these documents? I cannot remember, sir. All of these documents were recovered primarily on the ground floor and on the second floor? Yes, sir. Where in particular at the second floor, there are three to four rooms there? Sir, nandoon sa mesa lahat iyan eh don sa taas rin may mesa din doon at saka doon naming nakuha ang ibang mga dokumento. Is (sic) that room belongs (sic) to Jack Go? I dont know, sir, but all these (sic) evidence were recovered from the [124] house of Benny Go.

SPO1 Fernandezs account of how he came across the dry seals, rubber stamps and papers is just as opaque: Q A Q For how long have you been inside the house of Benny Go when you noticed these dry seals? I think more than an hour, I dont exactly remember the time. But during the time you have not yet noticed the documents which you brought to this Court, what call (sic) your attention was these dry seals first? Well, actually the dry seals and the rubber stamps were all placed atop the table and as well as the documents because the box where the documents were placed are half opened. They are opened actually thats why I saw them. So, you first saw the rubber stamps and the dry seals, is that correct? Because they are atop the table? Yes, sir. And then later on you also saw the documents? Yes, sir its beside the table.

Q A Q A

Q A Q A

Atty. Reyes: This Box A marked as Exh. G contains what documents again? A Can I see my notes, sir?

29

Q A Q A

Contained in a box half opened? Yes, sir. Which did you touch first, the rubber stamps, the dry seals or the documents? I did not touch anything, I only inventoried that when the searching team were through with what they are doing. Now, all the evidence were placed atop the dining table, located also at the sala of the house or at the dining area. Then, thats when I asked some of my co-members to place all those document and the other confiscated items atop the table [125] also.

of the State to be disposed of according to law. Moreover, the various bankbooks and passports not belonging to appellant may not be ordered returned in the instant proceedings. The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is [132] purely personal and cannot be availed of by third parties. WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 41, convicting appellant Benny Go of violation of Section 16, Article III in relation to Section 2 (e-2) Article I of Republic Act No. 6425, as amended, is REVERSED and SET ASIDE. Appellant Benny Go is ACQUITTED of the crime charged and is hereby ordered immediately RELEASED from confinement, unless he is lawfully held in custody for another cause. The Director of the Bureau of Corrections is ORDERED to forthwith IMPLEMENT this Decision and to INFORM this Court, within ten (10) days from receipt hereof, of the date appellant was actually released from confinement. Appellants Motion For Return of Personal Documents, Vehicle and Paraphernalia is GRANTED IN PART, and the trial court is hereby ordered to return to him those items seized from the subject premises which belong to him as listed in said Motion. The subject shabu is ORDERED forfeited in favor of the State and the trial court is hereby directed to deliver and/or cause its delivery to the Dangerous Drugs Board for proper disposition. The two (2) dry seals and eight (8) of the rubber stamps certified to be counterfeit by the Bureau of Immigration and Deportation are likewise ORDERED forfeited in favor of the State for proper disposition. SO ORDERED.

[131]

The foregoing testimonies are clearly evasive and do not establish how the police officers became aware of the seized items which were allegedly within their plain view. Finally, it appears from the testimony of SPO1 Fernandez that the supposed illegal character of the items claimed to have been seized within the plain view of the policemen was not readily and immediately apparent. Rather, the suspicions of the policemen appear to have been aroused by the presence of the numerous passports and immigration documents which they discovered in the course of their search. After they confirmed that appellant was not operating a travel agency, they concluded that his possession of said documents and passports was illegal even though they could not [126] identify the alleged law supposedly violated. To be sure, the policemen also filed a complaint against appellant for alleged possession of instruments or implements intended for the commission of falsification under paragraph 2 of Article 176 of the Revised Penal Code on the basis of dry seals [127] and rubber stamps also found in appellants residence. However, the illegal character of said dry seals and stamp pads cannot be said to have been immediately apparent. For SPO1 Fernandez had to first make an impression of the dry seal on paper before he could determine that it purported to be the seal of the [128] Bureau of Immigration and Deportation. The counterfeit nature of the seals and stamps was in fact not established until after they had been turned over to the Chinese embassy and Bureau of Immigration and Deportation for verification. It is, therefore, incredible that SPO1 Fernandez could make such determination from a plain view of the items from his vantage point in the sala. In sum, the circumstances attendant to the case at bar do not warrant the application of the plain view doctrine to justify the seizure and retention of the questioned seized items. The things belonging to appellant not specifically mentioned in the warrants, like those not particularly described, must thus be ordered returned to [129] him. Be that as it may, considering that the two (2) dry seals and eight (8) of the rubber stamps have been certified to be counterfeit by the Bureau of Immigration and [130] Deportation, they may not be returned and are hereby declared confiscated in favor

30

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 133188 July 23, 2004

On arraignment, appellant pleaded "not guilty" to the charge,2 and trial thereafter ensued. There were no eyewitnesses to the incident, and the prosecutions evidence, aside from appellants extrajudicial confession, was mainly circumstantial. As presented by the prosecution, the facts are as follows: At around 11:00 in the evening of December 14, 1996, appellant Elizar Tomaquin @ Hapon, together with Rico and Romy Magdasal, Noel Labay, and a certain Cardo, were drinking "Red Horse" beer in Itom Yuta, Lorega, Cebu City. Appellant left the group at around 1:00 in the morning, saying he has a headache. At the behest of Rico Magdasal, the group transferred to Lorega proper. A few minutes later, they heard Rustica Isogan shouting for help as the latter heard Jaquelyn3 Tatoy, her goddaughter, asking for help. Isogan got two flashlights and they proceeded upstairs to Jaquelyns house. The first to go up was a certain Moises, followed by the brothers Rico and Romy Magdasal, while Noel and Cardo remained downstairs. Rico noticed that the hinge and the "walling" of the main door were damaged, as if it were kicked open, and only the light in the kitchen was turned on. Rico also saw a black shoe on the stairs and another in the sala, which he claims belong to appellant. When they went into the kitchen, they saw Jaquelyn bloodied and sprawled face-up on the floor, with her head inside a plastic container. Jaquelyn was brought to the hospital, where she expired. A neighbor later found a tres cantos with blood on it by the stairs, which Rico also identified to be appellants.4 A certain Rey got the black pair of shoes and tres cantos for safekeeping which were later turned over to Policeman Tariao of the Homicide Section, Ramos Police Station. The person who turned over the objects to Policeman Tariao was not identified.5 At around 12:00 in the afternoon of December 15, 1996, barangay tanods Julius Yosores and Armando Zabate of Lorega, Cebu City, searched for appellant because of the information given by Rico Magdasal that the shoes and tres cantos found in the scene of the crime belonged to appellant. Together with Rico, they went to the house of Wilson Magdasal where appellant was temporarily staying, and found him sleeping. Appellant was wearing a bloodstainedmaong shorts. The tanods told appellant that he is a suspect in the killing of Jaquelyn, and brought him to the house ofbarangay captain Atty. Fortunato Parawan. There, appellant was asked about the shirt he was wearing and he told them that it was in Wilson Magdasals house. It was Edgar Magdasal who found his shirt, wet and bloodstained, among the soiled clothes. Atty. Parawan then told his tanods to take appellant to the police station.6

PEOPLE OF THE PHILIPPINES, appellee, appellee, vs. ELIZAR TOMAQUIN, appellant. DECISION AUSTRIA-MARTINEZ, J.: Once again, the Court is confronted with the issue of the admissibility of an extrajudicial confession. This appeal particularly involves the question of whether a barangay captain who is a lawyer can be considered an independent counsel within the purview of Section 12, Article III of the 1987 Constitution. On December 17, 1996, the Cebu City Prosecutor filed an Information charging appellant with Murder, committed as follows: That on or about the 15th day of December, 1996, about 2:30 a.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a bladed instrument (tres cantos), with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there suddenly and unexpectedly attack, assault and use personal violence upon one Jaquelyn Luchavez Tatoy, by stabbing her with said bladed instrument, hitting her on the vital parts of her body, thereby inflicting upon her physical injuries causing: "CARDIO RESPIRATORY ARREST DUE TO SHOCK & HEMORRHAGE SEC. TO STAB WOUNDS TO THE TRUNK (POSTERIOR ASPECT)" as a consequence of which, Jaquelyn Luchavez Tatoy died almost instantaneously. CONTRARY TO LAW.1

31

In the morning of the next day, December 16, 1996, appellant was investigated by SPO2 Mario Monilar of the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his constitutional rights, appellant told SPO2 Monilar that he was willing to confess and asked for Atty. Parawan, the barangay captain, to assist him. SPO2 Monilar called Atty. Parawan but the latter told him that he will be available in the afternoon. When Atty. Parawan arrived at 2:00 in the afternoon, he conferred with appellant for around fifteen minutes. Atty. Parawan then called SPO2 Monilar and told him that appellant was ready to give his statement.7 Appellants extrajudicial confession, which was taken down completely in the Cebuano dialect,8 reads:
Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa atong batakang balaod (Constitution) aduna kay katungod nga pahibaloon sa imong mga katungod, sama sa imong katungod sa pagpakahilum, ingon man duna kay katungod sa pagdamgop/pagpilig sa abogado o manlalaban aron motabang kanimo niining maong imbestighasyon nga may kalabutan sa kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30 sa kaadlawon kapin kongkulang niadtong petsa 15 sa bulan sa Disyembra 1996, didto sa Brgy Lorega proper, Siyudad sa Sugbo. Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado aron motabang kanimo karon, ako isip negrepresenttar sa Estado mohatag akong abogado kanimo. Nasabtan ba kini nimo? Tubag: OO, nasabtan ka ang akong katungod?

Tubag: Oo, andam gyud ako. Pangutana: Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o rmay kalambigitan sa imong pagkatawo, sa imong grado, imong trabaho, imong pinuyanan ug uban pa? Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o apelyedo sa akong mama sanglit dili man kasado and akong mama ug papa. Ang apelyedo sa akong papa, Cabagui ug and akon angga Hapon. Ako 19 anyos ang panuigon, ulitawo ug kasamtangan nga nagpuyo sa Brgy Lorega proper duol sa kapilaya San Roque apan ako lumad nga taga Bo. Tunga, Moalboal, Cebu diin didto ano nakatungha sa grade six. Pangutana: Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man? Tubag: Sa sinugdanan nianang mga ala una kapin kon kulang kauba ko sa pag-inom si Rico Magdasal didito sa Brgy Lorega Proper ug taodtaod niadto nilakaw ako libot sa sitio Itom Tuta ug dayon nakong saka sa balay nila ni Jaqueline Tatoy sa Brgy Lorega nianang pagka mga alas 2:20 sa maong petsa/kadlawon agii sa aberto nga bentana sa akong tuyo sa pagkawat sa ilang colored nga TV. Pangutana: Nganong nakahiabwo ka man na duna silay TV nga colored? Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored TV.

Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong Batakang Balaod, anfg tanan nga imong isulti karon dinhi, mahimong magamit ebedensya pabor o batok kanimo sa bisan asaing husgado sa atong nasud. Nasabtan be usab kini nimo? Tubag: OO, nasabtan ko usab kanang taan. Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo anf mao nimong mga katungod ug anadam ka ba nga moperma karon dinhi timailhan sa imong tina-aw nga nga pagsabut? ingon man andam ka ba sa pagsulti sa matuod walay lain kon kili ang matuod lamang gayud? Tubag: O Tubag: Oo, andam ako nga mpemar Sir ug ania karon dinhi ai Atty Parawan ang among Brgy Captain nga maoy akong giisip nga abogado nga akong pinili nga maoy motabang kanako karon. Aron sa pagmatuod, ako kining pirmahan ning ika petsa 16 sa bulan sa Disyembre 1996. ... Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar Tomaquin kon dili ang matuod lamang gayud? Ingon man andam ka ba nga modawat sa resulta o linugdangan niini?

Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man punta deretso. Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV. Pangutana: Nakuha ba gayod nimo anf maong TV? Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si Jaqueline Tatoy nga naghidga sa ilang may terrace ug nidagan siya padulong sa kusina nila ug diha-diha akong siyang ginsunod, gilayog ug gidunggab makadaghan pinaagi sa akong tres kantps nga hinagiban (Gidtudo ni Eliza rang Tres Kantos nga nakit-an didto sa patyang lawas nga Jaqueline Tatoy). Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline Totay? Tubag: Dili na ko nakahinumdom, ingon man dili sba ko makahinumdom kon diin to siya maigo. Basta manadaghan to nako siya dunggaba ginamit ko ang akong Tres kantos. Pangutana: Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang pagkapbabye o wala ka bay plano sa pag rape kaniya niadtong higayona?

32

Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa pag rape niya. Ang ako ra gyud nga tuyo mao ra gyud and pagkawat sa ilang TV apan kay nisiyagit man siyang nakaila man kayo siya nako, nahadlok kong mahibaw-an sa ako untang pagkawat sa ilang TV, hinungdan nga ako siyang gilayog ug gidunggab makadaghan. Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug imong gidunggab? Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may kusina. Pangutana: Kaila ba nimong daan si Jaqueline Tatoy? Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtan-awan sa ilang TV. Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat? Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan agi sa pultahan nga akong gisikaran dayon kanaog subay sa hagdan didto nabiyaan nako ang akong sapatos. Pangutana: Diin ka man paduiong dagan? Tubag: Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy. Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an? Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996, didtoy mga Brgy Tanods sa balay ni Wilson Magdasal diin ila akong gipangutaan tali sa maong hitabo og igo lan ako nitudlo sa akong white Slave shirt nga akong gihumulan ug tubig sa planggana sa tumong nga makuha ang mansa sa dugo nga pinisik sa akong paggdunggab patay ni Jaqueline Tatoy. Pangutana: Ngano ug unsa may diay kalabutan niadtong maong slaveless white shirt nimo? Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang TV nila ni Jaqueline ug sa iyang pagsiyagit ako siyang gidunggab-dunggab patay. (Elizar Yomaquin postivo nga nitudlo ug niangkon sa maong whitel sleve less shirt) Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha didto so hagdan sa balay nila ni Jaqueline Tatoy human siya nakit-i nga patay, unsa may imong ikasulti niini?

Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo ug gain sa akong pagdagan akong napatiran kadtong ilang container. Pangutana: Sa pagkakaron, wala na akoy ipangutana kanimo. Ikay aduna ka pa bay ikasul ti o bakwion ba hinoon sa mao nimong gipamahayag nga naglangkob sa duha ka pahina lakip niining maong pahina? Tubag: Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan. Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay tawo nga nagpugos, naghulga, nagsaad ug gnate o nag hadlok ba hinoon kon dili sa imong kaugalingon nga kabubut-on lamang. Tubag: Oo, andam ako pageram. Aron matuoron kining tanan kini akong permaahn ning petsa 16 sa Diusyembre 1996, Siyudad Sugbo, Pilipinas.9

On the witness stand, appellant did not deny that he had a drinking spree with Rico Magdasal and three other persons. His version of the incident is that it was Rico who committed the crime and not him. Appellant testified that Rico asked his help in stealing the television set from the Tatoys residence. When Jacquelyn saw them, she ran towards the kitchen but she did not reach it as Rico had stabbed her on the back with the tres cantos. Appellant claims that it was Rico who owns the tres cantos, as well as the pair of shoes, left inside Tatoys house. Afraid of what happened, appellant went home to Wilson Magdasals house and slept there. He was awakened the next morning bybarangay tanod Julius Yosores who kicked him. Yosores also boxed and poked a gun at him. Appellant claims that Rico and Edgar Magdasal maltreated him in the presence of barangay captain Atty. Fortunato Parawan when he was brought to the latters house. He was made to admit committing the crime because Rico has a family while he is single. 10 Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him to sign a blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with his expenses.11 After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity) rendered its decision on October 24, 1997, convicting appellant of the crime of Murder, to wit: WHEREFORE, in view of all the foregoing considerations, accused Elizar Tomaquin is found guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPERTUA, with the accessory penalties of the law; to indemnify the heirs of Jaquelyn Tatoy in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his detention provided he will

33

signify in writing that he will abide by all the rules and regulations of the penitentiary. SO ORDERED.12 Hence, this appeal. In his Brief, appellant raises the following Assignment of Errors: 1. THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED ACCUSED-APPELLANT BASED ON HIS UNCOUNSELLED CONFESSION; 2. THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE FULL CREDENCE AND FULL FAITH ON THE TESTIMONY OF THE PROSECUTION WITNESSES;13 Appellants extrajudicial confession was taken and transcribed entirely in the Cebuano dialect. Rule 132, Section 33 of the Revised Rules on Evidence provides: Sec. 33. Documentary evidence in an unofficial language.-- Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. The rule is that when there is presented in evidence an exhibit written in any language other than the official language (Filipino or English), if there is an appeal, that exhibit should be translated by the official interpreter of the court, or a translation should be agreed upon by the parties, and both original and translation sent to this court.14 In this case, there is no official translation of appellants extrajudicial confession in the Filipino or English language. If the Court were to strictly follow the rule, then appellants extrajudicial confession should not have been admitted by the trial court as evidence for the prosecution. Nevertheless, considering that appellant did not interpose any objection thereto, and the parties and the judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of Cebuano in which the document was written,15 such extrajudicial confession was appropriately considered by the trial court as evidence for the prosecution.

As stated at the outset, the crucial issue in this case is whether or not the extrajudicial confession executed by appellant, with the assistance of Atty. Fortunato Parawan, is admissible in evidence against him. There is no need at this point to secure an official translation of the confession to English. Section 12, Article III of the 1987 Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The words "competent and independent counsel" in the constitutional provision is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.16 As heretofore stated, Atty. Fortunato Parawan, at that time, was the barangay captain of Barangay Lorega, Cebu City. Under the 1991 Local Government Code, a barangay captain performs the following duties and functions:
(a) The punong barangay, as the chief executive of the barangay government, shall exercise such powers and perform such duties and functions, as provided by this Code and other laws. (b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall: (1) Enforce all laws and ordinances which are applicable within the barangay; ... (3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and the sanggunian members in the performance of their duties and functions; . . .17

Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times. In fact, as barangay captain, Atty. Parawan is deemed a person in authority under Article 152 of the Revised Penal Code, to wit:

34

ART. 152. Persons in authority and agents of persons in authority. Who shall be deemed as such. In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of appellant. In People vs. Culala,18 the Court reiterated the rule that a municipal attorney cannot be an independent counsel because as a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order, and it was seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Thus, the Court held that he is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations.19 This is reiterated in People vs. Taliman,20 and People vs. Velarde,21 where we further ruled that a municipal mayor cannot likewise be an independent counsel as required by the Constitution. Similarly in this case, considering that Atty. Parawans role as a barangay captain, was a peacekeeping officer of hisbarangay and therefore in direct conflict with the role of providing competent legal assistance to appellant who was accused of committing a crime in his jurisdiction, Atty. Parawan could not be considered as an independent counsel of appellant, when the latter executed his extrajudicial confession. What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest.22 Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. As held in People vs. Velarde:23 . . . The competent and independent lawyer so engaged should be present at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a

while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.24 Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent.25 The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and vigilant. As testified by Atty. Parawan, hereinbelow quoted verbatim, this was what transpired when he went to the Ramos police station to assist appellant during the investigation:
Q What happened when you arrived at the Ramos Police Station at around 2:00 oclock in the afternoon of December 16, 1996? A I go (sic) to the room where Policeman Monilar and the accused and had a conversation with the accused. Q What transpired during that conversation with the accused. A I asked him. Are you going to get me as your lawyer? Q And may we know what did he answer? A Yes, Cap. Okay Cap. Q When you said "Cap" what did he mean by that word "Cap." A Being a Barangay Captain. Q After the accused told you that you were his counsel of choice. What did you do next if any? A I informed Elizar Tomaquin that do you know what will be the implication of your admission, you will be imprisoned. Q After you asked him whether he knew of the implication of his confession that could be because of that confession. What was his reaction? A Yes Cap. I know. And then I told him as follows: "Because of this confession you will be imprisoned."

35

Q And what did he say after you told him again that if he would execute that affidavit of confession he would surely be imprisoned? A No I even continue that "why did he do that?" Q And what did he answer? A He answered to me that he was drunk at that time. Q And so what transpired next? A So I told him are you willing now to give your confession, then policeman Monilar went inside the room and we had that investigation. Q Now how was the investigation of the accused done? A It was made in a question and answer form. Q And in what language were the questions framed? A In the vernacular, vesaya. Q What did you do during the question and answer form of investigation? A I just observed them.

Q And that means to say that when he prepared this from the top most portion to that portion immediately right before the typewritten name Elizar Tomaquin and Atty. Fortunato Parawan you were not around. Correct? A I was not around but we have already a conversation earlier with Monilar. 26

Records also show that appellant was presented to SPO2 Monilar in the morning of December 16, 1996. When appellant intimated that he was willing to confess and requested the presence of Atty. Parawan, SPO2 Monilar called up Atty. Parawan and informed him of appellants decision. Atty. Parawan arrived at the Ramos Police Station only at 2:00 in the afternoon.27 By the time Atty. Parawan arrived, the investigation had already started and SPO2 Monilar had already asked and elicited information from appellant. Worse, Atty. Parawan merely "observed" during the entire investigation and failed to advise or explain to appellant the questions being propounded by SPO2 Monilar. He did not even bother to ask appellant if the extrajudicial confession he was about to execute was being voluntarily given. Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own testimony that he already suspected appellant as having committed the crime when the latter was brought to his house by the barangay tanods, viz.:
Q Being an attorney naturally your first question to your arresting tanods was where was he arrested and how was he arrested and what is the reason why he was arrested. Correct? A Yes.

Q But did you stay there until the whole taking of the confession was over? ... A Yes I was there in the presence of two persons coming from my Barangay. ... Q When you arrived and saw Mr. Monilar with the accused as an Attorney did you immediately inquire what had happened before you arrived like; Did you start the investigation? did you inquire from that from Mr. Monilar? A He was already preparing this top portion here. INTERPRETER: Q Witness pointing to the upper portion of the certification up to the signature to that portion above the names typewritten thereon. ... Q You are telling this Court now Atty. Parawan that before the Barangay Tanods could explain to you the circumstances of his arrest you already started to ask questions like; Why did you have blood in your pants. Where is your t-shirt you wore. Where did you get that information since you were not in the house of Jaqueline Tatoy when she was killed? A It was like this. I heard that the victim suffered multiple stab wounds. So when I saw blood stains with all probability it might come from the victim. It was conclusion something like when I saw that t-shirt stained with blood. Q So you mean to this Court that you already reached the conclusion of mine (sic) that Elizar Tomaquin one of your constituents in the Barangay was already on your conclusion in mine (sic) the killer of Jacquilyn Tatoy before your tanods turned it over to the police for investigation. Is that what you are telling Atty. Parawan? A It is somewhat like that. That is why I ordered my tanod to bring him to the Homicide.28

36

The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellants rights as an accused during the investigation when he himself entertained the suspicion that appellant is guilty of the crime charged, and naturally, he would want appellant to admit having committed it. It was posited that appellant cannot challenge Atty. Parawans qualification as a competent and independent counsel because he was his choice. As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person under investigation for the commission of an offense shall have the right to have competent and independent counsel preferably of his own choice. Ideally, the lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning, but the word "preferably" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense.29 What is imperative is that the counsel should be competent and independent. That appellant chose Atty. Parawan does not estop appellant from complaining about the latters failure to safeguard his rights. It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega where appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The latter, however, fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and does not know how to read and write.30 As between him and Atty. Parawan who presumably knows the intricacies of the law and appellants predicament, Atty. Parawan should have known better and exercised his sound judgment before conceding to appellants choice. But it did not occur to him to inhibit himself from acting as appellants counsel and instead, he even let appellant go through the investigation and execute the extrajudicial confession knowing fully well that he was biased as regards appellants innocence. Quoted verbatim, Atty. Parawan testified thus: Q Atty. Parawan comparing yourself to the accused who is a graduate of Batchelor (sic) of Law compared to your constituent who is jobless, illiterate [and] of low intelligence. The question is this: It did not occur to your mine (sic) to inhibit yourself despite the request by telling the accused as barangay Captain there could be a conflict of interest and bias that I would not be in (sic) effective counsel or assistance to you. Did it not occur toy our mine (sic) or not? A It did not occur to my nime (sic).

... Q But as experienced attorney you know very well that when you assist a suspect in the police station and the circumstances he was arrested the best assistance a lawyer could give is would be to tell the accused to remain silent. Would you agree? ... A It did not occur to my mine (sic) that time.31 Clearly, Atty. Parawan failed to meet the exacting standards of an independent and competent counsel as required by the Constitution. Thus, the extrajudicial confession executed by appellant, even if gospel truth, is deemed an uncounselled confession and therefore, inadmissible in evidence. In this regard, it may not be amiss to repeat the declaration of the Court in People vs. Deniega,32 stressing the role of the courts in ascertaining that extrajudicial confessions meet the exacting standards of the Constitution: Every so often, courts are confronted with the difficult task of taking a hard look into the sufficiency of extra-judicial confessions extracted by law enforcement authorities as the sole basis for convicting accused individuals. In cases of crimes notable for their brutality and ruthlessness, the impulse to find the culprits at any cost occasionally tempts these agencies to take shortcuts and disregard constitutional and legal safeguards intended to bring about a reasonable assurance that only the guilty are punished. Our courts, in the process of establishing guilt beyond reasonable doubt, play a central role in bringing about this assurance by determining whether or not the evidence gathered by law enforcement agencies scrupulously meets exacting standards fixed by the Constitution. If the standards are not met, the Constitution provides the corresponding remedy by providing a strict exclusionary rule, i.e., that "[a]ny confession or admission obtained in violation of (Article III, Section 12(1) . . . hereof shall be inadmissible in evidence." Without appellants extrajudicial confession, the prosecutions case now teeters precariously on circumstantial evidence, namely:
(1) Rico Magdasals testimony that:

37

(a) appellant left their drinking session at 1:00 in the morning of December 16, 1996; (b) the tres cantos and pair of shoes found inside Jaquelyns residence belongs to appellant; and (c) appellant was wearing a pair of maong shorts and white sando shirt on the night of the crime, which blood-stained shirt was found among the soiled clothes in Wilson Magdasals house;

(2) Medical Technologist Jude Daniel Mendozas testimony that the blood stains on appellants sando shirt and the tres cantos was of human origin.33 These circumstances, however, are not sufficient to demonstrate positively and convincingly that it was appellant who killed Jaquelyn. Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 34 As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven 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, i.e., 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.35 The circumstantial evidence in this case does not constitute an unbroken chain leading to one fair and reasonable conclusion that appellant is the guilty person. For one, appellants act of leaving the drinking session at 1:00 in the morning does not establish appellants whereabouts at the time the crime was committed. There is nothing in the testimony of Rico Magdasal and the other prosecution witnesses that will show if appellant indeed went to Jaquelyns house after he left the group. No one saw him enter or leave her residence. If at all, what was proved is that appellant was found by the barangay tanodssleeping at home in the afternoon of the same day. Added to that is the prosecutions failure to establish the chain of custody of these valuable pieces of evidence.

Prosecution witness Armando Zabate testified that the pair of black shoes and tres cantos were given to a certain Rey for safekeeping. These were later turned over to a Policeman Tariao of the Ramos Police Station. Zabate, however, did not identify the person who turned over the objects to the police.36 There was no showing who turned over those articles to the police and Rey was not presented to identify if these were the same pair of shoes and tres cantos found in Jaquelyns house and turned over to the police. Policeman Tariao was not called to the witness stand so as to confirm if those articles were the same evidence turned over to him and later presented in court. Ordinarily, it would not be indispensable for the prosecution to allege and prove every single fact of the case. But in this case, the pieces of evidence are crucial to the prosecutions case. Also, the fact that a civilian obtained and received the evidence, the possibility that the integrity of these articles could have been compromised cannot be ignored. The Court even noted that during his direct examination, SPO2 Monilar was confused as to whether the pair of shoes presented in court was the same ones that were turned over to the police. It turned out that the marking he made on the shoes were washed off because at one time, the shoes fell in the canal located in front of the police station and they had to clean and wash the shoes! 37 Such sloppy handling renders the chain of custody of those pieces of evidence dubious, and damaging to the prosecutions case. And even if appellant did own the pair of shoes and tres cantos, the fact that it was found in the scene of the crime merely proved that he was in the residence of Jaquelyn at some point in time. But it does not prove when particularly he was there, his authorship of the crime or his motive for being there. While the motive of an accused in a criminal case is generally held to be immaterial, not being an element of the crime, motive becomes important when, as in this case, the evidence of the commission of the crime is purely circumstantial. 38 The prosecutions evidence that is perceived to be conclusive of appellants guilt is mainly the testimony of Rico Magdasal. Such testimony, however, is uncorroborated. The rule is that the testimony of one witness is sufficient to sustain a conviction, if such testimony positively establishes the guilt of the accused beyond reasonable doubt.39 Moreover, the doctrine of long standing that the testimony of a lone witness, if credible and positive, is sufficient to convict an accused applies only to eyewitnesses. Thus, an uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt.40 Ricos lone testimony is not sufficient to establish appellants guilt beyond reasonable doubt. In addition, appellant vehemently denied Ricos allegations. According to appellant, it was Rico who actually owns the pair of shoes and tres cantos; that it was he who bid appellant to go to the Tatoys residence and lift their TV set; and that it was

38

Rico who stabbed Jaquelyn. Considering appellants denial and his different version of the incident, it became incumbent upon the prosecution to rebut appellant's allegations with further evidence to corroborate the statement of Rico. It must be noted that there were other persons present during their drinking spree, namely, Romy Magdasal, Noel Labay, and a certain Cardo. These persons could have been presented as witnesses to back up Ricos claim but the prosecution did not do so. Rico testified that appellant owned the tres cantos found by the stairs; but Rico also stated he only "heard" that the tres cantos was found by the stairs.41 Who found the tres cantos that was supposed to have been used to stab Jaquelyn? The neighbor who allegedly found it by the stairs was not presented in court to identify if the tres cantos presented by the prosecution was the alleged weapon in the stabbing of Jaquelyn. Such failure of the prosecution to corroborate the material points of Ricos testimony weakened their case. The Court also has serious misgivings on the probative value of the white sando shirt that appellant was allegedly wearing at the time of stabbing Jaquelyn, which Edgar Magdasal later found bloodstained among the soiled clothes. First, when appellant was asked by the barangay tanods about the shirt he was wearing, he told them that it was in Wilson Magdasals house. According to barangay tanod Armando Zabate, it was Edgar Magdasal who found the shirt, "somewhat wet and bloody," among the soiled clothes.42 Edgar Magdasal, however, was not presented to testify as to where he found the shirt, the state the shirt was in when he found it, and how he knew that it was the shirt worn by appellant. Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on appellants sando shirt, as well as the tres cantos, were human blood.43 Mendoza, however, did not conduct further tests to ascertain the type of blood found on these pieces of evidence nor did he match it with the victims blood type,44 hence, it does not connect the bloodstains to the herein victim. In People vs. Rodriguez, the Court ruled that the maong pants allegedly belonging to appellant and found positive of type O blood has no probative value since the blood type of appellant and the victim were not taken for purposes of comparison.45 The same ruling applies with regard to the bloodstains found on the tres cantos. Appellant enjoys in his favor the presumption of innocence until the contrary is proven. Proof of the guilt of the accused should not be tainted with ambiguity. Although appellants defense is weak, conviction must come from the strength of the prosecution's evidence and not from the weakness of the defense. In this case, the prosecutions evidence is not strong enough to justify a finding of guilt beyond reasonable doubt.46 Acquittal, therefore, is inevitable.

WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and ordered RELEASED immediately, unless he is being detained for some other legal cause. The Director of the Bureau of Corrections is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of the date of his release, or the ground for his continued confinement, within ten (10) days from notice of herein decision. Costs de oficio. SO ORDERED.

39

EN BANC PEOPLE OF THEPHILIPPINES, Appellee, G. R. No. 170470 Present: PANGANIBAN, C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ. Promulgated:

From the personal account of Remigio Bernardo, the Barangay Chairman in the area, as well as the personal account of the pedicab driver named Rolando Gruta, it was at around 4:45 a.m. on January 2, 2001 when Remigio Bernardo and his tanods saw the accused-appellant EDNA, one hired as a housemaid by Roberto Separa, Sr., with her head turning in different directions, hurriedly leaving the house of her employer at No. 172 Moderna Street, Balut, Tondo, Manila. She was seen to have boarded a pedicab which was driven by a person later identified as Rolando Gruta. She was heard by the pedicab driver to have instructed that she be brought to Nipa Street, but upon her arrival there, she changed her mind and asked that she be brought instead to Balasan Street where she finally alighted, after paying for her fare. Thirty minutes later, at around 5:15 a.m. Barangay Chairman Bernardos group later discovered that a fire gutted the house of the employer of the housemaid. Barangay Chairman Bernardo and his tanods responded to the fire upon hearing shouts from the residents and thereafter, firemen from the Fire District 1-NCR arrived at the fire scene to contain the fire. When Barangay Chairman Bernardo returned to the Barangay Hall, he received a report from pedicab driver Rolando Gruta, who was also a tanod, that shortly before the occurrence of the fire, he saw a woman (the housemaid) coming out of the house at No. 172 Moderna Street, Balut, Tondo, Manila and he received a call from his wife telling him of a woman (the same housemaid) who was acting strangely and suspiciously on Balasan Street. Barangay Chairman Bernardo, Rolando Gruta and the other tanods proceeded to Balasan Street and found the woman who was later identified as the accused-appellant. After Rolando Gruta positively identified the woman as the same person who left No. 172 Moderna Street, Balut, Tondo, Manila, Barangay Chairman Bernardo and his tanods apprehended her and brought her to the Barangay Hall for investigation. At the Barangay Hall, Mercedita Mendoza, neighbor of Roberto Separa, Sr. and whose house was also burned, identified the woman as accusedappellant EDNA who was the housemaid of Roberto Separa, Sr. Upon inspection, a disposable lighter was found inside accused-appellant EDNAs bag. Thereafter, accused-appellant EDNA confessed to Barangay Chairman Bernardo in the presence of multitudes of angry residents outside the Barangay Hall that she set her employers house on fire because she had not been paid her salary for about a year and that she wanted to go home to her province but her employer told her to just ride a broomstick in going home. Accused-appellant EDNA was then turned over to arson investigators headed by S[F]O4 Danilo Talusan, who brought her to the San Lazaro Fire Station in Sta. Cruz, Manila where she was further investigated and then detained. When Mercedita Mendoza went to the San Lazaro Fire Station to give her sworn statement, she had the opportunity to ask accused-appellant EDNA at the latters detention cell why she did the burning of her employers house and accused-appellant EDNA replied that she set the house on fire because when she asked permission to go home to her province, the wife of her employer Roberto Separa, Sr., named Virginia Separa (sic) shouted at her: Sige umuwi ka, pagdating mo maputi ka na. Sumakay ka

- versus -

EDNA MALNGAN y MAYO, Appellant.

September 26, 2006 x----------------------------------------x DECISION

CHICO-NAZARIO, J.:

The Case For review is the Decision of the Court of Appeals in CA-G.R. CR HC No. 01139 [2] promulgated on 2 September 2005, affirming with modification the Judgment of the Regional Trial Court (RTC) of Manila, Branch 41, in Criminal Case No. 01-188424 promulgated on 13 October 2003, finding appellant Edna Malngan y Mayo (Edna) guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people, and sentencing her to suffer the penalty of death. The Facts As summarized
[3] [1]

by the Court of Appeals, the antecedent facts are as follows:

40

sa walis, pagdating mo maputi ka na (TSN, January 22, 2002, p.6) (Go ahead, when you arrive your color would be fair already. Ride a broomstick, when you arrive your color would be fair already.) And when Mercedita Mendoza asked accused-appellant EDNA how she burned the house, accused-appellant EDNA told her: Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis ko sa ibabaw ng lamesa sa loob ng bahay (TSN, January 22, 2002, p. 7.) (I crumpled newspapers, lighted them with a disposable lighter and threw them on top of the table inside the house.) When interviewed by Carmelita Valdez, a reporter of ABS-CBN Network, accusedappellant EDNA while under detention (sic) was heard by SFO4 (sic) Danilo Talusan as having admitted the crime and even narrated the manner how she accomplished it. SFO4 (sic) Danilo Talusan was able to hear the same confession, this time at his home, while watching the television program True Crime hosted by Gus Abelgas also of ABS-CBN Network. The fire resulted in [the] destruction of the house of Roberto Separa, Sr. and other adjoining houses and the death of Roberto Separa, Sr. and Virginia Separa together with their four (4) children, namely: Michael, Daphne, Priscilla and Roberto, Jr.
[4]

When arraigned, accused-appellant with assistance of counsel de oficio, pleaded [7] Guilty to the crime charged. Thereafter, trial ensued.
[8]

[6]

Not

The prosecution presented five (5) witnesses, namely, SPO4 Danilo Talusan, Rolando Gruta, Remigio Bernardo, Mercedita Mendoza and Rodolfo Movilla to establish its charge that accused-appellant Edna committed the crime of arson with multiple homicide. SPO4 Danilo Talusan, arson investigator, testified that he was one of those who responded to the fire that occurred on 2 January 2001 and which started at No. 172 Moderna St., Balut, Tondo,Manila. He stated that the fire killed Roberto Separa, Sr. and all the other members of his family, namely his wife, Virginia, and his children, Michael, Daphne, Priscilla and Roberto, Jr.; the fire also destroyed their abode as well as six neighboring houses. He likewise testified that he twice heard accused-appellant once while the latter was being interviewed by Carmelita Valdez, a reporter of ABSCBN, and the other time when it was shown on channel 2 on television during the airing of the television program entitled True Crime hosted by Gus Abelgas confess to having committed the crime charged, to wit: Pros. Rebagay: Based on your investigation, was there any occasion when the accused Edna Malngan admitted to the burning of the house of the Separa Family? xxxx
Witness: Yes, sir. Pros. Rebagay: When was that? A: On January 2 she was interviewed by the media, sir. The one who took the coverage was Carmelita Valdez of Channel 2, ABS-CBN. They have a footage that Edna admitted before them, sir. Q: And where were you when Edna Malngan made that statement or admission to Carmelita Valdez of ABS-CBN? A: I was at our office, sir.

On 9 January 2001, an Information was filed before the RTC of Manila, Branch 41, charging accused-appellant with the crime of Arson with Multiple Homicide. The case was docketed as Criminal Case No. 01-188424. The accusatory portion of said Information provides: That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfully, unlawfully, feloniously and deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family mostly made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this city, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, the following, namely, 1. 2. 3. 4. 5. 6. Roberto Separa, Sr., 45 years of age Virginia Separa y Mendoza, 40 years of age Michael Separa, 24 years of age Daphne Separa, 18 years of age Priscilla Separa, 14 years of age Roberto Separa, Jr., 11 years of age

Q: Was there any other occasion wherein the accused made another confession relative to the admission of the crime? A: Q: Yes, sir. When was that?

sustained burn injuries which were the direct cause of their death immediately [5] thereafter.

A: Last Friday, sir. It was shown in True Crime of Gus Abelgas. She was interviewed at the City Jail and she admitted that she was the one who authored the crime, sir.

41

Pros. Rebagay: And where were you when that admission to Gus Abelgas was made? A: I was in the house and I just saw it on tv, sir.

Q: A:

Do you know the number of the house of the Separa Family? 172 Moderna St., Balut, Tondo, Manila, sir.

Q: What was that admission that you heard personally, when you were present, when the accused made the confession to Carmelita Valdez? A: Naglukot po siya ng papel, sinidihan niya ng lighter at inilagay niya sa ibabaw ng mesa yung mga diyaryo at sinunog niya. xxxx Q: Aside from that statement, was there any other statement made by the accused Edna Malngan? A: Yes, sir. Kaya po niya nagawa yon galit po siya sa kanyang amo na si Virginia, hindi siya pinasuweldo at gusto na po niyang umuwi na (sic) ayaw siyang payagan. Nagsalita pa po sa kanya na, Sumakay ka na lang sa walis. Pagbalik mo dito maputi ka na. (sic) Yon po ang sinabi ng kanyang amo. Atty. Masweng: That was a statement of an alleged dead person, your Honor. Court: Sabi ni Valdes, ha? Pros. Rebagay: Sabi ni Edna Malngan kay Carmelita Valdez, Your Honor. Court: Double hearsay na yon. Pros. Rebagay: No, Your Honor, the witness was present, Your Honor, when that confession was made by the accused to Carmelita Valdez.[9]

xxxx Q: And you said you saw Edna coming out from the house of the Separa Family. How far is that house from the place where you were waiting at the corner of Moderna and Paulino Streets? A: About three meters from Moderna and Paulino Streets where my pedicab was placed. My distance was about three meters, sir. xxxx Q: And how did you know that the house where Edna came out is that of the house of the Separa Family? A: Q: A: Mismong nakita po ng dalawang mata ko na doon siya galing sa bahay ng Separa Family. How long have you known the Separa Family, if you know them? About two years, sir.

Q: How about this Edna, the one you just pointed (to) awhile ago? Do you know her prior to January 2, 2001? A: Yes, sir. I knew(sic) her for two years.

Court: Why? Witness: Madalas ko po siyang maging pasahero ng aking pedicab. Pros. Rebagay: How about the Separa family? Why do you know them? A: They were the employers of Edna, sir.

Rolando Gruta, the pedicab driver and one of the barangay tanods in the area, testified: Pros. Rebagay: Mr. Witness, what is your profession? A: Q: A: Sidecar driver, sir. On January 2, 2001 at around 4:45 in the morning, do you recall where were (sic) you? I was at the corner of Moderna Street, sir.

Q: You said you saw Edna coming out from the house of the Separa Family. What happened when you saw Edna coming out from the house of the Separa Family? A: Wala pa pong ano yan naisakay ko na siya sa sidecar.

Q: And what did you observe from Edna when you saw her coming out from the house of the Separa family? A: Nagmamadali po siyang lumakad at palinga-linga.

Pros. Rebagay: And while you were at the corner of Moderna St., what happened if any, Mr. Witness? A: I saw Edna coming out from the door of the house of Roberto Separa, sir.

xxxx Q: After she boarded your pedicab, what happened, if any?

42

A: A: Q: A: Q: A: Nagpahatid po siya sa akin. Where? To Nipa Street, sir. Did you bring her to Nipa Street as she requested? Yes, sir. A:

No, sir.

Pros. Rebagay: And after that incident, did you come to know if Edna was apprehended or not? xxxx I was called by our Barangay Chairman in order to identify Edna, sir.

x x x x[10]

xxxx Remigio Bernardo, Barangay Chairman of the area where the fire occurred, stated: Q: You said that you brought her to Nipa Street. What happened when you go (sic) there at Nipa Street, if any? A: Q: A: Nagpahinto po siya doon ng saglit, mga tatlong minuto po. What did she do when she asked (you) to stop there for three minutes? A: After three minutes she requested me to bring her directly to Balasan Street, sir. Q: xxxx Q: A: Q What happened after that? When we arrived there, she alighted and pay (sic) P5.00, sir. And then what transpired after she alighted from your pedicab? Court: You just answer the question. Where were you when this incident happened? Witness: I was at the Barangay Hall, Your Honor. Pros. Rebagay: And you said that there was a fire that occurred, what did you do? Witness: Iyon nga nagresponde kami doon sa sunog eh nakita ko iyong sunog mukha talagang arson dahil napakalaki kaagad, meron pong mga tipong Iyong namatay po contractor po iyon eh kaya siguro napakaraming kalat ng mga pintura, mga container, kaya hindi po namin naapula kaagad iyong apoy, nasunog ultimo iyong fire tank namin sa lakas, sir. Pros. Rebagay: Now, will you please tell us where this fire occurred? A: Q: A: Siyempre po, isang Barangay Tanod po ako, nagresponde na po kami sa sunog. Binuksan na po ng Chairman naming yung tangke, binomba na po naming yung apoy ng tubig. Q: After that incident, Mr. Witness, have you seen Edna Again (sic). A: At the house of the six victims, sir. Whose house is that? The house of the victims, sir. A: Kasi ugali ko na po tuwing umagang-umaga po ako na pupunta sa barangay Hall mga siguro 6:00 or 5:00 o clock, me sumigaw ng sunog nirespondehan namin iyong sunog eh me dala kaming fire. Now, where were you when this incident happened? Yes, sir. Pros. Rebagay: On January 2, 2001, do you recall if there is a fire that occurred somewhere in your area of jurisdiction, particularly Moderna Street?

Witness: I went home and I looked for another passenger, sir. Pros. Rebagay: After that, what happened when you were on you way to your house to look for passengers? A Q: A: Nakita ko na nga po na pagdating ko sa Moderna, naglalagablab na apoy. From what place was that fire coming out? From the house of Roberto Separa Family, sir.

xxxx Pros. Rebagay: After you noticed that there was a fire from the house of Roberto Separa Family, what did you do if any?

xxxx

43

Pros. Rebagay: You said that you responded to the place, what transpired after you responded to the place? A: Iyon nga po ang nagsabi may lumabas na isang babae po noon sa bahay na nagmamadali habang may sunog, me isang barangay tanod po akong nagsabi may humahangos na isang babae na may dalang bag papunta po roon palabas ng sasakyan, sir. Q: And so what happened?

Now, who were present when the accused are telling you this? A: Iyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog nagkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao and namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin-pointed po siya, Your Honor, iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gustong-gusto siyang kunin ng mga taong-bayan, nagalit dahil ang daming bahay hong nasunog.[11]

A: Siyempre hindi naman ako nagtanong kung sino ngayon may dumating galing na sa bahay naming, may tumawag, tumawag po si Konsehala Alfonso na may isang babae na hindi mapakali doon sa Calle Pedro Alfonso, ke konsehal na baka ito sabi niya iyong ganito ganoon nirespondehan ko po, sir. Q: A: Where did you respond? At Balasan, sir, but its not the area of my jurisdiction.

For her part, Mercedita Mendoza, one of the neighbors of the Separa Family and whose house was one of those destroyed by the fire, recounted: Pros. Rebagay: Madam Witness, on January 2, 2001, do you recall where were you residing then? A: Q: A: Yes, sir. Where were you residing at? At No. 170 Moderna St., Balut, Tondo, Manila, sir.

xxxx Q: A: What happened when you reached that place? Siya po ang nahuli ko doon, sir. Witness pointing to accused Edna Malngan. Pros. Rebagay: And what happened? A: Q: I brought her to the barangay hall, sir.

Q: Why did you transfer your residence? Awhile ago you testified that you are now residing at 147 Moderna St., Balut, Tondo, Manila? A: Q: A: Q: Because our house was burned, sir. More or less, how much did the loss incurred on the burning of your house (sic)? More or less, P100,000.00, sir Do you know the accused in this case Edna Malngan? Yes, sir. Why do you know her? She is the house helper of the family who were (sic) burned, sir. What family? Cifara (sic) family, sir. Who in particular do you know among Cifara (sic) family? The woman, sir. What is the name? Virginia Mendoza Cifara (sic), sir. Are you related to Virginia Mendoza Cifara (sic)?

Court:

And what happened at the barangay hall? A:

A: Inembestigahan ko, kinuha naming iyong bag niya, me lighter siya eh. Inamin niya po sa amin na kaya niya sinunog hindi siya pinasasahod ng more or less isang taon na eh. Ngayon sabi ko bakit eh gusto ko ng umuwi ng probinsya ang sabi sa akin ng amo ko sumakay na lang daw po ako ng walis tingting para makauwi, sir. Atty. Herman: We would like to object, Your Honor on the ground that that is hearsay. Pros. Rebagay: That is not a hearsay statement, Your Honor, straight from the mouth of the accused. Atty. Herman: Its not under the exemption under the Rules of Court, Your Honor. He is testifying according to what he has heard. Court: Thats part of the narration. Whether it is true or not, thats another matter. Let it remain. Pros. Rebagay:

Q: A: Q: A: Q: A: Q: A: Q:

44

A: Q: A: Q: A:

My husband, sir. What is the relationship of your husband to the late Virginia Mendoza Cifara (sic)? They were first cousins, sir. How far is your house from the house of the Cifara (sic) family? Magkadikit lang po. Pader lang ang pagitan.

A: I also asked her, Paano mo ginawa yung sunog? She told me, Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis niya sa ibabaw ng lamesa sa loob ng bahay.(sic)[12]

Lastly, the prosecution presented Rodolfo Movilla, owner of the house situated beside that of the Separa family. He testified that his house was also gutted by the fire that killed the Separafamily and that he tried to help said victims but to no avail. The prosecution presented other documentary evidence case.
[13]

Q: You said that Edna Malngan was working with the Cifara (sic) family. What is the work of Edna Malngan? A: Q: A: Q: Nangangamuhan po. House helper, sir. How long do you know Edna Malngan as house helper of the Cifara (sic) family? I cannot estimate but she stayed there for three to four years, sir. Do you know who caused the burning of the house of the Cifara (sic) family?

and thereafter rested its

When it came time for the defense to present exculpatory evidence, instead of doing [14] so, accused-appellant filed a Motion to Admit Demurrer to Evidence and the [15] corresponding Demurrer to Evidence with the former expressly stating that said Demurrer to Evidence was being filed x x x without express leave of court [16] x x x. In her Demurrer to Evidence, accused-appellant asserts that the prosecutions evidence was insufficient to prove her guilt beyond reasonable doubt for the following [17] reasons: (a) that she is charged with crime not defined and penalized by law; (b) that circumstantial evidence was insufficient to prove her guilt beyond reasonable doubt; and (c) that the testimonies given by the witnesses of the prosecution were hearsay, thus, inadmissible in evidence against her. The prosecution filed its Comment/Opposition to accused-appellants Demurrer to Evidence. On 13 October 2003, acting on the Demurrer to Evidence, the RTC promulgated [18] its Judgment wherein it proceeded to resolve the subject case based on the evidence of the prosecution. The RTC considered accused-appellant to have waived her right to present evidence, having filed the Demurrer to Evidence without leave of court. In finding accused-appellant Edna guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide, the RTC ruled that: The first argument of the accused that she is charged with an act not defined and penalized by law is without merit. x x x the caption which charges the accused with the crime of Arson with Multiple Homicide is merely descriptive of the charge of Arson that resulted to Multiple Homicide. The fact is that the accused is charged with Arson which resulted to Multiple Homicide (death of victims) and that charge is embodied and stated in the body of the information. What is controlling is the allegation in the body of the Information and not the title or caption thereof. x x x. xxxx

Witness: Edna Malngan, sir. Pros. Rebagay: Why do you know that it was Edna Malngan who burned the house of the Cifara (sic) family? A: When the fire incident happened, sir, on January 3, we went to San Lazaro Fire Station and I saw Edna Malngan detained there, sir. Q: And so what is your basis in pointing to Edna Malngan as the culprit or the one who burned the house of the Cifara (sic) family? A: Q: A: Q: I talked to her when we went there at that day, sir. What transpired then? I talked to her and I told her, Edna, bakit mo naman ginawa yung ganun? And what was the answer of Edna?

A: She answered, Kasi pag nagpapaalam ako sa kanyang umuwi ng probinsya, nagpapaalam po siyang umuwi ng probinsya ang sinasabi daw po sa kanya ni Baby Cifara (sic) na, (sic)Sige umuwi ka, pagdating mo maputi ka na. Sumakay ka sa walis pagdating mo maputi ka na. Pros. Rebagay: What is the basis there that she was the one who burned the house of the Cifara (sic) family?

45

The second and third arguments will be discussed jointly as they are interrelated with each other. x x x. xxxx [W]hile there is no direct evidence that points to the accused in the act of burning the house or actually starting the subject fire, the following circumstances that show that the accused intentionally caused or was responsible for the subject fire have been duly established: 1. that immediately before the burning of the house, the accused hurriedly and with head turning in different directions (palinga-linga) went out of the said house and rode a pedicab apparently not knowing where to go x x x; 2. that immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and 3. that when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman. [T]he timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged. If there is any doubt of her guilt that remains with the circumstantial evidence against her, the same is removed or obliterated with the confessions/admissions of the commission of the offense and the manner thereof that she made to the prosecution witnesses Barangay Chairman Remigio Bernardo, Mercedita Mendoza and to the media, respectively. xxxx [H]er confessions/admissions are positive acknowledgment of guilt of the crime and appear to have been voluntarily and intelligently given. These confessions/admissions, especially the one given to her neighbor Mercedita Mendoza and the media, albeit uncounselled and made while she was already under the custody of authorities, it is believed, are not violative of her right under the Constitution. The decretal part of the RTCs Judgment reads:

WHEREFORE, the Demurrer to Evidence is hereby denied and judgment is hereby rendered finding the accused EDNA MALNGAN Y MAYO guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people and sentencing her to suffer the mandatory penalty of death, and ordering her to pay the heirs of the victims Roberto Separa, Sr. and Virginia Separa and children Michael, Daphne, Priscilla and Roberto, Jr., the amount of Fifty Thousand (P50,000.00) Pesos for each victim and the amount of One Hundred Thousand (P100,000.00) Pesos as temperate damages for their burned house or a total of Four Hundred Thousand (P400,000.00) Pesos and to Rodolfo Movilla the amount of One Hundred [Thousand] (P100,000.00) Pesos.

Due to the death penalty imposed by the RTC, the case was directly elevated to this Court for automatic review. Conformably with our decision in People v. Efren Mateo y [19] Garcia, however, we referred the case and its records to the CA for appropriate action and disposition. On 2 September 2005, the Court of Appeals affirmed with modification the decision of the RTC, the fallo of which reads: WHEREFORE, premises considered, the assailed October 13, 2003 Judgment of the Regional Trial Court of Manila, Branch 41, finding accused-appellant Edna Malngan y Mayo guilty beyond reasonable doubt of Arson with multiple homicide and sentencing her to suffer the DEATH PENALTY is hereby AFFIRMED with MODIFICATION in that she is further ordered to pay P50,000.00 as moral damages and another P50,000.00 as exemplary damages for each of the victims who perished in the fire, to be paid to their heirs. She is ordered to pay Rodolfo Movilla, one whose house was also burned, the sum of P50,000.00 as exemplary damage. Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the [20] entire record of this case to the Supreme Court for review. It is the contention of accused-appellant that the evidence presented by the prosecution is not sufficient to establish her guilt beyond reasonable doubt as the perpetrator of the crime charged. In support of said exculpatory proposition, she assigns the following [21] errors :
I. THE HONORABLE COURT ERRED IN RULING THAT THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION IS SUFFICIENT TO CONVICT THE ACCUSED; and II.

46

THE HONORABLE COURT ERRED IN ALLOWING AND GIVING CREDENCE TO THE HEARSAY EVIDENCE AND UNCOUNSELLED ADMISSIONS ALLEGEDLY GIVEN BY THE ACCUSED TO THE WITNESSES BARANGAY CHAIRMAN REMIGIO BERNARDO, MERCEDITA MENDOZA AND THE MEDIA.

THERE IS NO COMPLEX CRIME OF ARSON WITH (MULTIPLE) HOMICIDE. The Information in this case erroneously charged accused-appellant with a complex crime, i.e., Arson with Multiple Homicide. Presently, there are two (2) laws that govern the crime of arson where death results therefrom Article 320 of the Revised Penal [22] Code (RPC), as amended by Republic Act (RA) No. 7659, and Section 5 of [23] Presidential Decree (PD) No. 1613 , quoted hereunder, to wit:
Revised Penal Code: ART. 320. Destructive Arson. x x x x If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed. [Emphasis supplied.] Presidential Decree No. 1613: SEC. 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.]

Accordingly, in cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated whether arson, murder or arson and homicide/murder, it is de rigueurto ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson,and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed homicide/murder and arson. Where then does this case fall under? From a reading of the body of the Information: That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfully, unlawfully, feloniously and deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family mostly made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this city, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, the following, namely, 1. 2. 3. 4. 5. 6. Roberto Separa, Sr., 45 years of age Virginia Separa y Mendoza, 40 years of age Michael Separa, 24 years of age Daphne Separa, 18 years of age Priscilla Separa, 14 years of age Roberto Separa, Jr., 11 years of age

Art. 320 of the RPC, as amended, with respect to destructive arson, and the provisions of PD No. 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether considered destructive or otherwise, where death results therefrom. The raison d'tre is that arson is itself the end and death is simply the consequence.[24]

Whether the crime of arson will absorb the resultant death or will have to be a [25] separate crime altogether, the joint discussion of the late Mr. Chief Justice Ramon C. Aquino and Mme. Justice Carolina C. Grio-Aquino, on the subject of the crimes of arson and murder/homicide, is highly instructive: Groizard says that when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by burning the house, the crime is murder only. When the Penal Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no [26] murder without a design to take life. In other words, if the main object of the offender is to kill by means of fire, the offense is murder. But if the main objective is the burning [27] of the building, the resulting homicide may be absorbed by the crime of arson. xxxx If the house was set on fire after the victims therein were killed, fire would not be a qualifying circumstance. The accused would be liable for the separate offenses of [28] murder or homicide, as the case may be, and arson.

sustained burn injuries which were the direct cause of their death immediately [29] thereafter. [Emphasis supplied.] accused-appellant is being charged with the crime of arson. It it is clear from the foregoing that her intent was merely to destroy her employers house through the use of fire. We now go to the issues raised. Under the first assignment of error, in asserting the insufficiency of the prosecutions evidence to establish her guilt beyond reasonable doubt, accused-appellant argues that the prosecution was only able to adduce circumstantial evidence hardly enough to prove her guilt beyond reasonable doubt. She ratiocinates that the following circumstances:

47

1. That immediately before the burning of the house , the accused hurriedly and with head turning in different directions (palinga-linga) went out of the said house and rode a pedicab apparently not knowing where to go for she first requested to be brought to Nipa St. but upon reaching there requested again to be brought to Balasan St. as shown by the testimony of prosecution witness Rolando Gruta; 2. That immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and 3. That when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman.[30]

A: Q: A:

To Nipa Street, sir. Did you bring her to Nipa Street as she requested? Yes, sir.

xxxx Q: You said that you brought her to Nipa Street. What happened when you go (sic) there at Nipa Street, if any? A: Q: A: Nagpahinto po siya doon ng saglit, mga tatlong minuto po. What did she do when she asked (you) to stop there for three minutes? After three minutes she requested me to bring her directly to Balasan Street, sir.

fall short of proving that she had any involvement in setting her employers house on fire, much less show guilt beyond reasonable doubt, given that it is a fact that housemaids are the first persons in the house to wake up early to perform routine [31] chores for their employers, one of which is preparing and cooking the morning meal for the members of the household; and necessity requires her to go out early to look for open stores or even nearby marketplaces to buy things that will complete the early [32] meal for the day. She then concludes that it was normal for her to have been seen going out of her employers house in a hurry at that time of the day and to look at all directions to insure that the house is secure and that there are no other persons in the [33] vicinity. We are far from persuaded. True, by the nature of their jobs, housemaids are required to start the day early; however, contrary to said assertion, the actuations and the demeanor of accusedappellant on that fateful early morning as observed firsthand by Rolando Gruta, one of the witnesses of the prosecution, belie her claim of normalcy, to wit:
Q: You said you saw Edna coming out from the house of the Separa Family. What happened when you saw Edna coming out from the house of the Separa Family? A: Wala pa pong ano yan naisakay ko na siya sa sidecar.

xxxx

We quote with approval the pronouncement of the RTC in discrediting accusedappellants aforementioned rationale: [O]bviously it is never normal, common or ordinary to leave the house in such a disturbed, nervous and agitated manner, demeanor and condition. The timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicaband the discovery of the lighter in her bag thereafter when investigated [34] indisputably show her guilt as charged. All the witnesses are in accord that accused-appellants agitated appearance was out of the ordinary. Remarkably, she has never denied this observation. We give great weight to the findings of the RTC and so accord credence to the testimonies of the prosecution witnesses as it had the opportunity to observe them directly. The credibility given by trial courts to prosecution witnesses is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe them, particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsels. Here, Remigio Bernardo, Rolando Gruta and Mercedita Mendoza are disinterested witnesses and there is not an iota of evidence in the records to indicate that they are suborned witnesses. The records of the RTC even show that Remigio Bernardo, the Barangay Chairman, kept accused-appellant from being mauled by the angry crowd outside of the barangay hall: Pros. Rebagay: Now, who were present when the accused are (sic) telling you this?

Q: And what did you observe from Edna when you saw her coming out from the house of the Separa family? A: Nagmamadali po siyang lumakad at palinga-linga.

xxxx Q: A: Q: After she boarded your pedicab, what happened, if any? Nagpahatid po siya sa akin. Where?

48

A: Iyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog nagkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao and namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin-pointed po siya, Your Honor, iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gusting-gusto siyang kunin ng mga taong-bayan, nagalit dahil ang daming [35] bahay hong nasunog.

Gus Abelgas show where accused-appellant, while being interviewed, confessed to the crime as well. The foregoing testimonies juxtaposed with the testimony of Mercedita Mendoza validating the fact that accused-appellant confessed to having started the fire which killed the Separa family as well as burned seven houses including that of the victims, convincingly form an unbroken chain, which leads to the unassailable conclusion pinpointing accused-appellant as the person behind the crime of simple arson. In her second assigned error, accused-appellant questions the admissibility of her uncounselled extrajudicial confession given to prosecution witnesses, namely Remigio Bernardo, Mercedita Mendoza, and to the media. Accused-appellant Edna contends that being uncounselled extrajudicial confession, her admissions to having committed the crime charged should have been excluded in evidence against her for being violative of Article III, Section 12(1) of the Constitution. Particularly, she takes exception to the testimony of prosecution witnesses Remigio Bernardo and Mercedita Mendoza for being hearsay and in the nature of an uncounselled admission. With the above vital pieces of evidence excluded, accused-appellant is of the position that the remaining proof of her alleged guilt, consisting in the main of circumstantial evidence, is inadequate to establish her guilt beyond reasonable doubt. We partly disagree.
Article III, Section 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxxx (3) Any confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence. We have held that the abovequoted provision applies to the stage of custodial investigation when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect.[41] Said constitutional guarantee has also been extended to situations in which an individual has not been formally arrested but has merely been invited for questioning.[42] To be admissible in evidence against an accused, the extrajudicial confessions made must satisfy the following requirements: (1) (2) (3) (4) it must be voluntary; it must be made with the assistance of competent and independent counsel; it must be express; and it must be in writing.[43]

Accused-appellant has not shown any compelling reason why the witnesses presented would openly, publicly and deliberately lie or concoct a story, to send an innocent person to jail all the while knowing that the real malefactor remains at large. Such proposition defies logic. And where the defense failed to show any evil or improper motive on the part of the prosecution witnesses, the presumption is that their [36] testimonies are true and thus entitled to full faith and credence. While the prosecution witnesses did not see accused-appellant actually starting the fire that burned several houses and killed the Separa family, her guilt may still be established through circumstantial evidence provided that: (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 conviction beyond [37] reasonable doubt. Circumstantial evidence is that evidence which proves a fact or series of facts from [38] which the facts in issue may be established by inference. It is founded on experience and observed facts and coincidences establishing a connection between [39] the known and proven facts and the facts sought to be proved. In order to bring about a conviction, the circumstantial evidence presented must constitute an unbroken chain, which leads to one fair and reasonable conclusion pointing to the accused, to the [40] exclusion of others, as the guilty person. In this case, the interlocking testimonies of the prosecution witnesses, taken together, exemplify a case where conviction can be upheld on the basis of circumstantial evidence. First, prosecution witness Rolando Gruta, the driver of the pedicab that accused-appellant rode on, testified that he knew for a fact that she worked as a housemaid of the victims, and that he positively identified her as the person hurriedly leaving the house of the victims on 2 January 2001 at 4:45 a.m., and acting in a nervous manner. That while riding on the pedicab, accused-appellant was unsure of her intended destination. Upon reaching the place where he originally picked up accused-appellant only a few minutes after dropping her off, Rolando Gruta saw the Separas house being gutted by a blazing fire. Second, Remigio Bernardo testified that he and his tanods, including Rolando Gruta, were the ones who picked up accused-appellant Edna at Balasan Street (where Rolando Grutadropped her off) after receiving a call that there was a woman acting strangely at said street and who appeared to have nowhere to go. Third, SPO4 Danilo Talusan overheard accusedappellant admit to Carmelita Valdez, a reporter of Channel 2 (ABS-CBN) that said accused-appellant started the fire, plus the fact that he was able see the telecast of

49

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 12(1), of the Constitution should have already been observed or applied to her. Accused-appellants confession to Barangay Chairman Remigio Bernardo was made in response to the interrogation made by the latter admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo, as well as the lighter found by the latter in her bag are inadmissible in evidence against her as such were obtained in violation of her constitutional rights. Be that as it may, the inadmissibility of accused-appellants confession to Barangay Chairman Remigio Bernardo and the lighter as evidence do not automatically lead to her acquittal. It should well be recalled that the constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits to having committed the offense as what happened in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors of Roberto Separa, Sr., to having started the fire in the Separas house. The testimony of Mercedita Mendoza recounting said admission is, unfortunately for accused-appellant, admissible in evidence against her and is not covered by the aforesaid constitutional guarantee. Article III of the Constitution, or the Bill of Rights, solely governs the relationship between the individual on one hand and the State (and its agents) on the other; it does not concern itself with the relation between a private individual and another private individual as both accused-appellant and prosecution [44] witness MerceditaMendoza undoubtedly are. Here, there is no evidence on record to show that said witness was acting under police authority, so appropriately, accusedappellants uncounselled extrajudicial confession to said witness was properly admitted by the RTC. Accused-appellant likewise assails the admission of the testimony of SPO4 Danilo Talusan. Contending that [w]hen SPO4 Danilo Talusan testified in court, his story is more of events, which are not within his personal knowledge but based from accounts of witnesses who derived information allegedly from the accused or some other persons x x x. In other words, she objects to the testimony for being merely hearsay. With this imputation of inadmissibility, we agree with what the Court of Appeals had to say: Although this testimony of SFO4 Danilo Talusan is hearsay because he was not present when Gus Abelgas interviewed accused-appellant EDNA, it may nevertheless be admitted in evidence as an independently relevant statement to establish not the truth but the tenor of the statement or the fact that the statement was made [People

v. Mallari, G.R. No. 103547, July 20, 1999, 310 SCRA 621 citing People v. Cusi, Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]. In People vs. Velasquez, G.R. Nos. 132635 & 143872-75, February 21, 2001, 352 SCRA 455, the Supreme Court ruled that: 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 [45] fact.

As regards the confession given by accused-appellant to the media, we need not discuss it further for the reporters were never presented to testify in court. As a final attempt at exculpation, accused-appellant asserts that since the identities of the burned bodies were never conclusively established, she cannot be responsible for their deaths. Such assertion is bereft of merit. In the crime of arson, the identities of the victims are immaterial in that intent to kill them particularly is not one of the elements of the crime. As we have clarified earlier, the killing of a person is absorbed in the charge of arson, simple or destructive. The prosecution need only prove, that the burning was intentional and that what was intentionally burned is an inhabited house or dwelling. Again, in the case of People [46] v. Soriano, we explained that: Although intent may be an ingredient of the crime of Arson, it may be inferred from the acts of the accused. There is a presumption that one intends the natural consequences of his act; and when it is shown that one has deliberately set fire to a building, the [47] prosecution is not bound to produce further evidence of his wrongful intent. The ultimate query now is which kind of arson is accused-appellant guilty of? As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson, under Presidential Decree No. 1613. Said classification is based on the kind, character and location of the property burned, [48] regardless of the value of the damage caused, to wit: Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial [49] establishments by any person or group of persons.[ ] The classification of this type of crime is known as Destructive Arson, which is punishable by reclusion perpetua to

50

death. The reason for the law is self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. [Emphasis supplied.] If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed. On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include houses, dwellings, government buildings, farms, mills, plantations, railways, bus [50] stations, airports, wharves and other industrial establishments.[ ] Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied.] To emphasize: The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of the Revised Penal Code (as amended) constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and [51] morality in a just, civilized and ordered society. On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the [52] qualifying circumstances present. [Emphasis supplied.]

consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire. [Emphasis supplied.] The facts of the case at bar is somewhat similar to the facts of the case of People [53] v. Soriano. The accused in the latter case caused the burning of a particular house. Unfortunately, the blaze spread and gutted down five (5) neighboring houses. The RTC therein found the accused guilty of destructive arson under [54] paragraph 1 of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through Mr. Justice Bellosillo, however, declared that: x x x [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and liberally in favor of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. [55] Incidentally, these elements concur in the case at bar.

As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa. Said conflagration likewise spread and destroyed seven (7) adjoining houses. Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly, of the crime of simple arson. Such is the case notwithstanding the error in the designation of the offense in the information, the information remains effective [56] insofar as it states the facts constituting the crime alleged therein. What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violate, x x x, but the description of the crime [57] charged and the particular facts therein recited. There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is:

Prescinding from the above clarification vis--vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused-appellant was charged with the crime of Simple Arson for having deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family x x x knowing the same to be an inhabited house and situated in a thickly populated place and as a

SEC. 5. Where Death Results from Arson. - If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.]

Accordingly, there being no aggravating circumstance alleged in the Information, the imposable penalty on accused-appellant is reclusion perpetua.

51

Apropos the civil liabilities of accused-appellant, current jurisprudence dictate that the civil indemnity due from accused-appellant is P50,000.00 for the death of each of the [59] victims. However, the monetary awards for moral and exemplary damages given by the Court of Appeals, both in the amount of P50,000.00, due the heirs of the victims, have to be deleted for lack of material basis. Similarly, the Court of Appeals award of exemplary damages to Rodolfo Movilla in the amount of P50,000.00 for the destruction of his house, also has to be deleted, but in this instance for being improper. Moral damages cannot be award by this Court in the absence of proof of mental or physical [60] suffering on the part of the heirs of the victims. Concerning the award of exemplary damages, the reason for the deletion being that no aggravating circumstance had been [61] alleged and proved by the prosecution in the case at bar. To summarize, accused-appellants alternative plea that she be acquitted of the crime must be rejected. With the evidence on record, we find no cogent reason to disturb the findings of the RTC and the Court of Appeals. It is indubitable that accused-appellant is the author of the crime of simple arson. All the circumstantial evidence presented before the RTC, viewed in its entirety, is as convincing as direct evidence and, as such, negates accused-appellants innocence, and when considered concurrently with her admission given to Mercedita Mendoza, the formers guilt beyond reasonable doubt is twice as evident. Hence, her conviction is effectively justified. More so, as it is propitious to note that in stark contrast to the factual circumstances presented by the prosecution, accused-appellant neither mustered a denial nor an alibi except for the proposition that her guilt had not been established beyond reasonable doubt. IN VIEW WHEREOF, the Decision of the Court of Appeals dated 2 September 2005, in CA G.R. CR HC No. 01139, is hereby AFFIRMED insofar as the conviction of accusedappellant EDNA MALNGAN Y MAYO is concerned. The sentence to be imposed and the amount of damages to be awarded, however, are MODIFIED. In accordance with Sec. 5 of Presidential Decree No. 1613, accused-appellant is hereby sentenced to RECLUSION PERPETUA. Accused-appellant is hereby ordered to pay the heirs of each of the victims P50,000.00 as civil indemnity. SO ORDERED.

[58]

52

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 159659 October 12, 2006

Before the Court of Appeals, the petitioners filed a Petition for Certiorari with Application 4 for Temporary Restraining Order and Writ of Preliminary Injunction. The petitioners claimed that the trial court had no jurisdiction over the offenses charged and the city prosecutor had no authority to file the informations; that only the enforcement officers 5 under Executive Order No. 71 are authorized to investigate and enforce laws pertaining to subdivisions. Moreover, they asserted that petitioner Ruben S. Sia was denied his right to counsel when the trial court forced him to enter a plea with only a counsel de oficio. The Court of Appeals dismissed the petition as follows: WHEREFORE, the foregoing considered, the instant petition hereby DISMISSED and the assailed ordersAFFIRMED in toto. No costs. SO ORDERED.
6

RUBEN S. SIA and JOSEPHINE SIA, petitioners, vs. PEOPLE OF THE PHILIPPINES and TERESITA LEE, respondents. DECISION QUISUMBING, J.:
In this petition for review under Rule 45 of the Rules of Court, the petitioners urge this 1 Court to nullify and set aside the April 25, 2003 Decision, and the July 29, 2003 2 Resolution, of the Court of Appeals in CA G.R. SP No. 68057. The following facts are culled from the records: Petitioners Ruben and Josephine Sia were charged before the Regional Trial Court of 3 Naga City, Branch 27 with three counts of violation of Section 17 of Presidential Decree (P.D.) No. 957, otherwise known as The Subdivision and Condominium Buyers' Protective Decree. On October 15, 2001, the petitioners filed a Consolidated Motion to Quash alleging that (1) the trial court has no jurisdiction over the offense charged; and (2) the City Prosecutors' Office of Naga City has no authority to file the informations. On October 18, 2001, the trial court denied the motion holding that it had jurisdiction over the case. It also scheduled an arraignment on October 29, 2001. On October 23, 2001, the petitioners filed a Motion to Resolve the Other Ground Raised in the Motion to Quash, i.e., whether the city prosecutor had the authority to file the informations. On October 24, 2001, the trial court denied the motion stating that the city prosecutor was authorized to file the informations. Petitioners' Motion for Reconsideration was likewise denied. Arraignment was then reset to November 21, 2001. Petitioners' Motion for Postponement of their arraignment was also denied. On November 21, 2001, the trial court appointed a counsel de oficio for petitioner Ruben S. Sia and proceeded with the arraignment.

is

The appellate court upheld the jurisdiction of the trial court for the following reasons: (1) the informations stated that petitioners violated Section 17 of P.D. No. 957 by failing to register with the Register of Deeds of Naga City, the Contracts to Sell they executed in favor of respondent Teresita Lee over several subdivision lots she purchased; (2) the acts complained of were within the trial court's territorial jurisdiction; and (3) the penalty provided by law for the violation, i.e., imprisonment of not more than ten years, is within the trial court's jurisdiction. Similarly, the appellate court sustained the city prosecutor's authority to file the informations conformably with Section 5, Rule 110 of the Rules of 7 Court. Finally, it ruled that the trial court did not transgress petitioner Ruben S. Sia's right to counsel since the preference in the choice of counsel expressed in Section 12, 8 Article III of the 1987 Constitution does not necessarily mean that such choice by a person under investigation is exclusive as to preclude other equally competent and independent lawyers from handling the defense. Hence, this petition. The petitioners enumerate the grounds of their appeal, as follows:
[a] x x x the alleged act or omission complained of and charged in the questioned Informations [do not] constitute a violation of Presidential Decree No. 957 otherwise known as the Subdivision and Condominium Buyers' Protective Decree[.] [b] x x x the City Prosecutors have [no] power or authority to institute and prosecute the present case for alleged violation of the provisions of P.D. 957 even without a prior determination thereof by the Enforcement Officers of the Housing and Land Use Regulatory Board (HLURB)[.] [c] x x x the herein petitioner Ruben Sia was deprived of his [c]onstitutional right to due process and to counsel considering that he was assisted only by a counsel de oficio during his arraignment despite his insistence to be assisted by their newly hired counsel de parte[.]9

53

Simply stated, the issues are: (1) Did the charges in the informations constitute violations of P.D. No. 957? (2) Does the City Prosecutors' Office of Naga City have authority to file the informations? and (3) Was petitioner Ruben S. Sia deprived of his right to counsel when only a counsel de oficio assisted him during his arraignment? After considering the submission of the parties, we find the present petition without merit. On the first issue, petitioners contend that P.D. No. 957 is applicable only to residential subdivision and condominium projects and not to commercial subdivision projects as in this case, and that the property involved had been classified commercial and industrial 10 11 in City Ordinance No. 93-041 and Resolution No. 93-261 of the Sangguniang Panlungsod of Naga City. Furthermore, petitioners add, the documents required to be registered with the Register of Deeds under Section 17 of P.D. No. 957, refer to lands that have been converted into a subdivision project for residential purposes. Respondent Lee maintains that petitioners' Development Permit (DP No. 92-0415) showed that the project was classified as socialized housing while the Zoning Administrator's Certification dated May 14, 1992, indicated that the project was situated in a residential zone in accordance with the Zoning Ordinance of Naga City. Thus, petitioners' subdivision is residential. She also asserts that under Section 17 of P.D. No. 957, the registration of the subdivision plan by the owner of a parcel of land who caused its conversion into a subdivision is different from the subsequent registration of the contracts to sell, deeds of sale and other similar instruments required by the same provision. Hence, according to respondent, the petitioners are required to register the Contracts to Sell in her favor. Pertinent here is Section 2 of P.D. No. 957, that defines a subdivision project as "a tract or a parcel of land registered under Act No. 496 which is partitioned primarily for residential purposes into individual lots with or without improvements thereon, and offered to the public for sale, in cash or in installment terms. It shall include all residential, commercial, industrial and recreational areas, as well as open spaces and other community and public areas in the project." Observe that the provision does not confine the meaning of "subdivision project" to parcels of land classified as residential, contrary to what petitioners restrictively propose. A subdivision project also includes parcels of land classified as commercial. Indeed, the crucial requirement is that the subdivision project is partitioned primarily for residential purposes, even if it is situated in a commercial district. In this case, the subdivision project was intended primarily for residential purposes. No less than petitioners' Development Permit showed that the project was for socialized housing. Although the location of the subdivision was classified as a commercial district, the subdivision project continued to be for residential purposes and was not removed from the ambit of P.D. No. 957.

We have examined Sections 4 and 17 of P.D. No. 957, and found petitioners' interpretation thereof, flawed. We quote these sections for clarity:
SEC. 4. Registration of Projects. - The registered owner of a parcel of land who wishes to convert the same into a subdivision project shall submit his subdivision plan to the Authority which shall act upon and approve the same, upon a finding that the plan complies with the Subdivision Standards and Regulations enforceable at the time the plan is submitted. The same procedure shall be followed in the case of a plan for a condominium project except that, in addition, said Authority shall act upon and approve the plan with respect to the building or buildings included in the condominium project in accordance with the National Building Code (R.A. No. 6541). The subdivision plan, as so approved, shall then be submitted to the Director of Lands for approval in accordance with the procedure prescribed in Section 44 of the Land Registration Act (Act No. 496, as amended by R.A. No. 440): Provided, that in case of complex subdivision plans, court approval shall no longer be required. The condominium plan as likewise so approved, shall be submitted to the Register of Deeds of the province or city in which the property lies and the same shall be acted upon subject to the conditions and in accordance with the procedure prescribed in Section 4 of the Condominium Act (R.A. No. 4726). xxxx SEC. 17. Registration. - All contracts to sell, deeds of sale and other similar instruments relative to the sale or conveyance of the subdivision lots and condominium units, whether or not the purchase price is paid in full, shall be registered by the seller in the Office of the Register of Deeds of the province or city where the property is situated. Whenever a subdivision plan duly approved in accordance with Section 4 hereof, together with the corresponding owner's duplicate certificate of title, is presented to the Register of Deeds for registration, the Register of Deeds shall register the same in accordance with the provisions of the Land Registration Act, as amended: Provided, however, that if there is a street, passageway or required open space delineated on a complex subdivision plan hereafter approved and as defined in this Decree, the Register of Deeds shall annotate on the new certificate of title covering the street, passageway or open space, a memorandum to the effect that except by way of donation in favor of a city or municipality, no portion of any street, passageway, or open space so delineated on the plan shall be closed or otherwise disposed of by the registered owner without the requisite approval as provided under Section 22 of this Decree.

Simply stated, P.D. No. 957 provides that when a registered owner of a parcel of land wishes to convert the same into a subdivision project, he must register the subdivision plan with the Housing and Land Use Regulatory Board (HLURB) (Section 4). Should he decide to sell the lots therein, he must also register the subdivision project with the HLURB and the subdivision plan with the Register of Deeds (Section 17, paragraph 2). Thereafter, a registration certificate is issued to the subdivision owner and he may then apply for a License to Sell the lots in the subdivision project. Whenever a lot is subsequently sold, the subdivision owner is required to register the contract to sell,

54

deed of sale and/or other similar instrument with the Register of Deeds (Section 17, paragraph 1). From the foregoing, it is clear that petitioners are required to register the Contracts to Sell in favor of respondent Lee, and their failure to do so is a violation of Section 17 of P.D. No. 957. On the second issue, does the City Prosecutors' Office of Naga City have authority to file the informations? Section 3 of E.O. No. 71 provides that:
SEC. 3. Without prejudice to the Board's overall monitoring, enforcement and visitorial powers, local chief executives shall designate appropriate local officials who meet or possess the qualifications, standards and criteria set by the HLURB as enforcement officers who shall have full power to monitor, investigate and enforce compliance with these provisions of national laws and standards whose implementation have been devolved to the local government in accordance with this Order. Relative to the remaining provisions of the said laws, said officials shall, upon request of local chief executive concerned, be authorized by the Board to initiate preliminary monitoring and investigative activities, and issue initial notices to enforce compliance with the Board's mandates, orders and decisions. In all such cases, the enforcement officer shall endorse the records of the case, together with his actions thereon to the Board for its final disposition and further enforcement actions. In the exercise of his responsibilities under this Order, the said enforcement officer shall be under the functional supervision of HLURB, which shall promulgate standard operating procedures, policy guidelines and instructions for the guidance of said officials and call their attention to effect such remedial measures as may be necessary. (Emphasis supplied.)

(c) Evaluation and resolution of opposition against the issuance of development permits for any of the said projects, in accordance with the said laws and the Rules of Procedure promulgated by HLURB incident thereto; (d) Monitoring the nature and progress of land development of projects it has approved, as well as housing construction in the case of house and lot packages, to ensure their faithfulness to the approved plans and specifications thereof, and, imposition of appropriate measures to enforce compliance therewith. In the exercise of such responsibilities, the city or municipality concerned shall be guided by the work program approved by the Board upon evaluation of the developers' financial, technical and administrative capabilities; Moreover, the city or municipality concerned may call on the Board for assistance in the imposition of administrative sanctions and the Department of Justice (DOJ) in the institution of the criminal proceedings against violators; (e) Assessment and collection of fees incident to the foregoing.

Noteworthy, the prosecution for the violation of Section 17 of P.D. No. 957 is not included in the foregoing functions. Hence, it follows logically that it remained with the City Prosecutors' Office of Naga City. Moreover, the jurisdiction of the court or agency is determined by the allegations in the complaint. It cannot be made to depend on the defenses made by the defendant in his Answer or Motion to Dismiss. If such were the rule, the question of jurisdiction would 12 depend almost entirely on the defendant. The informations rest the cause of action on the petitioners' failure to register the Contracts to Sell in accordance with Section 17 of P.D. No. 957. The penalty imposable is a fine of not more than Twenty Thousand 13 Pesos and/or imprisonment of not more than ten years. Once again, clearly, the offense charged is well within the jurisdiction of the trial court. On the third issue, was Ruben S. Sia denied his right to counsel when the trial court forced him to enter a plea with only a counsel de oficio? We agree with herein respondent Lee when she said that petitioners were given ample time by the trial court to get a counsel of their choice, but did not. Through the course of the proceedings, the petitioners filed several motions. In its Orders dated November 21, 14 2001, the trial court noted that although the informations were filed on August 7, 2000, the petitioners have not yet been arraigned as of that day. The delay could no longer be countenanced. Section 12, Article III of the 1987 Constitution assuring an accused of counsel of his choice pertains specifically to a person under investigation. Even if we were to extend the choice of a counsel to an accused in a criminal prosecution, the matter of the accused getting a lawyer of his preference cannot be so absolute and arbitrary as

Clearly, the enforcement officers of local government units shall only have full power to monitor, investigate and enforce compliance with the provisions of national laws and standards whose implementation have been devolved to the local government in accordance with E.O. No. 71. Section 1 outlines which functions have been devolved:
(a) Approval of preliminary as well as final subdivision schemes and development plans of all subdivisions, residential, commercial, industrial and for other purposes of the public and private sectors, in accordance with the provisions of P.D. No. 957 as amended and its implementing standards, rules and regulations concerning approval of subdivision plans; (b) Approval of preliminary and final subdivision schemes and development plans of all economic and socialized housing projects as well as individual or group building and occupancy permits covered by BP 220 and its implementing standards, rules and regulations;

55

would make the choice of counsel refer exclusively to the predilection of the 15 accused. In Amion v. Chiongson this Court stated: Withal, the word "preferably" under Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation, will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer, who for one reason or another, is not available to protect his interest. This absurd scenario could not have been 16 contemplated by the framers of the charter. In our view, petitioners' dilatory tactics should no longer be allowed to trump the progress of the judicial process. WHEREFORE, the instant petition is DENIED. The decision and resolution of the Court of Appeals in CA G.R. SP No. 68057 dated April 25, 2003 and July 29, 2003, respectively, are AFFIRMED. No pronouncement as to costs. SO ORDERED.

56

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 187689 September 7, 2010

CLARITA J. CARBONEL, Petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals (CA) Decision1 dated November 24, 2008 and Resolution2 dated April 29, 2009 in CA-G.R. SP No. 101599. Petitioner Clarita J. Carbonel was an employee of the Bureau of Jail Management and Penology, Makati City. She was formally charged with Dishonesty, Grave Misconduct, and Falsification of Official Documents by the Civil Service Commission Regional Office No. IV (CSCRO IV). The Civil Service Commission (CSC), as affirmed by the CA, established the following facts: On May 21, 1999, petitioner went to the CSCRO IV to secure a copy of the result of the Computer Assisted Test (CATS) Career Service Professional Examination given on March 14, 1999, because she lost the original copy of her Career Service Professional Certificate of Rating (hereafter referred to as certificate of rating).3 Petitioner was directed to accomplish a verification slip. The Examination Placement and Service Division noticed that petitioners personal and physical appearance was entirely different from the picture of the examinee attached to the application form and the picture seat plan. It was also discovered that the signature affixed on the application form was different from that appearing on the verification slip.4 Because of these discrepancies, the Legal Affairs Division of the CSCRO IV conducted an investigation.

In the course of the investigation, petitioner voluntarily made a statement 5 before Atty. Rosalinda S.M. Gepigon, admitting that, sometime in March 1999, she accepted the proposal of a certain Bettina J. Navarro (Navarro) for the latter to obtain for petitioner a Career Service Professional Eligibility by merely accomplishing an application form and paying the amount of P10,000.00. Petitioner thus accomplished an application form to take the CATS Career Service Professional Examination and gave Navarro P5,000.00 as down payment. Upon receipt of the original copy of the certificate of rating from Navarro, petitioner gave the latter the remaining P5,000.00. Petitioner, however, misplaced the certificate of rating. This prompted her to secure another copy from the CSCRO IV. Hence, the formal charge against petitioner. Denying her admissions in her voluntary statement before the CSCRO IV, petitioner, in her Answer,6 traversed the charges against her. She explained that after filling up the application form for the civil service examination, she asked Navarro to submit the same to the CSC. She, however, admitted that she failed to take the examination as she had to attend to her ailing mother. Thus, when she received a certificate of eligibility despite her failure to take the test, she was anxious to know the mystery behind it. She claimed that she went to the CSCRO IV not to get a copy of the certificate of rating but to check the veracity of the certificate. More importantly, she questioned the use of her voluntary statement as the basis of the formal charge against her inasmuch as the same was made without the assistance of counsel. After the formal investigation, the CSCRO IV rendered its March 25, 2002 Decision No. 0200797 finding petitioner guilty of dishonesty, grave misconduct, and falsification of official documents. The penalty of dismissal from the service, with all its accessory penalties, was imposed on her. Petitioners motion for reconsideration was denied by CSCRO IV on November 14, 2003.8 Petitioner appealed, but the CSC dismissed9 the same for having been filed almost three years from receipt of the CSCRO IV decision. The CSC did not give credence to petitioners explanation that she failed to timely appeal the case because of the death of her counsel. The CSC opined that notwithstanding the death of one lawyer, the other members of the law firm, petitioners counsel of record, could have timely appealed the decision.10 Petitioners motion for reconsideration was denied in Resolution No. 07204911 dated November 5, 2007. Unsatisfied, petitioner elevated the matter to the CA. On November 24, 2008, the CA rendered the assailed decision affirming the decisions and resolutions of the CSCRO IV and the CSC. Petitioners motion for reconsideration was denied by the CA on April 29, 2009.

57

Hence, the instant petition based on the following grounds: I SERIOUS ERROR OF FACT AND LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY THE COURT OF APPEALS IN ITS ASSAILED DECISION DATED NOVEMBER 24, 2008 BECAUSE PETITIONERS FINDING OF GUILT WAS GROUNDED ENTIRELY ON HER UNSWORN STATEMENT THAT SHE ADMITTED THE OFFENSES CHARGED AND WITHOUT THE ASSISTANCE OF A COUNSEL. II THE CONCLUSION AND FINDING OF THE COURT OF APPEALS IN ITS ASSAILED DECISION THAT PETITIONERS APPEAL WAS LOST THRU HER OWN FAULT OR NEGLIGENCE WAS PREMISED ON MISAPPREHENSION OF FACTS. III THE COURT OF APPEALS IN ITS ASSAILED DECISION HAS DECIDED THE CASE NOT IN ACCORD WITH THE DECISIONS OF THIS HONORABLE COURT.12 The petition is without merit. It is undisputed that petitioner appealed the CSCRO IVs decision almost three years from receipt thereof. Undoubtedly, the appeal was filed way beyond the reglementary period when the decision had long become final and executory. As held in Bacsasar v. Civil Service Commission,13 citing Talento v. Escalada, Jr.14 The perfection of an appeal in the manner and within the period prescribed by law is mandatory. Failure to conform to the rules regarding appeal will render the judgment final and executory and beyond the power of the Courts review. Jurisprudence mandates that when a decision becomes final and executory, it becomes valid and binding upon the parties and their successors-in-interest. Such decision or order can no loner be disturbed or re-opened no matter how erroneous it may have been. This notwithstanding, on petition before the CA, the appellate court reviewed the case and disposed of it on the merits, not on pure technicality.

To accentuate the abject poverty of petitioners arguments, we discuss hereunder the issues she raised. Petitioner faults the CSCs finding because it was based solely on her uncounselled admission taken during the investigation by the CSCRO IV. She claims that her right to due process was violated because she was not afforded the right to counsel when her statement was taken. It is true that the CSCRO IV, the CSC, and the CA gave credence to petitioners uncounselled statements and, partly on the basis thereof, uniformly found petitioner liable for the charge of dishonesty, grave misconduct, and falsification of official document.15
1avv phi 1

However, it must be remembered that the right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect during custodial investigation. 16 Thus, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation.17 While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that, under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of petitioners capacity to represent herself, and no duty rests on such body to furnish the person being investigated with counsel. 18 The right to counsel is not always imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit the imposition of disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.19 As such, the admissions made by petitioner during the investigation may be used as evidence to justify her dismissal.20We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the findings of the CSC and the CA. The written admission of petitioner is replete with details that could have been known only to her.21 Besides, petitioners written statement was not the only basis of her dismissal from the service. Records show that the CSCRO IVs conclusion was reached after consideration of all the documentary and testimonial evidence submitted by the parties during the formal investigation. Now, on petitioners liability and penalty. It has been established that petitioner accepted Navarros proposal for the latter to obtain for petitioner a Career Service Professional Eligibility by merely accomplishing an application form and in consideration of the amount

58

ofP10,000.00. Petitioner thus accomplished an application form to take the CATS Career Service Professional Examination and gave Navarro P5,000.00 as down payment. Upon receipt of the original copy of the certificate of rating from Navarro, petitioner gave the latter the remaining P5,000.00. Petitioner, however, misplaced the certificate of rating that prompted her to secure another copy from the CSCRO IV. The CSCRO IV noticed that petitioners personal and physical appearance was entirely different from the picture of the examinee attached to the application form and the picture seat plan. It was also discovered that the signature affixed on the same application form was different from that appearing on the verification slip. Clearly, petitioner falsely represented that she took the civil service examination when in fact someone else took the examination for her. CSC Memorandum Circular No. 15, series of 1991, provides: An act which includes the procurement and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or procurement of the same, cheating, collusion, impersonation, or any other anomalous act which amounts to any violation of the Civil Service examination, has been categorized as a grave offense of Dishonesty, Grave Misconduct or Conduct Prejudicial to the Best Interest of the Service.22 It must be stressed that dishonesty is a serious offense, which reflects on the persons character and exposes the moral decay which virtually destroys his honor, virtue, and integrity. Its immense debilitating effect on the government service cannot be overemphasized.23 If a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. The government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression, and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations.24 Under the Civil Service Rules, dishonesty is a grave offense punishable by dismissal which carries the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits (except leave credits), and disqualification from reemployment in the government service.25 In Civil Service Commission v. Dasco,26 Bartolata v. Julaton,27 and Civil Service Commission v. Sta. Ana,28 we found the respondents-employees therein guilty of dishonesty when they misrepresented that they took the Civil Service Examination

when in fact someone else took the examination for them. Because of such dishonesty, the employees were dismissed from government service. We find no reason to deviate from these previous rulings. WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals Decision dated November 24, 2008 and Resolution dated April 29, 2009 in CA-G.R. SP No. 101599 are AFFIRMED. SO ORDERED.

59

Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. 182555 February 8, 2011

With costs against the accused-appellants. SO ORDERED.1 Lumanog and Augusto Santos seek the reversal of their conviction on the following grounds: The Honorable Supreme Court erred in: I. Setting out in the facts of the case and the contents of inadmissible extrajudicial confessions; II. Not including the extrajudicial confession of Lorenzo delos Santos as excluded evidence; III. Applying the ruling in People v. Rivera "that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court"; IV. According finality to the evaluation made by the lower court of the testimony of Freddie Alejo; V. Ruling that there was positive identification;

LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 185123 CESAR FORTUNA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 187745 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, Accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, Accused-Appellants. RESOLUTION VILLARAMA, JR., J.: This resolves the motions for reconsideration separately filed by Lenido Lumanog and Augusto Santos, Cesar Fortuna and Rameses de Jesus assailing our Decision dated September 7, 2010 convicting them of the crime of murder, the dispositive portion of which reads: WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby increased to P75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00, respectively.

VI. Finding "none of the danger signals enumerated by Patrick M. Wall" when 3, 7, 10, 11, 12 in said enumeration are present; VII. Dismissing the mismatch between the prior description given by the witness and the actual appearances of the accused; VIII. Relying on the ocular inspection conducted at a time when a material condition is significantly altered; IX. Ruling that the inconsistencies in Alejos earlier statement and his in-court testimony have been explained; X. Not discrediting Alejos testimony despite acceptance of benefits from the Abadilla family; XI. Holding that the acquittal of Lorenzo delos Santos does not necessarily benefit the appellants; XII. Ruling that the ballistic and fingerprint examination results are inconclusive and not indispensable; XIII. Not considering the totality of evidence presented by the defense as against the alleged "positive identification" of the accused. XIV. Allowing Justice Jose Catral Mendoza to take part in the deliberation and the voting;

60

XV. Dismissing the evidence presented by Augusto Santos; XVI. Ruling that the silence of accused Lumanog amounts to a quasi-confession; XVII. Holding that the delay of (4) four years during which the case remained pending with the CA and this Court was not unreasonable, arbitrary or oppressive. 2 Rameses de Jesus raised the following grounds in his motion: I. THE HONORABLE SUPREME COURT GRAVELY ERRED IN HEAVILY RELYING ON THE LONE ALLEGED EYEWITNESS SECURITY GUARD (SG) FREDDIE ALEJOS TESTIMONY, WHICH WAS CHARACTERIZED BY MATERIAL OMISSIONS, PATENT INCREDIBILITY, CONTRADICTIONS AND DISCREPANCIES. II. THE HONORABLE SUPREME COURT GROSSLY MISAPPRECIATED THE FIRST SWORN STATEMENT GIVEN BY SG FREDDIE ALEJO, WHEREIN HE STATED THAT THERE WERE FOUR (4) SUSPECTS WHO PERPETRATED THE CRIME CONTRARY TO HIS SUBSEQUENT TESTIMONY IN OPEN COURT. III. THE HONORABLE SUPREME COURT FAILED TO APPRECIATE THE PERSONAL CIRCUMSTANCES OF THE ACCUSED-APPELLANTS, WHICH WOULD SHOW AS HIGHLY UNLIKELY THEIR ALLEGED COLLECTIVE GUILT AND CONSPIRACY. IV. THE HONORABLE SUPREME COURT FAILED TO GIVE WEIGHT TO PHYSICAL EVIDENCE, PARTICULARLY THE EXCULPATORY BALLISTICS AND DACTYLOSCOPY EVIDENCE, AND EXPERT TESTIMONY PRESENTED BY THE DEFENSE.3 On his part, Cesar Fortuna argues that: THE LONE, CONTRADICTED AND INCREDIBLE TESTIMONY OF S/G ALEJO IS NOT SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT4 At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on us the obligation to discuss and rule again on the grounds relied upon by the movant which are mere reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision being questioned.5 In particular, the Court need not dwell again on the extrajudicial confessions of Joel de Jesus and Lorenzo delos Santos which we have held inadmissible, the delay in the resolution of the appeals before the CA and this Court which under

the circumstances cannot be deemed unreasonable or arbitrary, the inconclusive ballistic and fingerprint examination results, and the effect of Lorenzo delos Santos acquittal to the rest of appellants. These matters have been passed upon and adequately discussed in our Decision. In fine, the accused-movants strongly assail the weight and credence accorded to the identification of the accused by the lone eyewitness presented by the prosecution, security guard Freddie Alejo. It was pointed out, among others, that: (1) in his statement given to the police investigators immediately after the incident, Alejo mentioned only four suspects, contrary to his subsequent testimony in court; it was impossible for him not to mention the two men he had seen walking back and forth before the shooting; (2) Alejo accepted financial support and benefits from the Abadilla family which could have colored his testimony against the accused; (3) his in-court identification of the six accused is questionable and unreliable considering that it referred to them only by numbers and he had given prior description of only two suspects; and (4) the ocular inspection conducted by the trial court to confirm Alejos observations was likewise unreliable because it was made at a time when a material condition is significantly altered, i.e., it was held from 10:00 a.m. onwards whereas the incident occurred between 8:30 and 9:00 a.m. when the glare of the morning sun directly hits the guard post where Alejo was stationed. Fortuna submitted an Affidavit dated November 12, 2009 executed by a certain Orencio G. Jurado, Jr. who claims to be one of the police officers initially assigned to investigate the case. Fortuna contends that said belated statement would certainly cast doubt on the procedures undertaken by the police authorities in the apprehension of the likely perpetrators. We find the motions bereft of merit. While it is true that Alejo mentioned only four and not six suspects in his June 13, 1996 sworn statement, this did not impair his testimony as an eyewitness. Alejo was simply responding to specific questions as to what he had witnessed during the shooting incident. Herein quoted is an excerpt from the questioning by SPO1 Edilberto S. Nicanor of the Criminal Investigation Division (CID) at Camp Karingal (PNP-NCR) and Alejos answers thereto: 08. T - Habang ikaw ay naka-duty bilang guwardiya sa 211 Katipunan Road, Quezon City, itong araw na ito, may napansin ka bang hindi pangkaraniwang pangyayari? S - Mayroon, Sir. 09. T Ano iyon? S - May binaril na sakay ng kotse sa harap ng puwesto ko sir. 10. T - Anong oras ito nangyari? S - 8:40 ng umaga kanina sir, more or less (13 June 1996) 11. Tanong : Sino ba itong binaril na tinutukoy mo, kung kilala mo? Sagot : Isang hindi ko kilala na lalaki sir. 12. T - Sino naman ang bumaril sa biktima na ito, kung kilala mo? S - Apat na hindi kilalang lalaki sir na armado ng baril. x x x x6 (Emphasis supplied.) The foregoing shows that Alejo merely gave the responsive answer to the question as to those persons whom he saw actually shoot the victim who was in his car. As the question was phrased, Alejo was not being asked about the persons who had participation or involvement in the crime, but only those who actually fired at the victim. Hence, he replied that there were four (4) armed men who suddenly fired shots at the victim. What followed was Alejos narration of what the gunmen further did to the already wounded victim, to those people within the vicinity -- including

61

himself who was ordered at gunpoint to lie down and not interfere -- and until the firing stopped as the suspects ran away. Clearly, it was not a fatal omission on the part of Alejo not to include in his first affidavit the two other suspects who were acting as lookouts. During his testimony in court, Alejo was able to fully recount the details and state that there were two men walking back and forth before the shooting. It is settled that contradictions between the contents of an affiants affidavit and his testimony in the witness stand do not always militate against the witness credibility. This is so because affidavits, which are usually taken ex parte, are often incomplete and inaccurate.7 There is likewise nothing irregular in Alejos manner of testifying in court, initially referring to the accused by numbers, to indicate their relative positions as he remembered them, and the individual participation of each in the violent ambush of Abadilla. As already explained in our decision, Alejos elevated position from the guardhouse gave him such a clear and unobstructed view of the incident that he was able to recognize the faces and physical features of the accused at the time. When two of the accused actually poked a gun at him, it gave him more opportunity to see the faces of the accused who had briefly turned their eyes on him. Furthermore, experience dictates, precisely because of the unusual acts of violence committed right before witnesses eyes, that they remember with a high degree of reliability the identity of criminals. 8 Indeed, Alejos recollection is not of "superhuman" level as accused now make it appear, considering that he was a trained security guard, whose job demands extra perceptiveness and vigilance at all times especially during emergency or critical situations. Keen scrutiny of the physical appearance and behavior of persons is a routine part of a security guards work duties. Movants likewise fault this Court for giving considerable weight to the observations made by the trial judge during the ocular inspection, arguing that the timing of said ocular inspection did not coincide with the precise hour in the morning when the shooting incident happened. Because the shooting took place between 8:30 to 9:00 when the glare of the morning sun directly hits the guard post of Alejo, the latter supposedly cannot be said to have had such clear vantage point as found by the trial judge when he positioned himself at the said guard post at a later time, which is already past 10:00 in the morning. We are not persuaded. Movants are raising the issue for the first time before this Court and long after trial and rendition of judgment. We have perused the transcript of stenographic notes taken during the ocular inspection conducted by the trial court on September 26, 1996, and found no objection or comment made by the defense counsel regarding the timing of the inspection and its relevance to the evaluation of Alejos testimony. Neither did the accused complain of any irregularity in the conduct of the said ocular inspection before the appellate court. If indeed, the accused found the timing of the ocular inspection crucial to their defense that Alejo was not really an eyewitness as he could not have clearly seen the faces of all the accused from his guard post, they could have made a proper manifestation or objection before the trial judge. They could have even staged a reenactment to demonstrate to the trial court the alleged glare of the morning sun at the time of the commission of the crime, which could have affected Alejos perception of the incident. But they did not. It is now too late in the day for the accused to assail as irregular the ocular inspection which was done with the conformity and in the presence of their counsel. It is an admitted fact that Alejo and his family were sheltered and given financial support by the victims family, presumably out of gratitude and sympathy considering that Alejo lost his job after the incident. Such benevolence of the Abadilla family, however, is not sufficient basis for the conclusion that Alejo would falsely accuse movants as the perpetrators of the crime. As we have

stressed, Alejo did not waver in his identification of the accused despite a grueling crossexamination by the defense lawyers. Both the trial and appellate courts found Alejos testimony as credible, categorical and straightforward. After a painstaking review of the records, we find no cogent reason to deviate from their findings on the issue of credibility of the prosecutions lone eyewitness. As to the affidavit of Orencio G. Jurado, Jr. submitted by Fortuna, the said affiant claimed that he had a heated argument with Inspector Roger Castillo during one of the hearings before the trial court because Inspector Castillo was urging him (Jurado) "to confirm that those arrested by the joint team of CID and PARAK-DILG were exactly the same people/suspects described by the guards to which [he] firmly declined". Jurado alleged that he was surprised to see the faces of the suspects flashed on TV several days after Herbas and Alejo gave their statements at Camp Karingal because they did not fit the description given by witnesses Herbas and Alejo. Jurado was also allegedly prevented earlier by an unidentified policeman -- as per instruction of then DILG Secretary Robert Barbers -- from interviewing the suspects arrested by the operatives of the CID and PARAK-DILG.9 Evidently, Fortuna seeks the introduction of additional evidence to support the defense argument that there was no positive identification of Abadillas killers. To justify a new trial or setting aside of the judgment of conviction on the basis of such evidence, it must be shown that the evidence was "newly discovered" pursuant to Section 2,10 Rule 121 of the Revised Rules of Criminal Procedure, as amended.1avvphi1 Evidence, to be considered newly discovered, must be one that could not, by the exercise of due diligence, have been discovered before the trial in the court below. 11 Movant failed to show that the defense exerted efforts during the trial to secure testimonies from police officers like Jurado, or other persons involved in the investigation, who questioned or objected to the apprehension of the accused in this case. Hence, the belatedly executed affidavit of Jurado does not qualify as newly discovered evidence that will justify re-opening of the trial and/or vacating the judgment. In any case, we have ruled that whatever flaw that may have initially attended the out-of-court identification of the accused, the same was cured when all the accused-appellants were positively identified by the prosecution eyewitness during the trial. Finally, we must make it clear that Justice Jose Catral Mendoza, who, as then presiding judge at the trial court, heard the prosecution and defense witnesses, never took part in the deliberations and voting by the Court in this case. The absence of notation in the ponencia that Justice Mendoza had "no part" in the deliberations and voting in this case was purely an oversight and inadvertent omission. The Clerk of Court, Atty. Enriqueta Esguerra-Vidal, had already rectified such error in the Revised Page 75 of our Decision dated September 7, 2010. IN VIEW OF THE FOREGOING, the motions for reconsideration filed by Lenido Lumanog and Augusto Santos, Rameses de Jesus and Cesar Fortuna are hereby DENIED WITH FINALITY. Let entry of judgment be made in due course. SO ORDERED.

62

Republic of the Philippines Supreme Court Manila FIRST DIVISION HO WAI PANG, Petitioner, G.R. No. 176229

otherwise known as the Dangerous Drugs Act of 1972. Also assailed is the January 16, [9] 2007 CA Resolution denying the motion for reconsideration thereto. Factual Antecedents On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA). Among the passengers were 13 Hongkong nationals who came to the Philippines as tourists. At the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then manning Lane 8 of theExpress Lane. Cinco examined the baggages of each of the 13 passengers as their turn came up. From the first traveling bag, she saw few personal belongings such as used clothing, shoes and chocolate boxes which she pressed. When the second bag was examined, she noticed chocolate boxes which were almost of the same size as those in the first bag. Becoming suspicious, she took out four of the chocolate boxes and opened one of them. Instead of chocolates, what she saw inside was white crystalline substance contained in a white transparent plastic. Cinco thus immediately called the attention of her immediate superiors Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to call the Narcotics Command (NARCOM) and the police. Thereupon, she guided the tourists to the Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier discovered. At the ICU, Cinco called the tourists one after the other using the passenger manifest and further examined their bags. The bag of Law Ka Wang was first found to contain three chocolate boxes. Next was petitioners bag which contains nothing except for personal effects. Cinco, however, recalled that two of the chocolate boxes earlier discovered at the express lane belong to him. Wu Hing Sums bag followed and same yielded three chocolate boxes while the baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each contained two or three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from the baggages of the six accused. NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco pertaining to the presence of the chocolate boxes. According to him, he conducted a test on the white crystalline substance contained in said chocolate boxes [10] [11] at the NAIA using the Mandelline Re-Agent Test. The result of his examination of the white crystalline substance yielded positive for methamphetamine hydrochloride or shabu. Thereafter, the chocolate boxes were bundled together with tape, placed inside a plastic bag and brought to the Inbond Section. The following day, September 7, 1991, the 13 tourists were brought to the National Bureau of Investigation (NBI) for further questioning. The confiscated stuff were turned over to the Forensic Chemist who weighed and examined them. Findings show that its total weight is 31.1126 kilograms and that the representative samples [12] were positive for methamphetamine hydrochloride. Out of the 13 tourists, the NBI found evidence for violation of R.A. No. 6425 only as against petitioner and his five coaccused.

Present:

CORONA, C.J., Chairperson, - versus LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES, Respondent.

Promulgated: October 19, 2011

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

DECISION

DEL CASTILLO, J.: Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the extrajudicial confession or admission made [1] during such investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even [2] if obtained or taken in the course of custodial investigation. Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, [3] 2006 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459 affirming [4] the April 6, 1995 Decision of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal Case No. 91-1592, finding him and his co-accused, namely, Law Ka [5] [6] [7] Wang, Chan Chit Yue, Wu Hing Sum, Tin San Mao and Kin San Ho guilty beyond [8] reasonable doubt for violation of Section 15, Article III of Republic Act (R.A.) No. 6425

63

Accordingly, six separate Informations all dated September 19, 1991 were filed against petitioner and his co-accused. These Informations were docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a Motion for [13] Reinvestigation which the trial court granted. The reinvestigation conducted gave way to a finding of conspiracy among the accused and this resulted to the filing of a [14] single Amended Information under Criminal Case No. 91-1592 and to the withdrawal [15] of the other Informations. The Amended Information reads: That on or about September 6, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously carry and transport into the country without lawful authority, 31.112 kilograms, more or less, of METHAMPHETAMINE HYDROCHLORIDE, also popularly known as SHABU, a regulated drug. CONTRARY TO LAW.
[16]

Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG. SO ORDERED.
[19]

From this judgment, all the accused appealed to this Court where the case records [20] were forwarded to per Order of the RTC dated May 10, 1995. Later, all the accused except for petitioner, filed on separate dates their respective withdrawal of [21] appeal. This Court, after being satisfied that the withdrawing appellants were fully aware of the consequences of their action, granted the withdrawal of their respective [22] [23] appeals through a Resolution dated June 18, 1997. Per Entry of Judgment, said Resolution became final and executory on July 7, 1997. Consequently, petitioner was the only one left to pursue his appeal. Petitioner filed his Brief on April 6, 1998 while the brief for the respondent People of the Philippines was filed on August 27, 1998 through the Office of the [26] Solicitor General (OSG). Per Resolution dated August 30, 2004, this Court referred the appeal to the CA for proper disposition and determination pursuant to this Courts [27] ruling in People v. Mateo. Ruling of the Court of Appeals On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC. While conceding that petitioners constitutional right to counsel during the custodial investigation was indeed violated, it nevertheless went on to hold that there were other evidence sufficient to warrant his conviction. The CA also rebuked petitioners claim that he was deprived of his constitutional and statutory right to confront the witnesses against him. The CA gave credence to the testimonies of the prosecution witnesses and quoted with favor the trial courts ratiocination regarding the existence of conspiracy among the accused. Undeterred, petitioner filed a Motion for Reconsideration [29] in its Resolution dated January 16, 2007.
[28] [24] [25]

After pleading not guilty to the crime charged, all the accused testified almost identically, invoking denial as their defense. They claimed that they have no knowledge about the transportation of illegal substance (shabu) taken from their traveling bags which were provided by the travel agency. Ruling of the Regional Trial Court On April 6, 1995, the RTC rendered a Decision finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the decretal portion of which reads: WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA WANG, CHAN CHIT YUE, HO WAI PANG, WU HING SUM, TIN SUN MAO, AND KIN SAN HO (HO KIN SAN) GUILTY of Conspiracy in violating Section 15, Article III, Republic Act No. 6425, as amended for having conspired to transport into the Philippines 31.112 kilograms of methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby sentenced to suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30) THOUSAND PESOS (P30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant to Republic Act No. 7659 considering its applicability to the accused though retroactively for having a less stricter penalty than that of life imprisonment provided in Republic Act No. 6425. The fine of P30,000.00 for each accused is imposed pursuant to R.A. No. 6425 it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The penalty of death cannot be imposed since the offense was committed prior to the effectivity of R.A. No. 7659.
[18]

[17]

which the CA denied

Hence, this petition for review on certiorari anchored on the following grounds: I WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE COURT OF APPEALS ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION. II

64

THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

III THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY.

In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The prosecution did not present any extrajudicial confession extracted from him as evidence of his guilt. Moreover, no statement was taken from petitioner during his detention and subsequently used in evidence against him. Verily, in determining the guilt of the petitioner and his co-accused, the trial court based its Decision on the testimonies of the prosecution witnesses and on the [33] existence of the confiscated shabu. As the Court held in People v. Buluran, [a]ny allegation of violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction. Hence, petitioners claim that the trial court erred in not excluding evidence taken during the custodial investigation deserves scant consideration. Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen [34] Ming to exculpate himself from the crime charged. Though there are semblance in the facts, the case of Ming is not exactly on all fours with the present case. The disparity is clear from the evidence adduced upon which the trial courts in each case relied on in rendering their respective decisions. Apparently in Ming, the trial court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic bags. The Court construed the accuseds act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having been obtained in violation of their constitutional rights. In ruling against the accused, the trial court also gave credence to the sole testimony of the customs examiner whom it presumed to have performed his duties in regular manner. However, in reversing the judgment of conviction, the Court noted that said examiners testimony was not corroborated by other prosecution witnesses. On the other hand, petitioners conviction in the present case was on the strength of his having been caught in flagrante delicto transporting shabu into the country and not on the basis of any confession or admission. Moreover, the testimony of Cinco was found to be direct, positive and credible by the trial court, hence it need not be corroborated. Cinco witnessed the entire incident thus providing direct evidence as eyewitness to the very act of the commission of the crime. As the Court held in People [35] v Dela Cruz, [n]o rule exists which requires a testimony to be corroborated to be adjudged credible. x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction. Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case when there are stark differences between the two cases. Cases must be decided based on their own unique facts and applicable law and jurisprudence. Petitioner was not denied of his right to confrontation.

IV THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO [30] PETITIONER BY THE CONSTITUTION.

OUR RULING

The petition lacks merit. Section 12, Article III of the Constitution prohibits as evidence only confessions and admissions of the accused as against himself.

Anent the error first assigned, petitioner takes issue on the fact that he was not assisted by a competent and independent lawyer during the custodial investigation. He claimed that he was not duly informed of his rights to remain silent and to have competent counsel of his choice. Hence, petitioner faults the CA in not excluding evidence taken during such investigation. While there is no dispute that petitioner was subjected to all the rituals of a custodial questioning by the customs authorities and the NBI in violation of his constitutional right [31] under Section 12 of Article III of the Constitution, we must not, however, lose sight of the fact that what said constitutional provision prohibits as evidence are only confessions and admissions of the accused as against himself. Thus, in Aquino v. [32] Paiste, the Court categorically ruled that the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and [are] not otherwise excluded by law or rules, [are] not affected even if obtained or taken in the course of custodial investigation.

65

Turning now to the second assigned error, petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987 Philippine Constitution providing for the right to confrontation, viz: Section 14. x x x (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, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

the function and test of confrontation has also been accomplished, the confrontation being merely the dramatic preliminary to cross-examination. Under the circumstances obtaining, petitioners constitutional right to confront the witnesses against him was not impaired. Conspiracy among the accused was duly established. Respecting the third assigned error, we uphold the trial courts finding of conspiracy which was quoted by the appellate court in its assailed Decision, and which we once again herein reproduce with approval: On the allegation of conspiracy, the Court finds [no] direct evidence to conclude conspiracy. However, just like in other cases where conspiracy is not usually established by direct evidence but by circumstantial evidence, the Court finds that there are enough circumstantial evidence which if taken together sufficiently prove conspiracy. First, it cannot be denied that the accused somehow have known each other prior to their [departure] in Hong Kong for Manila. Although Law Ka Wang denied having known any of the accused prior to the incident in NAIA, accused Ho Wai Pang identified him as the one who assisted him in the supposed tour in the Philippines to the extent of directly dealing with the travel agency and [that] Law Ka Wang was the one who received the personal things of Ho Wai Pang allegedly to be place[d] in a bag provided for by the travel agency. Accused Wu Hing Sum has been known to accused Ho Kin San for about two to three years as they used to work as cooks in a restaurant inHong Kong. Accused Ho Wai Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a way can lead to the presumption that they have the capability to enter into a conspiracy. Second, all the illegal substances confiscated from the six accused were contained in chocolate boxes of similar sizes and almost the same weight all contained in their luggages. The Court agrees with the finding of the trial prosecutor that under the given circumstances, the offense charged [c]ould have been perpetrated only through an elaborate and methodically planned conspiracy with all the accused assiduously cooperating and [37] mutually helping each other in order to ensure its success.

Petitioner asserts that he was deprived of his right to know and understand what the witnesses testified to. According to him, only a full understanding of what the witnesses would testify to would enable an accused to comprehend the evidence being offered against him and to refute it by cross-examination or by his own countervailing evidence. In refutation, the OSG countered that petitioner was given the opportunity to confront his accusers and/or the witnesses of the prosecution when his counsel crossexamined them. It is petitioners call to hire an interpreter to understand the proceedings before him and if he could not do so, he should have manifested it before the court. At any rate, the OSG contends that petitioner was nevertheless able to cross-examine the prosecution witnesses and that such examination suffices as compliance with petitioners right to confront the witnesses against him. We agree with the OSG. As borne out by the records, petitioner did not register any objection to the presentation of the prosecutions evidence particularly on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him. Still and all, the important thing is that petitioner, through counsel, was able to fully cross-examine Cinco and the other witnesses and test their credibility. The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses of the prosecution. In People v. Libo[36] on, the Court held: The right to confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. The chief purpose of the right of confrontation is to secure the opportunity for cross-examination, so that if the opportunity for cross-examination has been secured,

We find no cogent reason to reverse such findings. Conspiracy is [the] common design to commit a felony. [C]onspiracy which determines criminal culpability need not entail a close personal association or at least [39] an acquaintance between or among the participants to a crime. It need not be shown that the parties actually came together and agreed in express terms to enter into [40] and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole as we ruled [41] in People v. Mateo, Jr. Here, it can be deduced from petitioner and his co-accuseds
[38]

66

collective conduct, viewed in its totality, that there was a common design, concerted action and concurrence of sentiments in bringing about the crime committed. Petitioners guilt was proved beyond reasonable doubt.

calibrated and considered. Also, where there is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate the accused, identification should be given full weight. Here, petitioner presented no evidence or anything to indicate that the principal witness for the prosecution, Cinco, was moved by any improper motive, hence her testimony is entitled to full faith and credit. Verily, the evidence adduced against petitioner is so overwhelming that this Court is convinced that his guilt has been established beyond reasonable doubt. Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed in the very act of transporting, along with his coaccused, shabu into the country. In stark contrast, the evidence for the defense consists mainly of denials. Petitioner tried to show that he was not aware of the shabu inside his luggage considering that his bag was provided by the travel agency. However, it bears stressing that the act of transporting a prohibited drug is a malumprohibitum because it is punished as an offense under a special law. As such, the mere commission of the act is what constitutes the offense punished and same suffices to validly charge and convict an individual caught committing the act so punished regardless of criminal intent. Moreover, beyond his bare denials, petitioner has not presented any plausible proof to successfully rebut the evidence for the prosecution. It is basic that affirmative testimony of persons who are eyewitnesses of the events or facts asserted easily [47] overrides negative testimony. All told, we are convinced that the courts below committed no error in adjudging petitioner guilty of transporting methamphetamine hydrochloride or shabu into the country in violation of Section 15, Article III of R.A. No. 6425, as amended. Penalty As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. [48] 6425 was already amended by Presidential Decree No. 1683. The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, [49] R.A. No. 7659 further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 to reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million. On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved. The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating

[46]

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He makes capital on the contention that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He claimed that it was his co-accused Sonny Wong who took charge in ascribing upon him the possession of the two chocolate boxes. Petitioners contentions fail to persuade. True, when principal prosecution witness Cinco first testified on June 3, 1992, she declared that she did not see any chocolate boxes but only personal effects in [42] petitioners bag. Nonetheless, she clarified in her succeeding testimony that she recalls taking the two chocolate boxes from petitioners bag when they were still at the counter. This sufficiently explained why Cinco did not find any chocolate boxes from [43] petitioners bag when they were at the ICU. To us, this slight clash in Cincos statements neither dilute her credibility nor the veracity of her testimony. The trial courts words on this matter when it resolved petitioners Demurrer to [44] Evidence in its Order of February 16, 1993 is quite enlightening. Thus In claiming that the evidences [sic] presented by the prosecution is insufficient to command conviction, the Demurrer went on to say that the testimony of Hilda Cinco is either conjectural or hearsay and definitely missed its mark in incriminating accused, Ho Wai Pang, because she even testified that she found nothing inside the hand-carried luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was going on at the Intensive Counting Unit (ICU). However, the same Hilda Cinco later on testified that from the express lane in going to the ICU, after the discovery of shabu, she was already carrying with her four (4) chocolate boxes, two of [which] taken from the bag of Tin Sun Mau and the other two retrieved from the luggage of herein movant, Ho Wai Pang. Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai Pangs bag was already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such testimony is not hearsay evidence. They are facts from the personal perception of the witness and out of her personal [45] knowledge. Neither is it conjectural.

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be

67

that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment. We agree. In People v. Doroja,
[50]

we held:

In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x. And, since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect to the accused, have, [51] as to him, a retroactive effect, the penalty imposed by the trial court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to him. WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006 Decision and January 16, 2007 Resolution of the Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED. SO ORDERED.

68

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. R. No. L-65673 January 30, 1992 PEOPLE OF THE PHILIPPINES, appellee, vs. ABELARDO PENILLOS y LUCINDO @ GUILLERMO "BILLY" PENILLOS, MARIANO MARAO y MENDEZ, JOSE NUYDA y MARMEDA and ROMEO NUYDA y PEDROSA, accused. ABELARDO PENILLOS y LUCINDO @ GUILLERMO "BILLY" PENILLOS, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

feloniously enter the house of the spouses APRONIANO LLADONES and EPIFANIA LOPEZ LLADONES and once inside, forcibly take the amount of P1,000.00 from the said spouses and by reason of or on occasion of the robbery and with intent to kill, attacked, assaulted, hogtied and stabbed APRONIANO LLADONES inflicting injuries upon the latter which directly caused his untimely death; while EPIFANIA LOPEZ LLADONES was hacked on her shoulder, thus accused commenced the commission of the crime directly byovert acts but did not perform all the acts of execution which could produce the crime of Homicide upon said EPIFANIA LOPEZ LLADONES by reason of causes other than their spontaneous desistance. 2
xxx xxx xxx Only accused-appellant Abelardo Penillos was apprehended. The others remain at large. 3 Accused-appellant entered a plea of not guilty upon arraignment and was given a separate trial. The court a quo summarized the evidence for the prosecution, upon which it based its conviction of appellant, as follows: xxx xxx xxx Four defendants are charged with the offense of "Robbery with Homicide and Attempted Homicide." Among them, only one was apprehended and a separate trial was held. On June 18, 1982, defendant Abelardo Penillos pleaded "Not Guilty." The following facts are not disputed. On July 31, 1981, in the early hours of the evening or thereabouts (sic), at Sitio Naontogan, Bariis, Legazpi (sic) City, Aproniano Lladones and spouse Epifania Lopez were awakened as four (4) persons suddenly entered their house. The intruders demanded money from the couple and when Aproniano Lladones refused to accede he was carried outside his dwelling by the four persons. He was later on found hogtied and lifeless suffering (sic) from multiple stab wounds. His wife, Epifania LIadones Lopez was also hacked with a bolo by one of the entrants (sic) as she tried to follow to find out where her husband was being taken. The following morning Abelardo Penillos was apprehended and after giving an extra-judicial confession, the present complaint was filed against him and his co-conspirators, Mariano Marao, Romeo Nuyda and Jose Nuyda. The

DAVIDE, JR., J.: This is an appeal from the decision 1 of Branch 7 of the Regional Trial Court (RTC) of Legazpi City, in Criminal Case No. 2144 entitled "People of the Philippines vs. Abelardo Penillos, et al.," promulgated on 28 September 1983, convicting the accused-appellant of the crime of Robbery with Homicide and Attempted Homicide pursuant to Article 294 of the Revised Penal Code and sentencing him to suffer the penalty of "reclusion perpetua or life imprisonment." The information prepared by the then assistant city fiscal charges the abovenamed accused with the crime of "Robbery with Homicide and Attempted Homicide" committed as follows: xxx xxx xxx

That on or about the 31st day of July, 1981, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and helping one another for a common purpose, with intent of gain (sic) and by means of violence against or intimidation, did then and there willfully, unlawfully and

69

last three defendants remained at-large hence Abelardo Penillos was afforded a separate trial. Testifying for the prosecution, Epifania Lopez Lladones narrated that on the night in question while she and her husband were asleep inside their house they were awakened by the entry of four persons who demanded money from them; that one of the intruders even sat on the belly of her husband who was caught still lying down and at that moment she was able to recognize one of them as Abelardo Penillos because of the illumination coming from a kerosene lamp in the kitchen adjoining the sala; that Abelardo Penillos was one of the four persons who brought her husband outside the house and as she tried to follow she was hacked by one of them whose identity she cannot tell; that she suffered a hack wound and later on she came to know that her husband, hogtied, was found dead from stab wounds; that she crawled in the dark to the house of her neighbor Celerino Nudo who reported the incident to the barangay captain who in turn lost no time in notifying the police authorities; that recollecting the robbery she discovered the loss of P1,000.00 kept in a bamboo basket and during the time she was confined at the hospital she recognized Abelardo Penillos as one of the perpetrators when brought to her for confrontation.

to surmise the time of his arrival because he overheard from the radio that the drama serial Zimatar had just been concluded. 5
After trial, the lower court rendered the challenged decision, the dispositive portion of which reads: xxx xxx xxx All the foregoing and EVIDENCE considered, and finding the guilt of the defendant beyond reasonable doubt, Abelardo "Billy" Penillos @ Guillermo Penillos is sentenced to suffer the penalty of Reclusion Perpetua or life imprisonment and to indemnify the heirs of Aproniano Lladones in the amount of P20,000; further, defendant to pay Epifania Lopez Lladones the amount of Pl,000.00, cash stolen, in both instances without subsidiary imprisonment in case of insolvency.

Credit the defendant the full time of any preventive imprisonment in the service of his sentence in accordance with law. 6
xxx xxx xxx

Celerino Nudo also testifying recalls that in the evening of July 31, 1981 Epifania Lopez then seriously injured from a hack wound arrived at his house to seek his help regarding an incident in their house; that she mentioned a certain Billy Penillos as one of the men who forcibly entered their dwelling while they were asleep; that he at once reported the matter to the barangay captain and rushed Epifania Lladones to the hospital. 4
xxx xxx xxx Upon the other hand, appellant relied on alibi as his defense, which is summarized by the trial court as follows: xxx xxx xxx

Appellant immediately filed a Notice of Appeal 7 wherein he manifested that he is appealing the decision to the Intermediate Appellate Court. In view of the penalty imposed, the appeal should have been made to this Court. The records of the case were erroneously transmitted to the then Intermediate Appellate Court (now Court of Appeals) which properly forwarded the same to this Court on 24 November 1983. 8 On 20 December 1983, We required the appellant to file his Brief, 9 which he complied with on 16 July 1984 10 after being granted several extensions. The appellee, on the other hand, submitted its Brief on 15 November 1984. 11 Appellant submits the following assignment of errors: I THAT THE COURT A QUO ERRED IN GIVING CREDENCE TO THE IDENTIFICATION OF APPELLANT BY THE COMPLAINT. II. THAT THE COURT A QUO ERRED IN GIVING THE STATEMENT OF APPELLANT GREAT WEIGHT WHEN SAID STATEMENT WAS TAKEN IN DEROGATION OF APPELLANT'S CONSTITUTIONAL

. . . Penillos testified that on July 3l, 1981, he was in the house of his grandmother at Barangay Esperanza, Putiao, Sorsogon, in the morning until six o'clock in the evening; that he left Barangay Esperanza thereafter riding on a carabao sledge loaded with coconuts and arrived at Barangay Imalnod, Legaspi City, a distance of about 4 kilometers at past eight o'clock in the evening; that he proceeded to the house of his father-in-law where he spent the night because he was already tired; that he was able

70

RIGHTS AND IN CONTRAVENTION ESTABLISHED BY JURISPRUDENCE.

OF

PROCEDURE

In support of the first assigned error, appellant insists that Epifania Lladones could not have made a proper identification of the offenders because: (1) The only illumination at the scene of the incident was a gas lamp which was placed in the kitchen. There were partitions between both the kitchen and the sala and the sala and the bedroom where she and her deceased husband were sleeping. There could not have been enough light for her to properly recognize the accused. (2) Having just been roused from sleep by one of the perpetrators who sat on the deceased's belly, she was most probably "in a state of shock or terror" and thus positive identification of the accused is highly improbable. Besides, she testified that the very reason for her rushing to the kitchen upon waking up was to get the gas lamp in order to see who her husband's attacker was. (3) Even when Epifania was overtaken by the accused and pinned under a table, visibility was still not sufficient as both were still some distance from the kitchen, the only source of illumination. (4) Finally, her claim that she had known the accused prior to the incident should have compelled the latter to have at least worn a mask so he would not be recognized. Appellant also takes exception to the procedure undertaken by the police authorities on the day after the incident when he was brought to the hospital to be identified by Epifania Lladones. He laments that:

the police investigator, he was interviewed by other policemen. The prosecution failed to show that in the said interview, the accused was apprised of his constitutional rights. He further avers that he initially disclaimed responsibility for the crime but when manhandled, boxed and struck with a piece of wood on the head, he was forced to confess. Thus, the confession he prepared on 1 August 1981 (Exh. "B") is a mere formality in spite of his having been informed by the police investigator during the formal investigation of his constitutional rights. And even conceding the absence of coercion during the initial interview, the signed confession would still be inadmissible as it does not appear that a waiver of the right to counsel was made by the accused. In the People's Brief, the Solicitor General asserts the view that the principal issue to be resolved is whether or not the appellant was sufficiently identified as one of the culprits responsible for the offense. Appellee avers, and We agree, that Epifania was able to sufficiently identify Abelardo Penillos as the person who sat on her husband's belly and demanded money from her. She testified that she was able to recognize Penillos when the latter pinned her down under the table; such identification was aided by her having known Penillos long before the incident, when the latter would go to the Lladones' house. 13 She was even able to declare that Penillos was wearing short pants at the time of the commission of the crime. 14 Furthermore, the illumination provided by the kerosene lamp was enough for Epifania to have recognized Penillos. This Court has held in the past that illumination produced by kerosene (gasera) lamps is sufficient for the identification of persons. 15 Where conditions of visibility are favorable, the ability of a witness to identify the malefactor should be upheld. 16 The frenetic efforts of the appellant's counsel to cast doubt on the positive identification by Epifania, characterized by attempts to mislead the latter, proved to be a bad gamble for it only provided the prosecution a rare opportunity to elicit the details for the positive identification, to wit:
Q How were you able to say that it was Billy Penillos who sat on the stomach of your husband and pointed the knife when you said there were two persons present inside your bedroom? A I recognized him; he was then wearing short-pant while his other companions was (sic) wearing long pants. Q And according to you after you ran away to get the lamp in the kitchen before you reached the kitchen, Billy Penillos twisted your arm and pinned you under a table. Is that correct? FISCAL:

The evidence for the prosecution also pointed out that on the following morning of the incident (August 1, 1981), Abelardo was made to face Epifania while the latter was still confined at the Albay Provincial Hospital for medical treatment of the hack wound she sustained and that Epifania pointed to Abelardo as one of the perpetrators of the offense charged. The defense submits that this particular procedure undertaken by the police in showing the victim, Epifania, a single person and asking her whether or not that man is one of those who perpetrated the offense, is most unfair and violative of the constitutional rights of the accused. The proper procedure should have been an identification in a line-up, whereby the suspect is made to line up with other persons who are not suspects at all, and then the victim is asked to point to whoever he or she recognize as the perpetrator of the offense. 12
Anent the second assigned error, appellant claims that his constitutional rights to remain silent, to be entitled to counsel and to be informed of such rights "had no longer any meaning or purpose." This is because before giving his confession to

71

No. It is misleading, Your Honor please, because she was already in the kitchen. Before she could get hold of the lamp, that was the time when Abelardo Penillos twisted her right arm, she was already in the kitchen. COURT: Witness may answer. She is under cross-examination. A He placed me under the table. BENDAA: Q And it was under the table that you recognized the face of Billy Penillos? A While inside, I already recognized him inside. Before I have (sic) already recognized him. Q Did you not testify a while ago that you ran towards the kitchen to get a lamp, so that, you can recognize the persons inside the room? A Yes, sir. Q And do you want to impress the (sic) Court that before you could get the lamp from the kitchen, you were already able to recognize Billy Penillos? A Yes, sir. Q And you were able to recognize Billy Penillos although at that time you were running towards the kitchen and Billy Penillos was behind inasmuch as he was sitting on the stomach of your husband? A Yes. I already recognized him. Q So, your statement a while ago that you prefer (sic) in giving to the kitchen to get a lamp was to recognize who the persons were inside your house is not correct? A He was the very first one to get inside the house while his companions who were wearing long pants followed him. So I tried to recognize them. Q Is there a partition between the kitchen and your room? A Yes, sir. Q And you said the lamp is (sic) situated inside the kitchen? A Yes, sir, because there was (sic) a door leading to that place. Q How far is the kitchen to your bed? A Very near. Q But the direct light of the lamp is (sic) being obstructed by the partition separating the bedroom and the kitchen? p The gas lamp was situated near the door. Q Is it the door of the room or near the door of the kitchen? A Near the door of the sala. Q So, you are now telling the Court that the lamp is (sic) near the sala and not in the kitchen? A It is (sic) inside the kitchen but near the door leading to the sala. Q But your bedroom is inside a room which has a partition separating it from the sala, Is there a partition? A Yes, sir. Q So, you were not able to recognize the companions of Abelardo Penillos? A No, sir. I was not able to recognize the companions of Abelardo Penillos because when Abelardo Penillos ran to hold my husband and then suddenly his companions entered. 17 xxx xxx xxx Q So, the only moment that you were able to recognize Billy Penillos was while you were inside the room, and while Abelardo Penillos was demanding from you some money while you were being pinned under the table? A Yes, sir.

Q And in these two instances where (sic) according to you, you recognized the face of Abelardo Penillos, first, when you were in the room, the room was still dark because the lamp was in the kitchen. Is that correct? A Yes, sir. Q And the second time that you recognized Billy Penillos was while you were being pinned under the table, and under the table it was also dark at that time. Is that correct? A No, not dark, because the light from the kitchen was illuminating the place wherein I was being pinned under the table. It was not dark. Q The table where you said you were pinned by Abelardo Penillos, how far was it from the kitchen? A About two meters. Q How big is the table? A It is small, we use it, for our eating purposes. 18

This Court cannot yield to the postulations of the appellant that Penillos would have worn a mask during the incident knowing as he did that Epifania was familiar with him and that the latter was impelled by evil motives in implicating him in the commission of the offense. The first theory assumes that the wearing of masks to hide one's identity is a universal practice resorted to by criminals who are known to their prospective victims and who exercise utmost prudence and care in ensuring that no witness would be able to identify them while committing a crime. These assumptions are, of course, without any empirical basis and are, at best, speculative. On the other hand, the evil motive ascribed to Epifania by reason of an alleged prior verbal exchange between Penillos and her is a mere figment of the former's imagination. Such verbal disagreement allegedly arising from the refusal by Epifania to allow Penillos to use her yard as a pathway, even if true, is inconsequential, trivial and insufficient to move one to accuse another of committing robbery with homicide. With his positive identification, appellant's defense of alibi must fail. We defer to the conclusion by the court a quo that the protestations of the appellant "held in contrast with the positive identification made by Epifania Lopez on his complicity in the commission of the offense could not provide a justifiable ground to extricate him." 19 Appellant testified that between 6:00 p.m. and 8:00 p.m. on 31 July 1981, the day of the incident, he was travelling by carabao from Sitio Esperanza to Nauntogan, the place of the incident, a distance of about four (4) kilometers. He was allegedly accompanied by one Victor Marao. Arriving at his destination at around 8:00 p.m., he proceeded to the house of his father-in-law, co-accused Mariano Marao, which is about thirty (30) meters away from the residence of the victims. At the house of Mariano, appellant also encountered his other co-accused, Jose Nuyda and

72

Romeo Nuyda. While having supper therein, appellant overheard Mariano and the Nuydas talking about something that they would divide among themselves. 20 Appellee easily demolishes this defense by alleging that: Penillos' alleged travel from Esperanza to Nauntogan was not even corroborated by his supposed companion, Victor Marao, who was not presented as a witness; Penillos' presence at the house of his co-accused, a mere thirty (30) meters away from the scene of the crime, militates against his defense in view of the positive identification by Epifania; and that it was not physically impossible for the appellant to have been at the place of the incident during the commission of the crime. Settled is the rule that alibi cannot prevail over a positive identification made by a prosecution witness. 21 For alibi to prosper, it is not enough to prove that the accused was somewhere when the crime was committed but that he must also demonstrate that it was physically impossible for him to have been at the scene of the crime. 22 Appellant also questions the manner in which he was initially identified by Epifania Lladones in the hospital while the latter was recuperating from her injury. The former contends that the procedure for conducting a police line-up should have been strictly followed. In People vs. Espiritu, 23 We ruled that there is no law requiring a police line-up as essential to a proper identification. Clearly then, this argument must also fail. And now on the second assigned error. In respect to the allegation that the signed confession (Exh. "B") was defective and should not have been admitted in evidence, the appellee practically concedes the irregularity when it avers thus: xxx xxx xxx From the record, it appears that appellant's sworn statement was executed in a manner not in full accord with his right to the assistance of counsel. This may be seen in the preliminary portion of the sworn statement, on which appellant was: ". . . reminded that under the new rules of the Constitution you have the right to remain silent and the right to have counsel of your own choice. You are also reminded that whatever you say here might be used for or against you in any court proceedings. Is this clearly understood by you?
Answer: Yes sir.

Question: After having been informed of your constitutional rights do you wish to proceed with this investigation? Answer: Yes sir. Question: Are you ready to give free voluntary statement? Answer: Yes sir. (Folder of Exhibits, p. 2)." Neither the preliminary portion aforecited nor the testimony of the investigating officer showed an affirmative offer to provide appellant with counsel de oficio if he could not retain counsel of his choice. Consequently, the sworn statement may very well be inadmissible and may not be utilized against appellant. 24 Indeed it does not appear that constitutional safeguards afforded an accused under investigation for the commission of an offense were complied with. Aside from the Solicitor General's observations, it is clear that waiver of the right to counsel was not made in the presence of counsel. On cross-examination, police investigator Demosthenes Martillano testified: xxx xxx xxx COURT: Q Why did you not place in the investigation that the witness is waiving his right to a (sic) counsel? A That is my error. BENDAA: Q Why? What do you mean by that answer of yours that it was your error? Will you please explain to us that answer of yours? A All I know is that if the suspect does not need a counsel, I think, it was (sic) also suffice. Q Tell the court whether or not during the investigation Billy Penillos did not waive his right to a (sic) counsel? FISCAL It is already stated, Your Honor please, in his statement that when the affiant chose to proceed with the investigation, to answer all questions, he in effect is waiving his right to a (sic) counsel after having been informed of all his rights.

73

xxx xxx xxx COURT: The witness had already admitted that he did not place specifically that portion of waiver. But it does not mean that he did not ask the suspect. It is a matter of interpretation how you are going to interpret that portion of your question. The court under that respect will sustain the objection of the Fiscal. 25 Even if the confession of an accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given. 26 The same would necessarily apply to a waiver of the right to counsel not made in the presence of counsel. In Morales vs. Enrile, et al., 27 this Court, applying and interpreting Section 20, Article IV of the 1973 Constitution, which provides as follows: Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

We reiterated the above ruling in People vs. Galit, 28 People vs. Lumayok, 29 People vs. Albofera 30 and People vs.Marquez. 31 In view therefore of the law and jurisprudence, the sworn statement of appellant, Exhibit "B", is hereby declared inadmissible in evidence and should have been rejected by the trial court even if it is not in fact a confession for, as correctly observed by the People, it is exculpatory in nature. Just the same, since it was taken in violation of appellant's constitutional right to counsel, its exculpatory character did not cure the fatal defect. We wish to underscore that Section 12(l) of Article III of the present Constitution has gone further to protect, promote and enhance the right to counsel of any person under investigation by expressly providing that such is a right "to have competent and independent counsel preferably of his own choice" and that it "cannot be waived except in writing and in the presence of counsel." Be that as it may, We affirm the judgment of conviction by the trial court on the basis of the testimonies of the witnesses presented by the prosecution. Concluded the lower court: "The truth and as clearly borne by the evidence is: the defendant was among the perpetrators of the heinous offense. The robbery, left in its wake the death of Aproniano Lladones and the wounding of his wife Epifania Lopez Lladones." 32 A trial court's findings of facts carry great weight for it has the privilege of examining the deportment and demeanor of witnesses and, therefore, can discern if such witnesses are telling the truth or not. 33 In the light of the evidence presented in the proceedings below, We do not see any reason to disturb the lower court's factual conclusions. We, however, modify the designation of the offense the appellant was convicted for on the basis of the information prepared by the then assistant city fiscal. The information should have charged the appellant simply with the special complex crime of Robbery with Homicide under Article 294 of the Revised Penal Code. This Court has consistently held that this offense is denominated as such regardless of the number of the homicides or injuries committed. These other circumstances merely serve as generic aggravating circumstances which can be offset by other mitigating circumstances. 34 There is no crime of robbery with homicide and frustrated homicide 35 or robbery with homicide and attempted homicide. 36 The term "homicide" in paragraph 1, Article 294 of the Revised Penal Code is to be understood in its generic sense; it includes murder and slight physical injuries committed during the robbery which crimes are merged in the crime of robbery with homicide. 37 The trial court, however, should have taken into consideration the aggravating circumstance of dwelling. Dwelling is aggravating in robbery with homicide

laid down the duties of an investigator during custodial interrogation and ruled that the waiver of the right to counsel shall not be valid unless made with the assistance of counsel, thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

74

because this type of robbery could be committed without the necessity of transgressing the sanctity of the home. 38 It is indisputably clear from the pleadings and the decision of the trial court that although the homicide was committed outside the house of the deceased, the principal offense of robbery was perpetrated inside; the killing thus occurred as a result of the initial evil design to steal. The penalty for robbery with homicide and physical injuries defined under Article 294 of the Revised Penal Code isreclusion perpetua to death. Considering the presence of the aggravating circumstance of dwelling, the greater penalty, which is death, shall be applied. 39 However, in view of the abolition of the death penalty, the appellant is entitled to the reduced penalty of reclusion perpetua. As noted from the dispositive portion of the challenged decision, the trial court imposed the penalty of "reclusion perpetua or life imprisonment." Evidently, it considered the latter as the English translation of the former, which is not the case. Both are different and distinct penalties. In the recent case of People vs. Baguio, 40 this Court held:
The Code 41 does not prescribe the penalty of "life imprisonment" for any of the felonies therein defined, that penalty being invariably imposed for serious offenses penalized not by the Revised Penal Code but by special laws. Reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, it also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as "life imprisonment" which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration.

likewise deemed absorbed in one special complex crime of robbery with homicide, defined and penalized under Article 294 of the Revised Penal Code, and the civil indemnity for the death of Aproniano Lladones is hereby increased to P50,000.00. IT IS SO ORDERED.

As early as 1948, in People vs. Mobe, 42 reiterated in People vs. Pilones, 43 and in the concurring opinion of Justice Ramon Aquino in People vs. Sumadic, 44 this Court already made it clear that reclusion perpetua is not the same as imprisonment for life or life imprisonment. Every judge should take note of the distinction and this Court expects, that, henceforth, no trial judge should mistake one for the other. Finally, conformably with the stated policy of this Court, the award of civil indemnity in the amount of P20,00.00 is increased to P50,000.00. 45 WHEREFORE, except as modified in its dispositive portion to specify that appellant Abelardo Penillo's penalty is to bereclusion perpetua, to remove the alternative reference therein to "life imprisonment" and to increase the indemnity for the death of Aproniano Lladones to be paid by him to the heirs of said deceased, the judgment of the trial court in Criminal Case No. 2144 is hereby AFFIRMED in all respects. The attempted homicide aspect of the charge is

75

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-64086 March 15, 1990 PETER PAUL ABALLE Y MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE JUDGE BERNARDO V. SALUDARES, respondents. Faustino C. Fanlo counsel de oficio for petitioner.

T-shirt. Upon seeing Sgt. Marante, the accused without anyone asking him, orally admitted that he killed Jennie Banguis. Sgt. Marante subsequently brought him to the Toril police station for interrogation. While under custodial investigation, Aballe, 17 years old, a school dropout (he finished second year high school) and next door neighbor of the victim, brought the police to his house and pointed to them the pot at the "bangera" where he had concealed the death 4 weapon which was a four-inch kitchen knife. Also taken from Aballe was the bloodstained red and white striped T-shirt which he claimed he wore during the 5 commission of the crime. Aballe also made an extrajudicial confession admitting his 6 guilt in killing Jennie while under the influence of liquor and marijuana. The sworn affidavit in the main reads as follows: Preliminary Question: Mr. Aballe, you are under investigation in connection with an offense. Any statement you may give may be use (sic) for or against you in court in the future. Under our New Constitution, you have the right to remain silent and the right to the presence and assistance of a counsel of your own choice, do you understand? Do you waive all these rights? Answer: Yes sir.

FERNAN, C.J.: This is a direct appeal from the decision of the then Court of First Instance of Davao City, Branch II, finding petitioner Peter Paul Aballe y Mendoza guilty of homicide and sentencing him to an indeterminate penalty of eight (8) years and one (1) day of prision mayor to sixteen (16) years of reclusion temporal with all the accessory penalties and ordering him to indemnify the heirs of the deceased Jennie Banguis y Aquino in the amount of P12,000.00 and to pay the amount of P5,000.00 as actual and 1 compensatory damages. At around seven o'clock in the evening of November 7, 1980 in Saypon, Toril, Davao City, Quirino Banguis, a 42-year old driver, attended a birthday party at the residence of his neighbor Aguilles Mora. He brought along his 2 wife and other children, leaving his 12-year-old daughter Jennie alone in their house. Upon their return at around 8:30 that same night, Quirino found Jennie in the sala, lying prostrate, bathed in her own blood with multiple wounds on different parts of her body. There were no eyewitnesses to the bizarre killing. The postmortem report disclosed that Jennie sustained a total of thirty-two (32) stab wounds. Cause of death was attributed to hemorrhage secondary to multiple stab 3 wounds. At daybreak of the following day, November 8, 1980, acting on information furnished by the victim's father, a police team headed by Sergeant Herminigildo Marante sought the accused Peter Paul Aballe for questioning. They found him just as he was coming out of the communal bathroom in Saypon and wearing what appeared to be a bloodstained

Q After apprising you of your rights under our new Constitution, do you still wish to proceed with this investigation? A Yes sir. Q Are you willing to waive all these rights? A Yes sir. . . . Q If so will you please state your name and other personal circumstances. A Peter Paul Aballe y Mendoza, 17 years old, single, a high school drop out, jobless and presently residing at Saypon, Crossing Bayabas, Toril, Davao City. Q Are you aware on why you are in this Office? A I am here sir in connection with the death of a minor JENNY BANGUIS Y AQUINO, our neighbor in the night of November 7, 1980. Q What do you know about the death of the said JENNY BANGUIS?

76

A I was the one who killed her sir while she was sleeping alone at their residence by stabbing her with the use of a kitchen knife for several times while I was under the influence of liquor and marijuana at about 6:30 P.M. November 7, 1980. Q Where did you get the said marijuana you were referring to? A From one alias Dodong Flores who sold it to me for Fifteen pesos (P15.00) per match box. Q Showing you this kitchen knife and this blooded (sic) T-shirt, (Investigator showing the subject a kitchen knife measuring about (4) inches in length with a wooden handle and a striped T-shirt with blood stains) can you identify this (sic)? A That is the very same knife sir I used in stabbing JENNY BANGUlS and that was the T-shirt I wore during the incident. Q Do you have any standing grudge with the said JENNY? A No sir, for I only stabbed her when she slapped me after I woke her up at their residence where she was sleeping alone. Q You mean to say that you just stabbed her because she slapped you when you woke her up? A Yes sir, and I was not at my right sense for I was under influence of liquor and the marijuana I took. Q After you have stabbed her, where did you go? A I went to watch television at the residence of one Alias Ma at Saypon, Crossing Bayabas, Toril, Davao City and I only knew that the said JENNY BANGUIS was dead the morning after and I was apprehended by the Police and was brought to this office. Q I have no more to ask, do you have something more to say in investigation? A No more sir. Q Are you willing to affix your signature in this statement signifying veracity to the best of your knowledge and belief ? A Yes sir, . . . .
7

Whereupon, an information was filed against Aballe, charging him with homicide 8 penalized under Article 249 of the Revised Penal Code. At his arraignment on April 9 13, 1981, he pleaded not guilty. He also disavowed his extrajudicial confession on the ground that it was obtained through coercion and in the absence of counsel. Aballe's repudiation of his earlier confession notwithstanding, the trial court convicted 10 the accused of the crime of homicide. In this petition for review on certiorari, Aballe contends that the trial court erred in giving full weight to his extrajudicial confession taken during custodial investigation and in imposing a penalty which was not in accordance with law. The argument that Aballe's extrajudicial admission should have been disregarded by the lower court for having been obtained in violation of Aballe's constitutional rights is well taken. Throughout the custodial interrogation, the accused's parents and relatives were almost always around but at no stage of the entire proceedings was it shown that the youthful offender was ever represented by counsel. Since the execution of the 11 extrajudicial statement was admittedly made in the absence of counsel, whether de oficio or de parte, and the waiver of counsel was not made with the assistance of counsel as mandated by the provisions of Section 20, Article IV of the 1973 12 Constitution, said confession should have been discarded by the lower court. Indeed, equally inadmissible is the kitchen knife recovered from Aballe after his capture and after the police had started to question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirmed interrogation and 14 must consequently be disallowed. The bloodstained T-shirt, however, is admissible, 15 being in the nature of an evidence in plain view which an arresting officer may take and introduce in evidence. The prevailing rule in this jurisdiction is that "an officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, 16 or which may be used in evidence in the trial of the cause . . ." But even with the exclusion of the extrajudicial confession and the fatal weapon we agree with the trial court that the guilt of the accused has been established beyond reasonable doubt. It is well to note that even before the taking of the extrajudicial confession, the accused, upon being picked up in the morning of November 8, 1980 as he was coming out of the communal bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to positively link the accused to the aforesaid killing. His testimony reads in part: Q: In the morning of November 8, 1980, where were you at that time?
13

77

A: At the police station. Q: And could you tell us of any unusual incident? A: The father of the deceased came to the office and he told us that he suspected somebody whom he observed to be suspicious so we responded immediately to the call of assistance of the father and went back to the scene of the incident and asked for the whereabouts of the person whom he confided to us the name. Q: And what did you find out? A: Somebody told us that the subject was still in a common bathroom so I posted myself outside the bathroom. Q: This subject you are referring to Sgt. Marante, who is he? A: Peter Paul Aballe. xxx xxx xxx Q: And after finding out that . . . ah, by the way, where was the bathroom? A: It was a common bathroom located just a few meters away from infront of his house. xxx xxx xxx Q: And when you found out that the subject was still in the bathroom what did you do? A: I waited until he came out.

Q: What happened next? A: I saw bloodstains in his T-shirt and I pointed to the bloodstain and he tried to cover it and I notice again that he had a swollen knuckle and I asked him what is this and then he broke down, held my hand, knelt down and confessed that he was the one who killed the victim and I said you stop that because whatever you will say now might led (sic) you to jail and he continued and so I asked him where is (sic) his parents and the mother was nowhere to be found and I asked for his relatives and they accompanied him to the police station. At the police station the mother later arrived and I told her that your son confessed to the commission of the crime. Q: And in the station what did you do per your procedure? A: As I was appraising (sic) him or asking him in front of her (sic) mother I still repeated the same thing. I appraised (sic) him if he needs a lawyer and he said he does not need a lawyer because he just wanted to tell the truth. And in the course, I called the desk officer to record what he mentioned as to the commission of the crime. Q: Aside from the admission of the accused in this case what other physical objects of the crime were you able to recover? A: I was able to recover the fatal weapon, the knife. Q: Where? A: From the house of the accused. Q: Who gave it to you? A: The accused himself. Q: What else?

Q: And did that person come outside? A: The T-shirt with bloodstain. A: Yes, sir. Q: Where is the knife now? Q: Is he the accused? A: In the possession of the desk officer in Toril. A: Yes, sir. Q: And also the T-shirt?

78

A: Yes sir. Q: So after interviewing the accused, what other procedure followed? A: The accused was indorsed to the office investigator to take down the statement of said accused. xxx xxx xxx Q: When did you apprehend the accused, while he was inside or already outside the bathroom? A: He was coming out. xxx xxx xxx Q: What was he wearing? A: T-shirt with bloodstain on the breast that is why I asked him immediately what is this and I pointed to the bloodstain. Q: Mr. Marante you immediately asked or rather you informed the accused immediately of the death of Jennie Banguis after getting out of the bathroom? A: He confessed to me. Q: You just answer the question, did you inform him? A: No, I did not. Q: So without informing him about it as you said he immediately confessed. A: Yes, sir. Q: At that time were you in your police uniform? SO ORDERED. A: No, I was in civilian.

Q: Without even introducing yourself at that time is was only after bringing the accused to the police station did he know that you were a Deputy District Commander of the police in Toril? A: Probably yes.
17

"The declaration of an accused expressly acknowledging his guilt of the offenses 18 charged may be given in evidence against him." The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case 19 it must be given in its substance. (23 C.J.S. 196) Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an 20 ordinary manner, whereby the accused orally admitted having slain the victim. The penalty decreed by the lower court must however be modified. The killing of Jennie is mitigated by minority (the accused was born on June 29, 1963), but it is aggravated by dwelling since Jennie was fatally stabbed while in her parents' house, a fact overlooked by the trial court. Not having been alleged in the information, dwelling is considered generic and cannot therefore offset minority which is a privileged mitigating circumstance. The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. For being only 17 years, 4 months and 8 days of age at the time of the commission of the offense, the penalty next lower than that prescribed by law shall be imposed on the accused but always in the proper period. With the aggravating circumstance of dwelling, the penalty is imposable in its maximum period or from ten 21 (10) years and one (1) day to twelve (12) years or prision mayor maximum. Applying the Indeterminate Sentence Law, the range of the penalty next lower is from six (6) months and one (1) day to six (6) years of prision correccional. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED with the penalty modified to an indeterminate sentence of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. The civil indemnity is increased to P30,000.00 in accordance with recent jurisprudence. Costs against the accused Peter Paul Aballe.

79