Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos.

138934-35 January 16, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANTHONY ESCORDIAL, accused-appellant.

MENDOZA, J.:

These cases are before this Court for review from the decision,1 dated February 26, 1999, of the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant Anthony Escordial guilty of robbery with rape and sentencing him to death and to pay private complainant Michelle Darunday the amounts of P3,650.00 representing the amount taken by him, P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs. In Criminal Case No. 97-18117, the information against accused-appellant charged him with the crime of rape committed as follows: That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused armed with a deadly weapon, a knife, by means of force, violence and intimidation, did, then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant Michelle Darunday y Jintula, against the latter's will. All contrary to law and with the aggravating circumstance that the said offense was committed in the dwelling of the said party during nighttime while [she] was asleep inside her room. Act contrary to law.2 In Criminal Case No. 97-18118, the information charged accused-appellant with robbery with rape as follows: That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a deadly weapon, a knife, with intent of gain and by means of violence and intimidation on the person, did, then and there willfully, unlawfully and feloniously take from Michelle Darunday y Jintula the sums of P3,650.00, belonging to said offended party and [on] the occasion thereof have carnal knowledge with the complainant Michelle Darunday y Jintula, against her will, and inside her room wherein she was temporarily residing as a boarder. All contrary to law and with aggravating circumstance that the said offense was committed inside the dwelling of the offended party and during nighttime the latter not having given provocation for the offense. Act contrary to law. 3 When arraigned on February 25, 1997, accused-appellant pleaded not guilty to the charges, whereupon the two cases were jointly tried. The prosecution presented eight witnesses, namely, Jason Joniega, Mark Esmeralda, Erma Blanca,4 Dr. Joy Ann Jocson, PO3 Nicolas Tancinco, Leo Asan, Ma. Teresa Gellaver, and Michelle Darunday. Their testimonies are as follows: Jason Joniega and Mark Esmeralda testified that at around 8 o'clock in the evening of December 27, 1996, they and Mark Lucena were playing inside a jeepney parked in front of a boarding house owned by Pacita Aguillon 5 at No. 17 Margarita Extension, Libertad St., Purok Amelia 2, Barangay 40, Bacolod City. As one of them hit his head on the rails of the jeepney, the boys were told by a man sitting inside the jeepney to go home lest they would meet an accident. The man was later identified by Jason Joniega and Mark Esmeralda as accused-appellant.6 Living in a boarding house in front of which the jeepney was parked were Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver. They stayed in a bedroom on the ground floor. That same night, December 27, 1996, Teresa went to sleep at around 9:30 p.m., while Michelle and Erma watched television for a while before going to bed. They slept beside each other on two beds placed side by side, with Teresa nearest the wall, Michelle in the middle, and Erma on the other side. While the three were asleep, Erma was awakened by the presence of a man. The man had his head covered with a t-shirt to prevent identification and carried a knife about four inches long. He warned Erma not to shout or he would kill her. He then asked Erma where her money was, and the latter pointed to the wall where she had hung the bag which contained her money. Michelle, who by then was already awake, told Erma to give the man her money so he would leave. Erma gave the man P300.00, but the latter said to give him all her money. He told Erma that he would

look for more money and, if he found more, he would kill her. For this reason, Erma gave the rest of her money. Afterwards, she was told to lie on her side facing the wall. The man then turned to Michelle and Teresa. Michelle gave him her money, but Teresa said her money was in the other room. However, she was not allowed to leave the bedroom. The man was able to get P500.00 from Erma and P3,100.00 from Michelle. After getting their money, the man gave a t-shirt to Erma to blindfold Teresa and another to Michelle to blindfold Erma. He blindfolded Michelle himself and then began touching her in different parts of her body. He ordered her to take off her t-shirt, threatening to kill her if she did not do as he commanded. He then went on top of Michelle and tried to insert his penis into her vagina. As he had difficulty doing so, he instead inserted his two fingers. He tried once more to insert his penis, but again failed. The man then rose from the bed and took some soapy water, which he proceeded to insert into Michelle's vagina. He finally succeeded in inserting his penis into Michelle's vagina. Michelle felt great pain and pleaded with the man to stop, but the man paid no heed, and only stopped after satisfying his lust. Michelle said that although she was blindfolded and could not see, she could feel that the man had no cover on his face when he was raping her. She felt that his chest was rough and had some scars. When he placed her hands on his nape, she felt that it was also rough. On the other hand, Erma claimed she was able to see through her blindfold and that she saw the man's face because of the light coming from the lamp post outside the boarding house. Their bedroom window had panes through which the light filtered in. After he had finished raping Michelle, the man sat on the bed and talked to the three women. He told Michelle that he used to make catcalls at her and called her a beautiful girl whenever she passed by his place but Michelle had ignored him. He told them that he was from Hinigaran, but later took back his statement when Teresa told him that she was from Binalbagan, which was near Hinigaran. Michelle then told him that she worked at the City Engineer's Office and graduated from the Central Mindanao University. The man cussed when he learned that Michelle was from Mindanao. As he spoke to Michelle, he leaned over the bed and mashed the breasts of Erma and Teresa. After a while, the man told Michelle he wanted to have sex with her again. Michelle pleaded with him, but the man threatened to call his companions and said it would be worse for her if his companions would be the ones to rape her. He ordered Michelle to lie on her stomach and then inserted his penis into her anus. When he was through, he gave Michelle a blanket to cover herself and returned to her a pair of earrings which he had taken from her. He then left, but not before warning the women not to report the matter to anyone or he would kill them.7 Mark Esmeralda testified that he was in his bedroom on the second floor of their house, toying with a flashlight, when he saw from his bedroom window a man wearing denim shorts coming out of the boarding house. It was around 12:30 in the morning then. The man was nibbling something. Mark saw the man jump over the fence. After 30 minutes, Mark went down from his room and told his parents what he had seen. His parents then went out to check what had happened. Mark identified accused-appellant as the man he saw that night.8 Michelle, Erma, and Teresa were so frightened that they were not able to ask for help until 30 minutes after the man had left. They told their neighbor, Tiyo Anong, that a man had come to the house and robbed them. They also called up Allan Aguillon, the son of the owner of the boarding house, who in turn reported the incident to the police. When the policemen arrived, they asked Michelle to describe the assailant, but she told them that she could only identify his voice and his eyes. Accompanied by the police, the three women looked for the man around the Libertad area, but they did not find him. Michelle, Erma, and Teresa were taken to the police station at Bac-Up 6 for investigation. But, at Michelle's request, Erma and Teresa did not tell the others that Michelle had been raped by their attacker. Upon returning home, Michelle found her aunt and uncle. She embraced her aunt and told her about her ordeal. Michelle was again taken to the police headquarters, where she was referred to the Women's Desk to report the rape. They were able to go home to the house of Michelle's aunt at around 5 to 6 o'clock in the evening. 9 PO3 Nicolas Tancinco, one of the policemen who responded to the report shortly after the commission of the crime, also testified for the prosecution. He said that the assailant was described to him as wearing long hair and having a rough projection on the back of his neck, small eyes, a slim body, and a brown complexion. Later on, Michelle

Darunday, accompanied by Allan Aguillon, returned to the police station to report the rape committed against her. Tancinco entered her complaint in the police blotter and referred Michelle to the Women's Desk. In the morning of December 28, 1996, Tancinco returned to the boarding house. He found that the intruder was able to gain entry to the house through the window of the bathroom. He noticed that the room beside those of the three women had been ransacked, with the cabinets opened and the clothes in disarray. The following day, on December 29, 1996, Tancinco went around Margarita Extension and learned about the children playing on the street around the time the intruder entered the boarding house. He was told by Mark Esmeralda and Jason Joniega that they saw a man inside the jeepney where they were playing at the time of the incident. Tancinco was likewise informed by Esmeralda that the person he saw inside the jeepney was the same person he saw coming out of the boarding house later that night. According to Tancinco, the children said that they could identify the man if he was shown to them. At around 8 o'clock that evening, Tancinco questioned a certain Tiyo Anong and Ramie about the identity of the suspect. Ramie said that the description of the suspect fitted that of a worker at a caf called Coffee Break Corner, about two houses away from the boarding house. Thus, on January 2, 1997, Tancinco and some companions proceeded to the Coffee Break Corner and interviewed the security guard, who told them that a certain Fidel Hinolan owned the caf. When interviewed by Tancinco and his companions, Fidel Hinolan told them that accused-appellant was his helper and that the latter had gone home on December 27, 1996 to Barangay Miranda, Pontevedra, Negros Occidental. Based on the information furnished by Hinolan, Tancinco and his fellow police officers, Michelle Darunday, Allan Aguillon, and Pacita Aguillon went to Barangay Miranda, Pontevedra, Negros Occidental at around 10 o'clock in the morning of January 3, 1997 and asked the assistance of the police there to locate accused-appellant. PO2 Rodolfo Gemarino asked one of his colleagues at the Pontevedra police to accompany Tancinco and his companions. They found accused-appellant at the basketball court and "invited" him to go to the police station for questioning. 10 Michelle Darunday remained at the Pontevedra police station. When accused-appellant was brought there, he saw Michelle and blushed. Michelle looked at him and recognized him as the man who had robbed and raped her on December 27, 1996. Accused-appellant was asked to take off his t-shirt. Michelle said that she just kept quiet while accused-appellant tried to talk to her. However, according to Tancinco, Michelle confirmed to him that accusedappellant was the man who had attacked her, identifying him through a rough projection, or a keloid, on the back of his neck and his voice. At the time of his arrest, accused-appellant had a short haircut. He was transferred to the Bacolod police station for further investigation.11 Allan Aguillon took a picture of accused-appellant (Exh. F) at the Pontevedra police station.12 At the Bacolod police station, Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda were asked whether accused-appellant was the same person they saw on the night of the incident. They were taken one by one to the jail cell and asked to point to the person that they had seen that night. They picked accused-appellant out of four people who were inside the jail cell.13 Michelle Darunday executed an affidavit, dated January 4, 1997, identifying accused-appellant as the person who had robbed and raped her.14 She testified that she and her friends had gone to the Coffee Break Corner sometime in September or October 1996. On the way home, she was approached by accused-appellant. He asked Michelle what her name was, and she gave it to him, albeit reluctantly. She usually passed by the said caf when going home and accused-appellant would often whistle at her and call her a beautiful girl. Michelle had simply ignored him and gone on her way.15 Dr. Joy Ann C. Jocson, Medical Officer IV of the Bacolod City Health Department, examined Michelle Darunday and made the following findings and remarks: 1. Abrasions noted on the right and left Labia Minora and on the posterior fourchette. 2. New Lacerations noted on the hymenal ring on the following location 1 o'clock position, 3 o'clock position, and 9 o'clock position. 3. Vaginal introitus admits 2 fingers but with pain. 4. Presently, patient with menstruation.

In my opinion, the patient would need a urinalysis (since she complains of pain upon urination) and possible Medical treatment if necessary, for about 7 to 10 days. And if necessary, psychiatric evaluation & management is also recommended.16 Testifying in court, Dr. Jocson said there was penetration of the victim's vagina as shown by the fact that the hymenal rim had lacerations at the 1, 3, and 9 o'clock positions. Since the edges of the lacerations were sharp, she concluded that these lacerations were less than a week old at the time of the examination. According to Dr. Jocson, these were caused by abrasions due to force or pressure applied on the vaginal area. When asked during crossexamination whether the victim had abrasions or contusions on her body at the time of her examination, Dr. Jocson said that she could not remember. She could not remember either whether there was sperm in the victim's vagina when she examined the latter. She said that no sperm specimen had been taken from the victim. She testified that it could not be determined how many times the victim had previously engaged in sexual intercourse because this would depend on the elasticity of the victim's hymen. She opined, however, that it would be less than 10 times in the case of the victim. Dr. Jocson stated it was possible the victim agreed to have sexual intercourse voluntarily based on the lack of marks of violence on the latter, although it was also possible that she was merely forced to have sex because she was threatened. On re-direct examination, she stated it was possible that seminal fluid was not found on the victim's private parts because the victim was having her monthly period. She said the lacerations on the victim's vagina would result whether the sexual intercourse was voluntary or involuntary on the part of the victim.17 Leo Asan, an employee at the City Health Office in Bacolod, testified that the medical certificate presented by the prosecution, which was undated, was a faithful reproduction of what was written by Dr. Joy Ann Jocson on January 3, 1997 in the logbook.18 The defense presented as its witnesses Elias Sombito, Aaron Lavilla, PO2 Rodolfo Gemarino, Ricardo Villaspen, Nestor Dojillo, accused-appellant Anthony Escordial, Jerome Jayme, and Lucila Jocame. These witnesses gave a different account of the events that led to the arrest of accused-appellant. Their version is as follows: Accused-appellant testified that he was employed by Fidel Hinolan on January 21, 1996. He said he started on August 6, 1996 as a dishwasher and was later made cashier. Accused-appellant said that he went home to Pontevedra, Negros Occidental on December 24, 1996, arriving there at 2 o'clock in the afternoon. Hinolan paid him P500.00, which he gave to his mother as his Christmas gift. He dropped by the house of Aaron Lavilla. At 5:30 p.m., he returned to Coffee Break Corner in Bacolod City. In the evening of December 26, 1996, accused-appellant asked permission from Hinolan to go home to Pontevedra to stay there until January 1997 as the restaurant would be closed anyway during this period. Hinolan gave accusedappellant his permission and paid the latter his salary of P600.00 as well as a P200.00 bonus. Hence, at 2 o'clock in the afternoon of December 27, 1996, accused-appellant took the bus home, arriving in Barangay Miranda, Pontevedra, Negros Occidental an hour later. He went straight home to his mother and gave her P600.00, telling her to use P400.00 for New Year's Day.19 Accused-appellant also saw Elias20 Sombito, who told him to look for Aaron Lavilla because a cockfight derby was being held that day in their barangay. Accused-appellant, therefore, looked for Aaron Lavilla and found him at the basketball court. Aaron's mother asked accused-appellant to help her bring to the cockpit some cases of beer which she planned to sell there. Accused-appellant obliged. At the cockpit, Elias Sombito asked him to take care of his cocks. Accused-appellant asked Aaron Lavilla to go with him to the cockpit, but the latter continued playing basketball and only proceeded to the cockpit after the game was finished. The derby ended at around 9 o'clock in the evening. At about 10 o'clock that night, accused-appellant and Aaron Lavilla went to the latter's house and slept there. The following day, December 28, 1996, accused-appellant helped Aaron Lavilla's mother with the household chores, cutting the grass and feeding the cocks. He stayed in Barangay Miranda until January 3, 1997.21 Accused-appellant's testimony as to his whereabouts from December 27, 1996 to January 3, 1997 was corroborated by Elias Sombito22 and Aaron Lavilla.23

As to the circumstances of accused-appellant's arrest, PO2 Rodolfo Gemarino and Ricardo Villaspen testified that at around 11 o'clock in the morning of January 3, 1997, three members of the Bacolod police, led by PO3 Nicolas Tancinco, went to the headquarters of the Pontevedra police to ask for help in locating a person named Anthony Escordial, said to be a resident of Barangay Miranda, Pontevedra, Negros Occidental, who was wanted in connection with a case for robbery with rape. Although Tancinco and his companions showed their mission order to Gemarino, they did not show a warrant for accused-appellant's arrest. Nonetheless, Gemarino told PO2 Gella of the Pontevedra police and Ricardo Villaspen, the tanod commander of Barangay Miranda, to help the Bacolod policemen look for accused-appellant. The group left the police station, although Tancinco's other companions, Michelle Darunday and Pacita Aguillon, stayed in the headquarters.24 The arresting party, composed of Tancinco, PO2 Gella, and Villaspen, proceeded to the house of accused-appellant in Barangay Miranda, but the latter was not there. They found accused-appellant at the basketball court watching a game. After informing him that he was a suspect in a robbery case, the group invited accused-appellant to go with them to the police headquarters. Nestor Dojillo, the barangay captain of Barangay Miranda, was at the police station. He testified that when accusedappellant, together with Tancinco and his companions, arrived at the police station, he (Nestor Dojillo) followed them to the investigating room. Inside the room were Michelle Darunday, three members of the Bacolod police, Villaspen, and Gemarino. Gemarino asked Michelle if she could identify accused-appellant as her attacker, but the latter said that she could do so only if she could see a lump on his back. Gemarino told accused-appellant to take off his t-shirt. When accused-appellant did as Gemarino ordered, Michelle looked at his back for identifying marks, while Allan Aguillon took his photograph. Gemarino then asked Michelle whether accused-appellant was her attacker, but she replied that she was not sure because the attacker was wearing a mask when she was raped. The Bacolod policemen requested Gemarino to allow them to bring accused-appellant to Bacolod City as they still had some witnesses who could identify the suspect there. Accused-appellant was allowed to go with them after Dojillo and Gemarino asked the Bacolod policemen not to harm him.25 Dojillo's testimony was corroborated by the testimonies of PO2 Rodolfo Gemarino,26 Ricardo Villaspen,27 and accused-appellant.28 Accused-appellant further testified that on the way to Bacolod City, PO3 Tancinco began beating him and hitting him with the butt of a shotgun to force him to admit liability for the crime. Because accused-appellant refused to do so, he was taken by Tancinco and his companions to a lodging house where he was subjected to torture. Accusedappellant was told to take off his clothes and to lie down. PO3 Tancinco and his companions then proceeded to hit him with a belt. Afterwards, they covered his mouth and took him to the bathroom. Tancinco put a knife to his neck, telling him that he would be killed if he refused to admit that he was the culprit. As he continued to deny liability for the crime, accused-appellant was subjected to further torture. Later on, the driver entered the room and brought with him a child, whose head was covered, who was instructed to identify accused-appellant. The child, however, did not react upon seeing accused-appellant, who was thus brought back to the headquarters where he was again maltreated. Accused-appellant said that he was left alone in his cell and tied to a chair. He also said that at around 8 o'clock that evening, two of the complainants arrived and the police told them to identify accused-appellant as their attacker. But these two complainants just kept looking at accused-appellant and even asked the policemen if he was the suspect. After the two women had left, PO3 Tancinco took accused-appellant to a house so that he could be identified by another complainant. But this complainant likewise said that he was not the assailant, as the latter had a heavier build and longer hair. Accused-appellant was returned to the police headquarters. At the headquarters, PO3 Tancinco talked to accused-appellant and told him that he would help him if accusedappellant confessed to the crime. But accused-appellant again refused because he said he had not done anything wrong. The police then began beating him up again. PO3 Tancinco burnt accused-appellant's lips and tongue with a lighted cigarette.29 At around 12:00 noon of January 6, 1997, Gemarino, Dojillo, and Villaspen, together with accused-appellant's grandfather, a certain Inspector Tamayo, and reporters from Bombo Radyo, went to the Bacolod police station to visit accused-appellant. They found him tied to a chair. When they entered the cell, accused-appellant, thinking that they were members of the Bacolod police, held up his hands and asked for pity. The visitors assured accusedappellant that they would not hurt him. Accused-appellant had a limp because his feet were injured. For this reason,

Dojillo and his companions asked the Bacolod police to let them take accused-appellant to the hospital for treatment. Accused-appellant was thus brought to the provincial hospital in Bacolod for x-ray and medical treatment. He was taken back to the police station thereafter.30 Lucila Jocame, Records Officer of the Corazon Locsin Montelibano Memorial Regional Hospital (CLMMH), identified in court31 the medical certificate (Exh. 12) issued by the said hospital, showing the injuries sustained by accusedappellant, to wit:
# 5 CM LINEAR ABRASION WITH CONTUSION HEMATOMA LEFT SCAPULAR AREA. # 1 CM LINEAR ABRASION RIGHT SCAPULAR AREA. # 4 x 2 CM CONTUSION HEMATOMA LEFT LATERAL CHEST LEVEL OF T12. # 2 x 2 CM CONTUSION HEMATOMA M/3 RIGHT LEG ANTERIOR ASPECT. # 2 x 4 CM CONTUSION HEMATOMA RIGHT KNEE LATERAL ASPECT. # 3 x 3 CM SWELLING AND TENDER LEFT ANKLE. # 1 x 1 CM CONTUSION HEMATOMA D/3 RIGHT LEG POSTERIOR ASPECT. # 1 x 1 CM CONTUSION HEMATOMA M/3 RIGHT THIGH POSTERIOR ASPECT. # 2 x 2 CM CONTUSION HEMATOMA RIGHT PERI AURICULAR AREA. X-RAY # 280 dated January 6, 1997: SKULL APL: CHEST BUCKY RIGHT THIGH: APL: RIGHT AND LEFT FOOT APO. 32 "No Radiographic evidence of fracture in this examination."

The last witness presented by the defense was Jerome33 Jayme, General Manager of Royal Express Transport, Inc., who testified that the last bus trip from Kabankalan to Bacolod on December 27, 1996 left at 6 o'clock in the evening. The trip from Kabankalan to Barangay Miranda, Pontevedra, Negros Occidental would take one hour. On crossexamination, Jayme stated that the said bus would reach Bacolod City by 7:40 to 8:00 p.m. if it left Kabankalan at 6:00 p.m. His company's buses were not allowed to pick up passengers along the way to Bacolod City because of the incidence of highway robbery. Jayme identified in court a certification (Exh. 12-a) he issued which stated that the last bus trip of their company on December 27, 1996 was at 6:00 p.m.34 On February 26, 1999, the trial court rendered a decision, the dispositive portion of which stated: WHEREFORE, it is the well-considered view of this court, after a thorough, painstaking and exhaustive review and examination of the evidence adduced in this case, that the accused ANTHONY ESCORDIAL y GALES, is GUILTY, beyond a reasonable doubt of the crime of Robbery with Rape, punished under Art. 294, paragraph 1 of the Revised Penal Code, as amended. The commission of the crime was attended by three aggravating circumstances of nighttime, that the crime was committed in the dwelling of the offended party, and that craft, fraud and disguise were employed by the accused in the commission of the crime under paragraphs 3, 6, and 14 of Art. 14 of the Revised Penal Code. There is no mitigating circumstance. Applying Article 63, paragraph 1, the accused is hereby sentenced to the maximum penalty of DEATH. He is also condemned to pay private complainant the sum of P3,650.00, representing the money taken by the accused; P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs. SO ORDERED.35 Hence this appeal. Accused-appellant contends that: 1. THE COURT A QUO ERRED IN DISREGARDING THE DEFENSE OF THE ACCUSED TO THE EFFECT THAT ANTHONY ESCORDIAL CAN NEVER BE THE ROBBER-RAPIST WHO RAVISHED MICHELLE DARUNDAY ON THAT FATEFUL NIGHT OF DECEMBER 27, 1996, AS THE FORMER (ESCORDIAL) DID NOT HAVE THE QUALITIES, CHARACTER AND EXPERTISE OF THE LATTER (ROBBER-RAPIST). 2. THE COURT A QUO ERRED IN CONCLUDING THAT THE DESCRIPTION OF THE ASSAILANT AS DESCRIBED BY THE COMPLAINANT AND HER WITNESSES FIT WITH THAT OF HEREIN ACCUSED, THE TRUTH OF THE MATTER IS THAT THERE WAS NO DESCRIPTION OF THE ASSAILANT EVER MADE BY ANYBODY PRIOR TO THE "WARRANTLESS ARREST" OF THE ACCUSED. THE AFFIDAVITS OF THE COMPLAINANT AND HER WITNESSES WERE IN FACT DRAFTED, EXECUTED AND SIGNED ONLY SEVERAL DAYS AFTER THE ACCUSED WAS BROUGHT INTO THE CUSTODY OF THE BACOLOD POLICE.

3. THE COURT A QUO ERRED IN DISREGARDING THE TESTIMONIES OF WITNESSES PO2 RODOLFO GEMARINO (DEP. CHIEF OF POLICE OF PONTEVEDRA), BRGY. CAPT. NESTOR DOJILLO (BRGY. CAPT. OF MIRANDA AND THEN MEMBER OF THE SANGGUNIANG BAYAN OF PONTEVEDRA), AND RICARDO VILLASPEN (THEN COMMANDER OF BARANGAY TANOD IN PONTEVEDRA) TO THE EFFECT THAT MICHELLE DARUNDAY FAILED TO IDENTIFY THE ACCUSED DURING THEIR ENCOUNTER IN PONTEVEDRA POLICE STATION. 4. THE COURT A QUO ERRED IN NOT EXCLUDING ALL EVIDENCES, TESTIMONIAL AND DOCUMENTARY, OBTAINED BY THE PROSECUTION DURING THE WARRANTLESS ARREST OF THE ACCUSED AND THE LATTER'S SUBJECTION TO CUSTODIAL INVESTIGATION WITHOUT LETTING HIM KNOW OF HIS CONSTITUTIONAL RIGHTS, PARTICULARLY HIS RIGHT TO COUNSEL OF CHOICE. 5. THE COURT A QUO ERRED IN CONCLUDING THAT PROSECUTION WITNESSES WERE ABLE TO POSITIVELY IDENTIFY THE ACCUSED IN A POLICE LINE UP DESPITE THE FACT THAT OF THE PERSONS BEING LINED UP ONLY THE ACCUSED WAS HANDCUFFED. 6. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES TO THE EFFECT THAT THEY WERE ABLE TO IDENTIFY THE ASSAILANT BY FACE THAT VERY EVENING OF DECEMBER 27, 1996 AMIDST THE IMPOSSIBILITY OF DOING THE SAME, GIVEN THE DISTANCE, THE INTENSITY OF LIGHT, AND THE TERRIFYING SITUATION, WHICH ALL OBSCURE, IF NOT DESTROY, THE CLARITY OF HUMAN MEMORY AND PERCEPTION. 7. THE COURT A QUO ERRED IN CONCLUDING THAT THE DEFENSE FAILED TO SHOW THE IMPOSSIBILITY OF ACCUSED TO GO TO BACOLOD THAT EVENING OF DECEMBER 27, 1996, DESPITE OVERWHELMING EVIDENCE SUBMITTED, BY SIMPLY RELYING ON THE POSSIBILITY OF THE ACCUSED TAKING A CARGO TRUCK FROM PONTEVEDRA TO BACOLOD. 8. THE COURT A QUO ERRED IN CONCLUDING THAT ACCUSED ANTHONY ESCORDIAL HAD MOTIVE TO COMMIT THE CRIME CHARGED BASED ON A WRONG PREMISE THAT THE DEFENSE ALLEGEDLY DID NOT REFUTE THE ALLEGATIONS OF THE COMPLAINANT THAT ACCUSED ATTEMPTED TO BE ACQUAINTED WITH THE COMPLAINANT AND WHISTLED AT THE LATTER SEVERAL TIMES.36 The issues raised by accused-appellant concern (1) the alleged violations of his constitutional rights and the consequent admissibility of the evidence against him and (2) the credibility of the prosecution witnesses. I. Alleged Violations of Accused-appellant's Constitutional Rights A. Accused-appellant questions the legality of his arrest without a warrant. Indeed, PO3 Nicolas Tancinco admitted that he and his companions had arrested accused-appellant without any warrant issued by a judge.37 Art. III, 2 of the Constitution states: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. To implement this provision, Rule 113, 5 of the Revised Rules of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a person only under the following circumstances: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. The cases at bar do not fall under paragraphs (a) or (c) of the aforequoted rule. At the time of his arrest, accusedappellant was watching a game in a basketball court in Barangay Miranda, Pontevedra, Negros Occidental. He was not committing or attempting to commit a crime when he was arrested by the police on that day. Nor was he an escaped prisoner whose arrest could be effected even without a warrant. The question is whether these cases fall under paragraph (b) because the police officers had personal knowledge of facts and circumstances that would lead them to believe that accused-appellant had just committed a crime. The phrase "personal knowledge" in paragraph (b) has been defined in this wise: Personal knowledge of facts in arrests without a warrant under Section 5(b) of Rule 113 must be based upon "probable cause" which means "an actual belief or reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officer making the arrest.38 In these cases, the crime took place on December 27, 1996. But, accused-appellant was arrested only on January 3, 1997, a week after the occurrence of the crime. As the arresting officers were not present when the crime was committed, they could not have "personal knowledge of the facts and circumstances of the commission of the crime" so as to be justified in the belief that accused-appellant was guilty of the crime. The arresting officers had no reason for not securing a warrant. However, the records show that accused-appellant pleaded not guilty to the crimes charged against him during his arraignment on February 25, 1997 without questioning his warrantless arrest. 39 He thus waived objection to the legality of his arrest.40 As this Court has held in another case: [The accused] waived objections based on the alleged irregularity of their arrest, considering that they pleaded not guilty to the charges against them and participated in the trial. Any defect in their arrest must be deemed cured when they voluntarily submitted to the jurisdiction of the court. For the legality of an arrest affects only the jurisdiction of the court over the person of the accused. Consequently, if objections based on this ground are waived, the fact that the arrest was illegal is not a sufficient cause for setting aside an otherwise valid judgment rendered after a trial, free from error. The technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to the culpability of the accused.41 B. Accused-appellant invokes Art. III, 12(1) of the Constitution which provides that "[a]ny 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." He contends that he was subjected to custodial interrogation without being informed of his right to remain silent and to have independent counsel preferably of his choice. Hence, he contends, the trial court erred in not excluding evidence obtained from him during such interrogation for violation of accused-appellant's rights under this provision.1While it cannot be denied that accused-appellant was deprived of his right to be informed of his rights to remain silent and to have competent and independent counsel, he has not shown that, as a result of his custodial interrogation, the police obtained any statement from him whether inculpatory or exculpatory - which was used in evidence against him. The records do not show that he had given one or that, in finding him guilty, the trial court relied on such statement. In fact, accused-appellant testified that at no point, even when subjected to physical torture, did he ever admit committing the crime with which he was charged. In other words, no uncounseled statement was obtained from accused-appellant which should have been excluded as evidence against him.

C. Of greater significance is the fact that accused-appellant was never assisted by counsel, whether of his own choice or provided by the police officers, from the time of his arrest in Pontevedra, Negros Occidental to the time of his continued detention at the Bacolod police station. Although accused-appellant made no statement during this time, this fact remains important insofar as it affects the admissibility of the out-of-court identification of accusedappellant by the prosecution witnesses, namely, Michelle Darunday, Erma Blanca, Ma. Teresa Gellaver, Mark Esmeralda, and Jason Joniega. As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest.42 However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police. An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose.43 During custodial investigation, these types of identification have been recognized as "critical confrontations of the accused by the prosecution" which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings "might well settle the accused's fate and reduce the trial itself to a mere formality."44 We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him.45 Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being "the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality.'"46 Be that as it may, as the defense failed to object immediately when these witnesses were presented by the prosecution or when specific questions regarding this matter were asked of them, as required by Rule 132, 36 of the Rules on Evidence, accused-appellant must be deemed to have waived his right to object to the admissibility of these testimonies.47 Furthermore, the inadmissibility of these out-of-court identifications does not render the in-court identification of accused-appellant inadmissible for being the "fruits of the poisonous tree."48 This in-court identification was what formed the basis of the trial court's conviction of accused-appellant. As it was not derived or drawn from the illegal arrest of accused-appellant or as a consequence thereof,49 it is admissible as evidence against him. However, whether or not such prosecution evidence satisfies the requirement of proof beyond reasonable doubt is another matter altogether. II. Credibility of the Prosecution Witnesses Accused-appellant contends that: (1) he does not possess the character, qualities, and expertise of the assailant who robbed and raped Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver; (2) the records are bereft of any description of the assailant made by these prosecution witnesses prior to his arrest as the affidavits of Darunday, Blanca, Joniega, and Esmeralda were executed only after his arrest; (3) the testimonies of the defense witnesses, namely, PO2 Rodolfo Gemarino, Barangay Captain Nestor Dojillo, and Ricardo Villaspen, show that Michelle Darunday failed to identify accused-appellant when the latter was presented to her at the Pontevedra police station; (4) Tancinco's testimony that Michelle Darunday properly identified accused-appellant at the Pontevedra police station could not be believed as the said witness had motive to testify falsely against accused-appellant; (4) the identification of accused-appellant at the Bacolod police station was tainted because only accused-appellant was handcuffed among the persons presented to the prosecution witnesses; and (5) it was highly improbable for the prosecution witnesses to identify the assailant by face considering the distance, the intensity of light, and the circumstances at the time of the commission of the crime.

A. Jason Joniega50 and Mark Esmeralda51 pointed to accused-appellant as the man they saw on the night of December 27, 1996 and the person they identified inside a jail cell at the Bacolod police station. Erma Blanca, on the other hand, testified that she saw through her blindfold accused-appellant raping Michelle Darunday. She identified accused-appellant in court as their assailant and as the man whom she saw inside the jail cell at the Bacolod police station.52 Ma. Teresa Gellaver53 and Michelle Darunday54 identified accused-appellant as the suspect brought before them at the Bacolod police station and the Pontevedra police station, respectively. The test is whether or not the prosecution was able to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the line-up identification.55 As held inUnited States v. Wade:56
We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455, 83 S Ct 407, "'[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt 221 (1959)." See also Hoffa v United States, 385 US 293, 309, 17 L ed 2d 374, 386, 87 S Ct 408. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any pre-line-up description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.

We now consider whether the testimonies of the prosecution witnesses meet the test as laid down in that case. 1. Michelle Darunday testified that her assailant's face was covered with cloth when he entered the room and that she was blindfolded when she was raped.57 She could thus only see the assailant's eyes, which Michelle described as chinito (chinky),58 although she testified that she could also identify his voice.59 Otherwise, Michelle did not see her attacker. Yet, she testified that she immediately recognized accused-appellant as the assailant when she saw him at the Pontevedra police station. Michelle stated:
PROS. CARDINAL: Madam Witness, a few days thereafter, can you recall any development of your case? WITNESS: That was in January 3, when somebody told us to identify a suspect in the City Hall of Pontevedra. PROS. CARDINAL: Who was with you when you went to Pontevedra? WITNESS: My aunt and my uncle and the police investigators. .... PROS. CARDINAL: Upon arrival at Pontevedra, what happened? WITNESS: We waited for a while because they will find the suspect and I was there in the room of the police sitting. .... PROS. CARDINAL: So, you stayed behind and the policemen pick up the suspect? WITNESS: I and my aunt waited in the police of the policemen, and then later the suspect arrived. PROS. CARDINAL: When that suspect arrived inside the room where you were, can you tell us what was the reaction of the suspect? WITNESS: When the suspect arrived, at first, he was not able to see me because I was behind the desk after the door, and then he was so fresh saying that he was a good man, but when he saw me he blushed and moving his head asking, "Ano ang sala ko sa imo? (What did I do to you?), I did not do anything." But when I looked at his eyes and heard his voice, I was sure that he was the man. PROS. CARDINAL: When that person said, what did I do to you, I did not do anything, what was [your] reaction? WITNESS:

I just looked at him and he was so fresh that he has not done anything, but the policeman said that his case is rape. Then, he was asked to take off his t-shirt and I just looked at him and then later, the policeman asked to borrow the man for investigation and while the policeman was recording, that suspect approached me and told me that, "You do not know me.", and asked, "Do you know me?" PROS. CARDINAL: What was your reaction? WITNESS: I just [kept] quiet but my aunt reacted by saying, "You think you cannot be identified because you covered yourself?" PROS. CARDINAL: And then what did he answer? WITNESS: 60 He just stand outside while we went ahead to go back to our home.

A show-up, such as what was undertaken by the police in the identification of accused-appellant by Michelle Darunday, has been held to be an underhanded mode of identification for "being pointedly suggestive, generat[ing] confidence where there was none, activat[ing] visual imagination, and, all told, subvert[ing] their reliability as [an eyewitness]."61 In these cases, Michelle knew that she was going to identify a suspect when she went to Pontevedra. Upon seeing accused-appellant escorted by Tancinco and his colleagues in the Bacolod police, she knew that he was the suspect she was supposed to identify. When accused-appellant was thus shown to her, there could be no doubt as to what was expected of her. Further aggravating the situation were the reply of the policeman to accusedappellant's protestations of innocence that he was being held for rape and Michelle's aunt's obvious assumption of his guilt. Michelle's immediate conclusion, therefore, that accused-appellant was her attacker was understandable. As has been explained: Social psychological influences. Various social psychological factors also increase the danger of suggestibility in a lineup confrontation. Witnesses, like other people, are motivated by a desire to be correct and to avoid looking foolish. By arranging a lineup, the police have evidenced their belief that they have caught the criminal; witnesses, realizing this, probably will feel foolish if they cannot identify anyone and therefore may choose someone despite residual uncertainty. Moreover, the need to reduce psychological discomfort often motivates the victim of a crime to find a likely target for feelings of hostility. Finally, witnesses are highly motivated to behave like those around them. This desire to conform produces an increased need to identify someone in order to show the police that they, too, feel that the criminal is in the lineup, and makes the witnesses particularly vulnerable to any clues conveyed by the police or other witnesses as to whom they suspect of the crime. . .62 Coupled with the failure of Michelle to see the face of her assailant, the apparent suggestiveness of the show-up places in doubt her credibility concerning the identity of accused-appellant. The possibility that her identification of accused-appellant was merely planted in her mind both by the circumstances surrounding the show-up and her concomitant determination to seek justice cannot be disregarded by this Court. Michelle's identification of accusedappellant is further rendered dubious by the disparity between her description of her attacker and the appearance of accused-appellant. In her affidavit, dated January 4, 1997, Michelle described her attacker as follows: P Sadtong tinion nga ginahimoslan ikaw sining suspetsado nakita mo bala ang iya hitsura? (At the time that you were abused by the suspect, did you see what he looked like?) S Wala, kay tungod nga may tabon ang akon mata, apang matandaan ko guid ang iya tingog, mata, ang iya malaka nga biguti, ang structure sang iya lawas, ang supat sang iya kamot, ang iya bibig, ang madamo nga "kelloid" sa iya lawas kag ang iya baho. (No, because I was blindfolded but I can remember his voice, his eyes, his thin mustache, his body structure, the smoothness of his hands, his mouth, and thenumerous keloids on his body, and his smell.)63 Michelle's affidavit clearly indicated that she felt the keloids on the back of her assailant when the latter was raping her. But, when she testified in court, Michelle admitted that she did not see keloids on accused-appellant although she said that his skin was rough.64 This is corroborated by the testimony of PO2 Rodolfo Gemarino who said that he did not see any lump on the back of accused-appellant when he tried to look for it.65 In fact, it would appear that

accused-appellant had no such markings on his back but had only small patches which could not even be readily seen.66 In dismissing the disparity between accused-appellant's appearance and Michelle's description of her attacker, the trial court dwelt on the apparent roughness of accused-appellant's skin and the probability that Michelle might have felt only the arch of the spinal cord of her assailant.67 However, mere speculations and probabilities cannot take the place of proof beyond reasonable doubt required by law to be established by the prosecution. 68 Michelle Darunday was a civil engineer in the City Engineer's Office in Bacolod City. Considering her educational attainment and professional status, it is improbable that she was mistaken as to what she felt on her attacker's back at the time she was raped. A mere protrusion on the back of the neck of the assailant could not possibly have been mistaken for keloids. Another circumstance casting doubt on the credibility of Michelle's identification is her lack of reaction upon seeing accused-appellant at the Pontevedra police headquarters. Defense witnesses PO2 Rodolfo Gemarino, 69 Ricardo Villaspen,70 and Nestor Dojillo71 testified that Michelle failed to see any identifying marks on accused-appellant and that she showed hesitation in pinpointing the latter as the culprit. With Gemarino being a policeman, Villaspen a barangay tanod, and Dojillo a barangay captain, these witnesses were all, in one form or another, connected with law enforcement. The prosecution having failed to ascribe any ill motive on the part of these defense witnesses, who are without doubt respectable members of the community, their testimonies that Michelle showed no reaction in seeing accused-appellant at the show-up in Pontevedra police station deserve greater credence than the testimony of Tancinco that Michelle confirmed to him that accused-appellant was her attacker. The defense evidence established that Tancinco was an abusive policeman who had made up his mind as to accused-appellant's guilt and who had no compunction in doing whatever means necessary, legal or illegal, to ensure his conviction. We note further that the testimonies of these defense witnesses coincide with Michelle's testimony that she kept quiet when she saw accused-appellant at the Pontevedra police station on January 3, 1997. This being so, her reaction to the show-up at the Pontevedra police station upon seeing accused-appellant, the man who supposedly raped her twice in an ignominious manner, is contrary to human nature.72 It may be that she was filled with rage so that upon seeing accused-appellant she was unable to show any emotion. But it is equally possible that, as defense witnesses Gemarino, Villaspen, and Dojillo testified, Michelle did not immediately recognize accused-appellant as her attacker and only pointed to him as her assailant upon promptings by the police and her companions. "[W]here the circumstances shown to exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence, while the other or others may be compatible with the finding of guilt, the court must acquit the accused: for the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction." 73 For the foregoing reasons, we find both the out-of-court and in-court identification of Michelle Darunday to be insufficient to establish accused-appellant as the person who robbed and raped her and her companions on the night of December 27, 1996. 2. Erma Blanca testified that she saw through her blindfold the assailant when he was raping Michelle Darunday. She identified accused-appellant in open court as the person whom she saw that night.74 Certain circumstances in these cases lead us to believe, however, that Erma Blanca did not really see the assailant and that her testimony otherwise was a mere afterthought. These are: First, the police blotter, dated December 28, 1996,75 prepared by PO3 Nicolas Tancinco, referred to an "unknown suspect" who allegedly entered the boarding house of Pacita Aguillon and robbed Ma. Teresa Gellaver and Michelle Darunday. This casts doubt on Erma's credibility because she testified that she had known accused-appellant for a long time prior to December 27, 1996. During her testimony, Erma claimed that accused-appellant approached her and Michelle sometime in September or October 1996 to ask for the name of the latter. In addition, Erma said she had seen accused-appellant whenever he passed by their boarding house or stayed in her Tiyo Anong's store nearby.76 It would thus seem that Erma was familiar with accused-appellant. But, if she had actually seen him on that night of the robbery, why did she not report this to the police immediately? Being a victim herself, Erma had every motive to reveal the identity of the robber that same night the crime was committed. But she did not do so. We are therefore left with the conclusion that the police blotter referred to an unknown suspect because the identity of the assailant had not been determined at the time the crime was reported to the police.

Second, Erma was not the one who accompanied the Bacolod police when the latter sought accused-appellant in Pontevedra, Negros Occidental. PO3 Tancinco testified that he took Michelle Darunday along with his other companions when they went to Pontevedra, Negros Occidental so that she could identify if the suspect was the person who had raped her. But Michelle admitted that she did not see the face of the assailant. Erma Blanca, who claimed she recognized accused-appellant, was not taken along by the police to Pontevedra, Negros Occidental. Why not? Why did they bring instead Michelle Darunday? Third, the affidavit of Erma Blanca77 was prepared on January 4, 1997, a day after the arrest of accused-appellant. This delay belies Erma's claim that she saw the assailant through her blindfold on the night of the incident. For the normal reaction of one who actually witnessed a crime and recognized the offender is to reveal it to the authorities at the earliest opportunity.78 In these cases, the crime took place on December 27, 1996, but Erma Blanca executed her affidavit only on January 4, 1997, more than a week after the occurrence of the crime. Delay in reporting the crime or identifying the perpetrator thereof will not affect the credibility of the witness if it is sufficiently explained.79 But here, no explanation was given by the prosecution why Erma Blanca executed her affidavit one week after the crime took place and one day after accused-appellant's arrest. The most likely explanation for such lapse is that Erma Blanca was used merely to corroborate what would otherwise have been a weak claim on the part of Michelle Darunday. The same may be said of the testimonies of Jason Joniega and Mark Esmeralda. B. Accused-appellant's testimony that he was at the cockpit in Barangay Miranda, Pontevedra, Negros Occidental on December 27, 1996 is corroborated by Aaron Lavilla,80 Elias Sombito,81 and Nestor Dojillo.82 Considering the improbabilities and uncertainties surrounding the testimonies of the prosecution witnesses, the defense of alibi by accused-appellant deserves credence.83 To summarize, we find that the prosecution failed to meet the degree of proof beyond reasonable doubt required in criminal cases. The acquittal of accused-appellant is thus in order. WHEREFORE, the decision of the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant guilty of robbery with rape and sentencing him to death, is hereby REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt. Accused-appellant is ordered immediately released unless there are other legal grounds for his continued detention.1wphi1.nt The Director of Prisons is directed to implement this Decision and to report to the Court immediately the action taken hereon within five (5) days from receipt hereof. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

EN BANC [G.R. Nos. 135957-58. September 17, 2002]

PEOPLE OF THE PHILIPPINES, appellee, vs. GUILLERMO SAMUS, appellant.

DECISION PANGANIBAN, J.:

While it is true that the confessions of appellant were made without benefit of counsel, they are still admissible in evidence because of appellants failure to make timely objections before the trial court. If only the defense had proffered them on time, the prosecution could have been warned of the need to present additional evidence to support its case. To disregard a major portion of the prosecutions case at a late stage during an appeal goes against the norms of fundamental fairness. Indeed, justice is dispensed not only for the accused, but also for the prosecution. Be that as it may, and even if we now affirm appellants conviction for murder, we do not, however agree with the trial courts imposition of the death sentence, because the proven aggravating circumstance of dwelling was not alleged in the Information.

The Case For automatic review by this Court is the Decision[1] dated October 8, 1998, issued by the Regional Trial Court of Calamba, Laguna, Branch 36, in Criminal Case Nos. 5015-96-C and 5016-96-C. The trial court found Guillermo Samus guilty beyond reasonable of two counts of murder. The decretal portion of its Decision reads as follows: WHEREFORE: A. With respect to Criminal Case No. 5015-96-C for the killing of Dedicacion Balisi, the Court finds the accused guilty beyond reasonable doubt of the crime of Homicide and is hereby sentenced to suffer the penalty of, after appreciating the aggravating circumstance of dwelling and after applying the Indeterminate Sentence Law, imprisonment of 10 years and 1 day of Prision Mayor as minimum up to 20 years of Reclusion Temporal as maximum. The accused is hereby ordered to indemnify the heirs of Dedicacion Balisi the amount of FIFTY THOUSAND PESOS (P50,000.00) for her death and another FIFTY THOUSAND PESOS (P50,000.00) as and for moral and actual damages and cost of suit. B. With respect to Criminal Case No. 5016-96-C for the killing of John Ardee Balisi, this Court finds the accused guilty beyond reasonable doubt, of the crime of Murder and is hereby sentenced to suffer the penalty of, after appreciating the aggravating circumstance of dwelling, death. The accused is likewise ordered to indemnify the heirs of John Ardee Balisi the amount of FIFTY THOUSAND PESOS (P50,000.00) for his death and another FIFTY THOUSAND PESOS (P50,000.00) as and for moral and actual damages and cost of suit.[2] Two separate Informations,[3] both filed on November 27, 1996,[4] charged appellant as follows: Criminal Case No. 5015-96-C That on or about 2:30 oclock in the afternoon of September 2, 1996 at San Ramon de Canlubang, Brgy. Canlubang, Municipality of Calamba, Province of Laguna, and within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, treachery, evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously hold the neck, strangle and thereafter bange[d] the head on the concrete pavement floor of one DEDICACION BALISI Y SORIANO, a 61 years of age, woman, thereby inflicting upon her fractured bones, serious and mortal wounds which directly caused her death, to the damage and prejudice of the surviving heirs of the said Dedicacion Balisi y Soriano.

That in the commission of the crime the aggravating circumstances of treachery, evident premeditation and taking advantage of superior strength were in attendant and ordinary aggravating circumstance committing a crime with disregard of respect due the offended party by reason of her age and sex. Criminal Case No. 5016-96-C That on or about 4:30 oclock in the afternoon of September 2, 1996 at San Ramon de Canlubang, Brgy. Canlubang, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, treachery, evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously hold the neck, strangle and thereafter bang[ed] the head on the concrete pavement floor of one JOHN ARDEE BALISI Y SORIANO, a six year old boy, thereby inflicting upon him fractured bones, serious and mortal wounds which directly caused his death, to the damage and prejudice of the surviving heirs of the said John Ardee Balisi y Soriano. That in the commission of the crime the aggravating circumstances of treachery, evident premeditation and taking advantage of superior strength were in attendan[ce]. When arraigned on May 28, 1997, appellant, assisted by his counsel de oficio,[5] pleaded not guilty.[6] In due course, he was tried and found guilty.

The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarized the evidence for the prosecution in this wise:[7] Appellant was a farmer, tilling and living in the land of Miguel Completo at Barangay Niugan, Cabuyao, Laguna. The victims, sixty two (62) year old Dedicacion Balisi and her grandson, six (6) year old John Ardee Balisi, were the neighbors of appellants father at San Ramon de Canlubang, Brgy. Canlubang, Calamba, Laguna. At 4:20 P.M. on September 2, 1996, Senior Police (SP) Inspector Rizaldy H. Garcia was at his office at the 4th PNP Criminal Investigation Group Regional Office at Camp Vicente Lim in Calamba, Laguna when he received an order from his superior to investigate the murder of the two victims. Their office had received a telephone call from a local barangay official informing them of the victims deaths. Arriving at the victims residence at Block 8, Lot 6 at San Ramon, Brgy. Canlubang, Calamba, Garcia and his team conducted an investigation, making a sketch of the relative positions of the victims, lifting fingerprints from the crime scene and taking pictures. Thereafter, an investigation report was prepared by Garcia and signed by his superior, Colonel Pedro Tango. The investigators likewise found a pair of maong pants, a white T-shirt, a handkerchief and dirty slippers in the bathroom and roof of the house. A pair of earrings worn by Dedicacion Balisi was likewise reported missing from her body by her daughter, Nora B. Llore[r]a. The victims bodies were brought to the Funeraria Seerez de Mesa in Calamba where Senior Inspector Joselito A. Rodrigo, a medico-legal officer of the PNP Crime Laboratory, performed an autopsy. His findings showed that John sustained three (3) contusions, one of which lacerated his liver, caused by a blunt instrument, while Dedicacion suffered four (4) contusions, also caused by a blunt instrument. On that same day, September 2, 1996, Ponciano Pontanos, Jr., then a resident of Barangay Niugan, Cabuyao and an acquaintance of appellant, happened to meet appellant at Sammy Pachecas house in the same barangay where appellant asked Ponciano to accompany him to Poncianos wife to pawn a pair of earrings. Poncianos wife was mad at first but upon Poncianos prodding, gave appellant P300.00 with no interest. The earrings were placed in a jewelry box; thereafter, appellant received another P250.00. At 6:00 P.M. on September 10, 1996, Major Jose Pante of the Criminal Investigation Group received information that appellant was the principal suspect in the killing of the two (2) victims and that he was sighted inside the

residence of spouses Rolly and Josie Vallejo at Barangay Macabling, Sta. Rosa, Laguna. He then formed and led a team composed of SPO3 Galivo, Intelligence Commission Officer Casis and SPO3 Mario Bitos. Arriving at the site at past 7:00 P.M., the team, accompanied by local barangay authorities, asked permission from the Vallejo spouses to enter the house, which was granted. Shortly thereafter, they heard loud footsteps on the roof. Rushing outside, they saw appellant crawling on the roof. They ordered him to stop, but he suddenly jumped from the roof and landed hard on the ground, sustaining an injury on his ankle and bruises on his left and right forearm. At that point, the police team closed in on appellant who, while trembling and shaking, admitted the killings upon a query from Rolly Vallejo. Appellant was brought to the Camp Vicente Lim PNP Investigation Office where he was informed of his constitutional rights by SPO3 Alex Malabanan. In the morning of September 11, 1996, appellant, assisted by Atty. Arturo Juliano, gave his statement admitting the killings. SPO3 Malabanan also took the statements of tricycle driver Rafael Baliso, the victims relatives Salvacion and Mona Balisi and witness Mary Arguelles, who saw appellant enter the house of Dedicacion Balisi. On the same day, September 11, 1996, PNP Fingerprint Examiner Reigel Allan Sorra took fingerprint samples from appellant. His prints exactly matched with a set of prints found at the crime scene on September 2, 1998. Later that day, SPO3 Mario Bitos was able to recover the pawned earrings from Ponciano who turned them over to SPO3 Malabanan. (Citations omitted)

Version of the Defense Alleging denial and alibi as defenses, appellant presents his version of the incident as follows:[8] Mrs. Fe Vallejo testified that she knew Guillermo Samus. At about 6:00 p.m. of September 10, 1996, Guillermo Samus was in their house. It was then that CIS operatives together with their Brgy. Captain entered their house, arrested and handcuffed Guillermo Samus. It was not true that accused Guillermo Samus hid himself on the roof of her house. When the accused was arrested by the CIS men, together with the barangay officials, the other persons present were the witness and her 3 children. The police were not armed with a warrant of arrest or search warrant. Accused Guillermo Samus denied the accusations against him. He testified that he was a farmer, working on the land of one Miguel Completo at Brgy. Niugan, Cabuyao. From 6:00 a.m. to 5:00 p.m. of September 2, 1996, he was harvesting palay with Eligio Completo; that he never left the farm. He took his lunch at the hut of Miguel Completo; that he arrived home at 6:00 in the afternoon, took his dinner then went to sleep. He further testified that on September 10, 1996, he was at the house of his friend, Rolly Vallejo at Brgy. Macabling, Sta. Rosa, Laguna, when a group of CIS operatives arrived and arrested him inside the same house. It was not true that he jumped from the roof of the house. The CIS people did not have any warrant for his arrest. His kumpadre Rolly Vallejo was not present at that time. He was brought to Camp Vicente Lim where he was tortured until he lost his consciousness. On the same night, he was brought to a hospital, was given medicine, then brought back to the cell where he was handcuffed at the door of the cell. The CIS got hold of the medical certificate. He was forced by the CIS to admit the killing of the victims and the sale of jewelry by means of torture and threat. He also testified that he was forced to execute a document admitting the killing. He was forced to sign said document. He did not know Atty. Juliano and did not talk to him. The victims were the neighbors of his father in the province. He had been in the house of Dedicacion Balisi. He was known to Dedicacion Balisi and her household; and, that the last time he visited the house of Dedicacion Balisi was on August 30, 1996. He was given food by Dedicacion and he later washed dishes, swept the floor, and put dirt in the trash can. He left at 12:00 p.m. that same date and returned to his house in Brgy. Niugan. On cross-examination, he testified that from Brgy. Niugan to San Ramon de Canlubang it took less than 15 minutes to travel, and he also mentioned that the media interviewed him 2 days after his arrest. He and his relatives in Laguna did not have the capacity to hire/secure the services of a lawyer.

The defense also presented Exhibit B (and submarkings), the transcript of stenographic notes of the testimony of Atty. Juliano, given before the Municipal Trial Court of Calamba, Laguna on December 1, 1997 in connection with [C]riminal [C]ase [N]o. 26099, also against Guillermo Samus for theft (of the earrings). The prosecution admitted the existence of said exhibit and the presentation of the witness who was supposed the identify the same was dispensed with. (Citations omitted)

Ruling of the Trial Court The trial court found enough pieces of circumstantial evidence to prove the guilt of appellant beyond reasonable doubt. Rejecting his alibi for being unreliable and uncorroborated, it convicted him of homicide for the death of Dedicacion Balisi; and of murder, with dwelling as aggravating circumstance, for the death of John Ardee Balisi. Hence, this automatic review.[9]

Assignment of Errors In his Brief, appellant faults the court a quo with the following alleged errors:[10] I The lower court gravely erred in giving credence to the testimonies of police officers to the effect that the accused tried to escape when he was arrested and that he readily admitted responsibility for the crimes. II The lower court gravely erred in admitting and considering evidence that were obtained in violation of the accuseds constitutional rights. III The lower court gravely erred in holding that there was sufficient circumstantial evidence to warrant the conviction of the accused. IV The lower court gravely erred when it ruled that the qualifying circumstance of abuse of superior strength attended the killing of John Ardee Balisi. The Courts Ruling First Issue: Arrest of Appellant As a general rule, the evaluation by the trial court of the testimony of the witnesses is accorded great respect, if not finality. In the present case, however, there are cogent reasons to disregard its findings with respect to the arrest of appellant on September 10, 1996. The police officers version of the arrest is incredible. Not only are their allegations uncertain and inconsistent, they are also contrary to human experience. We find it hard to believe that anyone would jump from the roof of a two-story house to escape and, after landing on the ground without any broken bones, make a complete turnaround and just meekly surrender without further ado. Even if this story were true, jumping from a roof is not a crime that would justify the warrantless arrest of appellant. It is undisputed that when the CIS team went to the Vallejo residence on the evening of September 10, 1996, it had no warrant of arrest against appellant. Yet, they arrested him. Under the Rules,[11] peace officers may, without a warrant, arrest a person under any of these circumstances: (a) when, in their presence, the person to be arrested has committed, is actually committing, or is attempting to commit, an offense; (b) when an offense has just been committed, and they have probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it; and (c) when the person to be arrested is a prisoner who has escaped while being transferred from one confinement to another, or from a penal establishment where he or she is serving final judgment or is temporarily confined while the case is pending. None of these circumstances was present when members of the Criminal Investigation Group (CIG) arrested appellant. He was not a prisoner. The killing of Dedicacion and John Ardee Balisi was not done in the presence of

The appeal is partly meritorious.

the arresting officers. Since it took place on September 2, 1996, it could not have been considered as having just been committed. Evidently, they unlawfully arrested appellant on September 10, 1996. When they did so, we cannot ascribe to them the presumption of regularity in the performance of official functions, contrary to the court a quos finding. Considering that the arrest of appellant was unlawful, the apprehending officers uncertainty and reluctance in admitting it becomes understandable. In their Joint Affidavit executed on September 11, 1996, they alleged that he had voluntarily surrendered to them. On the other hand, he had allegedly been merely invited by Chief Inspector Jose Pante, according to SPO3 Alex Malabanan. It was only upon being pressed that the police officers admitted that they had indeed made the arrest.[12] We now proceed to the alleged confession. In their Joint-Affidavit, the arresting officers said that after appellant had initially jumped from a two-story house to escape, they closed in on him and he voluntarily surrendered. At the same place where he did so, they conducted a preliminary interview, during which he readily admitted killing Dedicacion and John Ardee Balisi. But during their testimonies, the police officers denied questioning appellant after arresting him. Instead, they claimed that it was Rolly Vallejo who had conducted the preliminary interview in their presence as follows: Pare totoo ba ang sinasabi nila tungkol sa iyo na ikaw ay pinaghihinalaan nilang pumatay sa mag-lola sa Canlubang[?]; to this question appellant allegedly answered, [T]otoo nga pare, ako nga. No further questions were allegedly asked by the law enforcement officers. Instead, they immediately brought appellant to Camp Vicente Lim for further investigation. SPO3 Mario Bitos, on the other hand, stated in his Affidavit, also dated September 11, 1996, that during the conduct of the preliminary interview, appellant admitted that the victims pair of earrings made of gold was taken by him after the incident and x x x sold to Mr. Jhun Pontanos y Matriano, a resident of Bgy. Niugan, Cabuyao, Laguna, for the amount of five hundred (P500) pesos. During his testimony, however, Bitos denied that they had conducted any investigation.[13] Instead, he claimed that upon their arrival at Camp San Vicente Lim, an interview was conducted by the media in the presence of Major Pante, SPO3 Bitos and SPO3 Malabanan (the investigator).[14] From this interview, the team was able to cull from appellant that he was responsible for the killings, and that he had stolen the earrings of Dedicacion Balisi and sold them to Pontanos for P500. This information was allegedly verified by Bitos upon the order of Major Pante. Thus, the apprehending officers contend that the constitutional rights of appellant were not violated, since they were not the ones who had investigated and elicited evidentiary matters from him. We are not persuaded. The events narrated by the law enforcers in court are too good to be true. Their Sworn Statements given a day after the arrest contradict their testimonies and raise doubts on their credibility. We find the claims of appellant more believable, supported as they are by Fe Vallejo who testified that he had been arrested inside her house, and that Rolly Vallejo was not around then. Evidence to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself -- such as [that which] the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance.[15] Second Issue: Fruit of the Poisonous Tree Appellant claims that his alleged confession to the media while in police custody cannot be admitted in evidence. He further contends that the pair of earrings, the turnover receipt, as well as the testimonies of Pontaos and Bitos, relative thereto should be excluded for being fruits of the poisonous tree. We clarify. After being illegally arrested, appellant was not informed of his constitutional rights to remain silent and to have competent and independent counsel. Hence, any admission elicited from him by the law enforcers during custodial investigation are normally inadmissible in evidence. In their affidavits, the police officers readily admitted that appellant was subjected to a preliminary interview. Yet, during their examination in open court, they tried to skirt this issue by stating that it was only the media that had questioned appellant, and that they were merely present during the interview.

However, an examination of the testimonies of the three law enforcers show the folly of their crude attempts to camouflage inadmissible evidence. SPO4 Arturo Casis testified as follows:
FISCAL: Q: And after that what did you do with the accused Guillermo Samus? WITNESS: A: He went with us voluntarily in Camp. Q: Camp what? A: Camp Vicente Lim, Canlubang, Laguna. Q: After arriving at Camp Vicente Lim what happened there? A: We turned over him to our investigator CIS. Q: To whom in particular? A: SPO3 Alex Malabanan, sir. Q: What was the purpose for your turning over the accused to Alex Malabanan? A: To ask him question and to investigate him. Q: Before that when you arrived at the camp, did you see many people at the camp? A: I noticed some reporters were there. Q: Where were the reporters at that time? A: In our office. Q: Do you know the reason why these reporters were there at that time? A They used to hang out at our office because they have a press office holding in our office. Q: Did you notice these press people when you brought Guillermo Samus to the camp? A: Yes, sir. Q: What did they do when you arrived? A: They keep on asking who is this fellow we have arrested. Q: Did anyone answer them? [16] A: Its up for the investigator and Maj. Pante. xxx xxx xxx Q: And the apprehending team did not ask question regarding the alleged involvement of Guillermo Samus to the kiling? [17] A: At the office, sir. On the other hand, SPO3 Bitos declared: Q And you said that in your earlier testimony that Guillermo Samus was immediately brought to Camp Vicente Lim which is your headquarters after his arrest on September 10, 1996, is that correct? A Yes, sir. Q And you said that the purpose of bringing Guillermo Samus to your headquarters on that day after his arrest was for further investigation, is that correct? A Yes, sir. Q The member of the CID once Guillermo Samus was there in your custody at Camp Vicente Lim he was immediately investigated right then and there in the headquarters, is that correct? A He was interviewed by the media people upon the arrival of said suspect. We were not able to conduct the investigation because of the media people who was also asking question from him, sir. Q Who authorized the media people to propound questions to Guillermo Samus when he was at your headquarters in the night of September 10, 1996? A I think nobody has given the authority to conduct a preliminary investigation with Guillermo Samus that is why we were [18] bother our investigation because these media people were conducting immediate interview with that suspect, sir. xxx xxx xxx For his part, SPO3 Malabanan gave the following testimony during his cross-examination: Q By the way, what time did Guillermo Samus finish giving the statement to the media people on the night of September 10, 1996? A I cannot recall the exact time as to when he finished but I think it is past 8:00 oclock, sir. Q If you know the reason, can you tell us why Guillermo Samus had to be presented to the media first before you as an investigator assigned to the case actually take his statement? May I request, your Honor that the statement of the witness transpired in the vernacular be quoted (sila na po and naginterview). A Because when we arrived at that time the press people were already there and we can no longer prevent from asking or conducting an investigation or interview because the case is already on public knowledge. ATTY. MANALO: Q So, after 8:00 p.m. when Guillermo Samus had already finished giving his statement to the media, do you know where Guillermo Samus was brought? WITNESS: A Yes, sir. Q Can you tell us where? A Yes, sir. After that Guillermo Samus was brought to our office and Maj. Pante talked to him, sir.

Q A Q A

And do you know where Guillermo Samus spent the night? Yes, sir. Can you tell us where? [19] In our stockade, sir.

The above testimonies do not tie up. Casis categorically stated that appellant had been turned over to SPO3 Malabanan. Appellant noticed reporters in their office, but he did not answer their questions. SPO3 Bitos alleged that the interview by the media could not have been prevented, because it was an ambush interview. Meanwhile, SPO3 Malabanan claimed that when he arrived at the camp, there were already reporters questioning appellant. Malabanan further narrated that after 8:00 p.m., appellant was brought to the office where Major Pante talked to him. In the absence of testimony from any of the media persons who allegedly interviewed appellant, the uncertainties and vagueness about how they questioned and led him to his confession lead us to believe that they themselves investigated appellant and elicited from him uncounselled admissions. This fact is clearly shown by the Affidavits they executed on September 11, 1997, as well as by their testimonies on cross-examination. Nonetheless, even if the uncounselled admission per se may be inadmissible, under the present circumstances we cannot rule it out because of appellants failure to make timely objections. Indeed, the admission is inadmissible in evidence under Article III, Section 12(1) and (3) of the Constitution, because it was given under custodial investigation and was made without the assistance of counsel. However, the defense failed to object to its presentation during the trial, with the result that the defense is deemed to have waived objection to its admissibility.[20] Can the testimony of Pontaos and the picture of a pair of earrings together with the turnover receipt, which appellant identified during his testimony, be considered inadmissible as the fruit of the poisonous tree and hence be disregarded at this stage of appeal? Upon examination of the records, we find that during the entire examination in court of Prosecution Witness Pontaos, appellant did not question or object to the admissibility of the formers testimony. Worse, the latters counsel even freely cross-examined the witness without any reservations. Having made no objection before the trial court, appellant cannot raise this question for the first time on appeal.[21] The evidence having been admitted without objection, we are not inclined to reject it. If only appellant had made a timely objection to the admissibility of the said testimony, the prosecution could have been warned of the need to present additional evidence to support its case. To disregard unceremoniously a major portion of its case at this late stage when it can no longer present additional evidence as substitute for that which is now claimed to be inadmissible goes against fundamental fairness. Third Issue: Circumstantial Evidence No one saw who killed Dedicacion and John Ardee Balisi. However, to prove appellants culpability for their deaths, the prosecution presented the following circumstantial evidence: 1. Finger and palm prints matching appellants own were found near bloodstains at the scene of the crime. 2. Dedicacion Balisi owned a pair of earrings that she wore every day. Those earrings were missing from her dead body. Appellant pawned those same earrings to Ponciano Pontaos wife on the afternoon of September 2, 1996. 3. Appellant admitted killing Dedicacion and John Ardee Balisi, whose dead bodies were found inside their residence on the afternoon of September 2, 1996. Circumstantial evidence would be sufficient for conviction, if (a) there is more than one circumstance, (b) the facts from which the inferences have been derived are proven, and (c) the combination of all the circumstances is such that it produces a conviction beyond reasonable doubt. These circumstances must be consistent with one other, and the only rational hypothesis that can be drawn therefrom must be that the accused is guilty. They must create a solid chain of events, coherent and intrinsically believable, that pinpoints the accused -- to the exclusion of others -- as the perpetrator of the crime and thereby sufficiently overcomes the presumption of innocence in his or her favor.[22]

In the present case, it is indisputable that someone entered the house of Dedicacion and John Ardee Balisi, and that someone killed them and left the house with Dedicacions earrings. The left palm and right thumb prints of appellant near the bloodstains found on the kitchen tiles, together with other blood-smudged fingerprints, lead to no other reasonable conclusion except that he was in the house in the afternoon when the victim died. Considering that the former had bloodstained hands, it can reasonably be deduced that his hands were responsible for producing the flow of blood (shown in the pictures marked as Exhibits E to 7) from the heads of Dedicacion and John Ardee Balisi. The act of appellant -- pawning the earrings of Dedicacion Balisi on the same afternoon of her death -- is consistent with, and further supports the conclusion that he was at the crime scene around the time of her killing. The absence of any indication of the presence of any person other than appellant at the locus criminis around the time of the victims deaths further bolsters the hypothesis that he, to the exclusion of all others, was the one who killed them. The pieces of circumstantial evidence presented by the prosecution are consistent with one other, and the only rational hypothesis that can be drawn therefrom is that appellant is guilty of killing Dedicacion and John Ardee Balisi. The prosecution evidence, taken together with the extrajudicial admissions of appellant, passes the test of moral certainty and establishes beyond reasonable doubt that he was the person who killed the victims. Alibi Appellants uncorroborated alibi -- that he was at the farm in Cabuyao, Laguna -- was correctly debunked by the court a quo. We have nothing to add to the trial courts short and straightforward discussion of the matter, which we reproduce hereunder: For alibi to prosper, the accused must establish not only that he was somewhere else when the crime was committed but that it was also physically impossible for him to have been at the scene of the crime at the time of its commission (People v. Torrifiel, 326, Phil. 388). By the accuseds own admission, the distance between his alleged whereabouts at the time of the commission of the offense and the scene of the crime was a fifteen minute drive. To the mind of this court, the accuseds presence at the scene of the crime is not impossible.[23] Fourth Issue: Crime and Punishment The testimony of Salvacion Balisi, as well as the Birth Certificate of John Ardee Balisi (Exhibit II),[24] prove that John was only six (6) years old at the time of his death. As correctly ruled by the court a quo, the killing of [the] child [was] characterized by treachery because the weakness of the victim due to his tender age resulted in the absence of any danger to the accused.[25] Indeed [i]t has time and time again been held that the killing of minor children who, by reason of their tender years, could not be expected to put up a defense is considered attended with treachery even if the manner of attack was not shown.[26] Indubitably, treachery qualified the killing of six-year-old John Ardee Balisi as murder. As for the death of Dedicacion Balisi, however, none of the qualifying circumstances alleged in the Information was proven by the prosecution. Hence, appellant can be convicted of homicide only. In either of the two cases, the aggravating circumstance of dwelling cannot be appreciated against appellant, simply because it was not alleged in the Information.[27] There being no aggravating circumstances, the imposable penalty for the homicide[28] of Dedicacion Balisi is reclusion temporal in its medium period. In this case, appellant is entitled to the benefits of the Indeterminate Sentence Law. For the same reason, reclusion perpetua -- not death -- is the correct penalty that should be imposed on appellant for the murder[29] of John Ardee Balisi. WHEREFORE, the Decision of the Regional Trial Court of Calamba, Laguna (Branch 36) is hereby AFFIRMED with the following MODIFICATIONS : in Criminal Case No. 5015-96-C, the maximum of the penalty is reduced to 17 years and four months of reclusion temporal medium; in Criminal Case No. 5016-96-C, the penalty is reduced to reclusion perpetua. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Callejo Sr., JJ., concur.

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 133188

Members: PUNO, Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ. Promulgated:

- versus -

ELIZAR TOMAQUIN, Appellant.

DECISION AUSTRIA-MARTINEZ, J.: July 23, 2004

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 barangaycaptain 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] 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 Jaquelyn[3] 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 bloodstained maong shorts. The tanods told appellant that he is a suspect in the killing of Jaquelyn, and brought him to the house of barangay 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] 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? OO, nasabtan ka ang akong katungod? 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? OO, nasabtan ko usab kanang taan. 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? O 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. 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? Oo, andam gyud ako.

Tubag: Pangutana:

Tubag: Pangutana:

Tubag: Tubag:

... Pangutana: Tubag:

Pangutana: Tubag:

Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o rmay kalambigitan sa imong pagkatawo, sa imong grado, imong trabaho, imong pinuy-anan ug uban pa? 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. Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man?

Pangutana:

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. Nganong nakahiabwo ka man na duna silay TV nga colored? Suweto man ko kay permi ko magtan-awan sa ilang colored TV. Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man punta deretso. Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV. Nakuha ba gayod nimo anf maong TV? 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). Kapila nimo dunggaba ug diin maigo si Jaqueline Totay? 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. Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang pagkapbabye o wala ka bay plano sa pag rape kaniya niadtong higayona? 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. Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug imong gidunggab? Duna ma hayag nga suga sa elektresidad sa ilang may kusina. Kaila ba nimong daan si Jaqueline Tatoy? Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtan-awan sa ilang TV. Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat? 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. Diin ka man paduiong dagan? Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy. Unya unsa may sunod nimonh gibuhat og nahibaw-an? 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. Ngano ug unsa may diay kalabutan niadtong maong slaveless white shirt nimo? 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) 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? Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo ug gain sa akong pagdagan akong napatiran kadtong ilang container. 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? Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan.

Pangutana: Tubag: Pangutana: Tubag: Pangutana: Tubag:

Pangutana: Tubag:

Pangutana: Tubag:

Pangutana: Tubag: Pangutana: Tubag: Pangutana: Tubag:

Pangutana: Tubag: Pangutana: Tubag:

Pangutana: Tubag:

Pangutana: Tubag:

Pangutana:

Tubag:

Pangutana: Tubag:

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. Oo, andam ako pageram. Aron matuoron kining tanan kini akong permaahn ning petsa 16 sa [9] Diusyembre 1996, Siyudad Sugbo, Pilipinas.

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 by barangaytanod 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 barangaycaptain 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 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, abarangay 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: 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 his barangay 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 A Q A Q A Q A Q A Q A Q A Q A Q A What happened when you arrived at the Ramos Police Station at around 2:00 oclock in the afternoon of December 16, 1996? I go (sic) to the room where Policeman Monilar and the accused and had a conversation with the accused. What transpired during that conversation with the accused. I asked him. Are you going to get me as your lawyer? And may we know what did he answer? Yes, Cap. Okay Cap. When you said Cap what did he mean by that word Cap. Being a Barangay Captain. After the accused told you that you were his counsel of choice. What did you do next if any? I informed Elizar Tomaquin that do you know what will be the implication of your admission, you will be imprisoned. After you asked him whether he knew of the implication of his confession that could be because of that confession. What was his reaction? Yes Cap. I know. And then I told him as follows: Because of this confession you will be imprisoned. And what did he say after you told him again that if he would execute that affidavit of confession he would surely be imprisoned? No I even continue that why did he do that? And what did he answer? He answered to me that he was drunk at that time. And so what transpired next? So I told him are you willing now to give your confession, then policeman Monilar went inside the room and we had that investigation. Now how was the investigation of the accused done? It was made in a question and answer form. And in what language were the questions framed? In the vernacular, vesaya. What did you do during the question and answer form of investigation? I just observed them. But did you stay there until the whole taking of the confession was over? Yes I was there in the presence of two persons coming from my Barangay.

Q A Q A Q A Q A ...

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? He was already preparing this top portion here.

INTERPRETER: Q ... Q Witness pointing to the upper portion of the certification up to the signature to that portion above the names typewritten thereon. 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? [26] I was not around but we have already a conversation earlier with Monilar.

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 ... Q Yes. 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? 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. 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? [28] It is somewhat like that. That is why I ordered my tanod to bring him to the Homicide.

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 becompetent 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 ... Q It did not occur to my nime (sic). 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? It did not occur to my mine (sic) that time.
[31]

... A

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 extrajudicial 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: (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 tanods sleeping 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 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.

FIRST DIVISION [G.R. No. 113684. January 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO GALLARDO y GANDER, ALFREDO COLUMNA y CORREA, and JESSIE MICATE y ORTEZA,*accused-appellants. ALEX
DECISION PARDO, J.:

The Constitution enumerates the basic rights of a person under investigation. "Sec. 12(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."[1] xxx The case before the Court is an appeal by accused-appellants from the decision[2] of the trial court finding them guilty of murder for the treacherous killing of Edmundo Orizal and sentencing each of them to reclusion perpetua and to pay in solidum the heirs of Edmundo Orizal in the sum of P50,000.00 as indemnity for death and P150,000.00 as moral damages. Missc On November 7, 1991, on the basis of the sworn confessions of the accused, the Provincial Prosecutor of Cagayan filed with the Regional Trial Court, Tuguegarao, Cagayan an information charging the accused with murder, committed as follows: "That on or about July 28, 1991, in the municipality of Tuguegarao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Armando Gallardo y Gander, Alfredo Columna y Correa and Jessie Micate, armed with guns, confederating and conspiring together and helping one another with intent to kill, with evident premeditation and with treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot one Edmundo Orizal, inflicting upon him several gunshot wounds on the different parts of his body which caused his death. "Contrary to law." "Tuguegarao, Cagayan, November 7, 1991. "(Sgd.) ALEJANDRO A. PULIDO, NPS III "Provincial Prosecutor"[3] Misspped On December 2, 1991, all three accused entered a plea of not guilty.[4] Trial ensued. The prosecutions evidence established the following facts: On July 28, 1991, the lifeless body of Edmundo Orizal was found in the rest house of Ronnie Balao in Balzain, Tuguegarao, Cagayan. In an autopsy performed by Dr. Edmundo Borja, Tuguegarao Municipal Health Officer, the victim was found to have sustained seven (7) gunshot wounds in the chest, abdomen, back, left and right thighs, and two (2) grazing wounds on the left arm and back.[5] Investigation by the Tuguegarao police station identified the suspects in the murder of Edmundo Orizal as Armando Gallardo y Gander, Alfredo Columna y Correa, and Jessie Micate y Orteza. The police received information that the suspects were detained at the Camalaniugan Police Station because of other criminal charges. So elements of the

Tuguegarao police went to the Camalaniugan Police Station in August 1991 to fetch the suspects. Only Armando Gallardo and Alfredo Columna alias Fermin were in the custody of the Camalaniugan Police Station. Spped The two suspects Armando Gallardo and Alfredo Columna were brought to the Tuguegarao Police Department. On August 18, 1991, they were investigated by Police Investigator SPO4 Isidro Marcos, and they gave statements admitting that they, together with Jessie Micate, killed Edmundo Orizal. During the investigation, the dialect used was Ilocano, the native tongue of the accused, and during the taking of the statements, Atty. Rolando Velasco assisted them. Judge Vilma Pauig was present. She administered the oath on the jurat of the statements. Accused-appellants signed their statements admitting the killing of Edmundo Orizal. According to accused-appellants, they planned and executed the killing of Edmundo Orizal, as follows: Jospped At about 10:00 in the morning of July 26, 1991, Pat. Dennis Molina, accused-appellants Armando Gallardo and Alfredo Columna, together with Jessie Micate and Asoy (Nelson) Hidalgo, met at the house of Alfredo Columna in Ziminilla (Camalaniugan, Cagayan). Pat. Molina conveyed to the group the desire of Congressman Domingo Tuzon that Edmundo Orizal be killed because the latter was planning to ambush him and grab his land. Edmundo Orizal was a strong campaigner and a bodyguard of retired Gen. Prospero Olivas, who was running for mayor of Camalaniugan (against the congressmans re-electionist wife). Pat. Molina told the group that if they accepted the job and succeeded in their mission, Congressman Tuzon would work for their acquittal in all their criminal cases, and would give cash rewards. The accused-appellants accepted the job and the following day, on July 27, 1991, they, together with Jessie Micate, Asoy Hidalgo and Pat. Molina, set out to accomplish their mission. Pat. Molina accompanied them to Dugo, Camalaniugan at Where Else Beauty Salon where Pat. Molina showed them their weapons: a .38 cal. and .45 cal. handguns and a folded carbine, placed inside a box. Sppedjo At around 2:00 in the afternoon of the same day, in the house of Dadoy Micate, Pat. Molina gave the .38 cal. revolver to Armando Gallardo, the .45 cal. pistol to Alfredo Columna, and the folded carbine to Jessie Micate. Then, Pat. Molina instructed the three accused to look for Edmundo Orizal and kill him. The three boarded a tricycle and proceeded to Edmundo Orizals boarding house at Caritan, Tuguegarao, Cagayan. Edmundo was not there. He was at that time in the house of Aping in Lecaros Street, Centro, Tuguegarao. The three went to that place. At the place of Aping, accused Gallardo engaged Edmundo in a conversation while all of them drank San Miguel beer. In the course of their conversation, and probably to get the trust of Edmundo Orizal, accused Gallardo told him that he had already killed Inyong Orteza, whom Edmundo Orizal wanted dead. At around 5:00 p. m., the group moved over to the rest house of Ronnie Balao in Balzain, Tuguegarao. Edmundo ordered Armando Gallardo to get his M-14 armalite rifle from Ronnie Balao. However, Ronnie Balao did not give the firearm, but went with Armando to the rest house to talk to Edmundo. After talking to Edmundo and Armando, Ronnie Balao went home. Miso Meanwhile, Edmundo Orizal, the two accused-appellants and Jessie Micate were conversing. Edmundo was convincing accused-appellants and Jessie Micate to join him as bodyguards of Gen. Olivas during the election campaign. At this point, Jessie Micate leveled his carbine at Edmundo and successively fired at him. Alfredo Columna drew his .45 cal. pistol and shot Edmundo Orizal five times. This was followed by Armando Gallardo who shot Edmundo once with his .38 cal. revolver. The three accused fled, and went to the house of Dadoy Micate in Caggay (Tuguegarao, Cagayan), where Pat. Molina was waiting for them. They informed Pat. Molina that the mission was accomplished. Early the next morning, July 28, 1991, the three accused and Pat. Molina boarded a Manny Trans bus and proceeded to Camalaniugan. They stopped at Dugo, Camalaniugan and proceeded to the house of Congressman Tuzon to report the killing. Congressman Tuzon was out of his house attending the town fiesta of Buguey (Cagayan). When he arrived, Pat. Molina informed him that Edmundo Orizal is dead. Congressman Tuzon was very happy and promised them that he

would work for their acquittal in their pending cases and after confirming the death of Orizal he would give them their cash rewards.[6] Nelson Hidalgo, a friend of Manuel Columna, Jr., testified that on July 26, 1991 at around 4:30 in the afternoon at the house of Manuel Columna, Jr., he was asked by the accused to join them in their mission to kill Edmundo Orizal. In that meeting, Nelson Hidalgo resolved to join the group, but while on his way home from the meeting, he met his bosom friend Reynald Micate. He told the latter about their plan to kill Edmundo Orizal. Reynald Micate advised him not to participate in the killing for it would just add to his other criminal cases. Nelson Hidalgo heeded the advice of his bosom friend. Consequently, realizing that because of his knowledge of the plan to kill Edmundo Orizal, he would be a target for elimination so that the plan would not be revealed to anyone, he left Camalaniugan, and went to Buguey, then Aparri and finally, to Manila. It was only after three months that he returned to Camalaniugan and learned that Edmundo Orizal was killed. Nexold On August 18, 1993, accused on their part filed with the trial court a demurrer to evidence, arguing that the prosecution failed to establish that the signed statements of the accused were procured in violation of Article III Section 12 (1) of the Constitution. On September 10, 1993, the trial court denied the demurrer and stated that the court would want to know controverting evidence that the defense may give to intelligently decide the issues of the case. Accused Armando Gallardo and Alfredo Columna testified in their defense. They gave a common version. In the words of the trial court, here is what they alleged: Manikx "On August 18, 1991, elements of the Tuguegarao Police Station went to Camalaniugan to fetch accused Armando Gallardo and Alfredo Columna who were detained at the Camalaniugan Municipal Jail in connection with other criminal cases. These two accused were brought to the Tuguegarao Police Station to be questioned on the killing of Edmundo Orizal. "Arriving in Tuguegarao the same day, Investigator Isidro Marco investigated said accused and took their statements at the Tuguegarao Police Station. The investigator, however, did not inform them of their constitutional rights. "After the respective statements had been typewritten, investigator Marcos neither read to nor allowed them to read the contents of their alleged statements. The investigator just told them to sign their so-called statements. Accused Gallardo signed the confessional statement because he was harmed by Marcos while accused Alfredo Columna said that he signed said document because he was afraid he might be harmed."[7] Maniks On November 29, 1993, the trial court rendered decision finding accused Armando Gallardo y Gander and Alfredo Columna y Correa guilty beyond reasonable doubt of murder qualified by evident premeditation and aggravated by treachery and sentencing each of them to reclusion perpetua and to pay in solidum the heirs of Edmundo Orizal P50,000.00 as the mandatory indemnity for death and P150,000.00 as moral damages. The court acquitted accused Jessie Micate y Ortega for lack of evidence.[8] Hence, this appeal. Accused-appellants Armando Gallardo y Gander and Alfredo Columna y Correa impute the following errors to the trial court: 1. In admitting their extra-judicial confessions in evidence against them; and 2. In finding that their guilt was proved beyond reasonable doubt.[9] Manikan The appeal has no merit. The extra-judicial confessions of the accused were given after they were completely and clearly apprised of their Constitutional rights. A lawyer assisted them and a judge administered their oath. In his testimony, Atty. Rolando Velasco stated:
"Q. After you were introduced to the two suspects what happened?

"A. I interrogated first Gallardo and I told him whether he can understand tagalog and he said he can understand and I told him if he is willing to voluntarily give his statement to the police and he said "yes", and I said he has the right to give his statement and if he is going to give his statement his statement can be used against him in court and if he wants to get the services of a lawyer of his own choice or if he wants me to assist him and he readily accepted. Supr-ema The same was done with accused Alfredo Columna. "Q. How did you represent them in the investigation? "A. I was present and I made sure that there was no force and intimidation made on the person of these two suspects by the police and the police who asked questions in Ilokano and the answer was in Ilocano by the suspects. "Q. In so representing them in that investigation were you requested to sign the document? [10] "A. I voluntarily signed, sir. Judge Aquino of the Regional Trial Court, Tuguegarao, Cagayan, asked Atty. Velasco several questions particularly on the point of how the accused-appellants were informed of their Constitutional rights. He stated: Scs-daad "Q. When you conferred with the accused before taking of their sworn statement you stated that you asked them whether they were forced or intimidated in making the statement? "A. Yes, sir "Q. Did you happen to know the status of the accused at the time their statements were taken whether they are detention prisoners or not? "A. There was no warrant of arrest issued they were just apprehended as suspects. "Q. Please tell the court, did they complain to you about any harassment of any kind by the police at the time of their investigation? "A. None, your honor. S-daad "Q. You said you accompanied them, you were present when the oath was administered by Judge Pauig? "A. Yes, the following day I was also called by the police to be present when the accused took their oath before Judge Pauig. "Q. You said you advised the accused before taking their sworn statement of their constitutional rights in Tagalog, why do you say that they understand Tagalog? "A. Because they were answering in Tagalog, also, sir. "Q. How was their Tagalog? "A. Good Tagalog, sir. Sd-aamiso "Q. Will you please tell in Tagalog the information the constitutional right of the accused? "A. I told them "May karapatan kayong hindi magbigay ng salaysay sa pulis, may karapatan kayong magkaroon ng abogado na sarili ninyo kung magbigay kayo."

We have held that "while the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the formers appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer."[11] Scnc-m In the case at bar, although Atty. Velasco was provided by the State and not by the accused themselves, the accused were given an opportunity whether to accept or not to accept him as their lawyer. They were asked and they immediately agreed to have Atty. Velasco as their counsel during the investigation. There is no requirement in the Constitution that the lawyer of an accused during custodial investigation be previously known to them. The Constitution provides that the counsel be a competent and independent counsel, who will represent the accused and protect their Constitutionally guaranteed rights. Also, we have held that "to be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. The counsel, however, should never prevent an accused from freely and voluntarily telling the truth."[12] Nc-mmis We are, therefore, convinced that Atty. Velasco acted properly in accordance with the dictates of the Constitution and informed the accused of their Constitutional rights. Atty. Velasco assisted the accused and made sure that the statements given by the accused were voluntary on their part, and that no force or intimidation was used by the investigating officers to extract a confession from them.

Aside from Atty. Velasco, Judge Vilma Pauig also testified that when she administered the oath to the accusedappellants, she asked them whether they understood the contents of their statements and whether they were forced by the police investigators to make such statements. Accused-appellants answered in the negative. From the foregoing, it can therefore be established that accused-appellants were properly apprised of their rights and there was no violation of their Constitutional rights.[13] Under rules laid by the Constitution, existing laws and jurisprudence, a confession to be admissible must satisfy all four fundamental requirements, namely: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing.[14] All these requirements were complied with. Nc-m It would have been different if the accused were merely asked if they were waiving their Constitutional rights without any explanation from the assisting counsel. In this case, Atty. Velasco asked the accused if they were aware of their rights and the lawyer informed them of their rights and asked them if they were giving their statements willingly after being informed of their rights. This is in compliance with the constitutional guarantee of the rights of an accused during custodial investigation. There is no merit to the contention that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. The testimony of prosecution witness Nelson Hidalgo remains uncontroverted. The defense was unable to produce any evidence to prove that Nelson Hidalgo was biased and not credible. Ol-dmiso Well-entrenched in this jurisdiction is the rule that "the Court will not interfere with the trial courts assessment of the credibility of witnesses absent any indication or showing that the trial court overlooked some material facts or gravely abused its discretion."[15] Consequently, the trial court correctly found accused-appellants Alfredo Columna y Gander and Armando Gallardo y Correa guilty beyond reasonable doubt of the treacherous murder of Edmundo Orizal. We are however concerned with the statements of the accused that it was Congressman Tuzon who masterminded the killing of Edmundo Orizal. The order of inquest Judge Dominador L. Garcia dropping Congressman Tuzon and Pat. Molina from the criminal complaint for the reason that the confessions of the accused Gallardo and Columna were inadmissible against them under the res inter alios acta rule do not persuade us that former Congressman Tuzon and Pat. Molina were not liable as co-principals in the crime committed. Man-ikan Concededly, the extra-judicial confessions of the accused Gallardo and Columna are not admissible against Congressman Tuzon and Pat. Molina. However, the interlocking confessions of the accused are confirmatory evidence of the possible involvement of former Congressman Tuzon and Pat. Molina in the crime.[16] Consequently, we refer the case to the Department of Justice for investigation of the involvement of former Congressman Tuzon and Pat. Molina in the killing of Edmundo Orizal. WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. However, the award of moral damages is reduced to P50,000.00. Manik-s Let a copy of this decision be furnished to the Honorable, the Secretary of Justice, Department of Justice, Manila, for inquiry into the involvement of other persons in the crime. With costs. SO ORDERED. Man-ikx Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 168694

November 27, 2006 [Formerly G.R. No. 150123]

THE PEOPLE OF THE PHILIPPINES, Appellee, vs. SAIDAMIN MACABALANG y MALAMAMA, Appellant.
DECISION TINGA, J.:

Saidamin Macabalang y Malamama (appellant) was charged before the Regional Trial Court (RTC) for violation of Section 15, Republic Act (RA) No. 6425, in an Information which reads: That on July 21, 1999 at or about 8:00 oclock in the evening in Quezon City and within the jurisdiction of this Honorable Court, the above-named accused, without having been authorized by law, did then and there knowingly, willfully, unlawfully and feloniously distribute, sell and deliver to a poseur buyer about One Thousand Nine Hundred Seventy-Two point Six (1,972.6) grams of METHYLAMPHETAMINE HYDROCHLORIDE, otherwise known as "Shabu," a regulated drug. CONTRARY TO LAW.1 Upon arraignment, appellant pleaded not guilty. Trial ensued. On 7 August 2001, the RTC rendered a Decision2finding appellant guilty beyond reasonable doubt for the crime of selling shabu, sentencing him to suffer the penalty of reclusion perpetua and ordering him to pay a fine of P500,000.00. The facts, establishing the case against the appellant, was testified to by the following: PO1 Christopher Guste (PO1 Guste), the poseur-buyer; PO1 Ronnie Fabia (PO1 Fabia), member of the buy-bust operation team; Chief Inspector Leonardo Suan (Inspector Suan), head of the buy-bust team; and Senior Inspector Sonia S. Lodovico, a Forensic Chemist. On 21 July 1999, at around 9:00 oclock in the morning, Inspector Suan, Deputy Chief of the Intelligence Division of Narcotics Command, received a report from a confidential informant that a certain Amin was looking for a buyer of shabu. Inspector Suan instructed his informant to contract with Amin for two (2) kilos of shabu. 3 Two (2) hours later, a fourteen-man buy-bust team was formed by Inspector Suan, with PO1 Guste acting as poseurbuyer.4 After the briefing, Inspector Suan gave PO1 Guste two (2) genuine P1,000.00 bills, marked with letters "CG" and boodle money amounting to P1,000,000.00.5 At 6:00 oclock in the evening of the same day, the team proceeded to the fourth level parking lot of SM City, North Avenue, Quezon City, the meeting place designated by appellant. They observed the area for two (2) hours and positioned themselves within the vicinity. PO1 Guste stayed outside the car with the informant while the others were inside their separate vehicles.6 Two hours thereafter, a Mitsubishi Lancer car, with Plate No. UTD 147, approached the parking lot. Appellant alighted from the car. PO1 Guste and the informant approached him and appropriate introductions were made. Appellant then went to a green Toyota Corolla car, parked next to his car, bearing Plate No. WBH 491. He opened the rear compartment, took out a yellow box, and gave it to PO1 Guste. When appellant asked for the money, PO1 Guste invited the latter over into his own car, which was parked about ten (10) meters away. Upon reaching his car, PO1 Guste checked the contents of the box and found two (2) plastic bags containing white crystalline substance. He immediately gave the money to appellant and stepped out of the car. As a pre-arranged signal to his police

companions to close in, PO1 Guste removed his cap. The rest of the team members converged to where PO1 Guste, the informant and appellant were situated, introduced themselves as policemen, and apprehended appellant. 7 Appellant was brought to the Narcotics Command (Narcom) office at Camp Crame, Quezon City for investigation. PO1 Guste executed an affidavit narrating the incident. The carton containing shabu and the boodle money were turned over to the investigator. On the following day, the confiscated carton containing two (2) plastic bags was brought to the PNP Crime Laboratory, where they were examined by Forensic Chemist Sonia S. Lodovico. The test results confirmed that the white crystalline substance sold by appellant was shabu, weighing a total of 1,972.6 grams.8 In his defense, appellant presented a different version of the incident. At around 8:00 oclock in the evening of 21 July 1999, appellant, accompanied by Mamerto Duetes (Duetes), were at the parking lot of SM North Avenue, Quezon City to meet up with Mr. Lee Ong (Ong). Earlier that day, Ong borrowed Saidamins vehicle, a Mitsubishi Lancer. Ong promised appellant to provide him with a woman to date with. Upon receiving a call from Ong, appellant and his companion proceeded to the fourth floor level of the SM Parking Area on board a Toyota Corolla car. Appellant parked beside the Mitsubishi Lancer driven by Ong. He got out of his car and went inside the Mitsubishi Lancer. Duetes, on the other hand, went to buy a cigarette. Appellant then asked Ong about the women they were going to date. Ong replied that he is going to get them and hurriedly left.9 Soon thereafter, a white Sedan car was speeding towards appellant. It suddenly stopped in front of his car. Five (5) to six (6) armed persons got out from the car. Three (3) other cars followed and its occupants also stepped out of the car. Guns were poked at appellant and he was forcibly taken out of his car and made to board one of the vehicles of the Narcom operatives. Appellant was blindfolded, handcuffed, and brought to Camp Crame. Upon arrival, his cellular phone, wedding ring, checkbook, and wallet containing P2,000.00 and $35.00 were taken from him by the Narcom operatives. He was then brought inside a room and a certain Captain Mendoza entered the room and offered him freedom in exchange for P2,000,000.00 and two (2) signed deeds of absolute sale over the vehicles confiscated from him. When appellant failed to produce the amount on the following day, he was presented to the press people and photographed with the shabu displayed beside him.10 Duetes testified for the defense that on 21 July 1999, he was asked by appellant to accompany him to meet some women that they are going to date. They went to the SM City carpark in Quezon City. He left appellant in the car to buy a cigarette. When he returned to the parking lot, he saw four (4) or five (5) armed men forcibly taking appellant from his car. Duetes got scared and hid behind the staircase. When he got home, he reported the incident to the cashier of the store where he works and asked the latter to inform the sister of appellant. 11 The defense also presented Jovito Abad Mostrales (Mostrales) , a security guard assigned at the SM Carpark Building, who witnessed the forcible taking of appellant. Mostrales told the court that he noticed a white car running against traffic and saw several armed men getting out of the said car. Three other cars followed and their occupants likewise alighted from these cars. They pointed their firearms on the appellant, took him out of his car, and brought him into one of their vehicles.12 Upon evaluation of the evidence presented, the RTC rejected the version of the defense. The trial court found the testimony of Duetes as fabricated and proceeded to disprove each and every point raised: xxxx (a) he [Duetes] testified that Saidamin asked him to accompany the former to SM City, Quezon City because "magchi-chick daw kami." Saidamin is married with his wife and kids living in Quiapo, Manila; while Mr. Duetes is a worker in Saidamins sisters stall in Quiapo. It thus seems rather odd that Saidamin would invite a mere worker of his sister to join him in a romantic escapade for that would mean Saidamin would have to supply Duetes with and defray expenses for the chick that Duetes will be given and risk his extra-marital adventures being known to Saidamins wife, children, sisters, and the like; (b) Duetes demeanor and appearance in court do not appear to be of one capable of engaging in extra martial adventures, together with Saidamin and businessman Lee Ong. Duetes speaks in a very soft-spoken,

almost effeminate manner, not well-kempt in court in contrast to the accused, and his words in defense of Saidamin were not spoken with determination, as one would hear of a witness whose employers brother has been kidnapped before the witness very eyes. (c) According to Mr. Duetes, he asked permission at 8:00 p.m. from Saidamin to leave him for a while in their car to buy cigarettes; he asked a guard at the carpark where he could buy cigarettes and when he was told it is far away, Mr. Duetes decided to return to Saidamin in their car. In that SM carpark, as testified to by the defense witness[,] SM security guard Jovito Mostrales, there are plenty of security guards and indeed, that is correct. Yet, despite the fact that the brother of his amo was "kidnapped" by armed men before his very eyes, Mr. Duetes made no attempt to talk to any of the security guards there who are equipped with the means to communicate with the authorities, or to report the "kidnapping" of Saidamin, who was his only companion in going to SM City, Quezon City, to anybody having to do with operations in that mall. This is rather odd. What adds further oddity in Duetes case is he never even attempted to call his employer or anyone in his employers stall about the abduction of Saidamin. There are a lot of public and private telephones at SM City, Quezon City. To top it all, Mr. Duetes was in no hurry to go home to Port Area, Manila where he lives and work. He went back to the Port Area in an unhurried way and instead of personally contacting his employer (Saidamins sister) about the alleged kidnapping he witnessed, Mr. Duetes talked only to the cashier so the cashier can in turn report to Saidamins sister about the alleged incident. Mr. Duetes behaviour was contrary to what one would naturally expect under the circumstances; (d) When asked by the State Prosecutor (Cielitolindo Luyun) who asked him to testify, Mr. Duetes slow almost swallowed up answer was: "My boss because ako daw po ang nakakita." From this limped and limping answer, one can readily see that Mr. Duetes was instructed to testify and, as he does not perhaps at that point want to do further lying, or perhaps by way of a Freudian slip, he mentioned: "ako daw" which in Tagalog, and Mr. Duetes by his voice does not appear a Mindanaoan denizen, definitely connotes that he was merely instructed to testify.13 The trial court justified the security guards testimony as pertaining only to "drama whose prior occurrence he failed to witness."14 The court explained: (e) While according to Mr. Duetes he never saw any vehicle following the white car where Saidamin was placed by the armed men, the other defense witness, SM guard Mostrales, testified that not one but several vehicles followed the white car with the armed men shouting: "Security guards!!! Tabi! Tabi!" and their vehicles were running with engines blaring like so many hollering metal trinkets. xxxx The court finds no incompatibility with his testimony and that of the police witnesses. It is admitted by the police that after the contraband exchange between Saidamin and PO1 Guste, another police officer (PO1 Fabia), on signal, swooped down on Saidamin and collared him while Saidamin was there inside the car used by PO1 Guste and then he was forcibly taken to a white car, with other policemen inside, which came in full rev. The fact that the armed men in several cars kept on shouting to the SM guards "Tabi! Tabi!" in full hearing and full view, not only of those guards, but also of car drivers and car owners or drivers who were in the carpark level shows that there was no kidnapping that was made for, otherwise, a general alarm would have been raised, SM City, being full of trained security guards who can be expected to know how to deal with a crime taking place right in their commercial establishment.15 The trial court found incredible appellants alibi that he went to the SM Carpark to meet with Ong, who was supposed to bring the pick-up girls for the following reasons:

a. x x x x Indeed, how and where those pick-up girls or chicks will be obtained by Lee Ong, matters that are normally expected to be part of the topic conversation between philandering men if there [are] any such planned rendezvous as Saidamin projected, are sadly lacking in record. b. Saidamins claim that he had a date with Lee Ong is not corroborated x x x x Lee Ong, who should be very interested in assisting Saidamin never appeared before the PNP, DOJ, or this court all these years. c. x x x x Saidamin testified that Lee Ong left but asked him to wait promising that he will just pick up the girls they were supposed to date with. The court finds it abnormal that at such hour of the night, Lee Ong[,] who had a car with him[,] would not still have with him the girls he promised to Saidamin x x x x16 Appellants counter-accusation of kidnapping was likewise rejected by the trial court. The court explained that if the Narcom agents merely wanted money, they would have instead sold the two (2) kilos of shabu for P2 million instead of kidnapping Saidamin. Affirming the findings of the trial court, the Court of Appeals promulgated the assailed Decision 17 on 14 February 2005. The appellate court gave more weight to the evidence presented by the prosecution to establish the commission of the crime: To dispose of the first argument, we reiterate the rule that in crimes involving sale of prohibited or regulated drugs such as shabu, what is only essential is for the prosecution to establish with moral certainty the existence of the following elements, viz: (1) the identity of the buyer and the seller, the object and the consideration[;] and (2) the delivery of the thing sold and the payment therefore. Here, the identity of the seller accused and buyer PO1 Guste, were established. Regarding the object and consideration of the crime, while the box and the plastic bags allegedly containing the drugs, and the boodle money which was to serve as consideration, were not subjected to fingerprint examination, the same would be of no moment. The illegal drugs (shabu) was duly presented before the trial court and the prosecution[;] through the testimonies of the Narcom agents, was able to present in a clear and convincing manner how the sale transaction took place. Thus, the failure to submit to the crime laboratory for fingerprinting purposes the seized box containing the shabu and the plastic bag containing the boodle money did not create a hiatus in the evidence for the prosecution. So long as the sale of the dangerous drugs is adequately proven and the drug itself was presented as evidence in court, the accused can already be convicted on the bases thereof. On the appellants second argument, [w]e find no material inconsistencies in the testimonies of the prosecution witnesses. In fact, the narration of PO1 Ronnie Fabia corroborates the testimony of PO1 Christopher Guste with respect to how the illegal sale of drugs took place. They complement with each other and thereby give a complete picture of how the accused-appellants illegal sale of drugs transpired and how the sale led to his apprehension in flagrante delicto. At the very least, said testimonies established beyond any tinge of doubt that at the time of his apprehension, the drugs were in appellants possession and that he had no authority to possess and sell them.18 The appellate court sustained the regularity of the buy-bust operation conducted by Narcom agents, thus: Anent the issue of irregularities that allegedly attended the buy-bust operation, [w]e find the same to be without merit. The failure to use genuine one million pesos worth of bills in the entrapment procedure as well as the authorities failure to use ultraviolet fluorescent powder did not affect the validity of the buy-bust operation. Such are actually not mandatory. It is enough that the two genuine one thousand peso bills were marked by the poseur-buyer x x x x Note that in this case, the accused-appellant was caught in a legit buy-bust operation. The prosecution witnesses were able to narrate before the trial court in a clear and convincing manner how they were able to apprehend the appellant. Inspector Suan even testified that reports about accused-appellants involvement in the sale of illegal drugs were already received by them even before the subject entrapment took place. It was in fact because of such reports that he instructed their confidential informant to close a deal with the appellant and to meet him on a specified date for the exchange of the illegal drugs and the money.19 The Court of Appeals further debunked appellants claim of kidnapping and extortion:

x x x x He submitted no plausible reason or ill motive on the part of the arresting officers a reason or motive that could have spurred the latter to collar him in particular. It have [sic] been held in numerous cases that extortion, often imputed to police officers, requires strong proof when offered as a defense, because of the presumption that public officers acted in the regular performance of their official duties. 20 The appellate court upheld the validity of the arrest despite the absence of a warrant on the account that appellant was caught in flagrante delicto selling shabu. In his present appeal, appellant lambasts the trial courts conclusion as purely conjectural and speculative, while impugning the legality of the buy-bust operation and claims that what instead took place was kidnapping. Appellant relies on the testimony of Duetes and the security guard to prove that no buy-bust operation was conducted. The Court is not convinced. For the successful prosecution of the illegal sale of shabu, the following elements must be established: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.21 A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan.22 The delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the buy-bust transaction.23 Appellants defense fails in light of the positive identification by prosecution witnesses, which primarily consists of testimonies of police officers who bear the presumption of regularity in the performance of their duties. PO1 Guste, who acted as the poseur-buyer, gave an unequivocal account of the sale that took place on 21 July 1999 leading to the arrest of appellant, thus:
FISCAL LUYUN: Q And after 2 hours, what happened next? A We saw a car coming and a man alighted from that vehicle and our confidential informant told us that it is Amin. Q What is that vehicle? A Mitsubishi Lancer with serial number UTD-147. Q What is your reaction when your informant told you that the man alighted from that [sic] car arrived? A We approached Amin. Q And then what happened when you approached Amin? A Our confidential informant said this is the buyer. xxxx Q And what did he do with the box? A After he got the box[,] he gave it to us and proceeded towards to where we were and he said[,] "[W]here is the money[?]" Q And what was your reply, Mr. Witness? A I said it is in my car and I invited him to come with me. Q How far was your car from where he was standing? A More or less 10 meters. Q Did he go with you to your car? A Yes, sir. Q And what did you do inside the car? A When we both got in my car[,] I checked first the contents of the box. Q What are the contents of the box? A When I opened the box[,] I saw that there were 2 plastic bag [sic] containing white crystalline substance which I suspected to be shabu. I immediately gave him the money and went down from my car. I did not wait for him to check the money anymore. Q Where is that money placed? A [In] that white plastic bag. Q And what is the relation of that money which you gave to Amin? A The same money. COURT: Would you like to measure that[?] FISCAL LUYUN: We are measuring the boodle money about 2 inches and the other boodle money is a little less 2 inches.

ATTY. RATERTA: Admitted. FISCAL LUYUN: Q Could you please describe to us that carton you stated a while ago which is the subject Amin gave it to you? A It is color yellow and sealed with a tape. Q And the contents? A White crystalline substance we suspect as shabu. Q After you alighted from the car, what happened next? A I gave our pre-arranged signal which is by removing my cap. Q What is the significance of that signal? A That the transaction have [sic] been consummated. Q And when you gave that signal, what happened next? A Our backup [was] PO1 Tab[i]a immediately proceeded to the car where Amin positioned and apparently when I went out of the car[,] the back up also went out of his car and proceeded to us. Q And what happened after the backup approached you? A We introduced ourselves as narcotics agents and we informed him of his violation and my arresting officer apprised him of his constitutional rights. Q What happened to the subject when you arrested him? 24 A We already put him inside our vehicle. xxxx Q What happened in your office? 25 A We turned Amin to our investigator, the shabu and the boodle money. xxxx Q If that subject is around and if you will see him again, can you identify him? A Yes, sir. Q Please look around. A That man. INTERPRETER: 26 Witness pointed to a person inside the courtroom who identified himself as Saidamin Macabalang. The poseur-buyers testimony was substantially corroborated by PO1 Fabia, a member of the buy-bust team, who gave a similar account of the events that transpired in court, thus: Q When that subject Mitsubishi Lancer arrived, what did you observe [from] the occupants? A [A] [m]an alighted from that car and [was] immediately approached by PO1 Guste and our confidential informant. Q And what happened when Guste and your confidential informant approached the subject? A They were conversing and I noticed that they were introduced by the confidential informant. Q How do you know that Guste was introduced by the confidential informant? A By analyzing, sir. Q What happened next when [G]uste was introduced by the confidential informant to the subject? A A man went to another car and open[ed] the car and took a box colored yellow. Q Which part of the car? A Compartment, sir. Q How long was that car there in that area? A Since we arrived at the parking area it was already there. Q What did the subject do with the carton? A He handed it to our poseur buyer PO1 Guste. Q What happened when he handed that to the poseur buyer? A They talked for a while and then PO1 Guste together with a man went inside the car of our poseur buyer. Q What were they doing there? A I do not know. Q What did they do after that, what happened next when they went inside that car? A They were [sic] immediately alighted both from the car. Q And what did you do, if any when they alighted from the car. A I noticed our poseur buyer executed the pre-arranged signal. Q What is that pre-arranged signal? A By removing his hat on his head. Q And what is the significance of that by removing his hat? A It means that the transaction was already consummated. Q What did you do? A I immediately rushed up the scene and held the subject on his left shoulder and since he was in possession of [a] white plastic bag containing buy[-]bust money and we announced that we are Narcom agents. Q If that person whom you arrested, if you will see him again, will you able to identify him? A Yes, sir. Q Please look around this courtroom and point to him.

A That man seating beside the wall. INTERPRETER 27 Witness pointed to a person inside the courtroom who identified himself as Saidamin Macabalang. Likewise, Inspector Suan, who headed the buy-bust operation, supported PO1 Guste and Fabias statements on the following material points: FISCAL LUYUN Q And what happened after two hours, Mr. Witness? A Alias Amin arrived on board the dark violet motor vehicle, sir. xxxx Q And where or what did you observe on the occupants of that vehicle, Mr. Witness? A He alighted on the said vehicle, sir. Q What else did you observe when he alighted from the vehicle. A Our informant and PO1 Guste approached Amin, sir. Q What did you notice? A Our informant introduced and talking [sic] to Amin and PO1 Guste [was] introduced to Amin by our informant. Q After that introduction, what happened next? A After about a few minutes, [A]lias Amin proceeded to another car to get the box parked left his car. Q What did he do next? A He opened that box, sir. Q After that what did he do? A He took a box at the parked vehicle, sir. Q What did he do? A He proceeded to the place where PO1 Guste and the informant [was] positioned and handed the box to PO1 Guste. Q By the way Mr. Witness, could you describe to us that car where the subject got the box? A It is colored green, Toyota Corolla, sir. Q Well Mr. Witness, after the subject handed the box to the poseur-buyer[,] what else did they do? A Alias Amin and Guste proceeded to the car of Guste, sir. Q What did they doing [sic] there? A I dont know anymore. Q After that[,] what happened next? A After a few minutes[,] I heard from the radio "go, go, go" signal, sir. Q What is the significance of that ["]go, go, go["] signal? A That means the buy-bust operation [was] consummated already. Q What was the reaction then, when you heard that? A I proceeded to the place where Guste and [A]lias Amin located, sir. Q When you proceeded to that area, where they were, what did you see they [sic] doing? A I noticed that PO1 Fabia arrested alias Amin. Q And how about the box you are referring to? 28 A So I asked Guste[,] {"]where is the stuff, the shabu[?]["] and he showed it to me.

The testimonies of these police officers categorically proved the sale of shabu. Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit. 29 Appellant cites some irregularities attending the alleged buy-bust operation. First, the vehicles used by the police during the operation were not official government vehicles.30 Second, the buy-bust money was not only personally produced by Inspector Suan. It was not even dusted with fluorescent powder. 31 Third, the police officers failed to verify the information given by the informant considering that it is the first time they heard of the appellant. 32 No surveillance was conducted.33 Fourth, the police officers did not coordinate with the security detachment of the place where the buy-bust operation was conducted.34 Fifth, the boxes allegedly containing the shabu and the plastic bags containing money were not subjected to fingerprint examination.35 Sixth, after the buy-bust operation, the police did not make an inventory of the personal effects seized from appellant.36 The alleged irregularities pertain only to minor details which do not affect the guilt of appellant. The type of vehicle used by the police officers does not taint the valid character of the buy-bust operation. In People v. De Guzman, the conviction arising from the buy-bust operation was affirmed despite the use of private vehicles by the NBI agents.37 In People v. Bongalon,38 the fact that the buy-bust team used a private vehicle did not affect the outcome of the case against the accused for the illegal sale of shabu. Besides, the police officers explained that no motor vehicle is issued to the Narcom office. Inspector Suan testified:

FIS. LUYUN: Q Likewise, on March 19, witness Ibrahim Hadji Ali testified that the vehicles or the plate number of the vehicles which you used in the buy[-]bust operation which the same vehicles were also pre-coordinated with the Police Station, Quezon City were not registered or were not owned by the PNP, what can you say about that? A It is true[,] sir. Q And why do you say that[,] Mr. Witness? A Because the government has no motor vehicle issued to us and we have a mobility problem and to avoid that the operation be 39 burned out, we used a plate number to the previous recovered vehicle[,] your Honor.

It is not surprising for Inspector Suan to use his own money during the buy-bust operation. Nor should it be construed as highly irregular. It must be recalled that Inspector Suan formed a team on the same the intended buybust operation was to take place. The briefing was held at 11:00 in the morning and lasted for about an hour. With less than nine (9) hours before the scheduled meeting with appellant, the buy-bust operation team hardly had time to prepare, much less ask for the production of genuine bills to be used for the operation. At any rate, the use of Inspector Suans money does not adversely affect the case against appellant. The failure of Narcom agents to use fluorescent powder on the boodle money does not indicate a failure in the buybust operation. It has been held that the use of fluorescent powder is not indispensable in such operations. 40There is no requirement that the police must apply fluorescent powder to the buy-bust money to prove the commission of the offense. What is material is the delivery of the prohibited drug to the buyer which, in this case, was sufficiently proved by the prosecution through the testimony of the poseur-buyer and the presentation of the article itself before the court.41 Besides, the money was already marked by the poseur-buyer with his initials, "CG."42 Neither is fingerprinting a requirement in buy-bust operations. There is no law or rule of evidence requiring the use of fluorescent powder or the taking of the culprits fingerprints from the bag containing the shabu.43 Appellant belabors the failure of the police officers to conduct surveillance prior to the operation. No surveillance of the area or the subject of the entrapment is necessary where the police officers have a reasonable ground to believe that the informer and the information given were reliable, and that a crime is indeed being perpetrated. The buy-bust operation is formed by the police officers precisely to test the veracity of the tip and in order to apprehend the perpetrator, if he in fact commits the offense, before he further endangers society. It is congruent to the very characteristic of prohibited drugsi.e., their being easily concealed and transferred without threat of detection in small and handy quantities,allows its sale, use and delivery with relative facility.44 While the confidential nature of the buy-bust operation might have prevented the police officers from coordinating with the security administration of SM Carpark, it was however established that they were in close coordination with the Central Police District, as evidenced by the pre-operational coordination sheet45 dated 21 July 1999. This was revealed during the direct examination of Inspector Suan, viz:
FIS. LUYUN: Q And after those preparation[s], [are there] any other preparation in connection with that intended buy-bust operation? A So I instructed PO1 Alfredo Baloy to prepare for the pre-operational sheet for that said operation. Q Did he comply with your instruction? A Yes[,] sir. Q Did he in fact coordinate with the other police station? A Yes[,] sir, he coordinated with the Central Police District. Q Do you have proof to that effect, Mr. Witness? 46 A I have sir, the original copy of the coordination sheet.

Appellant harps on the failure of police officers to make an inventory of the personal effects seized from him. According to appellant, the inventory becomes relevant in light of his accusation that a certain Mendoza, presumably Capt. Mendoza of the Narcotics Command, tore a check from his checkbook, forged his signature, and sought to encash it against appellants account.47 The alleged acts imputed by appellant against Capt. Mendoza were not supported by credible evidence. He failed to establish that Noel Mendoza and Capt. Crisostomo Mendoza were one and the same person. In fact, appellant only knew of Capt. Mendozas name through a police officer guarding him. Furthermore, appellant was not able to substantiate his allegation of forgery attributed to any of the police officers involved in the buy-bust operation or during the investigation proper.

Appellant initially admitted that the checkbook seized from him was intact,48 only to retract it later on and claim that a sheet was possibly torn from the checkbook.49 Appellant also claims that he made a stop-payment order causing the check to be dishonored. It was, however, proven that the check was drawn against an unclear deposit,50 as a consequence of which, the check was returned and it was reflected on Noel Mendozas Statement of Account.51 Furthermore, Noel Mendozas account, which evidently contains a large sum of money, 52 belittles appellants accusation that a measly amount of P120,000.00 was sought to be encashed from a stolen check. These glaring inconsistent statements related to by appellant further fuels suspicions of fabrication. For failure of appellant to support his claim of stolen check, the absence of an inventory of personal effects seized from appellant becomes immaterial to the legitimacy of the buy-bust operation. Once again, the presumption of regularity on the part of the police officers prevails over these bare assertions. The evidence for the prosecution is further reinforced by the Physical Science Report 53 submitted by Sonia S. Lodovico, a forensic chemist, confirming the contents of the two (2) plastic bags delivered by appellant as shabu. She testified, thus:
FIS. LUYUN: Q Madam Witness, after identifying all the markings in this evidence, Madam Witness, what did you do, if any? A I opened the transparent plastic bag and proceeded for examination. First is physical examination, physical test which is the ocular inspection of the specimen including the weight and physical appearance and the second one is the chemical examination which is the simon reagent test, sir. xxxx Q When you said you weight [sic], did you actually weight [sic] the specimen, Madam Witness? A Yes, sir. Q And these are in the bag like for example this Exhibit I there are [sic] indicated weight 981.2 grams and this is the weight excluding the transparent plastic bag? A Yes, your Honor. Q And the same is also in Exhibit J, Madam Witness? A Yes, sir. Q Now let us now go to chemical examination[,] Madam Witness. Please describe to us the procedure followed in chemical examination. A In the chemical test, I got the representative sample only at the transparent plastic bag at random sir. Q How do you do it? A I got the representative sample in the transparent plastic bag by quartering and also at random to represent at representat ive sample sir, and had it put in the spot plate and additional of simon reagent. I put it in the spot plate and dropped simon reagent and after that, it turns blue color which indicates the methylamphetamine hydrochloride. xxxx Q Now, after those thorough examination[,] Madam Witness, the physical and chemical examination, other examination you conducted in this specimen? A I proceeded for confirmatory examination to confirm the last examination sir, which I used the chromatographic thin layer test, sir. Q And please tell us the thin layer chromatographic test, Madam Witness? A Again I got the representative sample in the specimen in quartering method also at random and spotting on the spot plate side by side which I used the standard and question one and put it on the tank, development tank and I found out that the standard methamphetamine and the specimen submitted which is the question one is identical to each other sir. So, I am very sure 100% the entire sample is methylamphetamine hydrochloride, sir. COURT: The first and second examination were the same substance that you used in the 3rd examination? A No, I have to get another representative sample because the sample that was ready used in other examination was already dissolved so I have to get another sample, sir. Q Now Madam Witness, after conducting those physical, chemical and confirmatory and it concluded, after the test gave positive result for methylamphetamine hydrochloride, how do you call now this specimen[,] Madam Witness? 54 A It was Methylamphetamine hydrochloride or shabu, sir.

Appellant casts doubt on the examination conducted by the forensic chemist, as proof of the exact quantity of shabu allegedly confiscated from him. Appellant asserts that the tests merely established the presence of shabu but did not determine its exact percentage.55 He insists that a quantitative examination should have at least been undertaken to

determine the exact quantity of shabu. Consequently, as appellant argues, the penalty of reclusion perpetua imposed upon him, which was derived from the quantity of the regulated drugs involved, is without basis. We have consistently held in numerous cases that a sample taken from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by appellant. 56 Indubitably, appellant was caught in flagrante delicto in selling shabu, leading to his valid arrest without warrant. This fact was proven by the prosecution beyond the reasonable doubt. Appellant avers that the evidence allegedly taken from him is inadmissible on the ground that he signed the receipt of the property seized without the assistance of counsel.57 Admittedly, it is settled that the signature of the accused in the "Receipt of Property Seized" is inadmissible in evidence if it was obtained without the assistance of counsel. The signature of the accused on such a receipt is a declaration against his interest and a tacit admission of the crime charged. 58 However, while it is true that appellant signed receipt of the property seized unassisted by counsel, this only renders inadmissible the receipt itself. In fact, in the case at bar, the evidentiary value of the Receipt of Property Seized is irrelevant in light of the ample evidence proving appellants guilt beyond reasonable doubt. The prosecution was able to prove that a valid buy-bust operation was conducted to entrap appellant. The testimony of the poseur-buyer clearly established that the sale of shabu by appellant was consummated. The corpus delicti, which is the shabu, was presented in court and confirmed by the other members of the buy-bust team. They acknowledged that they were the same drugs placed in two (2) plastic bags seized from appellant. Besides, the prosecution did not present in evidence any receipt of property seized relating to the shabu confiscated from the appellant. Appellant may have testified as to having signed such receipt, but it was not introduced in evidence. What was presented before the Court was a receipt attesting to the seizure from the appellant of two vehicles he was in possession at that time of his arrest, and not that of a shabu in question. Considering that appellant is charged with the sale of shabu, and not of those vehicles, any irregularity that would have attended the signing of the receipt would bear no relevance to the crime for which appellant was charged.
We thus affirm the finding of guilt pronounced by the RTC and the CA. We now turn to the proper imposable penalty. Section 15 in relation to Section 20 of the Dangerous Drugs Act, as amended by Republic Act No. 7659 relevantly provides: SEC. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs.The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug. xxxx SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or instruments of the Crime.The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: x x x x 3. 200 grams or more of shabu or methylamphetamine hydrochloride; x x x x

Following Section 20 in relation to Section 15, the sale of 200 grams or more of shabu is punishable by reclusion perpetua. Taking into consideration the report of the forensic chemist with respect to the quantity of shabu taken from appellant amounting to 1,972.6 grams, we affirm the penalties imposed by the trial court. WHEREFORE, the Decision of the Regional Trial Court of Quezon City dated 7 August 2001 in Criminal Case No. 99-85546 finding appellant guilty beyond reasonable doubt as principal in violating Section 15, RA 6425, as amended for selling shabu and sentencing him to reclusion perpetua and to pay a fine of P500,000.00, is hereby AFFIRMED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 133026 February 20, 2001 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.EDWARD ENDINO (at large) and GERRY GALGARIN alias TOTO, accused. GERRY GALGARIN alias TOTO, accused-appellant. BELLOSILLO, J.: YIELDING to man's brutish instinct for revenge, Edward Endino, with the aid of Gerry Galgarin alias Toto, slew Dennis Aquino in the presence of a lady whose love they once shared.
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On a busy street in Puerto Princesa City in the evening of 16 October 1991, an emboldened Gerry Galgarin, uncle of accused Edward Endino, suddenly and without warning lunged at Dennis and stabbed him repeatedly on the chest. Dennis' girlfriend Clara Agagas who was with him, stunned by the unexpected attack, pleaded to Galgarin to stop. Dennis struggled and succeeded momentarily to free himself from his attacker. Dennis dashed towards the nearby Midtown Sales but his escape was foiled when from out of nowhere Edward Endino appeared and fired at Dennis. As Dennis staggered for safety, the two (2) assailants fled in the direction of the airport. Meanwhile, Dennis, wounded and bleeding, sought refuge inside the Elohim Store where he collapsed on the floor. He was grasping for breath and near death. Clara with the help of some onlookers took him to the hospital but Dennis expired even before he could receive medical attention. According to the autopsy report of Dr. Josephine Goh-Cruz, cause of death was "cardio-respiratory arrest secondary to hypovolemic shock secondary to a stab wound which penetrated the heart."1 On 18 October 1991, an Information for the murder of Dennis Aquino was filed against Edward Endino and accusedappellant Gerry Galgarin and warrants were issued for their arrest. However, as both accused remained at large, the trial court issued on 26 December 1991 an order putting the case in the archives without prejudice to its reinstatement upon their apprehension. On 19 November 1992, Gerry Galgarin was arrested through the combined efforts of the Antipolo and Palawan police forces at a house in Sitio Sto. Nio, Antipolo, Rizal. He was immediately taken into temporary custody by the Antipolo Police. Early in the evening of the following day, he was fetched from the Antipolo Police Station by PO3 Gaudencio Manlavi and PO3 Edwin Magbanua of the Palawan police force to be taken to Palawan and be tried accordingly. On their way to the airport, they stopped at the ABS-CBN television station where accused Galgarin was interviewed by reporters. Video footages of the interview were taken showing Galgarin admitting his guilt while pointing to his nephew Edward Endino as the gunman. According to Galgarin, after attacking Aquino, they left for Roxas, Palawan, where his sister Langging who is Edward's mother, was waiting. Langging gave them money for their fare for Manila. They took the boat for Batangas, where they stayed for a few days, and proceeded to Manila where they separated, with him heading for Antipolo. Galgarin appealed for Edward to give himself up to the authorities. His interview was shown over the ABS-CBN evening news program TV Patrol. The case against accused-appellant Gerry Galgarin was established through the testimony of Clara Agagas who said that she was with the victim Dennis Aquino standing outside the Soundlab Recording Studio, a barhouse owned by him, when Galgarin suddenly approached them and without any prior warning stabbed Dennis. Dennis tried to run away, but Edward, a spurned lover who harbored ill-feelings towards her and Dennis, shot Dennis. She recognized Edward and Gerry because the street was sufficiently lighted.2 The testimony of Clara Agagas was corroborated by Anita Leong, next-door neighbor of Dennis, who testified that a little past six o'clock in the evening of 16 October 1991 Gerry Galgarin together with a companion went to her house looking for Dennis. She instructed them to proceed to the Soundlab Recording Studio as Dennis might still be there. But a few minutes later she heard a Instinctively, she instructed her two (2) young daughters to duck for cover while she anxiously waited for her seven (7)-year old daughter Josephine who was out of the house for an errand for her. Soon enough she heard Josephine knocking at their door. She was crying because she said herKuya Dennis had been shot and stabbed.3

Josephine confirmed her mother's testimony and even said that she had seen Gerry Galgarin stab her KuyaDennis and she could remember Gerry very well because of the mole below his nose.4 For his part, accused-appellant Gerry Galgarin disclaimed having taking part in the slaying of Dennis. Gerry asserted that on 14 October 1991 he was in Antipolo to help his common-law wife Maria Marasigan give birth to their first born. He stayed with her until the 16th of October when she was discharged from the Pedragoza Maternity Clinic.5 Clarita Florentino Pedragoza, the midwife who delivered his son, supported the alibi of accused-appellant. However, she admitted that when she registered the child's birth on 13 December 1993 or more than two (2) years after the delivery, she informed the civil registrar that the child's father was "unknown."6 His story was also confirmed by Dolores Arciaga and Maria Tomenio, his co-workers at the Kainan sa Kubo Sing Along Restaurant, who testified that accused-appellant was fetched by a neighbor from the restaurant in the early afternoon of 14 October with the news that his wife was having labor pains.7 Accused-appellant disowned the confession which he made over TV Patrol and claimed that it was induced by the threats of the arresting police officers. He asserted that the videotaped confession was constitutionally infirmed and inadmissible under the exclusionary rule provided in Sec.12, Art. III, of the Constitution.8 The trial court however admitted the video footages on the strength of the testimony of the police officers that no force or compulsion was exerted on accused-appellant and upon a finding that his confession was made before a group of newsmen that could have dissipated any semblance of hostility towards him. The court gave credence to the arresting officers' assertion that it was even accused-appellant who pleaded with them that he be allowed to air his appeal on national television for Edward to surrender. The alibi of Galgarin was likewise rejected since there was no convincing evidence to support his allegation that he was not at the locus criminis on the evening of 16 October 1991. Accordingly, accused-appellant Gerry Galgarin was convicted of murder qualified by treachery9 and sentenced to reclusion perpetua. Additionally, he was ordered to indemnify the heirs of Dennis Aquino P50,000.00 as compensatory damages and P72,725.35 as actual damages. The case against his nephew and co-accused Edward Endino remained in the archives without prejudice to its reinstatement as soon as he could be arrested.10 In his Appellant's Brief, Gerry Galgarin assails the trial court for rejecting his alibi and admitting his videotaped confession as evidence against him. The argument that accused-appellant could not be at the scene of the crime on 16 October 1991 as he was in Antipolo assisting his wife who was giving birth on the 14th of that month, is not persuasive. Alibi is a weak defense. The testimony of Cornelio Tejero Jr.,11 Philippine Airlines Load Controller of the Puerto Princesa City, that the name of "Gerry Galgarin" did not appear on their passenger manifest for the 16 October 1991 Manila-Puerto Princesa flight, could not be relied upon inasmuch as he himself admitted that they could not be sure of their passengers' real identities. The testimonies of accused-appellant's co-workers that he was in Antipolo on 14 October 1991 did not fortify his defense either since these witnesses did not categorically state that they saw him in Antipolo in the evening of 16 October 1991. With accused-appellant having been positively identified by the prosecution witnesses as the one who stabbed Dennis, his bare denial proves futile and unavailing. Josephine Leong's identification of accused-appellant was given in a very categorical and spontaneous manner. Her confidence as to the attacker's identity was clearly shown by her vivid recollection of him having a mole below his nose, which is correct. Moreover, it is inconceivable for Josephine and Anita to implicate accused-appellant, a complete stranger to them, if there was no truth to their assertion. As for Clara, her naming of accused-appellant as her boyfriend's assailant was not done out of spite, but was impelled by her desire to seek justice for Dennis. Corroborating further accused-appellant's guilt, probably with intense incriminating effect, were his immediate flight after the slaying, and his attempt at jailbreak12 revealing a guilty conscience, hence, his persistent effort to evade the clutches of the law. Apropos the court a quo's admission of accused-appellant's videotaped confession, we find such admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced

into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been symphatetic with him. As the trial court stated in its Decision13 Furthermore, accused, in his TV interview (Exh. H), freely admitted that he had stabbed Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no showing that the interview of accused was coerced or against his will. Hence, there is basis to accept the truth of his statements therein. We agree. However, because of the inherent danger in the use of television as a medium for admitting one's guilt, and the recurrence of this phenomenon in several cases,14 it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.
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We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of counsel then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution. With all the evidence tightly ringed around accused-appellant, the question that next presents itself is whether the trial court correctly denominated the crime as murder qualified by treachery. Doubtless, the crime committed is one of murder considering that the victim was stabbed while he was simply standing on the pavement with his girlfriend waiting for a ride, blissfully oblivious of the accused's criminal design. The suddenness of the assault on an unsuspecting victim, without the slightest provocation from him who had no opportunity to parry the attack, certainly qualifies the killing to murder.15 WHEREFORE, the Decision of the court a quo finding accused-appellant GERRY GALGARIN alias Toto guilty of Murder qualified by Treachery, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Dennis Aquino in the amount of P50,000.00 as compensatory damages and P72,725.35 as actual damages, isAFFIRMED with the MODIFICATION that accused-appellant is further ordered to compensate the decedent's heirs P50,000.00 as moral damages for their emotional and mental anguish. Costs against accused-appellant. SO ORDERED. Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 117487 December 12, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALICANDO y BRIONES, accused-appellant. PUNO, J.: The case at bar involves the imposition of the death penalty. With all our frailties, we are asked to play the role of an infallible God by exercising the divine right to give or take away life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse, our error can result in the worst of crimes murder by the judiciary. The records reveal that appellant Arnel Alicando was charged with the crime of rape with homicide 1 in an Information which reads: That on or about the 12th day of June 1994 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force, violence and intimidation to wit: by then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of age, choking her with his right hand, succeeded in having carnal knowledge with her and as a result thereof she suffered asphyxia by strangulation fractured cervical vertebra and lacerations of the vaginal and rectal openings causing profuse hemorrhages and other injuries which are necessarily fatal and which were the direct cause of her death. CONTRARY TO LAW. On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of the PAO, Department of Justice. Appellant pleaded guilty. After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It also set the case for reception of evidence for the appellant, if he so desired. 2 The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla, father of the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them but every now and then would take leave and return. Appellant was living in his uncle's house some five (5) arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's group stopped drinking and left. Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's length from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the window of appellant's house. She offered to buy her "yemas" but appellant closed the window. Soon she heard the victim crying. She approached appellant's house and peeped through an opening between its floor and door. The sight shocked her appellant was naked, on top of the victim, his left hand choking her neck. She retreated to her house in fright. She gathered her children together and informed her compadre, Ricardo Lagrana, then in her house, about what she saw. Lagrana was also overcome with fear and hastily left. Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae. He and his wife searched for her until 1 o'clock in the morning. Their effort was fruitless. Rebada was aware that the Penecillas were looking for their daughter but did not tell them what she knew. Instead, Relada called out appellant from her window and asked him the time Khazie Mae left his house. Appellant replied he was drunk and did not know. As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to answer the call of nature. He discovered the lifeless body of Khazie Mae under his house. Her parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed the crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally confessed his guilt without the assistance of counsel. On the basis of his uncounselled verbal confession and follow up interrogations, the police came to know and recovered from appellant's house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained T-shirt all of which were presented as evidence for the prosecution.

The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His autopsy report reveals the following injuries sustained by the victim:
HEAD & NECK/THORACO-ABDOMINAL REGIONS: 1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right anterior neck, down to the medial portion of the left and right infraclavicular area. 2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest wall. 3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right antero- inferior chest wall. 4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch. 5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac crest. ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES: a) Fractured, 2nd cervical vertebra. b) Fractured, crecoid cartilage. c) Both lungs, expanded with multiple petechial hemorrhages. d) Other internal organs, congested. EXTREMITIES: 1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd, left forearm. 2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm. 3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd, right forearm. VAGINAL FINDINGS/ANAL FINDINGS: a) Lacerated wound, from the fourchette up to the dome of the rectum.. b) Hematoma, from the fourchette up to the rectum. c) Lacerated wound, lateral wall of the vagina up to the level of the promontory of the sacrum with a length of 8 centimeters. d) A cylinder with a diameter of 2 cms., easily passes the vaginal and anal openings. CAUSE OF DEATH: A) ASPHYXIA BY STRANGULATION. B) FRACTURED, 2nd CERVICAL VERTEBRA. C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL & RECTAL OPENINGS.

Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove that the proximate cause of Khazie Mae's death was asphyxia by strangulation. On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz: WHEREFORE, the court hereby finds the accused, Arnel Alicando, GUILTY beyond reasonable doubt for (sic) the Crime of Rape with Homicide penalized under Article 335 of the Revised Penal Code as amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No. 7659. Arnel Alicando is hereby sentenced to suffer a (sic) penalty of death and to indemnify the heirs of the offended party, Khazie Mae D. Penecilla, the sum of P50,000.00. The death sentence shall be executed by putting the person under sentence to death by electrocution (electric chair). As soon as facilities are provided by the Bureau of Prisons, the method of carrying out his sentence shall be changed by gas poisoning (sic). Here ends Khazie Mae's quest for justice. Her tormentor must suffer for the grievous offense he had committed. He deserves no mercy. Cost against the accused. SO ORDERED. The case is before us on automatic review considering the death penalty imposed by the trial court. A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant assails the decision of the trial court as a travesty of justice. We find that the Decision of the trial court sentencing the appellant to death is shot full of errors, both substantive and procedural. The conviction is on an amalgam of inadmissible and incredible evidence and supported by scoliotic logic. First. The arraignment of the appellant is null and void. The trial judge failed to follow section (1) (a) of Rule 116 on arraignment. Said section provides:

xxx xxx xxx Sec. 1. Arraignment and plea; how made. (a) The accused must be arraigned before the court where the complaint or information has been filed or assigned for trial. The arraignment must be made in open court by the judge or clerk by furnishing the accused a copy of the complaint or information with the list of witnesses, reading the same in the language or dialect known to him and asking him whether he pleads guilty or not guilty. The prosecutor may, however, call at the trial witnesses other than those named in the complaint or information. The reading of the complaint or information to the appellant in the language or dialect known to him is a new requirement imposed by the 1985 Rules on Criminal Procedure. It implements the constitutional right of an appellant ". . . to be informed of the nature and cause of the accusation against him." 3 The new rule also responds to the reality that the Philippines is a country divided by dialects and Pilipino as a national language is still in the process of evolution. 4 Judicial notice can be taken of the fact that many Filipinos have limited understanding either of the Pilipino or English language, our official languages for purposes of communication and instruction. 5 The importance of reading the complaint or information to the appellant in the language or dialect known to him cannot thus be understated. In the case at bar, the records do not reveal that the Information against the appellant was read in the language or dialect known to him. The Information against the appellant is written in the English language. It is unbeknown whether the appellant knows the English language. Neither is it known what dialect is understood by the appellant. Nor is there any showing that the Information couched in English was translated to the appellant in his own dialect before his plea of guilt. The scanty transcript during his arraignment, reads: 6 xxx xxx xxx
Prosecutor Edwin Fama Appearing as public prosecutor Atty. Rogelio Antiquiera For the accused, Your Honor. Ready for arraignment. Interpreter (Reading the information to the accused for arraignment and pre-trial.) Note: (After reading the information to the accused, accused pleads guilty)

One need not draw a picture to show that the arraignment of the appellant is a nullity. It violated section 1(a) of Rule 116, the rule implementing the constitutional right of the appellant to be informed of the nature and cause of the accusation against him. It also denied appellant his constitutional right to due process of law. 7It is urged that we must presume that the arraignment of the appellant was regularly conducted. When life is at stake, we cannot lean on this rebuttable presumption. We cannot assume. We must be sure. Second. The plea of guilt made by the appellant is likewise null and void. The trial court violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section provides: Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. The records reveal how the trial judge inadequately discharged this duty of conducting a "searching inquiry." In the hearing of June 28, 1994, the transcripts reveal the following: 8
Note (After reading the information to the accused, accused pleads guilty.) Court Question (sic) of the court to the accused. Q Considering that this is a crime and under the amended law is a heinous crime, because of your plea of guilty without the consent or even against the discretion of the court, the court will give you a mandatory death penalty because of the crime charged, do you understand? Accused Yes, Your Honor. Q Did you enter a plea of guilty on your own voluntary will or without any force or intimidation from any one or whatever? Accused None, Your Honor. Q Are you sure? Accused Yes, Your Honor. Q Or maybe because you were manhandled or maltreated by anyone and that will just be the consideration for you toplead guilty? Accused No, Your Honor.

Court Were you not manhandled, please let us see your body? Note (Accused raised his prison uniform or shirt and showed to the court his body from waist up.) Accused No, Your Honor. Court You were not maltreated in the jail? Accused No, Your Honor. Court Please let us see whether you have bruises so that you will be examined by a physician to the order of the court? Accused No, Your Honor. Court If you will plead guilty, that plea of guilty has no use because there will be a mandatory death penalty, do you stillinsist on your plea of guilty? Accused Yes, Your Honor. Court If you plead guilty to the crime charged there will be some effects on your civil rights hut not until the decision will be affirmed by the Supreme Court. Accused Yes, Your Honor. Note (See Order dated June 28, 1994 attached to the records of this case.) In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9 xxx xxx xxx Fiscal Fama: Appearing as the public prosecutor, ready, Your Honor. Our first witness is Dr. Tito Doromal, Your Honor. Atty. Antiquiera: For the accused, Your Honor. Court Before the court will proceed with the reception of evidence by the prosecution Arnel Alicando, please come here. (at this juncture, Arnel Alicando, come near to the court) The court is warning you again that this is reception of evidence by the prosecution after you plead guilty to the crime charged at, do you understand? A Yes. Q Do you still affirm and confirm to your plea of guilty of rape with homicide? A Yes, Your Honor. Q Do you still insist that your plea of guilty is voluntary without force, intimidation or whatsoever? A Yes. Q The court is warning you that after reception of evidence, the imposable penalty is mandatory death? A Yes, Your Honor. Q Despite of that, you still insist on your plea of guilty? A Yes, Your Honor. Court Okey, proceed.

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated the decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of cases. 11 The bottom line of the rule is that the plea of guilt must be based on a free and informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1) the voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. The questions of the trial court failed to show the voluntariness of the plea of guilt of the appellant nor did the questions demonstrate appellant's full comprehension of the consequences of his plea. The records do not reveal any information about the personality profile of the appellant which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt. The age, socio-economic status, and educational background of the appellant were not plumbed by the trial court. The questions were framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will be noted too that the trial court did not bother to explain to the appellant the essential elements of the crime of rape with homicide. A cursory examination of the questions of the trial court to establish the voluntariness of appellant's plea of guilt will show their utter insufficiency. The trial court simply inquired if appellant had physical marks of maltreatment. It did not ask the appellant when he was arrested, who arrested him, how and where he was interrogated, whether he was medically examined before and after his interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as if involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the following damning entry on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was mobbed by inmates while in jail and had suffered hematoma, viz: c-0262-94 INFORMATION - 2:50 PM, P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC, informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this date when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of Rizal, Palapala Zone I, CP, been arrested and mobbed by the irrate residents of Zone II Rizal, Palapala, GP, in connection of the Rape with Homicide case wherein the victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place who was discovered dead under the house thereat. Suspect when turned over to this office and

put on lock up cell was also mobbed by the angry inmates thus causing upon him hematoma contusion on different parts of his body. Likewise, the trial court's effort to determine whether appellant had full comprehension of the consequences of his plea is fatally flawed. It warned the appellant he would get the mandatory death penalty without explaining the meaning of "mandatory" It did not inform the appellant of the indemnity he has to pay for the death of the victim. It cautioned appellant there ". . . will be some effects on your civil rights" without telling the appellant what those "effects" are and what "civil rights" of his are involved. Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses cannot rest alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the appellant and the precise degree of his culpability beyond reasonable doubt. This rule modifies prior jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain a conviction charged in the information without need of further proof. The change is salutary for it enhances one of the goals of the criminal process which is to minimize erroneous conviction. We share the stance that "it is a fundamental value determination of our system that it is far worse to convict an innocent person than let a guilty man go free. 12 Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant, were inadmissible, yet, were considered by the trial court in convicting the appellant. Thus, the trial court gave full faith and credit to the physical evidence presented by the prosecution. To quote its Decision, 13 viz: xxx xxx xxx Further, there are physical evidence to prove Khazie was raped. These consists of a pillow with
bloodstains in its center 14 and the T-shirt 15 of the accused colored white with bloodstains on its bottom. These physical evidence are evidence of the highest order. They strongly corroborate the testimony of Luisa Rebada that the victim was raped.

These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City PNP as a result of custodial interrogation where appellant verbally confessed to the crime without the benefit of counsel. PO3 Tan admitted under cross-examination, viz: 16
xxx xxx xxx CROSS-EXAMINATION BY ATTY. ANTIQUIERA: Q Mr. Witness, when for the first time did you see Arnel Alicando? A June 13, 1994, when I arrested him. Q Previous to that you have never seen him? A Yes, sir. Q When for the first time did you start investigating Arnel Alicando? A After I finished investigating the body of the victim, Khazie Mae Penecilla. Q And that was also after you were informed that Arnel Alicando was a suspect in the raping of Khazie Mae Penecilla? A Yes, sir Atty. Antiquiera: Q And who was that person who informed you of the suspect? A Luisa Rebada. Q Mrs. Rebada who is the witness in this case? A Yes, sir. Q And you started investigating Arnel Alicando in the morning of June 13, 1994? A Yes, sir. Q How long did you interrogate Arnel Alicando in the morning of June 13, 1994? A I cannot remember the length of time I investigated him. Q Did it take you the whole morning of June 13, 1994 in interrogating and investigating Arnel Alicando? A Yes, sir. Q And the investigation you conducted continued in the afternoon of the same date? A Yes, sir. Q The following day, June 14, 1994, you still investigated and interrogated Arnel Alicando. A Yes, sir. Q And when did you stop, finally, investigating and interrogating Arnel Alicando?

A After I finished recovering all the exhibits in relation to this case. Q What date did you stop your investigation? A June 14, 1994, when I finished recovering the white T-shirt and pair of earring. Atty. Antiquiera: Q You testified in this case, Mr. Witness, you never informed the court that you apprised the accused of his constitutionalrights, is that correct? A I apprised him. Q My question is, during your testimony before this court under the direct examination of the prosecution you never informed the court that you apprised the accused of his constitutional rights? Pros. Fama: I did not ask him that question. How will he answer? Court: Sustained. Atty. Antiquiera: Q When did you inform, the date when you informed Alicando of his Constitutional rights? A On June 13. Q On what hour did you inform him? A After the witness identified him. Q What constitutional rights did you inform Alicando of? A The right to remain silent, and right to get his lawyer and I have interpreted in Visayan language. Q And during your investigation for almost two (2) days the accused was never represented by counsel, is that correct? A Yes, sir. Atty. Antiquiera: Q Are you aware of the law that enjoins a public officer to inform the person of his constitutional rights? A Yes, sir. That is all, Your Honor.

It is now familiar learning that the Constitution has stigmatized as inadmissible evidence uncounselledconfession or admission. Section 12 paragraphs (1) and (3) of Article III of the Constitution provides: xxx xxx xxx Sec. 12. (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. xxx xxx xxx (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him. In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important confession of the appellant in writing. Neither did he present any writing showing that appellant waived his right to silence and to have competent and independent counsel despite the blatant violation of appellant's constitutional right, the trial court allowed his uncounselled confession to flow into the records and illicitly used it in sentencing him to death. It is not only the uncounselled confession that is condemned as inadmissible, but also evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were evidence derived from the uncounselled confession illegally extracted by the police from the appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17 xxx xxx xxx

We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States. 18 According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the " fruit " ) derived from it is also inadmissible. 19 Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. 20 We applied this exclusionary rule in the recent case of People vs.Salanga, et al., 21 a ponencia of Mr. Justice Regalado. Salanga was the appellant in the rape and killing of a 15-year old barrio lass. He was, however, illegally arrested. Soldiers took him into custody. They gave him a body search which yielded a lady's underwear. The underwear was later identified as

that of the victim. We acquitted Salanga. Among other reasons , we ruled that "the underwear allegedly taken from the appellant is inadmissible in evidence, being a so-called "fruit of the poisonous tree." 22 But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the trial court erred in holding that they "strongly corroborated the testimony of Luisa Rebada that the victim was raped." For one, there was no basis for the trial court to conclude that the stains on the pillow and t-shirt were human bloodstains. The pillow and the t-shirt were not examined by any expert. To hold that they were human bloodstains is guesswork. For another, there was no testimony that the stains were caused by either the blood of the appellant or the victim. In addition, there was no testimony that the tshirt was the one worn by the appellant when he allegedly committed the crime. It must also be noted that it is not unnatural for appellant to have bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla himself, the father of the victim, testified he knows the appellant "becausehe used to accompany me during butchering of animals." 23 The burden to prove that an accused waived his right to remain silent and the right to counsel before making a confession under custodial interrogation rests with the prosecution. It is also the burden of the prosecution to show that the evidence derived from confession is not tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and convincing evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides only one mode of waiver the waiver must be in writing and in the presence of counsel. In the case at bar, the records show that the prosecution utterly failed to discharge this burden. It matters not that in the course of the hearing, the appellant failed to make a timely objection to the introduction of these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy burden of proof that rested on the prosecution. There is no and there ought not to be any disagreement on basic principles. The Court should be concerned with the heinousness of the crime at bar and its despicable perpetration against a 4-year old girl, an impersonation of innocence itself. The Court should also be concerned with the multiplication of malevolence in our midst for there is no right to be evil, and there are no ifs and buts about the imposition of the death penalty as long as it remains unchallenged as part of the laws of our land. These concerns are permanent, norms hewn in stone, and they transcend the transitoriness of time. Be that as it may, our commitment to the criminal justice system is not only to convict and punish violators of our laws. We are equally committed to the ideal that the process of detection, apprehension, conviction and incarceration of criminals should be accomplished with fairness, and without impinging on the dignity of the individual. In a death penalty case, the Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction will leave a lasting stain in our escutcheon of justice. In sum, the Court cannot send the appellant to die in the electric chair on the basis of the procedural irregularities committed by, and the inadmissible evidence considered by the trial court. In Binabay vs. People, et al., 24ponencia of Mr. Chief Justice R. Concepcion, this Court held that no valid judgment can be rendered upon an invalid arraignment. Since in the case at bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness to the appellant, and in justice to the victim, the case has to be remanded to the trial court. for further proceedings. There is no philosophy of punishment that allows the State to kill without any semblance of fairness and justice. IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel Alicando of the crime of Rape with Homicide and sentencing him to suffer the penalty of death is annulled and set aside and the case is remanded to the trial court for further proceedings. No costs. SO ORDERED. Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug, Francisco and Panganiban, JJ., concur.

EN BANC PEOPLE OF THEPHILIPPINES, Appellee, G. R. No. 170470 Present: PANGANIBAN, C.J., PUNO, Q U I S U MB I N G , Y N A R E S - S A N TI A G O , S A N D O V A L - G U TI E R R E Z , CARPIO, A U S T R I A - MA R T I N E Z , CORONA, C A R P I O MO R A L E S , CALLEJO, SR., AZCUNA, TI N G A , CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ. Promulgated:

- versus -

EDNA MALNGAN y MAYO, Appellant.

September 26, 2006 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N

C H ICO - N AZ AR IO , J. :

The Case For review is the Decision [ 1 ] of the Court of Appeals in CA-G.R. CR HC No. 01139 promulgated on 2 September 2005, aff irming wit h modif ication the Judgment [ 2 ] of the Regional Trial Court (RTC) of Manila, Branch 41, in Crim inal Case No. 01 -188424 promulgated on 13 October 2003, f inding appellant Edna Malngan y Mayo ( Edna) guilt y beyond r easonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people, and sentencing her to suff er the penalt y of d eath. The Facts As summarized [ 3 ] by the Court of Appeals, the antecedent facts are as f ollows:

From the personal account of Rem igio Bernardo, the Barangay Chairman in the area, as well as the personal account of the pedicab driver named Rolando Gruta, it was at ar ound 4:45 a.m. on Januar y 2, 2001 when Remigio Ber nardo and his tanods saw the accused -appellant EDNA, one hir ed as a housem aid by Roberto Separa, Sr., with her head turning in dif f erent direct ions, hurriedly leaving the house of her employer at No. 172 Moder na Street , Balut, Tondo, Manila. She was seen to have boarded a pedicab which was driven by a person later ident if ied as Rolando Gruta. She was heard by t he pedicab dr iver to have instruct ed that she be brought to Nipa Street, but upon her arrival t here, she changed her m ind and asked that she be brought instead to Balasan Street where she f inally alighted, af ter paying f or her f are.

Thirty m inutes later, at around 5:15 a.m. Barangay Chairman Bernardos group later discovered that a f ire gutted t he house of the employer of the housemaid. Barangay Chairman Bernardo and his tanods responded to the f ire upon hearing shouts f rom the residents and thereaf ter, f iremen f rom the Fir e District 1 - NCR arrived at the f ire scene to cont ain the f ire. W hen Barangay Chairman Bernardo returned to the Barangay Hall, he received a report f rom pedicab dr iver Rolando Gruta, who was also a tano d, that shortly bef ore the occurrence of the f ire, he saw a woman ( the housemaid) com ing out of the house at No. 172 Moderna Str eet, Balut, Tondo, Manila and he received a call f rom his wif e telling him of a woman (the same housemaid) who was acting strang ely and suspiciously on Balasan Street. Bar angay Chairman Bernardo, Rolando Gruta and the other tanods proceeded to Balasan Street and f ound the woman who was later identif ied as the accused -appellant . Af ter Rolando Gruta positively ident if ied t he woman as the same person who lef t No. 172 Moder na Street, Balut, Tondo, Manila, Barangay Chairman Bernardo and his t anods apprehended her and brought her to the Barangay Hall f or investigation. At the Barangay Hall, Mercedit a Mendoza, neighbor of Robert o Separa, S r. and whose house was also burned, identif ied the woman as accused -appellant EDNA who was the housemaid of Roberto Separa, Sr. Upon inspection, a disposable lighter was f ound inside accused appellant EDNAs bag. Thereafter, accused -appellant EDNA conf esse d to Barangay Chairman Bernardo in the pr esence of multitudes of angry residents outside the Barangay Hall that she set her employer s house on f ire because she had not been paid her salar y f or about a year and that she wanted to go home to her province bu t 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 St ation in Sta. Cruz, Manila where she was f urther invest igated and then detained. W hen Mercedita Mendoza went to the San Lazaro Fire St ation to give her sworn statement, she had the opportunity to ask accused -appellant EDNA at the latter s detention cell why she did the burning of her employers house and accusedappellant EDNA replied that she set the house on f ire because when she asked permission to go home to her province, the wif e of her employer Roberto Separa, Sr., named Virginia Separa (sic) shout ed at her: Sige umuwi ka, pagdat ing mo maputi ka na. Sumakay ka sa walis, pagdating mo maput i ka na (TSN, Januar y 22, 2002, p.6) (Go ahead, when you arrive your color would be f air already. Ride a broomstick, when you arrive your color would be f air already. ) And when Mercedita Mendoza asked accused -appellant EDNA how she burned the house, accused appellant EDNA told her: Naglukot ako ng maram ing diyaryo, sinindihan ko ng disposable lighter at hinagis ko sa ibabaw ng lamesa sa loob ng bahay (TSN, Januar y 22, 2002 , p. 7.) (I crumpled newspapers, lighted t hem with a disposable lighter and threw them on top of the table inside the house.) W hen inter viewed by Carmelita Valdez, a reporter of ABS -CBN Net work, accused-appellant EDNA while under det ention (sic) was he ard by SFO4 (sic) Danilo Talusan as having admitted the cr ime and even narrated the manner how she accomplished it. SFO4 (sic) Danilo Talusan was able t o hear the same conf ession, this time at his hom e, while watching the television program True Crime ho sted by Gus Abelgas also of ABS - CBN Net work. The f ire resulted in [the] destruction of the house of Roberto Separa, Sr. and other adjoining houses and the deat h of Roberto Separa, Sr. and Virginia Separa together with their f our (4) children, nam ely: Mic hael, Daphne, Priscilla and Roberto, Jr.

On 9 Januar y 2001, an Inf ormation [ 4 ] was f iled bef ore the RTC of Manila, Branch 41, charging accused-appellant with the crim e of Arson with Mult iple Homicide. The case was docketed as Cr iminal Case No. 01 - 188424. The accusator y portion of said Inf ormation provides: That on or about Januar y 2, 2001, in the Cit y of Manila, Philippines, the said accused, with intent to cause damage, did then and there willf ully, unlawf ully, f eloniously and deliber ately set f ire upon the t wo -stor ey resident ial house of ROBERTO SEPARA and f amily mostly made of wooden materials locat ed at No. 172 Moderna St., Balut, Tondo, this cit y, 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 t hickly populat ed place and as a consequence thereof a conf lagration ensued and the said build ing, together with some seven ( 7) adjoining residential houses, were razed by f ire; that by reason and on the occasion of the said f ire, the f ollowing, namely,
1. 2. 3. 4. 5. 6. Ro b er t o S e par a , Sr ., 4 5 ye a rs of ag e V ir gi n i a S ep ara y M e nd o za , 4 0 ye a rs of a ge M ic h a e l S ep ara , 2 4 ye a rs of ag e Da p hn e S e p ara , 1 8 ye a rs of ag e Pr is c i ll a Se par a , 14 ye ars of a g e Ro b er t o S e par a , J r ., 1 1 ye ars of ag e

sustained burn injuries which were the direct caus e of their death immediately thereaf ter. [ 5 ] W hen arraigned, accused -appellant with assistance of counsel de [6] oficio, pleaded Not Guilt y to the cr ime charged. Thereaf ter, trial ensued. [ 7 ] The prosecut ion pr esented f ive (5) wit nesses, namely, SPO4 [ 8 ] Danilo Talusan, Rolando Gruta, Remigio Ber nardo, Mercedita Mendoza and Rodolf o Movilla to establish its charge that accused-appellant Edna committed the cr ime of arson wit h multiple homicide. SPO4 Danilo Talusan, arson investigat or, testif ied that he was one of t hose who

responded t o the f ire that occurred on 2 Januar y 2001 and which started at No. 172 Moderna St., Balut, Tondo, Manila. He stated that the f ire killed Roberto Separa, Sr. and all the ot her members of his f amily, namely his wif e, Virginia, and his children, Michael, Daphne, Priscilla and Roberto, Jr.; the f ire also destroyed their abode as well as six neighboring houses. He likewise testif ied that he t wice hear d accused - appellant once while the latter was being inter viewed by Carmelita Valdez, a reporter of ABS - CBN, and the other t ime when it was shown on channel 2 on television during the airing of the television program entitled True Crime hosted by Gus Abelgas conf ess to having committed the crime charged, to wit:
Pr os . Re b ag a y: B as e d on yo u r i n v es ti g at i on , was t h ere an y oc c as i o n wh en t he ac c us e d Ed n a Ma l n ga n a dm itt e d to t he bur n i ng of t he h o us e of t h e S ep ar a Fam i l y? x x x x W itnes s : Yes , s ir . Pr os . R e ba g a y:

W hen was th at ? A: O n J an u ar y 2 s he was i nt er v ie we d b y th e m e di a , s ir. T he o ne wh o t o ok th e c o v er ag e was C arm el i ta V al d e z of Cha n ne l 2 , A B S - CB N. T h e y h a ve a f oot a ge t h at Ed n a a dm itt ed bef ore t h em , s ir . Q: A nd wh er e we r e yo u wh e n E d na M a ln g an m ad e th a t s ta tem en t or a dm i s s io n to Carm e li t a V a ld e z of A B S - C B N ? A: I was a t o ur of f i c e, s ir . Q: W as ther e a n y o t h er oc c as i on wh ere i n th e ac c us e d m ad e a no th er c o nf es s i on re la t i ve t o t he adm is s i on of t he c r im e? A: Yes , s ir . Q: W hen was th a t ? A: Las t Fr id a y, s ir . It was s ho wn i n T rue Crim e of G us A be l gas . S h e wa s i nt er v i e wed a t th e C it y J a i l a n d s he a dm itt e d th at s he was t he on e wh o a u th or ed t he c r im e, s ir . Pr os . R e ba g a y: An d wh er e wer e yo u wh e n th at adm is s i on t o G us Ab e l gas was m ad e ? A: I was i n t he ho us e an d I j us t s a w i t o n t v, s i r. Q: W hat was th at adm is s i on th a t yo u h ear d p ers o n a ll y, wh en yo u we re pr es en t, w he n th e ac c us e d m ade t h e c onf es s i o n to C arm el i t a V a ld e z? A: N a g luk o t po s i y a ng p ap e l, s i n i di h a n niy a n g li g ht er at i n i la g ay niy a s a i ba b aw n g mes a y u n g mg a d iy ar y o at s in u no g n iy a. x x x x Q: A: A s i d e f r om th at s ta tem en t, was t h er e an y o th er s ta t em ent m ad e b y th e ac c us e d E dn a Ma l n ga n ? Yes , s ir . Kay a po niy a na g aw a y o n ga l it po s iy a s a k an y an g a m o n a s i V ir g i n ia , h in d i s iy a p i nas u we l d o a t gus t o n a po n iy a ng u m uw i na (s ic ) ay a w s iy a ng p ay ag a n. Na gs al i ta p a p o s a k a ny a n a, S um ak ay k a na l an g s a w a lis . Pa g b a lik m o d i to m ap ut i k a n a . ( s ic ) Y o n p o a ng s in a b i ng k any a ng am o .

At t y. Mas we n g: T ha t wa s a s t at em ent of a n a l le g ed d ea d p ers on , yo u r Ho n o r. C our t: S a b i n i V al d es , h a ? Pr os . Re b ag a y: S ab i n i Ed n a Ma l n g an k ay Car m e l it a V a ld e z, Yo ur H o no r. C our t: D o u bl e h e a r s ay n a y on . Pr os . R eb a g a y: N o, Your Ho n or , th e wi tn es s was pres e nt , Yo ur Ho n or, wh e n t ha t [9] c onf es s i o n was m ad e b y th e ac c us ed t o C ar m eli ta Va l d e z. Ro l an d o G ru ta , t he p e d ic a b dr i v er a nd o n e o f th e b ara n g a y t a n ods i n th e ar e a, t es t if i e d: Pr os . R e ba g a y: Mr. W itnes s , w ha t is yo ur pr of es s i on ? A: S id ec ar dr i v er , s ir . Q : O n J a nu ar y 2 , 2 0 01 at ar o un d 4 :4 5 i n t he m orn i ng , d o yo u r e c a ll wh er e wer e (s ic ) you ? A: I was a t th e c or ner of M o der n a S tr ee t, s ir . Pr os . R e ba g a y: A nd wh i l e yo u wer e at th e c orn er of M o der n a St ., wh at h ap pe n ed if a n y, Mr . W itnes s ? A: I s a w E d na c o m ing o ut f r om th e d o or of th e h o us e of R ob er to Se p ara , s ir . Q: Do yo u k no w t h e n um ber of t h e h ous e of th e S e pa ra F am il y? A: 17 2 M od er n a S t., B al u t, T on d o, M a ni l a, s ir. x x x x A nd yo u s a id you s a w Ed n a c om in g ou t f rom th e h ous e of th e S ep ar a F am il y. H o w f ar is t ha t h o us e f r om th e p l ac e wh er e yo u were wa i t in g a t t he c or n er of M o der n a a nd P au l i no Str e ets ? A: Ab o ut t hr ee m et er s f r om Mod er na an d P a u l in o S tr ee ts wh er e m y p e dic a b was p lac e d. M y d is t anc e w as a bo ut t hr e e m et ers , s ir . x x x x Q: Q: A n d ho w d id yo u k no w th at t h e h o us e wh er e Ed n a c am e o ut is t ha t of t he h o us e of th e S e par a Fam i l y?

A:

Mi s mo n g n ak it a p o n g da l aw a n g m at a k o n a d o on s iy a g a l in g s a b a hay n g S e p ara Fa m ily . Q: Ho w l on g h a v e yo u k no wn t h e S e par a Fam i l y, if yo u k no w t h em ? A: Ab o ut t wo ye ar s , s ir . Q: Ho w a b ou t t h is Ed n a, th e on e yo u j us t po i nt e d (t o) a wh i l e a g o? Do yo u k n o w her pr ior t o J a n uar y 2 , 2 0 01 ? A: Yes , s ir . I k n e w( s ic ) h er f or t wo ye a rs . C our t: W h y?

W itnes s : Ma d a las k o po s i ya n g m ag i ng p as ah ero ng ak i n g p ed ic ab . Pr os . R e ba g a y: H o w ab o ut t h e S ep ar a f am i l y? W h y d o yo u k no w t hem ? A: T he y we r e t he em pl o yer s of Ed n a, s ir . Q: Yo u s a id yo u s a w E dn a c om ing o ut f rom the h ous e of the S ep ar a F am il y. W ha t ha p pe n ed wh e n yo u s a w Ed n a c om in g o ut f rom th e h ous e of th e S ep a r a Fam i l y? A: W al a p a p o ng an o y a n n ais ak ay k o na s iy a s a s i dec ar . Q: A nd wh at d i d you o bs er ve f r om E dn a whe n yo u s a w h er c o m ing o ut f r om th e ho u s e of t h e S ep ar a f am i l y? A: N a g ma m ad a l i po s iy a n g l u mak a d at pa l i ng a - l i ng a. x x x x Q: A: Q: A: Q: A: Af t er s h e b o ar d ed yo ur p e d ic a b , wh at ha p pe n ed , if a n y? N a gp a h at i d po s iy a s a ak i n . W here? T o N ip a S tr ee t, s ir . Di d yo u br i ng h er to N i p a S tr e et as s h e r e qu es t e d ? Yes , s ir . x x x x Q: A: Q: A: Yo u s a i d t h at you br ou g ht her to N i p a Str e et . W hat h ap p en e d whe n yo u go (s ic ) th ere at N i pa Str e et , if an y? N a gp a h in t o po s iy a d o on n g s a g l it , m ga t a tl o ng m in ut o p o. W hat d i d s he d o wh e n s h e as k ed ( yo u) to s t o p th er e f or thr ee m in ut es ? Af ter t hr e e m in ut es s h e r e qu es te d m e t o br in g h er d ir ec t l y t o B a las a n S tre e t, s ir . x x x x Q: A: Q W hat ha p pe n ed af ter t h at ? W hen we ar r i ve d th er e, s h e a l i gh t ed a nd pa y (s ic ) P 5. 0 0, s ir . A nd t h en wh at tr a ns pi r e d af t er s h e a l i gh te d f rom yo u r pe d ic ab ?

W itnes s : I we nt h om e an d I l ook e d f or an o th er pas s e ng er , s ir . Pr os . R e ba g a y: Af te r t ha t, wh a t h ap p e ne d wh en yo u wer e on yo u wa y t o yo ur h ous e to l ook f or pas s e ng er s ? A Q: A: N ak i t a k o n a n ga po n a p a gd at i n g k o s a Mo de rn a, na g la l a g ab l a b na ap oy . Fr om wha t p lac e was t h at f ir e c om in g o ut ? Fr om th e h ous e of Ro b er t o S e pa ra F a m il y, s ir . x x x x Pr os . R e ba g a y: Af te r yo u no t ic ed t ha t t h er e wa s a f ir e f rom th e h o us e of Ro b ert o Se p ar a F am i l y, wh at di d yo u d o if an y?

A:

Q: A:

S iy e mpr e p o, i s an g B ar an g ay T a no d p o ak o , na gr es po n d e na p o k a m i s a s un og . B in uk s a n na po n g C ha ir m an na m i ng y u n g ta n gk e , b i no m ba n a p o na m i ng y u n g ap oy n g t ub i g. Af t er th a t i nc i d en t, Mr . W itnes s , h a ve yo u s e en Ed n a A g ai n (s ic ) . N o , s ir .

Pr os . R e ba g a y: An d af t er t ha t i nc id e nt , d id yo u c om e to k no w if Ed n a wa s a ppr e h en d ed or no t ? x x x x A: I was c a l l ed b y our B ar a n ga y C h a irm an i n or der t o i d en t if y E dn a , s ir. [10] x x x x R em ig i o B er n ar d o, B ar a n g a y Ch a ir m an of t he are a wh er e t he f ir e oc c urr ed , s t at ed : Pr os . R e ba g a y: O n J a nu ar y 2, 2 00 1 , d o yo u r ec al l if t he re is a f ir e t h at oc c urre d s om e wh er e in yo u r are a of j ur is d ic t io n, pa r tic u l ar l y M od er na Str ee t ? A: Yes , s ir . Q: No w, wh er e we r e yo u wh e n th is inc i d en t h ap p en e d? A: K as i ug a l i k o na p o t uw i ng u ma g an g - u m a ga po ak o n a p up u nt a s a b ara n gay Ha l l mg a s i g ur o 6: 00 or 5 : 00 o c loc k , me s u m i ga w ng s u no g n ires p on d eh a n n am i n i y on g s u n og e h m e d a l a k a mi n g f ire . Co urt : Yo u j us t a ns we r t he qu es t i o n. W here wer e yo u wh e n t his in c i de nt ha p pe n ed ? W itnes s : I was a t th e B a r an g a y H al l , Yo u r Ho n or. Pr os . Re b ag a y: A nd yo u s a i d t ha t th er e was a f ir e t ha t oc c ur red , wh a t d i d yo u do ? W itnes s : Iy o n ng a n agr es po n de k a m i do o n s a s u no g e h n ak it a k o iy on g s u no g m uk h a ta l ag a ng ar s o n d a h il na p ak a l ak i k aa g ad , m ero n p on g mg a ti p on g Iy o ng n a m a tay po c o n tr ac to r po iy o n eh k ay a s i g uro n a pak ar a mi n g k a la t ng m ga p i nt ur a, m g a c on t ai n er , k ay a h i nd i po na m i n na a pu l a k a a ga d iy o ng a poy , n as un og u lt i m o iy o ng fir e ta nk n am i n s a lak as , s ir . Pr os . R e ba g a y: N o w, wi l l yo u p l eas e t e ll us wh er e th is f ir e oc c u rre d ? A: At t h e ho us e of t he s ix v ic tim s , s ir . Q: W hos e h o us e i s t ha t ? A: T he ho us e of t h e v ic tim s , s ir . x x x x Pr os . R e ba g a y: Yo u s a i d t ha t yo u r es p on d ed t o t he p l ac e, w ha t tr ans p ir ed af t er yo u r es po n de d t o t h e p lac e ? A: Iy on n g a p o a ng na gs ab i m ay l u m ab as n a is a ng ba b a e p o no o n s a b ah ay n a na g ma m a da l i h a ba n g may s un o g, me is an g b ar a ng ay t a no d po a k o n g n ags a b i may hu m ah a n gos na is a n g ba ba e n a m ay d a l an g b ag pa p un t a p o ro o n p a la b as n g s as ak y a n, s ir. Q: A nd s o wh at ha pp e ne d ? A: S iy e m pr e h in d i n a ma n ak o n a gt a no n g k un g s i no n g ay o n m ay du m at i ng g a l in g n a s a ba h ay na m i ng , m ay t um a wa g, t u ma w ag p o s i Ko ns eh a la A lf ons o n a m ay is a n g b ab a e n a h in d i m ap ak a l i do o n s a Ca l l e P e dr o A lf o ns o , k e k ons e ha l n a b ak a i to s a b i n iy a iy o ng ga n it o ga n oo n n ir es po n de h an k o p o , s ir . Q: W here d i d yo u r es p o n d? A: At Ba l as an , s ir , b ut it s n ot t h e ar ea o f m y j ur is d ic t io n. x x x x W hat h ap p e ne d whe n yo u r e ac he d t ha t p lac e ? S iy a po a n g n ah u l i k o d oo n , s ir .

Q: A:

Co urt :

W itnes s po i nt i n g to ac c us e d E dn a M a l ng a n.

Pr os . R e ba g a y: An d wh at h a pp en e d? A: I b ro u gh t h er to t he bar a ng a y h a l l, s ir . Q: A nd wh at h a pp en e d at t h e b ara n ga y ha l l ? A: I n e mb es t i g ah a n k o, k i n u ha n a mi n g i y on g b ag n iy a, m e l i g ht er s iy a eh . In a m in n iy a po s a am i n n a k ay a n i y a s i nu n og h i n d i s iy a p in as as a h od n g m or e or l es s is an g t ao n n a eh . Ng ay on s a b i k o bak i t e h gus to k o n g u m u wi n g pr ob i ns y a an g s ab i s a ak i n ng a m o k o s um ak ay n a l an g d aw p o ak o n g w a lis t i n gt i n g p ara mak a uw i, s ir. A tt y. H erm an: W e wo u l d l ik e t o o bj ec t, Yo u r H on or o n t he g rou n d th a t th at is h ear s a y. Pr os . Re b ag a y: T hat is no t a h ea r s a y s ta tem en t, Yo ur H o nor , s t ra i gh t f r om th e m o ut h of t h e ac c us e d . A tt y. H erm an: It s n ot un d er t he ex e m ptio n u n d er th e R u l e s of Cour t, Yo ur Ho n o r. He is t es t if yi n g ac c or d i ng t o wha t h e h as h ear d. C our t: T hat s p ar t of th e n ar r at i on . W heth er i t is t rue or n ot , th a ts an o th er m att er. L e t it rem ai n. Pr os . R e ba g a y: No w, wh o wer e pr es en t wh e n th e ac c us e d ar e te l l i ng yo u t h is ? A: Iy o n n ga iy o n g m ga t an o d k o, m a ma may a n do o n nak a pa l i g id , s iy e m pr e may s u no g na gk ak a g u lo , gus t o n ga s iy a n g k un i n ng m ga m a m am ay an p ar a s ak t a n hi n d i k o ma i b i gay pa p at ay in s iy a g aw a ng m ay n a ma tay e h a n im n a ta o a nd n a m a tay , k ay a iy o n g mg a t ao k i nok o ntr o l s iy a m a d i d is gr as y a s iy a d a h il p i n - p o i nt ed p o s iy a, Y o ur Ho n or, iy o ng d a m i na iy on l i b o iy on g n a k ap a l ig i d d oo n s a bar a n gay h a l l na p a k ah ir a p aw at i n. G us t on g[11] gus t o s iy an g k u n in ng mg a t ao n g - bay a n, n a g a li t d ah i l a n g d am i ng ba h ay h on g n as un o g.

For her p art , Mer c e di ta M en d o za , o n e of t he n e ig h bors of t he S ep ar a F am il y an d wh os e h ous e was o n e of t h os e des tr o ye d b y t h e f ir e , r ec ou nt e d: Pr os . R e ba g a y: Ma d am W itnes s , o n J a nu ar y 2 , 2 00 1 , do yo u rec a l l wh ere wer e yo u res id i n g th e n? A: Yes , s ir . Q: W here wer e yo u r es id i n g at ? A: At N o. 17 0 M o d er n a St ., B a l ut , T o nd o , Ma n i la , s ir . Q: W h y d id yo u t r ans f er yo u r r es id e nc e? A wh i le a g o yo u te s tif ie d t ha t yo u ar e n o w r es id i n g at 1 4 7 M od er na St ., Ba l ut , T o n do , Ma n i l a? A: Bec a us e our ho us e was b ur ne d , s ir. Q: M ore o r l es s , h o w m uc h d i d th e l os s i nc ur re d o n th e b ur n in g of yo u r ho us e (s ic ) ? A: Mor e or les s , P 10 0 ,0 0 0. 00 , s ir Q: Do yo u k no w t h e ac c us e d i n t his c as e E d na Ma l n ga n ? A: Yes , s ir . Q: W h y d o yo u k n o w h er ? A: Sh e is t h e h ous e h el p er of t h e f am il y wh o we re (s ic ) b urn e d , s ir. Q: W hat f am il y? A: C if ar a ( s ic ) f am i l y, s ir . Q: W ho in par t ic u l ar d o yo u k no w am on g C if ar a (s ic ) f am il y? A: T he wom an , s ir . Q: W hat is t h e na m e? A: V irg i n ia Me n do za C if ar a ( s ic ) , s ir. Q: Ar e yo u r e la t ed t o V ir g in i a M en d o za Cif ar a (s ic ) ? A: M y hus b an d , s i r . Q: W hat is t h e r e l at i ons h i p of yo ur h us b an d t o th e l a te V irg i n i a M en d o za C if ar a (s ic ) ? A: T he y we r e f ir s t c ous i ns , s ir . Q: Ho w f a r is yo u r h o us e f r om th e h o us e of th e C if ar a (s ic ) f am i l y? A: Ma gk ad ik i t l an g p o. P a de r l an g a n g pa g it a n. Q: Yo u s a i d th a t E dn a M a ln g an was w ork in g wi t h th e C if ar a (s ic ) f am il y. W hat is th e work of E d na Ma l n ga n ? A: N an g an g am u h a n p o. H ous e h e l per , s ir.

Q: A: Q:

H o w lo n g d o yo u k n o w E d n a Ma l n ga n as h ous e h e lp er of th e C if ar a (s ic ) f am il y? I c a n n ot es t im ate b u t s he s t a ye d t h er e f or t hr e e to f o ur ye a rs , s ir. Do yo u k no w w ho c aus e d th e b ur ni n g of th e h o us e of t he C i f ara (s ic ) f am i l y?

W itnes s : E dn a M a ln g an , s ir . Pr os . R e ba g a y: W h y d o yo u k n o w t ha t it was E dn a M a ln g an who b ur ne d t h e ho us e of th e C if ar a (s ic ) f am il y? A: W hen th e f ir e i nc i d en t h ap p en e d, s i r, on J a n u ar y 3, we we nt t o S a n L a zar o Fir e St a ti o n a nd I s a w E d n a M al n g an d e ta i ne d t h ere , s ir . Q: A nd s o wh a t is yo ur b as is i n p o in t in g to E d na Ma l ng a n as t he c ul pr i t or t he on e wh o bur n e d t h e h ous e of th e C if ar a (s ic ) f am il y? A: I t a lk ed t o h er wh e n we we nt t he re a t t ha t d a y, s ir. Q: W hat tr ans p ir e d th e n? A: I t a lk ed t o h er an d I t o ld h er , E d na , bak i t m o na m a n g in a w a y un g g a nu n ? Q: A nd wh at was t he ans we r of Ed n a? A: Sh e a ns wer e d, K as i p a g na g p ap a a l am ak o s a k any a ng um uw i n g pr o bi ns y a, na g pa p aa l a m p o s iy a n g u m uw i ng pro b i ns y a an g s in as ab i da w p o s a k a ny a n i Ba by Ci f ara ( s ic ) n a, ( s ic ) S ig e u m uw i k a , p ag d a ti n g m o m ap u ti k a n a. Su m ak ay k a s a wa l is p ag d at i n g mo m ap u ti k a na . Pr os . R e ba g a y: W hat is t h e b a s is t h er e t h at s h e wa s th e on e wh o b urn e d th e ho us e of th e C if ara (s ic ) f am il y? A: I a ls o as k e d h er , Pa a no mo gi n aw a y u ng s un o g? S h e t o ld m e, Na g l uk o t ak o n g ma ra m i ng d iy ar y o , s i n i nd i ha n k o ng d is p os a b le l i gh t er at h in a g is n iy a s a i ba b aw n g [12] l am es a s a l o ob n g b a h ay . ( s ic )

Lastly, the prosecution presented Rodolf o Movilla, owner of the house sit uat ed beside that of the Separa f amily. He testif ied that his house was also gutted by the f ire that killed the Separ a f amily and that he tried to help said victims but to no avail. The prosecut ion presented other documentary evidence [ 1 3 ] and thereaf ter rested it s case. W hen it came time f or th e def ense to present exculpat or y evidence, instead of doing so, accused-appellant f iled a Mot ion
[15]

to

Admit

Demurrer

to

Evidence [ 1 4 ] and

the

corresponding Demurrer to Evidence

with t he f ormer expr essly stating that said Demurrer to

Evidence was being f iled x x xwithout express leave of court x x x. [ 1 6 ] In her Demurrer to Evidence , accused- appellant asserts that the prosecut ions evidence was insuf f icient to prov e her guilt beyond reasonable doubt f or the f ollowing reasons: [ 1 7 ] (a) that she is charged with crime not def ined and penalized by law; ( b) that circumstantial evidence was insuff icient 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 Evidence. On 13 October 2003, acting on the Demurrer to Evidence, the RTC pr omulgated its Judgment [ 1 8 ] wher ein it proceeded to resolve the subject case based on the evidence of the prosecut ion f iled its Comment/Opposit ion to accused-appellant s Demurrer to

prosecut ion. The RTC considered accused -appellant to have waived her right to present evidence, having f iled the Demurrer to Evidence without leave of court . In f inding accused - appellant Edna guilt y beyond r easonable doubt of the cr ime of Arson with Multiple Hom icide, the RTC ruled that: The f irst argument of the accused that she is charged with an act not def ined and penalized by law is without merit. x x x t he capt ion which charges the accused with the crime of Arson wit h Multiple Hom icide is mer ely descr ipt ive of the charge of Arson that resulted to Multiple Hom icide. The f act is that the accused is charged with Arson which resulted to Mult iple Homicide (death of vict ims) and that charge is embodied and stat ed in t he body of the inf ormation. W hat is controlling is the allegation in the body of the Inf ormation and not the tit le or caption thereof . x x x. x x x x The second and third arguments will be discussed jointly as they are inter related with each other. x x x. x x x [W ]hile there is no direct evidence that points to the accused in the act of burning the house or actually start ing the subject f ire, the follow ing circumstances that show that the accused intentionally caused or was responsible f or the subject f ire have been duly established: 1. that immediately bef ore the burning of the house, the accused hurr iedly and with head tur ning in diff erent direc t ions (palinga -linga) went out of the said house and rode a pedicab apparently not knowing where to go x x x; 2. that immediately af ter the f ire, upon a report that ther e was a woman in Balasan St. who appears conf used and appr ehensive (balisa), the Barangay Chairman and his tanods went ther e, f ound the accused and apprehended her and brought her to the barangay hall as shown by the test imony of Barangay Chair man Remigio Bernardo; and 3. that when she was apprehended and invest igated by the ba rangay off icials and when her bag was opened, the same cont ained a disposable lighter as likewise shown by the testimony of the Barangay Chairman. [T]he timing of her hurried departure and ner vous demeanor immediately bef ore the f ire when she lef t the hou se and rode a pedicab and her same demeanor, physical and mental condition when f ound and apprehended at the same place where she alighted f rom the pedicab and the discover y of the light er in her bag thereaf ter 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 wit h the conf essions/adm issions of the commission of the off ense and the manner thereof that she made t o the prosecut ion witnesses Barangay Chairman Remigio Bernar do, Mercedit a Mendoza and to the media, respectively.

x x x x [H]er conf essions/admissions are posit ive acknowledgment of guilt of the crime and appear to have been voluntar ily and intellig ently given. These conf essions/adm issions, 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 violat ive of her right under t he Const itution. The decretal part of the RTCs Judgment reads: W HEREFORE, the Demurrer to Evidence is her eby denied and judgment is hereby rendered f inding the accused EDNA MALNGAN Y MAYO guilt y beyond r easonable doubt of the crime of Arson with Mult iple Homicide or Arson result ing t o the death of six (6) people and sentencing her to suff er the mandatory penalt y of death, and ordering her to pay t he heirs of the vict ims Roberto Separa, Sr. and Virginia Separa and childr en Michael, Daphne, Priscill a and Roberto, Jr., the am ount of Fif ty Thousand (P50,000.00) Pesos f or each victim and the amount of One Hundred Thousand ( P100,000. 00) Pesos as temperate damages f or their bur ned house or a total of Four Hundred Thousand (P400,000.00) Pesos and to Rodolf o Movilla the amount of One Hundr ed [Thousand] (P100,000.00) Pesos. Due t o the death penalt y imposed by the RTC, the case was direct ly elevated to this Court f or automatic review. Conf ormably with our decision inPeople v. Efren Mat eo y Gar cia, [ 1 9 ] however, we ref erred the case and its records to the CA f or appropriate action and disposition. On 2 September 2005, the Court of Appeals aff irmed with m odif icat ion the decision of the RTC, the fallo of which reads: W HEREFORE, premises considered, the assailed October 13, 2003 Judgment of the Regional Trial Court of Manila, Branch 41, f inding accused -appellant Edna Malngan y Mayo guilty beyond reasonable doubt of Arson with multiple hom icide and sentencing her to suff er the DEATH PENALTY is hereby AFFIRMED with MO DIFICATION in t hat she is f urther or dered t o pay P50,000.00 as moral damages and another P50,000.00 as exemplar y damages f or ea ch of the victims who per ished in the f ire, to be paid to their heirs. She is ordered to pay Rodolf o Movilla, one whose house was also burned, the sum of P50,000.00 as exemplar y damage. Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal P rocedure as amended by A. M. No. 00 -5-03-SC dated September 28, 2004, which became eff ective on October 15, 2004, the Court of Appeals, af ter rendering judgment, hereby ref rains f rom making an entr y of judgment and f orthwith cert if ies the case and elevates the entire record of this case to the Supr eme Court f or review. [ 2 0 ] It is the contention of accused -appellant that the evidence pr esented by the prosecution is not suff icient to est ablish her guilt beyond reasonable doubt as the perpetrat or of the crime charged. In support of said exculpator y proposition, she assig ns the f ollowing errors [ 2 1 ] : I. THE HONORABLE COURT ERRED I N RULI NG THAT THE CI RCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION IS SUFFICI ENT TO CONVICT THE ACCUSED; and

II.

THE HONORABLE COURT ERRED I N ALLOW ING AND GIVING CREDENCE TO THE HEARSAY EVI DENCE AND UNCOUNSELLED ADMISSIONS ALLEGEDLY GIVEN BY THE ACCUSED TO THE W ITNESSES BARANGAY CHAIRMA N 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 wit h Mult iple Hom icide . Presently, there are t wo ( 2) laws that gover n the cr ime of arson where death results theref rom Article 320 of the Revised Penal Code (RPC), as amended by Republic Act (RA) No. 7659, [ 2 2 ] and Sect ion 5 of Presidential Decree (PD) No. 1613 [ 2 3 ] , 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 penali zed under this Article, death result s , the mandator y penalt y of death shall be imposed. [Emphasis supplied.] Presidential Decree No. 1613: SEC. 5. Where Deat h 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.] 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 considere d destruct ive or otherwise, where death results therefrom . The raison d'tre is that ar son is itself the end and deat h is simply the consequence. [ 2 4 ] W hether the crime of arson will absorb the resultant death or will have to be a separate crime altogether, the joint discussion [ 2 5 ] of the late Mr. Chief Justice Ramon C. Aq uino and Mm e. Justice Carolina C. Grio-Aquino, on the subject of the crimes of arson and mur der/ homicide, is highly instructive: Groizard says that when f ire is used with the int ent to kill a particular person who may be in a house and that objective is attained by burning the house, t he crime is murder only. W hen the Penal Code declares that killi ng committed by means of f ire is murder, it intends that f ire should be purposely adopted as a means to that end. There can be no murder without a design to take lif e. [ 2 6 ] In other words, if the main object of the off ender is to kill by means of f ire, the of f ense is murder. But if the main object ive is the burning of the building, the resulting homicide may be absorbed by the cr im e of arson. [ 2 7 ]

x x x x If the house was set on f ire af ter the vict ims ther ein were killed, f ire would not be a qualif ying circumstance. The accused would be liable f or the separate off enses of murder or homicide, as the case may be, and arson. [ 2 8 ] Accordingly, in cas es 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 r igueur to ascertain the main objective of the malef actor: (a) if the main objective is the burning of the building or edif ice, but death results by r eason 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 buil ding or edif ice, when f ire 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 f act the off ender has already done so, but f ire is resorted to as a means to cover up the killing, then t here are t wo separate and dist inct crimes committed homicide/murder and arson . W here then does this case f all under ? From a reading of the body of the Inf ormation: That on or about Januar y 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage , did then and ther e willf ully, unlawf ully, f eloniously and deliber ately set fire upon the two -storey resident ial house of ROBERTO SEPARA and f amily mostly made of wooden materials l ocated at No. 172 Moderna St., Balut,Tondo, this cit y, b y light ing crumpled newspaper wit h the use of disposable lighter inside said house knowing the same to be an inhabited house and sit uated in a thickly populated place and as a consequence thereof a co nf lagration ensued and the said building, together with some seven (7) adjoining resident ial houses, were razed by f ire; that by reason and on the occasion of the said fir e , the f ollowing, namely, 1. Roberto Separ a, Sr., 45 years of age 2. Virginia Separa y Mendoza, 40 years of age 3. Michael Separa, 24 years of age 4. Daphne Separa, 18 years of age 5. Priscilla Separ a , 14 years of age 6. Roberto Separa , Jr., 11 years of age

sustained burn injur ies which wer e the direct cause of their death immediately thereaf ter. [ 2 9 ] [Emphasis supplied.] accused-appellant is being charged with the cr ime of arson. It it is clear f rom the f oregoing that her intent was merely t o destroy her employer s house through the use of f ire. W e now go to the issues raised. Under the f irst assignment of error, in asserting the insuff iciency of the prosecut ions evidence to establish her guilt beyond reasonable doubt, accused-appellant ar gues that the prosecution was only able t o adduce circumstantial evidence hardly enough to prove her guilt beyond reasonable doubt. She ratiocinates t hat the f ollowing circumstances: 1. That immediately bef ore the burning of the house , the accused hurriedly and wit h head turning in dif f erent directions (palinga -linga) went out of the said

house and rode a pedicab apparently not knowing wher e to g o f or she f irst 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 prosecut ion wit ness Rolando Gruta; 2. That immediately af ter the f ire, upon a report that there was a woman in Balasan St. who appears conf used and appr ehensive ( balisa), the Barangay Chairman and his tanods went ther e, f ound the accused and apprehended her and brought her to the barangay hall as shown by the test imony of Barangay Chair man Remigio Bernardo; and 3. That when she was apprehended and invest igated 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. [ 3 0 ] f all short of proving that she had any involvement in sett ing her employers house on f ire, much less show guilt beyond reasonable doubt, given that it is a f act that housemaids are t he f irst persons in the house to wake up early to perf orm routine chores f or their employers, [ 3 1 ] one of which is prepar ing and cooking the morning meal f or the members of the household; and necessit y requires her to go out early to look f or open stores or even near by marketplaces to buy things that will complete the ear ly meal f or the day. [ 3 2 ] She then concludes that it was normal f or her to have been seen going out of her employers house in a hurr y at that time of the day and to look at all direct io ns to insure that the house is secur e and that there are no other persons in the vicinit y. [ 3 3 ] W e are f ar f rom persuaded. True, by the nat ure of their jobs, housemaids are requir ed to start the day early; however, contrar y to said assertion, t he actuat ions and the demeanor of accused -appellant on that f atef ul early morning as obser ved f irsthand by Rolando Gruta, one of the witnesses of the prosecut ion, belie her claim of normalcy, to wit:
Q: Yo u s a i d yo u s a w E dn a c om in g o u t f rom the h ous e of th e S ep ar a F am il y. W hat ha p pe n ed wh e n yo u s a w E d n a c om in g ou t f r om th e h ous e of th e S e par a Fam i l y? A: W a l a pa po n g a no y a n n a is ak ay k o n a s iy a s a s i d ec ar . Q: A n d wh at d id you o bs er v e f r om E dn a wh e n yo u s a w her c o m ing ou t f rom th e h o u s e of t h e S ep ar a f am i l y? A: N a g ma m ad a l i po s iy a n g l u mak a d at pa l i ng a - l i ng a . x x x x Q: A: Q: A: Q: A: x x x Q: A: Q: A: Af t er s h e b o ar d ed yo ur p e d ic a b , wh at ha p pe n ed , if a n y? N a gp a h at i d po s iy a s a ak i n . W here? T o N ip a S tr ee t, s ir . Di d yo u br i ng h er to N i p a S tr e et as s h e r e qu es t e d ? Yes , s ir . x Yo u s a id t h at yo u br o u g ht h er t o N i pa St re et . W hat ha p p en e d whe n yo u g o (s ic ) th er e at N i p a Str e et , if a n y? N a gp a h in t o po s iy a d o on n g s a g l it , m ga t a tl o ng m in ut o p o . W hat d i d s he d o wh e n s h e as k ed ( yo u) to s t o p th er e f or thr ee m in ut es ? Af ter t hr e e m in ut es s h e r e qu es te d m e t o br in g h er d ir ec t l y t o B a las a n S tre e t, s ir .

x x x x W e quote with appr oval the pronouncement of the RTC in discrediting accused appellant s af orementioned rationale: [O]bviously it is never normal, common or ordinar y to leave the house in such a disturbed, ner vous and agitated manner, demeanor and condition. The timing of her hurried departure and ner vous demeanor immediately bef ore the f ire when she left the house and rode a pedicab and her same demeanor , physical and ment al condition when f ound and apprehended at the same place wher e she alighted f rom the pedicab and the discover y of the lighter in her bag thereaf ter when investigated indisputably show her guilt as charged. [ 3 4 ] All the wit nesses ar e in accord that accused -appellant s agitated appearance was out of the ordinar y. Remarkably, she has never denied this obser vat ion. W e give great weight to the f indings of the RTC and so accord credence to the testimonies of the prosecution witnesses as it had t he opportunit y to obser ve them direct ly. The credibilit y given by trial courts to prosecut ion witnesses is an important aspect of evidence which appellate courts can rely on because of its unique opportunit y to obser ve them, particular ly their demeanor, conduct, and attitude, dur ing the direct and cross -exam ination ar e by

counsels. Here, Remigio Bernardo,

Rolando Gruta and Mercedita Mendoza

disinter ested

witnesses and ther e is not an iota of eviden ce 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 f rom being mauled by the angry crowd outside of the barangay hall:
Pr os . Re b ag a y: No w, wh o wer e pr es en t wh e n th e ac c us e d ar e (s ic ) t e l li n g yo u th is ? A: Iy o n n ga iy o n g m ga t an o d k o, m a ma may a n do o n nak a pa l i g id , s iy e m pr e may s u no g na gk ak a g u lo , gus t o n ga s iy a n g k un i n ng m ga m a m am ay an p ar a s ak t a n hi n d i k o ma i b i gay pa p at ay in s iy a g aw a ng m a y n a ma tay e h a n im n a ta o a nd n a m a tay , k ay a iy o n g mg a t ao k i nok o ntr o l s iy a m a d i d is gr as y a s iy a d a h il p i n - p o i nt ed p o s iy a, Y o ur Ho n or, iy o ng d a m i na iy on l ib o iy o ng nak a pa l i g id do o n s a b ar a ng ay h a l l n ap ak ah ir a p aw a t in . G us ti n g - gu s to [35] s iy an g k u n in n g m g a t ao n g - bay a n, n a ga l it d ah i l a n g da m i ng ba h ay h o ng n as un o g .

Accused-appellant has not shown any compelling reason why the witnesses presented would openly, publicly and deliberately lie or concoct a st or y, to send an innocent person to jail all the while knowing that the real malef actor remains at large. Such proposition def ies logic. And where the def ense f ailed t o show any evil or improper motive on the part of the prosecution wit nesses, t he pr esumpt ion is t hat their testimonies ar e true and thus entit led to f ull f aith and credence. [ 3 6 ] W hile the pr osecution witnesses did not see accused - appellant actually starting the f ire that burned sever al houses and killed the Separa f amily, her guilt may still be established through circumstantial evidence provided that: (1) there is more than one circumstance; (2) the f acts f rom which t he inf erences are derived are proven; and, (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt. [ 3 7 ]

Circumstantial evidence is that evidence which proves a f act or series of f acts f rom which the f acts in issue m ay be established by inf er ence. [ 3 8 ] It is founded on experience and obser ved f acts and coincidences establishing a connect ion bet ween the known and proven f acts and t he f acts sought to be proved. [ 3 9 ] In order t o bring about a convict ion, the circumst antial evidence presented must constitute an unbr oken ch ain, which leads to one f air and reasonable conclusion pointing to the accused, to the exclusion of others, as the guilty person. [ 4 0 ] In this case, the interlocking testimonies of the prosecution witnesses, taken together, exemplif y a case where convict ion can be upheld on the basis of circumstantial evidence. First, prosecut ion witness Rolando Gruta, the driver of the pedicab that accused-appellant rode on, testif ied that he knew f or a f act that she worked as a housemaid of the victim s, and that he positively ident if ied her as the person hurriedly leaving the house of the vict ims on 2 Januar y 2001at 4:45 a.m., and act ing in a ner vous manner. That while riding on the pedicab, accusedappellant was unsur e of her intended destination. Upon reaching the place where he or iginally picked up accused - appellant only a f ew minutes af ter dropping her of f, Rolando Gruta sa w the Separas house being gutte d by a blazing f ire. Second, Remigio Bernardo t estif ied t hat he and his tanods, including Rolando Gruta, were the ones who picked up accused - appellant Edna atBalasan Street ( where Rolando Gruta dropped her of f ) after receiving a call that there was a woman act ing strangely at said street and who appeared to have nowhere to go. Third, SPO4 Danilo Talusan overheard accused -appellant adm it t o Carmelita Valdez, a reporter of Channel 2 (ABS -CBN) that said accused -appellant st arted the f ire, plus the f act t hat he was able see the telecast of Gus Abelgas show where accused -appellant, while being inter viewed, conf essed to the crime as well. The f oregoing testimonies juxtaposed wit h the testimony of Mercedita Mendoza validat ing the f act that accused - appellant conf essed to having started the f ire which killed the Separ a f amily as well as burned seven houses including that of the vict ims, convincingly f orm an unbr oken chain, which leads to the unassailable conclusion pinpointing accused-appellant as the person b ehind the crime of simple arson. In her second assigned error, accused -appellant questions the admissibility of her uncounselled extrajudicial conf ession given to prosecut ion witnesses, namely Remigio Bernardo, Mercedit a Mendoza, and to the media. Accused -appellant Edna contends that being uncounselled extraj udicial conf ession, her admissions to having committed t he crime charged should have been excluded in evidence against her f or being violat ive of Article III, Section 12(1) of the Constitut ion. Particular ly, she takes except ion to the test imony of pr osecut ion witnesses Rem igio Bernardo and Mercedita Mendoza f or being hearsay and in the nature of an uncounselled admission. W ith the above vital pieces of evidence excluded, accused -appellant is of the po sition that the remaining proof of her alleged guilt, consisting in the main of circumstantial evidence, is inadequate to establish her guilt beyond r easonable doubt.

W e partly disagree.
Ar t ic le I II , S ec t i o n 12 of t h e Co ns t i tu t io n i n par t pr o v id es : (1) An y p er s on u n der in v es t i g at i on f or t he c om m is s io n of a n of f ens e s ha l l h a ve t he ri g ht to b e

i nf or m ed of h is ri gh t t o r em ai n s i l e nt a n d to ha v e c om pet e nt a n d i nd e pe n de nt c ou ns e l pref era b l y of h is o wn c ho ic e. If t h e per s on c a n no t af f or d t he s er v ic es of c ou ns e l, he m us t b e pr o v id e d wi t h o n e. T h es e ri gh ts c a nn o t be wa i v e d ex c ep t i n wr it i ng an d i n t he pres e nc e of c o uns e l. x x x x ( 3) A n y c onf es s i o n or adm is s io n ob ta i n ed i n v i o la t io n of th is S ec ti o n or S ec t i on 1 7 h er eof s h a l l b e i na dm is s ib l e i n e v i de nc e. W e hav e he l d t ha t t he a bo v e qu ot e d pr o v i s i on ap p l ies to th e s t ag e of c us t od i a l i n v e s ti g at i on wh e n t he i n ves t ig at i o n is no l on g er a g en era l i nq u ir y in to a n u ns o l v e d c rim e b ut s ta rts t o f oc us on a par t ic u l ar p ers o n as a s us p ec t.
[41]

Sa i d c on s ti t ut i on a l g u ar an te e h as a ls o be e n ex t en d e d t o s it u at i ons i n
[42]

wh ic h a n i nd i v i du a l h a s n ot be e n f or m a ll y a rr es t e d bu t h as m ere l y be e n i n v it e d f or q u es ti o n in g.

To be admissible in evidence against an accused, the extrajudicial conf essions made must satisf y the f ollowing requirements: (1) (2) (3) (4) it must be voluntar y; it must be made with the assist ance of competent and independent counsel; it must be expr ess; and it must be in writing. [ 4 3 ]

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enf orcement off icer f o r purposes of applying Art icle III, Section 12(1) and (3), of the Constitut ion. W hen accused -appellant was brought to the barangay hall in the morning of 2 Januar y 2001, she was already a suspect, actually the only one, in the f ire that destroyed several h ouses as well as killed the whole f amily of Roberto Separa, Sr. She was, theref ore, already under custodial investigation and the r ights guaranteed by Art icle III, Section 12(1), of the Const itution should have already been observed or applied to her. Acc usedappellant s conf ession to Barangay Chairman Remigio Bernardo was made in r esponse to the interrogation made by the latter admittedly conducted without f irst inf orming accused appellant of her rights under the Constitution or done in the presence o f counsel. For this reason, the conf ession of accused -appellant, given to Bar angay Chairman Remigio Bernar do, as well as the lighter f ound by the latter in her bag are inadmissible in evidence against her as such were obt ained in violation of her constitu t ional r ights. Be that as it may, the inadm issibilit y of accused -appellants conf ession to Barangay Chairman Remigio Bernardo and the lighter as evidence do not automat ically lead to her acquittal. It should well be recalled that the const itut ional saf e guards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinar y manner whereby the accused verbally admits to having committed the off ense as what happened in the case at bar when accused -appellant admitted to Mercedita

Mendoza, one of the neighbors of Robert o Separa, Sr., to having started the f ire in the Separas house. The test imony of Mercedita Mendoza recount ing said adm ission is, unf ortunately f or accused-appellant, admissible in evidence against her and is not cover ed by the af oresaid constit utional guarantee. Article III of the Constitut ion, or the Bill of Rights, solely governs the relat ionship bet ween the individual on one hand and the St ate (and its agents) on th e other; it does not concern itself with t he relat ion bet ween a private individual and another private individual as both accused-appellant and prosecution witness Mercedita Mendoza undoubtedly are. [ 4 4 ] Her e, there is no evidence on record to show that said witness was acting under police author it y, so appropriately, accused -appellants uncounselled extrajudicial conf ession to said witness was properly admitted by the RTC. Accused-appellant likewise assails the admission of the test imony of

SPO4 Danilo Talusan. Contending that [w]hen SPO4 Danilo Talusan testif ied in court, his stor y is more of events, which are not within his personal knowledge but based f rom accounts of witnesses who derived inf ormation allegedly f rom the accused or some other persons x x x. In other words, she objects to the t estim ony f or being merely hearsay. W ith this imputation of inadmissibility, we agree with what the Court of Appeals had t o say:

A lt h ou g h t h is t es t im o n y of SFO 4 Da n i l o T a lus a n is he ars a y b e c aus e he wa s n ot pres e nt wh en G us A b e lg as i nt er v i e we d ac c us e d - a pp e l la nt ED N A, it m a y n e v ert h el es s be adm it t ed i n e v i d enc e as a n in d ep e nd e nt l y r e le v a nt s t a tem en t t o es t a bl is h no t t he tr ut h bu t th e t e nor of th e s t a te m ent or th e f ac t th a t t he s ta t em ent was m ad e [ P eo p l e v . M a ll ar i , G .R . No . 1 0 35 4 7, J u l y 20 , 1 99 9, 3 10 SC R A 62 1 c it i ng P eo p l e v . C us i, J r. , G . R. No . L20 9 86 , A u gus t 14 , 1 9 65 , 14 S CR A 9 44 .] . I n P eo p l e v s . V e las q u e z , G . R. N os . 13 2 6 35 & 14 3 87 2 - 7 5, Fe br u ar y 2 1, 2 0 01 , 3 52 SC R A 4 5 5, t h e S upr em e Co urt ru le d t ha t: Un d er t h e doc tr i ne of i nd e pe n d en t l y r el e v a nt s t at em ents , r e gar d l es s of th e ir tr ut h or f als i t y, th e f ac t t h at s uc h s tat em en ts h a v e b e en m ad e is re le v a nt . T he h e ar s a y r ul e d o es n ot a pp l y, an d t h e s t at em ents ar e a dm is s i b le as e vi d enc e . E v id e nc e as t o th e m ak in g of s uc h s t at em en t is no t s ec o nd ar y bu t pr im ar y, f or t he s ta tem en t it s e lf m a y c ons t it ut e a f ac t i n i s s ue or b e [45] c irc um s tan t ia l l y r e l e va nt as t o t he ex is t enc e of s uc h a f ac t .

As regards the conf ession given by accused-appellant to the media, we need not discuss it f urther f or the reporters were never presented to test if y in court. As a f inal attempt at exculpat ion, accused -appellant asserts t hat since the ident ities of the burned bodies were never conclusively established, she cannot be responsible f or their deaths. Such assertion is beref t of merit. In the cr ime of arson, the identit ies of the victims are immaterial in t hat intent t o kill them particularly is not one of the elements of the crime. As we have clarif ied ear lier, the killing of a person is absorbed in the charge of arson, simple or destructive. The prosecution need onl y prove, that the burning was int entional and that what was intentionally burned is an inhabited house or dwelling. Again, in the case of People v. Soriano, [ 4 6 ] we explained that:

Although intent may be an ingredient of the crime of Arson, it may be inf erred f rom the acts of the accused. There is a presum ption t hat one intends the nat ural consequences of his act; and when it is shown that one has deliber ately set f ire t o a building, the pr osecution is not bound to produce f urther evidence of his wr ongf ul intent. [ 4 7 ] The ultimate quer y now is which kind of arson is accused -appellant guilt y of ? As previously discussed, there are t wo ( 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 President ial Decree No. 1613. Said classif icat ion is based on the kind, character and location of the caused,
[48]

property bur ned, regardless of the value of the damage

to wit:

Article 320 of The Revised Penal Code , as amended by RA 7 659, contemplates the malicious burning of structures, both public and pri vate, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments b y any person or group of persons .[ [ 4 9 ] ] The classif ication of this type of crime is known as Destruct ive Arson , which is punishable by reclusion perpetua to death. The reason f or the law is self -evident: to eff ectively discourage and deter the commission of this dastardly cr ime, to prevent the destruct ion of propert ies and protect the lives of innocent people. Exposure to a brewing conf lagration leaves only destruction a nd despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime . The except ionally severe punishment imposed f or this cr ime takes into consideration the extrem e danger to human lives exposed by the malicious burning o f these structures; the danger to pr operty r esulting f rom the conf lagration; the f act that it is nor mally diff icult to adopt precaut ions against its commission, and the dif f icult y in pinpointing the perpetrators; and, the greater impact on the social, econ omic, securit y and polit ical f abric 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 mandator y penalt y of death shall be imposed. On the ot her hand, PD 1613 which repealed Arts. 321 to 326 - B of The Revised Penal Code remains the governing law f or Simple Arson. This decree contemplat es the malicious bur ning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, an d classified as other cases of arson. These include houses, dw ellings, government buildings, farms, mills, plantations, railw ays, bus stations, airports, w harves and other industri al establishments.[ [ 5 0 ] ] Although the purpose of the law on Simple Arson is to prevent the high incidence of f ires and other crimes involving destruction, protect the national econom y and preser ve the social, econom ic and polit ical stabilit y of the nation, PD 1613 tempers the penalt y to be meted to offenders. This separ ate classif icat ion of Simple Arson recognizes the need to lessen the sever it y of punishment commensurate to the act or acts committed, depending on the particular f acts and circumstances of each case. [Emphasis supplied.]

To emphasize: The nature of Destructive Arson is distinguished f rom Simple Arson by the degree of per versit y or viciousne ss of the crim inal off ender. The act s committed under Art. 320 of the Revised Penal Code (as amended) const ituting Destructive Arson are character ized

as heinous crimes f or being grievous, odious and hatef ul off enses and which, by reason of their inherent or manif est wickedness, viciousness, atrocit y and per versit y are repugnant and outrageous to the common standards and norms of decency and moralit y in a just, civilized and ordered societ y. [ 5 1 ] On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes wit h a lesser degree of per versit y and viciousness t hat the law punishes with a lesser penalt y. In other words, Simple Arson contemplates crimes with less signif icant social, econom ic, political and nat ional secur it y implications than Destructive Arson. However, acts f alling under Simple Arson may nevertheless be converted into Destruct ive Arson depending on the qualif ying circum stances pr esent. [Emphasis supplied.] [ 5 2 ] Prescinding f rom the above clar if ication vis--vis the descr iption of the cri me as stated in the accusator y port ion of the Inf ormation, it is quite evident that accused -appellant was charged with the cr ime of Simple Arson f or having deliberately set fire upon t he 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 consequence thereof a conflagrat ion ensued and the said building, together with some seven (7) adjoining resident ial houses, were razed by f ire . [Emphasis supplie d.]

The f acts of the case at bar is somewhat similar to t he f acts of the case of People v. Soriano. [ 5 3 ] The accused in the latter case caused the burning of a part icular

house. Unf ortunately, the blaze spread and gutted down f ive (5) neighboring houses. The RTC therein f ound the accused guilt y of destructive arson under paragraph 1 [ 5 4 ] of Art. 320 of the Revised Penal Code, as amended by Republic Act 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 penalt y of reclusion temporal to reclusion per pet ua f or other cases of arson as the propert ies burned by accused -appellant are specifically described as houses, contemplat ing inhabited houses or d wellings under the af oresaid law. The descriptions as alleged in the second Amended Inf ormation particular ly ref er to the structur es as houses rather than as buildings or edif ices. The applicable law should ther ef ore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construct ion of penal laws, it is well -settled t hat No. 7659. This Court , through Mr.

such laws shall be construed str ictly against the government, and liberally in f avor of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) ther e is intent ional burning; and (b) what is intent ionally burned is an inhabit ed house or dwelling. Incidentally, these elements concur in the case at bar. [ 5 5 ]

As stated in t he body of the Inf ormation, accused - appellant was charged wi th having intent ionally burned the two-storey residential house of Robert Separa. Said conf lagration 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 not withstanding the error in the designat ion of the off ense in the inf ormation, the inf ormation remains ef f ective insof ar as it states the f acts constituting the crime alleged ther ein. [ 5 6 ] W hat is controlling is not the tit le of the complaint, nor the designat ion of the of f ense charged or the part icular law or part thereof allegedly violate, x x x, but the descr iption of the crime charged and the particular f acts therein recited. [ 5 7 ] There is, thus, a need to modif y the penalt y imposed by the RTC as Sec. 5 of PD No. 1613 categorically pr ovides that the penalty to be imposed f or sim ple arson is: SEC. 5. Where Deat h Results from Arson. - If by reason of or on the occasion of arson death results, the penalt y of reclusion perpetua to death shall be imposed. [Emphasis supplied.] Accordingly, there being no aggravat ing circumstance alleged in the I nf ormation, the imposable penalt y on accused -appellant is reclusion perpet ua . Apropos the civil liabilit ies of accused -appellant, current jurisprudence [ 5 8 ] dictate that the civil indemnit y due f rom
[59]

accused -appellant

is P50,000.00 f or

the death of

each of

the

vict ims.

However , the monetary awar ds f or moral and exemplar y damages given by the Court

of Appeals, both in t he amount of P50, 000.00, due the heirs of the vi ct ims, have t o be deleted f or lack of material basis. Sim ilarly, t he Court of Appeals award of exemplary damages to Rodolf o Movilla in the amount of P50,000.00 f or the destr uction of his house, also has to be deleted, but in this instance f or being improper. Moral damages cannot be award by this Court in the absence of proof of mental or physical suff ering on the part of the heirs of the vict ims. [ 6 0 ] Concer ning the award of exemplar y damages, the reason f or the deletion being that no aggravat ing circumstance had been alleged and proved by t he prosecut ion in the case at bar. [ 6 1 ] To summarize, accused -appellant s alternative plea that she be acquitted of the crime must be rejected. W ith the evidence on r ecord, we f ind no cogent reason to disturb the f indings of the RTC and the Court of Appeals. It is indubitable that accused -appellant is the aut hor of the crime of simple arson. All the circumstantial evidence presented bef ore the RTC, viewed in it s

entiret y, is as convincing as direct evidence and, as such, neg ates accused-appellant s innocence, and when considered concurrently wit h her admission given to Mercedita Mendoza, the f ormers guilt beyond r easonable doubt is t wice as evident. Hence, her convict ion is eff ectively just if ied. More so, as it is propit io us to note that in stark contrast to the f actual circumstances pr esented by the prosecut ion, accused -appellant neither mustered a denial nor an alibi except f or the proposition that her guilt had not been est ablished beyond reasonable doubt. IN VIEW W HEREOF, the Decision of the Court of Appeals dated 2 Sept ember 2005, in CA G.R. CR HC No. 01139, is hereby AFFI RMED insof ar as the convict ion of accused -appellant EDNA MALNGAN Y MAYO is concerned. The sentence to be imposed and the amount of damages to be awarded, however, are MO DIFIED. In accor dance with Sec. 5 of President ial Decree No. 1613, accused - appellant is hereby sentenced to RECLUSION PERPETUA . Accusedappellant is hereby ordered to pay the heirs of each of the vict ims P50, 000.00 as civil indemnit y.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-278
1

May 4, 1946

HAYDEE HERRAS TEEHANKEE, vs.DIRECTOR OF PRISONS, ET AL. In re ANTONIO QUIRINO, respondent. Judge Antonio Quirino in his own behalf. Emerito M. Ramos, Pres., Civil Liberties Union, Francisco A. Delgado, Pres., Philippine Bar Association, and Manuel M. Crudo, Vice-Pres., Philippine Lawyers' Guild, as amici curiae.

PER CURIAM, J.: For the first time, this body is called upon to sit in proceeding for contempt committed against it by a judge of a lower court. The situation is novel, but the governing principles are not uncertain, parallel incidents having happened before in other jurisdiction is under the American flag. There is no dispute as to the facts: On February 16, 1946, by a six-to-five resolution, we directed that, upon filing a bond of fifty-thousand pesos, Haydee Herras Teehankee, a political detainee, be forthwith released from official custody. The resolution upset a previous order of the fifth division of the People's Court denying her petition for bail under Act No. 682. Three days later, Judge Antonio Quirino, a member of said division, speaking in the presence of newspaper reporters and for publication, criticized this Supreme Court for allegedly "committing its biggest blunder" because it "robbed" the People's Court of its "inherent power" to decide cases for bail. Mincing no words, he said: "The Supreme Court has no intellectual leadership. What it has is mere sentimental leadership." In the heat of the denunciation he added that the case had been decided against him "by quantitative voting, not qualitative," even branding some of the members of this Court as "intellectually dishonest." His words were accordingly published in several local dailies. It was unusual for a judge, so to talk publicly to defend his decision that had been reversed by a higher Tribunal. It was unheard of that an inferior judge should so warmly uphold his views in a case. Local judges had heretofore regarded reversals as mere differences of opinion, involving no personal considerations. But the respondent, judge of a court of recent creation, hated the beaten path. He sought to blaze a new trail. He knew so he asserted that, as a private citizen, he had the privilege to criticize this Court's pronouncements, in the exercise of his constitutional privilege of free speech. Unfortunately he spoke too soon. Our resolution specifically announced the intention of the majority to write and promulgate a more extended decision, and the reservation of the dissenting members to deliver a written opinion. The cause had not finally ended, not only because of that reservation, but also because it was still open to a motion for reconsideration. And it is a known principle in these parts that "newspaper publications tending to impede, obstruct, embarrass, or influence the courts in administering justice in a pending suit or proceeding, constitute criminal contempt which is summarily punishable." (In re Abistado, 57 Phil., 668; In re Torres, 55 Phil., 799.). Now, realizing that little respect is due to a court that will hesitate to check or discipline any of its attorneys or officers who are so devoid of professional ethics and ordinary courtesy as to misrepresent and vilify it . . without any cause or semblance of reason (Re Breen, 17 L. R. A. [N. S.], 572, 580), we required respondent to answer why he should not be punished for such contemptuous behavior. For it is settled that "When it comes . . . . to the knowledge of the presiding justice of a court that (contemptuous) articles are published in a newspaper . . . . the court of its own motion can (and should) institute proceedings for contempt. Such a power in the court is necessary for its own protection against an improper interference with the due administration of justice, and it is not dependent upon the complaint of any of the parties litigant . . . ." (Telegram Newspaper Co. vs. Commonwealth, 172 Mass., 294; 44 L. R. A., 159.) Chief Justice Taft concurring Craig vs. Hecht (68 Law., ed., 293, 300). And it is now unquestioned that the court itself is competent to deal with, and pass upon, such direspectful conduct. (17 C. J. S., pp. 66 and 79.) Appearing in his own behalf, Judge Quirino argued in exculpation, that, at the time he made the caustic remarks, the Teehankee litigation was no longer pending, because said detainee was already at liberty, under bail. The fact remains, however, that this court had not written its full-dress decision and the dissenting opinion, as it had announced. And

Teehankee's liberty was subject always to any adverse conclusion which this court might arrive at, in a motion for reconsideration, if any. It may be explained at this juncture, that the release of said detainee, pending the promulgation of an extended opinion, was ordered in the exercise of this court's power to make such orders as may be necessary to expedite proceedings in special civil actions, and to render judgment for such relief prayed for as the petitioner is entitled to . . . . as justice requires. The Court had not yet exhausted its power over the litigation. There was something yet to be done in the premises, and the publication of the criticism, aside from its strongly intemperate language, tended to embarrass this Court in the performance of its functions. To be specific: At the time of adopting the resolution, the majority members made up their minds to announce in the extended decision that, as a general rule, in cases of abuse of discretion in the matter of bail, our judgment should be to return the case to the People's Court with a direction for the granting of bail; but in this particular case, in view of the long process which the petitioner had to undergo, the majority thought it conformable to equity and justice that she should be bailed immediately. After the criticism had been launched, it became a bit embarrassing for said majority members to expound that view in the full-dress opinion, because the public might suspect they had receded somewhat from their stand, falsely represented as "robbing" the People's Court of its power to grant bail. Again, the minority members proposed to question our authority directly to grant bail. After Judge Quirino, without waiting for their dissent, had publicly raised the same doubt, said minority felt uneasy to appear as taking the cue from him. And so of other phases of the issue. It is this harmful obstruction and hindrance that the judiciary strives to avoid, under penalty of contempt. As this Supreme Court once stated, it must "insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice." (In re Torres, supra.) For, as explained in another decision, "The publication of a criticism of a party or of the court to a pending cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice and subjects such persons to contempt proceedings. Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. (Copper vs. People, 13 Colo., 373.)" (In re Kelly, 35 Phil. 944, 951.) . . . . .any act, conduct, or directing agency pertaining to pending proceedings "intended to play on human frailty, and to deflect and deter the court from the performance of its duty, and drive it into a compromise with its own unfettered judgment, by placing it, through the medium of knowingly false assertion, in a wrong position before a public which has little opportunity to investigate the facts and ascertain the truth," regardless of results, "clearly constitutes "an obstruction to the administration of justice," and is contemptuous and within the inherent power of the court to punish. United States vs. Craig (D. C.), 266 Fed., 230; Michaelson vs. United States, 266 U. S., 42, 65; 69 Law. ed., 162, 167; 35 A. L. R., 451; 45 Sup. Ct. Rep., 18; Little vs. State, 90 Ind., 338; 46 Am. Rep., 224; Rey vs. State, 186 Ind., 396; 114 N. E., 866; Dale vs. State, 198 Ind., 110; 49 A. L. R., 647; 150 N. E., 781. Under the authorities, it is clear that the Teehankee case was still pending at the time of the vexatious comments. As summarized in 17 C. J. S., p. 44, "A cause remains pending so long as there is still something for the court to do therein, the doing of which may be embarrassed, impeded, or obstructed by the complained of publication." It is no defense to say, as Judge Quirino said, that he thought the matter had ended. Ignorance of the law is no excuse. "A man's fate often depends, ..., on that he will estimate rightly. If his judgment is wrong, not only may he incur a fine or a short imprisonment, he may even incur the penalty of death," (Nash vs. United States, 229 U. S., 373; Williams Vs. North Carolina, 325 U. S., 226.) This same remark applies to his belief that the resolution was void. It was not void, and in taking his stand he incurred the risk. Neither is it a defense that the blast had been provoked by certain allegedly offensive paragraphs or phrases contained in the dissenting opinion of a member of this court in a previous case, already terminated, Herras Teehankee vs. Rovira (75 Phil., 634); because everybody knows and respondent ought to know, that the dissenter's views are peculiarly his own, not binding on this Court. The respondent also claimed at the oral argument that he had no intention in any way to commit contempt. The plea is not made under oath, respondent having declined to testify before the investigator designated by this Court, thereby evading a cross-examination on that particular point. Anyway, whether or not an act constitutes contempt depends on its nature and not in the presence of actual intent. (17 C. J. S., p. 10.) Although the absence of such intent may be considered in mitigation of the offense. (17 C. J. S., p. 44.).

In this connection, the Court must refuse to delve into the question of validity or correctness of the assailed resolution. We did so in the extended decision soon to be promulgated. The proper place for any further discussion would be in a motion for reconsideration, if any, of such decision. In view of the foregoing considerations, we reach the unanimous conclusion that the respondent judge committed contempt. Justice Johnson, speaking for the Court in In re Kelly (35 Phil., 944), dismissing the contention that this Court had no power to punish for contempt because the statutes contained no provisions expressly authorizing it, proved the power to punish for contempt is inherent in all courts, and sentenced the culprit to be imprisoned for a period of six months and to pay a fine of P1,000. In other contempt cases arising from obnoxious publications, a fine was imposed: (In re Lozano and Quevedo, 54 Phil., 801; In re Abistado, supra; and In re Torres, supra.). Once in Nevada, a district judge, after reversal of his decision by the State Supreme Court, publicly asserted the higher court had made as statement of facts not supported by the record and had reprehensibly reversed the law accepted for forty years. The Supreme Court of Nevada, after hearing, suspended him from the practice of law, until further orders, and "unless within twenty days from the filing of the opinion" he gives satisfaction, "a further order will be entered disbarring him" forever. (Re Breen, supra; see also Re Fite, 11 Ga. App., 665; 76 S. E., 397; 49 A. L. R., 663.) . On the other hand, this court has adopted the healthy principle that in these matters we must be tolerant, the object being correction, not retaliation. (In re Torres, supra.) Representatives of the Philippine Bar Association and of the Lawyer's Guild, appearing as amici curiae, pleaded for a liberal attitude, assuring us the publication had not in the least affected the court's prestige and standing, albeit manifesting anxious concern over individual freedom of speech and of the press. There should be no apprehension in that regard because this court believes That the constitutional guaranty of freedom of speech and press must be protected in its fullest extent, but license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense; that as important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary; (In re Abistado, supra.) Respondent himself, at the oral argument, made efforts to show he meant no offense. In view of the circumstances and the fact that respondent is a recent appointee to the judiciary, it is the sense of all the members in consultation assembled, that the ends of justice will be met if Judge Antonio Quirino is given a reprimand, with the warning that a repetition of the offense will be drastically dealt with. Wherefore, he is hereby reprimanded. Moran, C.J., Ozaeta, Paras, Jaranilla, Feria, De Joya, Pablo, Perfecto, Hilado, Bengzon Briones, JJ., concur.

EN BANC [G.R. No. 147786. January 20, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. ERIC GUILLERMO y GARCIA, appellant. DECISION QUISUMBING, J.:

For automatic review is the judgment[1] of the Regional Trial Court (RTC) of Antipolo City, Branch 73, dated March 7, 2001, in Criminal Case No. 98-14724, finding appellant Eric Guillermo y Garcia guilty of murder and sentencing him to suffer the penalty of death. In an Information dated March 23, 1998, appellant was charged by State Prosecutor Jaime Augusto B. Valencia, Jr., of murdering his employer, Victor Francisco Keyser, committed as follows: That on or about the 22nd day of March 1998, in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a piece of wood and a saw, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and hit with a piece of wood and thereafter, cut into pieces using said saw one Victor F. Keyser, thereby inflicting upon the latter mortal injuries which directly caused his death. CONTRARY TO LAW.[2] When arraigned on April 3, 1998, the appellant, assisted by counsel de oficio, pleaded guilty to the charge.[3] On April 23, 1998, however, appellant moved to withdraw his plea of guilty and prayed for a re-arraignment. The trial court granted the motion and on April 28, 1998, he was re-arraigned. Assisted by counsel de parte, he entered a plea of not guilty.[4] The case then proceeded to trial. The facts, as gleaned from the records, are as follows. The victim, Victor Francisco Keyser, was the owner and manager of Keyser Plastic Manufacturing Corp. (Keyser Plastics for brevity), with principal place of business at Sitio Halang, Lornaville, San Roque, Antipolo City. [5] Keyser Plastics shared its building with Greatmore Corporation, a manufacturer of faucets. [6] Separating the respective spaces being utilized by the two firms in their operations was a wall, the lower portion of which was made of concrete hollow blocks, while the upper portion was of lawanit boards.[7] The part of the wall made of lawanit had two large holes, which could allow a person on one side of the wall to see what was on the other side.[8] On March 22, 1998, prosecution witness Romualdo Campos, a security guard assigned to Greatmore was on duty. At around 8:00 a.m., he saw appellant Eric G. Guillermo enter the premises of Keyser Plastics. Campos ignored Guillermo, as he knew him to be one of the trusted employees of Keyser Plastics. An hour later, he saw Victor F. Keyser arrive. Keyser checked the pump motor of the deep well, which was located in the area of Greatmore, after which he also went inside the part of the building occupied by Keyser Plastics.[9] Campos paid scant attention to Keyser. Later, at around 10:00 a.m., Campos was making some entries in his logbook, when he heard some loud noises (kalabugan) coming from the Keyser Plastics area. He stopped to listen, but thinking that the noise was coming from the machines used to make plastics, he did not pay much attention to the sound.[10] At around noontime, Campos was suddenly interrupted in the performance of his duties when he saw appellant Guillermo look through one of the holes in the dividing wall. According to Campos, appellant calmly told him that he had killed Victor Keyser and needed Campos assistance to help him carry the corpse to the garbage dump where he could burn it.[11] Shocked by this revelation, Campos immediately dashed off to telephone the police. The police told him to immediately secure the premises and not let the suspect escape, [12] while a reaction team was being dispatched to the scene. Ten minutes later, a team composed of SPO4 Felix Bautista, SPO1 Carlito Reyes, and Police Aide Jovenal Dizon, Jr., all from the Antipolo Philippine National Police (PNP) Station, arrived at the crime scene. With them was Felix Marcelo, an official police photographer.[13] They were immediately met by Campos, who informed them that Guillermo was still inside the building. The law enforcers tried to enter the premises of Keyser Plastics, but found the gates securely locked. The officers then talked to Guillermo and after some minutes, persuaded him to give them the keys. This enabled the police to open the gate. Once inside, SPO4 Bautista and SPO1 Reyes immediately accosted

Guillermo who told them, Sir, hindi ako lalaban, susuko ako, haharapin ko ito. (Sir, I shall not fight you, I am surrendering, and I shall face the consequences.)[14] Guillermo was clad only in a pair of shorts, naked from the waist up. SPO1 Reyes then asked him where the body of the victim was and Guillermo pointed to some cardboard boxes. On opening the boxes, the police found the dismembered limbs and chopped torso of Victor F. Keyser. The victims head was found stuffed inside a cement bag.[15] When the police asked how he did it, according to the prosecution witness, Guillermo said that he bashed the victim on the head with a piece of wood, and after Keyser fell, he dismembered the body with a carpenters saw. He then mopped up the blood on the floor with a plastic foam. Guillermo then turned over to the police a bloodstained, two-foot long piece of coconut lumber and a carpenters saw. [16] Photographs were taken of the suspect, the dismembered corpse, and the implements used in committing the crime. When asked as to his motive for the killing, Guillermo replied that Keyser had been maltreating him and his co-employees.[17] He expressed no regret whatsoever about his actions.[18] The police then brought Guillermo to the Antipolo PNP Station for further investigation. SPO1 Carlos conducted the investigation, without apprising the appellant about his constitutional rights and without providing him with the services of counsel. SPO1 Carlos requested the National Bureau of Investigation (NBI) to conduct a post-mortem examination on Keysers remains. The Antipolo police then turned over the bloodstained piece of wood and saw, recovered from the locus delicti, to the PNP Crime Laboratory for testing. Dr. Ravell Ronald R. Baluyot, a medico-legal officer of the NBI, autopsied Keysers remains. He found that the cadaver had been cut into seven (7) pieces.[19] He found that the head had sustained thirteen (13) contusions, abrasions, and other traumatic injuries,[20] all of which had been caused by forcible contact with hard blunt object,[21] such as a lead pipe, baseball bat, or a piece of wood.[22] He found the cause of death to be traumatic head injury.[23] Dr. Baluyot declared that since the amputated body parts had irregular edges on the soft tissues, it was most likely that a sharp-edged, toothed instrument, like a saw, had been used to mutilate the corpse. [24] He further declared that it was possible that the victim was dead when sawn into pieces, due to cyanosis or the presence of stagnant blood in the body,[25] but on cross-examination, he admitted that he could not discount the possibility that the victim might still have been alive when mutilated.[26] Dr. Olga Bausa, medico-legal pathologist of the PNP Crime Laboratory, testified that she subjected the bloodstained piece of coco lumber as well as the saw recovered from the crime scene to a bio-chemical examination to determine if the bloodstains were of human origin. Both tested positive for the presence of human blood.[27] However, she could not determine if the blood was of the same type as that of the victim owing to the insufficient amount of bloodstains on the items tested.[28] Keysers death shocked the nation. Appellant Guillermo, who was then in police custody, was interviewed on separate occasions by two TV reporters, namely: Augusto Gus Abelgas of ABS-CBN News and Kara David of GMA Channel 7. Both interviews were subsequently broadcast nationwide. Appellant admitted to David that he committed the crime and never gave it second thought.[29] He disclosed to David the details of the crime, including how he struck Keyser on the head and cut up his body into pieces, which he placed in sacks and cartons.[30] When asked why he killed his employer, Guillermo stated that Keyser had not paid him for years, did not feed him properly, and treated him like an animal.[31] Both Abelgas and David said that Guillermo expressed absolutely no remorse over his alleged misdeed during the course of their respective interviews with him.[32] At the trial, appellant Guillermos defense consisted of outright denial. He alleged he was a victim of police frame-up. He testified that he had been an employee of Keyser for more than a year prior to the latters death. On the date of the incident, he was all alone at the Keyser Plastics factory compound as a stay-in employee. Other employees have left allegedly due to Keysers maltreatment of them.[33] In the morning of March 22, 1998, appellant said Keyser instructed him to report for overtime work in the afternoon. He proceeded to the factory premises at one oclock in the afternoon, but since his employer was not around, he said, he just sat and waited till he fell asleep.[34] He was awakened sometime later when he heard people calling him from outside. He then looked out and saw persons with firearms, who told him that they wanted to enter the factory. Once inside, they immediately handcuffed him and looked around the premises. When they returned, they were carrying boxes and sacks. He said he was then brought to the police station where he was advised to admit having killed his employer since there was no other person to be blamed. [35] When he was made to face the media reporters, he said the police instructed him what to say.[36] He claimed that he could no longer recall what he told the reporters. The appellant denied having any grudge or ill feelings against his employer or his family.

On cross-examination, appellant admitted that he was the shirtless person in the photographs taken at the crime scene, while the persons with him in the photographs were policemen wearing uniforms. [37] He likewise admitted that the cartons and sacks found by the police inside the factory premises contained the mutilated remains of his employer.[38] He claimed, however, that he was surprised by the contents of said cartons and sacks.[39] Appellant admitted that a bloodstained piece of wood and a saw were also recovered by the police, but he insisted that the police made him hold the saw when they took photographs.[40] The trial court disbelieved appellants version of the incident, but found the prosecutions evidence against him weighty and worthy of credence. It convicted the appellant, thus: The guilt of the accused has been proven beyond reasonable doubt to the crime of murder as charged in [the] information. WHEREFORE, the accused is meted the maximum penalty and is hereby sentenced to die by lethal injection.
The accused is also hereby ordered to pay the mother of the victim, Victor Keyser, the following amounts: 1. Death Indemnity P50,000.00 2. Funeral Expenses P50,000.00 3. Compensatory Damages P500,000.00 4. Moral Damages P500,000.00 5. Exemplary Damages P300,000.00 6. Attorneys Fees P100,000.00 plus P3,000.00 per Court appearance.

SO ORDERED.[41] Hence, the case is now before us for automatic review. In his brief, appellant assigns the following errors: I THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME OF MURDER HAS BEEN PROVEN BEYOND REASONABLE DOUBT. II THE COURT A QUO ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH. III THE COURT A QUO GRAVELY ERRED IN AWARDING THE FOLLOWING DAMAGES: DEATH INDEMNITY P50,000.00; FUNERAL EXPENSES P50,000.00; COMPENSATORY DAMAGES P500,000.00; MORAL DAMAGES P500,000.00; EXEMPLARY DAMAGES P300,000.00; AND ATTORNEYS FEES OF P100,000.00 PLUS P3,000 PER COURT APPEARANCE.[42] Briefly stated, the issues for resolution concern: (1) the sufficiency of the prosecutions evidence to prove the appellants guilt beyond reasonable doubt; (2) the propriety of the death penalty imposed on appellant; and (3) the correctness of the award of damages. Appellant contends that his conviction was based on inadmissible evidence. He points out that there is no clear showing that he was informed of his constitutional rights nor was he made to understand the same by the police investigators. In fact, he says, he was only made to read said rights in printed form posed on the wall at the police precinct. He was not provided with the services of counsel during the custodial investigation, as admitted by SPO1 Reyes. In view of no showing on record that he had waived his constitutional rights, appellant argues that any evidence gathered from him, including his alleged confession, must be deemed inadmissible. For the State, the Office of the Solicitor General (OSG) counters that the evidence clearly shows that the appellant admitted committing the crime in several instances, not just during the custodial investigation. First, he admitted having killed his employer to the security guard, Campos, and even sought Campos help in disposing of Keysers body. This admission may be treated as part of the res gestae and does not partake of uncounselled

extrajudicial confession, according to the OSG. Thus, OSG contends said statement is admissible as evidence against the appellant. Second, the appellants statements before members of the media are likewise admissible in evidence, according to the OSG, as these statements were made in response to questions by news reporters, not by police or other investigating officer. The OSG stresses that appellant was interviewed by media on two separate occasions, and each time he made free and voluntary statements admitting his guilt before the news reporters. He even supplied the details on how he committed the crime. Third, the OSG points out that appellant voluntarily confessed to the killing even before the police could enter the premises and even before any question could be posed to him. Furthermore, after the police investigators had entered the factory, the appellant pointed to the place where Keysers corpse was found. The OSG submits that at these points in time, appellant was not yet under custodial investigation. Rather his statements to the police at the crime scene were spontaneous and voluntary, not elicited through questioning, and hence must be treated as part of the res gestae and thus, says the OSG, admissible in evidence. The OSG contends that not every statement made to the police by a suspect in a crime falls within the ambit of constitutional protection. Hence, if not made under custodial investigation or under investigation for the commission of an offense, the statement is not protected by the Bill of Rights. However, in our view, the confession appellant made while he was under investigation by SPO1 Carlito Reyes for the killing of Keyser at the Antipolo PNP Station, falls short of the protective standards laid down by the Constitution. Under Article III of the Constitution,[43] a confession to be admissible must satisfy the following requisites: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and (d) the confession must be in writing.[44] In the instant case, the testimony of SPO1 Reyes on cross-examination clearly shows the cavalier treatment by the police of said constitutional guarantees. This can readily be gleaned from the transcript of Reyes testimony, which we excerpt: Q: What did you do next upon arriving at the police station? A: When we arrived at the police station, I pointed to him and asked him to read what was written on the wall which was his constitutional rights. Q: Did he read the same? A: Yes, mam. Q: Did you ask the accused if he did understand what he read? A: Yes, mam. Q: So Mr. Witness, you did continue your investigation at the police station? A: Yes, mam. COURT: What did the accused say when you asked him if he understood what was written on the wall which was his constitutional rights? A: He said he understood what was written on the wall and he has no regrets. COURT: Proceed. DEFENSE COUNSEL: Who were present at the police station during your investigation? A: There were many people around when I conducted the investigation at the police station. My companions were there but I do not know the other persons who were present. Q: How was the investigation that you conducted at the police station? A: I inquired again from Eric Guillermo why he did it, the reason why he did it. Q: And was your investigation being recorded in the police station? A: No, mam. Q: Let me just clarify, I did not mean like a tape recorder. Was it written? A: I only asked him but it was not written down or recorded. Q: During the investigation, was there any lawyer or counsel that was called during the investigation? A: None, mam. Q: Did you inform the accused that he has the right to get a counsel during the investigation? A: Yes, mam. Q: What did the accused say, Mr. Witness? A: He did not utter any word.

Q: During the investigation at the police station, did you exert effort to provide him with counsel before you asked him questions? A: No, mam. Q: Why? A: Because during that time, it was Sunday afternoon and there was no counsel around and because he already admitted that he perpetrated the crime and that was explained to him, his constitutional rights which was on the wall. We did not provide anymore a counsel. Q: I would just like to ask the reason why you made the accused read the written rights that was posted on the wall of your police station? A: So that he would be apprised of his constitutional rights. Q: So, you mean that you made him understand his rights? A: Yes, mam. Q: So, you mean to say before you asked him to read his rights, you presumed that he does not understand what his constitutional rights are? A: I think he knows his constitutional rights because he admitted the crime. Q: And did the accused understand his rights? A: I believe he understood because he answered, wala akong dapat pagsisihan. (I have nothing to regret.).[45] Appellants alleged confession at the police station lacks the safeguards required by the Bill of Rights. The investigating officer made no serious effort to make appellant aware of his basic rights under custodial investigation. While the investigating officer was aware of the appellants right to be represented by counsel, the officer exerted no effort to provide him with one on the flimsy excuse that it was a Sunday. Despite the absence of counsel, the officer proceeded with said investigation. Moreover, the record is bare of any showing that appellant had waived his constitutional rights in writing and in the presence of counsel. As well said in People v. Dano, even if the admission or 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. [46] The right of a person under interrogation to be informed implies a correlative obligation on the part of the police investigator to explain and contemplates an effective communication that results in an understanding of what is conveyed.[47] Absent that understanding, there is a denial of the right to be informed, as it cannot be said that the person has been truly informed of his rights. Ceremonial shortcuts in the communication of abstract constitutional principles ought not be allowed for it diminishes the liberty of the person facing custodial investigation. Be that as it may, however, the inadmissibility of the appellants confession to SPO1 Reyes at the Antipolo PNP Station as evidence does not necessarily lead to his acquittal. For constitutional safeguards on custodial investigation (known, also as the Miranda principles) do not apply to spontaneous statements, or those not elicited through questioning by law enforcement authorities but given in an ordinary manner whereby the appellant verbally admits to having committed the offense. The rights enumerated in the Constitution, Article III, Section 12, are meant to preclude the slightest use of the States coercive power as would lead an accused to admit something false. But it is not intended to prevent him from freely and voluntarily admitting the truth outside the sphere of such power. The facts in this case clearly show that appellant admitted the commission of the crime not just to the police but also to private individuals. According to the testimony of the security guard, Romualdo Campos, on the very day of the killing the appellant called him to say that he had killed his employer and needed assistance to dispose of the cadaver. Campos testimony was not rebutted by the defense. As the Solicitor General points out, appellants statements to Campos are admissible for being part of the res gestae. Under the Rules of Court,[48] a declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances.[49]All these requisites are present in the instant case. Appellant had just been through a startling and gruesome occurrence, the death of his employer. His admission to Campos was made while he was still under the influence of said startling occurrence and before he had an opportunity to concoct or contrive a story. His declaration to Campos concerned the circumstances surrounding the killing of Keyser. Appellants spontaneous statements made to a private security guard, not an agent of the State or a law enforcer, are not covered by the Miranda principles and, as res gestate,admissible in evidence against him.

Further, when interviewed on separate occasions by the media, appellant not only agreed to be interviewed by the news reporters, but he spontaneously admitted his guilt to them. He even supplied the details regarding the commission of the crime to reporter Kara David of GMA Channel 7, who testified in court, to wit:
PUBLIC PROSECUTOR: Q: Could you tell us what you found out in the interview? A: The first question I think I asked was, if he admits the crime and he gladly said yes he did it, the details about the crime, how he saw the body and where he put it, and the reason why he did it. COURT: To what crime did he admit? A: He said he got mad with (sic) his boss, so he got a piece of wood, dos por dos, he hit his boss in the back and then after that, I think he got a saw and sawed the body to eight pieces. PUBLIC PROSECUTOR: You said the interview was done inside the room of Col. Quintana, how many were you inside the room at that time? A: I really could not remember but I was with my cameraman, an assistant, Col. Quintana and I think two more escorts. I could not remember the others. Q: You mentioned a while ago that he gladly admitted what he did, can you explain gladly admitted? A: Usually when I interview suspects, either they deny or [are] in hysterics, but Eric seems (sic) calm when I interviewed him. I said, ginawa mo ba ang krimen, and he said, Oo. Hindi ka ba nagdalawang isip? Hindi. It was kind of eerie. Q: You also mentioned that he gave details of the crime he committed, aside from what you already mentioned like his boss being hit in the head and cut to eight pieces, what did he tell you? A: He told me where he put it, like he looked for sacks and cartons, and he told me where he put the head but I could not remember. But I remember him saying he put the head in the bag and he said he asked help from the security guard, Campos. Basically, thats it. And he told me the reason why he did it. Q: Why did he do it? A: Because he was not being paid for what he has done and Mr. Keyser treated him like an animal, things like that.

He said that what he did was just right, just justice.[50] The TV news reporters testimonies on record show that they were acting as media professionals when they interviewed appellant. They were not under the direction and control of the police. There was no coercion for appellant to face the TV cameras. The record also shows that the interviews took place on several occasions, not just once. Each time, the appellant did not protest or insist on his innocence. Instead, he repeatedly admitted what he had done. He even supplied details of Keysers killing. As held in Andan, statements spontaneously made by a suspect to news reporters during a televised interview are voluntary and admissible in evidence.[51] Thus, we have no hesitation in saying that, despite the inadmissibility of appellants alleged confession to the police, the prosecution has amply proven the appellants guilt in the killing of Victor F. Keyser. The bare denial raised by the appellant in open court pales in contrast to the spontaneous and vivid out-of-court admissions he made to security guard Campos and the two media reporters, Abelgas and David. The positive evidence, including the instruments of the crime, together with the medical evidence as well as the testimonies of credible prosecution witnesses, leaves us no doubt that appellant killed his employer, Victor Francisco Keyser, in the gruesome manner vividly described before the trial court. But was appellants offense murder for which appellant should suffer the death penalty, or only homicide for which a lesser penalty is appropriate? Appellant argues that the prosecution failed to prove either treachery or evident premeditation to qualify the killing as murder. He points out that there was not a single eyewitness to show how the crime was committed and hence, absent an eyewitness to show the manner in which the crime was committed, he cannot be held liable for murder. For the appellee, the OSG submits that as recounted by the appellant himself, he repeatedly struck the victim, with a piece of coco lumber (dos por dos), at the back of his head, while the victims back was turned towards him. The suddenness of the attack, coupled with the manner in which it was executed clearly indicates treachery. The OSG agrees with appellant, however, that evident premeditation was not adequately established. Hence, we shall now deal only with the disputed circumstance, treachery.

Treachery or alevosia is present when the offender commits any crime against persons employing means, methods or forms in the execution thereof, which tend directly and specially to insure its execution without risk to the offender arising from any defense which the offended party might make. [52] Two essential requisites must concur for treachery to be appreciated: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) the said means of execution was deliberately or consciously adopted.[53] A qualifying circumstance like treachery changes the nature of the crime and increases the imposable penalties for the offense. Hence, like the delict itself, it must be proven beyond reasonable doubt.[54] In the instant case, we find insufficient the prosecutions evidence to prove that the attack on the victim came without warning and that he had absolutely no opportunity to defend himself, or to escape. None of the prosecution witnesses could know how the attack was initiated or carried out, simply because there was no eyewitness to the offense. In addition, appellants narration in his taped interview with Channel 7 is not too clear on this point, thus:
ERIC GUILLERMO: Mura pa rin ng mura. Nagtataka ako kung bakit ganoon na lamang kainit ito. Bigla niya akong inano dito sa batok ko tapos itinuturo niya ang dito ko (pointing to his head) itinuturo-turo niya ang dito ko. Ayon mura ng mura, hindi ko napigilan ang sarili ko, dinampot ko iyong kahoy. ARNOLD CLAVIO: Sa mga oras na yon, nagdilim, napuno ng galit ang kanyang mga mata, nakita niya ang isang dos por dos sa kanyang tabi at agad dinampot habang nakatalikod ang kanyang amo. ERIC GUILLERMO: Nang gawin ko sa sarili ko iyon kalmadong kalmado ako noong ginawa ko yon. Nasa sarili ako noong ginawa ko iyon. ARNOLD CLAVIO: Hawak ang mahabang kahoy, hinampas ni Eric si Mr. Keyser, hinampas hanggang sa mawalan ng malay. Tila hindi pa nakuntento sa kanyang nagawa, napagbalingan naman ni Eric ang isang lagare sa kanyang [55] tabi at isinagawa na ang karumal-dumal na krimen.

From the foregoing, all that can be discerned is that the victim was scolding the appellant, and the victims back was turned towards the appellant when the latter picked up the piece of wood. It does not, however, show that there was any deliberate effort on the part of the appellant to adopt the particular means, method, or form of attack to ensure the commission of the crime without affording the victim any means to defend himself. Dr. Ravell Ronald R. Baluyot, the NBI pathologist who autopsied the victims body, observed that it was difficult to determine the position of the victim in relation to his assailant. [56] Nor was the expert testimony of Dr. Baluyot definitive as to the relative position of the assailant and the victim, to wit: DEFENSE COUNSEL: I would like also to ask from your medical knowledge thru the blows that the deceased received in his head which caused the head injury, would you be able to ascertain also in what position was the attacker or where the attacker was? A: Based on the location of the injuries at the head, it would be very difficult to determine the relative position of the victim and assailant as well as the position of the victim when he sustained said injury, because there are injuries located at the front, at the left and right portions of the head although there were none located at the back (stress supplied). Based on these injuries, I would say that the position would probably be maybe in front, maybe to the left or the right in order for him to inflict the injuries to the front, to the left and right sides of the head.[57]

Noteworthy, Dr. Baluyot pointed out that based on the injuries sustained by the victim, there is an indication that he tried to defend himself against the blows being inflicted upon him, thus: PUBLIC PROSECUTOR:
Q: The wound that you found at the back of the hand, which is at the back of the right hand, would you characterize this as [a] defense wound? A: It is a defense wound. All injuries especially at the upper extremities they could be tagged as defense wounds to [58] fend offattacks and these upper extremities are usually used to protect the head and the body.

The gap in the prosecutions evidence cannot be filled with mere speculation. Treachery cannot be appreciated absent the particulars as to the manner in which the aggression commenced or how the act unfolded and resulted in the victims demise.[59] Any doubt as to its existence must, perforce, be resolved in favor of appellant. One attendant circumstance, however, is amply proved by the prosecutions evidence which shows that the victims corpse was sawn by appellant into seven (7) pieces. Under Art. 248 (6) of the Revised Penal Code,

outraging or scoffing at the corpse is a qualifying circumstance. Dismemberment of a dead body is one manner of outraging or scoffing at the corpse of the victim.[60] In the instant case, the corpse of Victor F. Keyser was dismembered by appellant who sawed off the head, limbs, and torso. The Information categorically alleges this qualifying circumstance, when it stated that the appellant thereafter, cut into pieces using said saw one Victor F. Keyser. This being the case, as proved by the prosecution, appellant is guilty not just of homicide but of murder. The penalty for murder is reclusion perpetua to death. There being neither aggravating nor mitigating circumstances in the instant case, the lesser penalty of reclusion perpetua should be imposed upon appellant.[61] Both appellant and appellee claim that the trial court erred in awarding damages. They submit that the trial courts award of P50,000.00 for funeral expenses has insufficient basis, for only receipts amounting to P38,068.00 as proof of funeral expenses were presented in evidence. Thus, this award should be reduced accordingly. Concerning the award of moral damages in the amount of P500,000, compensatory damages also for P500,000 and exemplary damages in the amount of P300,000, appellant submits that these cited sums are exorbitant, and not in accord with prevailing jurisprudence. The OSG agrees, hence modification of said amounts is in order. The amount of moral damages should be reduced to P50,000, pursuant to prevailing jurisprudence, as the purpose for such award is to compensate the heirs of the victim for the injuries to their feelings and not to enrich them.[62] Award of exemplary damages is justified in view of the gruesome mutilation of the victims corpse, but the amount thereof should also be reduced to onlyP25,000, following current case law. The award of P500,000 in compensatory damages lacks proof and ought to be deleted. The victims mother, Remedios Keyser, testified that the victim was earning around P50,000.00 a month[63] as shown in the receipt issued by Rosetti Electronics Phils. Co.[64] However, said receipt shows that it was made out to her, and not the victim. Moreover, it does not show what period is covered by the receipt. Hence, the actual value of the loss of earning capacity was not adequately established. Awards for the loss of earning capacity partake of the nature of damages, and must be proved not only by credible and satisfactory evidence but also by unbiased proof.[65] Civil indemnity for the victims death, however, was left out by the trial court, although now it is automatically granted without need of proof other than the fact of the commission of the crime. [66]Hence, conformably with prevailing jurisprudence, the amount of P50,000.00 as civil indemnity should be awarded in favor of the victims heirs. Nothing on the record shows the actual expenses incurred by the heirs of the victim for attorneys fees and lawyers appearance fees. Attorneys fees are in the concept of actual or compensatory damages and allowed under the circumstances provided for in Article 2208 of the Civil Code, [67] one of which is when the court deems it just and equitable that attorneys fees should be recovered.[68] In this case, we find an award of P25,000 in attorneys fees and litigation expenses reasonable and equitable. WHEREFORE, the assailed judgment of the Regional Trial Court of Antipolo City, Branch 73, dated March 7, 2001 in Criminal Case No. 98-14724, finding appellant ERIC GUILLERMO y GARCIA GUILTY of the murder of Victor Francisco Keyser is AFFIRMED with MODIFICATION. Appellants sentence is hereby REDUCED TO RECLUSION PERPETUA. He is also ORDERED to pay the heirs of the victim, Victor Francisco Keyser, the sum of P50,000.00 as civil indemnity, P38,068.00 as actual damages, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P25,000.00 as attorneys fees, without subsidiary imprisonment in case of insolvency. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.