SECOND DIVISION G.R. No.

93980 June 27, 1994 CLEMENTE CALDE, petitioner, -versusTHE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents. PUNO, J.: This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976. The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent. They were also signed by three (3) attesting witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province. Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the proceedings, and was duly substituted by petitioner. Private respondents, relatives of decedent, opposed the Petitioner filed by Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect that decedent did not know; that decedent was mentally incapacitated to execute the two documents because of her advanced age, illness and deafness; that decedents thumbmarks were procured through fraud and undue influence; and that the codicil was not executed in accordance with law. On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedents will and its codicil. The decision was appealed to and reversed by the respondent Court of Appeals. It held: . . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code but for one crucial factor of discrepancy in the color of ink when the instrumental witnesses affixed their respective signatures. When subjected to crossexamination, Codcodio Nacnas as witness testified as follows: Q And all of you signed on the same table? A Yes, sir.

Q After Calibia Lingdan Bulanglang was made to sign I withdraw the question. How did Calibia Lingdan Bulanglang sign the last will and testament? A She asked Judge Tolete the place where she will affix her thumbmark so Judge Tolete directed her hand or her thumb to her name. Q After she signed, who was the second to sign allegedly all of you there present? A Jose Becyagen. Q With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"? A Ballpen. Q And after Jose Becyagen signed his name with the ballpen, who was the next to sign? A Me, sir. Q And Jose Becyagen passed you the paper and the ballpen, Exhibit "B" and "B-1" plus the ballpen which used to sign so that you could sign your name, is that correct? A Yes, sir. Q And then after you signed, who was the next to sign the document, Exhibit "B" and "B-1"? A Hilario Coto-ong. Q So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1" and the ballpen so that he could sign his name as witness to the document, is it not? A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1", Exhibit "B" and "B-1" which is the testament was passed around all of you so that each of you will sign consecutively? A Yes, sir. Q Who was the first to sign? A Calibia Lingdan Bulanglang.

Q And that is the truth and you swear that to be the truth before the Honorable Court? ATTY. DALOG: He already testified under oath, Your Honor.

COURT: Witness may answer A Yes, sir. For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the codicil that: Q When you signed Exhibit "D" and "D-1", did you all sign with the same ballpen? A One. Such admissions from instrumental witnesses are indeed significant since they point to no other conclusion than that the documents were not signed by them in their presence but on different occasions since the same ballpen used by them supposedly in succession could not have produced a different color from blue to black and from black to blue. In fact, the attestation clause followed the same pattern. The absurd sequence was repeated when they signed the codicil, for which reason, We have no other alternative but to disallow the Last Will and Codicil. Verily, if the witnesses and testatrix used the same ballpen, then their signatures would have been in only one color, not in various ones as shown in the documents. Moreover, the signatures, in different colors as they are, appear to be of different broadness, some being finer than the others, indicating that, contrary to what the testamentary witnesses declared on the witness stand, not only one ballpen was used, and, therefore, showing that the documents were not signed by the testatrix and instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46. Citations omitted.) Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was denied by the respondent court in its Order, dated May 24, 1990. Thus, this appeal by petitioner who now puts in issue the correctness of the respondent courts conclusion that both decedents will and codicil were not subscribed by the witnesses in the presence of the testator and of one another, contrary to the requirements of Article 805 of the Civil Code. He contends that: 1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS; 2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG.

The petition must fail. The question in the case at bench is one of fact: whether or not, based on the evidence submitted, respondent appellate court erred in concluding that both decedents Last Will and Testament, and its Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule, factual findings of the Court of Appeals are considered final and conclusive, and cannot be reviewed on appeal to this court. In the present instance, however, there is reason to make an exception to that rule, since the finding of the respondent court is contrary to that of the trial court, viz.: . . . (Private respondents) pointed out however, that the assertions of petitioners witnesses are rife with contradictions, particularly the fact that the latters signatures on the documents in issue appear to have been written in ballpens of different colors contrary to the statements of said witnesses that all of them signed with only one ballpen. The implication is that the subscribing witnesses to the Will and Codicil, and the testatrix did not simultaneously sign each of the documents in one sitting but did it piecemeal a violation of Art. 805 of the Code. This conclusion of the (private respondents) is purely circumstantial. From this particular set of facts, numerous inferences without limits can be drawn depending on which side of the fence one is on. For instance, considering the time interval that elapsed between the making of the Will and Codicil, and up to the filing of the petition for probate, the possibility is not remote that one or two of the attesting witnesses may have forgotten certain details that transpired when they attested the documents in question . . . (Rollo, pp. 36-37.) A review of the facts and circumstances upon which respondent Court of Appeals based its impugned finding, however, fails to convince us that the testamentary documents in question were subscribed and attested by the instrumental witnesses during a single occasion. As sharply noted by respondent appellate court, the signatures of some attesting witnesses in decedents will and its codicil were written in blue ink, while the others were in black. This discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens were used by the signatories on the two documents. In fact, two (2) of petitioners witnesses even testified that only one (1) ballpen was used in signing the two testamentary documents. It is accepted that there are three sources from which a tribunal may properly acquire knowledge for making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or autoptic proference. Wigmore explains these sources as follows: If, for example, it is desired to ascertain whether the accused has lost his right hand and wears an iron hook in place of it, one source of belief on the subject would be the testimony of a witness who had seen the arm; in believing this testimonial evidence, there is an inference from the human assertion to the fact asserted. A second source of belief would be the mark left on some substance grasped or carried by the accused; in believing this circumstantial evidence, there is an inference from the circumstance to the thing producing it. A third source of belief remains, namely, the inspection by the tribunal of the accuseds arm. This source differs from the other two in omitting any step of conscious inference or reasoning, and in proceeding by direct self-perception, or autopsy. It is unnecessary, for present purposes, to ask whether this is not, after all, a third source of inference, i.e., an inference from the impressions or perceptions of the tribunal to the objective existence of the thing perceived. The law does not need and

does not attempt to consider theories of psychology as to the subjectivity of knowledge or the mediateness of perception. It assumes the objectivity of external nature; and, for the purposes of judicial investigation, a thing perceived by the tribunal as existing does exist. There are indeed genuine cases of inference by the tribunal from things perceived to other things unperceived as, for example, from a persons size, complexion, and features, to his age; these cases of a real use of inference can be later more fully distinguished . . . But we are here concerned with nothing more than matters directly perceived for example, that a person is of small height or is of dark complexion; as to such matters, the perception by the tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the tribunals self-perception, or autopsy, of the thing itself. From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference. 3 (Citations omitted.) In the case at bench, the autoptic proference contradicts the testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white or more accurately, in black and blue that more than one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioners claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code. Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary documents were subscribed and attested to, starting from decedents thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Toletes testimony is there any kind of explanation for the different-colored signatures on the testaments. IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner. SO ORDERED.

SECOND DIVISION G.R. No. L-27606 July 30, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMICIANO BERAME alias DOMING, defendant-appellant. Jose E. Fantonial for appellant. Solicitor Felix Q. Antonio, 1st Assistant Solicitor General Antonio A. Torres and Trial Attorney Lotita C. Dumlao for appellee.

turned out, mortally. He admitted then and there that he was one of the killers of Quirico Maningo, and his companions were a certain Doming and one Erning. He made the admission anew at the Southern Islands Hospital when he was further questioned. 13 The appealed decision, both thorough and comprehensive, discussed in detail the evidence for both the prosecution and the accused. The defense of alibi was carefully considered. It was not, as found by the trial court, sufficiently persuasive. It is easily understandable why. Appellant was positively identified. What is more there were compelling tell-tale circumstances. If anything can be said to detract from the high quality of the appealed decision, it was the assertion of the possibility "that a person could be at Danao City at about 6 to 6:30 in the evening and be in Cebu City at 7 to 8 same evening. 14 That was by way of disposing of the claim of appellant that since he was in Cebu City at about that time, and Danao City is about thirty-two kilometers away from Cebu City, he could not have been responsible for the killing. Certainly, such an off hand, perhaps even possibly rash statement of the trial court, could not be a sufficient basis for his acquittal. Witnesses are not noted for exactitude and precision in mentioning the time. The hours mentioned were approximations. Moreover, as to the circumstantial evidence, only the application of the res gestae rule to the statement of Montinola was sought to be refuted. No attempt was made to explain the flight of appellant causing the delay in his surrender for about a month and a shoe discovered near the scene of the crime fitting his right foot. The thirteen pages appellant's brief had another glaring deficiency. There was not even a reference to the direct testimony Identifying; appellant as one who fired the fatal shots. That is why, as noted at the outset, there would be no justification for the reversal of the appealed decision. 1. As is usually the case in criminal offenses, there was a direct conflict in the evidence submitted by the prosecution and the defense. What is undeniable is that there was testimony coming from a competent and credible eyewitness to the offense, Danilo Maningo, the son of the deceased. He heard the shots being fired and saw who perpetrated the deed. He was only a meter away, right at the scene of the crime. He had direct and immediate knowledge. He Identified the accused. It was not difficult for him to do so as there was a "big light" at the door of the house. He was subjected to an intensive cross-examination. He stood his ground. He did not budge. His version of the incident, as a matter of fact, was reinforced. There was, in addition, testimony from one Carmencita Trinidad, who, coming from the church, heard the shots after which she saw two persons running away from the house of the deceased, one of whom was slightly taller than she, an assertion verified when it was shown that appellant's height as compared to her was precisely that. At about the same time, a certain Jorge Durano, whose house was located at the back of the hospital near the seashore and cemetery of Danao City, testified that he saw a person walking fast going towards a barrio in the north near the swampy area, his attention being called to such individual wearing rubber shoes. As against that, there was the testimony from appellant who, as noted in the decision, claimed "that at the time of the incident, at about 6:30 in the evening of April 13, 1966, he was in Cebu City in the house of Atty. Gabriel a neighbor, conversing with the latter and that was the gist of the testimonies of two other witnesses, Nene Aranas and Libbi Cudilla also his neighbors. 15 This is a case, therefore. where the trial court, after hearing and observing the witnesses testify, and weighing what was said by them, did choose to believe the prosecution rather than the defense. For such a finding to be overturned, there must be a showing that it did overlook a material fact or circumstance or did misinterpret its significant. 16 What was said inPeople v. Tilaon 17 comes to mind: "Finally, the rule is now firmly established to the point of becoming elementary in this jurisdiction and elsewhere that where there is an irreconcilable conflict in the testimony of witnesses, the appellate court will not disturb the findings of the trial court when the evidence of the successful party, considered by itself, is adequate to sustain the judgment appealed from. 18 2. The appealed decision, moreover, finds impressive support from circumstances that point unerringly to appellant's guilt. They simply cannot be explained away. That could be the reason why his counsel did not even bother to do so. As noted in the decision, a rubber shoe left in a swampy area by someone leaving in a hurry the scene of the crime was just the right size. It did

FERNANDO, J.: Evidence both direct and circumstantial resulted in the conviction for the crime of murder of Domiciano Berame, now appellant, for the killing of the deceased Quirico Maningo, apparently arising from the intense partisanship generated by local politics. 1 In the original information for murder filed, a certain Anastacio Montinola was likewise included, but he died soon thereafter. Appellant Berame was positively Identified by a son of the deceased, who was just a meter away at the salary of their rented house at the time of the fatal incident. In the judgment now on appeal, the trial court likewise took into consideration the flight of the appellant, his surrender coming only after a month, the statement at the hospital made by the wounded co-accused Montinola that along with him, appellant participated in the act of shooting, and the fact that a rubber shoe, found in a swampy area where assailants hid for a while, did fit the right foot of appellant. As against such proof considered conclusive of the trial court, the defense of alibi was unavailing. A careful study of the record persuades us of the correctness of such a conclusion. We affirm. According to the testimonial evidence: It was about 6:30 in the evening of April 13, 1966, that an assailant suddenly shot Quirico Maningo, then seated on a chair facing the main door of the sala of his rented house in Rizal Street, Suba District Danao City. 2 His adopted son Danilo Maningo, was seated one meter away from his right side. 3 Several successive shots were fired at Quirico Maningo. 4 He saw his father, Quirico Maningo, slump to the floor, wounded, with blood on his neck and breast 5 He looked towards the main door where the shots came from and saw the accused holding a .38 caliber revolver. 6 He was easily Identifiable, as there was a "big light" at the main door of the house. 7 Appellant was standing on a bright spot as he fired his gun several times at Quirico Maningo. 8 When the firing ceased, the witness ran towards the main door of the house and saw two persons, one of them being the accuse Berame scampering away. 9 Quirico Maningo, the victim, was rushed to the Danao City General Hospital, but he was dead on arrival. 10 The appealed decision did likewise note that later that same evening, the PC Provincial Commander of the Philippine Constabulary with a Sergeant Armando Alfoja started the investigation of the killing of Quirico Maningo. In a swampy area at the back of the hospital near the cemetery of Danao City, where it was suspected one of the alleged assailants was hiding, they saw footprints and recovered a rubber shoe. Appellant was required at the trial to put it on. It turned out that it corresponded exactly with his right foot. 11 Moreover, appellant took flight after the killing and hid himself He did not surrender until almost a month later, on May 8, 1966. 12 There was in addition the statement from one of those accused in the original information, Anastacio Montinola. As one of the suspects, he was pursued by the police authorities. When cornered, instead of surrendering, he decided to shoot it out. He was hit, it

fit appellant's right foot. That was demonstrative evidence of the most persuasive kind. So it has been held time and time again. First there was United States. v. Tan Teng. 19decided in 1912. Of more recent vintage is People v. Otadora, 20 promulgated in 1950. The appealed decision was likewise based on the fact of appellant having been in hiding for sometime with the evident purpose of evading arrest. He did not surrender until after the lapse of a month. That again was a circumstance that could not be ignored. There is relevance to this excerpt from the opinion of Justice Malcolm in United States v. Sarikala: 21"Third, Sarikala left the scene of the murder immediately thereafter. Flight, when unexplained, is a circumstance from which an inference of guilt may be drawn. 'The wicked flee, even when no man pursueth but the righteous are as bold as a lion " 22 3. Then, too, there was a statement made by one of the original co-accused, Anastacio Montinola, on his being captured after the gunplay where he was wounded, it turned out, mortally. He admitted his participation in the killing of Maningo and pointed to appellant as one of his companions. While not amounting to a dying declaration, the lower court considered it as part of the res gestae, and rightly so. That was assigned as error by appellant's counsel in view of the nine hours that had elapsed from the time of the killing before its utterance. That is not enough to take it out of the operation of the principle. The teaching of a host of cases from United States v. David,23 a 1903 decision, is to the effect that it should be given credence. As was stressed by the then Chief Justice Concepcion in People v. Ner 24 All that is required for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances" 25 As far back as 1942, in People v. Nartea 26 the marked trend of decisions, according to Justice Ozaeta, is to extend, rather than narrow, the scope of the doctrine admitting declarations as part of the res gestae. Whether specific statements are admissible as part of the res gestae is a matter within the sound discretion of the trial court, the determination of which is ordinarily conclusive upon appeal, in the absence of a clear abuse of discretion. 27 Here, again, there cannot possibly be any abuse of discretion. That much is clear. 4. The last error assigned is the alleged failure of the lower court to hold that the prosecution was unable to prove beyond reasonable doubt the guilt of appellant, and therefore he should be entitled to the constitutional presumption of innocence. 28, It requires a certain degree of temerity to make such an assertion in the face of the competent and credible evidence of record. This is one of those cases where the culpability of appellant was shown in a manner that should remove any misgivings. The stage of moral certainty certainly was reached. The defense of alibi was indisputably devoid of merit. There was positive Identification. Then there were the circumstances that indicated conclusively his participation in the criminal act. The alibi was therefore disproved by direct and circumstantial evidence. 29 It, is not inappropriate to conclude with this observation by Justice Endencia in People v. Dagatan, 30 considering the distance involved between Cebu and Danao City: "In this particular case, appellants loosely told the court that at around eleven o'clock on the night of June 11, 1937, they were not in Carmen when the crime was being committed because they were in Cebu. They, however, failed to present credible and tangible evidence that it was physically impossible for them to be at Carmen at that time. On the contrary, they themselves furnished evidence that Carmen is only about 40 kilometers from Cebu City, with abundant means of transportation such as buses, jeepneys and trucks plying between the two places, which would at most take an hour to go from one place to the other, and according to Saturnino himself, it would only take him 40 minutes if he were to drive the car himself " 31 The trial court therefore correctly decided that appellant is guilty of the crime of murder, the offense being qualified by elevosia with the aggravating circumstance of dwelling being offset by the mitigating circumstance of voluntary surrender. The appropriate penalty then, as.imposed in the appealed decision, is reclusion perpetua.

WHEREFORE, the decision of the lower court of March 8, 1967 finding the accused Domiciano Berame alias Doming guilty beyond reasonable doubt of the crime of murder and imposing the penalty of reclusion perpetua is affirmed, with the only modification that the indemnity due the heirs of the deceased should be in the amount of P12,000.00 and not P6,000.00.

G.R. No. 157177

February 11, 2008

BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. JESUSA P. REYES and CONRADO B. REYES, respondents. Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul the Decision1of the Court of Appeals (CA) dated October 29, 2002 as well as its Resolution2 dated February 12, 2003, which affirmed with modification the Decision of the Regional Trial Court (RTC) of Makati, Branch 142, in Civil Case No. 91-3453,3 requiring Bank of Philippine Islands (petitioner) to return to spouses Jesusa P. Reyes and Conrado B. Reyes (respondents) the amount of P100,000.00 plus interest and damages. The conflicting versions of the parties are aptly summarized by the trial court, to wit: On December 7, 1990 at around 2:00 p.m., plaintiff Jesusa Reyes together with her daughter, Joan Reyes, went to BPI Zapote Branch to open an ATM account, she being interested with the ongoing promotions of BPI entitling every depositor with a deposit amounting to P2,000.00 to a ticket with a car as its prize to be raffled every month. She was accommodated, in lieu of the bank manager Mr. Nicasio, by Cicero Capati (Pats) who was an employee of the bank and in charge of the new accounts and time deposits characteristically described as having homosexual inclinations. They were entertained by Capati and were made to sit at a table occupied by a certain Liza. Plaintiff informed Capati that they wanted to open an ATM account for the amount of P200,000.00, P100,000.00 of which shall be withdrawn from her exiting savings account with BPI bank which is account no. 0233-2433-88 and the other P100,000.00 will be given by her in cash. Capati allegedly made a mistake and prepared a withdrawal slip for P200,00.00 to be withdrawn from her existing savings account with said bank and the plaintiff Jesusa Reyes believing in good faith that Capati prepared the papers with the correct amount signed the same unaware of the mistakes in figures. While she was being entertained by Capati, her daughter Joan Reyes was filling up the signature cards and several other forms. Minutes later after the slips were presented to the teller, Capati returned to where the plaintiff was seating and informed the latter that the withdrawable balance could not accommodate P200,000.00. Plaintiff explained that she is withdrawing the amount of P100,000.00 only and then changed and correct the figure two (2) into one (1) with her signature super-imposed thereto signifying the change, afterwhich the amount of P100,000.00 in cash in two bundles containing 100 pieces of P500.00 peso bill were given to Capati with her daughter Joan witnessing the same. Thereafter Capati prepared a deposit slip for P200,000.00 in the name of plaintiff Jesusa Reyes with the new account no. 0235-0767-48 and brought the same to the teller's booth.

After a while, he returned and handed to the plaintiff her duplicate copy of her deposit to account no. 0235-0767-48 reflecting the amount of P200,000.00 with receipt stamp showing December 7, as the date. Plaintiff and daughter then left. On December 14, 1990, Mrs. Jesusa received her express teller card from said bank. Thereafter on December 26, 1990, plaintiff left for the United States (Exhs. "T", "U""U-1") and returned to Manila on January 31, 1991 (Exhs. "V"-"V-1"). When she went to her pawnshop, she was made aware by her statement of account sent to her by BPI bank that her ATM account only contained the amount of P100,000.00 with interest. She then sent her daughter to inquire, however, the bank manager assured her that they would look into the matter. On February 6, 1991, plaintiff instructed Efren Luna, one of her employees, to update her savings account passbook at the BPI with the folded deposit slip for P200,000.00 stapled at the outer cover of said passbook. After presenting the passbook to be updated and when the same was returned, Luna noticed that the deposit slip stapled at the cover was removed and validated at the back portion thereof. Thereafter, Luna returned with the passbook to the plaintiff and when the latter saw the validation, she got angry. Plaintiff then asked the bank manager why the deposit slip was validated, whereupon the manager assured her that the matter will be investigated into. When no word was heard as to the investigation made by the bank, Mrs. Reyes sent two (2) demand letters thru her lawyer demanding return of the missing P100,000.00 plus interest (Exhs. "B" and "C"). The same was received by defendant on July 25, 1991 and October 7, 1991, respectively. The last letter prompted reply from defendant inviting plaintiff to sit down and discuss the problem. The meeting resulted to the bank promising that Capati will be submitted to a lie detector test. Plaintiff, however, never learned of the result of said test. Plaintiff filed this instant case. Defendant on the other hand claimed that Bank of the Philippine Island admitted that Jesusa Reyes had effected a fund transfer in the amount of P100,000.00 from her ordinary savings account to the express teller account she opened on December 7, 1990 (Exhs. "3" to "3-C"), however, it was the only amount she deposited and no additional cash deposit of P100,000.00 was made. That plaintiff wanted to effect the

transfer of P200,000.00 but the balance in her account was not sufficient and could not accommodate the same. Plaintiff thereafter agreed to reduce the amount to be withdrawn from P200,000.00 to P100,000.00 with plaintiffs signature superimposed on said corrections; that the original copy of the deposit slip was also altered from P200,000.00 to P100,000.00, however, instead of plaintiff signing the same, the clerk-in-charge of the bank, in this case Cicero Capati, signed the alteration himself for Jesusa Reyes had already left without signing the deposit slip. The documents were subsequently machine validated for the amount ofP100,000.00 (Exhs. "2" and "4"). Defendant claimed that there was actually no cash involved with the transactions which happened on December 7, 1990 as contained in the banks teller tape (Exhs."1" to "1-C"). Defendant further claimed that when they subjected Cicero Capati to a lie detector test, the latter passed the same with flying colors (Exhs. "5" to "5-C"), indicative of the fact that he was not lying when he said that there really was no cash transaction involved when plaintiff Jesusa Reyes went to the defendant bank on December 7, 1990; defendant further alleged that they even went to the extent of informing Jesusa Reyes that her claim would not be given credit (Exh. "6") considering that no such transaction was really made on December 7, 1990. 4 On August 12, 1994, the RTC issued a Decision upholding the versions of respondents, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds in favor of the plaintiff Jesusa P. Reyes and Conrado Reyes and against defendant Bank of the Philippine Islands ordering the latter to: 1. Return to plaintiffs their P100,000.00 with interest at 14% per annum from December 7, 1990; 2. Pay plaintiffs P1,000,000.00 as moral damages; 2. Pay plaintiffs P350,000.00 as exemplary damages; 3. Pay plaintiffs P250,000.00 for and attorney's fees.6 The RTC found that petitioner's claim that respondent Jesusa deposited only P100,000.00 instead of P200,000.00 was hazy; that what should control was the deposit slip issued by the bank to respondent, for there was no chance by which respondent could write the amount of P200,000.00 without petitioner's employee noticing it and making the necessary corrections; that it was deplorable to note that it was when respondent Jesusa's bankbook was submitted to be updated after the lapse of several months when the alleged error claimed by petitioner was corrected; that Article 1962 of the New Civil Code provides that a deposit is constituted from the moment a person receives a thing belonging to another with the obligation of safely keeping it and of returning the same; that under Article 1972, the depositary is obliged to keep the thing safely and to return it when required to the depositor or to his heirs and successors or to the person who may have been designated in the contract. Aggrieved, petitioner appealed to the CA which in a Decision dated October 29, 2002 affirmed the RTC decision with modification as follows:
5

Nonetheless, the award of 14% interest per annum on the missing P100,000.00 can stand some modification. The interest thereon should be 12% per annum, reckoned from May 12, 1991, the last day of the five day-grace period given by plaintiffappellees' counsel under the first demand letter dated May 6, 1991 (Exhibit B), or counted from May 7, 1991, the date when defendant-appellant received said letter. Interest is demandable when the obligation consist in the payment of money and the debtor incurs in delay. Also, we have to reduce the P1 million award of moral damages to a reasonable sum of P50,000.00. Moral damages are not intended to enrich a plaintiff at the expense of a defendant. They are awarded only to enable the injured party to obtain means, diversion, or amusements that will serve to alleviate the moral suffering he has undergone, by reason of the defendant's culpable action. The award of moral damages must be proportionate to the suffering inflicted. In addition, we have to delete the award of P350,000.00 as exemplary damages. The absence of malice and bad faith, as in this case, renders the award of exemplary damages improper. Finally, we have to reduce the award of attorney's fees to a reasonable sum of P30,000.00, as the prosecution of this case has not been attended with any unusual difficulty. WHEREFORE, with the modifications thus indicated, the judgment appealed from is in all other respects AFFIRMED. Without costs.7 In finding petitioner liable for the missing P100,000.00, the CA held that the RTC correctly gave credence to the testimonies of respondent Jesusa and Joan Reyes to the effect that aside from the fund transfer of P100,000.00 from Jesusa's savings account, Jesusa also made a cash deposit of P100,000.00 in the afternoon of December 7, 1990; that it is unlikely for these two to concoct a story of falsification against a banking institution of the stature of petitioner if their claims were not true; that the duplicate copy of the deposit slip showed a deposit of P200,000.00; this, juxtaposed with the fact that it was not machine-validated and the original copy altered by the bank's clerk from P200,000.00 to P100,000.00 with the altered amount "validated," is indicative of anomaly; that even if it was bank employee Cicero Capati who prepared the deposit slip, Jesusa stood her ground and categorically denied having any knowledge of the alteration therein made; that petitioner must account for the missing P100,000.00 because it was the author of the loss; that banks are engaged in business imbued with public interest and are under strict obligation to exercise utmost fidelity in dealing with its clients, in seeing to it that the funds therein invested or by them received are properly accounted for and duly posted in their ledgers. Petitioner's motion for reconsideration was denied in a Resolution dated February 12, 2003. Hence, the present petition on the following grounds: A. In affirming the decision of the trial court holding BPI liable for the amount of P100,000.00 representing an alleged additional deposit of respondents, the Honorable Court of Appeals gravely abused its discretion by resolving the issue based on a conjecture and ignoring physical evidence in favor of testimonial evidence.

B. The Court of Appeals gravely abused its discretion, being as it is contrary to law, in holding BPI liable to respondents for the payment of interest at the rate of 12% per annum. C. This Honorable Court gravely abused its discretion, being as it is contrary to law, in holding BPI liable for moral damages and attorney's fees at the reduced amounts of P50,000.00 and P30,000.00, respectively. 8 The main issue for resolution is whether the CA erred in sustaining the RTC's finding that respondent Jesusa made an initial deposit of P200,000.00 in her newly opened Express Teller account on December 7, 1990. The issue raises a factual question. The Court is not a trier of facts, its jurisdiction being limited to reviewing only errors of law that may have been committed by the lower courts.9 As a rule, the findings of fact of the trial court when affirmed by the CA are final and conclusive and cannot be reviewed on appeal by this Court, as long as they are borne out by the record or are based on substantial evidence.10 Such rule however is not absolute, but is subject to well-established exceptions, which are: 1) when the inference made is manifestly mistaken, absurd or impossible; 2) when there is a grave abuse of discretion; 3) when the finding is grounded entirely on speculations, surmises or conjectures; 4) when the judgment of the CA is based on a misapprehension of facts; 5) when the findings of facts are conflicting; 6) when the CA, in making its findings, went beyond the issues of the case, and those findings are contrary to the admissions of both appellant and appellee; 7) when the findings of the CA are contrary to those of the trial court; 8) when the findings of fact are conclusions without citation of specific evidence on which they are based; 9) when the CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and 10) when the findings of fact of the CA are premised on the absence of evidence and are contradicted by the evidence on record.11 We hold that this case falls under exception Nos. 1, 3, 4, and 9 which constrain us to resolve the factual issue. It is a basic rule in evidence that each party to a case must prove his own affirmative allegations by the degree of evidence required by law.12 In civil cases, the party having the burden of proof must establish his case by preponderance of evidence,13 or that evidence which is of greater weight or is more convincing than that which is in opposition to it. It does not mean absolute truth; rather, it means that the testimony of one side is more believable than that of the other side, and that the probability of truth is on one side than on the other.14 Section 1, Rule 133 of the Rules of Court provides the guidelines for determining preponderance of evidence, thus: SECTION 1. Preponderance of evidence, how determined.- In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

For a better perspective on the calibration of the evidence on hand, it must first be stressed that the judge who had heard and seen the witnesses testify was not the same judge who penned the decision. Thus, not having heard the testimonies himself, the trial judge or the appellate court would not be in a better position than this Court to assess the credibility of witnesses on the basis of their demeanor. Hence, to arrive at the truth, we thoroughly reviewed the transcripts of the witnesses' testimonies and examined the pieces of evidence on record. After a careful and close examination of the records and evidence presented by the parties, we find that respondents failed to successfully prove by preponderance of evidence that respondent Jesusa made an initial deposit of P200,000.00 in her Express Teller account. Respondent Jesusa and her daughter Joan testified that at the outset, respondent Jesusa told Capati that she was opening an Express Teller account for P200,000.00; that she was going to withdraw and transfer P100,000.00 from her savings account to her new account, and that she had an additional P100,000.00 cash. However, these assertions are not borne out by the other evidence presented. Notably, it is not refuted that Capati prepared a withdrawal slip15 for P200,000.00. This is contrary to the claim of respondent Jesusa that she instructed Capati to make a fund transfer of only P100,000.00 from her savings account to the Express Teller account she was opening. Yet, respondent Jesusa signed the withdrawal slip. We find it strange that she would sign the withdrawal slip if her intention in the first place was to withdraw only P100,000.00 from her savings account and depositP100,000.00 in cash with her. Moreover, respondent Jesusa's claim that she signed the withdrawal slip without looking at the amount indicated therein fails to convince us, for respondent Jesusa, as a businesswoman in the regular course of business and taking ordinary care of her concerns, 16 would make sure that she would check the amount written on the withdrawal slip before affixing her signature. Significantly, we note that the space provided for her signature is very near the space where the amount of P200,000.00 in words and figures are written; thus, she could not have failed to notice that the amount of P200,000.00 was written instead of P100,000.00. The fact that respondent Jesusa initially intended to transfer the amount of P200,000.00 from her savings account to her new Express Teller account was further established by the teller's tape presented as petitioner's evidence and by the testimony of Emerenciana Torneros, the teller who had attended to respondent Jesusa's transactions. The teller's tape,17 Exhibit "1" unequivocally shows the following data: 151159 07DEC90 1370 288A 233324299 151245 07DEC90 1601 288A 233243388 ***200000.0018 BIG AMOUNT 151251 07DEC90 1601 288J 233243388 ***200000.00 151309 07DEC90 1601 288A 233243388 ***200000.00 PB BALANCE ERROR BAL. 229,257.64 151338 07DEC90 1601 288A 233243388 ***200000.00 BIG AMOUNT

151344 07DEC90 1601 288J 233243388 ***200000.00 151404 07DEC90 1601 288A 233243388 ***200000.00 TOD 151520 07DEC90 1601 288A 233320145 ***2000.00 151705 07DEC90 1789 288A 233324299 ***22917.00 151727 07DEC90 1601 288A 233243388 ***100000.00 BIG AMOUNT 151730 07DEC90 1601 288J 233243388 ***100000.00 151746 07DEC90 1601 288A 233243388 ***100000.0019 151810 07DEC90 1370 288A 235076748 151827 07DEC90 1790 288A 235076748 ***100000.00 ***100000.0020 151903 07DEC90 1301 288A 233282405 151914 07DEC90 1690 288A 235008955 ***1778.05 152107 07DEC90 1601 288A 3333241381 ***5000.00 152322 07DEC90 1601 288A 233314374 ***2000.00 152435 07DEC90 1370 288A 235076764 152506 07DEC90 1790 288A 235076764 ***4000.00 ***4000.00 152557 07DEC90 1601 288A 233069469 ***2000.00 152736 07DEC90 1601 288A 233254584 ***2000.00 152849 07DEC90 0600 288A 231017585 ***3150.00 686448 152941 07DEC90 1790 288A 3135052255 ***2800.00 ***2800.00 153252 07DEC90 1601 288A 233098264 (Emphasis supplied) The first column shows the exact time of the transactions; the second column shows the date of the transactions; the third column shows the bank transaction code; the fourth column shows the teller's code; and the fifth column shows the client's account number. The teller's tape reflected various transactions involving different accounts on December 7, 1990 which included respondent Jesusa's Savings Account No. 233243388 and her new Express Teller Account No. 235076748. It shows that respondent Jesusa's initial intention to withdraw P200,000.00, notP100,000.00, from her Savings Account No. 233324299 was begun at 3 o'clock, 12 minutes and 45 seconds as shown in Exhibit "1-c." In explaining the entries in the teller's tape, Torneros testified that when she was processing respondent Jesusa's withdrawal in the amount of P200,000.00, her computer rejected the transaction because there was a discrepancy;21 thus, the word "BIG AMOUNT" appeared on the tape. "Big amount" means that the amount was so big for her to approve,22 so she keyed in the amount again and overrode the transaction to be able to process the withdrawal using an officer's override with the latter's approval.23 The letter "J" appears after Figure 288 in the fourth

column to show that she overrode the transaction. She then keyed again the amount of P200,000.00 at 3 o'clock 13 minutes and 9 seconds; however, her computer rejected the transaction, because the balance she keyed in based on respondent Jesusa's passbook was wrong;24 thus appeared the phrase "balance error" on the tape, and the computer produced the balance of P229,257.64, and so she keyed in the withdrawal ofP200,000.00.25 Since it was a big amount, she again had to override it, so she could process the amount. However, the withdrawal was again rejected for the reason "TOD, overdraft,"26 which meant that the amount to be withdrawn was more than the balance, considering that there was a debited amount of P30,935.16 reflected in respondent Jesusa's passbook, reducing the available balance to only P198,322.48.27 Torneros then called Capati to her cage and told him of the insufficiency of respondent Jesusa's balance.28Capati then motioned respondent Jesusa to the teller's cage; and when she was already in front of the teller's cage, Torneros told her that she could not withdraw P200,000.00 because of overdraft; thus, respondent Jesusa decided to just withdraw P100,000.00.29 This explains the alteration in the withdrawal slip with the superimposition of the figure "1" on the figure "2" and the change of the word "two" to "one" to show that the withdrawn amount from respondent Jesusa's savings account was only P100,000.00, and that respondent Jesusa herself signed the alterations. The teller's tape showed that the withdrawal of the amount of P100,000.00 by fund transfer was resumed at 3 o'clock 17 minutes and 27 seconds; but since it was a big amount, there was a need to override it again, and the withdrawal/fund transfer was completed. At 3 o'clock 18 minutes and 27 seconds, the amount of P100,000.00 was deposited to respondent Jesusa's new Express Teller Account No. 235076748. The teller's tape definitely establishes the fact of respondent Jesusa's original intention to withdraw the amount ofP200,000.00, and not P100,000.00 as she claims, from her savings account, to be transferred as her initial deposit to her new Express Teller account, the insufficiency of her balance in her savings account, and finally the fund transfer of the amount of P100,000.00 from her savings account to her new Express Teller account. We give great evidentiary weight to the teller's tape, considering that it is inserted into the bank's computer terminal, which records the teller's daily transactions in the ordinary course of business, and there is no showing that the same had been purposely manipulated to prove petitioner's claim. Respondent Jesusa's bare claim, although corroborated by her daughter, that the former deposited P100,000.00 cash in addition to the fund transfer of P100,000.00, is not established by physical evidence. While the duplicate copy of the deposit slip30 was in the amount of P200,000.00 and bore the stamp mark of teller Torneros, such duplicate copy failed to show that there was a cash deposit of P100,000.00. An examination of the deposit slip shows that it did not contain any entry in the breakdown portion for the specific denominations of the cash deposit. This demolishes the testimonies of respondent Jesusa and her daughter Joan. Furthermore, teller Torneros's explanation of why the duplicate copy of the deposit slip in the amount ofP200,000.00 bore the teller's stamp mark is convincing and consistent with logic and the ordinary course of business. She testified that Capati went to her cage bringing with him a withdrawal slip for P200,000.00 signed by respondent Jesusa, two copies of the deposit slip for P200,000.00 in respondent Jesusa's name for her new Express Teller account, and the latter's savings passbook reflecting a balance of P249,657.6431 as of November 19, 1990.32 Thus, at first glance, these appeared to Torneros to be sufficient for the withdrawal of P200,000.00 by fund transfer. Capati then got her teller's stamp mark, stamped it on the duplicate copy of the deposit slip, and gave the duplicate to respondent Jesusa, while the

original copy33 of the deposit slip was left in her cage.34However, as Torneros started processing the transaction, it turned out that respondent Jesusa's balance was insufficient to accommodate the P200,000.00 fund transfer as narrated earlier. Since respondent Jesusa had signed the alteration in the withdrawal slip and had already left the teller's counter thereafter and Capati was still inside the teller's cage, Torneros asked Capati about the original deposit slip and the latter told her, "Ok naman iyan,"35 and Capati superimposed the figures "1" on "2" on the deposit slip36 to reflect the initial deposit of P100,000.00 for respondent Jesusa's new Express Teller account and signed the alteration. Torneros then machine-validated the deposit slip. Thus, the duplicate copy of the deposit slip, which bore Torneross stamp mark and which was given to respondent Jesusa prior to the processing of her transaction, was not machine-validated unlike the original copy of the deposit slip. While the fact that the alteration in the original deposit slip was signed by Capati and not by respondent Jesusa herself was a violation of the bank's policy requiring the depositor to sign the correction,37 nevertheless, we find that respondents failed to satisfactorily establish by preponderance of evidence that indeed there was an additional cash of P100,000.00 deposited to the new Express Teller account. Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence.38 We have, on many occasions, relied principally upon physical evidence in ascertaining the truth. Where the physical evidence on record runs counter to the testimonial evidence of the prosecution witnesses, we consistently rule that the physical evidence should prevail.39 In addition, to uphold the declaration of the CA that it is unlikely for respondent Jesusa and her daughter to concoct a false story against a banking institution is to give weight to conjectures and surmises, which we cannot countenance. In fine, respondents failed to establish their claim by preponderance of evidence. Considering the foregoing, we find no need to tackle the other issues raised by petitioner. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated October 29, 2002 as well as its Resolution dated February 12, 2003 are hereby REVERSED and SET ASIDE. The complaint filed by respondents, together with the counterclaim of petitioner, is DISMISSED. No costs. SO ORDERED.

10

State v. Tatum 360 P.2d 754 (Wash. 1961) DONWORTH, J. Ralph Tatum (hereinafter called appellant) was convicted of the crime of first degree forgery and was sentenced to life imprisonment as an habitual criminal. The essential facts of the case are summarized as follows: One William Tousin, of Pasco, received monthly welfare checks from the state of Washington. In February, 1960, Tousin did not receive his check (the checks were generally mailed to a rooming house in Pasco where Tousin resided). The mail was normally left on a window ledge in the hallway of the rooming house. Appellant resided at the same place. Tousin's February check for $28.90 was endorsed and cashed at Sherman's Food Store in Pasco by someone other than the payee, Tousin. An employee of the store, Caroline Pentecost, testified that, although she could not specifically recall the above-mentioned transaction, the initials appearing on the face of the check were hers. She also testified that whenever a check was presented to her for payment at the store, the store manager had instructed her to initial it and then insert it into a "Regiscope" machine. This machine is designed to simultaneously photograph, through two separate lenses, both the check and the person facing the machine. When it was discovered that the endorsement of the payee was a forgery, the Regiscope film of the transaction was sent to the Regiscope distributor in Portland to be developed. The processed film shows both the check and the person of appellant (from his waist up) with the food store in the background. Upon the trial, both the negative and the print therefrom were admitted in evidence, over appellant's objection.... Were the Regiscope films (the negative and the print) authenticated sufficiently to warrant their admission into evidence? ... At the outset, with respect to the question of the admissibility of the Regiscope films, it should be noted that this court has for many years encouraged the admission and use of demonstrative evidence, including photographs. There is equally well-established precedent for the proposition that the admission or rejection of photographs as evidence lies within the sound discretion of the trial court.... We have also held that the trial court's discretion extends to the sufficiency of identification. What quantum of authentication do courts require before a photograph may be admissible in evidence? It is simply this--that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated. The photograph need only be sufficiently accurate to be helpful to the court and the jury. Witness Pentecost testified that she recognized the background shown in the picture as that of the food store, and, as mentioned previously, she also testified as to the store's standard procedure of "regiscoping" each individual who cashed a check at the store. Phillip Dale testified at length concerning the Regiscope process. The testimony of these two witnesses taken together amounted to a sufficient authentication to warrant the admission of the photograph

(both the print and the negative) into evidence. The authentication supplied by the testimony summarized above, of course, did not preclude appellant from attempting to prove that the individual portrayed was someone other than appellant, that the photograph was inaccurate in one or more respects, the appellant was somewhere else at the moment the photograph was taken, or any other such defense. But these arguments go to the weight rather than to the admissibility of the exhibits in question. In our opinion, the Regiscope exhibits, coupled with the other evidence produced by the state, sufficed to establish a prima facie case of first degree forgery.... The judgment of the trial court is affirmed.

11

Adamczuk v. Holloway 338 Pa. 263, 13 A.2d 2 (1940) MAXEY, J. Plaintiffs brought an action in trespass against defendants for personal injuries and property damage arising out of a collision between a car owned and operated by plaintiff, Jack J. Adamczuk, and a car owned by defendant, Morris Cohen, and driven by defendant, Elmer Holloway.... The jury returned a verdict for defendants. Plaintiffs' motion for a new trial was refused and these appeals followed. The assignment of error which appellant stresses is based upon the refusal of the court to admit in evidence a certain photograph of the locus of the accident and the approach to it on Highway Route 6. When plaintiff, Jack Adamczuk, was on the stand, he was shown "Exhibit No. 3" and he identified the roads and buildings appearing in the picture and stated, in answer to his counsel, that "the conditions represented by that picture truly represent the conditions of the crossing at the time of this accident except for the fact of daylight or dark." Then the exhibit was offered in evidence. On cross-examination it was disclosed that the witness did not know who took the picture or when it was taken. He stated that when the picture was taken the location of the camera was on route 6 but he did not know at what distance from the intersection. He had no experience in photography. He said he did not know whether the photographer tilted the camera up or down when the picture was taken, and he did not know whether the photographer "endeavored to accentuate certain parts of the picture." The court then sustained the objection to the picture's introduction. It was offered in evidence again when Herbert C. Dillard, Civil Engineer and County Surveyor, was on the stand. He was asked on cross-examination by defendant's counsel: "If you were taking a picture, and wanted to accentuate the curve of route six to the west, you could accomplish that by taking the picture farther away from the intersection, that is, farther to the east of the intersection, could you not?" He answered: "I think you could, yes." This witness was asked if he took photographs and developed them. He answered: "Very little." At the close of plaintiff's case the picture was again offered in evidence and was objected to and the objection sustained, and court saying: "There is some mystery about exhibit number three, which is not clear to the court. There is no proof of who took it, or any identity as to the picture, other than the physical view thereon; it isn't shown where the camera was standing, under what conditions it was taken, and whether it was taken with a view to distorting it or not." The court then commented on the fact that plaintiff had two days "since adjournment last Friday, to procure the original taker of this photograph and thus establish it in the legal way with the right of crossexamination to defendants' counsel of the photographer." The rule is well settled that a photograph may be put in evidence if relevant to the issue and if verified. It does not have to be verified by the taker. Its verification depends on the competency of the verifying witness and as to that the trial judge must in the first instance decide, subject to reversal for substantial error. Wigmore on Evidence (2d ed.), Vol. 2, sec. 792, p.97, says:

The objection that a photograph may be so made as to misrepresent the object is genuinely directed against its testimonial soundness; but it is of no validity. It is true that a photograph can be deliberately so taken as to convey the most false impression of the object. But so also can any witness lie in his words. A photograph can falsify just as much and no more than the human being who takes it or verifies it. The fallacy of the objection occurs in assuming that the photograph can come in testimonially without a competent person's oath to support it. If a qualified observer is found to say, "This photograph represents the fact as I saw it," there is no more reason to exclude it than if he had said, "The following words represent the fact as I saw it," which is always in effect the tenor of a witness's oath. If no witness has thus attached his credit to the photograph, then it should not come in at all, any more than an anonymous letter should be received as testimony. Section 793: The map or photograph must first, to be admissible, be made a part of some qualified person's testimony. Someone must stand forth as its testimonial sponsor; in other words, it must be verified. There is nothing anomalous or exceptional in this requirement of verification; it is simply the exaction of those testimonial qualities which are required equally of all witnesses; the application merely takes a different form. In other words, if a witness is familiar with the scene photographed and is competent to testify that the photograph correctly represents it, it should, if relevant, be admitted....

12

SECOND DIVISION CIRSE FRANCISCO TORRALBA, P e t i t i o n e r, CHOY

The undersigned, City Prosecutor II, City of Tagbilaran, Philippines, hereby accuses CIRSE FRANCISCO CHOY TORRALBA for the crime of Libel, committed as follows: That, on or about the 11th day of April, 1994, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously, with deliberate and malicious intent of maligning, impeaching and discrediting the honesty, integrity, reputation, prestige and honor of late CFI Judge Agapito Y. Hontanosas, who was during his [lifetime] a CFI Judge of Cebu and a man of good reputation and social standing in the community and for the purpose of exposing him to public hatred, contempt, disrespect and ridicule, in his radio program TUG-ANI AND LUNGSOD (TELL THE PEOPLE) over radio station DYFX, openly, publicly and repeatedly announce[d] the following: KINING MGA HONTANOSAS, AGAPITO HONTANOSAS UG CASTOR HONTANOSAS, MGA COLLABORATOR SA PANAHON SA GUERRA. SA ATO PA, TRAYDOR SA YUTANG NATAWHAN. X X X. DUNAY DUGO NGA PAGKATRAYDOR ANG AMAHAN NI MANOLING HONTANOSAS, which in English means: THESE HONTANOSAS, AGAPITO HONTANOSAS AND CASTOR HONTANOSAS, ARE COLLABORATORS DURING THE WAR. IN OTHER WORDS, THEY ARE TRAITORS TO THE LAND OF THEIR BIRTH. X X X. THE FATHER OF MANOLING HONTANOSAS HAD TREACHEROUS BLOOD, and other words of similar import, thereby maliciously exposing the family of the late Judge Agapito Hontanosas including Atty. Manuel L. Hontanosas,[3] one of the legitimate children of [the] late CFI Judge Agapito Y. Hontanosas to public hatred, dishonor, discredit, contempt and ridicule causing the latter to suffer social humiliation, embarrassment, wounded feelings and mental anguish, to the damage and prejudice of said Atty. Manuel L. Hontanosas in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Article 353 of the Revised Penal Code in relation to Article 355 of the same Code. City of Tagbilaran, Philippines, September 8, 1994.

G. R. No. 153699 Present: PUNO, Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ. Promulgated:

- versus

PEOPLE OF THE PHILIPPINES, R e s p o n d e n t.

August 22, 2005 x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is a petition for review on certiorari of the Decision[1] promulgated on 22 May 2002 of the Court of Appeals in CA-G.R. CR No. 24818 which affirmed, with modification, the trial courts decision finding petitioner Cirse Francisco Choy Torralba guilty of the crime of libel in
[2]

Criminal Case No. 9107. APPROVED: Culled from the records are the following facts:

(SGD.) ADRIANO P. MONTES City Prosecutor II

(SGD) MARIANO CAPAYAS City Prosecutor[4]

Petitioner Torralba was the host of a radio program called Tug-Ani ang Lungsod which was aired Upon arraignment on 12 March 1996, petitioner Torralba pleaded not guilty to the crime he was over the radio station DYFX in Cebu City. On 12 September 1994, an information for libel was filed before the Regional Trial Court (RTC) of Tagbilaran City against petitioner Torralba. The information On 14 May 1998, petitioner Torralba filed before the RTC, Branch 1, Tagbilaran City, where Crim. states: Case No. 9107 was raffled off, a motion for consolidation [6] alleging therein that private complainant Atty. charged with.[5]

13

Manuel Hontanosas (Atty. Hontanosas) filed a total of four (4) criminal cases for libel against petitioner Torralba, three of which Crim. Cases No. 8956, No. 8957, and No. 8958 were then pending with the RTC, Branch III, Tagbilaran City. As the evidence for the prosecution as well as the defense were substantially the same, petitioner Torralba moved that Crim. Case No. 9107 be consolidated with the three other cases so as to save time, effort, and to facilitate the early disposition of these cases.

Soon thereafter, petitioner Torralba took on the management of TMSI. Lim testified that petitioner Torralba accused TMSI of not observing the minimum wage law and that said corporation was charging higher handling rates than what it was supposed to collect.

On 17 December 1993, private complainant Atty. Hontanosas went on-air in petitioner Torralbas radio program to explain the side of TMSI. The day after said incident, however, petitioner

In its order dated 25 May 1998,[7] the motion for consolidation filed by petitioner Torralba was Torralba resumed his assault on TMSI and its management. It was petitioner Torralbas relentless granted by the RTC, Branch 1, Tagbilaran City. badgering of TMSI which allegedly prompted Lim to tape record petitioner Torralbas radio broadcasts. During the trial on the merits of the consolidated cases, the prosecution presented as witnesses Segundo Lim, private complainant Atty. Hontanosas, and Gabriel Sarmiento. Three of the tape recordings were introduced in evidence by the prosecution, to wit: tape recording of 19 January 1994[8] tape recording of 25 January 1994[9] tape recording of 11 April 1994[10]

Exhibit B Exhibit C Exhibit D

Lim testified that he was one of the incorporators of the Tagbilaran Maritime Services, Inc. (TMSI) and was at that time the assigned manager of the port in Tagbilaran City. According to him, sometime During his testimony, Lim admitted that he did not know how to operate a tape recorder and during the Marcos administration, petitioner Torralba sought TMSIs sponsorship of his radio program. This request was approved by private complainant Atty. Hontanosas who was then the president of TMSI. During the existence of said sponsorship agreement, the management of TMSI noticed that petitioner Torralba was persistently attacking former Bureau of Internal Revenue Deputy Director Tomas Toledo and his brother Boy Toledo who was a customs collector. Fearing that the Toledos would think that TMSI was behind the incessant criticisms hurled at them, the management of TMSI decided to cease sponsoring authentication by the person who actually made the recordings. In the case of the subject tape recordings, petitioner Torralbas radio show. In effect, the TMSI sponsored Tug-Ani ang Lungsod for only a month Lim admitted that they were recorded by Shirly Lim. The trial court provisionally admitted the tape at the cost of P500.00. recordings subject to the presentation by the prosecution of Shirly Lim for the proper authentication of that he asked either his adopted daughter, Shirly Lim, or his housemaid to record petitioner Torralbas radio program. He maintained, however, that he was near the radio whenever the recording took place and had actually heard petitioner Torralbas radio program while it was being taped. This prompted petitioner Torralba to pose a continuing objection to the admission of the said tape recordings for lack of proper

14

said pieces of evidence. Despite petitioner Torralbas objection to the formal offer of these pieces of evidence, the court a quo eventually admitted the three tape recordings into evidence.[11]

the Japanese occupation; and that after he informed his siblings regarding this, they asked him to institute a case against petitioner Torralba.[17]

It was revealed during Lims cross-examination[12] that petitioner Torralba previously instituted a criminal action for libel[13] against the former arising from an article published in the Sunday Post, a newspaper of general circulation in the provinces of Cebu and Bohol. In said case, Lim was found guilty as charged by the trial court[14] and this decision was subsequently affirmed, with modification, by the Court of Appeals in its decision promulgated on 29 July 1996 in CA-G.R. CR No. 16413 entitled, People of the Philippines v. Segundo Lim and Boy Guingguing.[15] In our resolution of 04 December 1996, we denied Lims petition for review on certiorari.[16]

When he was cross-examined by petitioner Torralbas counsel, private complainant Atty. Hontanosas disclosed that he did not actually hear petitioner Torralbas radio broadcasts and he merely relied on the tape recordings presented to him by Lim as he believed them to be genuine. [18]

Sarmiento testified that he was the former court stenographer and interpreter of RTC, Branch 3, Tagbilaran City, and that he translated the contents of the tape recordings in 1994 upon the request of private complainant Atty. Hontanosas.

For his part, private complainant Atty. Hontanosas testified that he was at that time the chairman and manager of TMSI; that on 20 January 1994, Lim presented to him a tape recording of petitioner Torralbas radio program aired on 18 January 1994 during which petitioner Torralba allegedly criticized him and stated that he was a person who could not be trusted; that in his radio show on 25 January 1994, petitioner Torralba mentioned that he was now [wary] to interview any one because he had a sad experience with someone who betrayed him and this someone was like his father who was a collaborator; that on 12 April 1994, Lim brought to his office a tape recording of petitioner Torralbas radio program of 11 April 1994 during which petitioner Torralba averred that the Hontanosas were traitors to the land of their birth; that Judge Agapito Hontanosas and Castor Hontanosas were collaborators during

The defense presented, as its sole witness, petitioner Torralba himself. Petitioner Torralba maintained that he was a member of the Kapisanan ng mga Brodkaster ng Pilipinas and other civic organizations in Cebu. In the course of his profession as a radio broadcaster, he allegedly received complaints regarding the services of TMSI particularly with respect to the laborers low pay and exhorbitant rates being charged for the arrastre services. As he was in favor of balanced programming, petitioner Torralba requested TMSI to send a representative to his radio show in order to give the corporation an opportunity to address the issues leveled against it; thus, the radio interview of private complainant 17 December 1993. Atty. Hontanosas on

15

When petitioner Torralba was cross-examined by private complainant Atty. Hontanosas,[19] he denied having called former CFI Judge Hontanosas a traitor during his 11 April 1994 radio broadcast. Petitioner Torralba admitted, though, that during the 17 December 1993 appearance of private complainant Atty. Hontanosas in his radio program, he did ask the latter if he was in any way related to the late CFI Judge Hontanosas. Petitioner Torralba averred that he posed said question as mere backgrounder on his interviewee.

Petitioner Torralba seasonably filed an appeal before the Court of Appeals which, in the challenged decision before us, affirmed, with modification, the findings of the court a quo, thus:

WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the modification that accused-appellant is hereby sentenced to suffer imprisonment of four (4) months of arresto mayor to two (2) years, eleven (11) months and ten (10) days of prision correccional and to pay moral damages in the amount of P100,000.00.[22]

Hence, the present recourse where petitioner Torralba raises the following issues: I On 24 August 2000, the trial court rendered an omnibus decision
[20]

acquitting petitioner

Torralba in Crim. Cases No. 8956, No. 8957, and No. 8958 but holding him guilty of the crime of libel in Crim. Case No. 9107. The dispositive portion of the trial courts decision reads:

WHEREFORE, in view of all the foregoing, the Court hereby ACQUITS from criminal liability herein accused Cirse Francisco Choy Torralba of the charges alluded in Criminal Cases Nos. 8956, 8957, and 8958 being an exercise of legitimate self-defense, as afore-discussed. Consequently, the corresponding cash bonds of the accused in said cases as shown by OR No. 5301156, No. 5301157, and No. 5301158, all dated February 23, 2000, issued by the Clerk of Court of Multiple Salas in the amount of P4,200.00 each representing cash deposits therefore are hereby cancelled and released. However, the Court finds the same accused GUILTY beyond reasonable doubt in Crim. Case No. 9107 for his unwarranted blackening of the memory of the late Hon. CFI Judge Agapito Y. Hontanosas through the air lanes in his radio program resulting to the dishonor and wounded feelings of his children, grandchildren, relatives, friends, and close associates. For this, the Court hereby sentences the accused to imprisonment for an indeterminate period of FOUR MONTHS of Arresto Mayor to THREE YEARS of Prision Correccional medium period pursuant to Art. 353 in relation to Art. 354 and Art. 355 of the Revised Penal Code under which the instant case falls. Furthermore, he is ordered to indemnify the heirs of the late Judge Agapito Y. Hontanosas for moral damages suffered in the amount of ONE MILLION PESOS (P1,000,000.00), as prayed for, considering their good reputation and high social standing in the community and the gravity of the dishonor and public humiliation caused.[21]

THE HONORABLE COURT OF APPEALS SPEAKING THROUGH ITS SPECIAL FIFTEENTH DIVISION GRAVELY ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT A QUO (WITH MODIFICATION), CONVICTING PETITIONER-APPELLANT [TORRALBA] FOR THE CRIME OF LIBEL AS DEFINED AND PENALIZED UNDER ARTICLES 353 AND 355 OF THE REVISED PENAL CODE BASED SOLELY ON THE ALLEGED TESTIMONY OF SEGUNDO LIM . . . AS BORNE OUT BY THE STENOGRAPHIC NOTES WOULD NOT SUPPORT THE FINDING THAT HE TESTIFIED ON THE MALICIOUS IMPUTATIONS PURPORTEDLY MADE BY PETITIONER-APPELLANT [TORRALBA] IN CRIMINAL CASE NO. 9107. II

THE HONORABLE COURT OF APPEALS SERIOUSLY COMMITTED AN ERROR IN ADMITTING IN EVIDENCE AN UNAUTHENTICATED AND SPURIOUS TAPE RECORD OF A RADIO BROADCAST (EXHIBIT D) ALLEGEDLY BY HEREIN PETITIONER-APPELLANT [TORRALBA] ON THE BASIS OF WHICH THE LATTER WAS CONVICTED FOR THE CRIME OF LIBEL. III ASSUMING WITHOUT ADMITTING THAT PETITIONER-APPELLANT [TORRALBA] MADE UTTERANCES CONTAINED IN THE TAPE RECORD MARKED AS EXHIBIT D, THE HONORABLE COURT SERIOUSLY ERRED IN NOT CONSIDERING THE PRIVILEGE[D] NATURE OF HIS ALLEGED STATEMENTS IN FEALTY ADHERRENCE TO THE LANDMARK DECISION OF THE HONORABLE SUPREME COURT IN BORJAL VS. CA, 301 SCRA 01 (JAN. 14, 1999).

16

IV THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR IN AWARDING DAMAGES AGAINST THE PETITIONER ABSENT ANY SHOWING OF EVIDENT BAD FAITH ON THE PART OF THE PETITIONERAPPELLANT [TORRALBA] WHO ACTED WITH UBERIMA FIDES (OVERWHELMING GOOD FAITH) IN EXERCISING THE CONSTITUTIONALLY ENSHRINED FREEDOM OF THE PRESS (ARTICLE 2220, NEW CIVIL CODE).[23] In one case, it was held that the testimony of the operator of the recording device as regards its operation, his method of operating it, the accuracy of the recordings, and the identities of the persons speaking laid a sufficient foundation for the admission of the recordings. [27] Likewise, a witness declaration that the sound recording represents a true portrayal of the voices contained therein satisfies the requirement of authentication.[28] The party seeking the introduction in evidence of a tape recording bears This Court deems it proper to first resolve the issue of the propriety of the lower courts admission in evidence of the 11 April 1994 tape recording. the burden of going forth with sufficient evidence to show that the recording is an accurate reproduction of the conversation recorded.[29]

Oddly, this matter was not addressed head-on by the Office of the Solicitor General in its comment. These requisites were laid down precisely to address the criticism of susceptibility to tampering Petitioner Torralba vigorously argues that the court a quo should not have given considerable weight on the tape recording in question as it was not duly authenticated by Lims adopted daughter, Shirly Lim. Without said authentication, petitioner Torralba continues, the tape recording is incompetent and inadmissible evidence. We agree. In the case at bar, one can easily discern that the proper foundation for the admissibility of the It is generally held that sound recording is not inadmissible because of its form [24] where a proper foundation has been laid to guarantee the genuineness of the recording.[25] In our jurisdiction, it is a rudimentary rule of evidence that before a tape recording is admissible in evidence and given probative value, the following requisites must first be established, to wit: tape recording was not adhered to. It bears stressing that Lim categorically admitted in the witness stand that he was not familiar at all with the process of tape recording[31] and that he had to instruct his adopted daughter to record petitioner Torralbas radio broadcasts, thus: of tape recordings. Thus, it was held that the establishment of a proper foundation for the admission of a recording provided adequate assurance that proper safeguards were observed for the preservation of the recording and for its protection against tampering.[30]

ATTY. HONTANOSAS: q a q a Was this radio program of the accused recorded on April 11, 1994? Yes, sir. Who recorded the same radio program of April 11, 1994? It was my adopted daughter whom I ordered to tape recorded the radio program of Choy Torralba.[32]

(1) (2) (3) (4) (5) (6) (7)

a showing that the recording device was capable of taking testimony; a showing that the operator of the device was competent; establishment of the authenticity and correctness of the recording; a showing that changes, additions, or deletions have not been made; a showing of the manner of the preservation of the recording; identification of the speakers; and a showing that the testimony elicited was voluntarily made without any kind of inducement.[26]

17

Clearly, Shirly Lim, the person who actually recorded petitioner Torralbas radio show on 11 April 1994, should have been presented by the prosecution in order to lay the proper foundation for the admission of the purported tape recording for said date. Without the requisite authentication, there was no basis for the trial court to admit the tape recording Exhibit D in evidence.

necessarily listening to the contents of a radio broadcast or to what a radio commentator is saying over the airwaves.

What further undermines the credibility of Lims testimony is the fact that he had an ax to grind against petitioner Torralba as he was previously accused by the latter with the crime of libel and for which

In view of our disallowance of the 11 April 1994 tape recording, we are constrained to examine the records of this case in order to determine the sufficiency of evidence stacked against petitioner Torralba, bearing in mind that in criminal cases, the guilt of the accused can only be sustained upon proof beyond reasonable doubt.

he was found guilty as charged by the court. Surely then, Lim could not present himself as an uninterested witness whose testimony merits significance from this Court.

Nor is this Court inclined to confer probative value on the testimony of private complainant Atty. Hontanosas particularly in the light of his declaration that he did not listen to petitioner Torralbas radio

In his comprehensive book on evidence, our former colleague, Justice Ricardo Francisco, wrote that [e]vidence of a message or a speech by means of radio broadc ast is admissible as evidence when the identity of the speaker is established either by the testimony of a witness who saw him broadcast his message or speech, or by the witness recognition of the voice of the speaker. [33]

show subject of this petition. He simply relied on the tape recording handed over to him by Lim.

Time and again, this Court has faithfully observed and given effect to the constitutional presumption of innocence which can only be overcome by contrary proof beyond reasonable doubt -- one which requires moral certainty, a certainty that convinces and satisfies the reason and conscience of those who

The records of this case are bereft of any proof that a witness saw petitioner Torralba broadcast the alleged libelous remarks on 11 April 1994. Lim, however, stated that while petitioner Torralbas radio program on that date was being tape recorded by his adopted daughter, he was so near the radio that he could even touch the same.[34] In effect, Lim was implying that he was listening to Tug-Ani ang Lungsod at that time. In our view, such bare assertion on the part of Lim, uncorroborated as it was by any other evidence, fails to meet the standard that a witness must be able to recognize the voice of the speaker. Being near the radio is one thing; actually listening to the radio broadcast and recognizing the voice of the speaker is another. Indeed, a person may be in close proximity to said device without

are to act upon it.[35] As we have so stated in the past

Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.[36]

18

Confronted with what the State was able to present as evidence against petitioner Torralba, this Court is compelled to overturn the decision of the Court of Appeals due to insufficiency of evidence meriting a finding of guilt beyond reasonable doubt.

WHEREFORE, the petition is GRANTED. The Decision promulgated on 22 May 2002 of the Court of Appeals, affirming the omnibus decision dated 24 August 2000 of the Regional Trial Court, Branch 3, Tagbilaran City, is hereby REVERSED and SET ASIDE. Instead, a new one is entered ACQUITTING petitioner Cirse Francisco Choy Torralba of the crime of libel. The cash bond posted by said petitioner is ordered released to him subject to the usual auditing and accounting procedures. No costs.

SO ORDERED.

19

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. Nos. 108280-83 November 16, 1995 ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO,petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents. G.R. Nos. 114931-33 November 16, 1995 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants.

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1 At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers !" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7 Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9 The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival.

PUNO, J.: The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista." From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 8647322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo. The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling.

20

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings: Cyanosis, lips, and nailbeds. Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow. Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee. Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip. Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side. Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa. Hemorrhage, subdural, extensive. Other visceral organs, congested. Stomach, about 1/2 filled with grayish brown food materials and fluid. 10 The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers.11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated. For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting

Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored him. 21 The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense. On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows: WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows: 1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 8647322, the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS ofReclusion Temporal, as Maximum; 3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum; 4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum; 5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the Prosecution failed to prove the guilt of the Accused for

21

the crime charged beyond reasonable doubt and hereby acquits him of said charge; 6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum. The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit. The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail. The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge. The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit. The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled. 22 On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads: PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows: 1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond

reasonable doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua; 2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him; 3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder. CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for review. 24 Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accusedappellants sentenced to reclusion perpetua. Before this court, accused-appellants assign the following errors: I THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO. II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO SUMILANG. III THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED. IV

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THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED. V THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY. 25 In their additional brief, appellants contend that: I THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE. II THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED. III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT. 26 Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another

case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times. 28 There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any reward. 29 He informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them again. 30 The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's death. 31 The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness' testimony. Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others. 34 We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record. Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument. 37 Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummeled by his assailants with stones in their hands. 38 Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand.

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Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 53 This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to cross-examine all the accused who took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility. 57 The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat. 58 An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only once and he, although afflicted with hernia is shown merely running after the victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification.

Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray. Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows: Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prison mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty ofprision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 62 A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. 63 The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 64 As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder.

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Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 66 The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the socalled "Coryistas." It was not preceded by cool thought and reflection. We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 68 The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71 IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows: 1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua; 2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayoras minimum to TWENTY (20) YEARS of reclusion temporal as maximum; 3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts: (a) P74,000.00 as actual damages; (b) P100,000.00 as moral damages; and (c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants. SO ORDERED

25

FIRST DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 186131

On June 18, 2003, Amansec was charged before the Quezon City RTC, Branch 95 of violation of Sections 11 and 5, Article II of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The pertinent portions of the Informations[4] are as Present: follows:

CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, - versus DEL CASTILLO, and VILLARAMA, JR., JJ. That on or about the 15th day of June, 2003 in Quezon City, Philippines, the said accused, not being authorized by law to possess or use any dangerous drug, did and there willfully, unlawfully and knowingly have in his/her possession and control zero point zero nine (0.09) gram of white crystalline substance containing Methylamphetamine Hydroc[h]loride otherwise known as SHABU a dangerous drug.[5] Crim. Case No. Q-03-118187 The undersigned accuses BENJAMIN AMANSEC Y DONA a.k.a. Benjie for violation of Section 5, Article II, R.A. 9165, Comprehensive Dangerous Drugs Act of 2002, committed as follows: Crim. Case No. Q-03-118186 The undersigned accuses BENJAMIN AMANSEC Y DONA of violation of Section 11, Art. II, R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002), committed as follows:

Promulgated:

BENJAMIN AMANSEC yDONA, Accused-Appellant.

December 14, 2011

x---------------------------------------------------- x That on or about the 15th day of June, 2003 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero nine (0.09) gram of white crystalline substance containing Methylamphetamine Hydroc[h]loride otherwise known as SHABU a dangerous drug.[6] al, arrived at the station to talk to Villanueva. After talking to the informant, Villanueva formed a team for a buy-bust operation against Amansec, at Santos St., Barangay Damayan, San Francisco Del Monte, Quezon City. The team consisted of Mabutol as the poseur-buyer and Pascua and Valencia as his back-up members. Villanueva then gave Mabutol a one hundred peso (100.00) bill to be used as his buy-bust money. Mabutol marked this with his initials JR on the lower left side portion and listed its serial number in his dispatch book. The team, with their informant, then proceeded to the

DECISION For review is the April 15, 2008 Decision[1] of the Court of Appeals in CA-G.R. CR.-H.C. No. 02557, which affirmed the Regional Trial Courts (RTC) August 30, 2006 Decision[2] in Criminal Case No. Q03-118187,[3] wherein accused-appellant Benjamin Amansec y Dona (Amansec) was found guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. 9165.

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target area using a white marked vehicle with red plate. As soon as they reached the place, Mabutol and the informant moved ahead to the house of Amansec at Santos St., corner Caragay St., while the rest of the team positioned themselves at a strategic location, keeping Amansec within viewing distance. The informant then introduced Mabutol to Amansec as a drug addict, in dire need of drugs. Mabutol had just told Amansec that he was going to purchase one hundred pesos worth of shabu when another buyer, later identified as Jerome Pintis, came up to Amansec to also buy shabu. Amansec then showed both Pintis and Mabutol three plastic sachets containing crystalline substance. Pintis gave a one hundred peso bill to Amansec who in return, let him pick one of the three plastic sachets. After Pintis left, Amansec continued his transaction with Mabutol, and gave Mabutol another of the remaining two plastic sachets after receiving the buy-bust money. Mabutol thereafter examined the plastic sachet he obtained from Amansec, and suspecting it to be shabu, scratched the right side of his head with his right hand to signal his team to approach the target. Valencia immediately arrested Pintis and recovered from the latter one plastic sachet, while Pascua went after Amansec, who, upon seeing Pintis arrest, tried to run away. Pascua thereafter frisked Amansec and retrieved the buy-bust money that Mabutol had given Amansec, and another plastic sachet. The team then brought Pintis and Amansec to the Station Investigator. The team also marked with their initials the plastic sachets that they had recovered and turned them over to their Investigator. They later brought the plastic sachets to the Crime Laboratory to have their contents examined for the presence of shabu.[11]

Three (3) heat-sealed transparent plastic sachets containing white crystalline substance having the following markings and recorded net weights: A(JR-BA) = 0.09 gram B(RP-BA) = 0.09 gram xxxx PURPOSE OF LABORATORY EXAMINATION: To determine the presence of dangerous drugs. xxx FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE results to the tests for Methylamphetamine hydrochloride, a dangerous drug. x x x. C(RV-JM) = 0.09 gram

CONCLUSION:

Specimens A, B, and C contain Methylamphetamine hydrochloride, a dangerous drug. x x x.

TIME AND DATE COMPLETED: 1400H 16 JUNE 2003 This report, along with the three plastic sachets with white crystalline substance, and

The examination made by Engr. Banac on June 16, 2003, yielded the following results, as stated in his Chemistry Report No. D-472-03[12]:

the 100.00 bill[13] recovered from Amansec, were presented in court, and, except for the plastic sachets, were submitted to the court as evidence. The defense presented Amansec who vehemently denied, on the witness stand, the charges against him. He testified that on June 15, 2003, he was in his residence when two police officers, whom

TIME AND DATE RECEIVED: REQUESTING PARTY/UNIT:

1200H OIC, SDEU

16 JUNE 2003

he later came to know as Mabutol and a certain PO1 Lozada, entered his room and thoroughly searched it. He was then brought to the precinct where he was instructed to call somebody who could help him settle his case. As he knew no one who could help him, Mabutol asked him to give a name of a big-time drug seller/pusher who could take his place, or pamalit-ulo.[14] Since Amansec did not know any bigtime drug pusher, reasoning that he had been in his residence for only six months then, the police officers proceeded with the case and he was brought to the Inquest Prosecutor. Amansec averred that he did not file a case against the police officers because he did not know how to go about it.[15] On cross-

PS-1 CPD Laloma QC SPECIMEN SUBMITTED:

27

examination, he said that he was denying the allegations as the police officers had no proof *of+ what they *were+ saying.[16] Amansec also stated that the first time he saw Mabutol and Pascua was when he was arrested, and he did not know of any grudge or ill motive that they might have against him.[17] On August 30, 2006, the RTC rendered its Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused BENJAMIN AMANSEC Y DONA GUILTY beyond reasonable doubt as charged in Criminal Case No. Q-03-118187 for violation of Section 5 of Article II of R.A. 9165, (selling of dangerous drugs) and he is hereby sentenced him (sic) to suffer the penalty of Life Imprisonment and to pay a fine of Five Hundred Thousand (Php500,000.00) pesos. However, in Criminal Case No. Q-03-118186 for violation of Section 11, Article II of R.A. 9165 (illegal possession of dangerous drugs), the Court finds the accused NOT GUILTY because the prosecution failed to prove his guilt beyond reasonable doubt. The pieces of evidence [that is the] subject matter of these cases are hereby forfeited in favor of the government and to be disposed of as provided by law.[18] In convicting Amansec of violating Section 5, Article II of Republic Act No. 9165, the RTC held that the prosecution was able to establish and satisfy the elements in the sale of illegal drugs. The RTC averred that Amansec failed to prove any ill motive on the part of the police officers whom he admitted to have met only after his arrest. Moreover, the RTC found the testimonies of Mabutol and Pascua to be consistent, clear, direct, positive, and corroborative of the material and significant aspects of what actually transpired.[19] However, the RTC acquitted Amansec of the illegal possession of dangerous drugs charge, I ratiocinating in this wise: Anent the second offense, the public prosecutor was able to prove that indeed the accused was caught in possession of illegal drugs known as shabu after the entrapment. After the arrest of the accused for selling illegal drugs, PO2 Ronald Pascua was able to recover another plastic sachet containing shabu from the accused. However, the Court is convinced that the second plastic sachet containing shabu (Exhibit E-2) was intended by the accused to be sold to the buyer at the time of the buy-bust operation. In People vs. Hindoy [357 SCRA 692], possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. In the case at bar, it is clear from the testimonies of the prosecution witnesses that the second plastic sachet of shabu was shown and offered by the accused during the transaction in the buy-bust operation.[20] THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE ITS APPARENT UNREALITY AS TO HOW THE ALLEGED BUY-BUST OPERATION WAS CONDUCTED. II THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF SELLING ILLEGAL DRUGS DESPITE THE INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR HAVING BEEN OBTAINED IN VIOLATION OF SECTION 21 OF REPUBLIC ACT NO. 9165. III THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT THE GUILT OF THE ACCUSED-APPELLANT HAS BEEN PROVEN BEYOND REASONABLE DOUBT Aggrieved, Amansec appealed[25] the above ruling to this Court, assigning the same errors he assigned before the Court of Appeals, to wit: ASSIGNMENT OF ERRORS Brief,
[21]

On September 11, 2006, Amansec filed his Notice of Appeal with the RTC. In his Amansec cited irregularities, which allegedly create a reasonable doubt that a buy-bust

operation was conducted. He also questioned the admissibility of the evidence against him. However, the Court of Appeals was not convinced by Amansecs arguments. The Court of Appeals found the prosecutions evidence to be sufficient to uphold the conviction of Amansec. [22] The Court of Appeals held that *n+on-compliance by the apprehending officer with Section 21 of [Republic Act] No. 9165 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated items, are properly preserved by the apprehending officers. x x x.[23] On April 15, 2008, the Court of Appeals rendered its Decision, with the following fallo: WHEREFORE, in view of the foregoing, the assailed decision dated August 30, 2006 of the Regional Trial Court (RTC) of Quezon City, Branch 95, in Criminal Case No. Q-03-118187 convicting accused-appellant BENJAMIN AMANSEC Y DONA for violation of Section 5, Article II of R.A. No. 9165, sentencing him to suffer the penalty of Life Imprisonment, and ordering him to pay a fine of Five Hundred Thousand Pesos (Php500,000.00), is hereby AFFIRMED.[24]

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NOTWITHSTANDING THE PROSECUTIONS FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE SPECIMENS.[26] The Ruling of this Court Amansec was charged and convicted for selling methylamphetamine hydrochloride, more popularly known as shabu, in violation of Section 5, Article II of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, which provides: Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (500,000.00) to Ten million pesos (10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (100,000.00) to Five hundred thousand pesos (500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case. For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals trade, the maximum penalty shall be imposed in every case. If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed. The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (100,000.00) to Five hundred thousand pesos (500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.

Credibility of the Prosecution Witnesses and conduct of the buy-bust operation Amansec argues that the trial court erred in giving credence to the testimonies of the prosecution witnesses as they failed to pass the test in determining the value of a witnesss testimony that such must be in conformity with knowledge and consistent with the experience of mankind.[27] Amasec claims that the charges against him were merely planted and enumerates the following as evidence, which supposedly creates reasonable doubt as to the allegation of the prosecution that a buy-bust operation was conducted[28]: 1. Only Amansec was charged with violating Republic Act No. 9165, and not Pintis, whom the police officers alleged to have bought shabu from him, while the buy-bust operation was being conducted. 2. The prosecution failed to produce and present in court the 100.00 bill Pintis allegedly used to buy shabu from Amansec. 3. The informant was not presented in court, and no explanation was given by the prosecution for their failure to do so. 4. There was no surveillance prior to the buy-bust operation conducted by the police officers. 5. The buy-bust money used by Mabutol was not dusted with ultraviolet powder.

Amansecs arguments are untenable. As we have held before, *i+t is for the party to plan its own strategy and to choose which witnesses to call and what evidence to submit to support its own cause.[29]

Non-inclusion of Pintis in this case and Non-presentation of Pintis 100.00 bill Recovered from Amansec It is not within the province of this Court to speculate or make presumptions as to what happened to Pintis after he was arrested. Suffice it to say that he was apprehended for not only a different, but also, a separate illegal act. He was caught in flagrante delicto of purchasing shabu from Amansec, and

29

when he was caught, a plastic sachet, similar to the ones sold to Mabutol and recovered from Amansec, was found in his possession. Since this had nothing to do with Amansecs own acts, this Court sees no reason why they should have been tried jointly. Anent the 100.00 bill Pintis used to buy shabu from Amansec, this Court also sees no need for its presentation before the RTC because Amansec was charged with violation of Section 5, or the illegal sale of dangerous drugs, for selling shabu to Mabutol, and not to Pintis. Thus, even if Pintis 100.00 peso bill were presented in court, it would serve very little purpose for the prosecution, and even for the RTC, as, to reiterate, Amansec was on trial for his act of selling dangerous drugs to Mabutol, who was then a poseur-buyer, and not to Pintis, who just happened to buy from him while the buy-bust operation was being conducted. Non-Presentation of Informant This point need not be belabored as this Court, has time and again, held that the presentation of an informant in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. [30] If Amansec felt that the prosecution did not present the informant because he would testify against it, then Amansec himself should have called him to the stand to testify for the defense.[31] The informants testimony is not needed if the sale of the illegal drug has been adequately proven by the prosecution.[32] In People v. Ho Chua,[33] we said: The presentation of an informant is not a requisite in the prosecution of drug cases. In People v. Nicolas, the Court ruled that *p+olice authorities rarely, if ever, remove the cloak of confidentiality with which they surround their poseur-buyers and informers since their usefulness will be over the moment they are presented in court. Moreover, drug dealers do not look kindly upon squealers and informants. It is understandable why, as much as permitted, their identities are kept secret. In any event, the testimony of the informant would be merely corroborative.[34] No prior surveillance conducted This issue in the prosecution of illegal drugs cases, again, has long been settled by this Court. We have been consistent in our ruling that prior surveillance is not required for a valid buy-bust operation, especially if the buy-bust team is accompanied to the target area by their informant. Eugenio,
[36] [35]

There is no requirement that prior surveillance should be conducted before a buy-bust operation can be undertaken especially when, as in this case, the policemen are accompanied to the scene by their civilian informant. Prior surveillance is not a prerequisite for the validity of an entrapment or a buy-bust operation, there being no fixed or textbook method for conducting one. We have held that when time is of [the] essence, the police may dispense with the need for prior surveillance.[37] Buy-bust money was not dusted with ultraviolet powder The failure of the police officers to use ultraviolet powder on the buy-bust money is not an indication that the buy-bust operation was a sham. The use of initials to mark the money used in [a] buybust operation has been accepted by this Court.[38] In People v. Rivera,[39] we declared: It was x x x the prerogative of the prosecution to choose the manner of marking the money to be used in the buy-bust operation, and the fact that it was not dusted with fluorescent powder did not render the exhibit inadmissible. Indeed, the use of initials to mark the money used in the buy-bust operation has been accepted by this Court in numerous cases.[40]

Inventory and Chain of Custody of Evidence Amansec asserts that his conviction was incorrect because the evidence against him was obtained in violation of the procedure outlined in Republic Act No. 9165. He claims that Section 21 of the aforesaid act was violated when the police officers who arrested him did not take his picture with the shabu they confiscated from him, and when they made no physical inventory of the shabu in his presence, or in the presence of his representative, the media, the department of justice, or any elected public official. Amansec avers that his presumption of innocence prevails over the presumption that the police officers performed their duty in a regular manner.[41] He also avers that the prosecution failed to prove the chain of custody of the evidence obtained from him as the station investigator, to whom the specimens were turned over, was not presented in court. Moreover, Amansec claims, there was no evidence to show that the forensic chemist examined the same articles allegedly confiscated from him. Amansec says that the stipulations made as regards the testimony of the forensic chemist mentioned nothing about the chemists actual receipt of the specimens from the Investigator or from any other person. Amansec argues that the prosecutions failure to establish the evidences chain of custody is fatal and leads to the unavoidable suspicion on its integrity.[42]

In People v.

we held:

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Section 21 of Republic Act No. 9165, provide as follows: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventytwo (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. Its Implementing Rules and Regulations state: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items;

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(b) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (c) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, that when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, that a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (d) After the filing of the criminal case, the court shall, within seventytwo (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall, within twenty-four (24) hours thereafter, proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, that those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, that a representative sample, duly weighed and recorded is retained; (e) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In cases of seizures where no person is apprehended and no criminal case is filed, the PDEA may order the immediate destruction or burning of seized dangerous drugs and controlled precursors and essential chemicals under guidelines set by the Board. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (f) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorneys office to represent the former;

(g) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (h) Transitory Provision: h.1) Within twenty-four (24) hours from the effectivity of the Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the court, DOJ, Department of Health (DOH) and the accused and/or his/her counsel; and h.2) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. In the meantime that the PDEA has no forensic laboratories and/or evidence rooms, as well as the necessary personnel of its own in any area of its jurisdiction, the existing National Bureau of Investigation (NBI) and Philippine National Police (PNP) forensic laboratories shall continue to examine or conduct screening and confirmatory test on the seized/surrendered evidence whether these be dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments, paraphernalia and/or laboratory equipment; and the NBI and the PNP shall continue to have custody of such evidence for use in court and until disposed of, burned or destroyed in accordance with the foregoing rules: Provided, that pending appointment/designation of the full complement of the representatives from the media, DOJ, or elected public official, the inventory of the said evidence shall continue to be conducted by the arresting NBI and PNP operatives under their existing procedures unless otherwise directed in writing by the DOH or PDEA, as the case may be. (Emphasis supplied) Ideally, the procedure on the chain of custody should be perfect and unbroken. However a testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain.[43] Thus, even though the prosecution failed to submit in evidence the physical inventory and photograph of the seized drugs as required under Section 21 of Republic Act No. 9165, this will not render Amansecs arrest illegal or the items seized from him as inadmissible in evidence. [44] This Court has consistently held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, because the same will be utilized in ascertaining the guilt or innocence of the accused.[45]

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The prosecution was able to demonstrate that the integrity and evidentiary value of the evidence seized had been preserved. Both the prosecution witnesses were categorical and consistent that Amansec offered three plastic sachets containing shabu to Mabutol and Pintis. These were later recovered from Amansec, Pintis, and Mabutol himself. As soon as the police officers, together with Amansec and Pintis, reached the La Loma Police Station, the seized sachets were marked with the initials of the police officers, with each officer marking the sachet he personally retrieved from the suspects. This was done before the specimens were turned over to the station investigator for the preparation of the request for laboratory examination. Thereafter, the specimens were forwarded to the crime lab by the police officers themselves.[46] The Chemistry Report prepared by the forensic chemist listed the same specimens, which bore the initials of the police officers, and which were later identified by Mabutol and Pascua in open court as the plastic sachets they marked with their initials. Besides, the presumption that the integrity of the evidence has been preserved will remain unless it can be shown that there was bad faith, ill will, or tampering of the evidence. Amansec bears the burden of showing the foregoing to overcome the presumption that the police officers handled the seized drugs with regularity, and that they properly discharged their duties.[47] This, Amansec failed to do. Furthermore, there is nothing in Republic Act No. 9165 or in its implementing rules, which requires each and everyone who came into contact with the seized drugs to testify in court. As long as the chain of custody of the seized drug was clearly established to have not been broken and the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every person who came into possession of the drugs should take the witness stand.[48] This Court, in People v. Hernandez,[49]citing People v. Zeng Hua Dian,[50] ruled: After a thorough review of the records of this case we find that the chain of custody of the seized substance was not broken and that the prosecution did not fail to identify properly the drugs seized in this case. The non-presentation as witnesses of other persons such as SPO1 Grafia, the evidence custodian, and PO3 Alamia, the officer on duty, is not a crucial point against the prosecution. The matter of presentation of witnesses by the prosecution is not for the court to decide. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses.[51] It is worthy to note, and we agree with the Court of Appeals observation, that Amansec questioned the chain of custody of the evidence only when he appealed his conviction. Not once did he

raise this defense or mention these procedural gaps before the trial court. Thus, whatever justifiable ground the prosecution has will remain a mystery in light of Amansecs failure to raise this issue before the trial court, viz: The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buybust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal.[52] Amansecs theory, from the very beginning, were that he did not do it, and that he was being framed for his failure to give the police officers either money or some big-time pusher to take his place. In other words, his defense tactic was one of denial and frame-up. However, those defenses have always been frowned upon by the Court, to wit:

The defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions for violation of Dangerous Drugs Act. In order to prosper, the defenses of denial and frame-up must be proved with strong and convincing evidence. In the cases before us, appellant failed to present sufficient evidence in support of his claims. Aside from his self-serving assertions, no plausible proof was presented to bolster his allegations.[53] Equally important is the fact that Amansec has not ascribed any improper motive on the part of the police officers as to why they would hand-pick him, and falsely incriminate him in such a serious crime. No evidence has been offered to show that Mabutol and Pascua, were motivated by reasons other than their duty to curb the sale of prohibited drugs.[54] Amansec himself admitted that he only came to know his arresting officers after his arrest. He also testified that he knew of no grudge that they might have against him. Hence, until Amansec can show clear and convincing evidence that the members of the entrapment operation team were stirred by illicit motive or failed to properly perform their duties, their testimonies deserve full faith and credit. [55] Elements of illegal sale of

33

dangerous drugs established The successful prosecution of the sale of dangerous drugs case depends on the satisfaction of the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. [56]

To elucidate on the foregoing elements, this Court has said that *i+n prosecutions for illegal sale of shabu, 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.[57] It is evident in the case at bar that the prosecution was able to establish the said elements.[58] Amansec was positively identified by the prosecution witnesses, as the person who sold to the poseur-buyer a heat-sealed plastic sachet containing white crystalline substance. He had been caught red-handed in the entrapment operation conducted by the SDEU of the La Loma Police. Such positive identification must prevail over Amansecs uncorroborated and weak defense of denial, and unsubstantiated defense of frame-up.[59] The corpus delicti of the crime was also established with certainty and

conclusiveness. Amansec gave one of the two remaining plastic sachets to Mabutol after receiving the 100.00 buy-bust money.[60] In People v. Legaspi,[61] we said: The delivery of the contraband to the poseur-buyer and the receipt by the seller of the marked money successfully consummated the buy-bust transaction between the entrapping officers and Legaspi. This Court therefore finds no error on the part of both the RTC and the Court of Appeals in convicting Amansec for violation of Section 5, Article II of Republic Act No. 9165. WHEREFORE, premises considered, the Court hereby AFFIRMS the April 15, 2008 Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02557. SO ORDERED

34

EN BANC

1. No evidence of extragenital physical injury noted on the body of the Subject at the time of examination. 2. Hymenal orifice, 2.8 cms. in diameter distensible as to allow complete penetration of an average size adult penis in erection without producing further laceration. On 8 June 1995, Yolanda and Rellane gave their sworn statements 4 to Atty. Oscar Tomarong, Officer-in-Charge of the NBI Sub-office in Dipolog City. Then in a letter 5 dated June 1995 to the Office of the Provincial Prosecutor of Dipolog City, Atty. Tomarong recommended the prosecution of accused for rape, as charge by Yolanda and Relanne. On even date, Relanne, assisted by Yolanda, filed a complaint 6 with the Provincial Prosecutor's Office charging herein accused with rape committed on 3 May 1995. After due proceedings, the Office of the Provincial Prosecutor of Zamboanga del Norte, through Valeriano Lagula, Second Assistant Provincial Prosecutor and Officer-in-Charge, filed with Branch 11 of the Regional Trial Court of Zamboanga del Norte, sitting in Sindangan, Zamboanga del Norte, an information charging accused with rape, allegedly committed as follows: That, in the morning, on or about the 3rd day of May, 1995, in the Municipality of Liloy, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused, moved by lewd and unchaste desire an by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously succeed in having sexual intercourse with one RELLANE S. MANHUYOD, his 17 year old daughter, against her will and without her consent, as a result of which she became pregrant. CONTRARY TO LAW (Vio. of Art. 335, Revised Penal Code). 7 At his arraignment on 23 June 1995 following his arrest and commitment in the Provincial Jail, accused entered a plea of not guilty. Pre-trial and trial were then set for 18 June 1995. 8 The record, however, does not disclose if pre-trial was actually conducted as scheduled. On 6 July 1995, the prosecution, with conformity of the accused, filed a Motion to Dismiss 9 on the ground that Rellane and Yolanda had executed a Joint Affidavit of Desistance, 10 declaring that they "lost interest in the further prosecution of the [case] as the case arose out of a family conflict which was [already] patched up;" thus the prosecution declared that "without the testimonies of the complainants, the prosecution cannot prove the guilt of the accused beyond reasonable doubt." In its resolution 11 of 17 July 1995, the trial court denied the Motion to Dimiss on the following grounds: (1) the affidavit of desistance could not justify dismissal of the complaint, as the socalled "pardon" extended to accused by affiants in the affidavit of desistance was made after the filing of the information, 12 hence could not serve as the basis for dismissing the case; 13 (2) once a complaint for a private crime was filed, the State effectively became the offended party and any pardon given by the private complainant would be unavailing; and (3) Section 20-A of R.A. No. 7659 provides that any person charged under the Act for an offense where the imposable penalty is reclusion perpetua to death would not be allowed to take advantage of the provision on "plea-bargaining." The trial court then set the case of pre-trial and trial on 18 and 25 of Agust and 1 September 1995.

G.R. No. 124676 May 20, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RESTITUTO MANHUYOD, JR., accused-appellant.

DAVIDE, JR., J.: This is a case of a father having raped his 17-year old daughter after the effectivity of R.A. No. 7659. 1 Accused could thus have been meted out the death penalty pursuant to Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, if found guilty beyond reasonable doubt. However, here, the trial court's imposition of capital punishment was not based on said statute, but by reason of the aggravating circumstance of relationship under Article 15 of the Revised Penal Code. However repulsive and condemnable the act of a father raping his daughter, yet, the Constitution mandates that an accused is entitled to the presumption of innocence. Thus, afterr a scrutiny of the record and the evidence in this case, we find ourselves unable to affirm the judgment of the trial court. Acquittal then is compelled by law since the presumption of innocence was not overcome, the conviction having been based on hearsay evidence and a miscomprehension of the rule on statements forming part of the res gestae. On 6 June 1995, before the Central Visayas Office (CEVRO) of the National Bureau of Investigation (NBI), a complaint 2 for rape was filed by Yolanda Mahhuyod, accused's wife and mother of the offended party, Relanne S. Manhuyod. The complaint charged accused with having raped Relanne, then 17 years of age, on 20 April 1995 and 3 May 1995. Immediately upon the filing of the compaint, Relanne was examined by Dr. Tomas Refe, Medico-Legal Officer III of the CEVRO, NBI, whose findings and conclusions in Living Case No. 95-MI-II, 3 were as follows: GENITAL EXAMINATION: Pubic hairs, fully grown, abundant. Labia mejora, gaping. Labia minora, gaping posteriorly. Fourchette, tense. Vestibular mucosa, reddish to violaceous. Hymen, moderately thick, wide, with old healed lacerations, superficial at 8:00 o'clock and deep at 4:00 o'clock positions corresponding to the face of a watch [sic]; edges of these lacerations are rounded and noncoaptable. Hymenal orifice, admits a tube 2.8 cms. in diameter with moderate resistance. Vaginal walls, moderately tight and rugosities, moderately prominent. CONCLUSIONS:

35

As Relanne and Yolanda did not appear at pre-trial on 18 August 1995, the court issued an order 14 declaring pre-trial terminated and ordering trial to proceed on 25 August and 1 September 1995. On 25 August 1995, as well as on the succeeding dates thereafter set by the trial court for Relanne and Yolanda to testify, to wit: 8 September 1995; 15 22 September 1995; 16 6 October 1995; 17 and 27 October 1995, 18mother and daughter did not appear in court, despite the court's orders directing the prosecutor to file a complaint to hold them for indirect contempt 19 and ordering NBI agents Atty. Oscar Tomarong and Atty. Friolo Icao, Jr. to arrest them. 20 In a 1st indorsement 21 dated 6 May 1995, Atty. Tomarong reported to the trial court that, among other things, Relanne and Yolanda had left for Cebu probably to elude arrest after having learned from both the print and broadcast media that the court had ordered their arrest; Yolanda, a public school teacher, had filed an indefinite leave of absence; and Relanne had not been attending her classes. The NBI thus asked for more time to arrest Relanne and Yolanda, but due to its failure to arrest and produce them in court both at the schedule hearings of 6 October and 27 October 1995, the prosecution rested its cases solely on the basis of the testimonies of NBI agent Atty. Tomarong, NBI agent Atty. Icao, Jr. and NBI Medico-Legal Officer Dr. Refe, together with the documents they identified or testified on. The court then gave the prosecution 10 days to submit a formal offer of exhibits, and announced to the parties that if the exhibits would be admitted, the defense could file a demurrer to evidence which, if denied, would be followed by the defense presenting its evidence beginning 15 December 1995. 22 In the prosecution's formal offer of its exhibits dated 9 November 1995, 23 the following exhibits were offered: (1) "A," the complaint sheet accomplished and filed by Yolanda with the NBI, CEVRO; (2) "B," the sworn statement of Yolanda given before Atty. Tomarong and subscribed and sworn to before Atty. Icao, Jr. on 8 June 1995; (3) "C," the sworn statement of Relanne given before Atty. Icao, Jr. on 8 June 1995; and (4) "D," the medical certificate issued by Dr. Refe. NBI agent Tomarong identified Exhibits "A" and "B," 24 NBI agent Icao identified Exhibit "C," 25while Dr. Refe identified Exhibit "D." 26 Accused objected to the admission of Exhibits "A," "B" and "C" on the ground that they were hearsay, and to Exhibit "D" on the ground that the medical certificaate was not conclusive as to the commission of rape and the contents in said exhibit were not corroborated on its material points by the offended party since the latter did not testify. 27 In its order 28 of 15 November 1995, the trial court admitted all the foregoing exhibits as "exception[s] to the hearsay rule," and ordered that the defense commence presenting its evidence on 15 December 1995. On 9 November 1995, the defense file a demurrer to evidence, 29 which, however, the trial court denied in its resolution of 23 November 1995 30 for being "devoid of merit." The trial court held that Exhibits "B" and "C" were convincing as they mentioned details which could not have been concocted, as such, they "constitute[d] part of theres gestae, an exception to the hearsay rule;" and as to the statement of Dr. Refe "in answer to clarificatory questions (pp. 5 to 6 t.s.n. hearing on 22 September 1995)," while the same may have had "all the earmarks of hearsay," the statement was admissible for not having been objected to. Finally, the trial court held that since it was a settled rule that an affidavit was not considered the best evidence if the affiant was available, then, as in this case where Relanne and Yolanda were unavailable, their sworn statements were admissible for being "the best evidence."

The trial court likewise denied 31 the accused's motion 32 to reconsider the resolution, and set the reception of accused's evidence on 15 December 1995, which, however, was subsequently rest to 12 January 1996. 33 In his first and second manifestations, 34 accused informed the trial court that he was waiving his right to present his evidence and asked that the case be submitted for decision. He reiterated this waiver at the hearing on 12 January 1996, 35 which then prompted the court to order the parties to simultaneously submit their respective memoranda within a non-extendible period of 20 days. The record, however, once more fails to disclose that any of the parties so filed. On 23 February 1996, the trial court promulgated its decision, 36 the decretal portion of which read as follows: WHEREFORE, the Court finds accused, SPO2 Restituto Manhuyod, Jr. guilty of the crime of Rape by force and intimidation with [the] aggravating circumstance of relationship under Article 15 of the Revised Penal Code and sentencing him to "suffer the penalty of DEATH" (R.A. 7659), and to indemnify the complaint P50,000. (People vs. Magaluna., 205 SCRA 266 [1992]). Pursuant to Circular No. 4-92-A of the Supreme Court [let] accused immediate be transferred to the Bureau of Corrections in Muntinlupa, Metro Manila. Costs de oficio. SO ORDERED. On 26 February 1996, accused filed his Notice of Appeal. 37 We accepted the Appeal on 3 December 1996. In his Accused-Appellant's Brief on 30 April 1997, accused imputes to the trial court the commission of the following errors: I IN NOT DISMISSING THE CRIMINAL COMPLAINT AGAINST APPELLANT FOR EVIDENT LACK OF INTEREST PROSECUTION. II IN ADMITTING AS EVIDENCE THE HEARSAY TESTIMONY OF THE PROSECUTION WITNESS DESPITE THE TIMELY AND VEHEMENT OBJECTIONS OF THE DEFENSE INASMUCH AS THEY HAD NO PERSONAL KNOWLEDGE OF THE CRIME ASCRIBED AGAINST APPELLANT. III

36

IN RENDERING A VERDICT OF CONVICTION DESPITE THE FACT THAT THE GUILT OF APPELLANT WAS NOT PROVED REASONABLE DOUBT. Accused jointly discusses these assigned errors, in the main, reiterating his arguments in his demurrer to evidence, i.e., the sworn statements of Relanne and Yolanda were admissible hearsay and could not be part of the res gestae under Section 42, Rule 130 of the Rules of Court. Moreover, the NBI agents and medico-legal officer had no personal knowledge as to what actually and truthfully happened; ehnce, their testimony as to what Relanne and Yolanda narrated were likewise inadmissible hearsay. Assuce further contended that what was established during trial was that Relanne and Yolanda were no longer interested in pursuing the criminal complaint against him; hence the case should have dismised for their lack of interest to prosecute the same. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed for the affirmance in toto of the challenged decision. As accused waived the filing of a Reply Brief in his Manifestation filed on 16 April 1997, this case was then deemed submitted for decision on 3 February 1998. As we stated at the outset, the accused must be acquitted. Indeed, the evidence for the prosecution failed miserably in meeting the quantum of proof required in criminal cases to overturn the constitutional presumption of innocence. Section 2 of Rule 133 expressly provides that an accused in a criminal case is entitled to an acquittal unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean a degree of proof as, excluding possibility of error, produces absolute certainty; all that is required is moral certainty, or that degree of proof which produces a convinction in an unprejudiced mind. In this case, in view of the desistance of the offended party, Relanne, and her mother, Yolanda, and their failure to appear and testify at trial, the prosecution was left with nothing but their sworn statements (Exhibits "C" and "B," respectively); the sworn charge sheet (Exhibit "A") of Yolanda; and the testimonies of the NBI agent before whom the sworn statements were given or subscribed to and the NBI medico-legal officer who examined Relanne on 6 June 1995. We first scrutinize the testimonies of the NBI agents and the medico-legal officer. NBI agent Atty. Tomarong identified the charge sheet signed by Yolanda (Exh. "A") and her sworn statement (Exh. "B"), then detailed the questions he asked and information he obtained from Yolanda as to the alleged rape. 38On his part, NBI agent Atty. Icao, Jr. identified Relanne's sworn statement (Exh. "C") and testified in the same manner as Atty. Tomarong. 39 Finally, NBI Medico-Legal Officer Refe identified the medical certificate he issued (Exhibit "D"), then testified as to the details of his examination of Relanne and his findings. 40 While the defense objected to the presentation of Atty. Tomarong and Atty. Icao on the ground that their testimonies would be hearsay, 41 plainly, nothing was objectionable concerning their identification of the documents they themselves prepared in the course of performing their official duties. However, there can be no doubt that as regards the alleged commission of rape as related to them by Relanne and Yolanda, the testimonies of the NBI officials constituted inadmissible hearsay. It is a basic rule in evidence set forth in Section 36 of Rule 130 of the Rules of Court that a witness can testify only to those facts which he knows of his own personal knowledge, i.e., which

are derived from his own perception; otherwise, such testimony would be hearsay. Hearsay evidence is defined as "evidence not of what the witness knows himself but of what the witness knows himelf but of what he has heard from others." 42 Obviously then, the NBI agents' testimonies touching upon what was told them by Relanne and Yolanda concerning the events relating to the alleged commission of rape in question was hearsay. As a matter of fact, insofar as Yolanda was concerned, since she was not an eyewitness to the commission of the rape, but obtained knowledge thereof only from Relanne, the testimony of Atty. Tomarong with respect to what Yolanda told him, even constituted "double hearsay." It is settled that unless the affiants themselves take the witness stand to affirm the averments in their affidavits, the affidavits must be excluded from a judicial proceeding for being inadmissible hearsay. The rationable for this is respect for the accused's constitutional right of confrontation, or to meet the witnesses against him face-to-face. 43To safeguard this right, Section 1 of Rule 132, of the Rules of Court thus provides that the examination of witnesses presented in a trial or hearing must be done in open court, and under oath or affirmation. 44 At bottom, admitting Exhibits "A," "B," and "C" only as part of the testimonies of the NBI agents could validly be done, but in light of the foregoing discussion, these exhibits should have been excluded insofar as their contents related to the truth of the mattter concerning the commission of the rape in question. Anent the medical certificate (Exhibit "D"), we disagree with accused, however, that the contents thereof likewise constituted inadmissible hearsay. Exhibit "D" was prepared by Dr. Refe on the basis of his actions and what he observed during his medical examination of Relanne. Thus, as he actually testified thereto and was cross-examined by the defense, accused's contention on this score must fail. The trial court brushed aside accused's invocatiion of the hearsay rule on the ground that the sworn statements could be considered as part of the res gestae, thus constituting admissible hearsay pursuant to Section 42 of Rule 130 of the Rules of Court, which reads as follows: Sec. 42. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. In People v. Sanchez, 45 this Court observed: Res gestae means the "things done." It "refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement." A spontaneous exclamation is defined as "a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the

37

external shock. Since this utterance is made under the immediate and uncontrolled domination of the sense, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear," the utteramce may be taken as expressing the real belief of the speaker as to the act just observed by him." In a manner of speaking, the spontaneity of the declaration is such that the declaration itself may be regarded as the event speaking through the declarant rather than the declarant speaking for himself. Or, stated differently, ". . . the events speak for themselves, giving out their fullest meaning through the unprompted language of the participants. The spontaneous character of the language is assumed to preclude the probability of its premeditation or fabrication. Its utterance on the spur of the moment is regarded, with a good deal of reason, as a guarantee of its truth. In People v. Ner, 46 this Court stated: All that is required for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances. In sum, there are three requisites to admit evidence as part of the res gestae: (1) that the principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances. 47 It goes without sayong that the element of spontaneity is critical. The following factors are then considered in determining whether statements offered in evidence as part of the res gestae have been made spontaneously,viz., (1) the time that lapsed between the occurrence of the act or transaction and the making of the statement; (2) the place where the statement was made; (3) the condition of the declarant when he made the statement; (4) the presence or absence of intervening events between the occurrence and the statement relative thereto; and (5) the nature and circumstances of the sttement itself. 48 As to the first factor, the following proves instructive: [T]he rule is that the statements, to be admissible, should have been made before there had been time or opportunity to devise or contrive anything contrary to the real facts that occurred. What the law altogether distrusts is not afterspeech but afterthought. [T]here are no limits of time within which the res gestae can be arbitrarily confined. These limits vary in fact with each particular case. The acts or declarations are not required to be contemporaneous with the primary fact, but they must be so connected with it as to make the act or declaration and the main fact particularly inseparable, or be generated by an excited feeling which extends, without break or let-down, from the moment of the event they illustrate. In other words, if the acts or declarations sprang out of the principal transaction, tend to explain it, were voluntary and spontaneous, and were made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous in point of time, and are admissible. 49

In People v. Sanchez, 50 this Court had occasion to state that the cases are not uniform as to the interval of time that should separate the occurrence of the startling event and the making of the declaration. What is important is that the declarations were voluntarily and spontaneously made "so nearly contemporaneous as to be in the presence of the transction which they illustrate or explain, and were made under such circumstances as necessarily to exclude the ideas of design or deliberation." As to the second factor, it may be stressed that "a statement made, or an act done, at a place some distance from the place where the principal transaction occurred will not ordinarily possess such spontaneity as would render it admissible." 51 Anent the third factor, "[a] statement will ordinarily be deemed spontaneous if, at the time when it was made, the conditions of the declarant was such as to raise an inference that the effect of the occurrence on his mind still continued, as where he had just received a serious injury, was sufferring severe pain, or was under intense excitement. Conversely, a lack of spontaneity may be inferred from the cool demeanor of declarant, his consciousness of the absence of all danger, his delay in making a statement until witnesses can be procured, or from the fact that he made a different statement prior to the one which is offered in evidence." 52 With regard to the fourth factor, what is to be considered is whether there intervened between the event or transaction and the making of the statement relative thereto, any circumstance calculated to divert the mind of the declarant which would thus restore his mental balance and afford opportunity for deliberation. 53 The last factor need no further elaboration. Tested against the foregoing requisites to admit statements as part of the res gestae and factors to test the spontaneity of the statements, we do not hesitate torule that the sworn statement of Relanne (Exhibit "C") fails to qualify as part of the res gestae for these reasons: (1) it was executed only on 8 June 1995, or thirty-six (36) days after the alleged rape on 3 May 1995, providing her more than sufficient time to concoct or contrive a falsehood; (2) it was made after she had resolved to file a case for rape against her father, a decision which required much deliberation and would cause her obvious pain as the filing would expose her to public humiliation and shame, bring dishonor to her family and visit upon her father the penalty of death; (3) she gave the statement after three critical intervening events had occurred, viz., her pregnancy, filing the complaint sheet and her being referred to the NBI medico-legal officer for examination; and (4) it was made far from the place where the principal event the alleged rape was committed, i.e., the latter took place in the De la Paz, Liloy, Zamboanga del Norte, while the statement was made in Dipolog City, at the sub-office of the NBI, and any map of Zamboanga del Norte will show that Tampilisan and Dipolog City do not even adjoin each other. Turning to the sworn statement of Yolanda (Exhibit "B"), with more reason should this not qualify as forming part of the res gestae. Yolanda did not witness the principal event and all she knew of it was told to her by Relanne. Even if the issue of admissibility is confined to what Relanne had told Yolanda, the same conclusion would be reached for it clearly appears in Exhibit "A" that Relanne had not spontaneously told Yolanda of the alleged rape. In fact, the latter had to confront the former only after the accused confessed to Yolanda that he had molested Relanne. Moreover, the confrontation took place on 3 June 1995, or a month after the alleged rape. Ineluctably then, the trial court erred in admitting Exhibits "B" and "C" as part of the res gestae.

38

Parentheticaly, before the issue of res gestae is laid to rest, it must not be forgotten that Section 42 of Rule 130 concerns itself with admissibility of evidence and not is weight and sufficiency, 54 which is covered by Rule 133. Clearly, these two rules of evidence are not synonymous. The trial court was, however, correct in denying the motion to dismiss the case solely on the basis of the affidavit of desistance. The rule supporting the denial is well entrenched. While it may be true that under Article 344 of the Revised Penal Code, the offenses of seduction, abduction, rape or acts of lasciviousness shall not be prosecuted except upon a complaint filled by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by said persons, as the case may be, the pardon to justify dismissal of the case should have been granted prior to the institution of the criminal action. Consequently, an affidavit of desistance filed after the institution of the criminal action in these cases, even if based on an express pardon, cannot be a ground to dismiss the action. 55 With stronger reason then may plain desistance not justify dismissal of the proceedings once instituted. The reason for this rule is that the true aggrieved party in a criminal prosecution is the People of the Philippines whose collective sense of morality, decency and justice has been outraged. Once filed, control of the prosecution for any of the aforementioned crimes is removed from the offended party's hands. 56 The trial court, however, once more gravely erred when it imposed the death penalty not because of the provisions of Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, which the court a quo even cited, but due to the alternative circumstance of relationship under Article 15 of said Code. The pertinent portion of Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, reads: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. Where the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. Clearly then, the father-daughter relationship in rape cases, or between accused and Relanne, in this case, has been treated by Congress in the nature of a special circumstance which makes the imposition of the death penalty mandatory. Hence, relationship as an alternative circumstance under Article 15 of the Revised Penal Code, appreciated as an aggravating circumstance, should no longer be applied in view of the amendments introduced by R.A. No. 7659. It may be pointed, however, that without the foregoing amendment, relationship would still be an aggravating circumstance in the crimes of rape (Article 335) and acts of lasciviousness (Article 336). 57 If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal Code, the penalty imposable on accused then would not be death, but merely reclusion perpetua for, assuming that Relanne's testimony in court would have confirmed what she narrated in her sworn statement (Exhibit "C"), no circumstance then attended the commission of the rape which could bring the crime under any provision of Article 335 which imposes a penalty higher than reclusion perpetua or of reclusion perpetua to death. Finally, a few words on the lack of care devoted to the preparation of the information filed before the trial court. The Office of the Provincial Prosecutor had in its possession evidence that the

crime was committed by a father against his 17-year old daughter after the effectivity of R.A. No. 7659, hence the imposable penalty was death. It was then necessary to make reference to the amendatory law to charge the proper offense that carried the mandatory imposition of capital punishment. Yet, the information merely stated: CONTRARY TO LAW (violation of Article 335, Revised Penal Code). Strictly speaking, this statement refers to the unamended provisions of Article 335 of the Revised Penal Code. However, as even a freshman student of law should know, the original provisions of said Article had, even prior to R.A. No. 7659, already been amended by R.A. No. 2632 and R.A. No. 4111. Prosecutors are thus admonished to exercise utmost care and diligence in the preparation of complaintnst or informations to avert legal repercussions which may prove prejudicial to the interest of the State and private offended parties. WHEREFORE, judgment is hereby rendered REVERSING the appealed decision in Criminal Case No. S-2579 of the Regional Trial Court of the Ninth Judicial Region, Branch 11, sitting in Sindangan, Zamboanga del Norte, and, for lack of evidence, ACQUITTING accused-appellant RESTITUTO MANHUYOD, JR., whose immediate release from detention is hereby ordered, unless his continued detention is justified by any other lawful cause. The Director of the Bureau of Corrections is directed to inform the Court within ten (10) days from notice hereof of the fact of such release or continued detention, as the case may be. Cost de oficio. SO ORDERED

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the abdomen, causing the latters instantaneous death.[4] The gun used by petitioner was a .45 caliber SECOND DIVISION ROMEO ILISAN y PIABOL, Petitioner, Present: CARPIO, J., Chairperson, NACHURA, LEONARDO-DE CASTRO,* ABAD, and MENDOZA, JJ. Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. November 15, 2010 G.R. No. 179487 pistol.

On February 7, 2002, an Information for murder was filed against petitioner with the RTC of Quezon City, Branch 81, viz.: That on or about 3rd day of February, 2002, in Quezon City, Philippines, the above-named accused, did then and there, willfully, unlawfully and feloniously with intent to kill, and with treachery and evident premeditation and with use of superior strength assault, attack and employ personal violence upon the person of one JOEY GATON Y GARALDE, by then and there shooting him with a gun hitting him on his trunk, thereby inflicting upon him serious and grave wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of JOEY GATON Y GARALDE. CONTRARY TO LAW.[5]

- versus -

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

DECISION NACHURA, J.:

When arraigned on March 18, 2002, petitioner pleaded not guilty to the offense charged. [6]

Evidence for the prosecution consisted mainly of the testimonies of Gabriel Gaton, the victims brother, Marlon Dellamas, and Edgardo Dag-um, both neighbors of the victim, who all positively This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the August 23, 2007 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 29937, which affirmed with modification the June 14, 2005 decision[2] of the Regional Trial Court (RTC) of Quezon City, Branch 81, finding petitioner Romeo Ilisan guilty beyond reasonable doubt of homicide. In his defense, petitioner and his witnesses, Jomarie Ilisan and Jaime Escasinas, petitioners The RTC and the CA similarly arrived at the following factual findings: brother and cousin, respectively, claimed that another guest, Chito Partisala, a jail guard in Bicutan, was the assailant. The defense also presented Engineer Leonard Jabonillo, Forensic Chemist of the Central On February 3, 2002, a baptismal celebration was held at the residence of Ricky Silva in Barangay Nagkaisang Nayon, Novaliches, Quezon City. Among those who attended were petitioner and one Joey Gaton (Gaton). They belonged to different groups of guests. [3] In its June 14, 2005 decision, the RTC accorded more weight to the positive testimonies of the While Gaton and petitioner were having a drinking spree with their respective groups, one of petitioners companions apparently got irked by the way Gaton looked at him. This prompted petitioner and his companions to maul Gaton. A melee then ensued; in the course of which, petitioner shot Gaton at IN VIEW OF THE FOREGOING, the Court finds accused ROMEO ILISAN y PIABOL guilty beyond reasonable doubt of the crime of Homicide prosecution witnesses over the declarations of the defense. There being no adequate proof that treachery and evident premeditation qualified the killing of Gaton, the RTC convicted petitioner of homicide, viz.: Police District Crime Laboratory, who testified that petitioner tested negative for gunpowder residue when paraffin tests were conducted on him a day after the incident. identified petitioner as the gunman. Gabriel Gaton was summoned to the place of the incident while his brother was being mauled; Marlon Dellamas went to the scene of the incident to look for his brother Jojo; and Edgardo Dag-um was at the place where the mauling and shooting transpired.

40

punishable under Article 249 of the Revised Penal Code. Applying the provisions of the Indeterminate Sentence Law and there being no mitigating or aggravating circumstances, the accused is hereby sentenced to suffer imprisonment for a term ranging from eight years and one day of prision mayor as minimum to fourteen years and eight months of reclusion temporal as maximum, and to indemnify the heirs of the deceased in the amounts ofP75,000.00 as actual damages, P50,000.00 for the death of the victim and P50,000.00 as moral damages. The period during which said accused was under detention should be deducted from the service of his sentence. Let a mittimus order be issued for service of sentence.[7]

We see no misappreciation of facts committed by the courts a quo, which were uniform in their reliance on the prosecutions version. Both were correct in concluding that the identity of petitioner and his actual shooting of Gaton were established beyond moral certainty through the testimonies of three (3) witnesses, namely: (i) Gabriel Gaton, who was summoned to the place of the incident while his brother Gaton was being mauled; (ii) Marlon Dellamas, who went to the scene of the incident to look for his brother; and (iii) Edgardo Dag-um, who was in the vicinity when the shooting transpired. Their ensuing testimonies are notable:

On appeal to the CA, petitioner questioned the credibility of the prosecution witnesses who allegedly harbored ill motive against him because they were either related to the victim or to one of the participants in the commotion. Petitioner also argued that the negative results of the paraffin residue test conducted on him strongly indicate his innocence.[8]

Gabriel Gaton: Q: A: Q: A: When Helen Dellamas went to your house and told you that your brother was being mauled, what did you do, if you did anything? We went to the place and we saw a person holding a gun. You said that you went to the place, where was this place located? Near our house, sir. Now, you said that you saw a man when you went there, what else did you I saw him pointing a gun at my brother Joey. How far were you when you saw that man who was pointing a gun at your brother Joey? (Witness indicating a distance of 10 meters more or less.) And how far was the man with a gun from your brother Joey? (Witness indicating a distance of 2 meters.) What was the position of your brother Joey when the man was pointing his gun to your brother Joey? Sidewise, sir. What happened after you saw the man pointing a gun at your brother? I shouted: Dont (Huwag naman) but he ignored me and then the gun went off. What happened after the gun went off? After firing the gun, he pointed the gun to the bystanders. What happened to your brother? He fell down, sir.[13]

In a Decision dated August 23, 2007, the CA affirmed the RTCs f inding of guilt, but modified the amount of actual damages awarded and the maximum period of the penalty imposed by adding one (1) more day thereto, viz.: see?

Q: A: Q:

WHEREFORE, the trial courts Decision dated June 14, 2005 is affirmed, subject to the modification of the maximum period of the indeterminate sentence to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, and the reduction of the award of actual damages to P58,520.00.[9]

A: Q: A: Q:

Hence, the present petition wherein petitioner reiterates the issues he raised before the CA.

A: Q: A:

We deny the petition.

The Court generally defers to the trial court's evaluation of the credibility of witness and their testimonies, for it is in a better position to decide questions of credibility, having heard the witnesses themselves and observed their attitude and deportment during trial.[10] In the absence of any clear showing that the trial court overlooked or misconstrued cogent facts and circumstances which would alter a conviction, we are doctrinally bound by the trial courts assessment of the credibility of witnesses.
[11]

Q: A: Q: A:

Marlon Dellamas: Q: A: Q: A: Please tell this Honorable Court what [you were] doing [at] that time? I was looking for my brother Joey Dellamas. If you can remember, were there many people on that alley? Yes sir.

The

application of this rule becomes even more stringent when such findings are sustained by the appellate court,[12] as in the present case.

41

Q: A: Q: A: Q: A: xxxx Q: A: Q: A: xxxx Q: A:

And what was the [lighting] condition of that alley at that time? It was very bright at that time. At that time and place, was there any unusual incident that transpired on that place? Yes maam, there was. They were arguing. You said that they were arguing, tell this Honorable Court who was arguing, could you please be specific? The visitors of the owner of the house, maam.

A:

When some of the neighbors were approaching the scene of the incident, those male persons who were mauling my brother-in-law entered the yard of the house of Jaime E[s]casinas. Mr. Witness, you said a while ago that Joey Gaton was already dead, how did he die? He was shot, sir. Who shot him? Romeo Ilisan, sir.

Q: A: Q: A: xxxx

What happened after they entered the gate which you said was opened? The person who was armed with a gun shot at Joey Gaton. How far were you when this person shot Joey Gaton, how far were you to this person? I was very near, maam. I was about a meter only away from them.

Q: A: Q: A:

You pointed to Romeo Ilisan as the person who shot Joey Gaton, how far were you when Romeo Ilisan shot Joey Gaton? About two (2) meters away sir. What kind of firearm did this Romeo Ilisan use in shooting Joey Gaton? .45, sir.[15]

And what happened after this person who you just identified as Romeo Ilisan shot Joey Gaton, what happened? Joey Gaton fell down, maam.[14]

The fact that Gabriel Gaton is the victims brother does not impair his credibilit y as a witness. Relationship by itself does not give rise to a presumption of bias or ulterior motive, nor does it ipso facto diminish the credibility or tarnish the testimony of a witness. On the contrary, a witness relationship

Edgardo Dag-um: to a victim of a crime would even make his or her testimony more credible as it would be unnatural for a Q: A: Q: A: Q: A: xxxx Q: A: Q: xxxx A: I saw my brother-in-law Jojo Dellamas and Joey Gaton being mauled by some male persons. And what did you see outside? There were persons quarrelling, sir. Do you know that persons who were quarrelling [at] that time? While you were enjoying yourself with your companions, do you recall of any unusual incident that happened? Yes, sir, we heard shouts. Where did [those] shouts c[o]me from? From outside. When you heard [the] shouts, what did you do? We went out the premises of the house of my sister. relative who is interested in vindicating the crime to accuse somebody other than the culprit. The natural interest of witnesses, who are relatives of the victim, in securing the conviction of the guilty would actually deter them from implicating persons other than the true culprits.[16]

There is likewise no indication that Marlon Dellamas and Edgardo Dag-um were improperly motivated when they testified against petitioner. As aptly observed by the Office of the Solicitor General in its Comment,[17] aside from the prosecution witnesses relationship with the other participants in the fight, petitioner failed to show any other basis for the ill motive he imputes against them. As a rule, absent any evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimonies are thus worthy of full faith and credit. [18]

Petitioners reliance on the negative results of the paraffin test conducted on him the day after the fateful event must fail. Our ruling in People v. Manalo,[19] is apropos:

xxxx Q: And when you saw people attacking your brother-in-law and Joey Gaton, what else happened?

[E]ven if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are

42

washed before the test. The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol.

minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum, imposed by the RTC, and affirmed with modification by the CA, is correct.

Indeed, paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the view that the paraffin test has proved extremely unreliable. It can only establish the presence or absence of nitrates or nitrites on the hand; still, the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun.
[20]

The civil indemnity and moral damages awarded by the RTC and the CA were also in order and consistent with current jurisprudence. Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.[24] Under prevailing jurisprudence, the award of P50,000.00 to the heirs of the victim as civil indemnity is proper.[25]

Conversely, the absence of gunpowder nitrates on petitioners hands, the day after the incident, Moral damages must also be awarded because these are mandatory in cases of homicide, without need of allegation and proof other than the death of the victim. [26] The award of P50,000.00 as moral damages[27] is correct. The courts a quo also correctly rejected the version of the defense as a mere afterthought

does not conclusively establish that he did not fire a gun; neither are the negative results yielded by the paraffin test an insurmountable proof of his innocence.

intended to exculpate petitioner, viz.: If it is true that they saw Chito Partisala sh[o]ot Joey, why they did not tell the policeman who arrived at the crime scene immediately that Partisala was the gunman. Why did Jomarie wait until somebody pointed to the accused as the gunman before he told them that it [was] Partisala who shot the victim.[21]

We must, however, modify the actual damages awarded by the CA. Actual damages pertain to the actual expenses incurred by the victims heirs in relation to his death, i.e., burial and funeral expenses. To justify an award therefor, it is necessary for a party to produce competent proof or the best evidence obtainable, such as receipts.[28] In this case, the actual expenses incurred for the wake and burial of the victim were duly shown by receipts marked as Exhibits K, L, M, and M -1[29] in the aggregate amount of P88,520.00. But the CA awarded only P58,520.00, which, after a perusal of the records,

Thus, the positive, clear, and categorical testimonies of the three eyewitnesses to the crime deserve full merit in both probative weight and credibility over the negative results of the paraffin test conducted on petitioner and his witnesses anomalous claims.

appears to have been caused by the non-inclusion of Exhibit L, a receipt forP30,000.00 paid by the victims wife to La Funeraria Novaliches for the deceaseds autopsy and embalming treatment, and use of mortuary equipment for the interment. Having convincingly proved the nature of the expense in the amount of P30,000.00 in Exhibit L, it is only right to increase the actual damages awarded to the

We now go to the penalty imposed. Homicide is punishable by reclusion temporal.[22] There being no mitigating or aggravating circumstance proven in the case at bar, the penalty should be applied in its medium period of fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months.[23]

victims heirs toP88,520.00. WHEREFORE, premises considered, the petition is hereby DENIED. The August 23, 2007 Decision of the Court of Appeals is AFFIRMED with modification that the award of actual damages is increased to P88,520.00.

Applying the Indeterminate Sentence Law, the maximum penalty will be selected from the above range, with the minimum penalty being selected from the range of the penalty one degree lower than reclusion temporal, which is prision mayor (six [6] years and one [1] day to twelve (12) years). Hence, the indeterminate sentence of eight (8) years and one (1) day of prision mayor, as

SO ORDERED.

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FIRST DIVISION G.R. No. 186463 November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. WILLIAM MANGUNE y DEL ROSARIO, Accused-Appellant. DECISION LEONARDO-DE CASTRO, J.: Accused-appellant William Mangune y del Rosario, also known as Earl William Mangune or Earl Mangune (Mangune), is now before Us on review after the Court of Appeals, in its August 29, 2008 Decision1 in CA-G.R. CR.-H.C. No. 02596, affirmed, in its entirety, the August 31, 2006 Decision2 of the Regional Trial Court (RTC) of Muntinlupa City, Branch 207, in Criminal Case No. 03-317. The RTC found Mangune guilty beyond reasonable doubt of the crime of rape under Article 266-A, paragraph l(a) as qualified by his relationship to the minor victim under Article 266B, paragraph 2, no. 1 of the Revised Penal Code.3 On May 12, 2003, an Information4 was filed before the RTC, charging Mangune with the crime of rape under Article 266-A, paragraph 1, in relation to Article 266-B, paragraph 2, no. 1, of the Revised Penal Code. The accusatory portion of the Information reads: That on or about the 7th day of May, 2003, in the City of Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a man and the biological father of one AAA, 5 a 17-year-old girl, and by means of force, threat or intimidation, did then and there willfully, unlawfully and feloniously had carnal knowledge of said child, AAA, against her will and consent.6 Mangune pleaded not guilty to the charge upon his arraignment on October 17, 2003. 7

want a massage because he took off her shorts and tried to insert his penis into her vagina. AAA claimed that since his penis could not fit into her vagina, Mangune inserted his finger instead, with a threat that if she told her mother of what had just transpired, he would kill them both. AAA said that throughout the years, her father continued raping her and eventually succeeded in inserting his penis into her vagina. On May 7, 2003, AAA finally told her mother about the rapes, the last of which occurred that same morning. AAA averred that at around 5:30 in the morning, while she was sleeping inside her room, she felt her shorts being removed and something heavy go on top of her. Realizing it was her father, AAA testified that she tried to fight back but was overpowered, at which point, Mangune was able to insert his penis into her vagina. AAA stated that her shouts and pleas were met with slaps on the face and a scary look from her father, prompting her to simply keep quiet. When her mother and aunt fetched her at around noon later that day, she told them about the rapes, and her mother immediately brought her to Camp Crame to be medically examined.10 Upon cross-examination, AAA testified that her parents lived in separate houses because her mothers office was far from her fathers house. She also claimed that she knew of no untoward incident between her parents prior to May 7, 2003, and described her father as good and caring.11 Police Chief Inspector Pierre Paul Figueroa Carpio (Carpio), a Doctor of Medicine and a Philippine National Police (PNP) Medico-Legal Officer,12 testified that he had examined AAA on May 7, 2003, and identified the initial Medico-Legal Report he subsequently issued,13 wherein he had indicated the following: FINDINGS: Hymen: Deep healed lacerations at 4, 6, 7 and 9 oclock positions. Physical Injuries. No external signs of application of any form of trauma. CONCLUSION: --------------------------x------------------------------Subject is non-virgin state physically.

On February 11, 2004, the parties met for their pre-trial conference and agreed on the following stipulations: 1. That the accused is the biological father of the private complainant; and 2. That at the time of the commission of the alleged crime of rape, the private complainant was then a minor, who was 17 years of age.8 Faced with the lone issue of whether Mangune was guilty of the crime as charged in the Information, the RTC proceeded with the trial on the merits. The prosecution first presented AAA, who, in her Sworn Statements9 and testimony, accused her father, Mangune, whom she identified in open court, of raping her on May 7, 2003, in his house in Muntinlupa. AAA alleged that Mangune started raping her when she was just a little girl. She said that since she was so young when the first rape occurred, her first clear memory of her father raping her was in 1994, when she was in Grade III. AAA narrated how her father called her then, asking for a massage. However, she continued, her father apparently did not really

There are no external signs of application of any form of trauma.14 Explaining the finding that there were "[n]o external signs of application of any form of trauma," Carpio said it meant that aside from the genital organ, there were no injuries noted in the other parts of the body.15 Upon cross-examination, Carpio stated that his findings were consistent with AAAs allegations in the sense that the findings of healed deep lacerations in the hymen were compatible with the allegation of several incidents of sexual abuse. 16 Mangune, who testified in his own defense, denied raping his daughter, AAA, and said that the charge caught him by surprise. He stated that he had six children, all of whom he loved and treated equally. He said that before May 7, 2003, his relationship with his wife, AAAs mother, was fine, with the occasional bickering between spouses. When asked where he was at around 5:30 in the morning on May 7, 2003, Mangune claimed that he was sleeping in his house with his daughter AAA, his other children being then in their mothers house. Mangune then averred

44

that at around 1:00 in the afternoon, AAA, with his permission, left for the mall with her friends and came back at midnight. At around 11:00 in the evening, his wife called out to him to get out of the house, at which point he was arrested and brought to Camp Crame, where he learned of the complaint filed against him. He said that he did not know of any reason why AAA would accuse him of such a crime.17 On August 31, 2006, the RTC handed down a guilty verdict against Mangune and sentenced him to reclusion perpetua without the benefit of parole, in this manner: WHEREFORE, accused William Mangune y del Rosario @ Earl William Mangune or @ Earl Mangune, is found guilty beyond reasonable doubt of the crime of rape under Article 266-A, paragraph 1(a) in relation to Article 266-B, paragraph 2, no. 1 of the Revised Penal Code, as amended by R.A. 8353, and is sentenced to suffer the penalty of reclusion perpetua without benefit of parole, in accordance with R.A. 9346, "An Act Prohibiting the Imposition of Death Penalty in the Philippines", and is ordered to pay the private complainant AAA, his biological daughter, P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages.18 In its Decision, the RTC stated that the prosecution was able to prove the following:

I THE COURT A QUO GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE PROSECUTION WITNESSES MATERIALLY UNRELIABLE TESTIMONY. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF ACCUSED-APPELLANT MANGUNE HAS BEEN PROVEN BEYOND REASONABLE DOUBT.26 Ruling and Discussion Mangune was charged with Rape under Article 266-A, paragraph 1, in relation to Article 266-B, paragraph 2, of the Revised Penal Code, as amended by Republic Act No. 8353. Said provisions read: Article 266-A. Rape, When and How Committed. - Rape is committed:

(1) That the accused had carnal knowledge of the offended party, his biological daughter, (2) that the crime was done through intimidation, threat and force, (3) that the private complainant was a minor at the time of the commission of the crime, and (4) that the accused is her biological father.19 The RTC found AAAs testimony sufficient to be able to stand on its ground and convict Mangune. Moreover, the RTC said, Mangunes "barefaced denial x x x [could] not prevail over the positive, spontaneous, straightforward and detailed testimony of AAA." The RTC explained that it gave AAAs testimony "full faith and credence" as there was no showing that she was actuated by improper motive against her father.20 Mangune appealed21 to the Court of Appeals, arguing that his guilt had not been proven beyond reasonable doubt as the prosecution witnesses testimonies were materially unreliable; thus, should not have been given full weight and credence.22 On August 29, 2008, the Court of Appeals affirmed the RTCs Decision in its entirety. The Court of Appeals said that Mangune cited only one reason to support the errors he assigned against the RTC: that AAA sustained no external signs of any form of trauma despite her declaration that Mangune allegedly slapped her many times on the face.23 Addressing such reasoning, the Court of Appeals stated that Mangunes claim was untenable, and quoting this Court in People v. Napud, Jr.,24 said: The absence of external injuries does not negate rape. This is because in rape, the important consideration is not the presence of injuries on the victims body, but penile contact with the female genitalia without the womans consent." (Citation omitted.) Undaunted, Mangune is now before this Court,25 with the same assignment of errors he presented before the Court of Appeals, viz:

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or is otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the Mangune, from the very beginning of the case, admitted that AAA is his biological daughter and was still a minor on May 7, 2003, the time the last rape allegedly occurred. Thus, in essence, Mangunes bone of contention in this case, is the credibility of AAAs testimony vis --vis the findings contained in the Initial Medico-Legal Report.

45

Mangune asseverates that the lower courts should have acquitted him based on reasonable doubt as AAAs testimony is not worthy of belief for having been fabricated. He supports such assertion by making much of the fact that AAA did not sustain any external physical marks, as shown by the medico-legal findings, despite her testimony that he slapped her many times on the face. This, Mangune insists, makes AAAs testimony incredible. In People v. Paringit,27 this Court has declared that "not all blows leave marks."28 Thus, the fact that the medico-legal officer found no signs of external injuries on AAA, especially on her face, which supposedly had been slapped several times, does not invalidate her statement that Mangune slapped her to silence her. In People v. Rabanes,29 the accused similarly assailed the victims testimony by saying that if her claim that she was slapped several times were true, then there would have been visible marks or injuries on her face, which would have been reported in the medical certificate. This Court, in response to therein accuseds argument, held: While the victim testified that she was slapped many times by the accused-appellant, which caused her to become unconscious, the doctor found no trace or injury on her face. The absence of any injury or hematoma on the face of the victim does not negate her claim that she was slapped. Dr. Lao also testified that if the force was not strong enough or if the patients skin is normal, as compared to other patients where even a slight rubbing of their skin would cause a blood mark, no hematoma will result. But, even granting that there were no extra-genital injuries on the victim, it had been held that the absence of external signs or physical injuries does not negate the commission of the crime of rape. The same rule applies even though no medical certificate is presented in evidence. Proof of injuries is not necessary because this is not an essential element of the crime.30 (Citations omitted, emphases added.) This Court, in a long line of cases,31 has ruled that "the absence of external signs of physical injuries does not negate rape."32 The doctrine is thus well-entrenched in our jurisprudence, and the Court of Appeals correctly applied it.33 Mangunes attempt to discredit AAAs testimony that he raped her on May 7, 2003, must ultimately fail as he has shown no solid grounds to impeach it. Explaining how testimonial evidence is considered and weighed in court, this Court has said: Credible witness and credible testimony are the two essential elements for the determination of the weight of a particular testimony. This principle could not ring any truer where the prosecution relies mainly on the testimony of the complainant, corroborated by the medico-legal findings of a physician. Be that as it may, the accused may be convicted on the basis of the lone uncorroborated testimony of the rape victim, provided that her testimony is clear, convincing and otherwise consistent with human nature.34 (Citation omitted.) The RTC, which had the opportunity to hear the testimonies live, and observe the witnesses in person, found not only AAA credible, but her testimony as well. It even declared that AAAs testimony alone can justify the conviction of Mangune. The foregoing were subscribed to by the Court of Appeals as well when it affirmed the RTCs Decision "in its entirety."35 This Court finds no valid reason to depart from the time-honored doctrine that where the issue is one of credibility of witnesses, and in this case their testimonies as well, the findings of the trial

court are not to be disturbed unless the consideration of certain facts of substance and value, which have been plainly overlooked, might affect the result of the case.36 Expounding on the matter, this Court, in People v. Dion,37 said: Due to its intimate nature, rape is usually a crime bereft of witnesses, and, more often than not, the victim is left to testify for herself. Thus, in the resolution of rape cases, the victims credibility becomes the primordial consideration. It is settled that when the victims testimony is straightforward, convincing, and consistent with human nature and the normal course of things, unflawed by any material or significant inconsistency, it passes the test of credibility, and the accused may be convicted solely on the basis thereof. Inconsistencies in the victims testimony do not impair her credibility, especially if the inconsistencies refer to trivial matters that do not alter the essential fact of the commission of rape. The trial courts assessment of the witnesses credibility is given great weight and is even conclusive and binding. x x x. (Citations omitted.) Quoting People v. Sapigao, Jr., 38 this Court, in the same case, explained the rationale for the above practice: It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination. These are important in determining the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness credibility, and the trial court has the opportunity and can take advantage of these aids. These cannot be incorporated in the record so that all that the appellate court can see are the cold words of the witness contained in transcript of testimonies with the risk that some of what the witness actually said may have been lost in the process of transcribing. As correctly stated by an American court, "There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by the appellate court." (Citations omitted.) Furthermore, Mangune could not impute any ill motive on AAA or his wife that would explain why he was charged with such a heinous crime. We have ruled that "[a]bsent evidence showing any reason or motive for a witness to falsely testify against the accused, the logical conclusion is that no such improper motive exists and the testimony should be accorded full faith and credit."39 It is also worthy to note that Mangune proffered no other defense than that of denial. 1wphi1 In People v. Espinosa,40 we held that: It is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law. Denial cannot prevail over the positive, candid and categorical testimony of the complainant, and as between the positive declaration of the complainant and the negative statement of the appellant, the former deserves more credence. (Citations omitted.)

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While the Court affinns the award of civil indemnity in the amount of P75,000.00; and moral damages in the amount of P75,000.00; the Court increases the award of exemplary damages from P25,000.00 to P30,000.00 in line with prevailingjurisprudence. 41 WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02596 is hereby AFFIRMED with MODIFICATION. William Mangune y del Rosario, also known as Earl William Mangune or Earl Mangune, is sentenced to reclusion perpetua, in lieu of death, without the possibility of parole. He is ORDERED to pay the victim, AAA, P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages, all with interest at the rate of 6% per annum from the date of finality of this judgment until fully paid. SO ORDERED.

47

FIRST DIVISION G.R. No. 148220 June 15, 2005

ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents. DECISION CARPIO, J.:

In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petition. IT IS SO ORDERED.5 (Emphasis in the original) Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that "under the present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to obtain the requisite specimen, unconstitutional." In an Order dated 8 June 2000, the trial court denied petitioners motion for reconsideration.6

The Case This is a petition for review1 to set aside the Decision2 dated 29 November 2000 of the Court of Appeals ("appellate court") in CA-G.R. SP No. 59766. The appellate court affirmed two Orders3 issued by Branch 48 of the Regional Trial Court of Manila ("trial court") in SP No. 9888759. The Order dated 3 February 2000 directed Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity testing, while the Order dated 8 June 2000 denied petitioners motion for reconsideration. The Facts On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented by his mother Armi Alba, filed before the trial court a petition for compulsory recognition, support and damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent. Petitioner also denied physical contact with respondents mother. Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute ("UP-NSRI"), a DNA analysis laboratory. She was a former professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that the test had an accuracy rate of 99.9999% in establishing paternity.4 Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further argued that DNA paternity testing violates his right against self-incrimination. The Ruling of the Trial Court In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus: On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 "in excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction." Petitioner further contended that there is "no appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law." Petitioner maintained his previous objections to the taking of DNA paternity testing. He submitted the following grounds to support his objection: 1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2). 2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of the test as admitted by private respondents "expert" witness. 3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises. 4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional.7 The Ruling of the Court of Appeals On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not violate his right against selfincrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the appellate courts decision reads:

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WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner. SO ORDERED.8 Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001.9 Issues Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit.10 Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court "to embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its implementation."11 Petitioner maintains that the proposed DNA paternity testing violates his right against self-incrimination.12 The Ruling of the Court The petition has no merit. Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation. An Overview of the Paternity and Filiation Suit Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship,13 support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.14 A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father.15 There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations with the mother, because of either physical absence or impotency.16 The putative father may also show that the mother had sexual relations with other men at the time of conception.

A child born to a husband and wife during a valid marriage is presumed legitimate. 17 The childs legitimacy may be impugned only under the strict standards provided by law. 18 Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his biological father. 19 This kind of evidence appeals to the emotions of the trier of fact. In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put forward a prima facie case when she asserted that petitioner is respondents biological father. Aware that her assertion is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi Albas assertion. He denied ever having sexual relations with Armi Alba and stated that respondent is Armi Albas child with another man. Armi Alba countered petitioners denial by submitting pictures of respondent and petitioner side by side, to show how much they resemble each other. Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed in this jurisdiction. Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxx ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

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SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. This Courts rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA,20 a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father.21 A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence.22 Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation.23 However, a student permanent record, a written consent to a fathers operation, or a m arriage contract where the putative father gave consent, cannot be taken as authentic writing.24 Standing alone, neither a certificate of baptism25 nor family pictures26 are sufficient to establish filiation. So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity.27 In Co Tao v. Court of Appeals,28 the result of the blood grouping test showed that the putative father was a "possible father" of the child. Paternity was imputed to the putative father after the possibility of paternity was proven on presentation during trial of facts and circumstances other than the results of the blood grouping test. In Jao v. Court of Appeals,29 the child, the mother, and the putative father agreed to submit themselves to a blood grouping test. The National Bureau of Investigation ("NBI") conducted the test, which indicated that the child could not have been the possible offspring of the mother and the putative father. We held that the result of the blood grouping test was conclusive on the nonpaternity of the putative father. The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as evidence to prove paternity. DNA Analysis as Evidence

DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity.30 DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.31 We quote relevant portions of the trial courts 3 February 2000 Order with approval: Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T(thymine). The order in which the four bases appear in an individuals DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C orCG. These are called "genes." Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci." How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion. Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the "known" print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called "allele", one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other

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half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.32 (Emphasis in the original) Although the term "DNA testing" was mentioned in the 1995 case of People v. Teehankee, Jr.,33 it was only in the 2001 case of Tijing v. Court of Appeals34 that more than a passing mention was given to DNA analysis. In Tijing,we issued a writ of habeas corpus against respondent who abducted petitioners youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage. However, we observed that: Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of parentage and identity issues. Admissibility of DNA Analysis as Evidence The 2002 case of People v. Vallejo35 discussed DNA analysis as evidence. This may be considered a 180 degree turn from the Courts wary attitude towards DNA testing in the 1997 Pe Lim case,36 where we stated that "DNA, being a relatively new science, xxx has not yet been accorded official recognition by our courts." In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched the accuseds DNA profile. We affirmed the accuseds conviction of rape with homicide and sentenced him to death. We declared: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.37 Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according "official recognition" to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis. In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar38 and In re: The Writ of Habeas Corpus for Reynaldo de Villa.39 In Yatar, a match existed between the DNA profile of the semen found in the victim and the DNA profile of the blood sample given by appellant in open court. The Court, following Vallejos footsteps, affirmed the conviction of appellant because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape. The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victims child does not preclude the convict-petitioners commission of rape.

In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.40 and Daubert v. Merrell Dow Pharmaceuticals.41 In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Fryes counsel offered an expert witness to testify on the result of a systolic blood pressure deception test42 made on defendant. The state Supreme Court affirmed Fryes conviction and ruled that "the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." The Fryestandard of general acceptance states as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. In 1989, State v. Schwartz43 modified the Frye standard. Schwartz was charged with stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution introduced the private testing facilitys results over Schwartzs objection. One of the issues brought before the state Supreme Court included the admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that: While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys compliance with appropriate standards and controls, and the availability of their testing data and results.44 In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.45 further modified the FryeSchwartz standard.Daubert was a product liability case where both the trial and appellate courts denied the admissibility of an experts testimony because it failed to meet the Frye standard of "general acceptance." The United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus: Rule 401. "Relevant evidence" is defined as that which has any "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Rule 702 of the Federal Rules of Evidence governing expert testimony provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

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Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimonys reasoning or method is scient ifically valid and is relevant to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques operation; and (5) whether the theory or technique is generally accepted in the scientific community. Another product liability case, Kumho Tires Co. v. Carmichael,46 further modified the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as follows: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines.47 At best, American jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court.48 Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence.49 Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as follows: The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue."50 Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence. Probative Value of DNA Analysis as Evidence Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.51]

We also repeat the trial courts explanation of DNA analysis used in paternity cases : In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.52 It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction,53 trial courts should require at least 99.9% as a minimum value of the Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone.54 DNA analysis that excludes the putative father from paternity should be conclusive proof of nonpaternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity.55 This refutable presumption of paternity should be subjected to the Vallejo standards. Right Against Self-Incrimination Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to be a witness against himself." Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval: Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against selfincrimination. This privilege applies only to evidence that is "communicative" in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on "testimonial compulsion."56

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The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses.57 Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence. WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759. SO ORDERED.

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THIRD DIVISION G.R. No. 171713 December 17, 2007

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child. Rogelio, despite Jinkys remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the heretofore adverted complaint. After summons had been duly served upon Rogelio, the latter failed to file any responsive pleading despite repeated motions for extension, prompting the trial court to declare him in default in its Order dated 7 April 1999. Rogelios Answer with Counterclaim and Special and Affirmative Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a decision granting the reliefs prayed for in the complaint. In its Decision6 dated 23 April 1999, the RTC held: WHEREFORE, judgment is hereby rendered: 1. Ordering defendant to recognize plaintiff as his natural child; 2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and further 3. Ordering defendant to pay reasonable attorneys fees in the amount of P5,000.00 and the cost of the suit. On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for reconsideration seeking the courts understanding, as he was then in a quandary on what to do to find a solution to a very difficult problem of his life.7 On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial court dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure.8 On 16 June 1999, the RTC issued an Order granting Rogelios Motion for New Trial: WHEREFORE, finding defendants motion for new trial to be impressed with merit, the same is hereby granted. The Order of this court declaring defendant in default and the decision is this court dated April 23, 1999 are hereby set aside but the evidence adduced shall remain in record, subject to cross-examination by defendant at the appropriate stage of the proceedings. In the meantime defendants answer is hereby admitted, subject to the right of plaintiff to file a reply and/or answer to defendants counterclaim within the period fixed by the Rules of Court.

ESTATE OF ROGELIO G. ONG, petitioner, vs. Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian, Jinky C. Diaz, respondent. DECISION CHICO-NAZARIO, J.: This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil Procedure assailing (1) the Decision1 of the Court of Appeals dated 23 November 2005 and (2) the Resolution2 of the same court dated 1 March 2006 denying petitioners Motion for Reconsideration in CA-G.R. CV No. 70125. A Complaint3 for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter. (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support. (c) Ordering the defendant to pay plaintiff attorneys fees in the sum of P100,000.00. (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.4 As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez.5 From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City. From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors Hospital, Tarlac City. Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joannes needs recognizing the child as his.

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Acting on plaintiffs application for support pendente lite which this court finds to be warranted, defendant is hereby ordered to pay to plaintiff immediately the sum of P2,000.00 a month from January 15, 1999 to May 1999 as support pendente lite in arrears and the amount of P4,000.00 every month thereafter as regular support pendente lite during the pendency of this case.9 The RTC finally held: The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz. Since it was duly established that plaintiffs mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid). The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of a) physical incapacity of the husband to have sexual intercourse with his wife; b) husband and wife were living separately in such a way that sexual intercourse was not possible; c) serious illness of the husband which prevented sexual intercourse. It was established by evidence that the husband is a Japanese national and that he was living outside of the country (TSN, Aug. 27, 1999, page 5) and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz. While it may also be argued that plaintiff Jinky had a relationship with another man before she met the defendant, there is no evidence that she also had sexual relations with other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second child (see Exh. "A"), so her first child, a certain Nicole (according to defendant) must have a different father or may be the son of Hasegawa K[u]tsuo. The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne.

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff.10 On 15 December 2000, the RTC rendered a decision and disposed: WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age.11 Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001.12 From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002.13 During the pendency of the case with the Court of Appeals, Rogelios counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong,14 which motion was accordingly granted by the Court of Appeals.15 In a Decision dated 23 November 2005, the Court of Appeals held: WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis. No pronouncement as to costs.16 Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 1 March 2006. In disposing as it did, the Court of Appeals justified its Decision as follows: In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiffs mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiffs mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with

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whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support.17 Hence, this petition which raises the following issues for resolution: I WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DISMISS RESPONDENTS COMPLAINT FOR COMPULSORY RECOGNITION DESPITE ITS FINDING THAT THE EVIDENCE PRESENTED FAILED TO PROVE THAT ROGELIO G. ONG WAS HER FATHER. II WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO REBUT THE PRESUMPTION OF HER LEGITIMACY. III WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED THE CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG.18 Petitioner prays that the present petition be given due course and the Decision of the Court of Appeals dated November 23, 2005 be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.19 From among the issues presented for our disposition, this Court finds it prudent to concentrate its attention on the third one, the propriety of the appellate courts decision remanding the case to the trial court for the conduct of DNA testing. Considering that a definitive result of the DNA testing will decisively lay to rest the issue of the filiation of minor Joanne, we see no reason to resolve the first two issues raised by the petitioner as they will be rendered moot by the result of the DNA testing. As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor. Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child. 20

A child born to a husband and wife during a valid marriage is presumed legitimate. 21 As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: Article 167. The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. The law requires that every reasonable presumption be made in favor of legitimacy. We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals22: The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code23 provides: Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: 1) By the impotence of the husband; 2) By the fact that husband and wife were living separately in such a way that access was not possible; 3) By the serious illness of the husband.24 The relevant provisions of the Family Code provide as follows: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or

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(2) Any other means allowed by the Rules of Court and special laws. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. There had been divergent and incongruent statements and assertions bandied about by the parties to the present petition. But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing. DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity.25 DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. The chemical structure of DNA has four bases. They are known as A (Adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical make up. And since DNA is a double stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called "genes." Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as " polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci." How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; DNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the "known" print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called " allele," one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father. 26 In the newly promulgated rules on DNA evidence it is provided: SEC. 3 Definition of Terms. For purposes of this Rule, the following terms shall be defined as follows: xxxx (c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; (e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and (f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the definitive key to the resolution of the issue of support for minor Joanne. Our articulation in Agustin v. Court of Appeals27 is particularly relevant, thus: Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science,

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(had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts,verbal and written, by the putative father." In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated inTijing v. Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA 17]: x x x Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said results is to deny progress. The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with out en banc decision in People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the rape and murder victims DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile. A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584], we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts." In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3 March 2004, 424 SCRA 277], where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe, Jr., we stated: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong weight of DNA testing... Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA 504], we affirmed the conviction of the accused for

rape with homicide, the principal evidence for which included DNA test results. x x x. Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioners argument is without basis especially as the New Rules on DNA Evidence28 allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation, thus: SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA. As defined above, the term "biological sample" means any organic material originating from a persons body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones. 29 Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing. And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito,30 citing Tecson v. Commission on Elections,31 this Court held: The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in our jurisdiction in this wise: "[i]n case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines

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genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to." It is obvious to the Court that the determination of whether appellant is the father of AAAs child, which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under Section 4 of the Rules, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. However, while this Court retains jurisdiction over the case at bar, capacitated as it is to receive and act on the matter in controversy, the Supreme Court is not a trier of facts and does not, in the course of daily routine, conduct hearings. Hence, it would be more appropriate that the case be remanded to the RTC for reception of evidence in appropriate hearings, with due notice to the parties. (Emphasis supplied.) As we have declared in the said case of Agustin v. Court of Appeals32: x x x [F]or too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity. WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner. SO ORDERED

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HUBERT JEFFREY P. WEBB, EN BANC ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants. December 14, 2010 Promulgated:

ANTONIO LEJANO,

G.R. No. 176389 Petitioner, Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA,

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

DECISION LEONARDO-DE CASTRO, - versus BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. PEOPLE OF THE PHILIPPINES, Respondent. smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel x --------------------------------------------- x Ging Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public PEOPLE OF THE PHILIPPINES, Appellee, G.R. No. 176864 prosecutors filed an information for rape with homicide against Webb, et al.[1] The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. - versus Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.[2] The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, ABAD, J.: Brief Background

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included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was

Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,[5] hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a

then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative,

Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence[6] to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case. Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case.

accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.[3] In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are: On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.[4] The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Issues Presented Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his innocence. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process.

Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and

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2.

Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros

secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or

testimony that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence Webb claims, citing Brady v. Maryland, that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.[8] If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland[9] that he cites has long be overtaken by the decision in Arizona v. Youngblood,[10] where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen
[7]

the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.[11] They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Now, to the merit of the case. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio Dong Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez, Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990. As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF

Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro

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gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the AyalaAlabang Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening (bad trip). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, Pipilahan natin siya [Carmela] at ako ang mauuna. Lejano said, Ako ang susunod and the others responded Okay, okay. They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight. Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout (Pasabugin kaya natin ang transformer na ito). But Alfaro shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, O sige, dito lang kami, magbabantay lang kami.

Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it (para daw walang ilaw). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a womans voice ask, Sino yan? Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, Okay ba? After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: Ikaw na nga dito, maghanap ka ng susi. She asked him what key he wanted and he replied: Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse. When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key.

Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, Prepare an escape. Aalis na tayo. Shocked with what she saw, Alfaro

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rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had

According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an asset. She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the Martilyo gang that killed a police officer. Because of her talent, the task force gave her very special treatment and she became its darling, allowed the privilege of spending nights in one of the rooms at the NBI

already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they offices. got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area. The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the blaming session took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, Bakit naman pati yung bata? Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, Pera lang ang katapat nyan. Biong answered, Okay lang. Webb spoke to his companions and told them, We dont know each other. We havent seen each otherbaka maulit yan. Alfaro and Estrada left and they drove to her fathers house.[12] 1. The quality of the witness Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an asset, a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. Q. A. A. ATTY. ONGKIKO: Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? xxxx She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus:

ATTY. ONGKIKO: Q. And what did you say? xxxx I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Atty. Sacaguing, were you able to interview this alleged witness?

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WITNESS SACAGUING: A. No, sir.

A.

Hindi siya nakakibo, until she went away. (TSN, May 28, 1996, pp. 49-50, 58, 77-79)

ATTY. ONGKIKO: Q. Why not? 2.

Quite significantly, Alfaro never refuted Sacaguings above testimony. The suspicious details But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Secondly, the police had arrested some akyat-bahay group in Paraaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were doing their

WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify.

ATTY. ONGKIKO: Q. All right, and what happened after that?

WITNESS SACAGUING: A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag kayong

COURT: How was that? WITNESS SACAGUING: A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan. xxxx ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that papapelan ko na lang yan?

own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents. Not surprisingly, the confessions of some members of the Barroso akyat bahay gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following: a. The Barroso gang members said that they got into Carmelas house by breaking the glass

WITNESS SACAGUING: A. I said, hindi puwede yan, kasi hindi ka naman eye witness.

panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her.

ATTY. ONGKIKO: Q. And what was the reply of Ms. Alfaro?

Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb

WITNESS SACAGUING:

appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get

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away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions

pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel Ging Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me. As it turned out, he was not Miguel Rodriguez, the accused in this case.[13] Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony There is another thing about a lying witness: her story lacks sense or suffers from inherent

of the Barroso akyat-bahay gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb

had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso akyat-bahay gang, Webb and his friends did not have anything to do in a darkened garage. They

inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro entered the house.

supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative them, particularly to the people who were having a drinking party in a nearby house. Obviously, the work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making behavior of Webbs companions out on the street did not figure in a planned gang-rape of Carmela. her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their darling of an asset. And this is not pure speculation. As Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch

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Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an asset then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela.

obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies.

4. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang -rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see.

The supposed corroborations Intending to provide corroboration to Alfaros testimony, the prosecution presented six

additional witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained[14] and the presence of semen in Carmelas genitalia,[15] indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m.

Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, Sino yan? On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because,

of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.[16] White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them alongVinzons Street. Later, they

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entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly cleaned up Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaros

But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit.

Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.[19] On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from

testimony about the movements of the persons involved. the other days she was on service at the Webb household as to enable her to distinctly remember, four Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,
[17]

years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.[20] She did not call the attention of anybody in the household about it

White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy

since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around when it would have been a point of concern that Webb may have been hurt, hence the blood. the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.
[18]

Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms. What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep.

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And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took

5.

The missing corroboration There is something truly remarkable about this case: the prosecutions core theory that

Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated! For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would

place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a

be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony.

foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.[21] The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned on the board but does not belong because it clashes with the surrounding pieces. It has neither up the crime scene shortly after midnight, what was the point of his returning there on the following antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. morning to dispose of some of the evidence in the presence of other police investigators and onlookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certain items from the Vizconde friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and forward to testify having ever seen him with Carmela. And despite the gruesome news about her death altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called Bagyo, because he was a Paraaque Among the accused, Webb presented the strongest alibi. politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house. a. The travel preparations Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.[22] Gloria Webbs U.S. Alibi What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the allimportant reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly

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Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to hisdespedida party on March 8, 1991 at Faces Disco along Makati Ave.[23] On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.[24]

Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in thePhilippines.[32] In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.[33] During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler[34] and working at his cousin-in-laws pest control company.[35] Webb presented the companys logbook showing the tasks he performed,[36] his paycheck,[37] his ID, and other employment papers. On June 14, 1991 he applied for a driver's license[38] and wrote three letters to his friend Jennifer Cabrera.[39] On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On

b.

The two immigration checks The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria

the same day, his father introduced Honesto Aragon to his son when he came to visit.[40] On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.[41] Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car.[42] To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle[43] and a car plate LEW WEBB.[44] In using the car in the U.S., Webb even received traffic citations.[45] On June 30, 1991 Webb, again accompanied by his father and Aragon,[46] bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a receipt dated June 30, 1991.[48] On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.[49] Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.[50] There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.[51] In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house.[52] He

on board United Airlines Flight 808.[25] Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through.[26] He was listed on the United Airlines Flights Passenger Manifest.[27] On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Nonimmigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,
[28]

the computer-generated print-out of the US-INS indicating Webb's entry on March 9,

1991,[29] and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.[30] c. Details of U.S. sojourn

left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.[31] In the same month, d. The second immigration checks Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.

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As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.
[53]

truthful witness can. The lying witness can also say as forthrightly and unequivocally, He did it! without blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.

Furthermore, a Diplomatic Note of the U.S. Department of

State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,
[54]

certified by Agnes Tabuena

[55]

confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry.
[56]

Upon his

return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, I saw him do it.? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a

She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their

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indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing

had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.

The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this

from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi To establish alibi, the accused must prove by positive, clear, and satisfactory evidence[57] that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.[58] The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact

means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,[59] the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.[60] The U.S. Immigration certification and computer print-out, the official certifications of which

of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But and departure stamps of the U.S. Immigration office on Webbs passport. They have the same this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.[61]

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The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:

If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and

While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding no evidence of lawful admission of Webb, this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.

back. The prosecutions rebuttal evidence is the fear of the unknown that it planted in the lower courts minds. 7. Effect of Webbs alibi to others Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was not exhaustive and did not reflect all available information. Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..[62]

Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall. CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde

The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.

massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediatelyRELEASED from detention unless they are confined for another lawful cause.

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Let

copy

of

this

Decision

be

furnished

the

Director,

Bureau

of

Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections isDIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.

SO ORDERED.

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