2.

RIGHT TO BE HEARD BY HIMSELF AND BY COUNSEL

G.R. No. L-2809

March 22, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FRISCO HOLGADO, defendant-appellant.
Mauricio Carlos for appellant.
Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V. Makasiar for appellee.
MORAN, C.J.:
Appellant Frisco Holgado was charged in the court of First Instance of Romblon with slight illegal
detention because according to the information, being a private person, he did "feloniously and without
justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for about eight
hours thereby depriving said Artemia Fabreag of her personal liberty." On may 8, 1948, the day set for the
trial, the trial court proceeded as follows:
Court:
Is this the case ready for trial?
Fiscal:
I am ready, your honor.
Court: to the accused.
Q. do you have an attorney or are you going to plead guilty? A. I have no lawyer and I will
plead guilty.
Court:
Arraign the accused.
Note:
Interpreter read the information to the accused in the local dialect after which he was asked
this question.
Q. What do you plead? A. I plead guilty, but I was instructed by one Mr. Ocampo.
Q. Who is that Mr. Ocampo, what is his complete name? A. Mr. Numeriano Ocampo.
The provincial fiscal is hereby ordered to investigate that man.
Fiscal:

I have investigated this case and found out that this Ocampo has nothing to do with the case
and I found no evidence against this Ocampo.
Court:
Sentenced reserved.
Two days later, or on May 10, 1948, the trial court rendered the following judgment:
[Criminal Case No. V-118]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO HOLGADO defendant-appellant.
SLIGHT ILLEGAL DETENTION
SENTENCE
The accused, Frisco Holgado, stands charged with the crime of kidnapping and serious illegal
detention in the following
INFORMATION
That on or about December 11, 1947, in the municipality of Concepcion, Province of
Romblon, Philippines and within the jurisdiction of this Honorable Court, the said accused
being a private individual, did then and there wilfully, unlawfully and feloniously, and
without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero
Holgado for about 8 hours thereby depriving said Artemia Fabreag of her personal liberty.
Contrary to law.
This case is called for trial on May 8, 1948. Upon arraignment the accused pleaded guilty to the
information above described.
The offense committed by the accused is kidnapping and serious illegal detention as defined by
article 267 of the Revised Penal Code as amended by section 2 of Republic Act No. 18 and
punished by reclusion temporal in it minimum period to death. Applying indeterminate sentence
law the penalty shall be prision mayor in its maximum degree to reclusion temporal in the medium
degree as minimum, or ten years (10) and one (1) day of prision mayor to twenty (20) years, with
the accessory penalties provided for by law, with costs. The accused is entitled to one-half of his
preventive imprisonment.
It must be noticed that in the caption of the case as it appears in the judgment above quoted, the offense
charged is named SLIGHT ILLEGAL DETENTION while in the body of the judgment if is said that the
accused "stands charged with the crime of kidnapping and serious illegal detention." In the formation filed
by the provincial fiscal it is said that he "accuses Frisco Holgado of the crime of slight illegal detention."
The facts alleged in said information are not clear as to whether the offense is named therein or capital
offense of "kidnapping and serious illegal detention" as found by the trial judge in his judgment. Since the
accused-appellant pleaded guilty and no evidence appears to have been presented by either party, the
trial judge must have deduced the capital offense from the facts pleaded in the information.

Under the circumstances, particularly the qualified plea given by the accused who was unaided by
counsel, it was not prudent, to say the least, for the trial court to render such a serious judgment finding
the accused guilty of a capital offense, and imposing upon him such a heavy penalty as ten years and
one day of prision mayor to twenty years, without absolute any evidence to determine and clarify the true
facts of the case.
The proceedings in the trial court are irregular from the beginning. It is expressly provided in our rules of
Court, Rule 112, section 3, that:
If the defendant appears without attorney, he must be informed by the court that it is his right to
have attorney being arraigned., and must be asked if he desires the aid of attorney, the Court
must assign attorney de oficio to defend him. A reasonable time must be allowed for procuring
attorney.
Under this provision, when a defendant appears without attorney, the court has four important duties to
comply with: 1 It must inform the defendant that it is his right to have attorney before being arraigned; 2
After giving him such information the court must ask him if he desires the aid of an attorney; 3 If he
desires and is unable to employ attorney, the court must assign attorney de oficio to defend him; and 4
If the accused desires to procure an attorney of his own the court must grant him a reasonable time
therefor.
Not one of these duties had been complied with by the trial court. The record discloses that said court did
not inform the accused of his right to have an attorney nor did it ask him if he desired the aid of one. The
trial court failed to inquire whether or not the accused was to employ an attorney, to grant him reasonable
time to procure or assign an attorney de oficio. The question asked by the court to the accused was "Do
you have an attorney or are you going to plead guilty?" Not only did such a question fail to inform the
accused that it was his right to have an attorney before arraignment, but, what is worse, the question was
so framed that it could have been construed by the accused as a suggestion from the court that he plead
guilt if he had no attorney. And this is a denial of fair hearing in violation of the due process clause
contained in our Constitution.
One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to
answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be
heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given
the opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include
the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how to establish his innocence. And this can happen
more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by
counsel is deemed so important that it has become a constitutional right and it is so implemented that
under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the
court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure
an attorney of his own.
It must be added, in the instant case, that the accused who was unaided by counsel pleaded guilty but
with the following qualification: "but I was instructed by one Mr. Ocampo." The trial court failed to inquire
as to the true import of this qualification. the record does not show whether the supposed instructions was
real and whether it had reference to the commission of the offense or to the making of the plea guilty. No
investigation was opened by the court on this matter in the presence of the accused and there is now no
way of determining whether the supposed instruction is a good defense or may vitiate the voluntariness of

the confession. Apparently the court became satisfied with the fiscal's information that he had investigated
Mr. Ocampo and found that the same had nothing to do with this case. Such attitude of the court was
wrong for the simple reason that a mere statement of the fiscal was not sufficient to overcome a qualified
plea of the accused. But above all, the court should have seen to it that the accused be assisted by
counsel specially because of the qualified plea given by him and the seriousness of the offense found to
be capital by the court.
The judgment appealed from is reversed and the case is remanded to the Court below for a new
arraignment and a new trial after the accused is apprised of his right to have and to be assisted by
counsel. So ordered.
G.R. No. L-55177 February 27, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN MANALO, defendant-appellant.

FELICIANO, J.:
The judgment of the former Circuit Criminal Court of Rizal in Criminal Case No. CCC-VII-2505 finding
Ruben Manalo guilty of murder and imposing the death penalty, is before us on automatic review.
The record discloses that in the morning of 23 May 1977, appellant Ruben Manalo, a prisoner serving
sentence in the National Bilibid Prison, was at the visiting area of the prison waiting for transfer to the San
Ramon Penal Colony. Alfredo de la Cruz, Jolly Hilario and Reynaldo Cariso, all convicted prisoners
serving their respective sentences, were similarly waiting in the same visiting area for transfer to the same
penal colony. While at the visiting area, appellant engaged another convict in a betting game called
"honkiang", after which appellant and dela Cruz indulged in speculation concerning their prospective life
in the penal colony. During this conversation, appellant attacked dela Cruz with a knife, inflicting two fatal
stabwounds on the latter's back. Immediately after the stabbing, appellant voluntarily surrendered to the
prison authorities and handed over the fan knife (balisong) he used in killing dela Cruz.
Immediately after the killing and the appellant's surrender, the appellant was investigated by the prison
authorities. During this investigation, Ruben Manalo readily admitted verbally having stabbed the victim
and nonchalantly advised that the fan knife he used had been bought by him for P25.00 a month ago and
had been concealed inside his right rubber shoe and so was not discovered by the prison guard who had
searched him before entering the Visiting Shed.
The investigation also revealed that the victim was a member of the BCJ (Batang City Jail gang from
prison Dormitory 3D while Ruben Manalo is a member of the Sigue Sigue Sputnik gang from prison
Dormitory 2B. These two gangs have had a serious, ongoing feud for a long time, winch had recently
been aggravated by the fatal stabbing of a member of the Sigue-Sigue Sputnik gang by members of the
BCJ gang.
On 6 February 1978, Ruben Manalo was charged with murder in an information which read as follows:
That on or about the 23rd day of May 1977 in the municipality of Muntinlupa, and within
the jurisdiction of this Honorable Court, the above-named accused, who is a convict

confined and serving his sentence in the new Bilibid Prison by virtue of final judgment
rendered against him by courts of competent jurisdiction, with intent to kill, evident
premeditation and treachery did then and there willfully, unlawfully and feloniously attack,
assault and stab with a bladed weapon one Alfredo dela Cruz, also a convict, thereby
inflicting upon him stab wounds on the vital parts of his body which directly caused his
death.
Contrary to law, with the aggravating circumstance of quasi-recidivism, the accused
having committed the offense while serving his sentence in the New Bilibid Prison.
Upon arraignment, and with the assistance of counsel, appellant pleaded guilty. The trial court
nonetheless ordered the mandatory presentation of evidence. After trial, in a decision dated 7 December
1978, the trial court concluded that the killing of Alfredo dela Cruz by Ruben Manalo had been attended
by treachery and evident premeditation and aggravated by quasi-recidivism. The dispositive portion of the
judgment read:
DAHIL SA GAYON, dahil sa kusang loob na pag-amin nang kasalanan nang nasasakdal
sa paglabag sa Artikulo 248 nang Binagong Kodigo Penal na naayon sa sakdal,
napatunayan nang Hukumang ito na siya ay nagkasala at siya ay hinahatulan nang
parusang KAMATAYAN. Pagbabayaran din niya ang mga tagapagmana nang nasawi
nang halagang P12,000.00 at P10,000.00 bayad pinsalang moral, P10,000.00 bayad
pinsalang di dapat pamarisan at ang gastos ng usaping ito.
IPINAGUUTOS.
In his brief, appellant does not question the finding of the trial court that he had killed Alfredo dela Cruz.
Instead, the appellant assigns two distinct errors:
(1) the proceedings in the trial court were null and void since certain constitutional rights of the appellant
had been disregarded therein; and
(2) the trial court erred in finding that the killing of dela Cruz had been attended by the qualifying
circumstances of evident premeditation and treachery.
In respect of the first assigned error, it is the contention of the appellant that he was deprived of his
constitutional right to due process, to be presumed innocent until the contrary is proved, to an impartial
trial and to counsel, by reason of the lower court's partiality, bias and lack of objectivity during the trial.
The appellant urges that since the trial-court was not an impartial tribunal, all the proceedings before it
should be set aside as null and void.
Appellant maintains that lack of impartiality and of objectivity on the part of the trial judge was clearly
shown when he intervened in the cross-examination of Dr. Virgilio Hernale (the physician who had carried
out the autopsy of the victim dela Cruz) and of Jolly Hilario both being witnesses for the prosecution.
Upon termination of the cross-examination of Dr. Hernale by defense counsel, the trial judge raised the
following questions which Dr. Hernale answered in the following manner:
COURT Did you find any defense (sic) wounds?
A No sir.

COURT The wound is located at the back?

A Yes sir.
COURT You mean to say he was attacked treacherously?
A It is possible.
COURT He was attacked without giving a chance to defend himself.
A It is possible.
xxx xxx xxx 1
At the subsequent hearing, during the cross-examination of Jolly Hilario by defense counsel, the trial court
intervened once more in the following manner:
COURT The fact remains that Alfredo de la Cruz was not armed?
A Yes, your Honor.
COURT And he was stabbed suddenly by Ruben Manalo?
A Yes, your Honor.
COURT Alfredo dela Cruz was not able to parry any stab blow by Ruben
Manalo?
A No, your Honor.
xxx xxx xxx
COURT To what gang do you belong?
A To the Batang City Jail your Honor.
COURT Where were you operating before when you were not yet sentenced by
the court?
A In Manila.
COURT In what part of Manila?
A In Quiapo, your Honor.
COURT And as matter of fact, in your area of operation the enemy of your gang
are the Sputniks of which Ruben Manalo is a member?
A They were enemies, your Honor.

COURT So much so that if you have enemies outside the jail, it follows that you
will have enemies inside the prison walls?
A Yes, your Honor.
COURT So much so that the members of the Sputniks surely the members
belonging to the Batang City Jail gang?
A Yes, your Honor.
COURT And in the same manner, vice versa members of Batang City Jail gang
will kill any member of the Sputniks?
A Yes.
COURT And the mode of killing is by treachery and will not give any chance to
the victim to defend himself.?
A Yes, your Honor.
COURT That is also true to your gang?
A Yes, your honor.
COURT And each gang usually attacks the weak ones especially so when they
have no arms?
A Yes, your honor.
COURT Proceed.
xxx xxx xxx 2
The appellant claims that the above interventions of the trial court show that, at the very outset, the judge
had already concluded that appellant was guilty of murder and had resolved to convict him; that the trial
court had functioned "both as judge and prosecutor" asking questions of witnesses "calculated to
establish treachery, premeditation and motive"; that the questions raised by the trial court were
exceptionable ones, being "leading, misleading, caged for opinions or were objectionable on the ground
of the witness' incompetence"; and that therefore, appellant "never had a fair chance." 3
We are not persuaded by the appellant's contention. As long ago as 1915, this Court held that:
A severe examination by a trial judge of some of the witnesses for the defense in an effort
to develop the truth and to get at the real facts affords no justification for a charge in
counsel's brief on appeal that he has assisted the prosecution with an evident desire to
secure a conviction or that he had intimidated the witness for the defense. We have had
occasion to hold (U.S. vs. Hudieres 27 Phil. Rep., 45) that it is not only the right but often
times the duty of a trial judge to examine witnesses when it appears to be necessary for
the elucidation of the record. Under the system of legal procedure in vogue in this
jurisdiction, where the trial court is judge of both the law and the facts, it is oftentimes

expedient or necessary in the due and faithful administration of justice for the presiding
judge in the exercise of a sound discretion to reexamine a witness in order that his
judgment when rendered may rest upon a full and clear understanding of the facts. 4
We must accord to a trial judge reasonable leeway in putting such questions to witnesses as may be
essential to elicit relevant facts and to make the record speak the truth. In such an effort, a judge may
examine or cross-examine a witness. He may seek to draw out relevant and material testimony though
that testimony may tend to support or rebut the position taken by one or the other party. In the first
instance, the Court has pointed out, "the extent to which such examination may be conducted rests in the
discretion of the judge, the exercise of which will not be controlled unless his discretion has clearly been
abused to the prejudice of either party." 5 In the present case, we do not believe that the trial judge
transgressed the permissible limits of judicial inquiry. It appears to us that the judge merely sought to
clarify to himself whether or not treachery and evident premeditation had indeed attended the killing of
Alfredo dela Cruz, as alleged by the prosecution. All that the questions propounded by the judge indicates
to us is that he was not particularly skillful in cross-examination and that he found it difficult to
operationalize words which themselves imported conclusions. Finally, we would note that the questions
posed by the trial judge, quoted above, did not ultimately impose any prejudice upon the appellant, for
reasons that will become clear shortly. The questions raised by the trial judge sought to draw forth
answers which did not relate to whether or not the appellant had in fact killed dela Cruz. The appellant
had not only entered an intelligent and valid plea of guilty; that he had killed his fellow convict dela Cruz
was established by independent and overwhelming evidence.
The appellant also claims that he was denied his constitutional right to counsel. The appellant admits that
he was assisted by counsel de oficio from the time of arraignment and throughout the trial of the case.
Appellant, however, deplores the fact that several different counsel de oficio assisted him during the
different hearings held in his case. Atty. Galvan appeared for Manalo at the arraignment and at the
second and sixth hearings; Atty. Sardillo assisted him during the first and the third hearings; at the fourth
and fifth hearings, Manalo was represented by Atty. Agoot. At the fifth hearing, the appellant claims, the
prosecution was already "mid-stream" in its direct examination of the prosecution witness of whom 27
questions and already been asked, when the prosecution suddenly commented that "I think there is no
lawyer for the accused [present]." The trial court forthwith appointed Atty. Agoot there physically present
as counsel de oficio (apparently forgetting that he had already been appointed counsel de oficio and had
acted as such, at the previous [fourth] hearing) and thereupon proceeded with the trial of the case.
Appellant raises the entertaining, if rhetorical question of how ably his counsel de oficio could defend him
since they were playing musical chairs hearing after hearing." 6 Thus, the appellant asserts that his
right to counsel was "but a sham." that by appointing multiple counsel de oficio the trial court did not
effectively provide him with the assistance and protection required by the Constitution. 7
The appellant's argument is novel and interesting but, once more, we are not persuaded that there has
here been a deprivation of a constitutional right which requires annulment of all the proceedings before
the trial court. We do not believe that the fact that a particular counsel de oficio did not or could not
consistently appear in all the hearings of the case, is effectively a denial of the right to counsel, especially
so where, as in the instant case, there is no showing that the several appointed counsel de oficio in any
way neglected to perform their duties to the appellant and to the trial court and that the defense had
suffered in any substantial sense therefrom. Fairness to the several counsel de oficio requires us to note
the record which reveals that each of them had conscientiously performed their duties in assisting the
appellant and protecting his interest by, for instance, making the necessary objections in a timely manner
during the examination of the prosecution witnesses to test their credibility and freedom from bias or evil
motive. 8 Contrary to the suggestion of the appellant, Atty. Agoot was not entitled to a recess of two days
to prepare to defend the appellant after Atty. Agoot was re-appointed counsel de oficio at the fifth hearing.

That lawyer had previously been designated counsel de oficio during the preceding (fourth)
hearing. 9 Both the appellant and the court had therefore the right to expect that counsel de oficio was
familiar with the facts of the appellant's case and that he had prepared himself for the fifth hearing since
his prior appointment as counsel de oficio had not been revoked by the trial court. In point of fact, his
designation once more as counsel de oficio during the fifth hearing was totally unnecessary. In any case,
Rule 116, Section 5 of the Rules of Court gives the trial judge discretion to shorten or extend the time
given to an attorney de oficio to prepare his defense.
We turn to the appellant's second assignment of error: that relating to the finding of the lower court that
the killing of convict dela Cruz was attended by the qualifying circumstances of evident premeditation and
treachery. We note at once that the Solicitor General has concurred with the view taken by the appellant
on this point.
The lower court had found that dela Cruz was sleeping when attacked by Ruben Manalo (citing, in this
connection, the Necropsy Report) 10 and thus, concluded that treachery was present. The Solicitor
General, however, concedes that there was absolutely no evidence in the record to show that dela Cruz
was stabbed while asleep. 11 The Necropsy Report only described the injuries and the cause of death of
the victim. No statement is found there that the victim was asleep at the time of the stabbing. Neither the
physician who carried out the autopsy and prepared the Necropsy Report nor the two eyewitnesses to the
stabbing had testified that the fatal wounds had been administered while the victim was asleep. On the
contrary, both eyewitnesses to the killing explicitly stated that the appellant had stabbed dela Cruz while
the two were conversing with each other. 12
Treachery cannot be presumed. It must be proven as conclusively as the act of killing itself. The fact that
the fatal wounds were found at the back of the deceased does not, by itself, compel a finding of treachery.
Such a finding must be based on some positive proof and not be merely an inference drawn more or less
logically from hypothetical facts. This Court has ruled that the suddenness of an attack is not, of itself,
enough to constitute treachery when the method of killing does not positively show that the assailant
thereby knowingly intended to ensure the accomplishment of his purpose without risk to himself from any
defense which the victim might put up13 In other words, to sustain a finding of treachery, the means,
method or form of attack must be shown to have been deliberately adopted by the appellant. 14 There was
no such showing here. On the contrary, the evidence indicated that the killing of dela Cruz was not preplanned by the appellant and that the decision to kill was an impulse of the moment. Appellant was in the
visiting area with dela Cruz not because the appellant had deliberately planned to be there at the same
time as dela Cruz. Rather, appellant was there because he along with others, had been chosen by the
prison authorities for transfer to the penal colony. Thus, appellant found himself with dela Cruz that
morning by accident and not by design. Further, dela Cruz was stabbed while lying on a table, engaged in
a conversation with the appellant. Appellant could not have forseen that dela Cruz would lie down on a
table and present such an attractive victim; thus, the resolve to stab him while dela Cruz was in a prone
position, must have been taken impulsively. Finally, if the appellant had planned the killing, the probability
was that he would not have planned to carry it out in broad daylight while dela Cruz's gangmates and
dormitory mates (Hilario and Cariso) were close by.
The Solicitor General has also agreed with the appellant that the trial court's finding of evident
premeditation was erroneous because of lack of support in the record. The Solicitor General said:
[To show evident premeditation] it is necessary to establish (a) the time when the offender
determined to commit the crime, (b) a notorious act manifestly indicating that he has
clung to his determination, and (c) a sufficient lapse of time between the determination
and the execution, to allow him to reflect upon the consequences of his act. (Padilla,
Criminal Law, 1979 ed. p. 449).

None of these requisites was proven in the case at bar. The evidence presented at the
trial was limited to events that transpired immediately prior, during and after the attack.
No one testified on any incident that occurred an hour or more before the attack. Hence,
there is no proof on (a) when appellant resolved to kill the victim, (b) what external acts
demonstrated that he stuck to his resolution and (c) whether he had sufficient time to
reflect upon the consequences of his act.
In fact, there is no evidence to show that appellant and de la Cruz knew each other prior
to the killing. They belonged to different gangs, were assigned to different brigades and
lived in different dormitories. Prosecution witnesses Hilario and Cariso who were
gangmates, dorm-mates and close friends of de la Cruz, did not know appellant's name.
Thus, it is highly probable that appellant was not even acquainted with de la Cruz and so
there was no reason for appellant to resolve before hand to kill de la Cruz. The qualifying
circumstance of premeditation may be properly taken into account only when the
intention to kill has been planned in the mind of the offender and carefully meditated. It is
not enough that it arose at the moment of the aggression, as in the present case.
In the absence of clear proof of any circumstance that would qualify as murder the killing
of the deceased, we submit that appellant committed no more than homicide. 15
We agree with the Solicitor General.
WHEREFORE, the decision of the lower court is modified and Ruben Manalo is found guilty beyond
reasonable doubt of the crime of homicide for which, in view of the presence of the special aggravating
circumstance of quasi-recidivism under Article 160 of the Revised Penal Code, the correct imposable
penalty is reclusion temporalin its maximum period. Applying the Indeterminate Sentence Law, Ruben
Manalo is hereby sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision
mayor as a minimum and seventeen (17) years, four (4) months and one (1) day of reclusion temporal as
a maximum. The civil indemnity due to the heirs of Alfredo dela Cruz is increased to Thirty Thousand
Pesos (P30,000.00). The balance of the judgment of the lower court is AFFIRMED.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGAAN, accused-appellant.
DECISION
QUISUMBING, J.:
Where an accused was not duly represented by a member of the Philippine Bar during trial, the
judgment should be set aside and the case remanded to the trial court for a new trial. A person who
misrepresents himself as a lawyer shall be held liable for indirect contempt of court.
Subject of the present appeal is the decision dated October 29, 1992, of the Regional Trial Court of
Iloilo City, Branch 33, convicting accused-appellant of the crime of rape, sentencing him to suffer the
penalty of reclusion perpetua, and ordering him to pay the offended party the amount of P50,000.00 and
to pay the costs.

The antecedent facts of the case are as follows:

On February 17, 1992, appellant was charged with the crime of rape [1] of a girl less than nine (9)
years old, committed on December 28, 1991, in the town of Barangay San Luis, San Joaquin, Iloilo.
Upon arraignment, appellant entered a plea of not guilty. Trial ensued and the prosecution
presented as its witnesses the victim, her mother, her six (6) year-old playmate, and the medico-legal
officer who examined the victim.
For the defense, appellant presented one German Toriales and himself. Appellant denied
committing the rape and claimed that he merely tried to stop the two girls, the victim and her playmate,
from quarreling.
On October 29, 1992, the trial court rendered a decision [2] finding appellant guilty as charged. The
dispositive portion of the decision states:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of rape and
sentences him to suffer the penalty of reclusion perpetua together its accessory penalty. The accused is
ordered to pay the amount of P50,000.00 to the complainant and another amount for costs, without
subsidiary penalty in case of failure to pay the civil liability and the cost.
If qualified under Art. 29 of the Revised Penal Code, as amended by R.A. 6127, as amended, and he has
agreed in writing to abide by the same rules imposed upon convicted prisoners, he shall be credited with
the full duration of his preventive imprisonment; otherwise, he shall only be credited with 4/5 of the same.
SO ORDERED.
Hence, appellant duly filed a Notice of Appeal. [3] In his brief,[4] appellant made the following
assignment of errors:
I. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE
ACCUSED IS GUILTY OF RAPE INSPITE OF CONFLICTING TESTIMONIES OF THE PRIVATE
COMPLAINANT AND HER WITNESSES ON MATERIAL POINTS.
II. THAT THE ACCUSED-APPELLANT WAS DEPRIVED THOUGH NO FAULT OF HIS OWN TO BE
DEFENDED BY A PERSON AUTHORIZED TO PRACTICE LAW AMOUNTING TO DENIAL OF DUE
PROCESS.
Considering the importance of the constitutional right to counsel, we shall now first resolve the issue
of proper representation by a member of the bar raised by appellant.
Appellant contends that he was represented during trial by a person named Gualberto C. Ompong,
who for all intents and purposes acted as his counsel and even conducted the direct examination and
cross-examinations of the witnesses. On appeal, however, appellant secured the services of a new
lawyer, Atty. Igmedio S. Prado, Jr., who discovered that Gualberto C. Ompong is actually not a member of
the bar. Further verification with the Office of the Bar Confidant confirmed this fact. [5] Appellant therefore
argues that his deprivation of the right to counsel should necessarily result in his acquittal of the crime
charged.

The Office of the Solicitor General, on the other hand, maintains that notwithstanding the fact that
appellants counsel during trial was not a member of the bar, appellant was afforded due process since he
has been given an opportunity to be heard and the records reveal that said person presented the
evidence for the defense with the ability of a seasoned lawyer and in general handled the case of
appellant in a professional and skillful manner. However, the right of the accused to be heard by himself
and his counsel, in our view, goes much deeper than the question of ability or skill. It lies at the heart of
our adversarial system of justice. Where the interplay of basic rights of the individual may collide with the
awesome forces of the state, we need a professional learned in the law as well as ethically committed to
defend the accused by all means fair and reasonable.
On the matter of proper representation by a member of the bar, we had occasion to resolve a similar
issue in the case of Delgado v. Court of Appeals.[6] In Delgado, petitioner and two others were convicted
by the trial court of the crime of estafa thru falsification of public and/or official documents. One accused
did not appeal. Petitioner Delgado and her remaining co-accused appealed to the Court of Appeals,
which affirmed petitioners conviction but acquitted her co-accused. After entry of judgment, petitioner
discovered that her lawyer was not a member of the bar and moved to set aside the entry of judgment.
The Court of Appeals denied petitioners motion, hence, she filed a petition for certiorari with this
Court. The Court set aside the assailed judgment and remanded the case to the trial court for a new trial,
explaining that This is so because an accused person is entitled to be represented by a member of the bar in a criminal
case filed against her before the Regional Trial Court. Unless she is represented by a lawyer, there is
great danger that any defense presented in her behalf will be inadequate considering the legal perquisites
and skills needed in the court proceedings. This would certainly be a denial of due process.[7]
Indeed, the right to counsel is of such primordial importance that even if an accused was
represented by three successive counsels from the Public Attorneys Office, the Court has ordered the
remand of a rape case when it found that accused was given mere perfunctory representation by
aforesaid counsels such that appellant was not properly and effectively accorded the right to counsel. In
the recent en banc case ofPeople v. Bermas, G.R. No. 120420, April 21, 1999, the Court, speaking
through Justice Vitug, admonished three (3) PAO lawyers for failing to genuinely protect the interests of
the accused and for having fallen much too short of their responsibility as officers of the court and as
members of the Bar. Verily, we can do no less where the accused was not even duly represented by a
certified member of the Philippine Bar, no matter how zealous his representation might have been.
The presence and participation of counsel in criminal proceedings should never be taken lightly.
Even the most intelligent or educated man may have no skill in the science of the law, particularly in the
rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he
does not know how to establish his innocence. [9]The right of an accused to counsel is guaranteed to
minimize the imbalance in the adversarial system where the accused is pitted against the awesome
prosecutory machinery of the State. [10] Such a right proceeds from the fundamental principle of due
process which basically means that a person must be heard before being condemned. The due process
requirement is a part of a persons basic rights; it is not a mere formality that may be dispensed with or
performed perfunctorily.[11]
[8]

The right to counsel of an accused is enshrined in no less than Article III, Sections 12 and 14 (2) of
the 1987 Constitution. This constitutional mandate is reflected in Section 1 of Rule 115 of the 1985 Rules
of Criminal Procedure which declares the right of the accused at the trial to be present in person and by
counsel at every stage of the proceedings from the arraignment to the promulgation of judgment. In turn,
Section 5 of Article VIII of the 1987 Constitution vests the power to promulgate rules concerning the
admission to the practice of law to the Supreme Court. Section 1 of Rule 138 of the Rules of Court

explicitly states who are entitled to practice law in the Philippines, and Section 2 thereof clearly provides
for the requirements for all applicants for admission to the bar. Jurisprudence has also held that the right
to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise. It is
limited to persons of good moral character with special qualifications duly ascertained and certified. The
right does not only presuppose in its possessor integrity, legal standing and attainment, but also the
exercise of a special privilege, highly personal and partaking of the nature of a public trust. [12] Indeed, so
strict is the regulation of the practice of law that in Beltran, Jr. v. Abad,[13] a Bar candidate who has already
successfully hurdled the Bar examinations but has not yet taken his oath and signed the roll of attorneys,
and who was caught in the unauthorized practice of law was held in contempt of court. Under Section 3
(e) of Rule 71 of the Rules of Court, a person who undertakes the unauthorized practice of law is liable for
indirect contempt of court for assuming to be an attorney and acting as such without authority.
WHEREFORE, the assailed judgment is SET ASIDE, and the case is hereby REMANDED to the trial
court for new trial.
With respect to the unauthorized practice of law by the person named Gualberto C. Ompong in
connection with this case, the local Chapter of the Integrated Bar of the Philippines of Iloilo City is
DIRECTED to conduct a prompt and thorough investigation regarding this matter and to report its
recommendations to the Court within ninety (90) days from notice of this order. Let all concerned parties,
including the Office of the Bar Confidant, be each furnished a copy of this Decision for their appropriate
action.
No pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN, VIRGILIO I. LOYOLA,
CECILIO O. CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN
DOES, accused-appellants.
DECISION
MELO, J.:
This is one of the older cases which unfortunately has remained in docket of the Court for
sometime. It was reassigned, together with other similar cases, to undersigned ponente in pursuance of
A.M. No. 00-9-03-SC dated February 27, 2001.
In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned by the PNOC Shipping and
Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and
40,000 barrels of diesel oil, with a total value of P40,426,793,87. was sailing off the coast of Mindoro near
Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate
Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum
ladder, by seven fully armed pirates led by Emilio Changco, older brother of accused-appellant Cecilio
Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16
rifles, .45 and .38 caliber handguns, and bolos. They detained the crew and took complete control of the
vessel. Thereafter, accused-appellant Loyola ordered three crew members to paint over, using black
paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well as the PNOC logo on
the chimney of the vessel. The vessel was then painted with the name "Galilee," with registry at San

Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio
messages to PNOC that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the
Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy.
However, search and rescue operations yielded negative results. On March 9, 1991, the ship arrived in
the vicinity of Singapore and cruised around the area presumably to await another vessel which, however,
failed to arrive. The pirates were thus forced to return to the Philippines on March 14, 1991, arriving at
Calatagan, Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles
from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio Changco
ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Accusedappellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the cargo. The transfer,
after an interruption, with both vessels leaving the area, was completed on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo
to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea.
On April 10, 1991, the members of the crew were released in three batches with the stern warning not to
report the incident to government authorities for a period of two days or until April 12, 1991, otherwise
they would be killed. The first batch was fetched from the shoreline by a newly painted passenger jeep
driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who brought them to Imus,
Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in proceeding to their respective
homes. The second batch was fetched by accused-appellant Changco at midnight of April 10, 1991 and
were brought to different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC
Shipping and Transport Corporation office to report the incident. The crew members were brought to the
Coast Guard Office for investigation. The incident was also reported to the National Bureau of
Investigation where the officers and members of the crew executed sworn statements regarding the
incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K.
Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was
arrested and brought to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI
agents as the latter were pursuing the mastermind, who managed to evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha
Hotel in Batangas City.
On October 24 1991, an Information charging qualified piracy or violation of Presidential Decree No.
532 (piracy in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O.
CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN DOES of
qualified piracy (Violation of P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to April 10, 1991, both dates inclusive, and for
sometime prior and subsequent thereto, and within the jurisdiction of this Honorable Court, the said
accused, then manning a motor launch and armed with high powered guns, conspiring and confederating
together and mutually helping one another, did then and there, wilfully, unlawfully and feloniously fire
upon, board and seize while in the Philippine waters M/T PNOC TABANGCO loaded with petroleum
products, together with the complement and crew members, employing violence against or intimidation of
persons or force upon things, then direct the vessel to proceed to Singapore where the cargoes were
unloaded and thereafter returned to the Philippines on April 10, 1991, in violation of the aforesaid law.
CONTRARY TO LAW.
(pp. 119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of
the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants pleaded
not guilty to the charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their
testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed the
charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed
having their own respective sources of livelihood. Their story is to the effect that on March 2, 1991, while
they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and Second Mate
Christian Torralba on board, approached the seashore. Captain Liboon inquired from the three if they
wanted to work in a vessel. They were told that the work was light and that each worker was to be paid
P3,000.00 a month with additional compensation if they worked beyond that period. They agreed even
though they had no sea-going experience. On board, they cooked, cleaned the vessel, prepared coffee,
and ran errands for the officers. They denied having gone to Singapore, claiming that the vessel only
went to Batangas. Upon arrival thereat in the morning of March 21, 1991, they were paid P1,000.00 each
as salary for nineteen days of work, and were told that the balance would be remitted to their addresses.
There was neither receipt nor contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping
on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he
studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as
a "Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi
Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading
petroleum, including shipoil, bunker lube oil, and petroleum to domestic and international markets. It
owned four vessels, one of which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts,
Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department of
the Singapore government as the radio telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to
sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid over

one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations
Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the
contact vessel.
The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on
board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port of
Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain the quantity
and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the purchase. Hiong,
together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed toward a vessel called
"M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer. Although no inspection of
"Navi Pride" was made by the port authorities before departure, Navi Marine Services, Pte., Ltd. was able
to procure a port clearance upon submission of General Declaration and crew list. Hiong, Paul Gan, and
the brokers were not in the crew list submitted and did not pass through the immigration. The General
Declaration falsely reflected that the vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the
Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and the
surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned out to be
Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he ask for the
latter's personal card.
Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took
samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under the
name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon arrival at
Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the cargo to the
company.
Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from
"M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time, Hiong
was told that that there were food and drinks, including beer, purchased by the company for the crew of
"M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul Gan was paid in
full for the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to
offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the
cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid out
the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that the
vessel was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha Hotel in
Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the name of "KEVIN
OCAMPO," who later turned out to be Emilio Changco himself, also checked in at Alpha Hotel. From
accused-appellant Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The
dispositive portion of said decision reads:
WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by this Court
finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond
reasonable doubt, as principals, of the crime of piracy in Philippine Waters defined in Section 2(d) of
Presidential Decree No. 532 and the accused Cheong San Hiong, as accomplice, to said crime. Under
Section 3(a) of the said law, the penalty for the principals of said crime is mandatory death. However,

considering that, under the 1987 Constitution, the Court cannot impose the death penalty, the accused
Roger Tulin, Virgilio Loyola, Andres Infante, ]r., and Cecilio Changco are hereby each meted the penalty
of RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong San Hiong
is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal
Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T
Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to remit,
jointly and severally, to said corporation the value thereof in the amount of P11,240,000.00 Philippine
Currency, with interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is
paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the Caltex
Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return the said cargo to
said corporation, all the accused are hereby condemned to pay, jointly and severally, to the Caltex
Refinery, Inc., the value of said cargo in the amount of P40,426,793.87, Philippine Currency plus interests
until said amount is paid in full. After the accused Cheong San Hiong has served his sentence, he shall be
deported to Singapore.
All the accused shall be credited for the full period of their detention at the National Bureau of
Investigation and the City Jail of Manila during the pendency of this case provided that they agreed in
writing to abide by and comply strictly with the rules and regulations of the City Jail of Manila and the
National Bureau of Investigation. With costs against all the accused.
SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments of accused-appellants may be
summarized as follows:
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in
allowing them to adopt the proceedings taken during the time they were being represented by Mr. Tomas
Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel
for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court
discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had
presented and examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during
the custodial investigation, they were subjected to physical violence; were forced to sign statements
without being given the opportunity to read the contents of the same; were denied assistance of counsel,
and were not informed of their rights, in violation of their constitutional rights,
Said accused-appellants also argue that the trial court erred in finding that the prosecution proved
beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates
were outnumbered by the crew who totaled 22 and who were not guarded at all times. The crew, so these
accused-appellants conclude, could have overpowered the alleged pirates.
Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed
by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and seized
the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or robbery or
piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of qualified piracy under
Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4) the trial court
erred in convicting and punishing him as an accomplice when the acts allegedly committed by him were
done or executed outside of Philippine waters and territory, stripping the Philippine courts of jurisdiction to
hold him for trial, to convict, and sentence; (5) the trial court erred in making factual conclusions without
evidence on record to prove the same and which in fact are contrary to the evidence adduced during trial;
(6) the trial court erred in convicting him as an accomplice under Section 4 of Presidential Decree No. 532
when he was charged as a principal by direct participation under said decree, thus violating his
constitutional right to be informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accused-appellants do not prove any
participation on his part in the commission of the crime of qualified piracy. He further argues that he had
not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of qualified
piracy, and that he was not aware that the vessel and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the information with qualified
piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters. In
the case at bar, he argues that he was convicted for acts done outside Philippine waters or territory. For
the State to have criminal jurisdiction, the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what are the legal effects and
implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what are
the legal effects and implications of the absence of counsel during the custodial investigation?; (3) did the
trial court err in finding that the prosecution was able to prove beyond reasonable doubt that accusedappellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate the crime
committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be convicted as
accomplice when he was not charged as such and when the acts allegedly committed by him were done
or executed outside Philippine waters and territory?
On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by
accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were
adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of the right to
sufficient representation during the trial as covered by the due process clause shall only be valid if made
with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as represented by Atty.
Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature
and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed
the same. They also affirmed the truthfulness of its contents when asked in open court (tsn, February 11,
1992, pp. 7-59). It is true that an accused person shall be entitled to be present and to defend himself in
person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment
(Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is
not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived,
unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a
third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same
section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights without the assistance of

counsel." By analogy , but without prejudice to the sanctions imposed by law for the illegal practice of law,
it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the
appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical
rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation
during the trial, considering that it was unequivocally, knowingly, and intelligently made and with the full
assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be
successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553
[1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial investigation may not be
waived except in writing and in the presence of counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S. 436 [1966]) which gave birth to the socalled Miranda doctrine which is to the effect that prior to any questioning during custodial investigation,
the person must be warned that he has a right to remain silent, that any statement he gives may be used
as evidence against him, and that he has the right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly, and intelligently. The Constitution even adds the more stringent requirement that the waiver
must be in writing and made in the presence of counsel.
Saliently, the absence of counsel during the execution of the so-called confessions of the accusedappellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown in
the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the
poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of
Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the
"tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit")
derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by
the State should not be used to gain other evidence because the originally illegally obtained evidence
taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this
case, the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right
to counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise
inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to
convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court that
indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, .and Infante, Jr.
did conspire and confederate to commit the crime charged. In the words of then trial judge, now Justice
Romeo J. Callejo of the Court of Appeals ...The Prosecution presented to the Court an array of witnesses, officers and members of the crew of the
"M/T Tabangao" no less, who identified and pointed to the said Accused as among those who attacked
and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off Lubang
Island, Mindoro, with its cargo, and brought the said vessel, with its cargo, and the officers and crew of
the vessel, in the vicinity of Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of
Singapore and sold its cargo to the Accused Cheong San Hiong upon which the cargo was discharged
from the "M/T Tabangao" to the "Navi Pride" for the price of about $500,000.00 (American Dollars) on
March 29, and 30, 1991...
xxx
xxx
xxx
The Master, the officers and members of the crew of the "M/T Tabangao" were on board the vessel with
the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more than one (1)
month. There can be no scintilla of doubt in the mind of the Court that the officers and crew of the vessel
could and did see and identify the seajackers and their leader. In fact, immediately after the Accused
were taken into custody by the operatives of the National Bureau of Investigation, Benjamin Suyo,
Norberto Senosa, Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and
pointed to and identified the said Accused as some of the pirates.
xxx
xxx
xxx
Indeed, when they testified before this Court on their defense, the three (3) Accused admitted to the Court
that they, in fact, boarded the said vessel in the evening of March 2 1991 and remained on board when
the vessel sailed to its, destination, which turned out to be off the port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants' defense of denial is not
supported by any hard evidence but their bare testimony. Greater weight is given to the categorical
identification of the accused by the prosecution witnesses than to the accused's plain denial of
participation in the commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accusedappellants Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three
complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their
companion) while said accused-appellants were conversing with one another along the seashore at
Apkaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored
off-shore. And readily, said accused-appellants agreed to work as cooks and handymen for an indefinite

period of time without even saying goodbye to their families, without even knowing their destination or the
details of their voyage, without the personal effects needed for a long voyage at sea. Such evidence is
incredible and clearly not in accord with human experience. As pointed out by the trial court, it is
incredible that Captain Liboon, Second Mate Torralba, and their companion "had to leave the vessel at
9:30 o'clock in the evening and venture in a completely unfamiliar place merely to recruit five (5) cooks or
handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was
at his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it
to state that alibi is fundamentally and inherently a weak defense, much more so when uncorroborated by
other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and
concoct, and difficult to disprove. Accused-appellant must adduce clear and convincing evidence that, at
about midnight on April 10, 1991, it was physically impossible for him to have been in Calatagan,
Batangas. Changco not only failed to do this, he was likewise unable to prove that he was in his place of
work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest
respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of witnesses
and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284 SCRA 79
[1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it (Article 8,
Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he need
not even take part in every act or need not even know the exact part to be performed by the others in the
execution of the conspiracy. As noted by the trial court, there are times when conspirators are assigned
separate and different tasks which may appear unrelated to one another, but in fact, constitute a whole
and collective effort to achieve a common criminal design.
We affirm the trial court's finding that Emilio Changco, accused- appellants Tulin, Loyola, and Infante,
Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while
accused-appellant Cecilio Changco was to fetch the master and the members of the crew from the
shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide the
crew and the officers of the vessel with money for their fare and food provisions on their way home. These
acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be present at the time of
the attack and seizure of "M/T Tabangao" since he performed his task in view of an objective common to
all other accused- appellants.
Of notable importance is the connection of accused-appellants to one another. Accused-appellant
Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto
Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers away from each other. Their
families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents were
neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a relative of the
Changco brothers by affinity .Besides, Loyola and Emilio Changco had both been accused in a
seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off Cebu and Bohol in
1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that time
remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in
Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential Decree

No. 532 because Republic Act No. 7659 (effective January 1, 1994) which amended Article 122 of the
Revised Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons out that
Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both Article 122 of
the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy committed in
Philippine waters. He maintains that in order to reconcile the two laws, the word "any person" mentioned
in Section 1 [d] of Presidential Decree No. 532 must be omitted such that Presidential Decree No. 532
shall only apply to offenders who are members of the complement or to passengers of the vessel,
whereas Republic Act No. 7659 shall apply to offenders who are neither members of the complement or
passengers of the vessel, hence, excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
Article 122. Piracy in general and mutiny on the high seas. -The penalty of reclusion temporal shall be
inflicted upon any person who, on the high seas, shall attack or seize a vessel or, not being a member of
its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment,
or personal belongings of its complement or passengers.
(Underscoring supplied.)
Article 122, as amended by Republic Act No. 7659 January 1, 1994), reads:
Article 122. Piracy in general and mutiny on the high seas or in Philippine waters. -The penalty of
reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall
attack or seize a vessel or, being a member of its complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers.
(Underscoring ours)
On the other hand, Section 2 of Presidential Decree No. 532 provides:
SEC. 2. Definition of Terms. - The following shall mean and be understood, as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its
cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value
thereof, by means of violence against or intimidation of persons or force upon things, committed by any
person. including a passenger or member of the complement of said vessel in Philippine waters, shall be
considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided
(underscoring supplied).
To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy
must be committed on the high seas by any person not a member of its complement nor a passenger
thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was
widened to include offenses committed "in Philippine waters." On the other hand, under Presidential
Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a
passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or not, a
member of the complement or not, any person is covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential
Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the

coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from
crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree
No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all
countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential
Decree No. 532 exist harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction over the person of accusedappellant Hiong since the crime was committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and
its cargo were committed in Philippine waters, although the captive vessel was later brought by the
pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done
under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532 requires that
the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the
pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be
committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an
exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the
instant case, were charged, not with a violation of qualified piracy under the penal code but under a
special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily, Presidential
Decree No. 532 should be applied with more force here since its purpose is precisely to discourage and
prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled
that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world
(People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's constitutional right to be informed of
the nature and cause of the accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a principal by
direct participation under Section 2 of said law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao"
and its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T
Tabangao" and its cargo; ( c) and that his act was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found that accused-appellant Hiong's participation
was indisputably one which aided or abetted Emilio Changco and his band of pirates in the disposition of
the stolen cargo under Section 4 of Presidential Decree No. 532 which provides:
SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery brigandage.
-Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such
as giving them information about the movement of police or other peace officers of the government, or
acquires or receives property taken by such pirates or brigands or in any manner derives any benefit
therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or
brigandage, shall be considered as an accomplice of the principal officers and be punished in accordance
with Rules prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts provided in this Section has performed
them knowingly, unless the contrary is proven.

The ruling of the trial court is Within well-settle jurisprudence that if there is lack of complete
evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40
SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the crime is
always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs.
Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No 532
which presumes that any person who does any of the acts provided in said section has performed them
knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed to
overcome the legal presumption that he knowingly abetted or aided in the commission of piracy, received
property taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo
by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying
the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the
quality and verified the quantity of the petroleum products, connived with Navi Marine Services personnel
in falsifying the General Declarations and Crew List to ensure that the illegal transfer went through,
undetected by Singapore Port Authorities, and supplied the pirates with food, beer, and other provisions
for their maintenance while in port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was
accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the
execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-appellant
Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered the illegal
activities that took place and this would have resulted in his arrest and prosecution in Singapore.
Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in detail accused-appellant
Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong
with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous
with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the
port authorities, excluding the name of Hiong; that the "General Declaration" (for departure) of the "Navi
Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that the
vessel was scheduled to depart at 2200 (10 o'clock in the evening), that there were no passengers on
board, and the purpose of the voyage was for "cargo operation" and that the vessel was to unload and
transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with' Emilio Changco a. k.
a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity Certificate"
(Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406 gross cubic
meters; that although Hiong was not the Master of the vessel, he affixed his signature on the "Certificate"
above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00 but did not
require any receipt for the amount; that Emilio Changco also did not issue one; and that in the requisite
"General Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening,
(Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear that the "Navi Pride" unloaded
1,700 tons of cargo on the high seas during said voyage when in fact it acquired from the "M/T Galilee"
2,000 metric tons of diesel oil. The second transfer transpired with the same irregularities as discussed
above. It was likewise supervised by accused- appellant Cheong from his end while Emilio Changco
supervised the transfer from his end.
Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that
he has no knowledge of the illegality of the source of the cargo.

First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the
cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a highly
educated mariner, he should have avoided any participation in the cargo transfer given the very
suspicious circumstances under which it was acquired. He failed to show a single piece of deed or bill of
sale or even a purchase order or any contract of sale for the purchase by the firm; he never bothered to
ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did not even verify
the identity of Captain Robert Castillo whom he met for the first time nor did he check the source of the
cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of the night which
a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted with Paul
Gan involving a large sum of money without any receipt issued therefor; he was not even aware if Paul
Gan was a Singaporean national and thus safe to deal with. It should also be noted that the value of the
cargo was P40,426,793.87 or roughly more than US$l,000,000.00 (computed at P30.00 to $1, the
exchange rate at that time). Manifestly, the cargo was sold for less than one-half of its value. Accusedappellant Hiong should have been aware of this irregularity. Nobody in his right mind would go to far away
Singapore, spend much time and money for transportation -only to sell at the aforestated price if it were
legitimate sale involved. This, in addition to the act of falsifying records, clearly shows that accusedappellant Hiong was well aware that the cargo that his firm was acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his
superiors." An individual is justified in performing an act in obedience to an order issued by a superior if
such order, is for some lawful purpose and that the means used by the subordinate to carry out said order
is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's
superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international law. Such
violation was committed on board a Philippine-operated vessel. Moreover, the means used by Hiong in
carrying out said order was equally unlawful. He misled port and immigration authorities, falsified records,
using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented himself, and
the trial court was convinced, that he was an intelligent and articulate Port Captain. These circumstances
show that he must have realized the nature and the implications of the order of Chua Kim Leng Timothy.
Thereafter, he could have refused to follow orders to conclude the deal and to effect the transfer of the
cargo to the Navi Pride. He did not do so, for which reason, he must now suffer the consequences of
his actions.
WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the
Court hereby AFFIRMS the judgment of the trial court in toto.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUFINO MIRANDILLA BERMAS, accusedappellant.

DECISION
VITUG, J.:
In convicting an accused, it is not enough that proof beyond reasonable doubt has been adduced; it
is also essential that the accused has been duly afforded his fundamental rights.
Rufino Mirandilla Bermas pleaded not guilty before the Regional Trial Court of Paraaque, Branch
274, Metro Manila, to the crime of rape under a criminal complaint, which read:
C O M P L A I N T

The undersigned complainant as assisted by her mother accuses Rufino Mirandilla Bermas, of the crime
of Rape, committed as follows:
"That on or about the 3rd day of August 1994, in the Municipality of Paraaque, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, while armed with a knife
and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the undersigned complainant against her will.
CONTRARY TO LAW
Paraaque, Metro Manila
August 8, 1994
(SGD) MANUEL P. BERMAS
Complainant
Assisted by:
(SGD) ROSITA BERMAS
Mother[1]
Evidence was adduced during trial by the parties at the conclusion of which the lower court, presided over
by Hon. Amelita G. Tolentino, rendered its decision, dated 02 May 1995, finding the accused guilty of the
offense charged and sentencing him to suffer the extreme penalty of death.
The death penalty having been imposed, the case has reached this Court by way of automatic
review pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No.
7659 (otherwise known as An Act To Impose Death Penalty on Certain Heinous Crimes, Amending
For That Purpose The Revised Penal Code, as amended, Other Special Penal Laws, and For Other
Purposes, which took effect on 31 December 1993).
The prosecution, through the Office of the Solicitor General, gave an account, rather briefly, of the
evidence submitted by the prosecution.
"On August 3, 1994, complainant Manuela Bermas, 15 years old, was raped by her own father, appellant
Rufino Bermas, while she was lying down on a wooden bed inside their house at Creek Drive II, San
Antonio Valley 8, Paraaque, Metro Manila (pp. 6-7, TSN, Oct. 19, 1994). Armed with a knife, appellant
removed the victim's shorts and panty, placed himself above her, inserted his penis in her vagina and
conducted coital movements (pp. 7-8, ibid.). After the appellant satisfied his lustful desire, he threatened
the victim with death if she reports the incident to anyone. (p. 9, ibid.)
"On August 9, 1994, complainant was medically examined at the NBI, which yielded the following
findings:
"The findings concluded: 1. No evident sign of extragenital physical injuries noted on the body of the
subject at the time of examination; 2. Hymen, intact but distensible and its orifice wide (2.7 cm. In
diameter) as to allow complete penetration by an average sized, adult, Filipino male organ in full erection
without producing any hymenal laceration."[2]
The defense proffered the testimony of the accused, who denied the charge, and that of his married
daughter, Luzviminda Mendez, who attributed the accusation made by her younger sister to a mere

resentment by the latter. The trial court gave a summary of the testimony given by the accused and his
daughter Luzviminda; viz:
The accused vehemently denied that he has ever committed the crime of rape on her daughter, the
complainant. He told the Court that he could not do such a thing because he loves so much his daughter
and his other children. In fact, he said that he even performed the dual role of a father and a mother to
his children since the time of his separation from his wife. The accused further told the Court that in
charging him of the crime of rape, the complainant might have been motivated by ill-will or revenge in
view of the numerous scoldings that she has received from him on account of her frequent coming home
late at night. The accused stressed that he knew of no other reason as to why his daughter, the
complainant, would ever charge him of the crime of rape except probably in retaliation for being
admonished by him whenever she comes home late in the night.
The married daughter of the accused, who testified in his behalf, denied that the complainant was raped
by the accused. She said that the complainant did not come home in the night of August 3, 1994, and
that, she is a liar. She told the Court that the concoction by the complainant of the rape story is probably
due to the resentment by the latter of the frequent scoldings that she has been receiving from the
accused. She further added that she was told by the previous household employer of the complainant
that the latter is a liar. She went on to testify further that she does not believe that the accused, who is
her father, raped the complainant, who is her younger sister. [3]
The trial court, in its decision of 02 May 1995, found the case of the prosecution against the accused
as having been duly established and so ruled out the defense theory of denial and supposed ill-will on the
part of private complainant that allegedly had motivated the filing of the complaint against her father. The
court adjudged:
"WHEREFORE, this Court finds the accused guilty beyond reasonable doubt of the crime of rape and
hereby sentences him to suffer the DEATH PENALTY, to indemnify the complainant in the amount of
P75,000.00, Philippine Currency, and to pay the costs.
"SO ORDERED."[4]
In their 61-page brief, defense counsel Fernandez & Kasilag-Villanueva (in collaboration with the
Anti-Death Penalty Task Force), detailed several errors allegedly committed by the court a quo; thus:
I. THE ACCUSED WAS DEPRIVED OF DUE PROCESS.
A. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE AND VIGILANT
COUNSEL
1. The trial court did not observe the correct selection process in appointing the accused's
counsel de officio;
2. The Public Attorney could not give justice to the accused;
a. Negligent in not moving to quash the information on the ground of illegal arrest;
b. Negligent in not moving to quash the information on the ground of invalid filing of the information;
c. Negligent in not moving for a preliminary investigation;
d. Negligent in not pointing out the unexplained change in the case number;

e. Negligent in not moving to inhibit the judge;

f. Negligent in her conduct at the initial trial.
3. The Vanishing Second Counsel de Officio
a. He was not dedicated nor devoted to the accused;
b. His work was shoddy;
4. The Reluctant Third Counsel de Officio
5. The performance of all three counsels de officio was ineffective and prejudicial to the
accused.
B. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE TRIED BY AN IMPARTIAL
JUDGE AND TO BE PRESUMED INNOCENT.
C. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE HEARD AND FOR
WITNESSES TO TESTIFY IN HIS BEHALF.
D. THE ARRAIGNMENT OF THE ACCUSED WAS INVALID.
E. THE ACCUSED WAS DENIED THE EQUAL PROTECTION OF THE LAW.
II. THE TRIAL COURT DID NOT `SCRUTINIZE WITH EXTREME CAUTION THE PROSECUTION'S
EVIDENCE, MISAPPRECIATED THE FACTS AND THEREFORE ERRED IN FINDING THE ACCUSED
GUILTY OF RAPE BEYOND REASONABLE DOUBT."[5]
The Court, after a painstaking review of the records, finds merit in the appeal enough to warrant a
remand of the case for new trial.
It would appear that on 08 August 1994 Manuela P. Bermas, then 15 years of age, assisted by her
mother Rosita Bermas, executed a sworn statement before SPO1 Dominador Nipas, Jr., of the
Paraaque Police Station, stating, in sum, that she had been raped by accused Rufino Mirandilla Bermas,
her own father, in 1991 and 1993, as well as on 03 August 1994, particularly the subject matter of the
complaint, hereinbefore quoted, duly signed and filed conformably with Section 7, Rule 112, of the Rules
of Court. The Second Assistant Prosecutor, issued a certification to the effect that the accused had
waived his right to a preliminary investigation.
On the day scheduled for his arraignment on 03 October 1994, the accused was brought before the
trial court without counsel. The court thereupon assigned Atty. Rosa Elmira C. Villamin of the Public
Attorney's Office to be the counsel de officio. Accused forthwith pleaded not guilty. The pre-trial was
waived.
The initial reception of evidence was held on 19 October 1994. The prosecution placed complainant
Manuela Bermas at the witness stand. She testified on direct examination with hardly any participation by
defense counsel who, inexplicably, later waived the cross-examination and then asked the court to be
relieved of her duty as counsel de officio.
"ATTY. VILLARIN:
And I am requesting if this Honorable Court would allow me and my paero besides me, would accede
to my request that I be relieved as counsel de officio because I could not also give justice to the
accused because as a lady lawyer . . . if my paero here and if this Honorable Court will accede
to my request.

"COURT:
It is your sworn duty to defend the helpless and the defenseless. That is your sworn duty, Mrs.
Counsel de Officio. Are you retracting?
"ATTY. VILLARIN:
That is why I am asking this Honorable Court."[6]
Counsel's request was granted, and Atty. Roberto Gomez was appointed the new counsel de
officio. While Atty. Gomez was ultimately allowed to cross-examine the complainant, it should be quite
evident, however, that he barely had time, to prepare therefor. On this score, defense counsel Fernandez
& Kasilag-Villanueva in the instant appeal would later point out:
To substitute for her, the Public Attorney recommended Atty. Roberto Gomez to be appointed as defense
counsel de oficio. And so the trial court appointed him.
Atty. Gomez asked for a ten minute recess before he began his cross examination, presumably to
prepare. But a ten minute preparation to cross examine the complainant upon whose testimony largely
rests the verdict on the accused who stands to be meted the death penalty if found guilty, is far too
inadequate. He could not possibly have familiarized himself with the records and surrounding
circumstances of the case, read the complaint, the statement of the complainant, the medico-legal report,
memos of the police, transcripts and other relevant documents and confer with the accused and his
witnesses, all in ten minutes.[7]
The prosecution abruptly rested its case after the medico-legal officer had testified.
The reception of the defense evidence was scheduled for 12 December 1994; it was later reset to 09
January 1995. When the case was called on 09 January 1995, the following transpired:
COURT:
Where is the counsel for the accused?
COURT:
Did he file his withdrawal in this case? It is supposed to be the turn of the defense to present its
evidence.
PROSECUTOR GARCIA:
Yes, Your Honor. The prosecution had already rested its case.
COURT:
Last time he asked for the continuance of this case and considering that the accused is under
detention ... it seems he cannot comply with his obligation.
COURT:
(To the accused) Nasaan ang abogado mo?
ACCUSED R. BERMAS:
Wala po.
COURT:
It is already the turn of the defense to present its evidence in this case. In view of the fact that the
defense counsel is not interested anymore in defending the accused because last time he moved
for the continuance of the hearing of this case and since this time he did not appear, he is unduly
delaying the proceedings of this case and considering the accused here is under detention, I think

it would be better if the Court appoints another lawyer. He should file his withdrawal if he is not
interested anymore.
In view of the fact that the counsel de officio has repeatedly failed to appear in this Court to
defend his client-accused, the Court is hereby constrained to appoint another counsel de officio to
handle the defense of the accused. For this purpose, Atty. Nicanor Lonzame is hereby appointed
as the counsel de officio for accused Rufino Mirandilla Bermas.[8]
The hearing scheduled for that day was reset to 16 January 1995 upon the request of Atty. Lonzame. On
even date, Atty. Lonzame himself asked to be relieved as counsel de officio but later, albeit reluctantly,
retracted; thus:
COURT:
Where is the accused? Where is the counsel de officio?
ATTY. NICANOR LONZAME:
As counsel de officio, Your Honor. The lawyer from the PAO is here, may I be allowed to give her
my responsibility as counsel de officio considering that the lawyer from the PAO ...
COURT:
What about?
ATTY. LONZAME:
I was appointed because the PAO lawyer was not around. If the Court will allow us to be relieved
from our responsibility as appointed counsel de officio of the accused ...
COURT:
You want to be relieved of your responsibility as appointed counsel de officio? As an officer of the
Court you don't want to handle the defense of the accused in this case?
ATTY. LONZAME:
I will be withdrawing my previous manifestation that I be relieved of my responsibility as counsel
de officio.
COURT:
So, therefore, counsel, are you now ready?
ATTY. LONZAME:
Yes, Your Honor.[9]
Trial proceeded with the accused being the first to be put at the witness stand. He denied the accusation
against him. The next witness to be presented was his married daughter who corroborated her fathers
claim of innocence.
The defense counsel in the instant appeal took over from Atty. Lonzame who himself, for one reason
or another, had ceased to appear for and in behalf of accused-appellant.
This Court finds and must hold, most regrettably, that accused-appellant has not properly and
effectively been accorded the right to counsel. So important is the right to counsel that it has been
enshrined in our fundamental law and its precursor laws. Indeed, even prior to the advent of the 1935
Constitution, the right to counsel of an accused has already been recognized under General Order No.
58, dated 23 April 1900, stating that a defendant in all criminal prosecutions is entitled to counsel at every
stage of the proceedings,[10] and that if he is unable to employ counsel, the court must assign one to
defend him.[11] The 1935 Constitution has no less been expressive in declaring, in Article III, Section 17,
thereof, that -

(17)
In all criminal prosecutions, the accused shall be presumed to be innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses in his behalf.
Except for a proviso allowing trial in absentia, the right to counsel under the 1973 Constitution, essentially,
has remained unchanged. Under the 1987 Constitution, a worthwhile innovation that has been introduced
is the provision from which prevailing jurisprudence on the availability of the right to counsel as early as
the stage of custodial interrogation can be deemed to be predicated. The rule, found in Sections 12 and
14, Article III, of the 1987 Constitution, states Sec. 12. (1)
Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.
x x x
Sec. 14. x x x

xxx
xxx

xxx

xxx

(2)
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance of witnesses and the production
of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is unjustifiable.
The constitutional mandate is reflected in the 1985 Rules of Criminal Procedures which declares in
Section 1, Rule 115, thereof, that it is a right of the accused at the trial to be present in person and by
counsel at every stage of the proceedings from the arraignment to the promulgation of the judgment.
The presence and participation of counsel in the defense of an accused in criminal proceedings
should never be taken lightly.[12] Chief Justice Moran in People vs. Holgado,[13]explained:
"In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no skill in the science of the law,
particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty
but because he does not know how to establish his innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is
deemed so important that it has become a constitutional right and it so implemented that under our rules
of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but it is essential that the court should
assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an
attorney of his own."[14]
In William vs. Kaiser,[15] the United States Supreme Court, through the late Justice Douglas, has
rightly observed that the accused needs the aid of counsel lest he be the victim of overzealous
prosecutors, of the laws complexity or of his own ignorance or bewilderment. An accused must be given
the right to be represented by counsel for, unless so represented, there is great danger that any defense
presented in his behalf will be as inadequate considering the legal perquisites and skills needed in the
court proceedings.[16] The right to counsel proceeds from the fundamental principle of due process which
basically means that a person must be heard before being condemned. The due process requirement is

a part of a persons basic rights; it is not a mere formality that may be dispensed with or performed
perfunctorily.
The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who commits himself to the cause for the defense and
acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly
at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being wellversed on the case, and his knowing the fundamental procedures, essential laws and existing
jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his
sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and
not a simple perfunctory representation.[17]
It is never enough that accused be simply informed of his right to counsel; he should also be asked
whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice if
he so desires or that one can be provided to him at his request. [18] Section 7, Rule 116, of the Rules of
Criminal Procedure provides:
Sec. 7. Appointment of counsel de oficio. - The court, considering the gravity of the offense and the
difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar
in good standing who, by reason of their experience and ability may adequately defend the accused. But
in localities where such members of the bar are not available, the court may appoint any person, resident
of the province and of good repute for probity and ability, to defend the accused.
A counsel de oficio is expected to do his utmost.[19] A mere pro-forma appointment of de oficiocounsel who
fails to genuinely protect the interests of the accused merits disapprobation. [20] The exacting demands
expected of a lawyer should be no less than stringent when one is a counselde officio. He must take the
case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to
be excused from this responsibility except only for the most compelling and cogent reasons. [21]
Just weeks ago, in People vs. Sevilleno, G.R. No. 129058, promulgated on 29 March 1999, this
Court has said:
We cannot right finis to this discussion without making known our displeasure over the manner by which
the PAO lawyers dispensed with their duties. All three (3) of them displayed manifest disinterest on the
plight of their client.
x x x

xxx

xxx

Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost
dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his
negligence in this regard renders him administratively liable. Obviously, in the instant case, the
aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the
accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and
prejudice of the accused Sevilleno, however guilty he might have been found to be after trial. Inevitably,
this Court must advise Attys. Agravante, Pabalinas and Saldavia to adhere closely and faithfully to the
tenets espoused in the Code of Professional Responsibility; otherwise, commission of any similar act in
the future will be severely sanctioned.
The Court sees no other choice than to direct the remand of the case to the court a quo for new trial.
WHEREFORE, let this case be REMANDED to the court a quo for trial on the basis of the complaint,
aforequoted, under which he was arraigned. Atty. Ricardo A. Fernandez, Jr. of the Anti-Death Penalty
Task Force is hereby appointed counsel de officio for the appellant.

Attys. Rosa Elmina Villamin of the Public Attorney's Office, Paraaque, Roberto Gomez and Nicanor
Lonzame are hereby ADMONISHED for having fallen much too short of their responsibility as officers of
the court and as members of the Bar and are warned that any similar infraction shall be dealt with most
severely.
SO ORDERED.

PEOPLE v FRANCISCO JUAN LARRAAGA alias "PACO"; JOSMAN AZNAR; ROWEN ADLAWAN alias
"WESLEY"; ALBERTO CAO alias "ALLAN PAHAK"; ARIEL BALANSAG, DAVIDSON VALIENTE RUSIA
alias "TISOY TAGALOG"; JAMES ANTHONY UY alias "WANGWANG"; and JAMES ANDREW UY alias
"MM",
RESOLUTION

PER CURIAM:

At bar are four (4) motions for reconsideration separately filed by appellants (1)Francisco Juan
Larraaga, (2) Josman Aznar, (3) Rowen Adlawan, Alberto Cao and Ariel Balansag, and (4) James
Anthony Uy and James Andrew Uy, assailing our Decision dated February 3, 2004 convicting them of the
crimes of (a) special complex crime of kidnapping and serious illegal detention and (b) simple kidnapping
and serious illegal detention, the dispositive portion of which reads:
WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in
Criminal
Cases
Nos.
CBU-45303
and
45304
is AFFIRMED with
the
following MODIFICATIONS:
(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN
LARRAAGA alias
PACO; JOSMAN
AZNAR; ROWEN
ADLAWAN alias
WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; andJAMES
ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special
complex crime of kidnapping and serious illegal detention with homicide and rape and
are sentenced to suffer the penalty of DEATH by lethal injection;
(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN
LARRAAGA alias
PACO; JOSMAN
AZNAR; ROWEN
ADLAWAN alias
WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; andJAMES
ANDREW UY alias MM, are found guilty beyond reasonable doubt of the crime of simple
kidnapping and serious illegal detention and are sentenced to suffer the penalty
of RECLUSION PERPETUA;
(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY,who was
a minor at the time the crime was committed, is likewise found guilty beyond reasonable
doubt of the special complex crime of kidnapping and serious illegal detention with
homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping
and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years

of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years

of reclusion temporal in its medium period, as MAXIMUM;
(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and
Jacqueline, in each case, the amounts
of (a) P100,000.00 as civil
indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral damages,
and
(d) P100,000.00 as exemplary damages.
Three (3) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to
the ruling of the majority that the law is constitutional and the death penalty can be
lawfully imposed in the case at bar.
In accordance with Article 83 of The Revised Penal Code, as amended by
Section 25 of RA No. 7659, upon the finality of this Decision, let the records of this case
be forthwith forwarded to the Office of the President for the possible exercise of Her
Excellencys pardoning power.
SO ORDERED.
Appellants anchor their motions on the following grounds:
A.

LARRAAGA
I

THE COURT A QUO ERRED IN BARRING LARRAAGA AND THE

NATIONAL BUREAU OF INVESTIGATION (NBI) REGIONAL
DIRECTOR FLORENCIO VILLARIN FROM TESTIFYING;
II
THE POLICE PLANTED EVIDENCE ON APPELLANTS;
III
LARRAAGA SUFFICIENTLY PROVED HIS ALIBI;
IV
THE TRIAL COURT PREVENTED THE INTRODUCTION OF KEY
DEFENSE EVIDENCE;
V
THE CORPSE FOUND IN THE RAVINE WAS NOT THAT OF MARIJOY;
AND

VI

PROSECUTION WITNESS RUSIA WAS A COACHED WITNESS.[1]

B.

AZNAR
I

THE HONORABLE COURT ERRED IN FINDING THAT THE TRIAL

COURT DID NOT VIOLATE THE RIGHTS OF THE ACCUSED TO DUE
PROCESS OF LAW.
II
THE HONORABLE COURT ERRED IN
(A)DISCHARGING
DAVID RUSSIA AS STATE WITNESS; AND (B)CONVICTING THE
APPELLANTS MAINLY ON THE BASIS OF THE TESTIMONY OF
RUSIA.
III
THE HONORABLE COURT ERRED IN REJECTING THE DEFENSE OF
APPELLANT AZNAR.
IV
THE HONORABLE COURT ERRED IN IMPOSING THE DEATH
PENALTY ON THE APPELLANTS.[2]

C.

ADLAWAN, BALANSAG, CAO

I

PROSECUTION WITNESS RUSIA IS NOT QUALIFIED TO BE A STATE

WITNESS UNDER PARAGRAPHS (D) AND (E), SECTION 17 OF THE
REVISED RULES OF CRIMINAL PROCEDURE.

II
RUSIAS TESTIMONY AND THAT OF THE OTHER PROSECUTION
WITNESSES WERE INCREDIBLE, INCONSISTENT, AND UNWORTHY
OF BELIEF.
III
BIAS AND PREJUDICE AGAINST THE DEFENSE WERE GLARINGLY
DISPLAYED BY THE COURT A QUO WHICH GREATLY AFFECTED
THE OUTCOME OF THE CASE.
IV

THE GUILT OF THE ACCUSED-APPELLANTS FOR THE CRIME

CHARGED HAS NOT BEEN PROVEN BEYOND REASONABLE
DOUBT.[3]
D.

JAMES ANDREW AND JAMES ANTHONY UY

I

ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER

BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE
OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997;
II
THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN
TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER
CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS
EXHUMATION FOR DNA TESTING;[4]
In his supplemental motion for reconsideration dated
March 25, 2004, Larraaga
submitted a separate study of Dr. Racquel Del Rosario-Fortun, Forensic Pathologist, to show that the
examination conducted by the prosecution expert witnesses on the body found in
Tan-awan, Carcar is
inadequate.
In a similar supplemental motion for reconsideration [5], Aznar submitted to this Court the Affidavit
dated February 27, 2004 of
Atty. Florencio Villarin, Regional Director of the National Bureau of
Investigation, Central Visayas, to show that: (1) the police investigation of this case was flawed; (2) he
(Aznar) was arrested in 1997 not because of his involvement in this case but because he had in his
possession a pack of shabu and firearms; and (3) David Rusia is not a credible witness.
On July 15, 2004, the Solicitor General filed a consolidated comment [6] praying that the four (4)
motions for reconsideration be denied with finality, there being no new argument raised. He responded
to appellants assignments of errors by exhaustively quoting portions of our challenged Decision.
In his consolidated comment[7] to Aznars supplemental motion for reconsideration, the Solicitor
General enumerated the grounds why Atty. Villarins Affidavit should not be given consideration. On
February 15, 2005, Aznar filed a reply alleging that the Solicitor General read out of context certain
portions of the Affidavit. He argued that the

Affidavit only exposes the flawed investigation of the Chiong case and that, at the time of his arrest, there
was no evidence against him. On March 4, 2005, the Solicitor General filed a rejoinder stating that
Aznars reply actually supports the undersigned counsels (Solicitor Generals) position that Atty. Villarins
Affidavit is utterly inadequate to prove his innocence or at least even acquit them on reasonable doubt,
thus, it would be useless to call for new trial on the basis of such Affidavit. On March 29, 2005, Aznar
filed a sur-rejoinder insisting that the Affidavit should be given due consideration.
Except for the motion filed by appellants Uy brothers with respect to James Andrews alleged
minority, we find all the motions bereft of merit.
At the inception, let it be emphasized that the filing of a motion for reconsideration does not
impose on us the obligation to discuss and rule again on the grounds relied upon by the movant which are
mere reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision
being questioned. In Ortigas and Company Limited Partnership vs. Velasco, [8] we ruled that, "this would
be a useless formality of ritual invariably involving merely a reiteration of the reasons already set forth in
the judgment or final order for rejecting the arguments advanced by the movant."
The foregoing principle applies squarely to the motions filed by appellants Larraaga, Aznar,
Adlawan, Cao and Balansag, it being apparent that the points raised therein are not neoteric matters
demanding new judicial determination. They are mere rehash of the arguments set forth in their
respective briefs which we already considered, weighed and resolved before we rendered the Decision
sought to be reconsidered.
However, in view of the severity of the penalties for the crimes charged, we deem it necessary to
stress once more our basis in convicting appellants.
The following is a prcis of the issues submitted by appellants in their motions:
This Court erred
first, in according credence to Rusias testimony;
second, in rejecting appellants alibi;
third, in holding that the trial court did not violate their right
excluded the testimony of other defense witnesses; and

to due process when it

fourth, in holding that the body found in Tan-awan, Carcar was not that of Marijoy.
In deciding a criminal case, the policy of the courts is always to look at the case in its entirety.
The totality of the evidence presented by both the prosecution and the defense are weighed, thus,
averting general conclusions from isolated pieces of evidence. This means that an appeal of a criminal
case opens its entire records for review.[9]
I
Appellants vigorously contend that we should not have sustained Rusias testimony hook, line
and sinker, owing to his tainted record and reputation. However, it must be stressed that Rusias
testimony was not viewed in isolation. In giving credence to Rusias testimony, the trial court took into
consideration the physical evidence and the corroborative testimonies of other witnesses. Thus, we
find no reason why we should not uphold the trial courts findings.

We reiterate our pronouncement in our Decision that what makes Rusias testimony worthy of
belief is its striking compatibility with the physical evidence. Physical evidence is one of the highest
degrees of proof. It speaks more eloquently than all witnesses put together.[10] The presence of
Marijoys ravished body in a deep ravine at Tan-awan, Carcar with tape on her mouth and
handcuffs on her wrists certainly bolstered Rusias testimony on what actually took place from
Ayala Center to Tan-awan. Indeed, the details he supplied to the trial court are of such nature and
quality that only a witness who actually saw the commission of the crimes could furnish. Reinforcing his
testimony is its corroboration by several other witnesses who saw incidents of what he narrated.
Rolando Dacillo and Mario Minoza witnessed Jacquelines two failed attempts to escape from
appellants near Ayala Center. Benjamin Molina and Miguel Vergara recognized Rowen as the person
who inquired from them where he could find a vehicle for hire on the evening of July 16, 1997. Alfredo
Duarte saw Rowen when he bought barbeque and Tanduay at Nenes Store while the white van, driven
by Cao, was waiting on the side of the road and he heard voices of quarreling male and female
emanating from the van. And lastly, Manuel Camingao and Rosendo Rio testified on the presence of
Larraaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997. All these bits and pieces of story
form part of Rusias narration. Now, with such strong anchorage on the physical evidence and the
testimonies of disinterested witnesses, why should we not accord credence to Rusias testimony? Even
assuming that his testimony standing alone might indeed be unworthy of belief in view of his character, it
is not so when considered with the other evidence presented by the prosecution.

II
Appellants likewise claimed that we should have not sustained the trial courts rejection of
their alibi. Settled is the rule that the defense of alibi is inherently weak and crumbles in the light of
positive declarations of truthful witnesses who testified on affirmative matters. [11] Being evidence that is
negative in nature and self-serving, it cannot attain more credibility than the testimonies of prosecution
witnesses who testify on clear and positive evidence. [12] On top of its inherent weakness, alibi becomes
less plausible as a defense when it is corroborated only by relatives or close friends of the accused. [13]
This case presents to us a balance scale whereby perched on one end is
appellantsalibi supported by witnesses who were either their relatives, friends or classmates, while on the
other end is the positive identification of the herein appellants by the prosecution witnesses who were not,
in any way, related to the victims. With the above jurisprudence as guide, we are certain that the
balance must tilt in favor of the latter.
Besides, a thorough examination of the evidence for the prosecution shows that the appellants
failed to meet the requirements of alibi, i.e., the requirements of time and place. [14] They failed to
establish by clear and convincing evidence that it was physically impossible for them to be at the Ayala
Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that
Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City
on July 16, 1997.
Not even Larraaga who claimed to be in Quezon City satisfied the required proof of physical
impossibility. During the hearing, it was shown that it takes only one (1) hour to travel by plane from
Manila to Cebu and that there are four (4) airline companies plying the route. One of the defense
witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and
evening. Indeed, Larraagas presence in Cebu City on July 16, 1997 was proved to be not only a
possibility but a reality. Four (4) witnesses identified Larraaga as one of the two men talking to
Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at
around 7:20 in the evening, she saw Larraaga approach Marijoy and Jacqueline at the West Entry
of Ayala Center. The incident reminded her of Jacquelines prior story that he was Marijoys admirer.

Shiela confirmed that she knows Larraaga since she had seen him on five (5) occasions. Analie
Konahap also testified that on the same evening of July 16, 1997, at about 8:00 oclock, she saw
Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized
the two (2) men as Larraaga and Josman, having seen them several times at Glicos, a game zone,
located across her office at the third level of Ayala Center. Williard Redobles, the security guard then
assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In
addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga at Tanawan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white
van.[15] And over and above all, Rusia categorically identified Larraaga as one of the participes criminis.
Taking the individual testimonies of the above witnesses in relation with that of Rusia, we are
convinced that Larraaga was indeed in Cebu City at the time of the commission of the crimes and was
one of the principal perpetrators thereof.
At this juncture, it bears mentioning that this case is not the first time thatLarraaga was charged
with or complained of pruriently assaulting young female students in Cebu. Months before the abduction
of Marijoy and Jackie, the parents of a certain Rochelle Virtucio, complained about Larraagas attempt to
snatch their young daughter and drag her in a black, stylish Honda Civic. It happened just near the gate
of Rochelles school, thus, showing his impudence. We quote a portion of the transcript of stenographic
notes dated September 23, 1998, thus:
ATTY. HERMOSISIMA:
Your Honor please, this is a . Inspector Era handed to this representation
a copy of a Letter dated September 25, 1996, addressed to the Student Affairs Office,
University of San Carlos,P. del Rosario Street, Cebu City, and this is signed by Leo
Abayan and Alexander Virtucio and noted by Mrs. Aurora Pacho,
Principal, University of San Carlos, Girls High School, and for the record, I will read
the content:
TO WHOM THIS MAY CONCERN:
We the parents and guardians of Rochelle Virtucio, a first
year high school student of your University of San Carlos-Girls
High School, are writing your good office about an untoward
incident involving our daughter and another student of your school.
x x x

x x

That last Monday at around 5:00 PM, Rochelle and other

classmates, Michelle Amadar and Keizaneth Mondejar, while on
their way to get a ride home near the school campus, a black Honda
Civic with five young male teenagers including the driver, suddenly
stopped beside them, and simultaneously one of them, which was
later identified as FRANCISCO JUAN LARRANAGA, a BSHRM I
student of your school, grabbed Rochelle by her hand to try to get
Rochelle to their vehicle. She resisted and got away from him.
Sensing some people were watching what they were doing, they
hurriedly sped away.
We are very concerned about Rochelles safety. Still now,
she is suffering the shock and tension that she is not supposed to

experience in her young life. It is very hard for us parents to think

about what shed been through.[16]
The presence of such complaint in the record of this case certainly does not enhanceLarraagas
chance of securing an acquittal.

III

Larraaga and Aznar bewail our refusal to overturn the trial courts exclusion of Professor Jerome
Bailen and Atty. Florencio Villarin, NBI, Regional Director, as defense witnesses. Professor Bailen was
properly excluded. First, he is not a finger-print expert but an archaeologist. And second, his report
consists merely of the results of his visual inspection of the exhibits already several months old. Anent
Atty. Villarins failure to testify before the trial court, suffice it to say that his belated Affidavit, which Aznar
submitted via his supplemental motion for reconsideration dated May 5, 2004, raises nothing to change
our findings and conclusions. What clearly appears in said Affidavit is a man trying to impress people
that he was the one responsible for solving the Chiong case and for that, he deserves a promotion. The
trial court, at the onset, must have seen such immateriality in his intended testimony. Indeed, we agree
with the Solicitor Generals observation that such Affidavit is neither helpful nor encouraging to Aznars
cause. We quote his keen reflection on the matter:
x

Third. Atty. Villarins affidavit, in paragraphs 19 and 20 thereof,

acknowledged that the body found in the Carcar ravine was that of Marijoy. This
assertion immediately conflicts with accused-appellant Aznars claim in his
Motion for Reconsideration that the corpse was not Marijoys. Surely, something
is amiss in accused-appellant Aznars recollection of his defense.
Fourth. Atty. Villarin confirmed in paragraph 24 of his affidavit that accusedappellant Francisco Larranaga was a suspect in the subject crimes. Evidently,
this statement completely supports this Honorable Courts findings in its Decision
dated February 3, 2004.
Fifth. In paragraph 30 of Atty. Villarins affidavit, he stated that: The arrest of
Juzman Aznar was the major breakthrough in the investigation of the case
because witnesses came out and identified Juzman Aznar as one of those
allegedly seen talking to the victims on the night they disappeared. Hence,
accused-appellant Aznar was in the beginning already a first-grade suspect in the
Chiong sisters celebrated abduction and killing.
Sixth. Atty. Villarin admitted in paragraph 36 of his affidavit that: x x x I did
not take this against [Supt. Labra] for preempting our next move to get
Juzman Aznar as we were already placing him under surveillance because I
knew [Supt. Labra] did it in his honest desire to help solve the crime x x
x. Clearly, this statement is not an indictment of the investigation that the police
undertook in the subject crimes.
Seventh. Paragraphs 37 to 40 are nothing but personal tirades against
alleged influence peddling by Mrs. Thelma Chiong, mother of the victims, and the

purportedly undue promotions of the lawyers and police officers who unearthed
the evidence against accused-appellants and successfully prosecuted the
latter. In executing the affidavit, it appears that Atty. Villarin would want to
impress that he, rather than those promoted, deserved the promotion.
Eighth. Atty. Villarins inability to testify in the criminal cases was not due
solely to the prosecutions action. Whether he ought to testify or not was an
argument openly discussed in court. Hence, for the resulting inability, Atty. Villarin
has no one to blame but the defense lawyers who did everything to make a
mockery of the criminal proceedings.
And lastly, there is nothing in Atty. Villarins affidavit of the quality of a
smoking gun that would acquit accused-appellants of the crimes they have
been convicted. For he did not finish the police investigation of the subject
crimes; this is the long and short of his miniscule role in the instant case.Indeed,
judging by the substance of his affidavit, he would not be testifying in case
a new trial is held on anything that has not been said and rejected
heretofore, except his own unsubstantiated opinions (i.e. not facts as
required by evidentiary rules), his self-congratulatory remarks, and his
unmitigated frustration over failing to get a promotion when almost
everyone else did.[17]
Neither can we entertain at this late stage Dr. Fortuns separate study to show that the
examination conducted on the body found in
Tan-awan, Carcar is inadequate. Such study cannot be
classified as newly-discovered evidence warranting belated reception. Obviously, Larraaga could have
produced it during trial had he wished to.
IV
Knowing that the prosecutions theory highly rests on the truth of Rusia testimony, appellants
endeavor to destroy it by claiming that the body found at the foot of a deep ravine in Tan-awan, Carcar
was not that of Marijoy. We must reiterate the reasons why we cannot give our assent to such
argument. First, Inspector Edgardo Lenizo,[18] a fingerprint expert, testified that the fingerprints of the
corpse match those of Marijoy.[19] Second, the packaging tape and the handcuff found on the dead body
were the same items placed on Marijoy and Jacqueline while they were being detained. [20] Third, the
body had the same clothes worn by Marijoy on the day she was abducted. [21] And fourth, the members of
the Chiong family personally identified the corpse to be that of Marijoy [22] which they eventually buried.
They erected commemorative markers at the ravine, cemetery and every place which mattered to
Marijoy. As a matter of fact, at this very moment, appellants still fail to bring to the attention of this
Court any person laying a claim on the said body. Surely, if the body was not that of Marijoy, other
families who had lost someone of similar age and gender as Marijoy would have surfaced and claimed
the body. The above circumstances only bolster Rusias narration that Rowen and Ariel pushed Marijoy
into the deep ravine, following Josmans instruction "to get rid" of her.
On the issue raised by appellants Uy brothers that James Andrew was only seventeen (17) years
and two hundred sixty two (262) days old at the time the crimes were committed, the records bear that on
March 1, 1999, James Andrews birth certificate was submitted to the trial court as part of the Formal
Offer of Additional Evidence,[23]with the statement
that he was eighteen (18) years old. On March
18, 1999, appellants filed
a Manifestation of Erratum correcting in part the Formal Offer of Additional
Evidence by alleging that James Andrew was only seventeen (17) years old. [24]
Now, James Andrew begs leave and prays that this Court admits at this stage of the proceedings
his (1) Certificate of Live Birth issued by the National Statistics Office, and(2) Baptismal Certificate. He
prays that his penalty be reduced, as in the case of his brother James Anthony.

The entry of James Andrews birth in the Birth Certificate is not legible, thus it is extremely difficult
for us to determine the veracity of his claim. However, considering that minority is a significant factor in
the imposition of penalty, we find it proper to require the Solicitor General (a) to secure from the Local
Civil Registrar of Cotobato City, as well as the National Statistics Office, a clear and legible copy of James
Andrews Birth Certificate, and thereafter, (b) to file an extensive comment on the motion for
reconsideration filed by James Andrew and James Anthony Uy, solely on James Andrews claim of
minority.
Insofar as James Anthony is concerned, we maintain his conviction and penalty, there being
nothing in his motion which warrants a reconsideration of our Decision.
In resolving the instant motions, we have embarked on this painstaking task of evaluating every
piece and specie of evidence presented before the trial court in response to appellants plea for the
reversal of their conviction. But, even the element of reasonable doubt so seriously sought by appellants
is an ignis fatuus which has eluded any intelligent ratiocination of their submissions. Verily, our
conscience can rest easy on our affirmance of the verdict of the trial court, in light of appellants clear
culpability which demands retribution.
WHEREFORE, the motions for reconsideration filed by appellants Francisco Juan Larraaga,
Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag are herebyDENIED. The Solicitor
General is DIRECTED (a) to secure from the Local Civil Registrar of Cotobato City, as well as the
National Statistics Office, a clear and legible copy of James Andrews Birth Certificate, and (b) within ten
(10) days therefrom, to file an extensivecomment on the motion for reconsideration filed by James
Andrew and James Anthony Uy, solely on James Andrews claim of minority. The motion is
likewise DENIEDinsofar as James Anthony Uy is concerned.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO RIVERA,accused- appellant.
DECISION
MENDOZA, J.:
This is a review pursuant to Rule 122, 10 of the Rules of Criminal Procedure of the decision,
dated June 22, 1999, of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accusedappellant Rolando Rivera guilty of rape and sentencing him to suffer the penalty of death and to pay the
offended party, Erlanie Rivera, the sum of P75,000.00 as compensatory damages and P50,000.00 as
moral damages.
[1]

The information against accused-appellant charged

That sometime in the month of March 1997, in barangay Santiago, municipality of Lubao, province of
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
ROLANDO RIVERA, by means of violence, threat and intimidation, did then and there willfully, unlawfully
and feloniously, and maliciously succeeded in having carnal knowledge [of] his 13 year old daughter,
Erlanie D. Rivera, against the latters will and without her consent.
Contrary to law.[2]
When the information was read to him in the local dialect (Pampango) during his arraignment on
September 30, 1997, accused-appellant, duly assisted by counsel de oficio, pleaded not guilty to the
crime charged,[3] whereupon trial was held.
The prosecution presented as its witnesses complainant Erlanie Rivera, her aunt, Marietta
Pagtalunan, and Dr. Demetria Barin, who conducted the physical examination of complainant.

Complainant Erlanie Rivera testified that sometime in March 1997, her younger sister, Zaira, [4] was
taken by their parents to the Escolastica Romero Memorial Hospital in Lubao, Pampanga. Complainants
mother stayed with her sister in the hospital, but her father, herein accused-appellant, went back home to
Santiago, Lubao, Pampanga. At around 11 oclock in the evening of the same day, complainant was
awakened as accused-appellant started kissing her and fondling her breasts. Complainant tried to resist
by kicking and pushing accused-appellant, but her efforts were to no avail. Accused-appellant removed
her shorts and panty, touched her private parts, and then had sexual intercourse with her. After he was
through with her, accused-appellant told complainant not to tell anyone what had happened or he would
kill complainants mother and sister. Hence, when her mother came home the following day, Erlanie did
not tell her what had happened because she was afraid of accused-appellant.
On April 9, 1997, however, Erlanie, in the presence of her mother, told her aunt, Marietta Pagtalunan,
and her grandmother, Maxima Payumo, that she had been raped by accused-appellant. For this reason,
she was referred to Dr. Barin for physical examination. She also executed a sworn statement before the
police of Lubao, Pampanga.[5]
Erlanie testified that she became pregnant as a result of the rape committed against her by accusedappellant, but the pregnancy was aborted. [6] On cross-examination, she said she was 13 years old at the
time of her testimony, the second child in the family. She said that her parents were not on good terms
with each other and that she knew that her father had a mistress. Atty. Mangalindan, then defense
counsel, questioned Erlanie about other supposed acts of molestation committed by accused-appellant
against her previous to the rape subject of the present case, but, upon objection of the prosecution, the
trial court disallowed the question on the ground that it concerned matters not covered by her direct
examination.[7]
Erlanie testified that her mother, grandmother, aunt, and a certain Nora Baluyut were present when
she made her sworn statement before the police. She said that her father raped her only once, sometime
in March 1997. She could not remember the exact date when she was raped by accused-appellant, but
she did remember that the same took place in March as her sister, Zaira, was hospitalized at the
time. When the rape occurred, her younger brother and sister were in their house asleep. She did not tell
her mother after the latter had returned home that she had been raped by accused-appellant because she
was afraid of her father who had threatened her. After the rape, accused-appellant would only come
home on Sundays.[8]
Questioned further on cross-examination, Erlanie said that she gave her sworn statement before the
police and that her answers to questions asked during her direct examination were freely given without
coaching by anyone. She could understand Tagalog, the language used in her sworn statement. She
told the court that she struggled against accused-appellant, kicking and pushing him, but she was
overpowered by her father. At that time, Erlanies younger sister, Corazon, was lying beside her, but
Erlanie did not shout even when her father succeeded in penetrating her. Erlanie could not remember
how long the sexual act took place, but she felt something like urine come out of her fathers penis after
he was finished with her. Erlanie testified that she was 12 years old when she was raped by her father.[9]
On re-direct examination, when asked about the discrepancy between her testimony that her mother
returned home only the day after the rape and her statement in her affidavit that accused-appellant slept
beside her mother after the rape, Erlanie replied that she made a mistake as the incident narrated in her
affidavit referred to a different occasion when no rape was committed against her by accused-appellant. [10]
The next witness for the prosecution was Marietta Pagtalunan, complainants aunt and the sister of
complainants mother, Evangeline. Marietta corroborated Erlanies testimony that the latter told her
sometime in April 1997 that she had been raped by accused-appellant. Marietta said she took
complainant to Dr. Barin, who examined complainant. [11]
Dr. Demetria Barin was Chief Physician of the Escolastica Romero District Hospital. Her findings are
as follows:
P.E. FINDINGS:

- No signs of external Physical Injuries

I.E. FINDINGS:
HYMEN - healed laceration at 3:00 oclock
VAGINA - Admits one finger with ease two fingers with difficulty
UTERUS - not enlarged
LMP - March 3, 1997
Pregnancy Test (+)[12]
Dr. Barin testified that on April 10, 1997, she examined complainant Erlanie Rivera and found that
the victim had an injury in the hymen at the 3 oclock position which could possibly have been caused by
the insertion of a hard object, such as a male organ. Dr. Barin testified that complainant Erlanie went
back to see her on May 2, 1997 because she suffered from vaginal bleeding indicative of a threatened
abortion. She said that she found that complainant was then pregnant. Upon examination of the patient
at that time, Dr. Barin found that abortion had not yet taken place and prescribed medicines for the
complainant. Erlanie was subjected to another pregnancy test on May 13, 1997, but the result was
negative. Dr. Barin stated that the vaginal bleeding suffered by complainant could have caused the
abortion of the fetus.[13]
Thereafter, the defense presented its evidence. Accused-appellant, his sister, Concepcion Sayo,
and Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, were presented as
witnesses.
Accused-appellant denied that he raped Erlanie Rivera. He alleged that the rape charge was filed
against him because his wife, Evangeline, had a paramour and resented him because he hurt her. He
explained that he saw his wife talking with another man in their house and beat her up on April 1, 1997
because he heard that she had a lover. He also said that his wife was angry with him because he had a
mistress who stayed in their house for three weeks. He further stated that his wifes relatives were
likewise angry with him because he caused the lot owned by his father-in-law in Santiago, Lubao,
Pampanga to be registered in his name. He said that he was compelled to sign a waiver of his rights over
the land owned by his parents-in-law.[14] The defense presented a letter to accused-appellant written by
his wife, who was asking him to sign a document so that she could attend to it before he got out of prison.
[15]

The defense also offered as evidence a document, designated as Waiver of Rights, [16] signed by
accused-appellant, in which he acknowledged that he was a tenant of a parcel of land and that he waived
and voluntarily surrendered his right over the said landholding to the SMPCI, recommending that a
certain Ponciano Miguel be given the land to work on the same. The document was identified by
accused-appellant in open court. He said that Ponciano Miguel was a first cousin of his wife and that he
signed the document because his wifes relatives promised him that he would get out of prison after
signing the document.[17]
Another witness for the defense was Concepcion Sayo, accused-appellants sister, who testified that
in March 1997, accused-appellant lived with her family in Malawak, Bustos, Bulacan, to help her husband
operate a fishpond. She said that accused-appellant stayed in their house during the entire month of
March, except in March 19, 1997 when he stayed with their sister, Perla, in Tibagan, Bustos, Bulacan. [18]
The last defense witness was Natividad Pinlac, Records Officer of the Escolastica Romero District
Hospital, who identified[19] a certification, dated April 29, 1999, in which it was stated that Zaira Rivera was
confined at that hospital from March 1 to March 2, 1997. [20]
On June 22, 1999, the trial court rendered a decision, the dispositive portion of which stated:

WHEREFORE, the court finding the accused guilty beyond reasonable doubt of the crime of rape as
charged. For having violated Article 335 of the Revised Penal Code, as amended by Republic Act 7659,
with the attendant circumstances that the victim is under eighteen (18) years of age and the offender is
the father of the victim and absent any circumstance that could mitigate the commission thereof, accused
is hereby sentenced to suffer the supreme penalty of death by lethal injection.
In line with established jurisprudence, said accused is also ordered to indemnify the offended party
Erlanie Rivera in the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages.
SO ORDERED.[21]
Hence, this appeal. Accused-appellant contends that:
1. The lower court failed to observe the constitutional right of the Accused-Appellant to due
process and right to counsel;
2. The lower court failed to consider the evidence of the Accused-Appellant. [22]
I. Accused-appellant invokes his right to due process of law. He claims that he was denied the
same because: (a) the trial judge disallowed his lawyer from cross-examining Erlanie Rivera concerning
the latters sworn statements on the ground of irrelevance and immateriality; (b) the trial court denied the
motion made by accused-appellants counsel de oficio to postpone the cross-examination of Dr. Barin, the
examining physician, because of which the said counsel consequently waived the cross-examination of
Dr. Barin; (c) the judge propounded numerous questions to accused-appellant during his crossexamination by the prosecutor; and (d) the trial courts decision was promulgated just one day after
accused-appellant submitted his memorandum.
Procedural due process simply means that a person must be heard before he is condemned. The
due process requirement is a part of a persons basic rights, not a mere formality that may be dispensed
with or performed perfunctorily.[23] Considering both the evidence and the law applicable to this case, we
hold that accused-appellant has been accorded his right to due process.
A. One basis for accused-appellants contention that he was denied due process is the refusal of the
trial judge to allow Atty. Mangalindans questions concerning the other alleged acts of molestation
committed by accused-appellant against complainant. Accused-appellant argues that no legal ground
exists for the trial courts ruling.
The transcript of stenographic notes concerning this incident shows the following:
ATTY. MANGALINDAN:
Q

You mentioned in your testimony that you were molested by your father since 1996.

COURT:
Are you referring to a chain of events because police station you are referring is something
there are two places this girl testified that she was raped, you referred to us Acts of
Lasciviousness and she did not testified about that, that is another case with another Court, we
are only trying here a rape case that is only they you never mention. Only on the matters that she
testified (sic).
ATTY. MANGALINDAN:
But this is also related to the rape case your Honor because I will confront it with another form of
a question.
ATTY. MANGALINDAN:
Q

Prior to this incident, were you molested by your father?

PROSECUTOR SANTOS:

Immaterial, your Honor, whatever acts w[ere] done by the accused is not a subject of the case at
bar.
COURT:
Let us confine [questioning] to the complaint at bar which is a rape case.
ATTY. MANGALINDAN:
This is related to the incident because we are here your Honor to prove, we are trying to
discredit her testimony. We will just direct our question touching on the direct examination.
COURT:
Only on the matters that she only testified that is only thing you can cross-examine. Only
matters testified which is only a rape case let us not dwell the Court knows there are other cases
Acts of Lasciviousness pending in the lower Court at the proper Court otherwise if I will allow you
to ask questions on other matters specially I know you are pinpointing the Acts of Lasciviousness
you are prolonging this case here (sic).
ATTY. MANGALINDAN:
I am trying to discredit the witness as one where the credibility as witness here your Honor is
very important. I stated before our main cross-examination is the accused is not a plan in such
case, although I do sympathize (sic). We would like to propound question that will discredit her as
witness and a complainant not with her testimony alone. Our center of cross-examination is to
discredit her as complaining witness that is why our question may not be limited to be accepted
under the rule of cross-examination your Honor the cross-examination your Honor the crossexaminer is not limited on the direct-testimony of the witness but he can propound questions
which may petition or destroy the credibility of the witness that is our view point (sic).
PROSECUTOR SANTOS:
We cannot dispute the right of accused to discredit or to adopt our credibility of our witness, but
it should be done in the proper way, not to ask immaterial questions which are not related.
ATTY. MANGALINDAN:
The rule for cross-examination insofar as to destroy the credibility of the witness is not only
limited to what the Honorable Fiscal we came approach of so many cross-examinations goes
allow your Honor under the rules of Court insofar as this case is related to the present case we
are trying, this is very related because even the witness I have transcript in my hand, testified not
only the rape case your Honor she had testified by direct-examination the preparatory acts before
the testimony of rape that she was been molested early, finger of the father, this were testified
through by the witness, it is here direct-testimony it is not limited (sic).
PROSECUTOR SANTOS:
Prior to this incident were you molested by your father, obviously your Honor the question is not
relevant.
ATTY. MANGALINDAN:
Your Honor please Im very disagreeable (sic), I have not with me the transcript but I have read
that you [can] ask questions concerning the rape case.
COURT:
A question referring to events prior to the complaint at bar.[24]
The trial court later issued an order, dated December 9, 1997, the pertinent parts of which provided:

After private complainant testified on direct-examination, counsel for accused attempted to cross-examine
her on matters relevant to the complaint for Acts of Lasciviousness which was objected to by Asst.
Provincial Prosecutor Arturo G. Santos on the ground that private complainant did not testify on that
matter but limited her testimony on the rape case only. Counsel for the accused argued that although that
is correct nonetheless because [of] the sworn statement executed by private complainant identified by
said witness in her direct examination and marked as Exhibit C for the prosecution, he is at liberty to
cross-examine the witness on all matters stated in her sworn statement including that portion touching on
the acts of lasciviousness subject matter of another case before another court.
The Court sustained the objection. Section 6, Rule 132, Revised Rules on Evidence provides that the
witness may be cross-examined by the adverse party as to any matters stated in the direct examination,
or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and
freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue.
The witness testified only on the rape case. She did not testify anything about acts of lasciviousness
committed upon her person. She may not therefore be questioned on this matter because it is not
connected with her direct testimony or has any bearing upon the issue. To allow adverse party to crossexamine the witness on the acts of lasciviousness which is pending trial in another court and which the
witness did not testify is improper.
Questions concerning acts of lasciviousness will not in any way test the accuracy and truthfulness and
freedom from interest or bias or the reverse. On the contrary such questions, if allowed, will unduly
burden the court with immaterial testimonies.[25]
In another order, dated January 13, 1998, the trial court gave accused-appellants counsel 20 days
within which to elevate its ruling to the appellate court. [26] The records reveal, however, that no such
petition was filed by Atty. Mangalindan as regards this particular matter.
The question, therefore, is whether the trial court correctly disallowed accused-appellants counsel
from questioning complainant as regards the other supposed acts of lasciviousness contained in her
sworn statement. On this point, Rule 132, 6 of the Revised Rules on Evidence provides:
Upon the termination of the direct examination, the witness may be cross-examined by the adverse party
as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest, bias or the reverse and to elicit
all important facts bearing upon the issue.
The right of a party to cross-examine a witness is embodied in Art. III, 14(2) of the Constitution
which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115,
1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the
accused shall have the right to confront and cross-examine the witnesses against him. [27] The crossexamination of a witness is essential to test his or her credibility, expose falsehoods or half-truths,
uncover the truth which rehearsed direct examination testimonies may successfully suppress, and
demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the
accused and thus give substance to the constitutional right of the accused to confront the witnesses
against him.[28]
The right of the accused to cross-examine a witness is, however, not without limits but is subject to
the rules on the admissibility and relevance of evidence. Thus, in People v. Zheng Bai Hui,[29] this Court
upheld the ruling of the trial judge disallowing the questions propounded by the accuseds counsel on the
ability of the arresting officer to distinguish between tawas and shabu without a laboratory examination,
the academic degree of his training instructor, and the officers authorship of books on drug identity and
analysis for being irrelevant, improper, and impertinent.
In this case, accused-appellants counsel argued that his questions to Erlanie on the other acts of
lasciviousness supposedly committed by accused-appellant against her were for the purpose of testing

her credibility. There was, however, no showing on his part how these questions had any bearing on
complainants credibility or on the truth of her claims. One is led to suspect that the purpose of these
questions was to confuse complainant into committing mistakes in her answers during cross-examination
that accused-appellants counsel could later use to possibly put complainants credibility, not to mention
her character, in question.
Accused-appellant insists that his counsel should have been allowed to ask questions in relation to
the sworn statement executed by complainant. He cites Rule 132, 17 of the Revised Rules of
Evidence which provides that:
When part of an act, declaration, conversation, writing or record is given in evidence by one party, the
whole of the same subject matter may be inquired into by the other.
Neither can this rule be invoked to justify the questioning of complainant which the trial court did not
allow. As the above provision states, this rule applies to parts of an act, declaration, conversation, writing
or record which is given in evidence.
Indeed, the records show that after Erlanie had finished with her direct examination on November 25,
1997, the trial judge granted the motion made by Atty. Anselmo Mangalindan, accused-appellants private
counsel, to postpone Erlanie Riveras cross-examination to allow him time to secure copies of the
transcript of stenographic notes of Erlanies testimony and thus enable him to fully question complainant.
[30]
Erlanie was first cross-examined on December 2, 1997, but several postponements, namely, on
January 13, 1998,[31] February 10, 1998,[32] March 12, 1998,[33] March 31, 1998,[34] April 7, 1998,[35] May 12,
1998,[36]May 26, 1998,[37] May 28, 1998,[38] and June 11, 1998,[39] on Erlanies cross-examination took place
because of the failure of Atty. Mangalindan to appear on the said trial dates. Erlanies cross-examination
was continued on July 14, 1998 and July 23, 1998. Her cross-examination by accused-appellants
counsel was thorough and covered various subjects, such as the nature of the relationship between her
parents, who were present during the execution of her sworn statement, whether the same had been
executed by her voluntarily, the date when she was raped by accused-appellant the reason for her delay
in reporting the rape committed by accused-appellant, her understanding of Tagalog, who were with her in
the house at the time of the rape, the details surrounding the rape committed against her, and her age. It
is evident that accused-appellant and his counsel were given ample opportunity to conduct the crossexamination of Erlanie Rivera in order to test her truthfulness.
B. The record shows that because accused-appellants private counsel was not present when Dr.
Barin testified, Atty. Eddie Bansil was appointed by the trial court as accused-appellants counsel de
oficio for that particular hearing. Atty. Bansil moved for the postponement of the witness crossexamination, but the trial court denied his request because, on the one hand, accused-appellant was a
detention prisoner and Dr. Barin was a very busy person, while, on the other hand, Atty. Bansil had heard
the testimony of the said witness. Atty. Bansil then decided not to cross-examine Dr. Barin. [40]
Accused-appellant now contends that the trial judge denied the motion of Atty. Bansil for
postponement because he was biased against him. Accused-appellant claims that the counsel de
oficio was not familiar with the facts of his case and was thus in no position to cross-examine Dr. Barin.
While the Constitution recognizes the accuseds right to competent and independent counsel of his
own choice, his option to secure the services of a private counsel is not absolute. For considering the
States and the offended partys right to speedy and adequate justice, the court may restrict the accuseds
option to retain a private counsel if the accused insists on an attorney he cannot afford, or if the chosen
counsel is not a member of the bar, or if the attorney declines to represent the accused for a valid reason.
[41]

The trial court appointed Atty. Bansil a counsel de oficio to represent accused-appellant on October
6, 1998 because his regular counsel, Atty. Anselmo Mangalindan, was absent without any explanation.
Atty. Mangalindan had previously been granted several postponements. As this Court ruled in another
case:

. . . Courts are not required to wait indefinitely the pleasure and convenience of the accused as they are
also mandated to promote the speedy and orderly administration of justice. Nor should they countenance
such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled,
considering that appellant was adequately represented by counsels who were not shown to be negligent,
incompetent or otherwise unable to represent him.[42]
Atty. Bansil was present and heard the testimony of Dr. Barin, the prosecution witness, on that
day. Dr. Barins testimony on direct examination was simple, containing primarily a discussion of her
findings on the hymenal laceration sustained by complainant. Her testimony did not require considerable
study and extraordinary preparation on the part of defense counsel for the purpose of crossexamination. It seems Atty. Bansil no longer found it necessary to cross-examine Dr. Barin.
Moreover, beyond stating that Dr. Barin was a vital witness, accused-appellant has not indicated
what questions his counsel wanted to ask from Dr. Barin. It may well be that these questions do not exist
at all and that the importance given by accused-appellant to counsel de oficios failure to cross-examine
the witness is exaggerated. Indeed, a medical examination of the victim, together with the medical
certificate, is merely corroborative and is not an indispensable element of rape. [43] The primordial issue in
this case remains to be whether the complainants testimony, not Dr. Barins, established beyond
reasonable doubt the crime of rape.
C. Accused-appellant likewise points to the trial judges questions propounded to him during his
cross-examination as an indication of the latters partiality for the prosecution.
We find no merit in this contention. Where the trial court is judge both of the law and of the facts, it is
oftentimes necessary in the due and faithful administration of justice for the presiding judge to re-examine
a witness so that his judgment, when rendered, may rest upon a full and clear understanding of the facts.
[44]
Our reading of the transcript of stenographic notes in this case shows that the trial judge merely wanted
to clarify certain points relating to the defense of accused-appellant and not to establish his guilt. It is a
judges prerogative to ask questions to ferret out the truth. [45] It cannot be taken against him if the
questions he propounds reveals certain truths which, in turn, tend to destroy the theory of one party. [46] As
this Court held:
In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to
develop the truth and to get at the real facts affords no justification for a charge that he has assisted the
prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the
defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as
may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction
are judges of both the law and the facts, and they would be negligent in the performance of their duties if
they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness
which might develop some material bearing upon the outcome. In the exercise of sound discretion, he
may put such question to the witness as will enable him to formulate a sound opinion as to the ability or
the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may
propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek
to draw out relevant and material testimony though that testimony may tend to support or rebut the
position taken by one or the other party. . .[47]
D. We also find no merit in accused-appellants argument that he was denied due process
considering the speed with which the trial court rendered judgment against him, which judgment was
promulgated one day after he filed his memorandum.
The decision rendered by the trial court gives a clear account of the facts and the law on which it is
based. It discusses in full the courts findings on the credibility of both the prosecution and defense
witnesses and its evaluation of the evidence of both parties. What we said in the analogous case
of People v. Mercado[48] applies to this case:

. . . A review of the trial courts decision shows that its findings were based on the records of this
case and the transcripts of stenographic notes during the trial. The speed with which the trial court
disposed of the case cannot thus be attributed to the injudicious performance of its function. Indeed, a
judge is not supposed to study a case only after all the pertinent pleadings have been filed. It is a mark of
diligence and devotion to duty that a judge studies a case long before the deadline set for the
promulgation of his decision has arrived. The one-day period between the filing of accused-appellants
memorandum and the promulgation of the decision was sufficient time to consider their arguments and to
incorporate these in the decision. As long as the trial judge does not sacrifice the orderly administration of
justice in favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering
his decision with due dispatch. . .
II. Coming now to the merits of this case, we find that the evidence proves beyond reasonable doubt
the guilt of accused-appellant. In reviewing rape cases, we have been guided by the following principles:
(a) An accusation for rape is easy to make, difficult to prove, and even more difficult to disprove; (b) In
view of the intrinsic nature of the crime, the testimony of the complainant must be scrutinized with
extreme caution; and (c) The evidence for the prosecution must stand on its own merits and cannot draw
strength from the weakness of the evidence for the defense. [49]
A. Well-settled is the rule that the lone testimony of a rape victim, by itself, is sufficient to warrant a
judgment of conviction if found to be credible. It has likewise been established that when a woman
declares that she has been raped she says in effect all that is necessary to mean that she has been
raped, and where her testimony passes the test of credibility the accused can be convicted on the basis
thereof. This is because from the nature of the offense, the sole evidence that can usually be offered to
establish the guilt of the accused is the complainants testimony.[50]
Considering complainants tender age, her shy demeanor, and manner of testifying in court, the trial
court found Erlanies testimony to be straightforward, natural, and convincing and accorded the same full
faith and credit.[51]
Complainant told the court how she was awakened because accused-appellant kissed her and
fondled her breasts. She narrated that she tried to resist accused-appellants advances by pushing and
kicking him, but the latter succeeded in ravishing her. She told of how her father threatened to kill her
mother and her siblings if she reported the incident. Despite the lengthy cross-examination of accusedappellants counsel, she remained firm and steadfast in her story of how she was raped by her
father. Her narration not only rings true and sincere but is consistent and unshaken on its material
points. Complainants testimony is fully corroborated by the medical findings of Dr. Barin who examined
complainant shortly after she had been raped. She found complainant to have suffered a hymenal
laceration at the 3 oclock position which could have been caused by the penetration of a hard object,
such as a male organ.
Complainants failure to remember the date of the commission of the rape cannot be taken against
her. The exact date when complainant was sexually abused is not an essential element of the crime of
rape.[52]Nor does the fact that complainant was sleeping beside her sister when the rape occurred detract
from her credibility. The possibility of rape is not negated by the fact that the presence of even the whole
family of the accused inside the same room produced the possibility of discovery. For rape to be
committed, it is not necessary for the place to be ideal, for rapists respect neither time nor place for
carrying out their evil designs.[53]
In sum, accused-appellant failed to show any reason why this Court should disbelieve complainants
testimony. Indeed, the gravity of filing a case for incestuous rape is of such a nature that a daughters
accusation must be taken seriously. It is against human experience for a girl to fabricate a story which
would drag herself and her family to a lifetime of dishonor, unless it is the truth. More so when her charge
could mean the execution of her own father, as in this case. [54]
Accused-appellants counsel on cross-examination made much of the discrepancy between
complainants sworn statement where she stated that accused-appellant slept beside her mother after the
rape[55] and her testimony that her mother returned home from the hospital only the day after the rape took
place.[56] It must be pointed out, however, that discrepancies between a witness affidavit and his

testimony in open court does not necessarily impair his credibility. Affidavits, which are taken ex parte,
are often incomplete or inaccurate for lack of or absence of searching inquiries by the investigating officer.
[57]

Moreover, whether accused-appellant slept alone or with complainants mother after committing the
rape of complainant is of no moment as it is a minor point that does not reflect on the commission of the
crime itself. The rule is that discrepancies and inconsistencies on minor matters neither impair the
essential integrity of the prosecution evidence as a whole nor reflect on the witness honesty. Such
inconsistencies may in fact strengthen rather than weaken the credibility of the witness as they erase any
suspicion of rehearsed testimony.[58]
Accused-appellant contends that complainant could not have been raped on March 1 or 2, 1997, the
dates when her sister Zaira was hospitalized, because she had her last menstrual period on March 3,
1998 and thus she could not have gotten pregnant as a result of the rape. He argues that a woman who
had her monthly period cannot be impregnated as a result of sexual intercourse five days before or five
days after her last menstruation.[59]
Accused-appellant does not, however, cite any legal or medical authority for his thesis, except what
he claims to be common knowledge. On the other hand, we have previously held that it is hard to
ascertain the exact date of fertilization inasmuch as more than two weeks is considered to be the life span
of the spermatozoa in the vaginal canal. [60] Hence, even granting that complainant could not have been
impregnated by accused-appellant during the period alleged by him, it remains possible for complainant
to have gotten pregnant afterwards. More importantly, it must be emphasized that pregnancy is not an
element of the crime of rape and is, therefore, totally immaterial to the question of accused-appellants
guilt.[61] In other words, accused-appellant being the cause of complainants pregnancy is a non-issue in
the prosecution of the crime of rape. What should not be lost sight of is the fact that complainants
testimony constitutes proof beyond reasonable doubt that accused-appellant had carnal knowledge of her
without her consent, and such fully established the crime of rape.
B. Accused-appellant imputes ill motive on the part of complainants mother and her relatives for
bringing charges against him. He claims that complainants mother resented the fact that he used to beat
her up out of jealousy and that he had several paramours in the past. He further asserts that his wifes
relatives were angry with him because of the land which he caused to be registered in his name to the
prejudice of the latter.
This allegation is without merit. Accused-appellant makes it appear that complainants mother was
responsible for the filing of this case against him. This is not so. For that matter, his wife did not testify
against him. It was his daughter, complainant, alone who denounced him in court.
Accused-appellants claim that the motivation for the filing of this case was the animosity of his wifes
relatives towards him caused by his land-grabbing of their land is likewise without any basis. It may be
that his wifes relatives took advantage of his incarceration and made him sign his waiver of rights over
the land.[62] But this does not necessarily mean they conspired to persecute him. It is noteworthy that
accused-appellant never claimed that the document which he signed (Exh. 3) existed before the filing of
the criminal complaint against him or that his wifes relatives fabricated the charge against him because of
his failure to sign the same.
Indeed, what accused-appellants defense cannot explain is the hymenal laceration sustained by
complainant or the steadfastness she has exhibited in pursuing the charge against her own father. It is
doubtful that complainant would let herself be embroiled in a petty family dispute in exchange for her
honor and dignity. We cannot believe that a young girl, like complainant, would invent a sordid tale of
sexual abuse by accused-appellant unless it was the truth. [63] Where there is no evidence to show a
doubtful reason or improper motive why a prosecution witness should testify against the accused or
falsely implicate him in a crime, her testimony is trustworthy.[64]
Accused-appellant also raises the defense of denial and alibi. But the bare denial of accusedappellant cannot overcome the positive declarations of complainant. Denial, when unsubstantiated by
clear and convincing evidence, constitutes negative self-serving evidence which deserves no greater
evidentiary value than the testimony of a credible witness who testified on affirmative matters. [65]

Accused-appellants sister, Concepcion Sayo, testified that accused-appellant lived with her family in
Bulacan at the time of the rape. No other witness not related to accused-appellant, however, was called
to corroborate her claim. We have already held that the defense of alibi cannot prosper if it is established
mainly by the accused and his relatives, and not by credible persons. It is not improbable that these
witnesses would freely perjure themselves for the sake of their loved ones. [66] Accused-appellants
defense thus fails to convince this Court.
C. The foregoing discussion notwithstanding, we think that the imposition of the death penalty by the
trial court is erroneous. It is settled that to justify the imposition of the death penalty, both the relationship
of the victim and her age must be alleged and proved. [67] Thus, in People v. Javier,[68] where the victim was
alleged to be 16 years old at the time of the commission of the rapes, it was held:
. . . Although the victims age was not contested by the defense, proof of age of the victim is particularly
necessary in this case considering that the victims age which was then 16 years old is just two years less
than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year
old girl and an 18-year old one insofar as physical features and attributes are concerned. A physically
developed 16-year old lass may be mistaken for an 18-year old young woman, in the same manner that a
frail and young-looking 18-year old lady may pass as a 16-year old minor. Thus, it is in this context that
independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota
of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances
enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the extreme
penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the
crime with which an accused is charged must be established by the prosecution in order for said penalty
to be upheld.
A duly certified certificate of live birth showing complainants age, or some other official document on
record, such as a school record, has been recognized as competent evidence. [69]
In this case, although complainants minority has been alleged in the information, no independent
evidence was presented by the prosecution to prove the same. Complainant did not even state her age
at the time of the rape during direct examination; it was only during her cross-examination when she
stated that she was 12 years old at the time she was raped by her father.[70]
Nor was her birth certificate or baptismal certificate or any school record presented by the
prosecution to prove the age of Erlanie at the time of the rape. Not even her mother, whose testimony
could have been sufficient to prove the age of complainant, [71] testified in this case. What was relied upon
by the trial court was that fact that the age of the victim was undisputed by the defense. [72] It also took
judicial notice of the victims minority on account of her appearance. [73]
We do not agree with this conclusion. The trial court can only take judicial notice of the victims
minority when the latter is, for example, 10 years old or below. Otherwise, the prosecution has the burden
of proving the victims age at the time of the rape and the absence of denial on the part of accusedappellant does not excuse the prosecution from discharging its burden. [74] In a similar case, People v.
Tundag,[75] in which the trial court took judicial notice of the minority of the victim who was alleged to be 13
years old, we ruled:
In this case, judicial notice of the age of the victim is improper, despite the defense counsels admission,
thereof acceding to the prosecutions motion. As required by Section 3 of Rule 129, as to any other
matters such as age, a hearing is required before courts can take judicial notice of such fact. Generally,
the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the absence
thereof, upon showing that said documents were lost or destroyed, by other documentary or oral evidence
sufficient for the purpose.
The prosecution having failed to present evidence as to complainants age, accused-appellant can
be convicted only of simple rape, for which the penalty is reclusion perpetua.

Consequently, the award of civil indemnity in the amount of P75,000.00 made by the trial court
cannot be sustained. Such amount can only be awarded if the crime of rape was effectively qualified by
any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.
[76]
Accordingly, the civil indemnity awarded to complainant must be reduced to P50,000.00 in consonance
with current rulings.[77]
The award of moral damages in the amount of P50,000.00 to complainant is correct. Moral
damages is awarded in rape cases without need of showing that the victim suffered from mental, physical,
and psychological trauma as these are too obvious to require recital by the victim during trial. [78]
In addition to the damages given by the trial court, exemplary damages in the amount of P25,000.00
should likewise be awarded in favor of complainant. Accused-appellant being the father of complainant,
such relationship can be appreciated as a generic aggravating circumstance warranting the award of
exemplary damages. In rapes committed by fathers against their daughters, such award may be imposed
to serve as a deterrent to other parents similarly disposed to commit the same crime. [79]
WHEREFORE, the decision of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding
accused-appellant guilty of the crime of rape is AFFIRMED with the modification that accused-appellant is
sentenced to suffer the penalty of reclusion perpetua and to pay complainant Erlanie Rivera the amount
ofP50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOPE LIWANAG y BUENAVENTURA, SANDY

SIMBULAN y GARCIA and RAMIL VENDIBIL y CASTRO, accused.
LOPE LIWANAG y BUENAVENTURA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Lope Liwanag y Buenaventura, and his co-accused Randy Simbulan and Ramil
Vendibil, were charged with the crime of highway robbery with multiple rape in an Information [1] which
reads, thus:
That on or about the 27th day of April, 1992, in the Municipality of Paraaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, armed with an icepick,
conspiring and confederating together and mutually helping and aiding one another, with intent to gain
and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously,
take, rob and divest from the complainant, Corazon Hernandez y Delfin the amount of P60.00; That on
the occasion thereof, the above-named accused, conspiring and confederating together and each of them
mutually helping and aiding one another and by means of force and intimidation, did, then and there
willfully, unlawfully and feloniously one at a time have carnal knowledge of the said complainant, inside
the Levitown Subdivision, Paraaque, Metro Manila, against her will and consent;
That accused Randy Simbulan y Garcia, who is allegedly 14 years old, has acted with discernment in the
commission of the offense; and
That the aggravating circumstance of that means employed or circumstance brought about which add
ignominy to the natural effect of the act where one of the accused, by means of force and intimidation,
caused the victim to suck his penis made the effect of the crime more humiliating to the victim, attended
the commission of the offense.
CONTRARY TO LAW.

During the arraignment, all of them pleaded not guilty to the charge. Accused Randy Simbulan and
Ramil Vendibil were earlier released on recognizance, and were later ordered rearrested for their failure to
appear at the scheduled hearings. However, the warrants for their arrest were not implemented. Trial on
the merits, thus, ensued only against accused-appellant Lope Liwanag y Buenaventura.
Complainant Corazon Hernandez was on her way home to Paraaque at around 1:00 oclock in the
early morning of April 27, 1992. Upon reaching the tricycle terminal at Doa Soledad St., Better Living
Subdivision, Paraaque, Metro Manila, she was offered by tricycle driver Ramil Vendibil a special trip,
which means that she would be brought right in front of her house. She agreed and boarded the
tricycle. While they were about to leave, Randy Simbulan and Lope Liwanag also rode the tricycle behind
the driver. When they reached India Street, Lope Liwanag entered the sidecar and sat beside
complainant. He immediately grabbed complainants shoulder, pointed an instrument at the side of her
neck, and declared a hold-up. Surprised and fearing for her life, complainant told accused-appellant that
she only had sixty pesos (P60.00) in her bag. Accused-appellant Lope Liwanag instructed Randy
Simbulan to get her bag.
While the tricycle was traversing the road leading to the municipal building of Paraaque, accusedappellant informed complainant that since they could not get anything from her anyway, she might as well
submit herself to them. Then, accused-appellant began kissing complainant and touching her private
parts. Randy Simbulan, meanwhile, inserted his finger into complainants vagina.
As they were entering Levitown Subdivision, accused-appellant ordered complainant to act naturally
while they passed the guardhouse. Once they got through, accused-appellant asked her to give in to his
desire, and then, he again began touching her private parts. Complainant answered that she would
rather be killed than accede to his desire. This prompted accused-appellant to hit her with an icepick on
the abdomen.
Upon reaching a vacant lot, accused-appellant ordered Vendibil to stop the tricycle. He then tried to
strangle complainant, causing her to fall down from her seat and lose consciousness. When she
regained consciousness, she was forced to board the tricycle. Again, they rode around the
village. Accused-appellant tried to strangle her with a bandana and ordered her to remove her
underwear. When she refused, accused-appellant himself removed her underwear, opened his pant
zipper and forced her to sit on his lap. Complainant struggled, so accused-appellant ordered the tricycle
to stop and dragged complainant out. Accused-appellant then brought complainant to a grassy vacant lot
and forced himself on her. After satisfying his lust, they again boarded the tricycle and accused-appellant
informed complainant that his companions would follow. Complainants pleas were in vain. After a few
minutes of driving around, they came upon another vacant lot where accused-appellant and Vendibil
dragged complainant. There, Vendibil forced complainant to put his penis into her mouth. Unsatisfied,
Vendibil forced her to lie down and succeeded in having sexual intercourse with her while accusedappellant and Simbulan watched. Thereafter, Simbulan took his turn. After he satisfied his lust, they
talked of killing complainant.
Complainant pleaded for her life and, in desperation, she offered them money in exchange for her
life. Accused-appellant asked her if she can produce P10,000.00, but she said she could not. Accusedappellant lowered his demand to P5,000.00. They negotiated until they finally agreed on the sum of
P2,000.00. Accused-appellant instructed complainant to deliver the money at Guadalupe, Makati. She
was to place the amount inside a bag together with a sandwich she was to buy at Burger Machine. They
agreed to meet at 11:30 that same morning. When they finally let go of her, complainant proceeded to a
church. At daybreak, she went home and told her mother the whole incident. Together, they proceeded
to the Fort Bonifacio police station and reported the matter. The police, in turn, devised an entrapment
operation.
At the appointed hour, complainant went to Guadalupe, Makati, bringing with her an envelope
containing pieces of plain paper. Accused-appellant arrived after 45 minutes. Complainant handed the
envelope to him, then she ran away. Accused-appellant also ran and boarded a bus, but he was collared
and arrested by the police.

Dr. Louella Nario, Medico Legal Officer of the National Bureau of Investigation conducted an
examination on the complainant and issued a medical certificate [2] with the following findings:
Extragenital Physical Injuries:
Abrasions, linear, leg, right, upper third, anterior aspect, 4.8 cms., in length and left, lower third, anterior
aspect, 4.7 cm. in length.
Contused abrasion, epigastric region, 2.4 x 0.3 cm.
Contusions, reddish, mandibular region, right side, 1.8 x 1.5 cm. and left side, 2.0 x 1.0 cms.; neck, lateral
aspect, right side, 5.5 x 0.5 cms., and 9.8 x 0.5 cms. and 2.5 x 0.5 cms. deltoid region, left side, 2.4 x 1.3
cms. purplish, deltoid region, left side, 4.2 x 2.5 cms.
Genital Examination:
Pubic hair, fully grown, abundant. Labia majora and minora, gaping. Fourchette, lax. Vestibular mucosa,
congested, with fresh superficial abrasion at the fossa navicularis. Hymen, thick, short, intact. Hymenal
orifice, annular, admits a tube, 2.0 cms., in diameter with moderate resistance. Vagina walls,
tight. Rugosities, prominent.
Conclusion:
1. The above-described extragenital physical injuries noted on the body of the subject at the time of
examination.
2. Genital injury present.
Accused-appellant denied the accusation against him. He claimed that at around 12:00 oclock
midnight of April 27, 1992, he was at his house at Texas Street, Better Living Subdivision, Paraaque,
Metro Manila. His uncle, Emilio Changco, dropped by and, together with Ponciano Buenaventura and
Hermenegildo Liwanag, they had a drinking session up to 3:00 oclock in the morning. At around 4:00
oclock in the morning, Changco left and accused-appellant went to sleep. He woke up at 7:30 in the
morning to prepare for his trip to San Miguel, Bulacan to see his grandfather.
He alleged that while waiting for a ride in front of Jollibee at Guadalupe, Makati, he was arrested by
policemen in civilian clothes for being a rebel soldier, based on a mark on his right fist indicating his
membership in the Guardians Luzon, an association of soldiers. He was brought to Fort Bonifacio where
he allegedly met for the first time Randy Simbulan and Ramil Vendibil. He claimed that the three of them
were beaten and subjected to electric shocks. He also claimed that policemen forced his co-accused to
point to him.
On April 17, 1995, a decision[3] was rendered by the Regional Trial Court of Makati, Branch 138, the
dispositive portion of which reads:
WHEREFORE, the Court finds accused Lope Liwanag y Buenaventura GUILTY beyond reasonable doubt
of having violated Presidential Decree No. 532, known as the Anti-Piracy and Anti-Highway Robbery Law
of 1974. Considering that on the occasion of the highway robbery, rape was committed, a situation which
calls for the imposition of death penalty under Presidential Decree No. 532 but which penalty was still
proscribed at the time of the commission of the offense alleged in the Information, said accused is hereby
sentenced to suffer the penalty of reclusion perpetua, the penalty next lower in degree (People v.
Miranda, 235 SCRA 202). He is further ordered to indemnify the complainant Corazon Hernandez of the
amount of One Million Pesos (P1,000,000.00) representing moral damages; P20,000.00 as litigation

expenses and attorneys fees and to return the P60.00 taken from her. Filing fees due on the award shall
be a lien on the amount which may be recovered by the complainant from the accused.
As to the two other co-accused, Randy Simbulan and Ramil Vendibil, trial of the case shall therefore
continue.
Aggrieved by the trial courts decision, accused-appellant interposed the instant appeal assigning as
errors the following:
1. The trial court erred in convicting accused-appellant notwithstanding the fact that he was deprived of
his constitutional right to effective and competent counsel, and, consequently, other constitutional rights
afforded an accused;
2. The trial court erred in convicting accused-appellant notwithstanding that there was no sufficient
evidence positively identifying him as the perpetrator of the crime charged;
3. The trial court erred in convicting accused-appellant in spite of the inconsistencies that tainted the
evidence for the prosecution;
4. The trial court erred in convicting accused-appellant in spite of the improbability of the manner by
which the crime was allegedly committed;
5. The trial court erred in convicting accused-appellant inspite of complainants failure to offer any
resistance prior to and even during her alleged rape; and
6. The trial court erred in disregarding the defense of accused-appellant as a mere alibi.
Accused-appellant submits that he was deprived of his constitutional right to counsel under Article III,
Section 14, (2) of the 1987 Constitution which provides, thus:
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, x x x. (Italics supplied)
As a consequence, accused-appellant claims that from the time he was arrested up to the time of his
conviction, he was deprived of his other constitutional rights, particularly his right to be secure in his
person against unreasonable searches and seizures, [4] his right to preliminary investigation,[5] and his right
to bail.[6]
In addition, accused-appellant claims that the assistance extended to him by his former counsel was
ineffective to the extent that private complainant, as well as prosecution witnesses SPO1 Armando P.
Sevilla and Editha Hernandez, were hardly cross-examined, while Dra. Louella Nario was not crossexamined at all.
In any case, accused-appellant claims that he could not have committed the crime being imputed to
him as he was engaged in a drinking session at the very moment when the alleged crime was committed.
Accused-appellant maintains that the trial court erred in convicting him because: 1) the prosecution
failed to provide sufficient evidence positively identifying him as the perpetrator of the crime; 2)
inconsistencies tainted the prosecution evidence; 3) the manner by which the crime was committed was
improbable; and, 4) complainant failed to offer any resistance prior to and even during her alleged rape.
This appeal revolves primarily on the issue of whether accused-appellant was denied his
constitutionally guaranteed right to be heard by himself and counsel. He argues that his right to be heard
through his counsel means that he should be effectively assisted by counsel throughout the proceedings,
from the time he was arrested up to the time judgment is rendered.

The records show that at the start of the proceedings before the trial court, accused-appellant was
represented by counsel de officio, Atty. William T. Uy of the Public Attorneys Office. In the middle of the
trial, accused-appellant retained the services of counsel de parte Atty. Bienvenido R. Brioso, replacing
Atty. Uy. After the trial court rendered the judgment of conviction, Atty. Brioso filed the Notice of Appeal on
behalf of accused-appellant. Atty. Brioso, however, failed to file the appellants brief because of the
refusal of accused-appellants mother to transmit the entire records of the case to him. Thus, accusedappellant was required to manifest whether he still desired to be represented by Atty. Brioso in this
appeal. Upon accused-appellants failure to reply, Atty. Francis Ed. Lim was appointed counsel de officio.
There is no dispute that accused-appellant was provided with a counsel de officio who assisted him
during the arraignment and conducted the cross examination of all prosecution witnesses as well as his
direct examination. Thereafter, from the time he was cross-examined up to the presentation of other
defense witnesses, he was assisted by a counsel of his choice.
Accused-appellants citation of People v. Holgado[7] and Powell v. Alabama,[8] insofar as the right to
be heard by counsel is concerned, is misleading. Both cases only defined the right to be heard by
counsel as the right to be assisted by counsel. It cannot be inferred from these cases that the right to
be heard by counsel presupposes the right to an intelligent counsel. The requirement is not for counsel
to be intelligent, but to be effective.
Jurisprudence defined the meaning of effective counsel only in the light of Article III, Section 12 (1)
of the Constitution, which refers to the right of persons under custodial investigation. In People v. Lucero,
[9]
the rationale for this constitutional right was elucidated by this Court, to wit:
The 1987 Constitution requires that a person under investigation for the commission of a crime should be
provided with counsel. We have constitutionalized the right to counsel because of our hostility against the
use of duress and other undue influence in extracting confessions from a suspect. Force and fraud
tarnish confessions and render them inadmissible. In providing for said right, this Court has held in the
same case that when the Constitution requires the right to counsel, it did not mean any kind of counsel
but effective and vigilant counsel. The requirements of effectiveness and vigilance of counsel during that
stage before arraignment were for the purposes of guarding against the use of duress and other undue
influence in extracting confessions which may taint them and render them inadmissible. (Italics supplied)
On the other hand, Article III, Section 14 (2) of the 1987 Constitution requires that the accused shall
enjoy the right to be heard by himself and counsel. The reason for the latter provision was explained
inPeople v. Holgado, thus:
One of the great principles of justice guaranteed by our Constitution is that no person shall be held to
answer for a criminal offense without due process of law, and that all accused shall enjoy the right to be
heard by himself and counsel. In criminal cases there can be no fair hearing unless the accused be
given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not
include the right to be heard by counsel. Even the most intelligent or educated may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how to establish his innocence. And this can happen
more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted
by counsel is deemed so important that it has become a constitutional right and it is so implemented that
under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the
court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to
procure an attorney of his own.[10] (Italics supplied)
In essence, the right to be heard by counsel simply refers to the right to be assisted by counsel for
the purpose of ensuring that an accused is not denied the collateral right to due process, a fundamental
right which cannot be waived by an accused. The underlying basis for due process is the concept of
fairness, without which there can be no justice. In other words, there can be no due process accorded an
accused if he is not given the right to be heard through counsel or assisted by counsel. It follows that in

order to be heard, and therefore be accorded due process, the assistance given by counsel must be
effective as implied in the rationale of Article III, Section 14 (2). In this sense, this Court subscribes to
American jurisprudence when it held that [t]he right of an accused to counsel is beyond question a
fundamental right. Without counsel, the right to a fair trial itself would be of little consequence, for it is
through counsel that the accused secures his other rights. In other words, the right to counsel is the right
to effective assistance of counsel.[11]
In the light of the above ratiocination, accused-appellant contends that the right to be heard by
counsel is the right to effective assistance of counsel. Citing Strickland v. Washington,[12] accusedappellant contends that the assistance rendered by counsel is ineffective or is defective if the following
elements are present: (1) that counsels performance was deficient, which requires a showing that
counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2)
that the deficient performance prejudiced the defense, which requires a showing that counsels errors
were so serious as to deprive the defendant of a fair trial, a trial which result is reliable. Accusedappellant claims that the assistance afforded him by his counsel during the course of the trial was
ineffective since the counsel de officio failed to safeguard his rights necessary for the reversal of his
conviction.
One of the rights which accused-appellant contends his counsel de officio failed to safeguard was his
right to be secure in his person against unreasonable searches and seizures as enshrined in the Bill of
Rights. He claims that his right was violated when he was arrested without a warrant which his counsel
should have contested.
Accused-appellants argument is not well-taken. As reiterated in People v. Costelo:[13]
[A]ppellants failure to quash the information, his participation in the trial and presenting evidence in his
behalf, placed him in estoppel to make such challenge. He has patently waived any objection or
irregularities and is deemed as having submitted himself to the jurisdiction of the court. It should be
noted that the legality of arrest affects only the jurisdiction of the court over the person of the
accused. Consequently, if objection on such ground is waived, the illegality of the arrest is not sufficient
reason for setting aside an otherwise valid judgment rendered after the trial, free from error. The
technicality cannot render the subsequent proceedings void and deprive the State of its right to convict
the guilty when the facts on the record point to the culpability of the accused. (Italics supplied)
Any objection involving a warrant of arrest must be made before he enters his plea, otherwise the
objection is deemed waived.[14]
Accused-appellant, likewise, claims that he was deprived of his right to a preliminary
investigation. Had his counsel de oficio been effective, he should have filed the proper motion on his
behalf.
There is no merit in this contention.
Considering that accused-appellant submitted himself to the jurisdiction of the trial court, he is
deemed to have waived his right to preliminary investigation.
As aptly stated in People v. Buluran:[15]
The failure to accord appellants their right to preliminary investigation did not impair the validity of the
information nor affect the jurisdiction of the trial court. While the right to preliminary investigation is a
substantive right and not a mere formal or technical right of the accused, nevertheless, the right to
preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment. It appearing that appellants only raised the issue of lack of preliminary
investigation during appeal, their right to a preliminary investigation was deemed waived when they
entered their respective pleas of not guilty.[16]
Accused-appellant next contends that he was deprived of his right to bail. He contends that had his
counsel de officio been effective, he would have filed the proper motion.

The contention is without any merit. As ruled by this Court in People v. Manes:[17]
The issue of bail has been rendered academic by the conviction of the accused. When an accused is
charged with a capital offense, or an offense punishable by reclusion perpetua, or life imprisonment or
death, and evidence of guilt is strong, bail must be denied, as it is neither a matter of right nor of
discretion.
In the case of Strickland,[18] the United States Supreme Court:
Judicial scrutiny of counsels performance must be highly deferential. It is all too tempting for a defendant
to secondguess counsels assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsels challenged conduct, and to evaluate the conduct from counsels perspective at the
time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsels conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would not defend a particular client in the same
way.
In showing the ineffectiveness of the assistance rendered by counsel de officio, accused-appellant
points out the following:
The private complainant, whose testimony was the principal basis of the conviction, was hardly crossexamined. The same is true with prosecution witnesses SPO1 Armando P. Sevilla and Editha
Hernandez. In fact, prosecution witness Dra. Louella Nario was not cross-examined at all.
As a result of the insufficient cross-examination of the witnesses for the prosecution, particularly the
private complainant, the defense of the accused-appellant failed to bring to the attention of the trial court
several matters which amplify the improbability, if not impossibility, in the complainants testimony on how
the crime was allegedly committed. Thus, the defense was not able to highlight several crucial points,
among which are: (1) the impossibility that the alleged crime, particularly the rape, was committed in a
populated area - an inhabited and well-developed subdivision in Paraaque, with a 24-hour store (Burger
Machine) at that - without being noticed; (2) the fact that, assuming that accused-appellant had carnal
knowledge of the complainant, the latter did not offer any form of resistance; and (3) the impossibility that
after the crime charged was allegedly committed, accused-appellant and his co-accused gentlemanly
accompanied complainant to a place of her choice (the church).
Moreover, several questions remained unanswered. For example (1) What time did the complainant
report the incident to the police?; (2) How long did the police plan the alleged entrapment?; (3) Were
there other officers involved in the entrapment?; and (4) Why was the money and other materials used for
entrapment not presented in evidence?
Furthermore, there were also no attempts to impeach the testimony of the private complainant on the
scene of the crime through the use of contradictory evidence as provided in the Rules. For instance,
accused-appellants counsel could have presented a resident of the subdivision where the crime was
allegedly committed to describe the area. Such witness can establish: (1) whether or not the area where
the crime was allegedly committed was indeed too dark for anyone to notice the commission of the
alleged crime; (2) whether or not the houses in the subdivision are indeed too far apart that occurrences
outside one house would not be discernible from within; and (3) whether or not the location of the houses
in the subdivision is such that it would indeed be useless for a woman, faced with the threat of rape to
even attempt to ask for help.

We are not convinced. The assistance extended by Attorney Uy of the Public Attorneys Office was
sufficiently effective. As noted by the Office of the Solicitor General, to wit:
The pertinent transcripts of stenographic notes would show that appellants counsel de oficio, Atty. William
Uy, cross-examined the private complainant extensively as well as two other prosecution witnesses
(SPO1 Sevilla and Edith Hernandez). That said counsel opted not to cross-examine the prosecution
expert witness, Dr. Louella Nario, is of no moment because said witness merely explained in court her
findings and conclusions that she had arrived at after conducting the medical examination on the private
complainant [Exhibit C] (TSN, March 30, 1993, pp. 10-12). In fact, at one point, Atty. Uy raised an
objection to the private prosecutors question on how private complainants genital injuries were sustained
for being incompetent to answer, which objection was impliedly sustained by the trial judge (Ibid., p. 13).
In assessing the effectiveness of counsels assistance, the Strickland standard invoked by accusedappellant is too stringent for application in Philippine judicial setting. Strickland only seeks to ensure that
the adversarial testing process is present in a case by requiring that the assistance rendered by counsel
be effective. The presence of an adversarial testing process, in other words, ensures that the trial is fair
by according the accused due process through the effective assistance of counsel.
While fairness is likewise the object of Article III, Section 14 (2) of the Philippine Constitution, the
assistance afforded by counsel to an accused in light of the Philippine constitutional requirement need
only be in accordance with the pertinent provisions of the Rules of Court, the Code of Professional
Responsibility and the Canons of Professional Ethics. In Philippine judicial setting, a counsel assisting an
accused is presumed to be providing all the necessary legal defense which are reasonable under the
circumstances in accordance with said norms.
In this regard, a counsel assisting an accused is guided by the following provisions of Section 20 of
Rule 138 of the Rules of Court:
Sec. 20. Duties of attorneys. -- It is the duty of an attorney:
xxx

xxx

xxx

(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such
defenses only as he believes to be honestly debatable under the law;
(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are
consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or
false statement of fact or law;
xxx

xxx

xxx

(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his
personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end
that no person may be deprived of life or liberty, but by due process of law. (Italics supplied)
The following canons of the Code of Professional Responsibility, likewise, provide:
Canon 2 -- A lawyer shall make his legal services available in an efficient and convenient manner
compatible with the independence, integrity and effectiveness of the profession.
xxx

xxx

xxx

Canon 12 -- A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient
administration of justice.
xxx

xxx

xxx

Canon 17 -- A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and
confidence reposed in him.
Canon 18 -- A lawyer shall serve his client with competence and diligence.
xxx

xxx

xxx

Canon 19 -- A lawyer shall represent his client with zeal within the bounds of the law.
Lastly, the Canons of Professional Ethics provide:
4. A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial
reason and should always exert his best efforts in his behalf.
5. It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his
personal opinion as to the guilt of the accused; otherwise, innocent persons, victims only of suspicious
circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound,
by all fair and honorable means, to present every defense that the law of the land permits, to the end that
no person may be deprived of life or liberty but by due process of law.
15.

xxx

xxx

xxx

The lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defense
of his rights and the exertion of his utmost learning and ability, to the end that nothing be taken or be
withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public
unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is
entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and
he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in
mind that the great trust of the lawyer is to be performed within and not without the bounds of the
law. The office of attorney does not permit, much less does it demand of him for any client, violation of
law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.
The above-cited norms are more than adequate to guide a counsels conduct in the performance of
his duty to assist a client in an effective manner as required by Article III, Section 14 (2). Said
constitutional provision is patterned after the Sixth Amendment of the American Constitution. As in Article
III, Section 14 (2), the Sixth Amendment refers simply to counsel, not specifying particular requirements
of effective assistance. It relies instead on the legal professions maintenance of standards sufficient to
justify the laws presumption that counsel will fulfill the role in the adversary process that the Amendment
envisions. The proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.[19]
Coupled with the presumption that counsels performance was reasonable under the circumstances,
as long as the trial was fair in that the accused was accorded due process by means of an effective
assistance of counsel, then the constitutional requirement that an accused shall have the right to be heard
by himself and counsel is satisfied. The only instance when the quality of counsels assistance can be
questioned is when an accused is deprived of his right to due process. Otherwise, there is the danger
that questioning counsels acts or omissions in the conduct of his duties as counsel for an accused may
breed more unwanted consequences than merely upholding an accuseds constitutional right or raising
the standard of the legal profession.

In the case at bar, accused-appellants right to due process has been observed and the trial was
conducted in a fair manner. Corollarily, this Court sees no reason to doubt or overcome the presumption
that counsel de officio reasonably assisted accused-appellant in accordance with the prevailing norms of
professional conduct and his sworn duties as an officer of the court.
Based on the findings of the trial court, accused-appellant was not at all prejudiced by the alleged
ineffectiveness of his counsel. The alleged failures by his counsel to safeguard his rights from the time he
was arrested up to the time he was sentenced and the alleged inadequacies in the direct and crossexaminations of prosecution witnesses were ultimately inconsequential to the eventual outcome of the
case. If at all, the outcome was the result of the strength of the prosecution evidence rather than the
failures and inadequacies in the conduct of the defense as shown by the following:
First, counsels decision to adopt the defense of denial and alibi as part of the trial strategy merely
highlighted the strength of the prosecution evidence. While its adoption may have been dictated by the
factual circumstances of the case as perceived by accused-appellant, however, denial is an inherently
weak defense vis--vis the positive and categorical assertion of prosecution witnesses. In fact, the trial
court found accused-appellants denial to be self-serving.
Like denial, accused-appellants alibi was not looked upon with favor by the trial court. Not only is it
one of the weakest defenses due to its being capable of easy fabrication, it also cannot prevail over
witnesses positive identification of accused-appellant as the perpetrator of the crime. In any event, for
the defense of alibi to prosper, it is not enough that the accused can prove his being at another place at
the time of its commission, it is likewise essential that he can show physical impossibility for him to be at
the locus delicti.[20] The trial court found accused-appellants and his witnesses testimonies on the
formers alibi unconvincing.
In the instant case, accused-appellant claims that he was engaged in a drinking session with some
persons at their house in Texas Street, Better Living Subdivision at about the time when the crime was
committed until 3:00 oclock in the morning. However, Better Living Subdivision is adjacent to Levitown
Subdivision, where the rape was committed. In fact, it was in Better Living Subdivision where
complainant was robbed and sexually molested prior to being raped at Levitown Subdivision.
Second, accused-appellant also points to alleged discrepancies between some of complainants
accounts in her sworn statement and some of her declarations in her direct testimony regarding the
position of accused relative to that of complainant, the kind of instrument used to threaten complainant
and the person who got complainants money. The apparent discrepancies, however, only refer to
immaterial or irrelevant details. Complainant was consistent in her narration in her sworn statement as
well as during her direct examination and even in the cross-examination regarding the roles played by the
three accused in the commission of the crime.
A Sinumpaang Salaysay or a sworn statement is merely a short narrative subscribed to by the
complainant in question and answer form. Thus, it is only to be expected that it is not as exhaustive as
ones testimony in open court. The contradictions, if any, may be explained by the fact that an affidavit
can not possibly disclose the details in their entirety, and may inaccurately describe, without deponent
detecting it, some of the occurrences narrated. Being taken ex-parte, an affidavit is almost always
incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from the want of
suggestions and inquiries. It has thus been held that affidavits are generally subordinated in importance
to open court declarations because the former are often executed when an affiants mental faculties are
not in such a state as to afford her a fair opportunity of narrating in full the incident which has
transpired. Further, affidavits are not complete reproductions of what the declarant has in mind because
they are generally prepared by the administering officer and the affiant simply signs them after the same
have been read to her.[21]
In People v. Mangat,[22] this Court has reiterated the doctrine that discrepancies between sworn
statements and testimonies made at the witness stand do not necessarily discredit the witness. Sworn
statements/affidavits are generally subordinated in importance to open court declarations because the
former are often executed when an affiants mental faculties are not in such a state as to afford him a fair

opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much
more exact and elaborate. Thus testimonial evidence carries more weight than statements/affidavits.
Third, accused-appellant alleges that complainant failed to offer any resistance prior to or even
during her alleged rape thereby concluding that it could have been consensual. She did not ask for help
when the alleged rape took place in a populated area. She likewise did not try to escape when she had
the opportunity to do so.
This Court finds the above argument specious and unmeritorious. It should be noted that accusedappellant was brandishing an icepick which clearly showed his readiness to use the same by hitting
complainant with it. Besides, she testified that she was already weak and tired to be able to do anything
against three malefactors who were stronger than her. It would have been foolhardy for complainant to
resist the accused considering her weakened condition. The workings of a human mind placed under
emotional stress are unpredictable and people react differently - some may shout, some may faint, and
some may be shocked into insensibility while others may openly welcome the intrusion. In any case, the
law does not impose upon a rape victim the burden of proving resistance. Physical resistance need not
be established in rape when intimidation is exercised upon the victim and she submits herself against her
will to the rapists lust because of fear for life and personal safety.[23]
Lastly, complainant positively pointed at accused-appellant as one of the perpetrators of the
crime. Accused-appellant could not show any reason why complainant would point him as one of the
perpetrators of the crime. It is settled that where there is no evidence to show any dubious reason or
improper motive why a prosecution witness would testify falsely against an accused or falsely implicate
him in a crime, the testimony is worthy of full faith and credit. [24]
The trial court ordered accused-appellant to pay complainant moral damages in the amount of
P1,000,000.00. This award must be reduced to P50,000.00. The purpose of this award is not to enrich
the victim but to compensate her for injuries to her feelings. Moreover, moral damages for rape is fixed at
P50,000.00.[25]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Makati, Branch
138, finding accused-appellant Lope Liwanag guilty of violating P.D. No. 532 and sentencing him to suffer
the penalty of reclusion perpetua, to indemnify complainant Corazon Hernandez P20,000.00 as litigation
expenses and attorneys fees and to return the P60.00 is AFFIRMED with the MODIFICATION that the
amount of moral damages is reduced to P50,000.00. Costs against accused-appellant.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL H. SESBREO,accused-appellant.

DECISION
QUISUMBING, J.:
On appeal is the decision dated August 15, 1995, of the Regional Trial Court, of Cebu City, Branch
18, in Criminal Case No. CBU-31733, finding herein appellant, Raul H. Sesbreo, guilty of the crime of
murder and sentencing him to reclusion perpetua, for the death of one Luciano Amparado.
Appellant has been a practicing lawyer for over thirty (30) years. Admitted to the Bar on March 17,
1966,[1] he has achieved prominence in Cebu. The victim, Luciano Amparado, was a porter of William
Lines, Inc., a shipping company also based in Cebu.
On June 9, 1993, the Regional Director of the National Bureau of Investigation (NBI), Region 7, filed
a complaint against Sesbreo. Taking into consideration the gravity and other circumstances of the
offense, City Prosecutor Jufelinito R. Pareja created a committee of three assistant prosecutors to
conduct the preliminary investigation.[2]

On September 2, 1993, the committee charged Sesbreo with murder, allegedly committed as
follows:
That on or about the 3rd day of June 1993, at about 1:00 oclock early dawn, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a firearm,
with treachery and evident premeditation, with deliberate intent to kill, did then and there attack, assault,
and shot one Luciano Amparado, hitting him at the vital parts of his body, thereby causing upon him the
following physical injuries, to wit:
SHOCK SECONDARY TO GUNSHOT WOUND OF THE CHEST, POSTERO-LATERAL ASPECT,
RIGHT SIDE,
as a consequence of which said Luciano Amparado died few hours thereafter.
CONTRARY TO LAW.[3]
No bail was recommended. On September 2, 1993, appellant was arrested.
On September 3, 1993, the very day that the case was raffled to the trial court, appellant filed a
Motion To Quash Warrant of Arrest And/Or to Grant Bail. The motion was treated as urgent and
immediately set for hearing the next day. But the hearing did not push through due to the fact that it was
Saturday, and there was no prosecutor available. The hearing on the bail application was then reset to
September 6, 1993.[4]
Subsequently, the prosecution filed an Opposition to the Urgent Application for Bail. It prayed the
accuseds application for bail be denied after a summary hearing; or, alternatively, the application be
considered during the regular trial, after the arraignment of the accused.
The prosecution presented both testimonial and documentary evidence in connection with the said
Opposition. Later, the trial court denied the application for bail in a Resolution dated December 28,
1993. It reads in part:
After a careful analysis of the evidence adduced by the prosecution, the Court is of the well-considered
view and so holds that the evidence against the accused is strong. As such the accused has lost his
constitutional right to bail for it was determined after hearing that the evidence of guilt against him is
strong. To forfeit the constitutional right to bail in capital offenses, it is enough that the evidence of guilt is
strong (Pareja v. Hon. Amador E. Gomez, G.R. No. L-19733, July 31, 1962). The prosecution witnesses
in the case at bar positively identified the herein accused as the author of the crime charged and that the
weapon used in perpetrating the offense is the same as that owned by the accused as could be gleaned
from their testimonies and more particularly that of the ballistician. [5]
Before appellant could be arraigned, he dispensed with the services of his counsel.
Upon arraignment, appellant, acting as his own counsel, entered a plea of not guilty to the charge
in CBU No. 31733 for Murder.
Trial on the merits ensued. Pursuant to Sec. 5, Rule 114 of the 1985 Rules on Criminal Procedure,
the evidence presented at the bail hearings was automatically reproduced at the trial.
As summarized by the trial court the prosecutions version of the case is as follows:
...Prosecution witness Christopher Yapchangco declared that while he and Luciano Amparado were
walking along Almaciga St. (Exh. L-2), they saw Atty. Raul H. Sesbreo at the balcony of his house
which was well-lighted (Exh. L-1). They passed by and as they walked along Almaciga St. at a distance
of around 5 meters, more or less, from the gate of Atty. Raul H. Sesbreo, they heard the screeching
sound of a gate coming from their back. Immediately, he turned his head towards his back and saw Atty.

Raul H. Sesbreo standing in the middle of Almaciga St. in front of his gate and aiming his long firearm
towards them. From where Atty. Sesbreo stood to the place of Christopher Yapchangco and Luciano
Amparado were, there was nothing that could obstruct their view. Atty. Sesbreo first fired 2 shots and he
continued to fire at them. Luciano Amparado was hit and asked that he be brought to the hospital. There
was no other person who shot except Atty. Sesbreo (TSN, Cabatingan, 9/27/93). Another Prosecution
witness Rizaldy Rabanes testified that from his house to the house of Atty. Sesbreo, there was nothing
that could obstruct the view (TSN, page 12, Arnaez, 9/29/93). At about 1:00 oclock dawn on June 3,
1993, he heard two (2) shots. He saw two (2) persons running towards his house. He then saw Atty.
Raul Sesbreo standing at the middle of Almaciga Street fronting his gate and aiming his firearm and
firing in succession at the two (2) persons whom he recognized as Christopher Yapchangco and Luciano
Amparado. Yapchangco was running in a zigzag manner on the right side of Almaciga St. while Luciano
Amparado was running in the same manner on the left side of the road. His house was hit by a bullet and
his child was almost hit. Later, Christopher Yapchangco helped the wounded Luciano Amparado by
carrying him on his shoulder. While Yapchangco was carrying Luciano Amparado, he saw Erwin Parune
and Demeter Encina following them and helped Yapchangco by holding the feet of Luciano Amparado... [6]
The principal defense of the accused is outright denial. He alleged that while he was present at the
place and time of the incident in question, it was not he who shot the victim but an unidentified
person. His version of the incident was summarized by the trial court as follows:
[O]n June 3, 1993 at past midnight he heard noises coming from the store of his wife. He roused from
bed and peeped through the window overlooking the store. He saw that the door of his wifes store was
already forced open and three persons jumped down over the fence from the store carrying bags loaded
with stolen items. Outside the premises of his house by the roadside right in front of the store, he saw
Luciano Amparado and Christopher Yapchangco obviously acting as look out (sic). He went down
bringing along a sharp Samurai sword which was the only weapon available in his possession at that time
as his .38 cal. Revolver was left in his office. He opened the gate of his house to confront the robbers
and shouted at them to return the stolen goods by saying: Hoy, iuli nang inyong kinawat. Three of the
robbers who turned out to be Erwin Parune, Demeter Encina and Juanito Tanghian started to run towards
Lutao-lutao when Luciano Amparado told them to run away by saying SIBAT. He attempted to block the
three but Luciano Amparado shouted to him, saying : Ayaw na sila babagi. Dugay na baya ming
nagdumot batok nimo kay nagpasaka ka ug mga kaso batok kanamo. Then Luciano Amparado shot him
twice using a .22 caliber pistol. He was not hit. The third time that Luciano squeezed the trigger, the
pistol did not fire. He surmised that Luciano must have ran out of bullets or that his pistol jammed. He
was not hit because he ducked down to the ground behind the trunk of a decorative palm tree. Seeing
Luciano Amparado forcing open his gun, he stood up but Christopher Yapchangco shot him with an Indian
Pana. He ducked down again. He saw Luciano Amparado and Christopher Yapchangco walked (sic) fast
towards Lutao-lutao. The companions of the two, namely, Erwin Parune, Demeter Encina, Juanito
Tangihan, Boy Rabanes and others threw stones at him but failed to hit him because he ducked down on
the same spot where he ducked down when Luciano Amparado shot him with a .22 cal. pistol. At the
corner of Tugas-Alamaciga Streets an unidentified person with a companion shouted: Hoy, aya ni iapil
ug bato kay wal miy labot, followed by the word Ayay. The said unidentified person who was standing
at the elevated portion of the gutter of corner Almaciga-Tugas Streets who was taller than Luciano
Amparado, shot Luciano Amparado two times xxx hitting him on the right side below the armpit. [7]
After the parties had rested their respective case, the trial court rendered the assailed judgment, the
dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds the accused, Raul H. Sesbreo, guilty beyond
reasonable doubt, as principal, for the crime of Murder, defined and penalized by Article 248 of the
Revised Penal Code, and sentences him to suffer the penalty of RECLUSION PERPETUA, with the
inherent accessory penalties provided by law; to indemnify the heirs of the deceased, Luciano Amparado,
in the amount of P50,000.00; and to pay the costs.
SO ORDERED.[8]

Before us, appellant raises now the following assignment of errors:

1. THE TRIAL COURT GROSSLY ERRED IN NOT FOLLOWING THE PROCEDURE FOR
RAFFLE OF CASES PER SECTION 7, RULE 22, RULES OF COURT.
2. THE TRIAL COURT GROSSLY ERRED WHEN HON. ARRIESGADO REFUSED TO
DISQUALIFY HIMSELF FROM TRYING THIS CASE WHILE, IN COMPARISON, HE
INHIBITED HIMSELF IN TRYING OR HEARING THE COMPANION CASE, CBU-31734.
3. THE TRIAL COURT GROSSLY ERRED IN DISREGARDING OR IGNORING EVIDENCES
OF SUBSTANCE AND IMPORTANCE WHICH, IF CONSIDERED, WOULD ALTER THE
RESULTS OR DECISION IN THIS CASE.
4. THE TRIAL COURT ERRED IN RELYING ON SPECULATIONS, SURMISES OR
CONJECTURES IN ARRIVING AT ITS CONCLUSIONS WHICH ARE CONTRADICTED BY
THE EVIDENCE ON RECORD.
5. THE TRIAL COURT ERRED IN FAILING OR REFUSING TO CONSIDER THE REASONS
OF THE ACCUSED-APPELLANT THAT THE PROSECUTION FAILED TO PROVE THE
GUILT OF THE ACCUSED BEYOND THE SHADOW OF A SINGLE DOUBT OR FAILED TO
TRAVERSE THE CONSTITUTIONAL AND STATUTORY PRESUMPTION OF INNOCENCE
OF THE ACCUSED.
6. THE TRIAL COURT ERRED IN REFUSING TO RESOLVE THE MOTION TO STRIKE OUT
THE TESTIMONY OF MONICA AMPARADO WHICH WAS NOT SUBJECTED TO CROSSEXAMINATION.
7. THE TRIAL COURT ERRED IN REFUSING TO DISQUALIFY THE PRIVATE
PROSECUTORS FROM APPEARING IN THIS CASE DUE TO THE NON-PAYMENT OF
FILING FEES FOR CIVIL CLAIMS FOR DAMAGES AND SINCE MONICA AMPARADO DID
NOT ENGAGE THE LEGAL SERVICES OF THE PRIVATE PROSECUTORS.
8. THE TRIAL COURT ERRED IN ADMITTING PROSECUTION EVIDENCE NOT PROPERLY
IDENTIFIED IN OPEN COURT AND NOT SUBJECTED TO CROSS-EXAMINATION.
9. THE TRIAL COURT GROSSLY ERRED IN NOT APPLYING PAR. 1, SECTION 12, BILL OF
RIGHTS, 1987 CONSTITUTION, IN RELATION WITH PAR. 2, SECTION 14, ARTICLE III,
CONSTITUTION (ON RIGHT TO BE HEARD BY HIMSELF AND COUNSEL), PAR. C,
SECTION 1, RULE 115, RULES ON CRIMINAL PROCEDURE (RIGHT TO DEFEND IN
PERSON AND BY COUNSEL AT EVERY STAGE OF THE PROCEEDINGS FROM THE
ARRAIGNMENT TO THE PROMULGATION OF THE JUDGMENT); AND SECTION 7,
RULE 116, RULES ON CRIMINAL PROCEDURE.
10.

ASSUMING WITHOUT ADMITTING THAT THE PENAL CONVICTION OF THE

ACCUSED IS NOT A REVERSIBLE ERROR, STILL, THE TRIAL COURT GROSSLY
ERRED IN NOT TAKING INTO ACCOUNT SECTION 19(1), ARTICLE III, CONSTITUTION
ABOLISHING THE DEATH PENALTY and IN NOT APPLYING THE JURISPRUDENCE IN
PEOPLE vs. ALCANTARA, 163 SCRA 788-789; PEOPLE vs. NOLASCO, 163 SCRA 629630 AND PEOPLE vs. MABUHAY, 185 SCRA 681.

11.

THE TRIAL COURT GROSSLY ERRED IN CONCLUDING THAT TREACHERY AND

EVIDENT PREMEDITATION WERE PROVEN BY THE PROSECUTION EVEN IF THERE IS
NO EVIDENCE TO SUPPORT SUCH CONCLUSION OR THAT THE SAME WAS BASED
ON SPECULATIONS, SURMISES AND CONJECTURES OR ASSUMPTIONS WITHOUT
EVIDENTIARY SUPPORT.

In addition, appellant also submits the following for consideration of the Court:
12.

THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF THE

PROSECUTION WITNESSES DESPITE PROOF THAT THEY WERE ACTUATED BY

ULTERIOR AND IMPROPER MOTIVES OR THAT THEIR TESTIMONIES ARE NOT

CREDIBLE FOR BEING CONTRARY TO HUMAN EXPERIENCE AND KNOWLEDGE.
13.

THE TRIAL COURT ERRED IN DENYING THE ACCUSED-APPELLANT (HIS

RIGHT) TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF HIS CASE.

14.

THE TRIAL COURT ERRED IN DISMISSING THE CONTEMPT CHARGES FILED

BY APPELLANT AGAINST RADIO ANNOUNCERS WHO WERE TRYING TO INFLUENCE
THE TRIAL COURT INTO CONVICTING THE APPELLANT.[9]

Appellant submits that Assigned Errors 3, 4, 5, 8, 11, and 12 may be consolidated and discussed
together because the issues all boil down to whether or not the prosecution has sufficiently overcome the
constitutional presumption of innocence of the accused. [10]
Considering these assigned errors, the pertinent issues could be summed up as follows:
1.

Were appellants fundamental rights, including his right to due process of law, violated in this
case because:
(a) there was no speedy trial and disposition of the case?
(b) the trial judge erred in refusing to disqualify himself from hearing the case?
(c) the trial court erred in refusing to re-raffle the case?
(d)

the trial court erred in refusing to disqualify the private prosecutors?

(e)

there was publicity prejudicial to accused?

2.

Was the right to counsel of the accused violated?

3.

Is the evidence presented by the prosecution sufficient to overcome the presumption of

innocence of the accused, and to prove him guilty beyond reasonable doubt?

4.

Is the penalty imposed on appellant correct?

We shall now discuss these issues in seriatim.
Article III, Section 14 of the Constitution provides:

(1) No person shall be held to answer for a criminal offense without due process of law;
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the production of evidence in
his behalf.
Appellant anchors, firstly, his claim that due process was violated because his right to speedy trial
was violated. However, the records of this case reveal that bail hearings started on September 27, 1993,
and terminated on November 8, 1993. He was arraigned on January 11, 1994. The prosecution
presented its first post-bail hearings witness on the same day. The defense presented its first witness on
June 7, 1994. The decision of the lower court was promulgated on August 15, 1995. With this chronology,
in our view, no undue delay could be imputed, much less persuasively shown, against appellee and the
trial court.
Appellant also claims the trial court ignored various Supreme Court Circulars ordering judges to
decide cases within ninety days from the inception of trial. [11] This is not quite accurate. The ninety-day
period applies only after the case is submitted for decision, not from the start of the trial. [12]

If the trial appeared lengthy, it was largely due to the number of witnesses presented, 13 for the
prosecution and 15 for the defense. Appellant himself took the witness stand a total of 76 times, including
21 times on rebuttal alone. As observed by the trial court:
...The manner of presenting his defense, undertaken by himself alone without the proper advice of a
defense counsel, had contributed largely to the prolonged trial of the case. [13]
Whether intentional or not, appellants conduct of his own trial contributed to time-consuming tussles
in the lower court. How could the accused complain of delays, where he himself caused them? [14]
Appellant also alleges that his right to a speedy disposition of his case was violated. He claims that
the trial judge gave preference to a civil case, as against his right as a detention prisoner to have his case
given preference pursuant to R.A. 6033. [15] This is unfounded, to say the least. The hearing of the civil
case ahead of his case happened only once.[16]
Appellant likewise claims the trial judge was partial, biased, and prejudiced because he refused to
disqualify himself from hearing this case while he inhibited himself from trying its companion case. But as
held in Velez v. Court of Appeals, 34 SCRA 109 (1970), mere imputation of partiality or bias is not a
ground for inhibition.
The grounds for disqualification or inhibition of judges provided for in Section 1, Rule 137, Rules of
Court are as follows:
SECTION 1. Disqualification of judges No judge or judicial officer shall sit in any case in which he or
his wife or child, is pecuniarily interested as heir, legatee, creditor, or otherwise or in which he is related to
either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision
is the subject of review, without the written consent of all parties in interest, signed by them and entered
upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or
valid reasons other than those mentioned above.
None of the grounds above was cited to support the trial judges disqualification. None was
applicable to him. Though the Rule provides other just and valid grounds on which a judge may disqualify
himself, they are addressed to his sound discretion, and there was no abuse of said discretion. We can
only conclude that the trial judge, contrary to appellants claim, did not err in refusing to inhibit himself in
the case at bar.
That the trial judge opted to believe the prosecutions evidence rather than that of the defense is not
a sign of bias.[17]
Appellants assertion that the trial court erred in refusing to agree to re-raffle the case is, in our view,
baseless. There is no showing that appellant raised the issue of lack of notice of raffle at the earliest
opportunity. The appellant first filed his Motion for Re-Raffle of Case or Transfer of Case to Another
Branch of the RTC of Cebu City only on January 25, 1994. [18] It was filed after appellant was already
arraigned, and after the prosecution had presented its first witness. In fact, the trial court already issued a
Resolution denying his application for bail. [19] Appellant had willingly and actively participated in these
proceedings before the trial court. [20] By actively participating thereon, appellant is now deemed estopped
from complaining that the proceedings were technically defective for want of a notice of the raffle of his
case. To say the least, appellants claim comes too late to be of any merit.
On the matter of disqualifying private prosecutors, it must be stressed that the interest of the private
complainant is limited to the civil aspect of the case. [21] Even if the trial court had allowed the presence of
private prosecutors, it did not affect the criminal aspect of the case. The records clearly show that the
public prosecutor remained in full control during the trial. As provided in Section 5, Rule 110, Rules of

Court, the case was prosecuted under the direction and control of the public prosecutor. Nothing on
record shows that he lost control and direction of the prosecution of the case just because of the
presence of private prosecutors.
Further, the appellant alleges that certain members of media with whom he had a long-standing
battle, were pressuring the trial court to convict the accused. [22] He states that these media men
attended the promulgation of the judgment to insure the success and satisfaction of their desire for
revenge against the appellant,[23] and that adverse publicity influenced the trial court into convicting the
appellant.[24] He now faults the trial court for refusing to declare these journalists in contempt of court.
However, the courts refusal to find said media practitioners in contempt is not a reversible error that
would warrant the acquittal of the accused. It was entirely within the discretion of the trial court to
determine whether or not the media personnel concerned were guilty of contempt. Besides, a thorough
review of the records yields no sufficient basis to show that pervasive publicity unduly influenced the
courts judgment. Before we could conclude that appellant was prejudiced by hostile media, he must first
show substantial proof, not merely cast suspicions. There must be a showing that adverse publicity
indeed influenced the courts decision, as held in Webb v. De Leon, 247 SCRA 653 (1995) and People v.
Teehankee, 249 SCRA 54 (1995).
[T]o warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of publicity. [25]
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to
seal the minds of the members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly protected from
publicity lest they lose their impartiality. x x x Our judges are learned in the law and trained to disregard
off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se infect their impartiality.
At best appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage
of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et
al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we
ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar,
the records do not show that the trial judge developed actual bias against appellant as a consequence of
the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is
incapable of change even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden. (Italics in the original)[26]
Absent a persuasive showing by the appellant that publicity prejudicial to his case was responsible
for his conviction by the trial judge, we cannot accept his bare claim that his conviction ought to be
reversed on that ground.
Relatedly, on the second issue, it must be pointed out that appellant has been a practicing lawyer of
long standing. Initially, he was assisted by counsel of his choice in this case. But he later terminated the
services of his counsel due to disagreements. He then took full control of his defense.
As manifested in his motion regarding the Order dated December 28, 1993 (Bail Application), he
asked the trial court to:

3. PLEASE NOTE that the undersigned is taking COMPLETE CONTROL in his defense in the two (2)
cases (CBU-31373 and CBU-31734) since he now realizes that it is to his best interest and advantage
that does so under right under par. c, Sec. 1, Rule 115, Rules on Criminal Procedure and his lawyers are
being subjected to pressure.[27]
Before his arraignment on January 11, 1994, the trial court asked clarification from appellant, to wit:
ATTY. SESBREO:
Appearing as counsel in my own behalf
COURT:
Who are (sic) representing you in these cases?
ATTY. SESBREO:
Your Honor please, I am taking full control of the proceedings, Your Honor particularly the
presentation of my own testimony but with respect with other witnesses that may be presented by
my lawyer. I fully understand the contents, the lateral import and allegations in the information. I
would like to make it of record that in entering a plea of not guilty to such information I would
make it clear that I am not waiving my right to present my rebuttal evidence in the application for
bail which it is under Section 5 of Rule 114 which supposed to be a separate hearing from the
formal trial on the merits. That I have not agreed to have a joint hearing for the application for bail
and of the formal trial on the merits. I have not also waive (sic) my right to question to issuance
of the warrant of arrest of Section 2 of the Bill of Rights.
COURT:
But we have to arraign you because under the 1985 Rules on Criminal Procedure as amended
there is no such thing as waiver of the arraignment. Necessarily, under the rules or whatever
category is that crime charged the accused must be arraigned even for Physical Injuries. So,
under the set-up we have to conduct an arraignment in both cases.
ATTY. SESBREO:
That is the prerogative of the Court. My only statement to be made it (sic) of record that I have
never waive (sic) those right (sic) which I just stated.
COURT:
Well, waiver or no waiver, the law clearly and explicitly provides that only waiver (sic) which are
not contrary to law, morals, and public policy are considered or countenance (sic) in Court. All
waivers which will run counter to public policy, morals and the law, they are all considered waivers
which are null and void. All those things will be taken into considerations (sic). Statutes as well
as jurisprudence, the Court is taking care of all those things. Arraigned (sic) the accused. But
before going into this, are you really sure with the magnitude of the charged against you will
never solicit the assistance of counsel as you did before?
ATTY. SESBREO:
I have sought the assistance of counsel. I know the saying that a lawyer who acts as his own
counsel is a fool, Your Honor. I would be a big fool if I will allow myself to be represented (by) a
lawyer who maybe (sic) pressured.
COURT:
I have already stated in my order that insofar as this Presiding Judge is concerned there was no
observation of such pressure within the four (4) walls of this Court. I dont know outside the four
(4) walls of this Court. But I would like to tell all and sundry that insofar as the alleged pressure is
concerned, the Court noted no such pressure within the four (4) corners of this room.

ATTY. SESBREO:
The pressure that I made on myself and this counsel will be testified on the witness-stand (sic)
when my turn comes, underoath (sic).
COURT:
To repeat, you do not want the assistance of any other counsel even possibly with (sic) the
assistance of the PAO lawyer?
ATTY. SESBREO:
There is no need, Your Honor because under paragraph 6, Section 1, Rule 150 the accused can
act as his own counsel and at his option can seek the assistance of another lawyer. I fully
understant (sic) the import of the information.
COURT:
So you have chosen despite the proddings of this Court that you have to solicit the assistance of
counsel as you did before. That you are waiving tjos (sic) right to be assisted by counsel.
ATTY. SESBREO:
That is correct.
COURT:
Let us arraigned (sic) the accused. Let it be placed on record (that) despite the proddings of
this Court, the accused wanted to act as counsel for himself.
COURT: (to accused)
Does this imply that even the new counsel you have included in your pleadings as Atty.
Crisologo R. Monteclar he is never your lawyer?
ATTY. SESBREO:
He is my lawyer but as I said I am taking full control of this (sic) proceedings. I will take legal
consultation with my lawyers if the need arises.
COURT:
Are we made to understand that henceforth, there shall be no more notices to be sent to these
lawyers because you are now taking full control of these cases against you?
ATTY. SESBREO:
Notice to me will be notice to them. I (will) just request, Your Honor additional notices when
necessary to the additional lawyers. I think that is the legal procedure on the matter.
COURT:
You may now arraign the accused in both cases.[28]
Despite admonitions of the trial court, he persisted in his decision to try his own case. The record
shows appellant, acting as his own counsel, filed the notice of appeal. To allege now that his right to be
assisted by counsel was violated is to bend the truth too far. In Gamboa v. Cruz,[29] we held that the
substantial and constitutional right of the accused to counsel is not violated where he was represented by
a member of the Bar. Appellant chose to be represented in this case by a prominent and competent
member of the Bar, namely himself, even if there were other available counsel like Atty. Crisologo
Monteclar. Appellant is now estopped from claiming that the trial court violated his right to be represented
by counsel of his own choice. Note that he also brushed aside the courts offer of assistance by another
counsel, a PAO lawyer. He declared there was no need therefor.

The essential requirements of due process in this jurisdiction are well established, viz:
(1)

There must be a court or tribunal clothed with judicial power to hear and determine the
matter before it;

(2)

Jurisdiction must be lawfully acquired over the person of the defendant or property which is
the subject of the proceeding;

(3)

The defendant must be given an opportunity to be heard; and

(4)

Judgment must be rendered upon lawful hearing. [30]

In People v. Castillo, et al. 76 Phil. 72, 87, we ruled that if an accused has been heard in a court of
competent jurisdiction, and proceeded against under the orderly process of law, and only punished after
inquiry and investigation, upon notice to him, with opportunity to be heard, and a judgment awarded within
the authority of the constitutional law, then he has had a due process.
Applying the aforementioned test to the circumstances of the instant case, the Court finds no breach
of appellants fundamental rights, including his right to due process and to counsel, which would justify
reversal of the assailed decision.
On the crucial third issue, we must inquire now whether the prosecution has overcome the
presumption of innocence in favor of the accused. Otherwise stated, is the evidence presented by the
prosecution sufficient to prove his guilt beyond reasonable doubt?
The victims companion, Christopher Yapchangco, as witness for the prosecution, testified under
oath as follows:
ATTY. DURANO:
Now while you were walking along Almaciga Street with Luciano Amparado, can you tell us what
happened?
A: While we were already at a distance of five (5) meters, more or less, from the gate of the house of
Raul Sesbreno we heard screeching sound of the gate of Atty. Sesbreno
Q: From where you were walking along that Almaciga Street heading towards Lutao-Lutao from what
side did you hear the screeching sound of the gate?
A: At our back.
Q: When you heard that screeching sound of the gate on what side did you turn around while you
were along Almaciga Street?
INTERPRETER:
Witness indicating by turning his head towards the back.
ATTY. DURANO:
When you turned your head towards the gate, would you kindly tell the Honorable Court what
happened, if anything?
A: So, we saw Atty. Sesbreno aiming his long firearm towards us.
Q: When you saw Atty. Raul Sesbreno aiming his rifle towards you, as far as you can recall how far
were you and Luciano Amparado to Raul Sesbreno?
A: Five (5) meters, more or less.
Q: From the place where you saw Atty. Sesbreno aiming his rifle was there anything between you and
Atty. Sesbreno that could obstruct your view?
A: No, sir, there was none.[31]

xxx
Q: When you saw Atty. Sesbreno aiming his rifle at you, what happened, if any, please tell the
Honorable Court?
A: Simultaneously two (2) shots being fired we ran immediately.[32]
xxx
Q: While you were running in a zigzag manner and Amparado also running in a zigzag manner, will
you please tell the Honorable Court, what happened next?
A: I saw Luciano Amparado running in a staggard (sic) manner.[33]
Q: While you were running in a zigzag manner at that very point in time you saw Luciano Amparado
staggering where was Atty. Sesbreno in relation to you?
A: He was at our back.
Q: Would you kindly tell the Honorable Court what he was doing while he was at your back?
A: He was still standing aiming his rifle towards us.[34]
xxx
Q: What happened while you were running in a zigzag manner and Luciano Amparado staggering
towards (the) a corner?
A: We were even shot by Atty. Sesbreno with two (2) firing gun (sic).
Q: After that what happened?
A: And I aided Luciano Amparado who was at that time running in a staggered (sic) manner.[35]
xxx
Q: While you helped Luciano Amparado and in fact you noticed the part of his back was hit, what
happened after that?
A: Luciano Amparado told me by saying he was hit and please bring me to the hospital.
Q: In effect, what did you do?
A: And I heard a continuous firing of the gun.
Q: From what direction in relation to you from where you were did you hear continuous firing of the
gun?
A: At our back.[36]
While appellant argues that Yapchangco admitted that he never saw who fired the gun shots,
because he was busy running and did not look back, on record is Yapchangcos declaration that there
was no person other than appellant who fired a firearm. As held in People v. Salveron,[37] if an eyewitness
saw the accused with a rifle, seconds after the gunshot and after the victim fell to the ground, the
reasonable conclusion thereon is that the appellant killed the victim.
Another eyewitness, Rizaldy Rabanes, also identified appellant as the one who fired at Amparado
and Yapchangco:
Q: Going back to the question, during the time you were attending your 6-month baby (who was)
teething, was there anything unusual that happened?
A: Yes, there was.
Q: Could you kindly please tell the Honorable Court?

A: At that time, I heard two (2) shots. So, I stood up and I peeped through my window and there was
simultaneous firing of a gun. So, I immediately opened my window. Then, I saw two (2) persons
running towards my house and also then I saw Atty. Raul Sesbreno aiming a firearm and fired
(sic) it rapidly, and he did not even know that my house was hit and my house was shaken. [38]
xxx
Q: Who were those two (2) people running towards your house?
A: Yapchangco and Luciano Amparado.[39]
Further, prosecution witness Edwin Parune testified that he and his companion, Demeter Encina,
saw Amparado totter, after being shot, towards the bougainvillea plant at the side of Almaciga
Street. There Amparado eventually fell on the ground, face upward. Parune also declared he and Encina
saw appellant in the middle of the street, carrying a long firearm while going towards the gate of his
house. They saw Yapchangco approach the fallen Amparado and lift him. Parune and Encina then
helped Yapchangco bring Amparado to the hospital where he died. [40]
With such wealth of details, we cannot fault the trial court for giving credence to the testimony of the
prosecutions witnesses. Moreover, we must concede that generally, the trial judge is in a better position
to decide on questions of credibility of witnesses and materiality of the evidence presented. [41] Findings of
the trial judge who had the fullest opportunity to observe the demeanor of the witnesses and to assess
their credibility are entitled to the highest degree of respect. [42] Factual findings of the trial court, if
adequately supported by the records of the case, will generally not be disturbed by the appellate courts
on appeal.[43]We see no reason now to depart from this rule. The voluminous records of this case support
the factual findings of the trial court. On these findings we must now rely, unless it could be shown that
the trial judge overlooked or ignored material facts on record that would contradict these findings, or
change the resulting conclusions.
The defense failed, in our view, to refute the positive identification made by the prosecution
witnesses who tagged the appellant as the one who shot the victim. These eyewitnesses declarations
are positive testimonial evidence. The appellants denial that he was the gunman is negative testimony.
[44]
The positive, forthright declarations of eyewitnesses certainly outweigh the negative, self-serving
denial of the accused.[45] While appellant claims somebody else shot the victim dead, appellant did not, as
he could not, identify this purported gunman up to now. Surely he could not expect us to believe his claim
of a gunslinger emerging from the shadows to slay the victim, without more credible proof thereon.
Appellant harps on what he perceives to be inconsistencies of the witnesses testimony. However,
they are inconsistencies on negligible details that do not destroy the credibility and veracity of the
testimony offered. No improper motive appears to vitiate the sworn statement of the
witnesses. Variations in the declarations of witnesses respecting incidental matters do not detract from
the weight of testimony in its entirety as to material and important facts. [46] Nor do minor inconsistencies
preclude the positive identification of the accused. [47] Minor inconsistencies in the testimonies of
witnesses strengthen, rather than weaken, the credibility of the witnesses, as it clearly shows that the
testimonies offered are neither rehearsed nor coached. [48]
But in regard to the lethal weapon used in the commission of the offense, there is no justifiable
reason, in our view, for doubt or dispute. The firearm used was a .22 caliber rifle, registered in the name
of appellant.
Noteworthy is the testimony of the NBI ballistician on record. He found that the shell marked exhibit
ES-1 and the test shell marked TS-2 possessed sufficient identical markings to show both were fired
from one and the same firearm;[49] that the size, shape, and location of the firing pin marks on the two
shells were the same;[50] and that evidence shell ES-1 and another test shell marked TS-3 were fired
from one and the same firearm.[51] The prosecution amply showed that the test shells TS-2 and TS-3
were test-fired from a .22 caliber rifle owned by appellant. He himself had submitted both the rifle and
test bullets for re-registration during a re-registration of firearms campaign conducted by the police, with
test-firing done on March 22, 1990.[52]

The ballisticians testimony refutes appellants claim that there was no conclusive finding on the
firearm used in the shooting of the victim, since there were no sufficient congruent striations on the
evidence and test bullets. Appellant argues that there were no sufficient markings which could lead to a
positive conclusion that the evidence and test bullets were fired from one and the same firearm. [53] This
argument, however, is rebutted by the ballistician, who pointed out that the slug was copper-coated and
this coating material could be easily removed. [54] Even a mere scratch of a fingernail could remove the
coating, and make comparison of striations for identification purposes difficult, if not impossible. Appellant,
however, could not deny the ballisticians conclusive findings as to the similarity of resultant markings in
the evidence and test shells submitted to the trial court.
Thus, both testimonial and real evidence presented by the prosecution lead us to the firm conclusion
that the presumption of appellants innocence has been overcome and his guilt established beyond
reasonable doubt. He is criminally responsible for the killing of the victim, Luciano Amparado.
However, we now come to the next inquiry in regard to the third issue. Was the killing murder as
found by the trial court, or homicide as averred by the Solicitor General? According to him, the trial court
erred in finding the appellant guilty of murder, because the prosecution failed to prove the qualifying
circumstances of evident premeditation and treachery. On these matters, we find both the appellants and
the Solicitor Generals submission meritorious.
Circumstances specifying or qualifying an offense, or aggravating the penalty therefor must be
proved as conclusively as the act itself. [55] Evident premeditation is appreciated where the execution of a
criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent.
[56]
The requisites of evident premeditation are:
1. The time when the accused determined to commit the crime.
2. An act manifestly indicating that the accused has clung to his determination.
3. A sufficient lapse of time between such determination and execution to allow him to reflect
upon the circumstances of his act.[57]
Here, these requisites were not met. There was no evidence presented as to the date and time
when appellant planned to kill the victim and his companion, Yapchangco. Even if the time when the
appellant had planned such killing could be determined, there is no showing that from such time up to the
time when the victim and Yapchangco passed appellants house in the wee hours of the morning of June
3, 1993, sufficient time had elapsed to allow appellant to reflect on his plan and persist in carrying it
out. We cannot, based on the prosecutions evidence, sustain the finding of evident premeditation absent
a conclusive showing of the constitutive elements of this vital circumstance qualifying the offense of
murder.
Neither can we sustain the findings of the trial court with respect to the presence of
treachery. Treachery is present when the offender employs means, methods, or forms which tend to
directly and specially insure the execution of the crime, without risk to himself arising from the defense
which the offended party might make.[58] The essence of treachery is the sudden and unexpected attack
by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself,
thereby, ensuring its commission without risk to the aggressor, and without the slightest provocation on
the part of the victim.[59]
To be appreciated, treachery requires proof of the following:
1. the employment of means of execution which gives the person assaulted no opportunity to defend
himself or retaliate; and
2. that said means of execution were deliberately or consciously adopted by the assailant. [60]
In this case, the prosecution failed to prove that the means of attack used by the appellant were
deliberately adopted by him to kill the victim. Yapchangcos testimony shows that he and the victim just
happened to pass by the house of appellant at a time when the latter was in his balcony. There is no

showing that appellant knew or expected that the victim and Yapchangco would pass by his house at that
time.
In the absence of the qualifying circumstances of evident premeditation and treachery, the crime
committed is not murder but only homicide.
We now come to the last issue concerning penalty. Reclusion perpetua is appropriately imposed if
the conviction is for murder, but not for homicide. Under Article 249 of the Revised Penal Code, the
applicable penalty for homicide is only reclusion temporal.
As there are neither aggravating nor mitigating circumstances found by the trial court or shown after
a review of the records, the penalty in this case shall be fixed in its medium period of reclusion temporal,
which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4
months. Further, applying the Indeterminate Sentence Law, the imposable penalty shall be within the
range ofprision mayor as a minimum to reclusion temporal in its medium period as the maximum. The
range ofprision mayor is from 6 years and 1 day to 12 years. The span of reclusion temporal, medium, is
from 14 years, 8 months, and 1 day to 17 years and 4 months.
WHEREFORE, the assailed decision of the Regional Trial Court of Cebu City, Branch 18, in Criminal
Case No. CBU-31733 is hereby MODIFIED. Appellant Raul H. Sesbreo is hereby found GUILTY of
HOMICIDE and hereby sentenced to suffer a prison term of 9 years and 1 day of prision mayor, as a
minimum, to 16 years and 4 months of reclusion temporal, as a maximum, with accessory penalties
provided by law, to indemnify the heirs of the deceased Luciano Amparado in the amount of P50,000.00,
and to pay the costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELEGIO NADERA, JR. Y SADSAD, accusedappellant.
DECISION
MENDOZA, J.:
These cases are before us on automatic review of the decision of the Regional Trial Court, Branch 40,
Calapan, Oriental Mindoro, finding accused-appellant Elegio Nadera, Jr. guilty of four counts of rape of his
minor daughters, Oleby and Maricris Nadera, and sentencing him to suffer the penalty of reclusion
perpetua for one count of rape and death for each of the remaining three counts. Accused-appellant was
also ordered to indemnify complainants Oleby Nadera in the amount of P150,000.00 and Maricris Nadera
in the amount of P50,000.00, without subsidiary imprisonment in case of insolvency. MENDOZAJ
Reversal of the decision is sought on the sole ground that THE TRIAL COURT GRAVELY ERRED IN ACCEPTING ACCUSED-APPELLANT'S
IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE AND IN FAILING TO
CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER THE ACCUSED
FULLY UNDERSTOOD THE CONSEQUENCE OF HIS PLEA.[1]
The facts are as follows:
Accused-appellant Elegio Nadera, Jr. has four children by his wife Daisy, namely: Oleby, born on October
2, 1982; Maricris, born on March 16, 1984; March Anthony, born on January 8, 1986; and Sherilyn, born
on September 27, 1987.[2]

On September 22, 1991, Daisy left for a job in Bahrain, and came home to the Philippines for vacation
only in July 1993. She then left again for Bahrain in September 1993 and did not return until September
12, 1995.[3]
On April 28, 1996, Oleby and Maricris, assisted by a neighbor, Lita Macalalad, told their mother that they
had been raped by their father, herein accused-appellant. Thereupon, they went to the police authorities
of Naujan and filed a complaint against accused-appellant. [4]
After preliminary examination, on June 6, 1996, four informations charging accused-appellant with rape
on various dates were filed in the Regional Trial Court, Calapan, Oriental Mindoro.
In Criminal Case No. C-4982, the information[5] allegedThat on or about the 17th day of May, 1992, at around 10:00 o'clock in the evening, at
Barangay Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, motivated by
lust and lewd design, and by means of force and intimidation, wilfully, unlawfully and
feloniously did lie and succeeded in having carnal knowledge with his daughter, OLEBY
NADERA, nine (9) years of age at that time against the latter's will and consent.
In Criminal Case No. C-4983, the information[6] charged That on or about the 17th day of April, 1995 at Barangay Bayani, Municipality of Naujan,
Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, motivated by lust and lewd design, and by means of
force and intimidation, wilfully, and unlawfully and feloniously did lie and succeeded in
having carnal knowledge with his daughter, OLEBY NADERA, twelve (12) years of age at
that time against the latter's will and consent.
In Criminal Case No. C-4984, the information[7] statedThat on or about the 24th day of April, 1995, sometime in the evening, at Barangay
Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, motivated by lust and
lewd design, and by means of force and intimidation, wilfully, unlawfully and feloniously
did lie and succeeded in having carnal knowledge with his daughter, OLEBY NADERA,
twelve (12) years of age at that time against the latter's will and consent.
In Criminal Case No. C-4985, the information[8] recited That on or about the 3rd day of March 1996 at around 8:00 o'clock in the evening, at
Barangay Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, motivated by
lust and lewd design, and by means of force and intimidation, wilfully, unlawfully and
feloniously did lie and succeeded in having carnal knowledge with his daughter,
MARICRIS NADERA, eleven (11) years of age against the latter's will and consent.
The record shows that at his arraignment on July 23, 1996, accused-appellant, assisted by Atty. Manolo
A. Brotonel of the Public Attorney's Office, pleaded not guilty to the charges filed against him. [9] However,
on August 5, 1997, after the prosecution had presented Dr. Cynthia S. Fesalbon, accused-appellant
pleaded guilty to the crime charged in all the informations.

The prosecution presented four witnesses, namely: Dr. Cynthia Fesalbon, Oleby Nadera, Maricris
Nadera, and Daisy Nadera.
Dr. Cynthia S. Fesalbon, Medical Officer IV of the Oriental Mindoro Provincial Hospital, who conducted
the medical examination of both complainants, submitted a report on the result of Oleby Nadera's
examination as follows:[10]
PHYSICAL EXAMINATION:
- No sign of external physical injuries as of time of examination.
- Breast developed
- Abdomen: flat, soft non-tender.
EXTERNAL GENITALIA
- Minimal pubic hair
- Healed incomplete hymenal lacerations at 5, 7, 12 o'clock positions.
- No bleeding.
INTERNAL SPECULUM EXAMINATION
- Vagina admits 2 fingers with ease.
- Cervix small, firm, close non-tender (-) bleeding.
- Uterus not enlarged.
- Adnexae negative
LABORATORY EXAMINATION:
- Smear for the presence of spermatozoa revealed positive result.
She testified that the hymenal lacerations may have been caused by the insertion of a hard object, the
patient's history of genitalic insertions, a straddle injury, or sitting on hard wood. She could not determine
when these lacerations were sustained because they had healed over a period beyond seven days. [11]
Dr. Fesalbon likewise rendered a report[12] on the medical examination of Maricris Nadera, the pertinent
parts of which state:
PHYSICAL EXAMINATION:
- No sign of external physical injuries as of time of examination.
- Abdomen, flat, soft.
EXTERNAL GENITALIA:
- Absence of pubic hair healed hymenal lacerations, incomplete at 1, 5,
8, 11 o'clock positions.
INTERNAL EXAMINATION:
- Vagina admits 1 finger with ease.
- Cervix small (-) bleeding

- Uterus not enlarged.

-Adnexae (-).
LABORATORY EXAMINATION
- Smear for the presence of spermatozoa revealed Negative result.
In the case of Maricris Nadera, Dr. Fesalbon explained that the hymenal lacerations could have been
caused by penetration such as through instrumentation or insertion of an object inside the vagina. They
could also have been caused by the penetration of the penis. Upon inquiry from the court, Dr. Fesalbon
stated that the fact that Maricris had more hymenal lacerations than Oleby could be due to the difference
in the impact of penetration. She added that the number of times each of the girls had sexual intercourse
could not be ascertained merely from the hymenal lacerations, although it could be concluded that an
object had been inserted in the vagina.[13]
Oleby Nadera testified about the rapes committed by her father against her as follows:
On May 17, 1992, at around 10 o'clock in the evening, while Daisy was away working as a domestic
helper in Bahrain, accused- appellant pulled Oleby, then nine years of age, towards a bed, removed her
panties and shorts and ordered her to keep quiet. He then placed himself on top of her and inserted his
penis into her vagina. He proceeded to make an up and down motion while on top of his daughter. All the
while, Oleby was crying, pleading with her father, "Huwag po!", "Huwag po!" Accused-appellant again
ordered Oleby to keep quiet lest her brother and sisters were awakened. Afterwards, accused-appellant
told Oleby to put on her panties and shorts and to go to sleep. Oleby went to the bed where her brother
and sisters were sleeping and cried.
On another occasion, on April 17, 1995, accused-appellant sent Sherilyn and Maricris to the sari-sari
store while he asked March Anthony to gather firewood. While Oleby was left alone inside their house in
Barangay Bayani, Naujan, Oriental Mindoro, accused-appellant again raped her. Oleby was 12 years old
at that time. Accused-appellant closed the door and windows, removed Oleby's panties and shorts and
sat down. While sitting down, accused-appellant placed Oleby's legs on his thighs and inserted his penis
into her vagina. Later on, he told Oleby to put on her panties and shorts and told her to fetch her brother
and sisters.
Oleby was raped by her father for the third time on April 24, 1995. That evening, she woke up to find her
father on top of her, taking off her shorts and panties and inserting his penis into her vagina. As her father
was taking off her clothes, Oleby cried and pleaded, "Huwag po! Huwag po!" Instead of desisting,
accused-appellant told her to keep quiet so as not to awaken her brother and sisters, and threatened her
with harm if she made any noise. Accused-appellant then made a pumping motion, consummating the
sexual act with his daughter.[14]
After Oleby's direct examination had been finished, Atty. Brotonel, accused-appellant's counsel, did not
conduct any cross examination on the ground that he was convinced Oleby was telling the truth. [15]
On that same day, Maricris also testified. She related how she was raped by her father on March 3, 1996,
the year before, when she was 11 years old. At about eight o'clock in the evening of said date, while her
brother and sisters were sleeping, she was pulled by her father towards his bed and told to lie down.
Accused-appellant then placed himself on top of Maricris and inserted his penis into her vagina. Maricris
pleaded "Papa, huwag po, maawa naman kayo sa amin." Ignoring his daughter's pleas, accusedappellant continued raping her by making a pumping motion and threatened to kill all of them if she cried.
Accused-appellant afterwards asked Maricris to put on her shorts and panties and return to bed. He told
Maricris not to cry so as not to awaken her siblings. She did not tell anyone what befell her because she
was afraid. A neighbor, named Lita Macalalad, asked her if Oleby had been raped by their father. It turned
out Oleby had told her ordeal to Lita Macalalad while they were washing clothes and talking about Oleby's

parents. Oleby also told Lita Macalalad that Maricris had been raped by their father as well, a fact related
to Oleby by Maricris.[16]
Daisy Nadera, accused-appellant's wife, also testified for the prosecution. Her testimony focused on the
dates of births of her children and the fact that she was out of the country when the alleged rapes
occurred. She testified that she and her daughters filed a complaint for rape against accused-appellant
after discovering his hideous acts. Thereafter, her children were subjected to a medical examination. [17]
On August 12, 1997, the prosecution formally offered its documentary evidence and rested its case
thereafter.
Accused-appellant did not present any evidence in his defense.
On August 27, 1997, the trial court rendered judgment finding accused-appellant guilty of four counts of
rape against his daughters. The dispositive portion of its decision [18] reads:
ACCORDINGLY, the Court finds accused Elegio Nadera, Jr., guilty beyond reasonable
doubt, as principal, of the crime of Rape [4 counts] with the qualifying circumstance that
the victims are under 18 years of age and the offender is a parent. He is hereby
sentenced to suffer the penalty of Reclusion Perpetuaranging from 20 years and 1 day
to 40 years for the rape committed on May 17, 1992 and three DEATH PENALTIES for
the rape committed on April 17 and 24, 1995 and March 3, 1996, together with the
accessory penalties provided by law. He is also ordered to indemnify victim Oleby Nadera
the total amount of P150,000.00 in Criminal Case Nos. C-4982, C-4983 and C-4984 and
Maricris Nadera, the amount of P50,000.00 in Criminal Case No. C-4985, without
subsidiary imprisonment in case of insolvency, and to pay the costs.
S OO R D E R E D.
As already stated, accused-appellant's lone assignment of error is that the trial court accepted his plea of
guilty to a capital offense without making a searching inquiry to determine whether he understood the
consequences of his plea. In support of his contention, accused-appellant invokes the ruling in the case
of People v. Dayot[19] in which this Court ruled that, in criminal cases, the judge must be convinced that the
accused, in pleading guilty, is truly guilty. This could be done by requiring him to narrate the events
leading to the crime, making him reenact it, or asking him to supply missing details. The judge must
satisfy himself that: (1) the accused is voluntarily pleading guilty, and (2) he is truly guilty and there is a
rational basis for a finding of guilt based on his testimony.
We find merit in accused-appellant's allegations. In addition, we find that there was inadequate
representation of his case in court, thus necessitating the remand of this case for further proceedings.
I.
Rule 116 of the Rules on Criminal Procedure provides:
SEC. 3. Plea of guilty to capital offense; reception of evidence.- When
the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his guilt
and the precise degree of culpability. The accused may also present
evidence on his behalf.

Under this Rule, three things are enjoined upon the trial court when a plea of guilty to a capital offense is
entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the
accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to
present evidence to prove the guilt of the accused and the precise degree of his culpability; and, (3) the
court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he
desires.[20]
What constitutes a searching inquiry, as explained in People v. Alicando,[21] is that the plea of guilt must be
based on a free and informed judgment. Hence, a searching inquiry must focus on: (1) the voluntariness
of the plea, and (2) the full comprehension of the consequences of the plea.
In the case at bar, the record does not show what exactly transpired at the re-arraignment of accusedappellant, for what reason he changed his plea from "not guilty" to "guilty," and whether he fully
understood the consequences of his guilty plea. The only indication in the record that accused-appellant
changed his plea to guilty is the Certificates of Re- Arraignment, dated August 5, 1997, in Criminal Case
Nos. C-4982 to C-4985.[22] On what exactly accused-appellant said in entering his plea of guilty and what
exactly he had been told by the trial judge, the records shed no light. There is thus no evidence to show
that accused-appellant's guilty plea was voluntarily made or that he had fully understood the
consequences of such plea.
In its decision, the trial court described the manner in which the accused pleaded guilty, thus:
Upon arraignment, accused, assisted by Atty. Manolo A. Brotonel of the Public Attorney's
Office, pleaded not guilty to the crime charged. However, on August 5, 1997, when these
cases were called for pre-trial and trial, counsel for the accused manifested that the
accused, realizing the futility of entering into trial and considering that he actually
committed the acts complained of, intimated his intention to enter a plea of guilty to the
above- mentioned charges. The accused was then asked by this Court if he was aware of
the consequences of a plea of guilty to a capital offense: that for the rape he committed
on May 17, 1992 against his daughter, Oleby Nadera, who was 9 years old at the time,
he would be sentenced to reclusion perpetua and for the three other counts of rape
committed on April 17 and 24, 1995 [both against Oleby Nadera] and on March 3, 1996
[against Maricris Nadera, 11 years old at the time], he would be sentenced to death by
lethal injection. After having been informed of this, he insisted that he is willing to enter a
plea of guilty to the crimes charged and is ready to face the consequences thereof. [23]
The warnings given by the trial court in this case fall short of the requirement that it must make a
searching inquiry to determine whether accused-appellant understood fully the import of his guilty plea. As
has been said, a mere warning that the accused faces the supreme penalty of death is insufficient. [24] For
more often than not, an accused pleads guilty upon bad advice or because he hopes for a lenient
treatment or a lighter penalty. The trial judge must erase such mistaken impressions. [25] He must be
completely convinced that the guilty plea made by the accused was not made under duress or promise of
reward. The judge must ask the accused the manner the latter was arrested or detained, and whether he
was assisted by counsel during the custodial and preliminary investigations. In addition, the defense
counsel should also be asked whether he conferred with the accused and completely explained to him the
meaning and the consequences of a plea of guilt. Furthermore, since the age, educational attainment and
socio-economic status of the accused may reveal insights for a proper verdict in the case, the trial court
must ask questions concerning them.[26] In this case, absent any showing that these questions were put to
accused-appellant, a searching inquiry cannot be said to have been undertaken by the trial court.
What the trial court did in this case, as described in its decision, is similar to what happened inPeople v.
Sevilleno.[27] In that case, the accused was charged with the rape and homicide of a nine-year old girl. The
accused pleaded guilty whereupon the judge asked him questions: (1) Do you understand your plea of
guilt? and (2) Do you know that your plea of guilt could bring the death penalty? This Court held that
these questions did not constitute a searching inquiry.

. . . In every case where the accused enters a plea of guilty to a capital offense,
especially where he is an ignorant person with little or no education, the proper and
prudent course to follow is to take such evidence as are available and necessary in
support of the material allegations of the information, including the aggravating
circumstances therein enumerated, not only to satisfy the trial judge himself but also to
aid the Supreme Court in determining whether the accused really and truly understood
and comprehended the meaning, full significance and consequences of his plea. [28]
Clearly, the plea of guilty of accused-appellant in this case was made improvidently.
II.
Convictions based on an improvident plea of guilt are set aside only if such plea is the sole basis of the
judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction
must be sustained, because then it is predicated not merely on the guilty plea of the accused but on
evidence proving his commission of the offense charged. [29]
As already stated, the prosecution evidence consisted of the testimonies of Oleby and Maricris Nadera,
the results of their medical examinations, and the testimonies of their mother, Daisy, and the physician
who conducted the medical examination of the two girls, Dr. Cynthia Fesalbon. Certain circumstances
present in this case, however, persuade us that a remand of this case is necessary.
First. A perusal of the decision of the court reveals that the trial judge failed to state the factual and legal
reasons on which he based accused-appellant's conviction. Except for the narration of the prosecution's
evidence and a bare recital of R.A. No.7659, amending Art. 335 of the Revised Penal Code, there is
nothing else to indicate the reason for the decision. There is no evaluation of the evidence and no reason
given why the court found the testimonies of the witnesses credible. Rule 120 of the 1985 Rules on
Criminal Procedure provides:
Sec. 2. Form and contents of judgment.- The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts proved or admitted by the accused
and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there be any; (b) participation of the
accused in the commission of the offense, whether as principal, accomplice, or accessory
after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or
damages caused by the wrongful act to be recovered from the accused by the offended
party, if there be any, unless the enforcement of the civil liability by a separate action has
been reserved or waived.
In case of acquittal, unless there is a clear showing that the act from which the civil
liability might arise did not exist, the judgment shall make a finding on the civil liability of
the accused in favor of the offended party.
In People v. Bugarin,[30] we stated:
The requirement that the decisions of courts must be in writing and that they must set
forth clearly and distinctly the facts and the law on which they are based serves many
functions. It is intended, among other things, to inform the parties of the reason or
reasons for the decision so that if any of them appeals, he can point out to the appellate
court the finding of facts or the rulings on points of law with which he disagrees. More

than that, the requirement is an assurance to the parties that, in reaching judgment, the
judge did so through the processes of legal reasoning. It is, thus, a safeguard against the
impetuosity of the judge, preventing him from deciding by ipse dixit. Vouchsafed neither
the sword nor the purse by the Constitution but nonetheless vested with the sovereign
prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge
must ultimately depend on the power of reason for sustained public confidence in the
justness of his decision. The decision of the trial court in this case disrespects the judicial
function.
Second. The cavalier attitude of accused-appellant's counsel, Atty. Manolo A. Brotonel of the Public
Attorney's Office, cannot go unnoticed. It is discernible in (a) his refusal to cross examine Oleby Nadera;
(b) the manner in which he conducted Maricris Nadera's cross examination; and, (c) his failure not only to
present evidence for the accused but also to inform the accused of his right to do so, if he desires.
Only faithful performance by counsel of his duty towards his client can give meaning and substance to the
accused's right to due process and to be presumed innocent until proven otherwise. Hence, a lawyer's
duty, especially that of a defense counsel, must not be taken lightly. It must be performed with all the zeal
and vigor at his command to protect and safeguard the accused's fundamental rights.
In the case of People vs. Bermas,[31] no less than three PAO lawyers were found by the Court to have
failed in performing their duties to their client, an accused charged with raping his daughter. The first
lawyer inexplicably waived the cross examination of the private complainant and later asked to be
relieved of her duties as counsel de oficio. A second lawyer appointed by the court missed several
hearings during the trial and could no longer be located. The third PAO lawyer appointed by the trial court
accepted his duties reluctantly and later ceased to appear for the accused. This Court held that:
The right to counsel must be more than just the presence of a lawyer in the courtroom or
the mere propounding of standard questions and objections. The right to counsel means
that the accused is amply accorded legal assistance extended by a counsel who commits
himself to the cause for the defense and acts accordingly. The right assumes an active
involvement by the lawyer in the proceedings, particularly at the trial of the case, his
bearing constantly in mind of the basic rights of the accused, his being well-versed on the
case and his knowing the fundamental procedures, essential laws and existing
jurisprudence. The right of an accused to counsel finds substance in the performance by
the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and
truly decisive legal assistance and not a simple perfunctory representation.
Measured by this standard, the defense counsels conduct in this case falls short of the quality of
advocacy demanded of him, considering the gravity of the offense charged and the finality of the penalty.
A glaring example of his manifest lack of enthusiasm for his client's cause is his decision not to cross
examine Oleby Nadera, as revealed in the following portion of the records:
COURT:
.......Any cross?
ATTY. BROTONEL:
.......If Your Honor please, we are not conducting any cross-examination, because this
representation, from the demeanor of the witness, I am convinced that she is telling the
truth.[32]

It may be so that defense counsel personally found Oleby's testimony to be believable. Nonetheless, he
had the bounden duty to scrutinize private complainant's testimony to ensure that the accused's
constitutional right to confront and examine the witnesses against him was not rendered for naught.
It bears pointing out that in rape cases, it is often the word of the complainant against that of the accused,
the two being the only persons present during the commission of the offense. While the lone testimony of
the victim is sufficient to convict the accused, such testimony must be clear, positive, convincing and
consistent with human nature and the normal course of things. Complainant's testimony cannot be
accepted with precipitate credulity without denying the accused's constitutional right to be presumed
innocent.[33] This is where cross examination becomes essential to test the credibility of the witnesses,
expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may
successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable
doubt as to the guilt of the accused and thus to give substance to the constitutional right of the accused to
confront the witnesses against him. For unless proven otherwise to be guilty beyond all reasonable doubt,
the accused is presumed to be innocent.[34]
Indeed, cross examining Oleby Nadera becomes indispensable if her testimony is viewed together with
the results of her medical examination. Oleby Nadera claimed that she was last raped by her father on
April 24, 1995.[35] Yet, the medical examination conducted on her on April 30, 1996 [36] revealed the
presence of spermatozoa in the vaginal canal on that date. This was a year after the last rape allegedly
committed by her father. This evident discrepancy leads to only one natural conclusion: Oleby engaged in
sexual intercourse a few days before she was examined. This raises a number of questions that bear
upon the credibility of Oleby as a witness and upon the guilt of accused- appellant. This may not
necessarily mean that she was lying when she said that on April 24, 1995 she had been raped by
accused-appellant, but it does indicate a necessity-that of cross examining her in order to ferret out the
truth.
The same may be said of defense counsel's treatment of Maricris' testimony. While she was cross
examined by defense counsel, the examination was at best a half-hearted attempt to comply with a
lawyer's obligation, lacking the rigor and zeal required considering that a man's life is at stake. The cross
examination centered on what Maricris did or did not do while she witnessed her sister being raped, and
on her failure to report the allegedly incestuous rapes against them. Said cross examination did not even
touch upon the specific details concerning the rape committed against her. Containing lurid details as it
may be, it was nonetheless important to probe Maricris' testimony, especially since it was substantially
similar to the first incident of rape narrated by her sister, and thus raised the possibility that it was a
rehearsed, if not concocted, story.
Lastly, not only did defense counsel fail to object to the documentary evidence presented by the
prosecution, according to the trial court's decision, he even expressed his conformity to the admission of
the same. Neither did he present any evidence on behalf of accused-appellant. [37]Worse, nowhere in the
records is it shown that accused-appellant was informed, either by his counsel or by the court, of his right
to present evidence, if he so desires.
Atty. Brotonel, as counsel de oficio, had the duty to defend his client and protect his rights, no matter how
guilty or evil he perceives accused-appellant to be. The performance of this duty was all the more
imperative because the life of accused-appellant hangs in the balance. His duty was no less because he
was counsel de oficio.
In view of the foregoing, we find it necessary to remand the case for the proper arraignment and trial of
the accused, considering not only the accused's improvident plea of guilt but also his lawyer's neglect in
representing his cause. A new trial has been ordered in criminal cases on the ground of retraction of
witnesses, negligence or incompetency of counsel, improvident plea of guilty, disqualification of an
attorney de oficio to represent the accused in the trial court, and where a judgment was rendered on a
stipulation of facts entered into by both the prosecution and the defense. [38]

WHEREFORE, the decision, dated April 27, 1997, of the Regional Trial Court, Branch 40, Calapan,
Oriental Mindoro, is hereby SET ASIDE and Criminal Case Nos. C-4982, C-4983, C-4984 and C-4985 are
REMANDED to it for further proceedings in accordance with this decision. The trial court is enjoined to
conduct the proper trial of accused-appellant with all deliberate speed upon receipt of the records of the
cases.
SO ORDERED.2/