Republic of the Philippines

SUPREME COURT
Manila
SPECIAL SECOND DIVISION
G.R. No. 172607 April 16, 2009
PEOPLE OF THE PHILIPPINES, Appelle,
vs.
RUFINO UMANITO, Appellant.
RESOLUTION
TINGA, J.:
In our Resolution dated 26 October 2007, this Court resolved, for the very first time, to apply the then recently promulgated New Rules on
DNA Evidence (DNA Rules)1 in a case pending before us – this case. We remanded the case to the RTC for reception of DNA evidence in
accordance with the terms of said Resolution, and in light of the fact that the impending exercise would be the first application of the
procedure, directed Deputy Court Administrator Reuben Dela Cruz to: (a) monitor the manner in which the court a quo carries out the DNA
Rules; and (b) assess and submit periodic reports on the implementation of the DNA Rules in the case to the Court.
To recall, the instant case involved a charge of rape. The accused Rufino Umanito (Umanito) was found by the Regional Trial Court (RTC) of
Bauang, La Union, Branch 67 guilty beyond reasonable doubt of the crime of rape. Umanito was sentenced to suffer the penalty of reclusion
perpetua and ordered to indemnify the private complainant in the sum of ₱50,000.00. On appeal, the Court of Appeals offered the judgment
of the trial court. Umanito appealed the decision of the appellate court to this court.
In its 2007 Resolution, the Court acknowledged "many incongruent assertions of the prosecution and the defense." 2At the same time, the
alleged 1989 rape of the private complainant, AAA, had resulted in her pregnancy and the birth of a child, a girl hereinafter identified as "BBB."
In view of that fact, a well as the defense of alibi raised by Umanito, the Court deemed uncovering of whether or not Umanito is the father of
BBB greatly determinative of the resolution of the appeal. The Court then observed:
x x x With the advance in genetics and the availability of new technology, it can now be determined with reasonable certainty whether
appellant is the father of AAA's child. If he is not, his acquittal may be ordained. We have pronounced that if it can be conclusively determined
that the accused did not sire the alleged victim's child, this may cast the shadow of reasonable doubt and allow his acquittal on this basis. If he
is found not to be the father, the finding will at least weigh heavily in the ultimate decision in this case. Thus, we are directing appellant, AAA
and her child to submit themselves to deoxyribonucleic acid (DNA) testing under the aegis of the New Rule on DNA Evidence (the Rules), which
took effect on 15 October 2007, subject to guidelines prescribed herein. 3
The RTC of Bauang, La Union, Branch 67, presided by Judge Ferdinand A. Fe, upon receiving the Resolution of the Court on 9 November 2007,
set the case for hearing on 27 November 2007 4 to ascertain the feasibility of DNA testing with due regard to the standards set in Sections 4(a),
(b), (c) and (e) of the DNA Rules. Both AAA and BBB (now 17 years old) testified during the hearing. They also manifested their willingness to
undergo DNA examination to determine whether Umanito is the father of BBB.5
A hearing was conducted on 5 December 2007, where the public prosecutor and the counsel for Umanito manifested their concurrence to the
selection of the National Bureau of Investigation (NBI) as the institution that would conduct the DNA testing. The RTC issued an Order on even
date directing that biological samples be taken from AAA, BBB and Umanito on 9 January 2008 at the courtroom. The Order likewise enjoined
the NBI as follows:
In order to protect the integrity of the biological samples, the [NBI] is enjoined to strictly follow the measures laid down by the Honorable
Supreme Court in the instant case to wit:
Moreover, the court a quo must ensure that the proper chain of custody in the handling of the samples submitted by the parties is adequately
borne in the records, i.e.; that the samples are collected by a neutral third party; that the tested parties are appropriately identified at their
sample collection appointments; that the samples are protected with tamper tape at the collection site; that all persons in possession thereof
at each stage of testing thoroughly inspected the samples for tampering and explained his role in the custody of the samples and the acts he
performed in relation thereto.
The DNA test result shall be simultaneously disclosed to the parties in Court. The [NBI] is, therefore, enjoined not to disclose to the parties in
advance the DNA test results.
The [NBI] is further enjoined to observe the confidentiality of the DNA profiles and all results or other information obtained from DNA testing
and is hereby ordered to preserve the evidence until such time as the accused has been acquitted or served his sentence. 6
Present at the hearing held on 9 January 2008 were AAA, BBB, counsel for Umanito, and two representatives from the NBI. The RTC had
previously received a letter from the Officer-in-Charge of the New Bilibid Prisons informing the trial court that Umanito would not be able to
attend the hearing without an authority coming from the Supreme Court.7 The parties manifested in court their willingness to the taking of the
DNA sample from the accused at his detention center at the New Bilibid Prisons on 8 February 2008. 8 The prosecution then presented on the
witness stand NBI forensic chemist Mary Ann Aranas, who testified on her qualifications as an expert witness in the field of DNA testing. No
objections were posed to her qualifications by the defense. Aranas was accompanied by a laboratory technician of the NBI DNA laboratory
who was to assist in the extraction of DNA.
DNA samples were thus extracted from AAA and BBB in the presence of Judge Fe, the prosecutor, the counsel for the defense, and DCA De la
Cruz. On 8 February 2008, DNA samples were extracted from Umanito at the New Bilibid Prisons by NBI chemist Aranas, as witnessed by Judge
Fe, the prosecutor, the defense counsel, DCA De la Cruz, and other personnel of the Court and the New Bilibid Prisons. 9
The RTC ordered the NBI to submit the result of the DNA examination within thirty (30) days after the extraction of biological samples of
Umanito, and directed its duly authorized representatives to attend a hearing on the admissibility of such DNA evidence scheduled for 10
March 2008. The events of the 28 March 2008 hearing, as well as the subsequent hearing on 29 April 2008, were recounted in the Report
dated 19 May 2008 submitted by Judge Fe. We quote therefrom with approval:
2. That as previously scheduled in the order of the trial court on 09 January 2008, the case was set for hearing on the admissibility of the result
of the DNA testing.
At the hearing, Provincial Prosecutor Maria Nenita A. Opiana, presented Mary Ann T. Aranas, a Forensic Chemist of the National Bureau of
Investigation who testified on the examination she conducted, outlining the procedure she adopted and the result thereof. She further
declared that using the Powerplex 16 System, Deoxyribonuncleic acid analysis on the Buccal Swabs and Blood stained on FTA paper taken from
[AAA], [BBB], and Rufino Umanito y Millares, to determine whether or not Rufino Umanito y Millares is the biological father of [BBB], showed
that there is a Complete Match in all of the fifteen (15) loci tested between the alleles of Rufino Umanito y Milalres and [BBB]; That based on
the above findings, there is a 99.9999% probability of paternity that Rufino Umanito y Millares is the biological father of [BBB] (Exhibits "A" and
series and "B" and series).
After the cross-examination of the witness by the defense counsel, the Public Prosecutor offered in evidence Exhibits "A" and sub-markings,
referring to the Report of the Chemistry Division of the National Bureau of Investigation, Manila on the DNA analysis to determine whether or
not Rufino Umanito y Millares is the biological father of [BBB] and Exhibit "B" and sub-markings, referring to the enlarged version of the table
of Exhibit "A," to establish that on the DNA examination conducted on [AAA], [BBB] and the accused Rufino Umanito for the purpose of
establishing paternity, the result is 99.9999% probable. Highly probable.
The defense did not interpose any objection, hence, the exhibits were admitted.
1. That considering that under Section 9, A.M. No. 06-11-5-SC, if the value of the Probability of Paternity is 99.9% or higher, there shall be a
disputable presumption of paternity, the instant case was set for reception of evidence for the accused on April 29, 2008 to controvert the
presumption that he is the biological father of [BBB].
During the hearing on April 29, 2008, the accused who was in court manifested through his counsel that he will not present evidence to
dispute the findings of the Forensic Chemistry Division of the National Bureau of Investigation.
The DNA samples were collected by the forensic chemist of the National Bureau of Investigation whose qualifications as an expert was
properly established adopting the following procedure:
a) The subject sources were asked to gargle and to fill out the reference sample form. Thereafter, the chemists informed them that buccal
swabs will be taken from their mouth and five (5) droplets of blood will also be taken from the ring finger of their inactive hand;
b) Pictures of the subject sources were taken by the NBI Chemist;
c) Buccal swabs were taken from the subject sources three (3) times;
d) Subject sources were made to sign three (3) pieces of paper to serve as label of the three buccal swabs placed inside two (2) separate
envelopes that bear their names;
e) Blood samples were taken from the ring finger of the left hand of the subject sources;
f) Subject sources were made to sign the FTA card of their blood samples.
The buccal swabs and the FTA cards were placed in a brown envelope for air drying for at least one hour.
g) Finger prints of the subject sources were taken for additional identification;
h) The subject sources were made to sign their finger prints.
i) Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz and Prosecutor Maria Nenita A. Oplana, in that order, were made to
sign as witnesses to the reference sample forms and the finger prints of the subject sources.
j) After one hour of air drying, the Buccal Swabs and the FTA papers were placed inside a white envelope and sealed with a tape by the NBI
Chemists;
k) The witnesses, Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz, Prosecutor Maria Nenita A. Opiana including the NBI
Chemist, affixed their signatures on the sealed white envelope;
l) The subjects sources were made to sign and affix their finger prints on the sealed white envelope;
m) The chemists affixed their signatures on the sealed envelope and placed it in a separate brown envelope;
n) The subjects sources were made to affix their finger prints on their identification places and reference forms.
The same procedure was adopted by the Forensic Chemists of the NBI in the taking of DNA samples from the accused, Rufino Umanito at the
New Bilibid Prison in the afternoon of February 8, 2008.
Mary Ann Aranas, the expert witness testified that at the NBI the sealed envelope was presented to Ms. Demelen dela Cruz, the supervisor of
the Forensic Chemistry Division to witness that the envelope containing the DNA specimens was sealed as it reached the NBI. Photographs of
the envelope in sealed form were taken prior to the conduct of examination.
With the procedure adopted by the Forensic Chemist of the NBI, who is an expert and whose integrity and dedication to her work is beyond
reproach the manner how the biological samples were collected, how they were handled and the chain of custody thereof were properly
established the court is convinced that there is no possibility of contamination of the DNA samples taken from the parties.
At the Forensic Laboratory of the National Bureau of Investigation, the envelopes containing the DNA samples were opened and the specimens
were subjected to sampling, extraction, amplification and analysis. Duplicate analysis were made. The Forensic Chemist, Mary Ann Aranas
caused the examination of the blood samples and the buccal swabs were separately processed by Mrs. Demelen dela Cruz.
In order to arrive at a DNA profile, the forensic chemists adopted the following procedure: (1) Sampling which is the cutting of a portion from
the media (swabs and FTA paper); (2) then subjected the cut portions for extraction to release the DNA; (3) After the DNA was released into
the solution, it was further processed using the formarine chain reaction to amplify the DNA samples for analysis of using the Powerplex 16
System, which allows the analysis of 16 portions of the DNA samples. The Powerplex 16 System are reagent kits for forensic purposes; (3) After
the target, DNA is multiplied, the amplified products are analyzed using the genetic analyzer. The Powerplex 16 System has 16 markers at the
same time. It is highly reliable as it has already been validated for forensic use. It has also another function which is to determine the gender of
the DNA being examined.
Mary Ann Aranas, the Forensic Chemist, in her testimony explained that the DNA found in all cells of a human being come in pairs except the
mature red blood cells. These cells are rolled up into minute bodies called "chromosomes," which contain the DNA of a person. A human has
23 pairs of chromosomes. For each pair of chromosome, one was found to have originated from the mother, the other must have came from
the father. Using the Powerplex 16 System Results, the variable portions of the DNA called "loci," which were used as the basis for DNA
analysis or typing showed the following: under "loci" D3S1358, the genotype of the locus of [AAA] is 15, 16, the genotype of [BBB] is 15, 16,
one of the pair of alleles must have originated and the others from the father. The color for the allele of the mother is red while the father is
blue. On matching the allele which came from the mother was first determined [AAA], has alleles of 15 or 16 but in the geno type of [BBB], 15
was colored blue because that is the only allele which contain the genotype of the accused Rufino Umanito, the 16 originated from the
mother, [AAA]. In this marker [BBB] has a genotype of 15, 16, 16 is from the mother and 15 is from the father.
The whole process involved the determination which of those alleles originated from the mother and the rest would entail looking on the
genotype or the profile of the father to determine if they matched with those of the child.
In the analysis of the 16 loci by the Forensic Chemists, amel on the 13th row was not included because this is the marker that determines the
gender of the source of the loci. The pair XX represents a female and XY for a male. Rufino Umanito has XY amel and [BBB] and [AAA] have XX
amel. For matching paternity purposes only 15 loci were examined. Of the 15 loci, there was a complete match between the alleles of the loci
of [BBB] and Rufino (Exhibits "A" and "B").
To ensure reliable results, the Standard Operating Procedure of the Forensic Chemistry Division of the NBI in paternity cases is to use buccal
swabs taken from the parties and blood as a back up source.
The said Standard Operating Procedure was adopted in the instant case.
As earlier mentioned, DNA samples consisted of buccal swabs and blood samples taken from the parties by the forensic chemists who adopted
reliable techniques and procedure in collecting and handling them to avoid contamination. The method that was used to secure the samples
were safe and reliable. The samples were taken and handled by an expert, whose qualifications, integrity and dedication to her work is
unquestionable, hence, the possibility of substitution or manipulation is very remote.
The procedure adopted by the DNA section, Forensic Chemistry Division of the National Bureau of Investigation in analyzing the samples was
in accordance with the standards used in modern technology. The comparative analysis of DNA prints of the accused Rufino Umanito and his
alleged child is a simple process called parentage analysis which was made easier with the use of a DNA machine called Genetic Analyzer. To
ensure a reliable result, the NBI secured two (2) DNA types of samples from the parties, the buccal swabs as primary source and blood as
secondary source. Both sources were separately processed and examined and thereafter a comparative analysis was conducted which yielded
the same result.
The National Bureau of Investigation DNA Section, Forensic Division is an accredited DNA testing laboratory in the country which maintains a
multimillion DNA analysis equipment for its scientific criminal investigation unit. It is manned by qualified laboratory chemists and technicians
who are experts in the field, like Mary Ann Aranas, the expert witness in the instant case, who is a licensed chemists, has undergone training
on the aspects of Forensic Chemistry fro two (2) years before she was hired as forensic chemists of the NBI and has been continuously
attending training seminars, and workshops which are field related and who has handled more than 200 cases involving DNA extraction or
collection or profiling.
The accused did not object to the admission of Exhibits "A" and "B" inclusive of their sub-markings. He did not also present evidence to
controvert the results of the DNA analysis.
Section 6. A.M. No. 06-11-5-SC provides that: "If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable
presumption of paternity.
DNA analysis conducted by the National Bureau of Investigation Forensic Division on the buccal swabs and blood stained on FTA paper taken
from [AAA], [BBB] and Rufino Umanito y MillAres for DNA analysis to determine whether or not Rufino Umanito y Millares is the biological
father of [BBB] gave the following result:
"FINDINGS: Deoxyribonuncleic acid analysis using the
Powerplex 16 System conducted on the
above-mentioned, specimens gave the
following profiles;
xxx
xxx
There is a COMPLETE MATCH in all the fifteen (15) loci tested between the alleles of Rufino Umanito y Millares and [BBB].
REMARKS: Based on the above findings, there is a
99.9999% Probability of Paternity that
Rufino Umanito y Millares is the biological
Father of [BBB]"
Disputable presumptions are satisfactory if uncontradicted but may be contradicted and overcome by other evidence (Rule 131, Section 3,
Rules of Court).
The disputable presumption that was established as a result of the DNA testing was not contradicted and overcome by other evidence
considering that the accused did not object to the admission of the results of the DNA testing (Exhibits "A" and "B" inclusive of sub-markings)
nor presented evidence to rebut the same.
WHEREFORE, premises considered, the trial court rules that based on the result of the DNA analysis conducted by the National Bureau of
Investigation, Forensic Division, RUFINO UMANITO y MILLARES is the biological father of [BBB].10
Umanito’s defense of alibi, together with his specific assertion that while he had courted AAA they were not sweethearts, lead to a general
theory on his part that he did not engage in sexual relations with the complainant. The DNA testing has evinced a contrary conclusion, and that
as testified to by AAA, Umanito had fathered the child she gave birth to on 5 April 1990, nine months after the day she said she was raped by
Umanito.
Still, Umanito filed a Motion to Withdraw Appeal dated 16 February 2009. By filing such motion, Umanito is deemed to have acceded to the
rulings of the RTC and the Court of Appeals finding him guilty of the crime of rape, and sentencing him to suffer the penalty of reclusion
perpetua and the indemnification of the private complainant in the sum of ₱50,000.00. Given that the results of the Court-ordered DNA
testing conforms with the conclusions of the lower courts, and that no cause is presented for us to deviate from the penalties imposed below,
the Court sees no reason to deny Umanito’s Motion to Withdraw Appeal. Consequently, the assailed Decision of the Court of Appeals dated 15
February 2006 would otherwise be deemed final if the appeal is not withdrawn.1avvphi1
WHEREFORE, the Motion to Withdraw Appeal dated 16 February 2009 is GRANTED. The instant case is now CLOSED and TERMINATED.
SO ORDERED.
DANTE O. TINGA
Associate Justice

[G.R. No. 148220. June 15, 2005]

ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES,
Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of the Court of Appeals (appellate court) in CA-G.R. SP No.
59766. The appellate court affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (trial court) in SP No. 98-88759.
The Order dated 3 February 2000 directed Rosendo Herrera (petitioner) to submit to deoxyribonucleic acid (DNA) paternity testing, while the
Order dated 8 June 2000 denied petitioners motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented by his mother Armi Alba, filed before the trial court a
petition for compulsory recognition, support and damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim
where he denied that he is the biological father of respondent. Petitioner also denied physical contact with respondents mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the motion, respondent
presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where
she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute (UP-NSRI), a DNA analysis
laboratory. She was a former professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular
Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that
the test had an accuracy rate of 99.9999% in establishing paternity.[4]
Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further argued that DNA paternity
testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing on petitioner, respondent and
Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the petitioner, the minor child, and
respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from
receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. The parties are further
reminded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petition.
IT IS SO ORDERED.[5] (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that under the present circumstances, the DNA test
[he] is compelled to take would be inconclusive, irrelevant and the coercive process to obtain the requisite specimen, unconstitutional.
In an Order dated 8 June 2000, the trial court denied petitioners motion for reconsideration.[6]
On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He
asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 in excess of, or without jurisdiction and/or with grave
abuse of discretion amounting to lack or excess of jurisdiction. Petitioner further contended that there is no appeal nor any [other] plain,
adequate and speedy remedy in the ordinary course of law. Petitioner maintained his previous objections to the taking of DNA paternity
testing. He submitted the following grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the admissibility of DNA
testing and ignoring the serious constraints affecting the reliability of the test as admitted by private respondents expert witness.
3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit for judicial notice
and unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and the coercive
process to obtain the requisite specimen from the petitioner, unconstitutional.[7]
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned Orders of the trial court. The
appellate court stated that petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is an available remedy for
an error of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also stated that the proposed DNA
paternity testing does not violate his right against self-incrimination because the right applies only to testimonial compulsion. Finally, the
appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the
appellate courts decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed, and the challenged orders
of the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001. [9]
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the
conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test
results in a paternity suit.[10]
Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court to embark in [sic] a new
procedure xxx to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as
made clear in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its implementation. [11] Petitioner
maintains that the proposed DNA paternity testing violates his right against self-incrimination.[12]
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit and apply it to the facts of
this case. We shall consider the requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as
citizenship,[13] support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative
father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to
face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child. [14]
A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our jurisdiction, corroborative proof is
required to carry the burden forward and shift it to the putative father.[15]
There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations with the
mother, because of either physical absence or impotency.[16] The putative father may also show that the mother had sexual relations with
other men at the time of conception.
A child born to a husband and wife during a valid marriage is presumed legitimate. [17] The childs legitimacy may be impugned only under the
strict standards provided by law.[18]
Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity. Resemblance is a trial
technique unique to a paternity proceeding. However, although likeness is a function of heredity, there is no mathematical formula that could
quantify how much a child must or must not look like his biological father.[19] This kind of evidence appeals to the emotions of the trier of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put forward a prima facie case when
she asserted that petitioner is respondents biological father. Aware that her assertion is not enough to convince the trial court, she offered
corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi Albas assertion. He denied ever having
sexual relations with Armi Alba and stated that respondent is Armi Albas child with another man. Armi Alba countered petitioners denial by
submitting pictures of respondent and petitioner side by side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence to help us
determine what evidence of incriminating acts on paternity and filiation are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or declaration. The word pedigree includes relationship,
family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It
embraces also facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA,[20] a case petitioner
often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and
written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of
birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father. [21] A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable evidence.[22] Letters to the mother vowing to be a good father to the child and
pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation.[23] However, a
student permanent record, a written consent to a fathers operation, or a marriage contract where the putative father gave consent, cannot be
taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor family pictures[26] are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in
science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal
scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity.[27]
In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that the putative father was a possible father of the child.
Paternity was imputed to the putative father after the possibility of paternity was proven on presentation during trial of facts and
circumstances other than the results of the blood grouping test.
In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed to submit themselves to a blood grouping test. The
National Bureau of Investigation (NBI) conducted the test, which indicated that the child could not have been the possible offspring of the
mother and the putative father. We held that the result of the blood grouping test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the
same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity.[30]
DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to
generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for
identical twins.[31] We quote relevant portions of the trial courts 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare
occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in
the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal
swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in
which the four bases appear in an individuals DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it
is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called genes.
Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code.
Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as polymorphic loci, which are the areas analyzed
in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing
simply means determining the polymorphic loci.
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways.
There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); reverse dot blot or HLA
DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process;
VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or
copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize
enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical
error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or fingerprint tests are done to identify a
suspect in a criminal case, the evidence collected from the crime scene is compared with the known print. If a substantial amount of the
identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or
fingerprint is different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic
types called allele, one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in
an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of
the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers
profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans
DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the
father.[32] (Emphasis in the original)
Although the term DNA testing was mentioned in the 1995 case of People v. Teehankee, Jr.,[33] it was only in the 2001 case of Tijing v. Court of
Appeals[34] that more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas corpus against respondent who
abducted petitioners youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage.
However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have
now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR)
analysis. xxx For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since
to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be useful to
all concerned in the prompt resolution of parentage and identity issues.
Admissibility of
DNA Analysis as Evidence
The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This may be considered a 180 degree turn from the Courts wary
attitude towards DNA testing in the 1997 Pe Lim case,[36] where we stated that DNA, being a relatively new science, xxx has not yet been
accorded official recognition by our courts. In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched the
accuseds DNA profile. We affirmed the accuseds conviction of rape with homicide and sentenced him to death. We declared:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the
samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.[37]
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity of the use
of DNA analysis as evidence. The Court moved from the issue of according official recognition to DNA analysis as evidence to the issue of
observance of procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar[38] and In re: The Writ of
Habeas Corpus for Reynaldo de Villa.[39]In Yatar, a match existed between the DNA profile of the semen found in the victim and the DNA
profile of the blood sample given by appellant in open court. The Court, following Vallejosfootsteps, affirmed the conviction of appellant
because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the
convict-petitioner presented DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape.
The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victims child does not preclude
the convict-petitioners commission of rape.
In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to support their respective
positions on the admissibility of DNA analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow Pharmaceuticals.[41] In Frye v. U.S., the
trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Fryes counsel
offered an expert witness to testify on the result of a systolic blood pressure deception test [42] made on defendant. The state Supreme Court
affirmed Fryes conviction and ruled that the systolic blood pressure deception test has not yet gained such standing and scientific recognition
among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery,
development, and experiments thus far made. The Frye standard of general acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting
expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged with stabbing and murder. Bloodstained articles and blood
samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution
introduced the private testing facilitys results over Schwartzs objection. One of the issues brought before the state Supreme Court included
the admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that
admissibility of specific test results in a particular case hinges on the laboratorys compliance with appropriate standards and controls, and
the availability of their testing data and results.[44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the Frye-Schwartz standard. Daubert was a product liability case
where both the trial and appellate courts denied the admissibility of an experts testimony because it failed to meet the Frye standard of
general acceptance. The United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded
the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus:
Rule 401. Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not
admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the
admissibility of scientific evidence. Rather, the judge must ensure that the testimonys reasoning or method is scientifically valid and is relevant
to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and
maintenance of standards controlling the techniques operation; and (5) whether the theory or technique is generally accepted in the scientific
community.
Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified the Daubert standard. This led to the amendment of Rule
702 in 2000 and which now reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor
the Daubert-Kumho standard is controlling in the Philippines.[47] At best, American jurisprudence merely has a persuasive effect on our
decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of
Court.[48] Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence.[49] Section 49
of Rule 130, which governs the admissibility of expert testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be
received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is
allowed when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.[50]
Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is
admissible as evidence. In our jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into the
weight of the evidence.
Probative Value of
DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate
our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the
samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.[51]
We also repeat the trial courts explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing
next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The
other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the
DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man
is excluded as the father. If the DNA types match, then he is not excluded as the father.[52]
It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between the DNA profile of the
child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard
adopted in an American jurisdiction,[53] trial courts should require at least 99.9% as a minimum value of the Probability of Paternity (W) prior to
a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random
match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to
compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is
higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father
and child alone.[54]
DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%,
the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there
is refutable presumption of paternity.[55] This refutable presumption of paternity should be subjected to the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that no person shall be compelled to be a witness against himself. Petitioner asserts
that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements
that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial courts 3 February 2000 Order with
approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent
in this action, will not violate the right against self-incrimination. This privilege applies only to evidence that is communicative in essence
taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a
prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion
of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his
body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of
lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735);
an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can
compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the
restriction on testimonial compulsion.[56]
The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate
children, is without prejudice to the right of the putative parent to claim his or her own defenses. [57] Where the evidence to aid this
investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits
established by the law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We
also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-
98-88759.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

SECOND DIVISION
JESSE U. LUCAS, G.R. No. 190710
Petitioner,
Present:

CARPIO, J.,
Chairperson,
- versus - NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

Promulgated:
JESUS S. LUCAS,
Respondent. June 6, 2011

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

DECISION

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we address this
question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA)
Decision[1] dated September 25, 2009 and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of Parties to DNA
Testing)[2] before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy
(Elsie), migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in a prominent nightspot in Manila. Elsie would
oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an
intimate relationship developed between the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U.
Lucas. The name of petitioners father was not stated in petitioners certificate of live birth. However, Elsie later on told petitioner that his
father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended
financial support to Elsie and petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to
accept respondents offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made several attempts
to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate; (c) petitioners college
diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation
from the same school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles
from different newspapers about petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His counsel
therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding the petition to be
sufficient in form and substance, issued the Order[3] setting the case for hearing and urging anyone who has any objection to the petition to file
his opposition. The court also directed that the Order be published once a week for three consecutive weeks in any newspaper of general
circulation in the Philippines, and that the Solicitor General be furnished with copies of the Order and the petition in order that he may appear
and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and Comment. He
manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was adversarial in nature and
therefore summons should be served on him as respondent; (3) should the court agree that summons was required, he was waiving service of
summons and making a voluntary appearance; and (4) notice by publication of the petition and the hearing was improper because of the
confidentiality of the subject matter.[4]

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the
Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be served with summons.
After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. [5] Respondent averred that the petition was not
in due form and substance because petitioner could not have personally known the matters that were alleged therein. He argued that DNA
testing cannot be had on the basis of a mere allegation pointing to respondent as petitioners father. Moreover, jurisprudence is still unsettled
on the acceptability of DNA evidence.
On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order [6] dismissing the case. The court remarked that,
based on the case of Herrera v. Alba,[7] there are four significant procedural aspects of a traditional paternity action which the parties have to
face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child.
The court opined that petitioner must first establish these four procedural aspects before he can present evidence of paternity and filiation,
which may include incriminating acts or scientific evidence like blood group test and DNA test results. The court observed that the petition did
not show that these procedural aspects were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not
personally declare that she had sexual relations with respondent, and petitioners statement as to what his mother told him about his father
was clearly hearsay; (b) the certificate of live birth was not signed by respondent; and (c) although petitioner used the surname of respondent,
there was no allegation that he was treated as the child of respondent by the latter or his family. The court opined that, having failed to
establish a prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive portion of the said Order
therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional paternity action in his
petition, his motion for the submission of parties to DNA testing to establish paternity and filiation is hereby DENIED. This case is DISMISSED
without prejudice.
SO ORDERED.[8]

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor. Thus, on
October 20, 2008, it issued the Order[9]setting aside the courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22, 2009 at 8:30 in the morning.

xxxx

SO ORDERED.[10]

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering that a full-blown
trial has not yet taken place. The court stressed that the petition was sufficient in form and substance. It was verified, it included a certification
against forum shopping, and it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on for his claim,
in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in the petition were not
of petitioners personal knowledge is a matter of evidence. The court also dismissed respondents arguments that there is no basis for the
taking of DNA test, and that jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA
Evidence[11] allows the conduct of DNA testing, whether at the courts instance or upon application of any person who has legal interest in the
matter in litigation.
Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition, [12] reiterating that (a) the
petition was not in due form and substance as no defendant was named in the title, and all the basic allegations were hearsay; and (b) there
was no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing. [13]

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed Orders dated October 20, 2008 and
January 19, 2009 both issued by the Regional Trial Court, Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and
SET ASIDE. Accordingly, the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.[14]

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served on him. Respondents
special appearance could not be considered as voluntary appearance because it was filed only for the purpose of questioning the jurisdiction
of the court over respondent. Although respondent likewise questioned the courts jurisdiction over the subject matter of the petition, the
same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing order to abbreviate the
proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a traditional paternity action had been met.
The CA further held that a DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been intended to trample on the
substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment, or extortion. It could have not
been intended to legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court may at any
time order the taking of a DNA test. If the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant
without requiring first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote
harassment and extortion.

xxxx

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA testing to a compulsory
recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at anytime, motu proprio and without pre-
conditions, the court can indeed order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do members of
our society will be easy prey for opportunists and extortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger
years could be used as a means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-
just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA test for
compulsory recognition case opens wide the opportunities for extortionist to prey on victims who have no stomach for scandal. [15]

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit.[16]
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE PERSON OF HEREIN
RESPONDENT ALBEIT THE SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF THE
RESPONDENT.

I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE RESPONDENT HAD ALREADY SUBMITTED
VOLUNTARILY TO THE JURISDICTION OF THE COURT A QUO.

I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS
CONTROLLING.

II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE MOTION (FILED BY
THE PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING.

II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED AFTER THE
PETITIONER ESTABLISHES PRIMA FACIE PROOF OF FILIATION.

III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,
ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY ACTION.[17]

Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his person. Hence, the
CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned. At any rate, respondent had already
voluntarily submitted to the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the (a) Motion for
Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order dated
November 6, 2007; and (c) Motion for Reconsideration of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out
that respondent even expressly admitted that he has waived his right to summons in his Manifestation and Comment on Petitioners Very
Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondents name, the body of
the petition clearly indicates his name and his known address. He maintains that the body of the petition is controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a legal ground
for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply denied the
motion.[18] Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation
before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant procedural aspects of a paternity case, as
enunciated in Herrera v. Alba.[19] Petitioner avers that these procedural aspects are not applicable at this point of the proceedings because
they are matters of evidence that should be taken up during the trial.[20]

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely reiterates his previous
arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioners assertion, he raised the issue before
the CA in relation to his claim that the petition was not in due form and substance. Respondent denies that he waived his right to the service of
summons. He insists that the alleged waiver and voluntary appearance was conditional upon a finding by the court that summons is indeed
required. He avers that the assertion of affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be
considered as waiver of the defense of lack of jurisdiction over such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss the petition for
illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it
leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a
motion to dismiss cannot be questioned in a special civil action for certiorari, which is a remedy designed to correct errors of jurisdiction and
not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is
rendered. In a number of cases, the court has granted the extraordinary remedy of certiorari on the denial of the motion to dismiss but only
when it has been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. [21] In the present case, we discern no grave
abuse of discretion on the part of the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to the absence of summons,
and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is equivalent to failure to state a cause of
action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction over the
person of respondent, or whether respondent waived his right to the service of summons. We find that the primordial issue here is actually
whether it was necessary, in the first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other
words, was the service of summons jurisdictional? The answer to this question depends on the nature of petitioners action, that is, whether it
is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the
person; while an action quasi in rem names a person as defendant, but its object is to subject that person's interest in a property to a
corresponding lien or obligation. A petition directed against the "thing" itself or the res, which concerns the status of a person, like a petition
for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in rem.[22]

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a
proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court,
provided that the latter has jurisdiction over the res. Jurisdiction over the resis acquired either (a) by the seizure of the property under legal
process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the
court is recognized and made effective. [23]

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish illegitimate filiation
before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby acquired jurisdiction over the
case. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an objection of any sort to the right sought to be established. [24] Through
publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but merely for
satisfying the due process requirements. [25] This is but proper in order to afford the person concerned the opportunity to protect his interest if
he so chooses.[26] Hence, failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a case, the
lack of summons may be excused where it is determined that the adverse party had, in fact, the opportunity to file his opposition, as in this
case. We find that the due process requirement with respect to respondent has been satisfied, considering that he has participated in the
proceedings in this case and he has the opportunity to file his opposition to the petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we further hold that the herein petition to establish
filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the name of a defendant, the failure to
implead respondent as defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the party seeking
relief has given legal warning to the other party and afforded the latter an opportunity to contest it.[27] In this petitionclassified as an action in
remthe notice requirement for an adversarial proceeding was likewise satisfied by the publication of the petition and the giving of notice to
the Solicitor General, as directed by the trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which requires the complaint to
contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it cannot be
stricken out without leaving the statement of the cause of action inadequate. [28] A complaint states a cause of action when it contains the
following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant
in violation of said legal right.[29]

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent. Respondent, however,
contends that the allegations in the petition were hearsay as they were not of petitioners personal knowledge. Such matter is clearly a matter
of evidence that cannot be determined at this point but only during the trial when petitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the sufficiency of
the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must
hypothetically admit the truth of the facts alleged in the complaint. [30]
[31]
The inquiry is confined to the four corners of the complaint, and no other. The test of the sufficiency of the facts alleged in the complaint is
whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the
complaint.[32]

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is incumbent upon the
court to deny the motion to dismiss and require the defendant to answer and go to trial to prove his defense. The veracity of the assertions of
the parties can be ascertained at the trial of the case on the merits.[33]

The statement in Herrera v. Alba[34] that there are four significant procedural aspects in a traditional paternity case which parties have to face
has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects during trial, when the
parties have presented their respective evidence. They are matters of evidence that cannot be determined at this initial stage of the
proceedings, when only the petition to establish filiation has been filed. The CAs observation that petitioner failed to establish a prima
facie casethe first procedural aspect in a paternity caseis therefore misplaced. A prima facie case is built by a partys evidence and not by mere
allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA testing since no evidence
has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under the circumstances, a DNA testing order is
warranted considering that no such order has yet been issued by the trial court. In fact, the latter has just set the said case for hearing.

At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken and deserves the Courts
attention. In light of this observation, we find that there is a need to supplement the Rule on DNA Evidence to aid the courts in resolving
motions for DNA testing order, particularly in paternity and other filiation cases. We, thus, address the question of whether a prima
facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It
provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary
laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the
probative value of DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively
and properly, [and] shall not be misused and/or abused and, more importantly, shall continue to ensure that DNA analysis serves justice and
protects, rather than prejudice the public.[35]

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity
of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who
has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a
showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA
testing, but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are
established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present
sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. [36] In these
states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of
probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a
counterpart of a finding of probable cause. The Supreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable,
and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order
a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those
jurisdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory
blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood
testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is
contested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can
determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing.[37]

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during
the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The court may, for
example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity
and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25, 2009 and Resolution dated
December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and January 19, 2009 of
the Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED.

EN BANC

ANTONIO LEJANO, G.R. No. 176389

Petitioner,
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent.

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

PEOPLE OF THE PHILIPPINES, G.R. No. 176864

Appellee,

- versus -

HUBERT JEFFREY P. WEBB,

ANTONIO LEJANO, MICHAEL
A. GATCHALIAN, HOSPICIO
FERNANDEZ, MIGUEL RODRIGUEZ,
PETER ESTRADA and GERARDO Promulgated:
BIONG,
Appellants. December 14, 2010
x ---------------------------------------------------------------------------------------- x

DECISION

ABAD, J.:

Brief Background

On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home
in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the
trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery
especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre.

Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica
M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy
Lejano, Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as the
culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on
August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.[1]

The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since
Artemio Ventura and Joey Filart remained at large.[2] The prosecution presented Alfaro as its main witness with the others corroborating her
testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision,
the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband.

For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi
appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of
witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad
reputation for truth and the incredible nature of her testimony.

But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted
her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained
unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to
protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the
investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she
disclosed all about the Vizconde killings.

In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They
paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4,
2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb,
Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven
years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.[3]

On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve
years maximum and increasing the award of damages to Lauro Vizconde. [4] The appellate court did not agree that the accused were tried by
publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and
Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister.

On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the
motion,[5] hence, the present appeal.

On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for
DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The
Court granted the request pursuant to section 4 of the Rule on DNA Evidence[6] to give the accused and the prosecution access to scientific
evidence that they might want to avail themselves of, leading to a correct decision in the case.

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over
to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in
evidence in the case.

This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital
evidence has resulted in the denial of his right to due process.

Issues Presented

Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments
failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his
innocence.
In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada,
Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are:

1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada,
Rodriguez, and two others as the persons who committed it, is entitled to belief; and

2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the
crime.

The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission.

The Right to Acquittal

Due to Loss of DNA Evidence

Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright acquittal on the ground of violation of his right to due process given the
States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela.

The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that
Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credibility. At the very
least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot
be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of
identical twins.[8] If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that
simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did.

Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling
in Brady v. Maryland[9] that he cites has long be overtaken by the decision in Arizona v. Youngblood,[10] where the U.S. Supreme Court held that
due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to
show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the
specimen and Webb in fact sought to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology
for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the
specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused
brought up the matter of preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least
two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other
accused.[11] They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision
in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This,
even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having
such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some
future time.

Now, to the merit of the case.

Alfaros Story

Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the
evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to
the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio Dong Ventura. There, Ventura introduced her to his friends:
Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez, Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart.Alfaro
recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December
1990.

As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela
Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF
Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura,
Fernandez, and Gatchalian who were on a Nissan Patrol car.

On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer
and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out,
Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived
home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to
the Ayala Alabang Commercial Center.

The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where
Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their
garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested
Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door
unlocked. Carmela also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know that
she had arrived.

Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where
she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas
instructions to Webb. They then all went back to the Ayala AlabangCommercial Center. At the parking lot, Alfaro told the group about her talk
with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening (bad trip).

Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to
leave. He said, Pipilahan natin siya [Carmela] at ako ang mauuna. Lejano said, Ako ang susunod and the others responded Okay, okay. They all
left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house
shortly before midnight.

Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached
Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout (Pasabugin kaya natin ang
transformer na ito). But Alfaro shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When Webb, Lejano, and Ventura were
already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, O sige,
dito lang kami, magbabantay lang kami.

Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the
garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it (para daw walang
ilaw). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the
kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area.

As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out
to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the
garden. After about twenty minutes, she was surprised to hear a womans voice ask, Sino yan? Alfaro immediately walked out of the garden to
her car. She found her other companions milling around it. Estrada who sat in the car asked her, Okay ba?

After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark
but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked
him what he was looking for, he said: Ikaw na nga dito, maghanap ka ng susi. She asked him what key he wanted and he replied: Basta
maghanap ka ng susi ng main door pati na rin ng susi ng kotse. When she found a bunch of keys in the bag, she tried them on the main door
but none fitted the lock. She also did not find the car key.

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

Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, Prepare an
escape. Aalis na tayo. Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on
the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the
house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame.

As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they
could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As
they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car
into the cogonal area.

The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered
the compound and gathered at the lawn where the blaming session took place. It was here that Alfaro and those who remained outside the
Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed
Webb, telling him, Bakit naman pati yung bata? Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him,
bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her.Lejano excused
himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone.

At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to
him, Pera lang ang katapat nyan.Biong answered, Okay lang. Webb spoke to his companions and told them, We dont know each other. We
havent seen each otherbaka maulit yan. Alfaro and Estrada left and they drove to her fathers house.[12]

1. The quality of the witness

Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or
friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an asset, a stool
pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to
get rewards that would pay for her subsistence and vices.
According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section,
Alfaro had been hanging around at the NBI since November or December 1994 as an asset. She supplied her handlers with information against
drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos
and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the Martilyo gang that killed a police officer. Because of her talent, the task
force gave her very special treatment and she became its darling, allowed the privilege of spending nights in one of the rooms at the NBI
offices.

When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told
Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring
that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well
assume the role of her informant. Sacaguing testified thus:

2. The suspicious details

But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the
crime? No doubt, yes.

Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the
crime scene and there were lots of speculations about them.

Secondly, the police had arrested some akyat-bahay group in Paraaque and charged them with the crime. The police prepared the confessions
of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were
doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too
difficult for her to hear of these evidentiary details and gain access to the documents.

Not surprisingly, the confessions of some members of the Barroso akyat bahay gang, condemned by the Makati RTC as fabricated by the police
to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical
evidence at the crime scene. Consider the following:

a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in
cloth to deaden the noise.Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no
reason to smash her front door to get to see her.

Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone
and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros
narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid
detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come.

b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso akyat-bahay gang members said that
they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at
another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key.

Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never
mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the
table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene
although robbery was supposedly not the reason Webb and his companions entered that house.

c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The
confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense
since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in
and see what they were doing.

Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a
chair, to turn the light off.But, unlike the Barroso akyat-bahay gang, Webb and his friends did not have anything to do in a darkened
garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk
standing on the cars hood and be seen in such an awkward position instead of going straight into the house.
And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the
decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of
becoming a fairly good substitute witness. She was their darling of an asset. And this is not pure speculation. As pointed out above, Sacaguing
of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is
mystifying.

At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named
Miguel Ging Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent
from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran
berserk, slapping and kicking Michael, exclaiming: How can I forget your face. We just saw each other in a disco one month ago and you told
me then that you will kill me. As it turned out, he was not Miguel Rodriguez, the accused in this case.[13]
Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the
name she already gave or she had myopic vision, tagging the wrong people for what they did not do.

3. The quality of the testimony

There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of
things and the common behavior of people will help expose a lie. And it has an abundant presence in this case.

One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the
crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they
(including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only
Webb, Lejano, Ventura, and Alfaro entered the house.

Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house
and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who
cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs
companions out on the street did not figure in a planned gang-rape of Carmela.
Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why
would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated
Alfaro to stick it out the whole night with Webb and his friends?

They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape
Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a
crime to report, only she was not yet an asset then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just
followed along where the group took her, how could she remember so much details that only a drug-free mind can?

Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his
friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her
up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on
her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for
Webb to freak out and decide to come with his friends and harm Carmela.

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

Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, Sino yan? On hearing this, Alfaro
immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than
Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get
involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.

But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame
of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped
Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies
were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb
supposedly gave her a meaningful look.

Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the
sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she
did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were
decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who
was confused with her own lies.

4. The supposed corroborations

Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses:

Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they
sustained[14] and the presence of semen in Carmelas genitalia,[15] indicating that she had been raped.

Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a
report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in
the masters bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.[16]
White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He
also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the
kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about
their coming and going.
But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the
Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the
second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White
who supposedly manned that guardhouse did not notice her.

Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he
supposedly cleaned up Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with her mom before Alfaros
first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not
notice Carmela reenter the subdivision. White actually discredited Alfaros testimony about the movements of the persons involved.

Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,[17] White claimed it was the
Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a
resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week
of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the
entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan
asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there.Cabanacan replied, however, that Pitong
Daan had a local sticker.

Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his
ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without
being logged in as their Standard Operating Procedure required.[18]

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

Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at
his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about
4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door
near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.[19]

On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb
household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not
remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this
only damaged her testimony.

Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.[20] She did not call
the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the
blood.

Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991,
testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to
collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from
the rooms of her employers and their grown up children at four in the morning while they were asleep.

And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the
Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper
for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit.
Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong
playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him,
according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he
washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a
knife with aluminum cover from his drawer and hid it in his steel cabinet.[21]

The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly
came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if
he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of
some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the
Vizconde residence on his return there hours later if he had the opportunity to do it earlier?
At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross neglect for failing to maintain
the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to
Webb and the other accused.
Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected
suitor she called Bagyo, because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out
who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going
relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door
open so he could enter the house.

5. The missing corroboration

There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had been sweethearts, that she had
been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated!

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

But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or
ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and
unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does
not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their
personal histories. It is quite unreal.

What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it
looked was also Carmelas lover.This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas
relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having
ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented
himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the
woman who made a living informing on criminals.

Webbs U.S. Alibi

Among the accused, Webb presented the strongest alibi.

a. The travel preparations

Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the
value of independence, hard work, and money.[22] Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San
Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel
plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.[23] On March 8,1991, the eve of his
departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with
Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those
present were his friends Paulo Santos and Jay Ortega.[24]

b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.[25] Before
boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and
stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through. [26] He was
listed on the United Airlines Flights Passenger Manifest.[27]

On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S.
Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9,
1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,[28] the computer-generated
print-out of the US-INS indicating Webb's entry on March 9, 1991,[29] and the US-INS Certification dated August 31, 1995, authenticated by the
Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification. [30]

c. Details of U.S. sojourn

In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly
City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher,
and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.[31] In the same month, Dorothy Wheelock and her family
invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines.[32]

In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.[33] During his stay there, he occupied
himself with playing basketball once or twice a week with Steven Keeler[34] and working at his cousin-in-laws pest control company.[35] Webb
presented the companys logbook showing the tasks he performed, [36] his paycheck,[37] his ID, and other employment papers. On June 14, 1991
he applied for a driver's license[38] and wrote three letters to his friend Jennifer Cabrera.[39]
On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced
Honesto Aragon to his son when he came to visit.[40] On the following day, June 29, Webb, in the company of his father and Aragon went
to Riverside, California, to look for a car. They bought an MR2 Toyota car.[41]Later that day, a visitor at the Brottmans, Louis Whittacker, saw
Webb looking at the plates of his new car.[42] To prove the purchase, Webb presented the Public Records of California Department of Motor
Vehicle[43] and a car plate LEW WEBB.[44] In using the car in the U.S., Webb even received traffic citations.[45]

On June 30, 1991 Webb, again accompanied by his father and Aragon,[46] bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a
receipt dated June 30, 1991.[48] On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.[49]

Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to
stay with the spouses Jack and Sonja Rodriguez.[50] There, he met Armando Rodriguez with whom he spent time, playing basketball on
weekends, watching movies, and playing billiards.[51] In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack
Rodriguez, who was invited for a dinner at the Rodriguezs house.[52] He left the Rodriguezs home in August 1992, returned to Anaheim and
stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.

d. The second immigration checks

As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure
from the U.S. was confirmed by the same certifications that confirmed his entry.[53] Furthermore, a Diplomatic Note of the U.S. Department of
State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the
Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine
Airlines Flight No. 103,[54] certified by Agnes Tabuena[55] confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated
his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs
reentry.[56] Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball
at the BF's Phase III basketball court.

e. Alibi versus positive identification

The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against
Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger
sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated.

But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial
and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a
hangmans noose in the face of a witness positively swearing, I saw him do it.? Most judges believe that such assertion automatically dooms an
alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really
innocent have any chance of prevailing over such a stone-cast tenet?

There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to
quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not
automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a truthful witness
can. The lying witness can also say as forthrightly and unequivocally, He did it! without blinking an eye.

Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually
based on past experiences with her. Her word has, to one who knows her, its weight in gold.

And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about
something she never saw runs into inconsistencies and makes bewildering claims.

Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.

She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime
as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the
prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the
Vizconde killings when she could not produce a man she promised to the NBI.

And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage
of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass
frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also
had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag
and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not
need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood.

Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns
raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to
neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story
that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were
practically strangers, also taxes incredulity.

To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre
Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the
house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion
of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone
witness to a grim scene is also quite inexplicable.

Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that
jurisprudence acknowledges as sufficient to jettison a denial and an alibi.

f. A documented alibi

To establish alibi, the accused must prove by positive, clear, and satisfactory evidence [57] that (a) he was present at another place at the time
of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.[58]

The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S.
from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the
crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the
Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his
passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm.

If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local
immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure
speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger
manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S.
Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from
the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these
questions.

The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the
best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge
to see. As Court of Appeals Justice Tagle said in his dissent,[59] the practice when a party does not want to leave an important document with
the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the
original. Stipulations in the course of trial are binding on the parties and on the court.

The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no
less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for
the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is
a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is
issued. The entries in that passport are presumed true.[60]

The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine
Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have
the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their
trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of
such statement and in the publicity of the record.[61]

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

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

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San
Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the
Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department,
declared the earlier Certification as incorrect and erroneous as it was not exhaustive and did not reflect all available information. Also,
Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul
General Teresita V. Marzan, explained that the INS normally does not maintain records on individuals who are entering the country as
visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information
system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired
result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT
visitors of the U.S..[62]
The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the
domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly
return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the
Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen
hours.

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

7. Effect of Webbs alibi to others

Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada,
Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place,
Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must
necessarily fall.

CONCLUSION

In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open
mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious
mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable
between teeth.
Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that
she take the role of the witness to the Vizconde massacre that she could not produce?

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court
of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to
prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another
lawful cause.

Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of
the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.

SO ORDERED.

THIRD DIVISION
G.R. No. 204894, March 10, 2014
PEOPLE OF THE PHILIPPINES, Appellee, v. NOEL ENOJAS Y HINGPIT, ARNOLD GOMEZ YFABREGAS, FERNANDO SANTOS Y DELANTAR, AND
ROGER JALANDONI Y ARI, Appellants.
DECISION
ABAD, J.:
On September 4, 2006 the City Prosecutor of Las Piñas charged appellants Noel Enojas y Hingpit (Enojas), Arnold Gomez y Fabregas (Gomez),
Fernando Santos y Delantar (Santos), and Roger Jalandoni y Ari (Jalandoni) with murder before the Las Piñas Regional Trial Court (RTC) in
Criminal Case 06-0854.1crallawlibrary

PO2 Eduardo Gregorio, Jr. (PO2 Gregorio) testified that at around 10:30 in the evening of August 29, 2006, he and PO2 Francisco Pangilinan
(PO2 Pangilinan) were patrolling the vicinity of Toyota Alabang and SM Southmall when they spotted a taxi that was suspiciously parked in
front of the Aguila Auto Glass shop near the intersection of BF Almanza and Alabang-Zapote Roads. The officers approached the taxi and asked
the driver, later identified as accused Enojas, for his documents. The latter complied but, having entertained doubts regarding the veracity of
documents shown them, they asked him to come with them to the police station in their mobile car for further questioning.2crallawlibrary

Accused Enojas voluntarily went with the police officers and left his taxi behind. On reaching the 7-11 convenience store on the Zapote-
Alabang Road, however, they stopped and PO2 Pangilinan went down to relieve himself there. As he approached the store’s door, however, he
came upon two suspected robbers and shot it out with them. PO2 Pangilinan shot one suspect dead and hit the other who still managed to
escape. But someone fired at PO2 Pangilinan causing his death.

On hearing the shots, PO2 Gregorio came around and fired at an armed man whom he saw running towards Pilar Village. He saw another man,
who came from the Jollibbee outlet, run towards Alabang-Zapote Road while firing his gun at PO2 Gregorio. The latter returned fire but the
men were able to take a taxi and escape. PO2 Gregorio radioed for help and for an ambulance. On returning to his mobile car, he realized that
accused Enojas, the taxi driver they had with them had fled.

P/Insp. Ferjen Torred (Torred), the Chief of Investigation Division of the Las Piñas Police, testified that he and PO2 Teoson Rosarito (PO2
Rosarito) immediately responded to PO2 Gregorio’s urgent call. Suspecting that accused Enojas, the taxi driver who fled, was involved in the
attempted robbery, they searched the abandoned taxi and found a mobile phone that Enojas apparently left behind. P/Ins. Torred instructed
PO3 Joel Cambi (PO3 Cambi) to monitor its incoming messages. 3crallawlibrary

The police later ascertained that the suspect whom PO2 Pangilinan had killed was someone named Reynaldo Mendoza who was armed with a
.38 caliber revolver. The police found spent 9 mm and M-16 rifle shells at the crime scene. Follow-up operations at nearby provinces resulted
in finding the dead body of one of the suspects, Alex Angeles, at the Metro South Medical Center along Molino, Bacoor, Cavite.4crallawlibrary

PO3 Cambi and PO2 Rosarito testified that they monitored the messages in accused Enojas’ mobile phone and, posing as Enojas,
communicated with the other accused. The police then conducted an entrapment operation that resulted in the arrest of accused Santos and
Jalandoni. Subsequently, the police were also able to capture accused Enojas and Gomez. The prosecution presented the transcripts of the
mobile phone text messages between Enojas and some of his co-accused.5crallawlibrary

The victim’s father, Ricardo Pangilinan, testified that his son was at the time of his death 28 years old, unmarried, and was receiving police pay
of P8,000.00 to P10,000.00 per month. Ricardo spent P99,999 for burial expense, P16,000.00 for the interment services, and P50,000.00 for
purchase of the cemetery lot.6crallawlibrary

Manifesting in open court that they did not want to adduce any evidence or testify in the case,7 the accused opted to instead file a trial
memorandum on March 10, 2008 for their defense. They pointed out that they were entitled to an acquittal since they were all illegally
arrested and since the evidence of the text messages were inadmissible, not having been properly identified.

On June 2, 2008 the RTC rendered judgment,8 finding all the accused guilty of murder qualified by evident premeditation and use of armed
men with the special aggravating circumstance of use of unlicensed firearms. It thus sentenced them to suffer the penalty of reclusion
perpetua, without the possibility of parole and to indemnify the heirs of PO2 Pangilinan with P165,999.00 as actual damages, P50,000.00 as
moral damages, P25,000.00 as exemplary damages, and P2,080,000.00 as compensation for loss of earning capacity.

Upon review in CA-G.R. CR-H.C. 03377, on June 14, 2012 the Court of Appeals (CA) dismissed the appeal and affirmed in toto the conviction of
the accused.9 The CA, however, found the absence of evident premeditation since the prosecution failed to prove that the several accused
planned the crime before committing it. The accused appealed from the CA to this Court. 10crallawlibrary

The defense points out that the prosecution failed to present direct evidence that the accused Enojas, Gomez, Santos, or Jalandoni took part in
shooting PO2 Pangilinan dead.11 This may be true but the prosecution could prove their liability by circumstantial evidence that meets the
evidentiary standard of proof beyond reasonable doubt. It has been held that circumstantial evidence is sufficient for conviction if: 1) there is
more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt. 12crallawlibrary

Here the totality of the circumstantial evidence the prosecution presented sufficiently provides basis for the conviction of all the accused.
Thus:chanRoblesVirtualawlibrary
1. PO2 Gregorio positively identified accused Enojas as the driver of the taxicab suspiciously parked in front of the Aguila Auto Glass shop. The
officers were bringing him with them to the police station because of the questionable documents he showed upon query. Subsequent
inspection of the taxicab yielded Enojas’ mobile phone that contained messages which led to the entrapment and capture of the other accused
who were also taxicab drivers.

2. Enojas fled during the commotion rather than remain in the cab to go to the police station where he was about to be taken for questioning,
tending to show that he had something to hide. He certainly did not go to the police afterwards to clear up the matter and claim his taxi.

3. PO2 Gregorio positively identified accused Gomez as one of the men he saw running away from the scene of the shooting.

4. The text messages identified “Kua Justin” as one of those who engaged PO2 Pangilinan in the shootout; the messages also referred to “Kua
Justin” as the one who was hit in such shootout and later died in a hospital in Bacoor, Cavite. These messages linked the other accused.

5. During the follow-up operations, the police investigators succeeded in entrapping accused Santos, Jalandoni, Enojas, and Gomez, who were
all named in the text messages.

6. The text messages sent to the phone recovered from the taxi driven by Enojas clearly made references to the 7-11 shootout and to the
wounding of “Kua Justin,” one of the gunmen, and his subsequent death.

7. The context of the messages showed that the accused were members of an organized group of taxicab drivers engaged in illegal activities.

8. Upon the arrest of the accused, they were found in possession of mobile phones with call numbers that corresponded to the senders of the
messages received on the mobile phone that accused Enojas left in his taxicab.13

The Court must, however, disagree with the CA’s ruling that the aggravating circumstances of a) aid of armed men and b) use of unlicensed
firearms qualified the killing of PO2 Pangilinan to murder. In “aid of armed men,” the men act as accomplices only. They must not be acting in
the commission of the crime under the same purpose as the principal accused, otherwise they are to be regarded as co-principals or co-
conspirators. The use of unlicensed firearm, on the other hand, is a special aggravating circumstance that is not among the circumstances
mentioned in Article 248 of the Revised Penal Code as qualifying a homicide to murder. 14 Consequently, the accused in this case may be held
liable only for homicide, aggravated by the use of unlicensed firearms, a circumstance alleged in the information.

As to the admissibility of the text messages, the RTC admitted them in conformity with the Court’s earlier Resolution applying the Rules on
Electronic Evidence to criminal actions.15 Text messages are to be proved by the testimony of a person who was a party to the same or has
personal knowledge of them.16Here, PO3 Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to
identify and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal
knowledge of such messages and was competent to testify on them.

The accused lament that they were arrested without a valid warrant of arrest. But, assuming that this was so, it cannot be a ground for
acquitting them of the crime charged but for rejecting any evidence that may have been taken from them after an unauthorized search as an
incident of an unlawful arrest, a point that is not in issue here. At any rate, a crime had been committed—the killing of PO2 Pangilinan—and
the investigating police officers had personal knowledge of facts indicating that the persons they were to arrest had committed it.17 The text
messages to and from the mobile phone left at the scene by accused Enojas provided strong leads on the participation and identities of the
accused. Indeed, the police caught them in an entrapment using this knowledge.

The award of damages by the courts below has to be modified to conform to current jurisprudence. 18crallawlibrary

WHEREFORE, the Court MODIFIES the Court of Appeals Decision of June 14, 2012 in CA-G.R. CR-HC 03377. The Court instead FINDS accused-
appellants Noel Enojas y Hingpit, Arnold Gomez y Fabregas, Fernando Santos y Delantar, and Roger Jalandoni y Ari GUILTY of the lesser crime
of HOMICIDE with the special aggravating circumstance of use of unlicensed firearms. Applying the Indeterminate Sentence Law, the
Court SENTENCES each of them to 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum. The Court also
MODIFIES the award of exemplary damages by increasing it to P30,000.00, with an additional P50,000.00 for civil indemnity.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170491 April 4, 2007
NATIONAL POWER CORPORATION, Petitioner,
vs.
HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING,
INCORPORATED, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the Decision 1 of the Court of Appeals in
CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed the Petition for Certiorari filed by the National Power Corporation
seeking to set aside the Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying admission and
excluding from the records plaintiff’s (herein petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K",
"L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-
markings.
On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai Shipping, Co., allegedly
bumped and damaged petitioner’s Power Barge 209 which was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner
filed before the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages caused on
petitioner’s power barges.
Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private respondent Wallem Shipping, Inc., as
additional defendant, contending that the latter is a ship agent of Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a
Motion to Dismiss which was subsequently denied by public respondent Judge in an Order dated 20 October 1998. Bangpai Shipping Co.
likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order issued on 24 January 2003.
Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court on 2 February 2004
consisting of Exhibits "A" to "V" together with the sub-marked portions thereof. Consequently, private respondents Bangpai Shipping Co. and
Wallem Shipping, Inc. filed their respective objections to petitioner’s formal offer of evidence.
On 16 November 2004, public respondent judge issued the assailed order denying the admission and excluding from the records petitioner’s
Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings,
"O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. According to the court a quo:
The Court finds merit in the objections raised and the motion to strike out filed respectively by the defendants. The record shows that the
plaintiff has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced
the originals. The plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies offered are equivalent to
the original of the document" on the basis of the Electronic Evidence (Comment to Defendant Wallem Philippines’ Objections and Motion to
Strike). But as rightly pointed out in defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic
evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:
"(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other models of written
expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed
documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document.
For the purpose of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".
The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic
evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required
Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less
presented in evidence.
The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly identified by any
competent witness, the loss of the principals thereof was not established by any competent proof.
xxxx
WHEREFORE, plaintiff’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings,
"N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from
the records. However, these excluded evidence should be attached to the records of this case to enable the appellate court to pass upon them
should an appeal be taken from the decision on the merits to be rendered upon the termination of the trial of this case.
Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the witness who brought these pictures
expressly admitted that he was not present when the photos were taken and had not knowledge when the same where taken. 3
Upon denial of petitioner’s Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a Petition for Certiorari under Rule 65
of the Rules of Civil Procedure before the Court of Appeals maintaining that public respondent Judge acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its
sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R", and
"S" and its sub-markings.
On 9 November 2005, the appellate court issued a Decision dismissing petitioner’s petition for certiorari, the pertinent portions of which
elucidate:
After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence which are applicable in the premises, we
have come up with a finding that the petition for certiorari filed in this case is not meritorious.
It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave abuse of discretion in issuing the
assailed orders in Civil Case No. CEB-18662. As what our jurisprudence tells us, grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as would be equivalent to lack of jurisdiction x x x.
In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the respondent judge acted correctly
and within the pale of his sound discretion in issuing the assailed order, dated November 16, 2004, in Civil Case No. CEB-18662.
Indeed, it appears that the pieces of petitioner’s documentary evidence which were denied admission by the respondent judge were not
properly identified by any competent witness. As pointed out by the respondent Bangpai Shipping Company in its comment on the petition
filed in this case which reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor Enriquez,
Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of and participation in the preparation and making of the
pieces of documentary evidence denied admission by respondent judge x x x. In other words, there was lack of proper identification of said
pieces of documentary evidence. x x x.
Then another ground for denying admission of petitioner’s Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent judge is that
said pieces of documentary evidence were merely photocopies of purported documents or papers. There is no gainsaying the fact that the
respondent judge acted within the pale of his discretion when he denied admission of said documentary evidence. Section 3 of Rule 130 of the
Rules of Court of the Philippines is very explicit in providing that, when the subject of inquiry are the contents of documents, no evidence shall
be admissible other than the original documents themselves, except in certain cases specifically so enumerated therein, and the petitioner has
not shown that the non-presentation or non-production of its original documentary pieces of evidence falls under such exceptions. As aptly
pointed out by the respondent judge in the order issued by him on November 16, 2004:
"x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present the originals of the Xerox or
photocopies of the documents it offered. It never produced said originals."
So, the petitioner has only itself to blame for the respondent judge’s denial of admission of its aforementioned documentary evidence.
Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to the original documents that it
sought to offer in evidence, based on the Rules on Electronic Evidence which were in force and effect since August 1, 2001. However, such a
contention is devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB-18662 which were denied
admission by the respondent judge do not actually constitute as electronic evidence as defined in the Rules on Electronic Evidence. The
informations therein were not received, retrieved or produced electronically. The petitioner has not adequately established that its
documentary evidence were electronic evidence. it has not properly authenticated such evidence as electronic documents,
assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit pursuant to Rule 9 of the Rules on Electronic
Evidence the admissibility and evidentiary weight of said documentary evidence.
Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of discretion in denying admission of the
aforementioned documentary evidence of petitioner.
But even if it be granted just for the sake of argument that the respondent judge committed an error in denying the aforementioned
documentary evidence of the petitioner, still the petition for certiorari filed in this case must fail. Such error would at most be only an error of
law and not an error of jurisdiction. In Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case
of an error of law. x x x.
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the petition filed in this case and AFFIRMING
the assailed orders issued by respondent judge in Civil Case No. CEB-18662.4
Aggrieved by the aforequoted decision, petitioner filed the instant petition.
The focal point of this entire controversy is petitioner’s obstinate contention that the photocopies it offered as formal evidence before the trial
court are the functional equivalent of their original based on its inimitable interpretation of the Rules on Electronic Evidence.
Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it presented as documentary
evidence actually constitute electronic evidence based on its own premise that an "electronic document" as defined under Section 1(h), Rule 2
of the Rules on Electronic Evidence is not limited to information that is received, recorded, retrieved or produced electronically. Rather,
petitioner maintains that an "electronic document" can also refer to other modes of written expression that is produced electronically, such as
photocopies, as included in the section’s catch-all proviso: "any print-out or output, readable by sight or other means".
We do not agree.
In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as contemplated in Republic Act No.
8792 or the Implementing Rules and Regulations of the Electronic Commerce Act, as well as the Rules on Electronic Evidence, we shall
enumerate the following documents offered as evidence by the petitioner, to wit:
1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED" stamped thereon, together with a
handwritten date;
2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioner’s power barges 207 and 209 prepared by Hopewell Mobile
Power Systems Corporation and manually signed by Messrs. Rex Malaluan and Virgilio Asprer;
3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a
handwritten notation of the date it was received;
4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by Rex Joel C. Malaluan in his own
handwriting and signed by him. Portions of the Jurat were handwritten, and manually signed by the Notary Public;
5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED" stamped thereon, together with a
handwritten notation of the date it was received;
6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by petitioner which was manually signed by Mr.
Nestor G. Enriquez, Jr.;
7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with
"RECEIVED" stamped thereon, together with a handwritten notation of the date it was received, and other handwritten notations;
8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual typewriter, signed manually by Atty.
Ofelia Polo-De Los Reyes, with a handwritten notation when it was received by the party;
9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance agreement between petitioner and
Hopewell, containing handwritten notations and every page containing three unidentified manually placed signatures;
10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C. Malaluan, manually signed by Jaime S.
Patinio, with a handwritten notation of the date it was received. The sub-markings also contain manual signatures and/or handwritten
notations;
11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer and manually signed by Jaime S. Patino.
The sub-markings contain manual signatures and/or handwritten notations;
12. Exhibit "O" is the same photocopied document marked as Annex C;
13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista and by the Notary Public, with other
handwritten notations;
14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public, together with other handwritten notations.
On the other hand, an "electronic document" refers to information or the representation of information, data, figures, symbols or other
models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a
fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.5 It includes
digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or
electronic document.6
The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or
produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar
to any other document which is presented in evidence as proof of its contents. 7 However, what differentiates an electronic document from a
paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is
received, recorded, transmitted, stored, processed, retrieved or produced electronically.
A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the
signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the
imagination can a person’s signature affixed manually be considered as information electronically received, recorded, transmitted, stored,
processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic
process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not
preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is
consequential that the same may not be considered as the functional equivalent of their original as decreed in the law.
Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the records petitioner’s Exhibits "A", "C",
"D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its
sub-markings, "Q" and its sub-markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best evidence
rule and are therefore of no probative value being incompetent pieces of evidence. Before the onset of liberal rules of discovery, and modern
technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of
altered copies and the withholding of the originals.8 But the modern justification for the rule has expanded from the prevention of fraud to a
recognition that writings occupy a central position in the law. 9The importance of the precise terms of writings in the world of legal relations,
the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns
addressed by the best evidence rule.10
Moreover, as mandated under Section 2, Rule 130 of the Rules of Court:
"SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the contents of which is the subject of
inquiry, other than the original writing itself, except in the following cases:
(a) When the original has been lost, destroyed, or cannot be produced in court;
(b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable
notice;
(c) When the original is a record or other document in the custody of a public officer;
(d) When the original has been recorded in an existing record a certified copy of which is made evidence by law;
(e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and
the fact sought to be established from them is only the general result of the whole."
When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence
and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order stated. 11 The offeror of secondary evidence is burdened to prove the
predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by
circumstantial evidence of routine practices of destruction of documents;12 (b) the proponent must prove by a fair preponderance of evidence
as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but
unsuccessful search has been made for the document in the proper place or places. 13 However, in the case at bar, though petitioner insisted in
offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions as
enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the
photocopies offered by petitioner as documentary evidence.
Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by the trial court for it to present the
originals of the photocopies it presented yet comes before us now praying that it be allowed to present the originals of the exhibits that were
denied admission or in case the same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner presented the
originals of the documents to the court instead of the photocopies it obstinately offered as evidence, or at the very least laid the predicate for
the admission of said photocopies, this controversy would not have unnecessarily been brought before the appellate court and finally to this
Court for adjudication. Had it not been for petitioner’s intransigence, the merits of petitioner’s complaint for damages would have been
decided upon by the trial court long ago. As aptly articulated by the Court of Appeals, petitioner has only itself to blame for the respondent
judge’s denial of admission of its aforementioned documentary evidence and consequently, the denial of its prayer to be given another
opportunity to present the originals of the documents that were denied admission nor to lay the predicate for the admission of secondary
evidence in case the same has been lost.
WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP No. 00848,
dated 9 November 2005 is hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION
(NTC), respondents.
SEPARATE CONCURRING OPINION
CARPIO, J.:
The Case
This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice Raul M.
Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June
2005, warning radio and television stations against airing taped conversations allegedly between President Gloria Macapagal-Arroyo and
Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano) 1 under pain of suspension or revocation of their airwave
licenses.
The Facts
On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential
elections.2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr.
Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging" the
results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press
conference in Malacañang Palace, where he played before the presidential press corps two compact disc recordings of conversations between
a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents of the second compact
disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not President Arroyo’s after
all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes. 4 Respondent Gonzalez ordered the
National Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200
or the Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a "cause for the
suspension, revocation and/or cancellation of the licenses or authorizations" issued to them. 5 On 14 June 2005, NTC officers met with officers
of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint
press statement expressing commitment to press freedom.6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts, issuances, and orders" of the NTC
and respondent Gonzalez (respondents) on the following grounds: (1) respondents’ conduct violated freedom of expression and the right of
the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it
warned radio and television stations against airing the Garci Tapes.
In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to litigate and (2) the petition
fails to meet the case or controversy requirement in constitutional adjudication. On the merits, respondents claim that (1) the NTC's press
release of 11 June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the lack of authentication of the
Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to
radio and television stations.
In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a citizen asserting the
enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents' claim that the NTC
press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping
Law, making it a "cleverly disguised x x x gag order."
ISSUE
The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior
restraint on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior
restraint on protected expression, and (3) enjoin the NTC from enforcing the same.
1. Standing to File Petition
Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to
bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the government
action is directed at such citizen. The government action may chill into silence those to whom the action is directed. Any citizen must be
allowed to take up the cudgels for those who have been cowed into inaction because freedom of expression is a vital public right that must be
defended by everyone and anyone.
Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is of transcendental importance that
must be defended by every patriotic citizen at the earliest opportunity. We have held that any concerned citizen has standing to raise an issue
of transcendental importance to the nation,7 and petitioner in this present petition raises such issue.
2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment
Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition 8 to the
exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom
of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and
democratic society must zealously safeguard freedom of expression.
Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed
choices of candidates for public office. Freedom of expression crystallizes important public policy issues, and allows citizens to participate in
the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims and counterclaims,
from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence
from marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement
among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead.
Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to
express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free
expression for the ideas we love, as well as the free expression for the ideas we hate. 9 Indeed, the function of freedom of expression is to stir
disputes:
[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea.10
Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of
expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely:
pornography,11 false or misleading advertisement,12 advocacy of imminent lawless action,13 and danger to national security.14 All other
expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, "[T]he First
Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over
the content of messages expressed by private individuals."15
Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected
expression is unconstitutional without exception. A protected expression means what it says – it is absolutely protected from censorship.
Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the
imposition of new tax measures, or on proposed amendments to the Constitution.
Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to strict
scrutiny content-based restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as
unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior
restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the
recognized categories of unprotected expression.
If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral
restraint is a restraint which regulates the time, place or manner of the expression in public places16 without any restraint on the content of
the expression. Courts will subject content-neutral restraints to intermediate scrutiny.17
An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A
content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of
validity and is thus enforceable subject to appeal to the courts. 18 Courts will uphold time, place or manner restraints if they are content-
neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression.19
In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus,
submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for classification
and not for censoring any part of the content of the submitted materials. 20 However, failure to submit such materials to the review board may
be penalized without regard to the content of the materials.21 The review board has no power to reject the airing of the submitted materials.
The review board’s power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The
power to classify expressions applies only to movies and pre-taped television programs22 but not to live television programs. Any classification
of live television programs necessarily entails prior restraint on expression.
Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based23 since the restraint is imposed because of the content itself. In this jurisdiction, there are currently
only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement
as unprotected expression only in October 2007.24
Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a
high barrier. First, such prior restraint is presumed unconstitutional. Second,the government bears a heavy burden of proving the
constitutionality of the prior restraint.25
Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. 26 The government action will
be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior
restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest.
Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also
deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment, 27 either civilly or
criminally. Thus, the publication of election surveys cannot be subject to prior restraint, 28 but an aggrieved person can sue for redress of injury
if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or
religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the
perpetrator of such offensive shows.29
Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment,
civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction
of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or
"hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction,30 such expression cannot be subject to
prior restraint.
If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a
law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature must punish the
unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a
prior restraint on such expression.
The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of
unprotected expression – pornography,31 advocacy of imminent lawless action, and danger to national security - is the clear and present
danger test.32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right
and duty to prevent, and such danger must be grave and imminent.33
Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or impermissible pressures like threats
of revoking licenses or withholding of benefits. 34 The impermissible pressures need not be embodied in a government agency regulation, but
may emanate from policies, advisories or conduct of officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio and television
stations is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio and television
stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of
the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations."
Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or
willful misrepresentation.
Specifically, the NTC press release contains the following categorical warning:
Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio
stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like
the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting
or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain
personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a
Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped
conversations are product of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an
accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or
broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic)
subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned
radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation
shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said
companies. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The
NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does
not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent
character, that the State has a right and duty to prevent.
The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-
Wiretapping Law. At the time of issuance of the NTC press release, and even up to now, the parties to the conversations in the Garci Tapes
have not complained that the wire-tapping was without their consent, an essential element for violation of the Anti-Wiretapping Law.35 It was
even the Office of the President, through the Press Secretary, that played and released to media the Garci Tapes containing the alleged
"spliced" conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether a wirelesscellular phone
conversation is covered by the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law.
The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as
mandated in Ang Tibay v. Court of Industrial Relations.36
The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false information and/or willful
misrepresentation." However, the NTC does not claim that such possible false information or willful misrepresentation constitutes misleading
commercial advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected expression that may be
subject to prior restraint. Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a
government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public.37 There is,
however, no claim here by respondents that the Garci Tapes constitute false or misleading commercial advertisement.
The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only "after a
prosecution or appropriate investigation" can it be established that the Garci Tapes constitute "false information and/or willful
misrepresentation." Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful
misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci
Tapes. The NTC’s claim that the Garci Tapes might contain "false information and/or willful misrepresentation," and thus should not be
publicly aired, is an admission that the restraint is content-based.
5. Nature of Expression in the Present Case
The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected
expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential
candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections.
Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is
indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process is one
of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected
expressions, political expression would occupy the highest rank, 38 and among different kinds of political expression, the subject of fair and
honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide
open.
The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone,
the NTC press release is unconstitutional. Of course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers
the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there
is no claim here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would
endanger the security of the State.39
The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because
the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression.40 The
only exceptions to this rule are the four recognized categories of unprotected expression. However, the content of the Garci Tapes does not
fall under any of these categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public
concern. The Constitution guarantees the people’s right to information on matters of public concern. 41 The remedy of any person aggrieved by
the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime.
Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law.
The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs significantly from
subsequent punishment of protected expression. While there can be no prior restraint on protected expression, there can be subsequent
punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of
the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-
based censorship power over radio and television stations.
In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even
assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to
adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing about a
substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint.
Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is
constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless
ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is
presumed unconstitutional at inception.
As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter wattage, and location of radio
and television stations, but not the content of the broadcasts. Such content-neutral prior restraint may make operating radio and television
stations more costly. However, such content-neutral restraint does not restrict the content of the broadcast.
7. Government Failed to Overcome Presumption of Invalidity
Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior restraint on the airing is
presumed unconstitutional. The Government bears a heavy burden to prove that the NTC action is constitutional. The Government has failed
to meet this burden.
In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes.
The respondents claim that they merely "fairly warned" radio and television stations to observe the Anti-Wiretapping Law and pertinent NTC
circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-
Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci
Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the
violation is committed. Respondents have not explained why there is a need in the present case to impose prior restraint just to prevent a
possible future violation of the Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of
the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior
restraint on all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of sweeping and
endless censorship on broadcast media.
8. The NTC Warning is a Classic Form of Prior Restraint
The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure
amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling
effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested
substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is
thus real and potent.
In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a general warrant "is in the nature of a
previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law." The NTC warning to radio and
television stations not to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect – a prior restraint on
constitutionally protected expression.
In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government threats to close down mass media
establishments that refused to comply with government prescribed "standards" on news reporting following the declaration of a State of
National Emergency by President Arroyo on 24 February 2006. The Court described these threats in this manner:
Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such
raid was "meant to show a 'strong presence,' to tell media outlets not to connive or do anything that would help the rebels in bringing down
this government." Director General Lomibao further stated that "if they do not follow the standards — and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 — we will
recommend a 'takeover.'" National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate"
with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is
threatened.44 (Emphasis supplied)
The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court ruled that "the imposition of
standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of
its articles for publication and other materials, are declared UNCONSTITUTIONAL."45
The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or cancellation of licenses to
publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC warning is a classic form of prior restraint on protected
expression, which in the words of Near v. Minnesota is "the essence of censorship."46 Long before the American Declaration of Independence
in 1776, William Blackstone had already written in his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no
previous restraints upon publication x x x."47
Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel permits remains real and
effective, for without airwaves or frequencies, radio and television stations will fall silent and die. The NTC press release does not seek to
advance a legitimate regulatory objective, but to suppress through coercion information on a matter of vital public concern.
9. Conclusion
In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based prior
restraint on protected expression. This rule has no exception.
I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional
prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same.
ANTONIO T. CARPIO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the issue
of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private
conversation would constitute unlawful interception of communications between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of complainant's
residence discussing the terms for the withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal of Cebu
against Leonardo Laconico. After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August
26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on the settlement of the direct
assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to the office of
Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone extension so
as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for
withdrawal of the complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been
made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in
persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office,
whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered 'Yes'. Complainant
then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways.
Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that
complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant,
complainant was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for
direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since
appellant listened to the telephone conversation without complainant's consent, complainant charged appellant and Laconico with violation of
the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1
of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner
appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the
complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such
communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to
overhear the telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the
telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is
covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear
said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the
petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any
wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:
It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to knowingly possess
any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either
before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in Section 3 hereof, shall not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of
evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and
his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to
enable them to both listen to an alleged attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense
that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also
undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an
extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an
P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's
Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in
effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the
call may be. It would be the word of the caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are
made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his
telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under
Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never
intended for such mischievous results.
The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an
extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years
with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with
extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations
between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that
matter, would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or
recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964,
when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely
used instruments, probably the most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was
finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph,
detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party
lines were intentionally deleted from the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the
aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a
movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or
removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired
communication corning from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or
recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA
No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was
not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to
determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs
v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they shall not be understood to
comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374
of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense
which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those
listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that 'particularization
followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of
parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they
stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co.,
134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be
construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the
main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard
because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone
conversation.
An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire
to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the
party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case
of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed
2d 137-138):
Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used
instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow
another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain.
Consequently, one element of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out
his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use
an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at
bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not
including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals; the object is to establish
a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L
Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA
821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape punishment through a technicality but to
provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed.
pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is to search for
and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not
contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance, they were more
concerned with penalizing the act of recording than the act of merely listening to a telephone conversation.
xxx xxx xxx
Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment
which Your Honor may introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the
amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this
amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their
conversation.
Senator Tañada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court would be limited to saying: "Okay,
who is more credible, the police officers or the defendant?" In these cases, as experienced lawyers, we know that the Court go with the peace
offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he could falsify the testimony and
there is no way of checking it. But if you allow him to record or make a recording in any form of what is happening, then the chances of
falsifying the evidence is not very much.
Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we could devise a way by which we
could prevent the presentation of false testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape record and
other electronic devices to intercept private conversations which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or
representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some
unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the
use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such
devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET
ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent,
Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a
manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses
of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The
transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as
follows:
Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na,
magsumbong ka kung ano ang gagawin ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon
ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi
ka sa akin makakahingi.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.
ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na
kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na
kita).
CHUCHI — Itutuloy ko na M'am sana ang duty ko.
ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami
ang nag-aaply alam kong hindi ka papasa.
CHUCHI — Kumuha kami ng exam noon.
ESG — Oo, pero hindi ka papasa.
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG — Kukunin ka kasi ako.
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng
nanay at tatay mo ang mga magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.
ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa
akin, dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka.3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private
respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and
penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of
violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court,
the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did
then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter
communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute
an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner
that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of
a communication by a person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case
to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and
void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the
ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari.5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its
Resolution6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of Republic Act 4200 does not apply to the taping
of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping
of a private conversation by a party other than those involved in the communication.8 In relation to this, petitioner avers that the substance or
content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A.
4200.9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that
consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the
law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either
impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and
Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any
wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise
described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private
communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party
sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The
statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as
respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with
another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our
lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the
parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your
Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section
3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by
some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or
the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it
within the purview of this bill or outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special
proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it
against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the
parties should know that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no
objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the
observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used
against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own
interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him
knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he
would be penalized under Section 1? Because the speech is public, but the recording is done secretly.
Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person
— not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record,
therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private
communications. Where the law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged
in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means
of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a
tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before
the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation,
as well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations"
narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin
word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting
signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or
thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad
enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the
emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any
doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator Tañada in his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual
nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to
expose. Free conversationsare often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires
of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our
Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals
and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals — free from every unjustifiable
intrusion by whatever means.17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone
extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension
devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be
construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances
pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private
communications with the use of tape-recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition
is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.

SECOND DIVISION
[G.R. No. 121087. August 26, 1999]
FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of
the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of
homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years, eight (8) months, and one (1) day
of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00
to P50,000.00.
The information against petitioner alleged
That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did
then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters, where authorities are
supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when
the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral
concussion and shock which directly caused his death.
The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique Ike Lingan, who were reporters of
the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing
nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to
perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.[2]
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a
picture.[3] Jalbuena replied: Wala kang pakialam, because this is my job.[4] Sioco pushed Jalbuena towards the table as he warned the latter
that he would kill him.[5] When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions. [6]
Jalbuena and his companions went to the police station to report the matter. Three of the policemen on duty, including petitioner Navarro,
were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the
desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.[7]
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes. [8] Afterwards, petitioner
Navarro turned to Jalbuena and, pushing him to the wall, said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi
mo ba kilala?[9] Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said, Ano, uutasin na
kita?[10]
At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan, pumarito kami para magpa-blotter, I am here to
mediate.[11] Petitioner Navarro replied: Walang press, press, mag-sampu pa kayo.[12] He then turned to Sgt. Aonuevo and told him to make of
record the behavior of Jalbuena and Lingan.[13]
This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro retorted: Talagang ilalagay ko.[15] The two then had a heated
exchange.[16] Finally, Lingan said: Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo.[17] Petitioner Navarro
replied: Ah, ganoon?[18]
As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the left eyebrow. Lingan fell on the floor,
blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.[19]
Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan ang naghamon.[20] He said to Sgt.
Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon.[21] He then poked his gun at the
right temple of Jalbuena and made him sign his name on the blotter.[22] Jalbuena could not affix his signature. His right hand was trembling and
he simply wrote his name in print.[23]
Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial
Hospital. The station manager of DWTI, Boy Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But
Lingan died from his injuries.[24]
Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased. [25] The following is
an excerpt from the tape recording:
Lingan: Pare, you are abusing yourself.
Navarro: Who is that abusing?
Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem.
....
Navarro: Wala sa akin yan. Ang kaso lang . . . .
Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say
bad things against me. Im the number one loko sa media. Im the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka!
Lingan: Im brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko.
Lingan: You are challenging me and him. . . .
Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong
sabihin na . . . Parang minomonopoly mo eh.
Lingan: Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan: You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!
Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro: Mayabang ka ah!
(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako
nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot
nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that
Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete. [26]
In giving credence to the evidence for the prosecution, the trial court stated:
After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for
the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is
criminally responsible.
The defenses evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecutions evidence.
This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, distort the
truth, testify falsehood or cause accusation of one who had neither brought him harm or injury.
Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley
Jalbuena on how Lingan sustained head injuries.
Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased
Lingan were caused by the latters falling down on the concrete pavement head first.
The Court of Appeals affirmed:
We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as
presented by both parties, and we find the trial courts factual conclusions to have better and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does not impair the probative worth of his positive
and logical account of the incident in question. In fact, far from proving his innocence, appellants unwarranted assault upon Jalbuena, which
the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same
motivation that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and
humiliated him and further challenged him to a fist fight.
....
On the other hand, appellants explanation as to how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by
the number, nature and location of Lingans injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two
times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left
eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E). Certainly, these injuries could
not have resulted from Lingans accidental fall.
Hence, this appeal. Petitioner Navarro contends:
THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS
MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE
RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge
against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable. [27] Trial
courts, which have the opportunity to observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent
to determine whether his or her testimony should be given credence.[28] In the instant case, petitioner Navarro has not shown that the trial
court erred in according weight to the testimony of Jalbuena.
Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of R.A.
No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides:
SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any
wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly
possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured
either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons;
or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any
other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be covered by this prohibition.
....
SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof,
or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be
admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private communications.[29] Since the exchange between petitioner
Navarro and Lingan was not private, its tape recording is not prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally
recorded the conversation; (2) that the tape played in court was the one he recorded; and (3) that the voices on the tape are those of the
persons such are claimed to belong.[30] In the instant case, Jalbuena testified that he personally made the voice recording;[31] that the tape
played in court was the one he recorded;[32] and that the speakers on the tape were petitioner Navarro and Lingan. [33] A sufficient foundation
was thus laid for the authentication of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on
the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro
and Lingan, with the latter getting the worst of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a medical certificate, [34] dated February 5, 1990,
containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left
= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamoto testified:
Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2 doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing, sir.
Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion and Shock, will you
explain it?
A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
Q How about shock?
A Yes, sir.
FISCAL:
Which of these two more likely to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier, sir.
....
FISCAL:
Could a bumping or pushing of ones head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.[35]
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left
eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding
the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the
offended party, capable of exciting, inciting, or irritating anyone.[36] The provocation must be sufficient and should immediately precede the
act.[37] People v. Paga, 79 SCRA 570 (1977).37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must
accordingly be proportionate in gravity.[38]And it must immediately precede the act so much so that there is no interval between the
provocation by the offended party and the commission of the crime by the accused. [39]
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v.
Macaso,[40] we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had
repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be
appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows
that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining the penalty that should
be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be
incurred by any person committing a felony although the wrongful act done be different from that which he intended. [41] In People v.
Castro,[42] the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused
while finding him guilty of homicide.
However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their
duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen
were discharging their public functions.[43]
The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised
Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstance, the penalty should be fixed in
its minimum period.[44] Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the
minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and the maximum of which is reclusion
temporal in its minimum period.[45]
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with current jurisprudence.[46]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to
suffer a prison term of 8 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,
vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL S.
ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.

PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of respondent Court of Appeals in CA-G.
R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City
and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of marriage
with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the
petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by respondent
Judge Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and
unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on the same day, the trial court
admitted all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence of the aforementioned cassette
tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition, which in part reads:
It is much too obvious that the petition will have to fail, for two basic reasons:
(1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in evidence for certain purposes,
depending on how they are presented and offered and on how the trial judge utilizes them in the interest of truth and fairness and the even
handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence adduced during trial. The ruling on
admissibility is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned in the appeal from the
judgment on the merits and not through the special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be anymore
than an error of law, properly correctible by appeal and not by certiorari. Otherwise, we will have the sorry spectacle of a case being subject of
a counterproductive "ping-pong" to and from the appellate court as often as a trial court is perceived to have made an error in any of its
rulings with respect to evidentiary matters in the course of trial. This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for review, stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has no basis in law nor previous decision of the Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court of Appeals has decided a question of substance not theretofore
determined by the Supreme Court as the question of admissibility in evidence of tape recordings has not, thus far, been addressed and
decided squarely by the Supreme Court.
11. In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a decision in a way not in accord with
law and with applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the same can still be [the] subject of a petition for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by the
petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such
cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious
relief, the Court may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape
recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private
respondent allowed his friends from the military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and
for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as
follows:
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any
wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described. . . .
Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the
cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not
less than six (6) months and up to six (6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving the applicability of American jurisprudence, having arrived at the
conclusion that the subject cassette tapes are inadmissible in evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The subject cassette tapes are declared
inadmissible in evidence.
SO ORDERED.