DIVISION

[ GR No. 117401, Oct 01, 1998 ]

PEOPLE v. BERNARDO QUIDATO

DECISION
357 Phil. 674

ROMERO, J.:
Before us is an appeal from the judgment of the Regional Trial Court of Davao, Branch 4, dated March 2,
1994, finding accused-appellant Bernardo Quidato, Jr. guilty of the crime of parricide.

On January 17, 1989, accused-appellant was charged with the crime of parricide before the Regional Trial
Court of Davao. The information reads as follows:

The undersigned accuses BERNARDO QUIDATO, JR. of the crime of Parricide under Article 246 of the
Revised Penal Code, committed as follows:
That on or about September 17, 1988, in the Municipality of Kaputian, Province of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping with Reynaldo Malita and Eddie Malita, who are
charged for (sic) Murder in a separate information, did then and there wilfully, unlawfully and
criminally, with the use of a bolo and an iron bar, assault, hack and stab his father, Bernardo
Quidato, Sr., on the different parts of his body, thereby inflicting upon him wounds which caused
his death, and further causing actual, moral and compensatory damage to the heirs of the victim.

Contrary to law.[1]

Accused-appellant's case was tried jointly with the murder case filed against his co-accused, Reynaldo
Malita and Eddie Malita who, however, withdrew their "not guilty" plea during the trial and were
accordingly sentenced. Thus, only accused-appellant's case was tried on the merits.

The prosecution, in offering its version of the facts, presented as its witnesses accused-appellant's brother
Leo Quidato, appellant's wife Gina Quidato, as well as Patrolman Lucrecio Mara. Likewise, the
prosecution offered in evidence affidavits containing the extra-judicial confessions of Eddie Malita and
Reynaldo Malita. The two brothers were, however, not presented by the prosecution on the witness
stand. Instead, it presented Atty. Jonathan Jocom to prove that the two were assisted by counsel when
they made their confessions. Similarly, the prosecution presented MTC Judge George Omelio who
attested to the due and voluntary execution of the sworn statements by the Malita brothers.

Based on the foregoing pieces of evidence, the prosecution's version of the facts is as follows:

Bernardo Quidato, Sr. was the father of accused-appellant Bernardo Quidato, Jr. and Leo Quidato. Being
a widower, Bernardo lived alone in his house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned
sixteen hectares of coconut land in the area.
On September 16, 1988, Bernardo, accompanied by his son, herein accused-appellant, and two hired
hands, Reynaldo Malita and Eddie Malita, went to Davao City to sell 41 sacks of copra. After selling the
copra, Bernardo paid the Malita brothers for their labor, who thereafter left. Bernardo and accused-
appellant went back to Sitio Libod that same day.[2]

According to Gina Quidato, on the evening of the next day, September 17, 1988, accused-appellant and
the Malita brothers were drinking tuba at their house. She overheard the trio planning to go to her
father-in-law's house to get money from the latter. She had no idea, however, as to what later transpired
because she had fallen asleep before 10:00 p.m.[3] Accused-appellant objected to Gina Quidato's
testimony on the ground that the same was prohibited by the marital disqualification rule found in
Section 22 of Rule 130 of the Rules of Court.[4] The judge, acknowledging the applicability of the so-
called rule, allowed said testimony only against accused-appellant's co-accused, Reynaldo and Eddie.

As adverted to earlier, the Malita brothers confessed to their participation in the crime, executing
affidavits detailing how Bernardo was killed. Their version shows that Eddie had been living with
accused-appellant for the past four years. At around 6:00 p.m. of September 17, 1988, accused-appellant
asked Reynaldo to come to the former's house to discuss an important matter. Upon Reynaldo's arrival at
accused-appellant's house, he saw that his brother Eddie was already there. They started drinking beer.
The Malita brothers alleged that it was at this juncture that accused-appellant proposed that they rob and
kill his father. They went to Bernardo's house only at 10:00 p.m., after the rain had stopped. Reynaldo
brought along a bolo. Upon reaching the house, accused-appellant knocked on the door, asking his father
to let them in. When Bernardo opened the door, Eddie rushed in and knocked the old man down.
Reynaldo then hacked Bernardo on the nape and neck. Accused-appellant and Eddie ransacked
Bernardo's aparador looking for money but they found none; so, the three of them left.

The body of Bernardo was discovered the next day by accused-appellant's son, who had gone there to call
his Lolo for breakfast. The cause of death, as stated in Bernardo's death certificate was "hypovolemic
shock secondary to fatal hacking wound on the posterior neck area."[5]

On September 27, 1988, Leo Quidato confronted his brother regarding the incident and learned that
Reynaldo and Eddie Malita were the ones responsible for Bernardo's death. The two were promptly
arrested by the police. Aside from arresting the latter two, however, the police also arrested accused-
appellant.

On September 29, 1988, the Malita brothers were interrogated by Patrolman Lucrecio Mara at the
Kaputian Police Station. When Mara apprised them of their constitutional rights, including their right to
counsel, they signified their intent to confess even in the absence of counsel. Aware that the same would
be useless if given in the absence of counsel, Mara took down the testimony of the two but refrained from
requiring the latter to sign their affidavits. Instead, he escorted the Malita brothers to Davao City and
presented them, along with their unsigned affidavits, to a CLAO (now PAO) lawyer, Jonathan Jocom.[6]

Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie, again advising the two of
their constitutional rights. The CLAO lawyer explained the contents of the affidavits, in Visayan, to the
Malita brothers, who affirmed the veracity and voluntary execution of the same. Only then did Reynaldo
and Eddie affix their signatures on the affidavits.[7]

In his defense, accused-appellant denied the allegations of the Malita brothers. He claimed that the
Malita brothers were not at his house on the evening of September 17, 1988. They, however, passed by his
house at around 10:00 p.m. and asked him to come with them to his father's house, threatening him with
harm if he refused. Out of fear, he led the way to Bernardo's house and even knocked on the latter's door
until Bernardo opened the same. In the ensuing commotion, he scampered away, but in his confusion,
reached his house only at around 11:00 p.m., although the same was only about one hundred fifty meters
away from Bernardo's house. He did not call for help. Eddie arrived a while later. Accused-appellant
claimed not to have seen the actual killing, having run away earlier. He, however, admitted finding a
bolo, encrusted with blood, at his house. He turned the same over to his brother, who, in turn,
surrendered the same to the police. Accused-appellant did not feel uneasy having Eddie around even if he
knew of the latter's participation in the crime.[8]
After due trial, the court a quo rendered the following judgment:

WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the accused, Bernardo
Quidato, Jr., guilty beyond reasonable doubt as a co-principal in the offense of Parricide which falls
under Article 246 (of the Revised Penal Code), for the death of his father, Bernardo Quidato, Sr.,
and accordingly, is hereby sentenced by this court to suffer the penalty of RECLUSION PERPETUA,
with all the accessory penalties provided by law and to indemnify the other heirs of Bernardo
Quidato, Sr., the amount of P50,000.00, in accordance with current case doctrines of the Supreme
Court, and to pay the costs.

[9]
SO ORDERED.

From the aforesaid judgment of conviction, appellant interposed the present appeal, assigning the
following errors:
1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSIONS
OF REYNALDO MALITA (EXH. C) AND EDDIE MALITA (EXH. D) IN CLEAR VIOLATION OF
THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT TO CONFRONT WITNESSES.

2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF CONSPIRACY IN THE CASE
AT BAR.

3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE RAISED BY THE ACCUSED
AND DISREGARDING (ANY) ILL-MOTIVE OF REYNALDO AND EDDIE MALITA IN KILLING
THE VICTIM.

Accused-appellant must be acquitted.

In indicting accused-appellant, the prosecution relied heavily on the affidavits executed by Reynaldo and
Eddie. The two brothers were, however, not presented on the witness stand to testify on their extra-
judicial confessions. The failure to present the two gives these affidavits the character of hearsay. It is
hornbook doctrine that unless the affiants themselves take the witness stand to affirm the averments in
their affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.
[10] The voluntary admissions of an accused made extrajudicially are not admissible in evidence against
his co-accused when the latter had not been given an opportunity to hear him testify and cross-examine
him.[11]

The Solicitor General, in advocating the admissibility of the sworn statements of the Malita brothers,
cites Section 30, Rule 130 of the Rules of Court which provides that "[t]he act or declaration of a
conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-
conspirator after the conspiracy is shown by evidence other than such act or declaration." The
inapplicability of this provision is clearly apparent. The confessions were made after the conspiracy had
ended and after the consummation of the crime. Hence, it cannot be said that the execution of the
affidavits were acts or declarations made during the conspiracy's existence.

Likewise, the manner by which the affidavits were obtained by the police render the same inadmissible in
evidence even if they were voluntarily given. The settled rule is that an uncounseled extrajudicial
confession without a valid waiver of the right to counsel - that is, in writing and in the presence of counsel
- is inadmissible in evidence.[12] It is undisputed that the Malita brothers gave their statements to
Patrolman Mara in the absence of counsel, although they signed the same in the presence of counsel the
next day. As ruled in People vs. Compil:[13]
[T]he belated arrival of a CLAO (now PAO) lawyer the following day even if prior to the actual
signing of the uncounseled confession does not cure the defect (of lack of counsel) for the
investigators were already able to extract incriminatory statements from accused-appellant"Thus, in
People vs. De Jesus (213 SCRA 345 [1992]) we said that admissions obtained during custodial
interrogations without the benefit of counsel although later reduced to writing and signed in the
presence of counsel are still flawed under the Constitution.

With regard to Gina Quidato's testimony, the same must also be disregarded, accused-appellant having
timely objected thereto under the marital disqualification rule. As correctly observed by the court a quo,
the disqualification is between husband and wife, the law not precluding the wife from testifying when it
involves other parties or accused.[14] Hence, Gina Quidato could testify in the murder case against
Reynaldo and Eddie, which was jointly tried with accused-appellant's case. This testimony cannot,
however, be used against accused-appellant directly or through the guise of taking judicial notice of the
proceedings in the murder case without violating the marital disqualification rule. "What cannot be done
directly cannot be done indirectly" is a rule familiar even to law students.

Given the inadmissibility in evidence of Gina Quidato's testimony, as well as of Reynaldo and Eddie's
extrajudicial confessions, nothing remains on record with which to justify a judgment unfavorable to
accused-appellant. Admittedly, accused-appellant's defense, to put it mildly, is dubious. His alleged
acquiescence to the demand of the Malita brothers to accompany them to his father's house on the
strength of the latter's verbal threats, his incredulous escape from the clutches of the two, his inexplicable
failure to return home immediately, his failure to seek assistance from the authorities, the fact that Eddie
stayed with him immediately after the incident, and the nine-day lacuna between the killing and his
pointing to the Malita brothers as the culprits, all suggest a complicity more than that of an unwilling
participant. Yet, suspicion, no matter how strong, should not sway judgment, it being an accepted axiom
that the prosecution cannot rely on the weakness of the defense to gain a conviction, but must establish
beyond reasonable doubt every circumstance essential to the guilt of the accused.[15] This the
prosecution has failed to demonstrate.

WHEREFORE, the appeal is hereby GRANTED and the decision of the Regional Trial Court of Davao
City in Criminal Case No. 89-9 dated March 2, 1994, is REVERSED and SET ASIDE. Accused-
appellant Bernardo Quidato, Jr. is hereby ACQUITTED on ground of reasonable doubt. Consequently,
let the accused be immediately released from his place of confinement unless there is reason to detain
him further for any other legal or valid cause. With costs de oficio.

SO ORDERED.

Kapunan and Purisima, JJ., concur.

Narvasa, C.J., (Chairman), on leave.

[1]
[1] Original Record, p. 2.

[2] TSN, September 30, 1993, pp. 6-7.

[3] TSN, November 28, 1991, pp. 10-11.

[4] Section 22. Disqualification by reason of marriage.-During their marriage, neither the husband nor
the wife may testify for or against the other without the consent of the affected spouse, except in a civil
case by one against the other, or in a criminal case for a crime committed by one against the other or the
latter's direct descendants or ascendants.

[5] Original Record, p. 68.

[6] TSN, April 26, 1990, pp. 35-44.

[7] TSN, August 28, 1991, pp. 12-17.

[8] TSN, September 30, 1993, pp. 6-26.

[9] Original Record, pp. 159-160.

[10] People vs. Manhuyod, G.R. No. 124676, May 20, 1998.

[11] People vs. Surigawan, 228 SCRA 458 (1993); People vs. Ferry, 66 Phil. 310 (1938); People vs. Badilla,
48 Phil. 718 (1926).

[12] Constitution, Article III, Sec. 12(1) and (3); People vs. Cabintoy, 247 SCRA 442 (1995).

[13] 244 SCRA 135 (1995).

[14] TSN, November 28, 1991, p. 5.

[15] Duran vs. CA, 71 SCRA 68 (1976).

 DIVISION

[ GR No. 96492, Nov 26, 1992 ]

ROMEO REYES v. CA

DECISION
G.R. No. 96492

NOCON, J.:
Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the respondent Court's
[1]
decision promulgated on November 22, 1990, which affirmed with modification the agrarian court's
[2]
decision promulgated January 10, 1990, which ordered them and the other defendants therein to,
among others, restore possession of the disputed landholding to private respondent, Eufrocina Vda. dela
Cruz. Said respondent court's decision is now final and executory as to Olympio Mendoza and Severino
Aguinaldo, the other defendants in the agrarian court and, also, the other petitioners in the respondent
court, since they did not appeal the same.
Since petitioners do not dispute the findings of fact of the respondent Court, the same shall be quoted
verbatim and are as follows:

"It appears from the records that Juan Mendoza, father of herein defendant Olympio Mendoza, is
the owner of Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare,
Candaba, Pampanga, with an area of 23,000 square meters and 19,000 square meters, respectively.
Devoted to the production of palay, the lots were tenanted and cultivated by Julian dela Cruz,
husband of plaintiff Eufrocina dela Cruz. Julian died on September 25, 1979.

In her complaint, Eufrocina alleged that upon the death of Julian, she succeeded him as bona fide
tenant of the subject lots; that between July 7 to July 15, 1984, Olympio Mendoza, in conspiracy
with the other defendants, prevented her daughter Violeta and her workers through force,
intimidation, strategy and stealth, from entering and working on the subject premises; and that
until the filing of the instant case, defendants had refused to vacate and surrender the lots, thus
violating her tenancy rights. Plaintiff therefore prayed for judgment for the recovery of possession,
and damages with a writ of preliminary mandatory injunction in the meantime.

Defendants Reyes, Parayao, Aguinaldo and Mananghaya, duly elected and/or appointed barangay
officials of Bahay Pare, Candaba, Pampanga, denied interference in the tenancy relationship existing
between plaintiff and defendant Mendoza, particularly in the cultivation of the latter's farm lots.
Claiming that they have always exercised fairness, equity, reason and impartiality in the discharge of
their official functions, they asked for the dismissal of the case and claimed moral damages and
attorney's fees in the total amount of P165,000.00 (Answer with Counterclaim, Records, pp. 48-51).
 For his part, defendant Mendoza raised abandonment, sublease and mortgage of the farm lots
without his consent and approval, and non-payment of rentals, irrigation fees and other taxes due
the government, as his defenses. He also demanded actual and exemplary damages, as well as
attorney's fees (Answer, pp. 77-78).

During the pendency of the case in the lower court, Mendoza was in possession of the subject lots
and had cultivated the same. Upon motion of plaintiff, the court directed its Deputy Sheriff to
supervise the harvesting of the palay crops, to cause the threshing thereof and to deposit the net
harvest (after deducting from the gross harvest the seeds used and the expenses incurred), in a
[3]
bonded warehouse of the locality subject to the disposition of the court."

The respondent Court rendered judgment affirming the appealed agrarian court's decision with the
modification that Lot 106 is not covered by it.
The dispositive portion of the appealed decision, which was modified, states as follows:

"WHEREFORE, judgment is hereby rendered, in favor of plaintiff and against defendants:

On the Mandatory Injunction:

1. Ordering said defendants to restore possession of the landholding subject of the action to the
plaintiff and enjoining said defendants and any person claiming under them to desist from
molesting them or interfering with the possession and cultivation of the landholding descripted in
paragraph 3 of the complaint, to wit:

Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba,
Pampanga, with a total area of 23,969 square meters, more or less, owned by a certain Juan Mendoza,
and devoted principally to the production of palay, as evidenced by a Certification from the Ministry of
Agrarian Reform issued on July 30, 1984.

2. a) Ordering the defendants to vacate the premises of the two landholding in question and to
respect the tenancy rights of plaintiff with respect to the same;

b) Ordering defendants, jointly and severally to pay unto plaintiff 220 cavans of palay or its
equivalent in cash of P33,000.00 from the principal crop year of 1984, and every harvest time until
defendants finally vacate and surrender possession and cultivation of the landholding in question to
plaintiff.

c) the prayer for moral damages, not having been sufficiently proved, the same is denied.

d) Ordering defendants jointly and severally, to pay the costs of suit.

 The awards herein provided should first be satisfied from the deposits of the harvests ordered by the
Court from which the planting and harvesting expenses have been paid to defendant Olympio
Mendoza; and if said net deposits with the Court or the warehouses as ordered by the Court are
[4]
insufficient, then the balance should be paid by defendants, jointly and severally."

Defendants who are the petitioners in this case, in a Petition for Review on Certiorari, present for the
consideration of the Court:

"[T]he lone issue of whether or not they can be held liable, jointly and severally, with the other
defendants, for the harvests of the litigated property, Lot No. 46, or the money equivalent thereof
starting from the principal crop years of 1984 and every harvest time thereafter until the possession
and cultivation of the aforestated landholding are finally surrendered to the private respondent."[5]

It is the position of petitioners that they are not liable jointly and severally with Olympio Mendoza and
Severino Aguinaldo because the present petition involves Lot No. 46, Block 2, Psd-38453 of the Bahay
Pare Estate, Bahay Pare, Candaba, Pampanga and not Lot No. 106 of the same estate, which lot was
purchased by petitioner Romeo Reyes from Olympio Mendoza's father, Juan, and which he later donated
to the Barangay Bahay Pare of Candaba, Pampanga, for the construction of the Bahay Pare Barangay
[6]
High School. As to their supposed participation in the dispossession of private respondent from the
disputed landholding, petitioners present the September 30, 1987 Resolution of Investigating Fiscal
[7]
Jesus M. Pamintuan, as approved by Pampanga Provincial Fiscal Villamor I. Dizon, in I.S. No. 8576,
wherein private respondent's complaint against petitioners and the other defendants in the agrarian
[8]
court for violation of P.D. 583 was dismissed, to show that private respondent's "point is already
[9]
settled and considered closed." Lastly, petitioners claim that they were included in the present
[10]
controversy so that their political career would be destroyed.
Private respondents deny petitioners' allegations and contend that it was petitioners who conspired with
Olympio Mendoza and Severino Aguinaldo in ejecting them not only from Lot No. 46 but also from Lot
No. 106. They maintain that it was in Farmlot No. 46 from where they were ejected and dispossessed, so
much so that even if Farmlot No. 106 was removed by the Court of Appeals from the judgment, as
Farmlot No. 46 was harvesting palay worth at least P33,000.00 per year since 1989, private respondents,
who are entitled to the possession and peaceful enjoyment of the farmlot as provided for in Section 23 of
the Agrarian Reform Law, should be compensated for the lost income by the petitioners who are
solidarily liable with Olympio Mendoza and Severino Aguinaldo.[11]
We find for the private respondents.
It is clear that petitioners are asking Us to re-examine all the evidence already presented and evaluated
by the trial court and re-evaluated again by the respondent appellate court. Said evidence served as basis
in arriving at the trial court and appellate court's findings of fact. We shall not analyze such evidence all
over again but instead put finis to the factual findings in this case. Settled is the rule that only questions
of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court[12] absent
the exceptions which do not obtain in the instant case.[13]
We agree with the appellate court in its ratiocination, which We adopt, on why it has to dismiss the
appeal. Said the Court:
 "In her Complaint, plaintiff-appellee alleged that she 'is the tenant of Farm Lots Nos. 46 and 106,
Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga, with a total area of
23,969 square meters, more or less x x x' (Complaint, Records, vol. 1, p. 1). However, during
Violeta's testimony, she clarified that actually only Lot No. 46 containing an area of 23,000 square
meters is the one involved in the dispute. Lot No. 106, which contains an area of 19,000 square
meters, is not included in this controversy (T.S.N., August 10, 1989, p. 5; May 8, 1989, p. 12). This
statement was corroborated by plaintiff's counsel, Atty. Arturo Rivera, who informed the court that
the 19,000 square meter lot is subject of a pending case before the MTC of Sta. Ana, Pampanga
(Ibid., p. 15). The inconsistency between the averment of the complaint and the testimony of the
witness should not be taken against appellee not only because there was no showing that she
intended to mislead defendants and even the trial court on the subject matter of the suit. It would
appear that Lot No. 106 had been included in the complaint since together with Lot 46, it is owned
by Olimpio's father.

We also concur with the trial court's finding on the participation of the other appellants in the
dispossession of appellee. They not only knew Olimpio personally, some of them were even asked by
Olimpio to help him cultivate the land, thus lending credence to the allegation that defendant
Olimpio, together with his co-defendants, prevented plaintiff and her workers from entering the
land through 'strong arm methods.' (Decision of RTC, Records, vol. II, p. 564).

Finally, we rule that the trial court did not err when it favorably considered the affidavits of
Eufrocina and Efren Tecson (Annexes "B" and "C") although the affiants were not presented and
subjected to cross-examination. Section 16 of P.D. No. 946 provides that the 'Rules of Court shall
not be applicable in agrarian cases even in a suppletory character.' The same provision states that
'In the hearing, investigation and determination of any question or controversy, affidavits and
counter-affidavits may be allowed and are admissible in evidence.'

Moreover, in agrarian cases, the quantum of evidence required is no more than substantial
evidence. This substantial evidence rule was incorporated in section 18, P.D. No. 946 which took
effect on June 17, 1976 (Castro vs. CA, G.R. No. 34613, January 26, 1989). In Bagsican vs. Hon.
Court of Appeals, 141 SCRA 226, the Supreme Court defined what substantial evidence is:

'Substantial evidence does not necessarily import preponderant evidence, as is required in an ordinary
civil case. It has been defined to be such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion and its absence is not shown by stressing that there is contrary evidence on
record, direct or circumstantial, for the appellate court cannot substitute its own judgment or criteria for
that of the trial court in determining wherein lies the weight of evidence or what evidence is entitled to
belief.' "[14]
WHEREFORE, finding no reversible error in the decision appealed from, the petition is hereby
DENIED for lack of merit. The decision of the Court of Appeals promulgated on November 22, 1990 is
AFFIRMED in toto. Costs against the petitioners.
SO ORDERED.

Narvasa, C.J., (Chairman), Feliciano, Regalado, and Campos, Jr., JJ., concur.

[1]
[1] Decision, CA-G.R. No. SP 20528 (CAR), penned by Justice Alfredo L. Benipayo and concurred in by
Justices Cesar D. Francisco and Fortunato A. Vailoces.
[2]
Decision of the RTC, Branch XLVI, 3rd Judicial Region, San Fernando, Pampanga acting as an
agrarian court; penned by Judge Norberto C. Ponce.
[3] Op cit., pp. 3-4; Rollo, pp. 25-26.
[4]
Original Records, pp. 565-566.
[5] Petitioners' Memorandum, p. 7; Rollo, p. 62.
[6]
Petitioners' Memorandum, p. 10; Rollo, p. 65.
[7] Annex "B", Petition; Rollo, pp. 20-21..
[8]
Prescribing Penalties for the Unlawful Ejectment, Exclusion, Removal or Ouster of Tenant-Farmers
from their Farmholdings.
[9] Petitioners' Memorandum, pp. 10-11; Rollo, pp. 65-66.
[10]
Petition, p. 9; Rollo, p. 17.
[11] Private respondents' Memorandum, pp. 4-5; Rollo, pp. 73-74.
[12]
Decision, Misa vs. CA, G.R. No. 97291, August 5, 1992, pp. 4-5.
[13] The case of Medina v. Asistio, G.R. No. 75450, 191 SCRA 218, 223-224 (1990) enumerates several
instances when findings of fact may be passed upon and reviewed by this Court, none of which obtain
herein:
"(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin
v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or
impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v.
People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v.
Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590
Ap. 30, 1957; unrep.); (6) When the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee (Evangelista v. Alto
Surety and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to
those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]); Sacay v. Sandiganbayan, 142
SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific evidence on
which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners'
main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The findings of fact of the
Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on
record (Salazar v. Gutierrez, 33 SCRA 242 [1970])."
Ibid., p. 5.
[14]
Decision, CA-G.R. SP 20528 (CAR), pp. 6-7; Rollo, pp. 28-29.
 DIVISION

[ GR No. 137757, Aug 14, 2000 ]

PEOPLE v. RODEGELIO TURCO

DECISION
392 Phil. 498

MELO, J.:
Accused-appellant Rodegelio Turco, Jr. (aka "Totong") was charged with the crime of rape in Criminal
Case No. 2349-272, Branch I of the Regional Trial Court of Basilan of the 9th Judicial Region, stationed
in Isabela, Basilan, under the following Information:
That on or about the 8th day of July, 1995, and within the jurisdiction of this Honorable Court, viz.,
at Km. 6, Begang Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-
named accused, by the use of force, threat and intimidation, did then and there willfully, unlawfully
and feloniously grab the undersigned complainant by her neck, cover her mouth and forcibly make
her lie down, after which the said accused mounted on top of her and removed her short pant and
panty. Thereafter, the said accused, by the use of force, threat and intimidation, inserted his penis
into the vagina of the undersigned complainant and finally succeeded to have carnal knowledge of
her, against her will.
CONTRARY TO LAW.

(p. 6, Rollo.)
At his arraignment on November 8, 1995, accused-appellant entered a plea of not guilty, after which trial
ensued.
The prosecution's version of the generative facts, as gathered from the testimony of its witnesses -
Alejandra Tabada, mother of the victim; PO3 Celso Y. Tan Sanchez, the police officer who investigated
the case; Orlando Pioquinto, brother-in-law of the victim; Escelea Tabada, the 13-year-old victim; and
Felicitas delos Santos Timorata, the medical record clerk who used to be the medical officer under Dr.
Rimberto Sanggalang, the physician who physically examined the victim after the incident - is abstracted
in the Appellee's Brief in this wise:
Escelea Tabada and appellant Rodegelio Turco were neighbors in lower Begang, Isabela, Basilan,
their houses being only about sixty (60) meters apart (p. 6 and p. 8, t.s.n.; August 19, 1996). Escelea
was then staying with her father, Alejandro and her deaf grandmother, Perseveranda (p. 9, id). She
was twelve (12) years and six (6) months old at the time of incident, having been born on December
3, 1982 (p. 3, id).
The nightmare of Escelea began in the evening of July 1995. At around seven o'clock (7:00 p.m.) in
the evening, Escelea, after (pp. 11-12, id) [sic]. She was accompanied by a certain Cory Macapili, the
granddaughter of her neighbor, Leonora Cabase (p. 13, id).
Cory left upon reaching Escelea's home. Escelea went upstairs to join her grandmother who was
already sleeping in the room. About to enter the said room, Escelea heard a call from outside. She
recognized the voice and when she asked who was it, the party introduced himself as the appellant,
viz:

Q. After you heard your named was mentioned, what did you say if any?
A. I answered: "Who is that?"
Q. Did the person calling your name answer you?
A. I heard, sir, "me Totong".
Q. When you say the person who called your name "Lea" was "Totong" you are referring to
whom?
A. Rodegelio, sir.
(p. 15, id; Underscoring supplied)

She recognized appellant Turco immediately as she had known him for four (4) years and appellant
is her second cousin (p. 34, id). Unaware of the danger that was about to befall her, Escelea
forthwith opened the door. Appellant Turco, with the use of towel, covered Escelea's face. Appellant,
aside from covering the victim's mouth, even placed his right hand on the latter's neck.
Appellant bid Eseelea to walk. When they reached a grassy part, near the pig pen which was about
twelve (12) meters away from the victim's house, appellant lost no time in laying the victim on the
grass, laid on top of the victim and took off her shortpants and panty (pp. 17-19, id). Escelea tried to
resist by moving her body but to no avail. Appellant succeeded in pursuing his evil design-by
forcibly inserting his penis inside Escelea's private part. The victim felt terrible pain (p. 20, id). Still
dissatisfied, after consummating the act, appellant kissed and held the victim's breast. Thereafter,
appellant threatened her that he will kill her if she reports the incident to anybody, thus:

"He threatened me, that if you will reveal the incident to anybody I will kill you.
(p. 21, id; Underscoring supplied)

Finally, after having satisfied his lust, appellant hurriedly went home. Escelea, on the other hand,
upon reaching home, discovered that her shortpants and panty were filled with blood (p. 23, id). For
almost ten (10) days, she just kept to herself the harrowing experience until July 18, 1995 when she
was able to muster enough courage to tell her brother-in-law, Orlando Pioquinto, about the said
incident. Orlando in turn informed Alejandro, the victim's father, about the rape of his daughter.
Alejandro did not waste time and immediately asked Escelea to see a doctor for medical
examination (p. 27, id).
 Escelea was accompanied by her sister Clairlyn Pioquinto to the Provincial Hospital. She was
examined by Dr. Rimberto Sanggalang. After the issuance of the medical certificate, they went to
Isabela Municipal Station and filed Escelea's complaint against appellant (pp. 30-33, id).
(pp. 97-100, Rollo.)

The defense presented Leonora Cabase, neighbor of accused-appellant; her granddaughter Corazon
Macapili, and accused-appellant himself. Accused-appellant denied the charge. The defense that the
victim and him were sweethearts was also advanced. Leonora Cabase mentioned this in her direct
testimony.
In reaching a moral certainty of guilt, the trial court held:
While the accused denies the charge of rape, his witness, Mrs. Leonora Cabase was trying to project
that the complainant Escelea Tabada and the accused Rodegelio Turco, Jr. are sweethearts. In the
case of People vs. Casil, 241 SCRA 285, the Supreme Court agrees with the trial court that the
"sweetheart story" was a mere concoction of appellant in order to exculpate himself from criminal
liability. The claim of voluntary love affair is an affirmative defense, the allegation of a love affair
needed proof. Nowhere in the record of the case that the same was substantiated, though mentioned
by Mrs. Leonora Cabase. The accused and/or his witnesses must present any token of the alleged
relationship like love notes, mementos or pictures and the like. Such bare allegation of the defense,
not to mention its utter lack of proof, is incredulous. It is hard to understand how such a
relationship could exculpate a person from the rape of a terrified young child barely a little over the
age of twelve (12) years old. Indeed, a love relationship, even if true, will not necessarily rule out
force (People vs. Sergio Betonio, G.R. No. 119165, September 26, 1997, Case Digests of Supreme
Court Decisions, Vol. 36, No. 3, September 1-29, 1997, pp. 695-697).
There are guiding principles in rape cases as cited in People vs. Victor Abrecinoz, G.R. No. 122474,
October 17, 1997, Case Digests of Supreme Court Decisions, Vol. 37, No. 1, October 2-31, 1997, pp.
157-160, and they are: (1) an accusation for rape can be made with facility, it is difficult to prove but
more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic
nature of the crime of rape where two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution
must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of
the evidence for the defense. Thus, the credibility of the complainant is a paramount importance,
and if her testimony proves credible, the accused may be convicted on the basis thereof.
It should be noted that the complainant and the accused are second degree cousin or they are sixth
civil degree relatives. The mother of the accused is a first degree cousin of the father of the
complainant. In the culture of the Filipino family on extended family, the relationship between the
complainant and the accused being only second degree cousin, it becomes the duty of an older
relative (the accused) to protect and care for a younger relative (the complainant). It is very hard to
understand or comprehend why a cousin files a case of rape against her cousin, unless it is true.
There is no showing that there was compelling motive why the case be filed against the accused,
except that the rape really happened.
xxx
xxx
xxx
It is noted that there was no underlying reason why the complainant and/or her father would bring
an action against the accused, except that the accused had raped Escelea Tabada on July 8, 1995, at
about 7:00 o'clock in the evening. If it were not true that she was raped by the accused, why would
she expose herself to an embarrassment and traumatic experience connected with the litigation of
this rape case. We are aware of the Filipino culture especially on virginity. We likened it as a mirror,
once dropped and broken, it can no longer be pieced together ... not ever. This is true among the
Filipino folks that the complainant belonged, poor and helpless and everything is entrusted to God.
The complainant is a young girl, a little over twelve (12) years old and almost illiterate, having
attended school up to Grade III only. So poor that her family cannot even buy the cheapest
television set and she has to go to a house of a neighbor for the meager joy of seeing a television
show ... and expose herself to the danger of the dark night. All said, it is very difficult to be poor.
Going to the court is a shout for help ... let us try to hear it.
xxx
 xxx
xxx
WHEREFORE, under the above circumstances and evaluation, this court finds the accused
"GUILTY" of rape and sentences him to suffer the penalty of reclusion perpetua and to indemnify
the complainant the amount of Fifty Thousand Pesos (P50,000.00) for moral damages without
subsidiary imprisonment in case of insolvency.
xxx
xxx
xxx
(pp. 33-37, Rollo.)

In accused-appellant's brief, he assigns the following alleged errors:

I
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN FINDING THE ACCUSED
GUILTY OF RAPE BASED ON THE TESTIMONIES OF THE COMPLAINANT ESCELEA TABADA
AND HER WITNESS.
II
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN RULING THAT THE
PROSECUTION, BASED ON THE AFFIDAVITS AND ORAL TESTIMONIES OF THE
COMPLAINANT AND ITS WITNESSES WAS ABLE TO PROVED [sic] BEYOND REASONABLE
DOUBT THAT THE ACCUSED COMMITTED THE CRIME OF RAPE AGAINST THE
COMPLAINANT.
III
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN SENTENCING THE ACCUSED
TO SUFFER THE PENALTY OF RECLUSION PERPETUA AND TO INDEMNIFY THE
COMPLAINANT THE AMOUNT OF P50,000.00 REPRESENTING MORAL DAMAGES BASED ON
THE EVIDENCES PRESENTED BY THE PROSECUTION.
(p. 101, Rollo.)

He particularly argues that his conviction is not supported by proof beyond reasonable doubt considering
that other than the written statement of the complainant before the Police Station of Isabela and before
the Clerk of Court of the Municipal Trial Court, and her testimony during direct examination, no other
evidence was presented to conclusively prove that there was ever rape at all; that she only presumed that
it was accused-appellant who attacked her since she admitted that immediately upon opening the door,
the perpetrator hastily covered her face with a towel; that nothing in her testimony clearly and
convincingly shows that she was able to identify accused-appellant as the perpetrator; that complainant
implicated accused-appellant only because her father forced her to do so; and lastly, that no actual proof
was presented that the rape of the complainant actually happened considering that although a medical
certificate was presented, the medico-legal officer who prepared the same was not presented in court to
explain the same.
We agree with the trial court.
As aptly recalled by the trial court, there are three guiding principles in the review of rape cases, to wit:
(1) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person
accused, although innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where
only two persons are usually involved, the testimony of the complainant is scrutinized with extreme
caution; and (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed
to draw strength from the weakness of the defense (People vs. Gallo, 284 SCRA 590 [1998]; People vs.
Balmoria, 287 SCRA 687 [1998]; People vs. Auxtero, 289 SCRA 75 [1998]; People vs. Sta. Ana, 291
SCRA 188 [1998]).
Accordingly, the primordial consideration in a determination concerning the crime of rape is the
credibility of complainant's testimony.
The trial court described complainant as "a young girl, a little over twelve (12) years old and almost
illiterate, having attended school up to Grade III only. So poor that her family cannot even buy the
cheapest television set and she has to go to a house of a neighbor for the meager joy of seeing a television
show ... and exposes herself to the danger of the dark night." But verily, age, youth, and poverty are not
guarantees of credibility. Hence, thorough scrutiny must be made by the Court.
Complainant narrated the incident in this wise:
Q While you went upstairs and about to enter the room of your grandmother, did you hear
anything?
A Yes, sir.
Q What was that?
A I heard a call, sir.
Q How was the call made?
A It is just by saying: "Lea".
Q After you heard your name was mentioned, what did you say if any?
A I answered: "Who is that?"
Q Did the person calling your name answer you?
A I heard, sir, "me Totong".
Q When you say the person who called your name "Lea" was "Totong", you are referring to whom?
A Rodegelio, sir.
Q When you say "Rodegelio", you are referring to Rodegelio Turco, Jr., the accused in this case?
A Yes, sir.
Q After the person calling your name "Lea" identified himself as "Totong", what did you do?
A I opened the door, sir.
Q And when you opened the door, what happened next?
A Totong with the use of towel covered my face, sir.
Q Aside from covering your face with a towel, what else did he do?
A He covered my mouth, sir.
Q Aside from covering your mouth, what else did he do?
A He placed his right hand on my neck, sir.
Q Aside from placing his right hand ... when he placed his right hand on your neck, where was he?
Was he infront or behind?
A He was at my back, sir.
Q After placing his right hand on your neck behind you, what did "Totong" do next with that
position?
A He covered my mouth, sir.
Q After covering your mouth and face, what did he do next?
A He told me to walk, sir.
Q Where did he bring you?
A I don't know exactly where he brought me, sir.
Q But you know very well that he brought you to a certain place?
A I don't know exactly the place where he brought me, sir.
Q Is it far from your house where you were forcibly taken?
A Yes, sir.
Q Do you have a copra kiln?
ATTY. G.V. DELA PENA III:
The witness already answered that she does not know where she was brought, leading, Your Honor.
COURT: (Questioning the witness)
Q According to you, from your house you were brought by the accused to a place which you do not
know?
A Yes, Your Honor.
Q What place?
A Pig pen, Your Honor.
Q Do you know the owner, of that pig pen?
A Our pig pen, Your Honor.
Q Who owned that pig pen?
A My father, Your Honor.
Q How far is that pig pen to your house?
A (From this witness stand to that road outside of this building).
COURT:
It is about 12 meters. Alright, continue.
PROSECUTOR M.L. GENERALAO: (Continuing)
Q You stated in answer to the question of the Honorable Court that you were brought to the pig pen
or the place where you were sexually abused, were you place inside or outside?
ATTY. G.V. DELA PENA III:
Leading, Your Honor.
PROSECUTOR M.L. GENERALAO:
I will withdraw.
Q Will you please explain to the Court what particular place of the pig pen that you were brought by
the accused?
A Inside the grasses, sir.
Q When you were already inside the grasses near this pig pen, what did the accused do to you?
A He put me down, sir.
Q When you were already down on the ground, what did the accused do next?
A He mounted on me, sir.
Q And when the accused was already on top of you, what did he do next?
A He molested me, sir.
Q Before he molested you, did he remove anything from your body?
A Yes, sir.
Q What?
A My shortpants and panty, sir.
Q You stated that the accused while on top of you removed your pants and panty, did he totally
remove it from your body?
A Yes, sir.
Q After removing your shortpants and panty, what else did the accused do?
A He abused me, sir.
Q You said that he abused you, how did he abuse your?
A He put his private part inside my private part, sir.
Q When the accused was on top of you and he forcibly abused you, what did you do?
A I tried to move my body, sir.
Q While you were trying to move your body and while the accused was on top of you, what did the
accused do?
A He tried to insert his private part to my private part, sir.
Q And was he able to insert his private part?
A Yes, sir.
Q What did you feel when his private part was already inside your private part?
A I felt pain, sir.
Q Will you please explain why you felt when the private part of the accused was already inside your
private part?
A I felt pain when he already finished, sir.
Q By the way, before July 8, 1995, were you had been raped? Will you please tell us whether you
have already experienced or you have already your menstruation at that time?
A No, sir.
Q Now you stated to the Honorable Court ... after the accused had sexually abused you and you said
you felt pains after he consumated the sexual act, after that what did he do next after consumating
the act?
A After consumating his desire, he raised my panty and shortpants then he kissed me and hold my
nipple, sir.
Q After the accused had raised your shortpants and panty, embraced you, kissed you and hold your
breast, did he tell you anything?
A He threatened me, "that if you will reveal the incident to anybody I will kill you."
Q In what dialect? In Chavacano, sir.
A After the accused embraced you, kissed you and hold your nipple and threatened you in
Chavacano dialect, what happened next after that?
No more, sir.
(tsn, Aug. 19, 1996, pp. 14-22.)
On cross-examination, the victim did display some apparent confusion when the defense counsel asked
her about the events that transpired before the ill-fated July 8, 1995. The query prompted her to narrate
the incident prior to said date when she also watched television at the home of Leonora Cabase, and that
when she arrived home, accused-appellant came and called her "Lea" and when she asked who was it, he
answered "so Totong". When she asked what he wanted, he said he wanted to borrow a guitar. She said
that she could not lend him the guitar since her father was not yet around. He insisted but to no avail,
and hence he just went home. She went to sleep afterwards. On re-direct examination, she clarified that
when accused-appellant came to borrow the guitar on July 8, 1995, it was about 5:30 o'clock in the
afternoon. Lastly, she said that the incident of the borrowing of the guitar and the incident that
transpired at 7 o'clock in the evening on July 8, 1995 were separate incidents.
Significantly, three things could be perceived: complainant's youth, her apparent confusion concerning
the events that transpired, and her fear of both accused-appellant and her father.
At the outset, it should be remembered that the declarations on the witness stand of rape victims who are
young and immature deserve full credence (People vs. Bernaldez, 294 SCRA 317 [1998]). Succinctly,
when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are
inclined to lend credence to their version of what transpired, considering not only their relative
vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the
matter about which they testified were not true (People vs. Clopino, 290 SCRA 432 [1998]). In addition,
we take cognizance of the trial court's observation on the segment of the Filipino society to which the
victim belongs - almost illiterate, having attended school up to the third grade only, and so poor that she
had to go to a neighbor's house to watch television, yet one who values her virginity which like a "mirror,
once dropped and broken ... can no longer be pieced together ... not ever," this being "true among the
Filipino folks [to which] complainant belonged, poor and helpless everything is entrusted to God" (p. 35,
Rollo).
The victim's relatively low level of intelligence explains the lapses in her testimony, having intermingled
two incidents. Nonetheless, it can easily be gathered from the record that the defense counsel may have
contributed to this confusion when he asked the victim what transpired "before" the incident (tsn, August
19, 1996, p. 37). Minor lapses in a witness' testimony should be expected when a person recounts details
of an experience so humiliating and so painful to recall as rape (People vs. Gementiza, 285 SCRA 478
[1998]).Rape, as a harrowing experience, is usually not remembered in detail. For, such an offense is not
something which enhances one's life experience as to be worth recalling or reliving but, rather, something
which causes deep psychological wounds and casts a stigma upon the victim for the rest of her life, which
her conscious or subconscious mind would prefer to forget (People vs. Garcia, 281 SCRA 463 [1997]).
These lapses do not detract from the overwhelming testimony of a prosecution witness positively
identifying the malefactor (People vs. Baccay, 284 SCRA 296 [1998]). Further, the testimony of a witness
must be considered and calibrated in its entirety and not by truncated portions thereof or isolated
passages therein (People vs. Natan, 193 SCRA 355 [1991]).
The Court finds that the victim had no motive to falsely testify against accused-appellant. Her testimony
deserves the credence accorded thereto by the trial court (People vs. Luzorata, 286 SCRA 487 [1998]).
Pertinently, no woman, especially one of tender age, would concoct a story of defloration, allow an
examination of her private parts, and thereafter pervert herself by being subjected to a public trial if she
was not motivated solely by the desire to have the culprit apprehended and punished (People vs. Taneo,
284 SCRA 251 [1998]).
Another point to consider is the blood relationship between accused-appellant and the victim. At this
juncture, we reiterate the trial court's observation thereon - the mother of accused-appellant being a first
degree cousin of the victim's father, that makes the victim and accused-appellant second degree cousins
or sixth civil degree relatives. Filipino culture, particularly in the provinces, looks at the extended family
as closely-knit and recognizes the obligation of an older relative to protect and take care of a younger one.
On the contrary, in the instant case, the victim initiated the prosecution of her cousin. If the charge were
not true, it is indeed difficult to understand why the victim would charge her own cousin as the
malefactor. Too, she having no compelling motive to file said case against accused-appellant, the
conclusion that the rape really happened is logically reinforced.
As regards the initial delay of the victim in reporting the rape incident, suffice it to state that the delay
and initial reluctance of a rape victim to make public the assault on her virtue is not uncommon (People
vs. Gallo, supra). In the case at bar, the victim's fear of her father who had moral ascendancy over her,
was explicit. She testified that she did not disclose the incident to her father because of fear both of her
father as well as of accused-appellant (tsn, August 19, 1996, pp. 23-24). Such reaction is typical of a
twelve-year-old girl and only strengthens her credibility.
The issue of credibility of the victim having been settled, there are a few points presented by the defense
that must be passed upon:
1. Other than their blood relationship, was there an intimate relationship between accused-appellant and
the victim? The theory initially advanced by the defense in the proceedings before the court a quo is the
"sweetheart theory". In this regard, .we agree with the trial court that the "sweetheart story" was a mere
concoction of accused-appellant in order to exculpate himself from criminal liability. In People vs.
Venerable (290 SCRA 15 [1998]), we held that the sweetheart theory of the accused was unavailing and
self-serving where he failed to introduce love letters, gifts, and the like to attest to his alleged amorous
affair with the victim. Hence, the defense cannot just present testimonial evidence in support of the
theory that he and the victim were sweethearts. Independent proof is necessary, such as tokens,
mementos, and photographs. It is likewise remarkable, a confession possibly of the bankruptcy of this
theory that accused-appellant has not insisted on this defense in his brief, seemingly abandoning this
line.
We, therefore, conclude that whatever familiarity and supposed closeness there was between accused-
appellant and the victim, is explained not by an intimate relationship but by their blood relationship.
Hence, it is noticeable that on the day of the incident, when accused-appellant called upon the victim and
the latter asked who he was, the victim knew right away that her caller was accused-appellant when the
latter replied "Si Totong".
Accused-appellant, in his direct testimony, tried to deny any blood relation with the victim Escelea
Tabada and touched on the apparent friendship between them, as follows:
 Q You mentioned earlier that you know the complainant, why do you know the complainant Escelea
Tabada?
A I only know her when I was already in jail, sir.
Q You mean to say that you never knew the complainant before you were arrested?
A I do not know her, sir.
COURT: (Questioning the witness)
Q Why, are you not related to the Tabadas?
A No, Your Honor.
ATTY. G.V. DELA PENA III: (Continuing)
Q Have you ever seen the complainant in Begang?
A The complainant is at Begang, sir.
Q And you mentioned that you were not related with the complainant, Mr. Witness?
A Yes, sir, we are only close.
Q So, in other words, Mr. Witness, you and the complainant Escelea Tabada were already friends?
A Yes, sir.
(tsn, June 16, 1998, pp. 42-43.)

However, on cross-examination, he notably crumbled:

Q Now, you stated in your direct examination that you are not related to the Tabadas in San Antonio
Begang, Isabela, Basilan, is that right?
A Yes, sir, we are only close.
Q Is it not a fact Mr. Witness that your mother is the first cousin of the father of Escelea Tabada?
A They are cousins, sir.
Q So, indeed you are related to the Tabadas?
A Yes, sir.
Q So, when you said that you are not related to the Tabadas, you were not telling the truth?
A Yes, sir.
(ibid, p. 51.)

2. Accused-appellant argues that no actual proof was presented that the rape actually happened since the
medico-legal officer who prepared the medical certificate was not presented in court to explain the same.
In People vs. Bernaldez (supra), the court a quo erred in giving weight to the medical certificate issued by
the examining physician despite the failure of the latter to testify. While the certificate could be admitted
as an exception to the hearsay rule since entries in official records (under Section 44, Rule 130, Rules of
Court) constitute exceptions to the hearsay evidence rule, since it involved an opinion of one who must
first be established as an expert witness, it could not be given weight or credit unless the doctor who
issued it is presented in court to show his qualifications. We place emphasis on the distinction between
admissibility of evidence and the probative value thereof. Evidence is admissible when it is relevant to
the issue and is not excluded by the law or the rules (Section 3, Rule 128, Rules of Court) or is competent.
Since admissibility of evidence is determined by its relevance and competence, admissibility is, therefore,
an affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted,
depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid
down by the Court. Thus, while evidence may be admissible, it may be entitled to little or no weight at all.
Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule
forbids its reception (Regalado, Remedial Law Compendium, Vol. II, 1998 ed., p. 550).
Withal, although the medical certificate is an exception to the hearsay rule, hence admissible as evidence,
it has very little probative value due to the absence of the examining physician. Nevertheless, it cannot be
said that the prosecution relied solely on the medical certificate (stating that there was "[h]ymen rupture,
secondary to penile insertion" as well as "foul-smelling discharges." The diagnosis was "[r]uptured
hymen secondary to rape" [p. 68, Record]). In fact, reliance was made on the testimony of the victim
herself which, standing alone even without medical examination, is sufficient to convict (People vs.
Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical examination is not indispensable in the
prosecution of rape (People vs. Lacaba, G.R. No. 130591, November 17, 1999; People vs. Salazar, 258
SCRA 55 [1996]; People vs. Venerable, supra). The absence of medical findings by a medico-legal officer
does not disprove the occurrence of rape (People vs. Taneo, supra). It is enough that the evidence on
hand convinces the court that conviction is proper (People vs. Auxtero, supra). In the instant case, the
victim's testimony alone is credible and sufficient to convict.
As a final observation, it must be said that the amount awarded by the trial court in favor of Escelea
Tabada as indemnification (P50,000.00 for moral damages) for the rape is incomplete based on
established jurisprudence and must be modified. In People vs. Betonio (279 SCRA 532 [1977]), we held
that the award of P50,000.00 to the victim as indemnity for rape not committed or qualified by any of
the circumstances under the Death Penalty Law, needs no proof other than the conviction of the accused
for the raped proved. This is different from the P50,000.00 awarded as moral damages which also needs
no pleading or proof as basis thereof (People vs. Prades, 293 SCRA 411 [1998]).
WHEREFORE, the appealed decision is hereby AFFIRMED, with the MODIFICATION that accused-
appellant Rodegelio Turco, Jr. aka "Totong" is ordered to indemnify the offended party, Escelea Tabada,
in the amount of Fifty Thousand (P50,000.00) Pesos in addition to the sum of P50,000.00 already
awarded by the trial court as moral damages.
SO ORDERED.
Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
 DIVISION

[ GR No. 152807, Aug 12, 2003 ]

HEIRS OF LOURDES SAEZ SABANPAN: BERNARDO S. SABANPAN v. ALBERTO C. COMORPOSA

DECISION
456 Phil. 161

PANGANIBAN, J.:
The admissibility of evidence should be distinguished from its probative value. Just because a piece of
evidence is admitted does not ipso facto mean that it conclusively proves the fact in dispute.

The Case

[2]
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the August
[3]
7, 2001 Decision and the February 27, 2002 Resolution of the Court of Appeals (CA) in CA-GR SP No.
60645. The dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, in view of all the foregoing, the Court hereby AFFIRMS the Decision dated 22
June 2000 rendered by Branch 18 of the Regional Trial Court of Digos, Davao del Sur,
REVERSING and SETTING ASIDE the Decision of the Municipal Trial Court of Sta. Cruz, Davao
del Su[r]."[4]

[5]
The assailed Resolution denied petitioners' Motion for Reconsideration.

The Facts

The CA summarized the factual antecedents of the case as follows:

 "A [C]omplaint for unlawful detainer with damages was filed by [petitioners] against [respondents]
before the Santa Cruz, Davao del Sur Municipal Trial Court.

"The [C]omplaint alleged that Marcos Saez was the lawful and actual possessor of Lot No. 845, Land
275 located at Darong, Sta. Cruz, Davao del Sur with an area of 1.2 hectares. In 1960, he died leaving
all his heirs, his children and grandchildren.

"In 1965, Francisco Comorposa who was working in the land of Oboza was terminated from his job.
The termination of his employment caused a problem in relocating his house. Being a close family
friend of [Marcos] Saez, Francisco Comorposa approached the late Marcos Saez's son, [Adolfo] Saez,
the husband of Gloria Leano Saez, about his problem. Out of pity and for humanitarian
consideration, Adolfo allowed Francisco Comorposa to occupy the land of Marcos Saez. Hence, his
nipa hut was carried by his neighbors and transferred to a portion of the land subject matter of this
case. Such transfer was witnessed by several people, among them, Gloria Leano and Noel Oboza.
Francisco Comorposa occupied a portion of Marcos Saez' property without paying any rental.

"Francisco Comorposa left for Hawaii, U.S.A. He was succeeded in his possession by the
respondents who likewise did not pay any rental and are occupying the premises through
petitioners' tolerance.

"On 7 May 1998, a formal demand was made upon the respondents to vacate the premises but the
latter refused to vacate the same and claimed that they [were] the legitimate claimants and the
actual and lawful possessor[s] of the premises. A [C]omplaint was filed with the barangay office of
Sta. Cruz[,] Davao del Sur, but the parties failed to arrive at an amicable settlement. Thus, the
corresponding Certificate to File Action was issued by the said barangay and an action for unlawful
detainer was filed by petitioners against respondents.

"Respondents, in their Answer, denied the material allegations of the [C]omplaint and alleged that
they entered and occupied the premises in their own right as true, valid and lawful claimants,
possessors and owners of the said lot way back in 1960 and up to the present time; that they have
acquired just and valid ownership and possession of the premises by ordinary or extraordinary
prescription, and that the Regional Director of the DENR, Region XI has already upheld their
possession over the land in question when it ruled that they [were] the rightful claimants and
possessors and [were], therefore, entitled to the issuance of a title.

"The Municipal Trial Court of Sta. Cruz, Davao del Sur rendered judgment in favor of petitioners but
the Regional Trial Court of Digos, Davao del Sur, on appeal, reversed and set aside the said decision.
[6]
x x x"

Ruling of the Court of Appeals

Affirming the Regional Trial Court (RTC), the CA upheld the right of respondents as claimants and
possessors. The appellate court held that -- although not yet final -- the Order issued by the regional
executive director of the Department of Environment and Natural Resources (DENR) remained in full
force and effect, unless declared null and void. The CA added that the Certification issued by the DENR's
community environment and natural resources (CENR) officer was proof that when the cadastral survey
was conducted, the land was still alienable and was not yet allocated to any person.

According to the CA, respondents had the better right to possess alienable and disposable land of the
public domain, because they have suffiently proven their actual, physical, open, notorious, exclusive,
continuous and uninterrupted possession thereof since 1960. The appellate court deemed as self-serving,
and therefore incredible, the Affidavits executed by Gloria Leano Saez, Noel Oboza and Paulina Paran.

Hence, this Petition.[7]

The Issue

In their Memorandum, petitioners raise the following issues for the Court's consideration:

"I
Did the Court of Appeals gravely abuse its discretion and [err] in sustaining the ruling of the
Regional Trial Court giving credence to the Order dated 2 April 1998 issued by the regional
executive director?

"II

Did the Court of Appeals gravely abuse its discretion and err in sustaining the Regional Trial Court's
ruling giving weight to the CENR Officer's Certification, which only bears the facsimile of the alleged
signature of a certain Jose F. Tagorda and, [worse], it is a new matter raised for the first time on
appeal?

"III

Did the Court of Appeals gravely abuse its discretion and err in holding that the land subject matter
of this case has been acquired by means of adverse possession and prescription?

"IV

Did the Court of Appeals gravely abuse its discretion, and err in declaring that, `neither is there
error on the part of the Regional Trial Court, when it did not give importance to the affidavits by
[8]
Gloria Leano Saez, Noel [Oboza], and Paulina Paran for allegedly being self serving?'"

To facilitate the discussion, the fourth and the third issues shall be discussed in reverse sequence.

The Court's Ruling

The Petition has no merit.

First Issue:
The DENR Order of April 2, 1998

Petitioners claim that the reliance of the CA upon the April 2, 1998 Order issued by the regional director
of the DENR was erroneous. The reason was that the Order, which had upheld the claim of respondents,
was supposedly not yet final and executory. Another Order dated August 23, 1999,[9] issued later by the
DENR regional director, allegedly held in abeyance the effectivity of the earlier one.

Under the Public Land Act,[10] the management and the disposition of public land is under the primary
control of the director of lands[11] (now the director of the Lands Management Bureau or LMB),[12]
[13]
subject to review by the DENR secretary.[13] As a rule, then, courts have no jurisdiction to intrude upon
matters properly falling within the powers of the LMB.

The powers given to the LMB and the DENR to alienate and dispose of public land does not, however,
divest regular courts of jurisdiction over possessory actions instituted by occupants or applicants to
protect their respective possessions and occupations.[14] The power to determine who has actual
physical possession or occupation of public land and who has the better right of possession over it
remains with the courts.[15] But once the DENR has decided, particularly through the grant of a
homestead patent and the issuance of a certificate of title, its decision on these points will normally
prevail.[16]

Therefore, while the issue as to who among the parties are entitled to a piece of public land remains
pending with the DENR, the question of recovery of possession of the disputed property is a matter that
may be addressed to the courts.

Second Issue:
CENR Officer's Certification

Petitioners contend that the CENR Certification dated July 22, 1997 is a sham document, because the
signature of the CENR officer is a mere facsimile. In support of their argument, they cite Garvida v. Sales
Jr.[17] and argue that the Certification is a new matter being raised by respondents for the first time on
appeal.

We are not persuaded.

In Garvida, the Court held:

"A facsimile or fax transmission is a process involving the transmission and reproduction of printed
and graphic matter by scanning an original copy, one elemental area at a time, and representing the
[18]
shade or tone of each area by a specified amount of electric current. x x x"

Pleadings filed via fax machines are not considered originals and are at best exact copies. As such, they
are not admissible in evidence, as there is no way of determining whether they are genuine or authentic.
[19]

The Certification, on the other hand, is being contested for bearing a facsimile of the signature of CENR
Officer Jose F. Tagorda. The facsimile referred to is not the same as that which is alluded to in Garvida.
The one mentioned here refers to a facsimile signature, which is defined as a signature produced by
mechanical means but recognized as valid in banking, financial, and business transactions.[20]

Note that the CENR officer has not disclaimed the Certification. In fact, the DENR regional director has
acknowledged and used it as reference in his Order dated April 2, 1998:
"x x x. CENR Officer Jose F. Tagorda, in a `CERTIFICATION' dated 22 July 1997, certified among
others, that: x x x per records available in his Office, x x x the controverted lot x x x was not allocated
[21]
to any person x x x."

If the Certification were a sham as petitioner claims, then the regional director would not have used it as
reference in his Order. Instead, he would have either verified it or directed the CENR officer to take the
appropriate action, as the latter was under the former's direct control and supervision.
Petitioners' claim that the Certification was raised for the first time on appeal is incorrect. As early as the
pretrial conference at the Municipal Trial Court (MTC), the CENR Certification had already been marked
as evidence for respondents as stated in the Pre-trial Order.[22] The Certification was not formally
offered, however, because respondents had not been able to file their position paper.

Neither the rules of procedure[23] nor jurisprudence[24] would sanction the admission of evidence that
has not been formally offered during the trial. But this evidentiary rule is applicable only to ordinary
trials, not to cases covered by the rule on summary procedure -- cases in which no full-blown trial is held.
[25]

Third Issue:
Affidavit of Petitioners' Witnesses

Petitioners assert that the CA erred in disregarding the Affidavits of their witnesses, insisting that the
Rule on Summary Procedure authorizes the use of affidavits. They also claim that the failure of
respondents to file their position paper and counter-affidavits before the MTC amounts to an admission
by silence.

The admissibility of evidence should not be confused with its probative value. Admissibility refers to the
question of whether certain pieces of evidence are to be considered at all, while probative value refers to
the question of whether the admitted evidence proves an issue.[26] Thus, a particular item of evidence
may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines
provided by the rules of evidence.[27]

While in summary proceedings affidavits are admissible as the witnesses' respective testimonies, the
failure of the adverse party to reply does not ipso facto render the facts, set forth therein, duly proven.
Petitioners still bear the burden of proving their cause of action, because they are the ones asserting an
affirmative relief.[28]

Fourth Issue:
Defense of Prescription

Petitioners claim that the court a quo erred in upholding the defense of prescription proffered by
respondents. It is the former's contention that since the latter's possession of the land was merely being
tolerated, there was no basis for the claim of prescription. We disagree.

For the Court to uphold the contention of petitioners, they have first to prove that the possession of
respondents was by mere tolerance. The only pieces of evidence submitted by the former to support their
claim were a technical description and a vicinity map drawn in accordance with the survey dated May 22,
1936.[29] Both of these were discredited by the CENR Certification, which indicated that the contested
lot had not yet been allocated to any person when the survey was conducted.[30] The testimony of
petitioners' witnesses alone cannot prevail over respondents' continued and uninterrupted possession of
the subject lot for a considerable length of time.

Furthermore, this is an issue of fact that cannot, as a rule, be raised in a petition for review under Rule
45.[31]

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
petitioners.
SO ORDERED.

Puno, (Chairman), Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

[1] Also spelled "Ariega" in the pleadings.

[2] Also spelled "Lariega" in the pleadings.

[2] Rollo, pp. 11-37.

[3] Eighth Division. Written by Justice Perlita J. Tria Tirona and concurred in by Justices Eugenio S.
Labitoria (Division chairman) and Eloy R. Bello Jr. (member).

[4] Assailed Decision, p. 6; rollo, p. 49.

[5] Rollo, p. 52.

[6] Assailed Decision, pp. 2-3; rollo, pp. 45-46.

[7] This case was deemed submitted for decision on January 15, 2003, upon the Court's receipt of
respondents' Memorandum, signed by Atty. William G. Carpentero. Petitioners' Memorandum, filed on
January 10, 2003, was signed by Atty. Oswaldo A. Macadangdang.

[8] Petitioners' Memorandum, p. 8; rollo, p. 283. Original in upper case.

[9] Annex I; rollo, pp. 91-92.

[10] Commonwealth Act 141 as amended.

[11] §4 of CA 141 as amended.

[12] The LMB absorbed the functions of the Bureau of Lands, which was abolished by Executive Order
No. 131, except those line functions that were transmitted to the regional field offices.

[13] §3 of CA 141 as amended.

[14] Omandam v. Court of Appeals, 349 SCRA 483, January 18, 2001; Solis v. Intermediate Appellate
Court, 198 SCRA 267, June 19, 1991; Rallon v. Ruiz Jr, 138 Phil. 347, May 26, 1969; Molina et al v.
Bacud et al., 126 Phil. 166, April 27, 1967; Bohayang v. Maceren, 96 Phil. 390, December 29, 1954;
Pitargue v. Sorilla, 92 Phil. 5, September 17, 1952.

[15] Solis v. Intermediate Appellate Court, supra, citing National Development Company v. Hervilla, 151
SCRA 520, June 30, 1987; Espejo v. Malate, 205 Phil. 216, January 27, 1983.

[16] Omandam v. Court of Appeals, supra.

[1 ]
[17] 338 Phil. 484, April 18, 1997.

[18] Id., p. 496, per Puno, J., citing Webster's Third New International Dictionary (1976), p. 813.

[19] Ibid.

[20] "Facsimile signature," Webster's Third New International Dictionary (1976), p. 813.

[21] Rollo, p. 104.

[22] Id., p. 121.

[23] §34, Rule 132 of the Rules of Court.

[24] People v. Carino, 165 SCRA 664, September 26, 1988; Veran v. Court of Appeals, 157 SCRA 438,
January 29, 1988.

[25] Republic of the Philippines v. Court of Appeals, 277 SCRA 633, August 18, 1997; De los Reyes v.
Intermediate Appellate Court, 176 SCRA 394, August 11, 1989.

[26] PNOC Shipping Transport Corporation v. Court of Appeals, 358 Phil. 38, October 8, 1998.

[27] Id., p. 59.

[28] People v. Villar, 322 SCRA 393, January 19, 2000; Pacific Banking Corporation Employees
Organization v. Court of Appeals, 351 Phil. 438, March 27, 1998; Rivera v. Court of Appeals, 348 Phil.
734, January 23, 1998; Ramcar Incorporated v. Garcia, 114 Phil. 1026, April 25, 1962.

[29] Rollo, pp. 83-84.

[30] Id., p. 105.

[31] §1 of Rule 45 of the Rules of Court; Heirs of Anastacio Fabela v. Court of Appeals, 414 Phil 838,
August 9, 2001; American President Lines Ltd. v. Court of Appeals, 336 SCRA 582, July 31, 2000;
Liberty Construction and Development Corporation v. Court of Appeals, 327 Phil. 490, June 28, 1996.
 DIVISION

[ GR NO. 145006, Aug 30, 2006 ]

DAVID TAN v. PEOPLE

DECISION
531 Phil. 563

AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari filed by accused David Tan (petitioner) assailing
[1]
the Decision of the Court of Appeals (CA) dated February 11, 2000, and the Resolution dated
September 4, 2000.

The antecedent facts as accurately narrated by the MTC in its Decision are as follows:
David Tan, the accused herein, stands charged with the crime of Violation of Batas Pambansa Bilang
22 (6 counts) in six (6) separate informations which read as follows:

xxxxxxxxx

Records show that the accused, assisted by counsel, entered a plea of Not Guilty, upon being
arraigned. Thereafter, these cases were set for trial on the merits, which cases were consolidated and
tried jointly.

Carolyn Zaragoza, of legal age, the private complainant, testified among others that: She met the
accused through their common friend, Paul Dy while they were having some business negotiations
(Witness identified the accused through his pictures which were attached to his bail bond, as said
accused failed to appear in court despite notice, said pictures were marked as Exhs. "J", "J-1" and J-
2"); that during her first meeting with the accused, they had a loan transaction which was followed
by another loan transaction on June 27, 1994 in the amount of P1 Million, and for which she gave
the accused a Metrobank Check No. 001430 in the amount of P950,000.00 (Exhs. "K" & "K-1"),
having deduced the 5% interest from said loan. Thereafter, the accused issued several PCIBANK
Checks, among which are numbered as follows: x x x When all these checks were deposited at her
account with the City Trust Bank, Sucat (Parañaque) Branch, they all bounced for reason "Account
Closed." She thereafter tried to contact the accused but he (accused) refused to talk to her. The
accused was sent by her lawyer a formal demand through registered mail, for him to pay in cash the
aforementioned bounced/dishonored checks but to no avail. In filing this case she engaged the
services of a lawyer for P50,000.00 acceptance fee and P1,000.00 per appearance in court; that said
accused should pay the corresponding interest of P50,000.00 which had become due since
November 1994 other than the principal obligation.

Despite ample opportunity given to the accused to present its evidence, it still failed to do so; hence,
the court in its Order dated March 18, 1997, the case was deemed submitted for decision.

On May 27, 1997, the MTC rendered judgment, to wit:

 IN VIEW OF THE FOREGOING, this Court finds the accused David Tan guilty beyond reasonable
doubt of the crime of Violation of Batas Pambansa Blg. 22 in six (6) counts, and hereby sentences
said accused to an imprisonment of six (6) months for each case, and to indemnify the private
complainant in the amount of P600,000.00 representing the total amount of the subject checks,
plus interest thereon in the amount of P50,000.00 and attorney's fees in the amount of P20,000.00
and to pay the costs.

[2]
SO ORDERED.

Petitioner filed a motion for reconsideration with the MTC wherein he denied receipt of the demand
letter[3] dated October 30, 1995 marked as Exhibit "R" and alleged that said evidence was not included
in the formal offer of evidence. Said motion for reconsideration was denied. He then appealed the case to
the Regional Trial Court of Parañaque, Branch 258 (RTC), with the following assignment of errors:
1. The trial court gravely erred in finding appellant guilty beyond reasonable doubt of the crime of
Violation of B.P. 22 on six (6) courts (sic);

2. The trial court gravely erred in ordering appellant to indemnify the private complainant the
value of the six (6) checks in question, plus the sum of P50,000.00 interest and P20,000.00
[4]
attorney's fees.

On April 16, 1999, the RTC promulgated its Decision, the dispositive portion of which reads as follows:
WHEREFORE, the Decision of the Court a quo is MODIFIED to read, thus:

IN VIEW OF THE FOREGOING, this Court finds the accused David Tan guilty beyond reasonable
doubt of the crime of Violation of Batas Pambansa Bilang 22 in six (6) counts, and hereby sentences
said accused to an imprisonment of six (6) months for each case, and to indemnify the private
complainant in the amount of P600,000.00 representing the total amount of the subject checks,
plus interest thereon at the legal rate from the filing of the Information until fully paid and to pay
the costs.

In view of the foregoing the court a quo is directed to issue a Warrant of Arrest against the accused
which need not be returned until he has been arrested.

[5]
SO ORDERED.

Petitioner moved for reconsideration of the foregoing Decision but per Order dated July 5, 1999, the RTC
denied the same.

A Petition for Review was then filed by petitioner with the CA, alleging as follows:
 With due respect to the Honorable Regional Trial Court, Branch 258, Parañaque City, it committed
reversible error, thus:
1. In affirming the trial court's verdict of conviction despite the prosecution's failure to prove the
guilt of herein petitioner/accused beyond reasonable doubt.

2. In affirming the trial court's verdict awarding damages to private respondent.

3. In ordering the trial court to issue warrant of arrest against petitioner despite the fact that its
[6]
verdict affirming the trial court's decision is not yet final and executory.

The CA dismissed the appeal and affirmed the RTC Decision, ruling that petitioner's guilt had indeed
been proven beyond reasonable doubt since the existence of the element that he had knowledge of the
insufficiency of funds in or credit with the drawee bank at the time he issued the checks is established by
the demand letter dated October 30, 1995 notifying him of the dishonor of the checks he issued. The CA
further pointed out that the RTC had already deleted the MTC's award for interest in the amount of
P50,000.00 and attorney's fees, hence, on said issue, there is no error that needs to be corrected. As to
the order for the issuance of a warrant of arrest, the CA held that "[i]t is a constitutional mandate that
once accused is convicted in the Regional Trial Court, bail becomes a matter of discretion upon the court
and no longer a matter of right."[7]

Petitioner filed a motion for reconsideration where he argued that no evidentiary weight should be given
to the demand letter dated October 30, 1995 because, although included in the formal offer of evidence
by the prosecution, it was not presented during trial for proper identification, hence, it should not have
been admitted into evidence even if the defense failed to object to the formal offer thereof. Petitioner
insisted that the prosecution did not have proof of notice of dishonor, thus, petitioner's guilt had not been
proven beyond reasonable doubt.

The CA denied said motion for reconsideration in its Resolution[8] dated September 4, 2000 holding
that since said issue was never raised before the trial court nor before the RTC, the same can no longer be
considered by the reviewing court.

Hence, this petition where it is alleged that:

 I. THE APPELLATE COURT ERRED IN AFFIRMING IN TOTO THE LOWER COURT'S
VERDICT OF CONVICTION DESPITE THE PROSECUTION'S FAILURE TO PROVE THE
GUILT OF PETITIONER/ACCUSED BEYOND REASONABLE DOUBT MUCH MORE SO
CONSIDERING THAT THE PROOF OF NOTICE OF DISHONOR HAS NOT BEEN
SATISFACTORILY PROVEN OR IS BASED ON EVIDENCE NOT PROPERLY IDENTIFIED
AND OFFERED.

xxxxxxxxx

II. THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S VERDICT
AWARDING DAMAGES TO PRIVATE RESPONDENT.

xxxxxxxxx

III. THE APPELLATE COURT ERRED IN SUSTAINING THE REGIONAL TRIAL COURT WHICH
ORDERED AN INFERIOR COURT TO ISSUE A WARRANT OF ARREST AGAINST
PETITIONER DESPITE THE FACT THAT ITS VERDICT AFFIRMING THE INFERIOR
[9]
COURT'S DECISION IS NOT YET FINAL AND EXECUTORY.

The petition is imbued with merit.

With regard to the first assignment of error, petitioner reiterates his argument that no evidentiary weight
should be given to the demand letter dated October 30, 1995 because, although included in the formal
offer of evidence by the prosecution, it was not presented during trial for proper identification and should
not have been admitted into evidence even if the defense failed to object to the formal offer thereof.

It is quite true that this Court has ruled that objection to the admissibility of evidence, if not made at the
time such evidence is offered, shall be deemed waived.[10] However, in all cases where said rule had been
applied, the assailed testimonial or object evidence had been duly presented during the course of the
trial.

In the present case, a judicious examination of the entire record shows that, indeed, the demand letter
dated October 30, 1995 was never presented during the course of the trial.

The transcript of stenographic notes[11] for the hearing held on September 26, 1996 shows that the
presentation of the testimony of the bank representative testifying for the prosecution was dispensed
with since the opposing parties stipulated that the testimony of a bank representative would prove the
following:
x x x the witness will be testifying on the points that at the time the six checks were presented for
payment, the first two checks were dishonored for being "Drawn Against Insufficient Funds" while
the third up to the sixth checks were dishonored for reason of "account closed" and per records of
the bank, the account of the accused was not sufficient to cover the amount of the checks issued by
the accused as well as the domestic current account of the accused and we have here the documents,
the ledger of the accused which would prove that the accounts of the accused, both savings and
[12]
current were not sufficient to cover the checks issued by the accused to the complainant?

The only other prosecution witness is private complainant Carolyn Zaragosa (Zaragosa), whose testimony
is to the effect that after the checks bounced, she tried to call up petitioner but the latter refused to talk to
her, thus, she was constrained to obtain the services of a lawyer. Nowhere in the transcript of
[13]
stenographic notes[13] for the hearing held on December 17, 1996, did Zaragosa ever mention the
existence of a demand letter dated October 30, 1995. After the direct testimony of Zaragosa where the
exhibits marked were only up to Exhibits "Q" and "Q-1," all the subsequent hearings did not push
through. Zaragosa was never cross-examined. The defense, despite numerous resetting of hearing dates
set for presentation of its evidence, failed to appear during those hearings, prompting the MTC to deem
the case submitted for decision without evidence for the defense.

Since there were no other hearings held, it was impossible for the prosecution to have presented and
marked as exhibit, the demand letter dated October 30, 1995.

The very first time said demand letter was ever mentioned or appeared in the record was in the formal
offer of evidence, supposedly marked as Exhibit "R." How said demand letter came to be marked as
Exhibit "R" and inserted into the record truly mystifies this Court. Such circumstance, to say the least, is
tainted with irregularity because, as previously mentioned, such document was never presented or
identified in any of the hearings. As held in Pigao v. Rabanillo,[14] for documentary evidence to be
considered by the court, it must have been presented during trial and formally offered.

Although petitioner admits that they failed to submit any opposition to the formal offer of evidence, he
nevertheless raised the issue of the non-presentation of the demand letter in his motion for
reconsideration filed with the MTC. Evidently, the CA made a mistake in stating that petitioner only
raised for the first time on appeal, the issue on the admission of the demand letter into evidence.

Thus, in view of the foregoing significant circumstances, it would be unreasonable to apply to the present
case the general rule that objection to the admissibility of evidence, if not made at the time such evidence
is offered, shall be deemed waived. As the demand letter was never presented during the course of the
trial, petitioner was never alerted to its possible inclusion in the prosecution's formal offer of evidence.
Verily, therefore, petitioner's failure to timely object to this piece of evidence (the demand letter) is
excusable. The prosecution should not benefit from the anomalous inclusion of the demand letter in the
records. Said evidence should be deemed inadmissible and should not have been considered by the MTC
in arriving at its judgment.

With the exclusion of the demand letter from the body of evidence presented by the prosecution, the next
question is, would the remaining evidence still be sufficient to prove petitioner's guilt beyond reasonable
doubt? The answer must be in the negative.

The elements of violation of Batas Pambansa Blg. 22 (B.P. Blg. 22) are: (1) making, drawing, and issuance
of any check to apply on account or for value; (2) knowledge of the maker, drawer, or issuer that at the
time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the
check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment.[15]

In Ongson v. People,[16] the Court expounded on the kind of evidence necessary to prove the second
element, to wit:
 As to the second element, we have held that knowledge involves a state of mind which is difficult to
establish, thus the statute itself creates a prima facie presumption that the drawer had knowledge of
the insufficiency of his funds in or credit with the bank at the time of the issuance and on the check's
presentment for payment if he fails to pay the amount of the check within five (5) banking days from
notice of dishonor.

Sec. 2 of B.P. 22 provides:

SEC. 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a
check payment of which is refused by the drawee because of insufficient funds in or credit with
such bank, when presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes arrangements for payment
in full by the drawee of such check within five (5) banking days after receiving notice that such
check has not been paid by the drawee.

For this presumption to arise, the prosecution must prove the following: (a) the check is presented
within ninety (90) days from the date of the check; (b) the drawer or maker of the check receives
notice that such check has not been paid by the drawee; and (c) the drawer or maker of the check
fails to pay the holder of the check the amount due thereon, or make arrangements for payment in
full within five (5) banking days after receiving notice that such check has not been paid by the
drawee. In other words, the presumption is brought into existence only after it is proved that the
issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to
pay the amount of the check or to make arrangements for its payment. The presumption or prima
facie evidence as provided in this section cannot arise, if such notice of nonpayment by the drawee
bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received
by the drawer, since there would simply be no way of reckoning the crucial 5-day period.
[17]
Furthermore, the notice of dishonor must be in writing; a verbal notice is not enough.
(Emphasis supplied)

Since the prosecution failed to present evidence during trial that a written demand had been sent to and
received by petitioner, the second element, that the accused had knowledge of the insufficiency of funds,
had not been established. As stated in Dico v. Court of Appeals,[18] "[a] notice of dishonor received by
the maker or drawer of the check is thus indispensable before a conviction can ensue. x x x. The lack of a
written notice is fatal for the prosecution." Hence, petitioner's conviction for the crime of violation of B.P.
Blg. 22 must be set aside.

However, the CA correctly affirmed the RTC's award of the legal rate of interest on the principal amount
of P600,000.00. It should be borne in mind that Section 1, Rule 111 of the Rules of Court provides that "
[w]hen a criminal action is instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the criminal action x x x." Section 1, Rule 133 of the same
Rules provides that "[i]n civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence." Here, private complainant successfully proved, by preponderance of
evidence, that despite all her efforts to collect from petitioner, he failed to pay his indebtedness. Thus, the
trial court correctly ordered petitioner to pay private complainant civil indemnity.
Petitioner's argument that private complainant should not have been awarded civil indemnity because
she failed to exhaust non-judicial means before resorting to the filing of the criminal case should not be
given any consideration as the evidence shows that private complainant indeed tried to demand payment
from petitioner out of court but all to no avail.

The RTC was correct in awarding interest on the principal amount at the legal rate which should be 12%
per annum from the filing of the Information until fully paid, as this is in keeping with the Court's ruling
in Trade & Investment Development Corporation of the Philippines v. Roblett Industrial Construction
Corporation,[19] where the Court reiterated that:
I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or
quasi-delicts is breached, the contravenor can be held liable for damages. The provisions under
Title XVIII on 'Damages' of the Civil Code govern in determining the measure of recoverable
damages.

II. With regard particularly to an award of interest in the concept of actual and compensatory
damages, the rate of interest, as well as the accrual thereof, is imposed, as follows:
1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan
or forbearance of money, the interest due should be that which may have been stipulated in
writing. Furthermore, the interest due shall itself earn legal interest from the time it is
judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum
to be computed from default, i.e., from judicial or extrajudicial demand under and subject to
the provisions of Article 1169 of the Civil Code.

x x x x x x x x x (Underscoring Ours)

Petitioner also keeps harping on the issue of the MTC's error of awarding attorney's fees, but as correctly
pointed out by the CA, the RTC had already deleted such award for attorney's fees. There is, therefore, no
longer any need to discuss such aspect.

WHEREFORE, the petition is PARTLY GRANTED. Petitioner is ACQUITTED of the crime of Violation of
B.P. Blg. 22. However, petitioner is ORDERED to PAY private complainant Carolyn Zaragosa the amount
of P600,000.00 representing the total amount of the subject checks, plus 12% interest thereon from the
filing of the Information until fully paid and to pay the costs.

SO ORDERED.

Panganiban, C.J., (Chairperson), Ynares-Santiago, Callejo, Sr. and Chico-Nazario, JJ., concur.

[1] Penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate Justices Eubulo G.
Verzola (now deceased) and Martin S. Villarama, Jr.

[2] CA rollo, p. 40.

[3] Records, pp. 91-92.

[4] CA rollo, p. 47.

[5] Id. at 14-15.

[6] CA rollo, p. 6.

[7] Rollo, p. 39.

[8] Rollo, pp. 42-44.

[9] Id. at 15-16, 23-24.

[10] People v. Enfermo, G.R. Nos. 148682-85, November 30, 2005, 476 SCRA 515; Abrenica v. Gonda
and De Gracia, 34 Phil. 739 (1916).

[11] Records, pp. 41-44.

[12] Id. at 43.

[13] Id. at 51-65.

[14] G.R. No. 150712, May 2, 2006.

[15] Ongson v. People, G.R. No. 156169, August 12, 2005, 466 SCRA 656.

[16] Id.

[17] Ongson v. People, supra at 673-675.

[18] G.R. No. 141669, February 28, 2005, 452 SCRA 441, 458.

[19] G.R. No. 139290 November 11, 2005, 474 SCRA 510, 535.
 [ GR No. L-9181, Nov 28, 1955 ]

PEOPLE v. NICASIO YATCO

DECISION
97 Phil. 940

REYES, J.B.L., J.:

In an amended information filed by the City Attorney of Quezon City on March 22, 1955, Juan Consunji,
Alfonso Panganiban, and another whose identity is still unknown, were charged with having conspired
together in the murder of one Jose Ramos (Criminal Case No. Q-1G37 of the Court of First Instance of
Quezon City). Trial of the case started on May 3, 1955, and in several hearings the prosecution had been
presenting its evidence. During the progress of the trial on May 18, 1955, while the prosecution was
questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in
connection with the making of a certain extra-judicial confession (allegedly made before him) by
defendant Juan Consunji to the witness, counsel for the other defendant Alfonso Panganiban interposed
a general objection to any evidence on such confession on the ground that it was hearsay and therefore
incompetent as against the other accused Panganiban. The Court below ordered the exclusion of the
evidence objected to, but on an altogether different ground: that the prosecution could not be permitted
to introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy
between them, without prior proof of such conspiracy by a number of definite acts, conditions, and
circumstances. Thereafter, according to the transcript, the following remarks were made:
"Fiscal Lustre:
May we know from counsel if he is also objecting to the admissibility of the confession of Consunji
as against the accused Consunji himself?
Court:
That would be premature because there is already a ruling of the Court that you cannot prove a
confession unless you prove first conspiracy thru a number of indefinite acts, conditions and
circumstances as required by law." Annex "B" of the petition, p. 9

The prosecution then moved in writing for a reconsideration of the order of exclusion, but again the
motion was denied. Wherefore, this petition for certiorari was brought before this Court by the Solicitor
General, for the review and annulment of the lower Court's order completely excluding any evidence on
the extra judicial confessions of the accused Juan Consunji and Alfonso Panganiban without prior proof
of conspiracy.
We believe that the lower Court committed a grave abuse of discretion in ordering the complete exclusion
of the prosecution's evidence on the alleged confessions of the accused Juan Consunji at the stage of the
trial when the ruling was made.
Section 14, Rule 123, Hules of Court, is specific as to the admissibility of the extrajudicial confession of an
accused, freely and voluntarily made, as evidence against him.

"Sec. 14. Confession. The declaration of an accused expressly acknowledging the truth of his guilt as
to the offense charged, may be given in evidence against him."
Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent
as against his co-accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them
without the conspiracy being established by other evidence, the confession of Consunji was, nevertheless,
admissible as evidence of the declarant's own guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil.
37; People vs. Buan, 64 Phil. 296), and should have been admitted as such.
The rule cited by the Court below in support of its exclusion of the proffered evidence is Sec. 12 of Rule
123, providing that:

"The act or declaration of a conspirator relating to the conspiracy and during its existence may be
given in evidence against the co-conspirator after the conspiracy is shown by evidence other than
such act or declaration."

Manifestly, the rule refers to statements made by one conspirator during the pendency of the unlawful
enterprises (''during its existence") and in furtherance of its object, and not to a confession made, as in
this case, long after the conspiracy had been brought to an end (U. S. vs. Empeinado, 9 Phil., 613; U. S.
vs. Raymundo, 14 Phil, 416; People vs. Badilla, 48 Phil., 718; People vs. Nakpil, 52 Phil., 985).
Besides, the prosecution had not yet offered the confessions to prove conspiracy between the two
accused, nor as evidence against both of them. In fact, the alleged confessions (both in writing and in
tape recordings) had not yet even been identified (the presentation of Atty. Xavier was precisely for the
purpose of identifying the confessions), much less formally offered in evidence. For all we know, the
prosecution might still be able to adduce other proof of conspiracy between Consunji and Panganiban
before their confessions are formally offered in evidence. Assuming, therefore, that section 12 of Rule 123
also applies to the confessions in question, it was premature for the respondent Court to exclude them
completely on the ground that there was no prior proof of conspiracy.
It is particularly noteworthy that the exclusion of the proferred confessions was not made on the basis of
the objection interposed by Panganiban's counsel, but upon an altogether different ground, which the
Court issued motu proprio. Panganiban's counsel objected to Consunji's confession as evidence of the
guilt of the other accused Panganiban, on the ground that it was hearsay as to the latter. But the Court,
instead of ruling on this objection, put up its own objection to the confessions that it could not be
admitted to prove conspiracy between Consunji and Panganiban without prior evidence of such
conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the
confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege
which the parties may waive; and if the ground for objection is known and not reasonably made, the
objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence
(Marella vs. Reyes, 12 Phil., 1).
We see no need for the present to discuss the question of the admissibility of the individual extrajudicial
confessions of two or more accused for the purpose of establishing conspiracy between them through the
identity of the confessions in essential details. After all, the confessions are not before us and have not
even been formally offered in evidence for any purpose. Suffice it to say that the lower Court should have
allowed such confessions to be given in evidence at least as against the parties who made them, and
admit the same conditionally to establish conspiracy, in order to give the prosecution a chance to get into
the record all the relevant evidence at its disposal to prove the charges. At any rate, in the final
determination and consideration of the case, the trial Court should be able to distinguish the admissible
from the inadmissible, and reject what, under the rules of evidence, should be excluded.
Once more, attention should be called to the ruling of this Court in the case of Prats & Co. vs. Phoenix
Insurance Co., 52 Phil., 807, 816-817:
 "In the course of long experience we have observed that justice is most effectively and expeditiously
administered in the courts where trivial objections to the admission of proof are received with least
favor. The practice of excluding evidence on doubtful objections to its materiality or technical
objections to the form of the questions should be avoided. In a case of any intricacy it is impossible
for a judge of first instance, in the early stages of the development of the proof, to know with any
certainty whether testimony is relevant or not; and where there is no indication of bad faith on the
part of the Attorney offering the evidence, the court may as a rule safely accept the testimony upon
the statement of the attorney that the proof offered will be connected later. Moreover, it must be
remembered that in the heat of the battle over which he presides, a judge of first instance may
possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in
fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme
Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the
error without returning the case for a new trial, a step which this Court is always very loath to take.
On the other hand, the admission of proof in a court of first instance, even if the question as to its
form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because
the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to
distinguish the relevant and material from the irrelevant and immaterial. If this course is followed
and the cause is prosecuted to the Supreme Court upon appeal, this Court then has all the material
before it necessary to make a correct judgment."

There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility
of evidence for the prosecution, for the unjustified exclusion of evidence may lead to the erroneous
acquittal of the accused or the dismissal of the charges, from which the People can no longer appeal.
Wherefore, the order excluding the confessions of the accused Juan Consunji and Alfonso Panganiban is
annulled and set aside and the Court below is directed to proceed with the trial in accordance with law
and this opinion. Costs against respondents Juan Consunji and Alfonso Panganiban. So ordered.
Paras, C. J., Bengzon, Padilla, Monjtemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ., concur.
G.R. No. 150224

EN BANC

[ G.R. No. 150224, May 19, 2004 ]

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant.

DECISION
PER CURIAM:
On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25,
sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with
Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the
amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the
amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to
[1]
P511,410.00, and costs of litigation.

Appellant was charged with Rape with Homicide under the following Information:
That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the
jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain
KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a
bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim,
and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by
means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will.

CONTRARY TO LAW.[2]

The facts are:

On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba,
were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal,
Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel
Yatar, through Kathylyn's friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that
[3]
morning.

At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm
in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told
Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would
just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone
[4]
in the house.

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel.
They saw appellant at the back of the house. They went inside the house through the back door of the
kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he
[5]
was getting lumber to bring to the house of his mother.
At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the
ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.[6]
She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and
forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the
house of Isabel Dawang.[7]

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a
black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he
had stacked, and that Isabel could use it. She noticed that appellant's eyes were "reddish and sharp."
Appellant asked her where her husband was as he had something important to tell him. Judilyn's
husband then arrived and appellant immediately left and went towards the back of the house of Isabel.
[8]

In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were
off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She
noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went
up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was
tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body
that was cold and rigid.[9]

Isabel moved her hand throughout the entire body. She found out that it was the naked body of her
granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a
flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her
intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A
daughter of Isabel, Cion, called the police.[10]

At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel
Dawang's house. Together with fellow police officers, Faniswa went to the house and found the naked
body of Kathylyn Uba with multiple stab wounds.

The people in the vicinity informed the police officers that appellant was seen going down the ladder of
the house of Isabel Dawang at approximately 12:30 p.m.

The police discovered the victim's panties, brassiere, denim pants, bag and sandals beside her naked
cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50
meters from the house of Isabel.

When questioned by the police authorities, appellant denied any knowledge of Kathylyns's death,[11]
however, he was placed under police custody.

On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar
Abagan accompanied him to the toilet around seven to ten meters away from the police station. They
suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He's running away!). Police Officer
Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant
was approximately 70 meters away from the station when Police Officer Abagan recaptured him.[12] He
was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not
guilty."

After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under
Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape
Law of 1997, and was accordingly, sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief,
appellant assigns the following errors:
I

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE
PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.

II

THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF

THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellant's contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This
Court will not interfere with the judgment of the trial court in determining the credibility of witnesses
unless there appears in the record some fact or circumstance of weight and influence which has been
overlooked or the significance of which has been misinterpreted.[13] Well-entrenched is the rule that the
findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent
reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being
that the former is in a better and unique position of hearing first hand the witnesses and observing their
deportment, conduct and attitude.[14] Absent any showing that the trial judge overlooked,
misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the
case, the trial judge's assessment of credibility deserves the appellate court's highest respect.[15] Where
there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their
testimonies are entitled to full faith and credit.[16]

The weight of the prosecution's evidence must be appreciated in light of the well-settled rule which
provides that an accused can be convicted even if no eyewitness is available, as long as sufficient
circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused
committed the crime.[17]

Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised,
were found on the victim's abdomen and back, causing a portion of her small intestines to spill out of her
body.[18] Rigor mortis of the vicitm's body was complete when Dr. Bartolo examined the victim at 9:00
a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to
twelve (12) hours prior to the completion of rigor mortis.[19] In other words, the estimated time of death
was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within
which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses.

It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C.
Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,[20]
Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr.
Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual
intercourse with the victim.[21] In addition, it is apparent from the pictures submitted by the prosecution
that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm
indicating resistance to the appellant's assault on her virtue.[22]
Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen
from the vagina of the victim was identical the semen to be that of appellant's gene type.

DNA is a molecule that encodes the genetic information in all living organisms.[23] A person's DNA is
the same in each cell and it does not change throughout a person's lifetime; the DNA in a person's blood
is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine,
skin tissue, and vaginal and rectal cells.[24] Most importantly, because of polymorphisms in human
genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.
[25]

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect
to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For
purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and
exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime
committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and
ensuring the proper administration of justice in every case.

DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion
in the same principle as fingerprints are used.[26] Incidents involving sexual assault would leave
biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victim's body
or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be
transferred to the victim's body during the assault.[27] Forensic DNA evidence is helpful in proving that
there was physical contact between an assailant and a victim. If properly collected from the victim, crime
scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the
crime.[28]

The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used
the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis.
With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours.
Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably
amplify small samples using the PCR method.

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following
factors: 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.[29]

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an
expert witness on DNA print or identification techniques.[30] Based on Dr. de Ungria's testimony, it was
determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of
examination.[31] The blood sample taken from the appellant showed that he was of the following gene
types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken
from the victim's vaginal canal.[32] Verily, a DNA match exists between the semen found in the victim
and the blood sample given by the appellant in open court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine
criminal justice system, so we must be cautious as we traverse these relatively uncharted waters.
Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other
jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow,[33] it was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed
greater discretion over which testimony they would allow at trial, including the introduction of new kinds
of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in
its existence or non-existence.[34] Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is
relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and
molecular biology.

Independently of the physical evidence of appellant's semen found in the victim's vaginal canal, the trial
court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond
reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the
victim, Kathylyn Uba; (2) In June 1998, appellant's wife left the house because of their frequent quarrels;
(3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early
morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m.
of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty
white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at
12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6)
Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan
saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn
Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a
rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her
body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and
shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victim's vagina
(Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be
positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the
appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently
apprehended, such flight being indicative of guilt.[35]

Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which
leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of
the crime. To determine whether there is sufficient circumstantial evidence, three requisites must
concur: (1) there is more than one circumstance; (2) facts on 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.[36]

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him
as well as the DNA tests were conducted in violation of his right to remain silent as well as his right
against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.

This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial
compulsion.[37] The right against self- incrimination is simply against the legal process of extracting
from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be
excluded is not an incrimination but as part of object evidence.

We ruled in People v. Rondero[38] that although accused-appellant insisted that hair samples were
forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination,
the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial
compulsion or any evidence communicative in nature acquired from the accused under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA,
as there is no testimonial compulsion involved. Under People v. Gallarde,[39] where immediately after
the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled
that there was no violation of the right against self-incrimination. The accused may be compelled to
submit to a physical examination to determine his involvement in an offense of which he is accused.

It must also be noted that appellant in this case submitted himself for blood sampling which was
conducted in open court on March 30, 2000, in the presence of counsel.

Appellant further argues that the DNA tests conducted by the prosecution against him are
unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto
law.

This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing
involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court.
Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual
determination of the probative weight of the evidence presented.

Appellant's twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied
shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang's house during the time
when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not
demonstrate with clear and convincing evidence an impossibility to be in two places at the same time,
especially in this case where the two places are located in the same barangay.[40] He lives within a one
hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach
one house from the other. This fact severely weakens his alibi.

As to the second assignment of error, appellant asserts that the court a quo committed reversible error in
convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt.

Appellant's assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere
conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum
of probative value," suggesting that such evidentiary relevance must contain a "plus value."[41] This may
be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being
exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant
but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of
such evidence against the likely harm that would result from its admission.

The judgment in a criminal case can be upheld only when there is relevant evidence from which the court
can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable
doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of
certainty that convinces and directs the understanding and satisfies the reason and judgment of those
who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.[42] This requires
that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the
whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.[43]
In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of
moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond
reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.
[44]

Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the
victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.[45] She witnessed the
appellant running down the stairs of Isabel's house and proceeding to the back of the same house.[46]
She also testified that a few days before the victim was raped and killed, the latter revealed to her that
"Joel Yatar attempted to rape her after she came from the school."[47] The victim told Judilyn about the
incident or attempt of the appellant to rape her five days before her naked and violated body was found
dead in her grandmother's house on June 25, 1998.[48] In addition, Judilyn also testified that when her
auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to
kill our family."[49] According to Judilyn, who was personally present during an argument between her
aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you
leave me, I will kill all your family and your relatives x x x."[50] These statements were not contradicted
by appellant.

Thus, appellant's motive to sexually assault and kill the victim was evident in the instant case. It is a rule
in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts
or statements of the accused before or immediately after the commission of the offense, deeds or words
that may express it or from which his motive or reason for committing it may be inferred.[51]

Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex
crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the
occasion thereof, in order to conceal his lustful deed, permanently sealed the victim's lips by stabbing her
repeatedly, thereby causing her untimely demise.

The following are the elements constitutive of rape with homicide: (1) the appellant had carnal
knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or
intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or
intimidation, appellant killed the woman.[52] However, in rape committed by close kin, such as the
victim's father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that
actual force or intimidation be employed.[53] Moral influence or ascendancy takes the place of violence
and intimidation.[54] The fact that the victim's hymen is intact does not negate a finding that rape was
committed as mere entry by the penis into the lips of the female genital organ, even without rupture or
laceration of the hymen, suffices for conviction of rape.[55] The strength and dilatability of the hymen
are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of
hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.[56]

In the case at bar, appellant is the husband of the victim's aunt. He is seven years older than the victim
Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law,
together with the victim and his wife. After the separation, appellant moved to the house of his parents,
approximately one hundred (100) meters from his mother-in-law's house. Being a relative by affinity
within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the
victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the
occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their
position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless
submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be
lawfully imposed in the case at bar.

As to damages, civil indemnity ex delicto of P100,000.00,[57] actual damages incurred by the family of
the victim that have been proved at the trial amounting to P93,190.00,[58] and moral damages of
P75,000.00[59] should be awarded in the light of prevailing law and jurisprudence. Exemplary damages
cannot be awarded as part of the civil liability since the crime was not committed with one or more
aggravating circumstances.[60]

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25
in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special
complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be
ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of
P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary
damages is DELETED.

Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended
by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the
Philippines for the possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.

Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Corona, Carpio Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Davide, Jr., C.J., and Puno, J., on official leave.

[1] Decision penned by Judge Milnar T. Lammawin on 27 August 2001.

[2] Original Records, p. 1.

[3] TSN, Direct Examination of Isabel Dawang, 30 September 1998, pp. 296-306.

[4] Id. at 317-319.

[5] TSN, Direct Examination of Beverly Deneng, 27 January 1999, pp. 531-540, 568-576. See also Exhibit
"W", Joint Affidavit of Anita Wania and Beverly Deneng executed on 3 July 1998, Original Records, p. 17.

[6] TSN, Cross Examination of Judilyn Pas-a, 30 September 1998, p. 377.

[7] Id. at 275-324. See also TSN, supra note 7 at 356-358.

[8] Id. at 314-323, 339-344.

[9] Id. at 267-270.

[10] Id. at 271-273.

[11] TSN, Direct Examination of SPO4 Melchor Faniswa, 9 September 1998, pp. 9-20. See also TSN,
Cross-Examination of SPO4 Melchor Faniswa, 9 September 1998, pp. 21-38.

[12] TSN, Cross-Examination and Re-Direct Examination of Police Officer Orlando Manuel, 9 September
1998, pp. 76-84. See also TSN, Direct and Cross-Examination of SPO1 Felix Turingan, 9 September 1998,
pp. 88-96.

[13] People v. Remudo, G.R. No. 127905, 30 August 2001, 364 SCRA 71.

[14] People v. Santos, G.R. No. 137993, 11 April 2002, 380 SCRA 608, 613.

[15] Id.

[16] People v. Payot, G.R. No. 119352, 8 June 1999, 308 SCRA 43, 62-63.

[17] People v. Cabug, G.R. No. 123149, 27 March 2001, 355 SCRA 391.

[18] See TSN, Direct Examination of Dr. Pej Evan C. Bartolo, 16 September 1998, pp. 106-157.

[19] TSN, Direct Examination of Dr. Rey Evan C. Bartolo, 16 September 1998, pp. 116-118.

[20] See TSN, Direct Examination of Dr. Pej Evan C. Bartolo, 16 September 1998, pp. 266-304.

[21] Id. at 266-304.

[22] See Exhibits "F-1", "G", "H", Original Records, pp. 6A-6C.

[23] Peter Sudbery, Human Molecular Genetics (2nd ed. 2002); 1999-2000 Pocket Part, p. 51.

[24] K.M. Turman, "Understanding DNA Evidence: A Guide for Victim Service Providers," OVC Bulletin
(U.S. Department of Justice, April 2001), p. 1.

[25] 84 ALR4th 313.

[26] Id.

[27] Id.

[28] Id. at 1-2.

[29] People v. Vallejo, G.R. No. 144656, 9 May 2002, 382 SCRA 192, 209.

[30] Dr. de Ungria is Head of the Genetic Engineering Laboratory, University of the Philippines,
Assistant Supervisor of the DNA Analysis Laboratory, University of the Philippines, and Assistant
Professor at the Ateneo de Manila University. In December 1999, Dr. de Ungria was a 1999 Jose Rizal
Young Awardee for the Professional Sector for her participation in the identification of the body of a
victim of the Paco fire. She commenced working as Assistant Supervisor of the U.P. DNA Laboratory in
February 1999 after returning from Sydney, Australia. Prior to February 1999, she worked as a DNA
Analyst. An alumna of the Philippine Science High School, Dr. de Ungria obtained a Bachelor of Science
(Honours) degree in Biology at Macquarie University, and a Doctor of Philosophy degree in Molecular
Microbiology at the University of New South Wales, in Australia. She is a member of the Philippine
Society of Microbiology and an associate member of the National Research Council of the Philippines.
See TSN, Direct Examination of Dr. Ma. Corazon Abogado de Ungria, 18 February 2000, pp. 739-743.

[31] TSN, 18 February 2000, pp. 789-790. See Exhibits "XX" and "YY-1", Original Records, p. 144, 149-
150. See also TSN, Continuation of Direct Examination of Dr. de Ungria, 18 April 2000, p. 842.

[32] TSN, 18 April 2000, p. 842. See also Exhibits "Z", "ZZ" and "ZZ-1", Original Records, pp. 152-154.

[33] 509 U.S. 579 (1993); 125 L.Ed. 2d 469.

[34] Rules of Court, Rule 128, sec. 4.

[35] Decision, pp. 46-48. See Rollo, pp. 300-302.

[36] Rules of Court, Rule 133, sec. 4.

[37] Alih v. Castro, G.R. No. 69401, 23 June 1987, 151 SCRA 279.

[38] G.R. No. 125687, 9 December 1999, 320 SCRA 383.

[39] G.R. No. 133025, 27 February 2000, 325 SCRA 835.

[40] See People v. Manguera, G.R. No. 139906, 5 March 2003.

[41] I Wigmore on Evidence §28, at 409-410.

[42] R.J. Francisco, Evidence (3d Ed., 1996), p. 577, citing Shaw, C.J., Commonwealth v. Webster, Benis'
Rep. Of the Trial, 469; Com. V. Costley, 118 Mass. 1.

[43] Words and Phrases, "Moral Certainty", citing Commonwealth v. Goodwin, 80 Mass. (14 Gray) 55,
57.

[44] People v. Verzo, G.R. No. L-22517, 26 December 1967, 21 SCRA 1403.

[45] TSN, Cross Examination of Judilyn Pas-a, 30 September 1998, pp. 376-380.

[46] Id., p. 324.

[47] Id. at 332. See Exhibits "Q," "Q-1" and "Q-2," Original Records, pp. 13-14.

[48] Id. at 334.

[49] Id. at 333.

[50] Id. at 336-338.

[ 1]
[51] Barrioquinto v. Fernandez, 82 Phil. 642, 649 (1949).

[52] Articles 266-A and 266-B, Revised Penal Code.

[53] People v. Remudo, supra.

[54] People v. Serrano, G.R. No. 137480, 28 February 2001, 353 SCRA 161, 172.

[55] People v. Añonuevo, G.R. No. 137843, 12 October 2001, 367 SCRA 249.

[56] People v. Llanita, G.R. No. 134101, 5 September 2001, 364 SCRA 519.

[57] People v. Manguera, supra; People v. Seranilla, G.R. Nos. 113022-24, 15 December 2000, 348 SCRA
227; People v. Payot, G.R. No. 119352, 8 June 1999, 308 SCRA 43.

[58] Arts. 2199 and 2202, Civil Code, Art. 2199, states that "[e]xcept as provided by law or by stipulation,
one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved." Art. 2202 provides that "[i]n crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could have reasonably been foreseen by the
defendant."

[59] People v. Magallanes, G.R. No. 136299, 29 August 2003.

[60] Article 2230, Civil Code.

Lopez v. Heesen

365 P.2d 448 (1961)

69 N.M. 206

Jesse G. LOPEZ, Plaintiff-Appellant, v. Robert HEESEN and Sears, Roebuck and Company,
a corporation, Defendants-Appellees.

No. 6760.

Supreme Court of New Mexico.

August 22, 1961.

Rehearing Denied October 31, 1961.

*449 Smith, Kiker & Kitts, and Ramon Lopez, Albuquerque, for appellant.

Sutin & Jones, Albuquerque, David R. Hardy, Kansas City, Mo., for appellees.

CHAVEZ, Justice.

Appellant, Jesse G. Lopez, originally filed suit against appellee, Robert Heesen, alleging
that on October 15, 1958, Heesen unlawfully, violently, maliciously and feloniously
assaulted and shot appellant with a shotgun, thereby inflicting dangerous and painful
wounds and injuries to appellant, causing him great bodily and mental pain and anguish,
all to his damage in the total sum of $80,000, which included $25,000 punitive damages.

Appellee, Heesen, answered denying the allegations of the complaint and thereafter
appellant filed a demand for jury trial. By stipulation of appellant and appellee, Heesen,
appellee, Sears, Roebuck and Company was joined as a party-defendant. Appellee, Sears,
Roebuck and Company, will hereinafter be referred to as appellee "Sears." Thereafter two
amended complaints followed before the third amended complaint was filed, alleging that
appellee, Sears, was engaged in the design and manufacture of hunting firearms, including
the Higgins Model 51, Cal. 30.06 rifle, and was also engaged in the selling of firearms in
Albuquerque.

It was also alleged that on October 14, 1958, appellee, Sears, sold to appellee, Heesen, one
of said Higgins Model 51 hunting rifles; that said rifle was negligently designed or
manufactured by appellee, Sears, in that the safety mechanism moved readily and in a
dangerous manner from a "safe" to a "fire" position. In addition, it was alleged that the rifle
in this dangerous condition known to appellee, Sears, was sold to appellee, Heesen, with
the knowledge that it would be used for hunting purposes and that appellee, Sears,
negligently failed to warn appellee, Heesen, of the dangerous and defective condition of the
rifle.

The complaint further alleged that on the afternoon of October 15, 1958, in Colfax County,
New Mexico, appellee, Heesen, negligently permitted the rifle to discharge while hunting
and that as a proximate result of the joint and concurrent negligence of both appellees,
appellant sustained a severe and disabling wound and injury to his chest, requiring hospital
and surgical care. Appellant demanded damages in the amount of $55,000 against both
appellees, jointly and severally.

Appellee, Heesen, answered denying the allegations of the third amended complaint.
Appellee, Sears, also answered denying the allegations and raising additional affirmative
defenses, to-wit: That appellant's injuries were caused by an unavoidable accident; that the
negligence of appellee, Heesen, was the sole cause thereof; that the rifle involved was of a
recognized quality and of proper design and functioned properly by all commercial
sporting arms standards when used with reasonable care; that rifles of this type had been
manufactured by the millions and used by hunters generally and by the government of the
United States and foreign countries; that the safety mechanism and its qualities were
patent and obvious, and had been seen and inspected by Heesen prior to the accident; that
Heesen knew of the tendency of the safety mechanism to come off safety to "fire" position
while hunting in heavy brush and climbing up and down mountain *450 terrain when
pressure was applied to the safety mechanism; that appellee, Sears, had no duty to warn
appellee, Heesen, of the method of operation and use of the safety mechanism; and that it
could not have been foreseen that appellee, Heesen, would continue to hunt in heavy brush
and mountainous terrain knowing that the safety mechanism would come off safety
without taking proper precautions to handle the rifle in a reasonable manner.
The jury returned its verdict finding the issues for both appellees and against appellant.
Judgment was entered for appellees and this appeal followed. Appellant abandoned any
contention that the verdict in favor of Heesen was erroneous and this appeal concerns only
appellee, Sears.

The facts are substantially as follows. In the early afternoon of October 14, 1958, appellee,
Heesen, an Air Force officer, purchased a J.C. Higgins Model 51, 30.06 rifle from the store
of appellee, Sears. Said rifle has a bolt action known more particularly as a "Mauser type
action" with which Heesen was familar. Heesen, although experienced in hunting, was not
familiar with the Higgins Model 51 and had never used such a rifle. The safety mechanism
on the rifle is what is known as a "Class 1" safety, meaning that it interrupts the firing pin
directly. The safety lever is mounted on the left side of the gun to the rear of the bolt
assembly. It is a two-position safety with the action locked when the safety lever is in a
raised position. To release the safety, you push the safety lever to the left and down to a
horizontal position and the gun is then ready to fire.

Heesen first telephoned appellee's store about obtaining a Higgins rifle which they
advertised. Later he went to appellee's store and purchased the rifle. At the time of the
purchase Heesen was given an instruction pamphlet which he read. Said pamphlet
explained the composition of the rifle and gave operating instructions, including the
method to be pursued to make the gun "safe," i.e., how the gun is put in a safety position
and how it may be released and have the gun ready to fire. It appears that Heesen first
talked to a salesman, John C. Villella, over the telephone and requested that the rifle be put
aside for him. However, another salesman, Roger Perkins made the actual transfer of the
rifle to Heesen. Perkins' whereabouts is unknown and nothing is known as to Perkins'
conversation with Heesen. Villella did not give Heesen any instructions as to the use of the
safety mechanism. There was a telescopic sight advertised for sale for use with this rifle but
Heesen did not care for the sight and did not purchase it.

Immediately after the purchase of the rifle, Heesen left for a deer hunting trip in an area
known as Ute Park near the town of Eagle Nest in Colfax County. He arrived at Ute Park
that night and began hunting the next morning on October 15, 1958. Heesen hunted
without success and had seen no game up until the time his gun discharged and appellant
was wounded shortly after 3:00 P.M.

When Heesen commenced hunting that morning he placed a live cartridge in the chamber
and placed the gun on safety position. He traveled a good deal during the hours before the
shooting and on one or two occasions he discovered the gun off safety position. This was
when he had come down a long hill covered with rocks and boulders and he assumed that
he had hit it against a rock or something. Thereafter Heesen checked the safety position on
frequent occasions. Heesen carried the gun on his right shoulder with the sling at port arms
or ready position, with his left hand on the forearm of the gun and his right hand on the
stock, and by the forearm of the gun with his right hand at the "balance" of the rifle. In each
of these positions the safety lever was toward Heesen's body or right leg. Heesen changed
the position in which he carried the rifle during the course of his walking up and down
mountain slopes. He also carried it in a different position in going through brush and in
climbing or stepping upon rocks. Although the gun moved from "safe" to "fire" position at
least twice during the hours before *451 the shooting, Heesen was not aware of this
occurrence. Shortly before the shooting, Heesen had been sitting on a knoll for about
twenty minutes checking the wind and watching for deer. While sitting on the knoll he
checked or observed the safety lever on the rifle several times and it was on safety position.
At a time not more than ten minutes before the shooting he left the knoll and started down
a draw which ran in a southerly or southwesterly direction. Heesen was not sure whether
he checked the safety lever after he left the knoll and he was carrying the gun on his
shoulder by the sling as he proceeded down the draw toward the point where the gun
discharged.

At about this time, appellant, Jesse G. Lopez, was sitting next to a tree about fifty yards
away from the point where Heesen's gun subsequently discharged. Appellant in the
company of two hunting companions, Bennie Aragon and Ramon Barela, had gone from
Albuquerque to Ute Park on the afternoon of October 14, 1958, and after spending the
night in the area, commenced hunting on the morning of October 15th, the first day of deer
season. After hunting all morning and again in the early afternoon, the party stopped to
rest at the location where appellant was shot. It was then about 3:00 P.M. and appellant,
dressed in bright hunting clothes, was sitting about twenty feet away from his two
companions and scanning the area for game. After sitting there about four or five minutes,
appellant observed an object to his right which was moving but which he could not identify.
This was shortly before the shooting.

As appellee, Heesen, proceeded down the draw after leaving the knoll, he heard a "rustle"
and saw a deer go between some trees to the left of his line of travel about 50 to 100 yards
away. The deer, when observed, was in a direction about 80 or 90 degrees to the left of
where appellant was sitting and Heesen did not observe appellant or his companions
before the shooting. At about this time Heesen removed the rifle from the sling on his
shoulder and held it by his right hand at or near the balance position of the weapon. He
then came to a dead log in his path which was about eight or ten inches in diameter and
was lying horizontally a foot or less off the ground with several dead limbs sticking upward
from it. One of these limbs was a dead sapling sticking up about eighteen inches above the
log and had a "fork" shaped like a thumb and forefinger extended. Heesen wanted to cross
the log to see the deer better, and as he stepped across the log his left foot caught on a little
limb sticking out and caused him to stumble. His left foot went down hard on the ground
on one side of the log and his right foot slipped on the grass. This brought the gun down
and the gun discharged, the bullet striking appellant. Heesen testified that he had his hand
at least six inches away from the trigger when the gun discharged. Immediately after the
gun discharged he observed that the gun was on "fire" position.

Appellant was sitting on ground higher than Heesen at the time the gun discharged and
subsequent investigation showed that the bullet had gone uphill, hit a dead tree and
ricocheted several degrees to the left, and had thereafter struck some seedlings before
hitting appellant in the chest. The bullet traveled approximately fifty yards altogether.
Heesen went quickly to the spot where appellant was sitting, observed the seriousness of
his condition, and Heesen and Lopez' companions made immediate arrangements to care
for appellant. Heesen obtained medical aid.

There was testimony at the trial that when Heesen was going to the place of the accident
with Dr. E.L. Lindsley, he told Dr. Lindsley that the gun discharged as he was moving it
from "fire" position to the "safe" position.

Under point I, appellant contends that the trial court committed error in permitting
testimony as to the general reputation of other firearms companies who use the same
modified leaf safety device as the Higgins Model 51. A witness for appellee, Sears, Paul A.
La Violette, Jr., qualified as an expert in gun designing and testified *452 that the following
companies had an excellent reputation in the small arms field: Fabrique Nationale of
Belgium, Marlin Firearms Company, Weatherby Corporation, Colt Firearms Company, and
Jefferson Corporation. Objection was made to this testimony on the ground that it was
wholly immaterial and irrelevant to any issue in the case.

Appellant, in the third amended complaint, alleged that the Higgins Model 51 rifle was in a
dangerous and defective condition due to its negligent manufacture, design, assembly or
maintenance, in that the safety mechanism thereof moved readily and in a dangerous
manner from "safe" to "fire" position. This is an allegation of an ultimate issue of fact which
the jury had to decide. Here is an issue, the proper understanding of which by a jury
composed of six men and six ladies, requires specialized knowledge or experience and
cannot be determined independently merely from deductions made and inferences drawn
on the basis of ordinary knowledge. The jury was instructed that expert testimony is
intended only to assist them in coming to a correct conclusion upon facts which are of a
technical nature, but that the opinion of experts was not binding upon them and the jury
must determine the weight to be given to such testimony.

Appellant introduced evidence tending to prove that the safety device on the Higgins Model
51 rifle is easy to knock off safety, making the rifle dangerous. Appellant's witness, Frank
Doyle, over appellee's, Sears', objection, expressed the opinion that the safety device,
without the telescopic sight, is not a safe piece, in that the projection is too long and it is too
prone to be knocked from "safe" to "fire" position. There is also testimony of certain tests
made with the Higgins Model 51 and the witness, Ira Kessler, expressed the opinion that
the Higgins Model 51 was unsafe without the telescopic sight. Another witness, Robert
Allen, testified as to the manner in which the safety lever of the Higgins Model 51 moved
from "safe" to "fire" position without his knowledge.

Appellee, Sears, introduced testimony of witnesses who were either experts in the small
arms field or experts in gun designing. The witness, Paul A. La Violette, Jr., testified that he
is a gun designer employed by High Standard Manufacturing Company who manufacture
the Higgins Model 51 for Sears. He qualified as an expert gun designer with many years'
experience with other rifle manufacturers and in factories designing and building weapons
of the small arms design. La Violette has two gun patents pending. La Violette testified that
the safety device on the Higgins Model 51 is supplied to High Standard Manufacturing
Company by Fabrique Nationale of Belgium. He also testified extensively as to the
advantages of the safety device of the Higgins Model 51 and stated that six different makes
of guns have the same modified leaf safety device as does the Higgins Model 51. The
manufacturers of these guns are F.N. Mauser, Colt, Marlin, Nato and Weatherby. The
evidence also shows that since 1951, 75,572 Higgins Model 51 rifles with the modified leaf
safety device have been sold by High Standard Manufacturing Company to appellee, Sears.
High Standard Manufacturing Company has never been sued by reason of the design of the
Higgins Model 51 rifle. There is also opinion evidence that the Higgins Model 51 rifle is safe
by all commercial sporting goods standards.

Appellant appears to concede that the number of rifles manufactured with the modified
leaf safety device, and the fact that other companies manufacture guns with the same
design, is relevant as tending to show that the design is proper. Appellant also seems to
concede that the reputation of Fabrique Nationale of Belgium may be relevant to the issue.

Subsequent to the testimony as to the reputation of the various firearms companies who
use a similar safety device as the Higgins Model 51, the witness, Paul A. La Violette, Jr.,
testified without objection that the Higgins Model 51 rifle is safe by all commercial sporting
goods standards, and that the design of the safety device of the Higgins *453 Model 51 was
not negligent or defective. He also testified, without objection, that the safety device on the
Higgins Model 51 rifle is excellent for hunting and fulfills the requirements of a good
designer. The witness, Thomas Raymond Robinson, Jr., testified that in his opinion the
Higgins Model 51 is good and practical in the field for a prudent hunter, and is suitable for
hunting. Ira L. Kessler, an expert witness called by defendant, Heesen, testified that the
Marlin Firearms Company has a fair reputation, and that the Colt Firearms Company has
an excellent reputation.

On an issue such as we have here we believe the applicable rule to be as stated in Wigmore
on Evidence, 3d Ed., Vol. II, § 461, p. 489, as follows:

"(1) The conduct of others evidences the tendency of the thing in question; and such
conduct e.g. in using chains on a hill, felt shoes in a powder-factory, railings around a
machine, or in not using them is receivable with other evidence showing the tendency of
the thing as dangerous, defective, or the reverse. But this is only evidence. The jury may
find from other evidence that the thing was in fact dangerous, defective, or the reverse, and
the maintenance was or was not negligence, in spite of the above evidence. * * *"

The conduct of others is proper evidence for a jury to consider in determining whether the
tendency of the thing is dangerous, defective, or the reverse. Chicago Great Western Ry. Co.
v. McDonough, 8 Cir., 161 F. 657; Wigmore on Evidence, 3d Ed., Vol. II, § 461, p. 495.

Under our Rule, § 21-1-1(43) (a), which is the same as the Federal Rule, the rule which
favors the reception of the evidence governs, the basis being that any evidence which
throws light on the question in issue should be admitted, leaving it to the trial court to hold
the hearing within reasonable bounds. Mourikas v. Vardianos, 4 Cir., 169 F.2d 53;
Lawrence v. Nutter, 4 Cir., 203 F.2d 540.

Circuit Judge Bratton, in a specially concurring opinion in United States v. Bowman, 10

Cir., 73 F.2d 716, 720, in stating the rule, quoted from United States Smelting Co. v. Parry,
8 Cir., 166 F. 407, as follows:

"It is true that in trials by jury it is their province to determine the ultimate facts, and that
the general rule is that witnesses are permitted to testify to the primary facts within their
knowledge, but not to their opinions. And it is also true that this has at times led to the
statement that witnesses may not give their opinions upon the ultimate facts which the jury
are to decide, because that would supplant their judgment and usurp their province. But
such a statement is not to be taken literally. It but reflects the general rule, which is subject
to important qualifications, and never was intended to close any reasonable avenue to the
truth in the investigation of questions of fact. Besides, the tendency of modern decisions is
not only to give as wide a scope as is reasonably possible to the investigation of such
questions, but also to accord to the trial judge a certain discretion in determining what
testimony has a tendency to establish the ultimate facts, and to disturb his decision
admitting testimony of that character only when it plainly appears that the testimony had
no legitimate bearing upon the questions at issue and was calculated to prejudice the minds
of the jurors. * * *"

Applying the above principles we hold that the testimony as to the reputation of Fabrique
Nationale, who manufacture the safety device on the Higgins Model 51, and the reputation
of Marlin Firearms Company, Weatherby Corporation, Colt Firearms Company and
Jefferson Corporation, who manufacture rifles which have the same modified leaf safety
device as the Higgins Model 51, was relevant to the issue of whether the safety device on the
Higgins Model 51 was unsafe or safe, and *454 that the trial court did not abuse its
discretion in admitting this testimony.

Under point II appellant also contends that the trial court committed error in permitting
evidence to be introduced as to the poundage pressure required to move the safety levers of
various rifles from "safe" to "fire" position. There is no merit in this contention. Appellant's
witness, Frank Doyle, testified fully as to his experience with guns and particularly with the
Higgins Model 51 safety device, which he termed the dangerous feature of the safety
mechanism in that it was "so easy to knock off." Doyle's testimony was introduced under
appellant's contention that the Higgins Model 51 rifle was unsafe and thus the issue arose
as to the pressure required to move the safety lever from "safe" to "fire" position. Under the
circumstances it was proper for appellee, Sears, to show that the poundage pressure
required to move the safety lever on a Higgins Model 51 from "safe" to "fire" measured two-
and-one-half pounds, and also to show the poundage pressure required in rifles with
identical safety devices. The evidence discloses that the pound pressure required to move
the safety lever on other similar devices was sometimes a little less and sometimes more
than the Higgins Model 51.

Under point III appellant claims that the trial court erred in permitting the witnesses, La
Violette, Thomas Robinson and Edwards Brown, to give opinion evidence that the safety
mechanism on the Higgins Model 51 rifle was negligently or defectively designed. Objection
was made to this testimony on the ground that this was an opinion upon a subject which is
within the province of the jury to determine and that the question asked calls for an
opinion as to a question of law and fact.
This contention, we think, must be rejected. The testimony of these witnesses, all experts in
their field, was upon the ultimate issue of fact of whether the safety device on the Higgins
Model 51 was dangerous and defective or unsafe, and was properly the subject of expert
testimony. Opinion evidence on an ultimate issue of fact does not attempt or have the
power to usurp the functions of the jury, and this evidence could not usurp the jury's
function because the jury may still reject these opinions and accept some other view.
Opinion evidence offered by both parties in this case was not binding upon the jury and
they were so instructed. See Wigmore on Evidence, 3d Ed., Vol. VII, § 1920, p. 17; Hooper
v. General Motors Corp., 123 Utah 515, 260 P.2d 549.

In Millers' National Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93,
100, the court said:

"The insurance companies assert that McDonald was improperly permitted to invade and
usurp the province of the jury in that the sole issue was whether there was an explosion and
McDonald was allowed to testify that there was an explosion. The controlling rule as stated
by the United States Supreme Court is that where the matter under inquiry is properly the
subject of expert testimony, it is no objection that the opinion sought to be elicited is upon
the issue to be decided. That rule has been followed in this circuit and applied in two recent
decisions."

See also Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122; United
States Smelting Co. v. Parry, 8 Cir., 166 F. 407; Nelson v. Brames, 10 Cir., 1957, 241 F.2d
256; and Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038.

In 20 Am.Jur., Evidence, § 775, p. 647, the rule is stated as follows:

"* * * In such cases, witnesses possessing requisite training, skill, or knowledge,

denominated `experts,' may testify, not only to the facts, but to their opinions respecting
the facts, so far as necessary to enlighten the jury and to enable it to come to a right verdict.
* * * Issues of this kind are said to create a necessity for the admission in evidence of the
opinions or conclusions of witnesses who are *455 shown to be specially skilled or
experienced in the particular field in question."

Appellant's final objection to the opinion testimony is that the question asked of the
witnesses calls for an opinion as to a question of law and fact.

Many of the cases cited by appellant on this point are automobile accident cases which hold
that an expert or a non-expert witness cannot express an opinion that the defendant was
negligent. The reasoning behind these cases is that this is within the field of knowledge and
understanding of the jury and is not a matter requiring technical assistance of persons
having unusual knowledge of the subject by reason of skill, experience, or knowledge.

The parties agree that the ultimate issue of liability is for the jury to determine and that a
witness cannot express an opinion on a matter of law, as distinguished from an ultimate
fact. The ultimate issue in this case was whether the safety mechanism on the Higgins
Model 51 rifle was in a dangerous and defective condition due to its negligent design, in
that it moved readily and in a dangerous manner from "safe" to "fire" position.

Appellant's witnesses testified at great length in what respect they considered the safety
mechanism "dangerous," "unsafe," and "defective," and expressed the opinion that the
safety mechanism was not a safe piece and was unsafe without the telescopic sight.
Appellees' expert witnesses likewise testified in great detail as to the safety mechanism and
they were of the opinion that the safety mechanism on the Higgins Model 51 rifle was safe
by all commercial sporting goods standards, was suitable for hunting, and was not
negligently or defectively designed. Thus the jury was free to adopt either view and then fix
the liability.

The word "negligence" is sometimes used in a broad sense and sometimes in a narrow
sense. In the broad sense it includes the elements of liability. In the narrow sense the
element of liability is excluded. Pittsburgh, C., C. & St. L. Ry. Co. v. Nichols, 78 Ind. App.
361, 130 N.E. 546, 553.

"* * * An allegation of negligence as applied to the conduct of a party is not a mere

conclusion of law, unless made so by the law, but the statement of an ultimate pleadable
and provable fact. * * *"

Peavy v. Hardin, Tex.Civ.App. 1926, 288 S.W. 588, 589. See also Gower v. Lamb, Mo. App.
1955, 282 S.W.2d 867; Ege v. Born, 212 Iowa 1138, 236 N.W. 75; Cohen v. Swiller, 1959, 17
Misc.2d 921, 186 N.Y.S.2d 844; Louis v. Smith-McCormick Const. Co., 1917, 80 W. Va. 159,
92 S.E. 249; and Hooper v. General Motors Corp., 123 Utah 515, 260 P.2d 549.

Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, follows the rule that an expert
witness can express an opinion on an ultimate issue of fact, but cannot testify as to the
ultimate issue of liability.

There is much confusion among the decisions due to the language used by the courts in
explaining why opinion testimony should be excluded. Some courts say that the opinion
would "usurp the functions of the jury." Other courts say that the opinion should not be
received because "that is the question which the jury must decide." If we are to add to this,
the additional confusion which exists in the decisions as to whether negligence is a
question of law or fact, or is a mixed question of law and fact, we would tend to create more
confusion and add to the fine distinctions and limitations.

Opinion evidence is admissible on the basis that it will aid the jury to understand the
problem and lead them to the truth on the ultimate facts, and opinions may be disregarded
by the jury in whole or in part. It is left to the jury to decide the issue. See Seal v. Blackburn
Tank Truck Service, 64 N.M. 282, 327 P.2d 797; and Hooper v. General Motors Corp.,
supra.

From a careful consideration of the record, we have come to the conclusion that when we
consider all of the testimony *456 bearing upon the question of whether the rifle was
dangerous and defective due to its negligent design, that when appellee used the term
"negligent or defective," he was using the word "negligent" in a narrow sense and as to an
ultimate and provable fact. This excluded the element of liability. It was for the jury to fix
the ultimate liability of either party. All of the facts went to the jury and it is our view that
under all of the facts and circumstances of this case, the expert opinions expressed were
not improperly admitted.

The trial court did not abuse its discretion in permitting the experts to express their
opinion. Bunton v. Hull, 51 N.M. 5, 177 P.2d 168; State v. Padilla, 1959, 66 N.M. 289, 347
P.2d 312; and Wells Truckways v. Cebrian, 1954, 122 Cal. App. 2d 666, 265 P.2d 557.

Finding no error in the record, the judgment of the district court is affirmed. It is so
ordered.

COMPTON, C.J., and CARMODY, J., concur.

MOISE and NOBLE, JJ., not participating.

State v. Ball

339 S.W.2d 783 (1960)

STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.

No. 47575.

Supreme Court of Missouri, En Banc.

November 14, 1960.

Dewey S. Godfrey, St. Louis, for appellant.

*784 John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury has found William Arthur Ball guilty of robbery in the first degree; the jury also
found prior felony convictions and, therefore, a mandatory sentence of life imprisonment
was imposed. V.A.M.S. §§ 560.120, 560.135, 556.280.

The facts, briefly, as the jury could find them were that about 2:30 in the afternoon of
October 15, 1958, two colored men, one of them tall and the other short, entered the
Krekeler Jewelry Store at 1651 South 39th Street. The taller man spent ten or fifteen
minutes selecting and buying a cigarette lighter, he also talked about buying and looked at
watches and rings. As the taller man looked at jewelry and made his purchase the shorter
man looked in the cases and moved about in the store. Later in the day, about 5:50, as John
Krekeler was placing rings and watches in the safe preparatory to closing the store two men
entered, one of them tall and the other short, and Krekeler immediately recognized them as
the two men who had been in the store at 2:30, especially the taller man. He recognized the
taller man's narrow-brimmed, tall hat, brown jacket, gray stirt and particularly a scar on
his face. The shorter man started to walk behind the counter and as Krekeler intercepted
him he "drew a long barreled blue .38 and stuck it in my face." Both men followed Krekeler,
the shorter man with the gun in "his back," directing him to the watch repair department
and finally into the rest room in the rear of the store. He was told not to turn around and
stood facing the wall. He could hear jewelry being dumped into a bag and the "jingle" of the
cash register. The two men left Krekeler in the rest room and after hearing the door slam he
called the police. The two men had taken watches and rings of the stipulated value of
$4,455.21 and $140 in cash from the register. Krekeler identified the appellant from
pictures, and three weeks later, after his capture, in a hospital and upon the trial positively
identified him as the taller of the two holdup men.

In his motion for a new trial one of the claims is that there was no direct evidence of an
injury or any evidence to show that Krekeler was put "in fear of some immediate injury to
his person," one of the essential elements of robbery in the first degree. V.A.M.S. § 560.120.
Krekeler did not affirmatively testify that he was in fear but he could well apprehend injury
if he did not comply with their requests and in the circumstances the jury could reasonably
find "the fear" contemplated in the statute. 77 C.J.S. Robbery § 16, p. 459; State v.
Thompson, Mo., 299 S.W.2d 468, 474. The element of fear being a reasonable inference
from the evidence, the facts and circumstances support and warrant the finding of robbery
in the first degree. State v. Eckenfels, Mo., 316 S.W.2d 532.

Another of the appellant's sufficiently preserved claims in his motion for a new trial
(V.A.M.S. § 547.030; Supreme Court Rule 27.20, V.A.M.R.) has to do with his arrest and
the testimony of the two arresting officers. On November 4, 1958, about three weeks after
the robbery, police officers in a squad car saw Ball walking on Easton Avenue. The officers
stopped him, told him that they were officers and that he was under arrest. As officer
Powell faced and searched Ball officer Ballard "holstered" his gun and attempted "to cuff"
him. Ball shoved Powell over and ran down Easton Avenue, the officers ran after him,
Powell being closest. Powell yelled, "Halt Ball, you're under arrest," and fired one shot high
in the air but Ball continued running and Powell fired four more shots, two at his legs, one
at his buttocks, and he finally fell from a bullet in his back. It is claimed that this evidence
was not material or relevant, that it was too remote from the date of the robbery to indicate
a consciousness of guilt and since it was of course prejuducial *785 that he is entitled to a
new trial. But unexplained flight and resisting arrest even thirty days after the supposed
commission of a crime is a relevant circumstance (State v. Duncan, 336 Mo. 600, 611, 80
S.W.2d 147, 153), the remoteness of the flight goes to the weight of the evidence rather than
to its admissibility. 20 Am.Jur., Sec. 293, p. 274.
When Ball was finally subdued and arrested the officers took from his person and
impounded a brown felt hat, "a brownish" windbreaker type jacket, trousers, gray shirt and
shoesthese were exhibits one and two, Ball admitted that they belonged to him although his
evidence tended to show that he had purchased the jacket after October 15. In identifying
Ball, in addition to the scar on his face, Krekeler was impressed with and remembered the
brown ensemble, particularly the "tall brown hat." These items were of course relevant and
admissible in evidence and there is no objection to them. State v. Johnson, Mo., 286
S.W.2d 787, 792. The appellant objects, however, in his motion for a new trial that a police
officer was permitted to testify that $258.02 in currency and two pennies were taken from
his person. It is said that the introduction of these exhibits was "immaterial and irrelevant,
neither tended to prove nor disprove any of the issues involved in this case; that said
money as seized at the time of the arrest was neither identified by Mr. Krekeler nor by any
other person as the money which was allegedly stolen from the A. L. Krekeler & Sons
Jewelry Company on the 15th day of October, 1958; that said evidence was considered by
this jury to the prejudice of this defendant convincingly."

The circumstances in which this evidence was introduced were these: After the clothes
were identified and introduced as exhibits one and two the prosecuting attorney inquired of
officer Powell, "Did you also seize his personal effects?" Defense counsel immediately
objected to any testimony relating to personal effects found on the defendant "at the time."
The court overruled the objection and state's counsel inquired, "Well Officer, what personal
effects were seized?" Defense counsel, evidently knowing and anticipating, objected "to any
testimony relevant (sic) to any personal effects seized upon this Defendant at the time he
was arrested by reason of the fact it is immaterial and irrelevant and tends to neither prove
nor disprove any facts involved and ask that the jury be discharged and a mistrial be
declared." The court overruled the objection and the officer said, "Ball's personal effects
consisted of two hundred and fifty eight dollars and two cents in cash, with the
denominations of the bill(s), two one hundred dollar bills, a twentytwo twenties, a ten, a
five, three ones and two pennies. He had a ladies ring and a man's wristwatch. He had a
crusifixion along with a small pen knife and a black leather wallet. Maybe one or two other
personal articles." All of these items were then marked as exhibits, from three to nine,
offered in evidence and described by the officer, exhibit three being the bills and pennies
comprising the $258.02. According to the officer Mr. Krekeler was unable to identify any of
these articles or the money as having come from the jewelry store robbery and there is no
objection in the motion to any of the items other than the money and some of them were
obviously not prejudicial, for example the keys, a small penknife and wallet.
Unlike the roll of dimes in State v. Hampton, Mo., 275 S.W.2d 356, the testimony as to the
$258.02 was not offered in proof of the substantive fact of the crime. In that case the five-
dollar roll of dimes wrapped in a roll of green paper was found on the defendant the same
day of the burglary and while the fact was a circumstance admissible in evidence it was held
to not constitute substantive evidence inconsistent with the hypothesis of the defendant's
innocence of burglary. In State v. Gerberding, Mo., 272 S.W.2d 230, there was no timely or
proper objection to the proof but $4,000 was taken in a robbery and *786 the appellant
had $920 in currency in his topcoat pocket when captured the day of the robbery. The
proof of the money here was evidently on the theory that Ball did not have or was not likely
to have such a sum of money on his person prior to the commission of the offense. 1
Wharton, Criminal Evidence, Sec. 204, p. 410. As to this the facts were that he had been out
of the penitentiary about eight months and the inference the state would draw is that he
had no visible means of support and no employment and could not possibly have $258.02
except from robberies. Of course, there was no such proof and Ball claimed that he had
worked intermittently for a custodian or janitor of an apartment house and that he had
won the $258.02 in a series of crap games at a named place. Not only was Krekeler unable
to identify the money or any of the items on Ball's person as having come from the jewelry
store so that in fact they were not admissible in evidence (annotation 3 A.L.R. 1213), the
charge here was that Ball and his accomplice took jewelry of the value of $4,455.21 and
$140 in cash from the cash register. There was no proof as to the denomination of the
money in the cash register, it was simply a total of $140. Here nineteen days had elapsed,
there was no proof that Ball had suddenly come into possession of the $258.02 (annotation
123 A.L.R. 119) and in all these circumstances "The mere possession of a quantity of money
is in itself no indication that the possessor was the taker of money charged as taken,
because in general all money of the same denomination and material is alike, and the
hypothesis that the money found is the same as the money taken is too forced and
extraordinary to be receivable." 1 Wigmore, Evidence, Sec. 154, p. 601. In the absence of
proof or of a fair inference from the record that the money in Ball's possession at the time
of his arrest came from or had some connection with the robbery and in the absence of a
plain showing of his impecuniousness before the robbery and his sudden affluence (State v.
Garrett, 285 Mo. 279, 226 S.W. 4), the evidence was not in fact relevant and in the
circumstances was obviously prejudicial for if it did not tend to prove the offense for which
the appellant was on trial the jury may have inferred that he was guilty of another robbery.
State v. Bray, Mo. App., 278 S.W.2d 49; People v. Orloff, 65 Cal. App. 2d 614, 620-621, 151
P.2d 288; annotation 123 A.L.R. loc. cit. 132-134 and compare the facts and circumstances
in State v. Garrett, supra. The admission of the evidence in the circumstances of this record
infringed the right to a fair trial and for that reason the judgment is reversed and the cause
remanded.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en banc.

WESTHUES, EAGER, STORCKMAN and HOLLINGSWORTH, JJ., concur.

HYDE, C. J., and LEEDY and DALTON, JJ., dissent.

 DIVISION

[ GR No. 173474, Aug 29, 2012 ]

PEOPLE v. REYNALDO BELOCURA Y PEREZ

DECISION
G.R. No. 173474

BERSAMIN, J.:
The credibility of the evidence of the corpus delicti in a prosecution for illegal possession of marijuana
under Republic Act No. 6425, as amended, depends on the integrity of the chain of custody of the
marijuana from the time of its seizure until the time of its presentation as evidence in court. Short of
that, the accused is entitled to an acquittal because the State fails to establish the guilt of the accused
beyond reasonable doubt.

The Case

Reynaldo Belocura y Perez, a police officer charged with illegal possession of 1,789,823 grams of
marijuana in violation of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended by
Republic Act No. 7659, was found guilty of the crime charged on April 22, 2003 by the Regional Trial
[1]
Court (RTC) in Manila, and sentenced to suffer reclusion perpetua and to pay a fine of P500,000.00.

[2]
On appeal, the Court of Appeals (CA) affirmed the conviction on January 23, 2006. Hence, this final
appeal for his acquittal.

Antecedents

Belocura was charged on April 13, 1999 by the Office of the City Prosecutor of Manila with a violation of
Section 8 of Republic Act No. 6425, as amended by Republic Act No. 7659, in the Manila RTC through
the information:

That on or about March 22, 1999, in the City of Manila, Philippines, the said accused did then and
there willfully, unlawfully and knowingly have in his possession and under his custody and control
one (1) plastic bag colored red and white, with label "SHIN TON YON", containing the following:

One (1) newspaper leaf used to wrap one (1) brick of dried marijuana fruiting tops weighing 830.532
grams;

One (1) newspaper leaf used to wrap one (1) brick of dried marijuana fruiting tops weighing 959.291
grams.

With a total weight of 1,789.823 grams, a prohibited drug.

Contrary to law.[3]
After Belocura pleaded not guilty,[4] the State presented three witnesses, namely: Insp. Arlene Valdez
Coronel, Chief Insp. Ferdinand Ortales Divina, and SPO1 Gregorio P. Rojas. On the other hand, the
Defense presented Belocura as its sole witness.

I
The State's Evidence

On March 22, 1999, at 11 o'clock in the morning, Chief Insp. Divina was in his office in the headquarters
of the Western Police District (WPD) on United Nations Avenue in Manila when he received a call from a
male person who refused to identify himself for fear of reprisal. The caller tipped him off about a robbery
to be staged along Lopez Street, Tondo, Manila. After relaying the tip to his superior officer, he was
immediately ordered to form a team composed of operatives of the District Intelligence Group and to
coordinate with the Special Weapons and Attack Team (SWAT) and the Mobile Patrol of the WPD.

After a briefing, Chief Insp. Divina and the other operatives proceeded to Lopez Street, reaching the site
before 1:00 pm. Chief Insp. Divina and PO2 Eraldo Santos positioned themselves along Vitas Street. At
around 2:00 pm, Chief Insp. Divina spotted an owner-type jeep bearing a spurious government plate
(SBM-510) cruising along Vitas Street and told the rest of the team about it. The numbers of the car plate
were painted white. The driver was later identified as Belocura. Chief Insp. Divina signaled for Belocura
to stop for verification but the latter ignored the signal and sped off towards Balut, Tondo. The team
pursued Belocura's jeep until they blocked its path with their Tamaraw FX vehicle, forcing Belocura to
stop. At this point, Chief Insp. Divina and the rest of the team approached the jeep and introduced
themselves to Belocura as policemen. Chief Insp. Divina queried Belocura on the government plate. SPO1
Rojas confiscated Belocura's Berreta 9 mm. pistol (Serial Number M13086Z) that was tucked in his waist
and its fully loaded magazine when he could not produce the appropriate documents for the pistol and
the government plate. They arrested him.

PO2 Santos searched Belocura's jeep, and recovered a red plastic bag under the driver's seat. Chief Insp.
Divina directed PO2 Santos to inspect the contents of the red plastic bag, which turned out to be two
bricks of marijuana wrapped in newspaper.

Afterwards, the team returned with Belocura to the WPD Headquarters on board the Tamaraw FX. The
team turned over the jeep and the red plastic bag with its contents to the General Assignment Section for
proper disposition.[5]

Chief Insp. Divina said that the caller did not mention anything about any vehicle; that he and his men
were in civilian clothes at the time; that it was PO2 Santos who recovered the red plastic bag containing
the marijuana bricks; and that SPO1 Rojas examined the contents of the bag in his presence.[6]

SPO1 Rojas confirmed his part in the operation.[7] He conceded that he was not present when the red
plastic bag containing the bricks of marijuana was seized, and saw the marijuana bricks for the first time
only at the police station.[8]

Forensic Chemist Insp. Coronel attested that her office received from the General Assignment Section of
the WPD one red plastic bag labeled "SHIN TON YON" containing two bricks of dried suspected
marijuana fruiting tops individually wrapped in newspaper at about 12:30 pm of March 23, 1999. The
first brick bore the marking "RB-1" and weighed 830.532 grams while the other bore the marking "RB-2"
and weighed 959.291 grams, for a total weight of 1,789.823 grams. She conducted a chemical
examination of the marijuana bricks pursuant to the request for laboratory examination from Chief Insp.
Nelson Yabut of the WPD; and concluded as the result of three qualitative examinations that the
submitted specimen tested positive for marijuana, a prohibited drug.[9]

II
Evidence of the Defense

Belocura denied the charge. His version, which differed from that of the Prosecution, was as follows.

On March 22, 1999, Belocura was a police officer assigned in Police Station 6 of the WPD with a tour of
duty from 3:00 pm to 11:00 pm. At 2:00 pm of that day, he was on his way to work on board his owner-
type jeep when about thirty police officers blocked his path. He introduced himself to them as a police
officer, but they ignored him. Instead, they disarmed and handcuffed him, and confiscated the
memorandum receipt covering his firearm, his money and his police ID card. He recognized some of his
arrestors as former members of the CIS. They forced him into their jeep, and brought him to the WPD
headquarters, where they locked him up in a room that looked like a bodega. They subjected him to
interrogation on his alleged involvement in a robbery hold-up. They informed him of the drug-related
charge to be filed against him only three days later.

Belocura denied owning or possessing the bricks of marijuana, saying that he saw the bricks of
marijuana for the first time only in court. He insisted that it was physically impossible for the bricks of
marijuana to be found under the driver's seat of his jeep on account of the clearance from the flooring
being only about three inches. At the time of his arrest, he was in Type-B uniform (i.e., blue pants with
white side piping and blue T-shirt) because he was reporting to work that afternoon.

Belocura said that his arrest was effected possibly because he had incurred the ire of a superior; that it
was not unusual for a policeman like him to incur the ire of a superior officer or a fellow policeman; that
he had arrested a suspect for drug pushing and had detained him in Police Precinct 2, but the suspect
turned out to be the nephew of Captain Sukila of Precinct 2 who admitted to him that Captain Sukila
owned the drugs; that on the day following the arrest of the suspect, Captain Sukila called Belocura to
request the release of the suspect (ina-arbor ang huli ko); that he told Captain Sukila that they should
meet the next day so that he could turn over the suspect; and that on the next day, he was surprised to
learn that the suspect had already been released.[10]

Belocura did not personally know Chief Insp. Divina prior to his arrest,[11] or the other arresting
policemen. He mentioned that his owner-type jeep had been assembled in 1995, and that he had attached
the plate number assigned to his old vehicle pending the registration of the jeep despite knowing that
doing so was a violation of law; and that the incident involving the arrest of the nephew of Captain Sukila
was the only reason he could think of why charges were filed against him.[12]

On re-direct examination, Belocura replied that he did not see the bricks of marijuana whether at the
time of his arrest, or at the police precinct, or during the inquest proceedings. On re-cross, he clarified
that while the driver's seat were fixed to the jeep, the bricks of marijuana could nevertheless be placed
under the driver's seat only if pressed hard enough, but in that case the wrappings would get torn
because the wirings of the car underneath the seat were exposed. He recalled that the wrappings of the
bricks of marijuana were intact.[13]

On April 22, 2003, the RTC convicted Belocura of the crime charged and sentenced him to suffer
reclusion perpetua and to pay the fine of P500,000.00.[14]

[1 ]
As already stated, the CA affirmed the conviction.[15]

Issues

Belocura now submits that: [16]

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE

CRIME CHARGED NOTWITHSTANDING THE PHYSICIAL IMPOSSIBILITY FOR THE DRIED
BRICKS OF MARIJUANA PLACED UNDER THE DRIVER'S SEAT (sic).

II.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED APPELLANT OF THE CRIME
CHARGED BASED ON THE INCONSISTENT AND CONTRADICTORY STATEMENTS OF THE
PROSECUTION WITNESS.

III.

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE MARIJUANA DESPITE THE
ILLEGALITY OF ITS SEIZURE DUE TO THE ABSENSE (sic) OF A VALID SEARCH WARRANT.

IV.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED APPELLANT OF THE CRIME
CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

Belocura argues that the Prosecution did not establish his guilt for the crime charged beyond reasonable
doubt; that his warrantless arrest was unlawful considering that his only violation was only a breach of
traffic rules and regulations involving the illegal use of a government plate on his newly-assembled jeep;
that the warrantless search of his jeep was contrary to law for violating his right against illegal search and
seizure protected under Section 17, Article III (Bill of Rights) of the 1987 Constitution;[17] and that the
bricks of marijuana supposedly seized from him, being the fruit of a poisonous tree, were inadmissible
against him.

The Office of the Solicitor General (OSG) counters that Belocura's arrest and the ensuing search of the
jeep were valid, the search being incidental to a valid, albeit warrantless, arrest; that the arresting
policemen had a reasonable ground to effect his warrantless arrest; that it became their duty following
the lawful arrest to conduct the warrantless search not only of the person of Belocura as the arrestee but
also of the areas within his reach, which then resulted in the recovery of the dried bricks of marijuana
from under the driver's seat; and that any irregularity attendant to the arrest was cured by Belocura's
failure to object to the validity of his arrest before entering his plea and by his submission to the
jurisdiction of the RTC when he entered his plea and participated in the trial.[18]

Ruling

After a meticulous examination of the records, the Court concludes that a reversal of the conviction is
justified and called for.

No arrest, search and seizure can be made without a valid warrant issued by a competent judicial
authority. So sacred are the right of personal security and privacy and the right from unreasonable
searches and seizures that no less than the Constitution ordains in Section 2 of its Article III, viz:

Section 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose, shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized.

The consequence of a violation of the guarantees against a violation of personal security and privacy and
against unreasonable searches and seizures is the exclusion of the evidence thereby obtained. This rule of
exclusion is set down in Section 3(2), Article III of the Constitution, to wit:

Section 3. xxx

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

Even so, the right against warrantless arrest, and the right against warrantless search and seizure are not
absolute. There are circumstances in which the arrest, or search and seizure, although warrantless, are
nonetheless valid or reasonable. Among the circumstances are those mentioned in Section 5, Rule 113 of
the Rules of Court, which lists down when a warrantless arrest may be lawfully made by a peace officer or
a private person, namely:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

On the other hand, the constitutional proscription against warrantless searches and seizures admits of
the following exceptions, namely: (a) warrantless search incidental to a lawful arrest recognized under
Section 13, Rule 126 of the Rules of Court;[19] (b) seizure of evidence under plain view; (c) search of a
moving vehicle; (d) consented warrantless search; (e) customs search; (f) stop-and-frisk situations (Terry
search); and (g) exigent and emergency circumstances.[20] In these exceptional situations, the necessity
for a search warrant is dispensed with.
Belocura argues that his arrest and the ensuing search of his vehicle and recovery of the incriminating
bricks of marijuana were in violation of his aforementioned rights under the Constitution because he was
then violating only a simple traffic rule on the illegal use of a government plate. He claims that the
arresting policemen had no probable cause to search his vehicle for anything.

The argument of Belocura does not persuade.

Belocura was caught in flagrante delicto violating Section 31 of Republic Act No. 4139 (The Land
Transportation and Traffic Code).[21] In flagrante delicto means in the very act of committing the
crime. To be caught in flagrante delicto necessarily implies the positive identification of the culprit by an
eyewitness or eyewitnesses. Such identification is a direct evidence of culpability, because it "proves the
fact in dispute without the aid of any inference or presumption."[22] Even by his own admission, he was
actually committing a crime in the presence or within the view of the arresting policemen. Such manner
by which Belocura was apprehended fell under the first category in Section 5, Rule 113 of the Rules of
Court. The arrest was valid, therefore, and the arresting policemen thereby became cloaked with the
authority to validly search his person and effects for weapons or any other article he might use in the
commission of the crime or was the fruit of the crime or might be used as evidence in the trial of the case,
and to seize from him and the area within his reach or under his control, like the jeep, such weapon or
other article. The evident purpose of the incidental search was to protect the arresting policemen from
being harmed by him with the use of a concealed weapon. Accordingly, the warrantless character of the
arrest could not by itself be the basis of his acquittal.[23]

In convicting Belocura as charged, the RTC relied on the testimonies of Chief Insp. Divina and SPO1
Rojas to establish the fact of possession of the marijuana bricks. An evaluation of the totality of the
evidence on record indicates, however, that the corpus delicti of the crime charged was not established
beyond reasonable doubt.

The elements of illegal possession of marijuana under Republic Act No. 6425, as amended, are that: (a)
the accused is in possession of an item or object that is identified to be marijuana, a prohibited drug; (b)
such possession is not authorized by law; and (c) the accused freely and consciously possessed the said
drug.[24] What must be proved beyond reasonable doubt is the fact of possession of the prohibited drug
itself. This may be done by presenting the police officer who actually recovered the prohibited drugs as a
witness, being the person who has the direct knowledge of the possession.

Chief Insp. Divina who headed the team of policemen disclosed that it was PO2 Santos, a member of the
team, who had discovered and had actually recovered the red plastic bag containing the bricks of
marijuana from the jeep. Excerpts of Chief Insp. Divina's relevant declarations follow:
 ATTY LEE:
Mr. Witness, it was SPO1 Rojas who examined the contents of the plastic bag. That is
q
correct?
a I had testified that it was SPO1 Rojas who examined the contents.
q Okay, it was Mr. Rojas who retrieved the plastic bag? Is that correct?
a No sir, It was not SPO1 Rojas.
q It was not you who retrieved that plastic bag from the jeep?
a No, Sir. I was not the one.
q It was Dela Cruz?
a No, Sir.
q Who retrieved the plastic bag from the jeep?
WITNESS:
A It was PO2 Reynaldo Santos, Sir.
ATTY LEE
:
q It was Santos who brought the plastic bag to the headquarters. Is that correct?
A Yes, Sir.
And you never had a chance to examine that plastic bag, the contents of that plastic bag
q
is that correct?
a I had a chance to see it at the place where we had flagged down a vehicle.
q You saw only the plastic bag. Is that correct?
No, Sir. When the bag was recovered from under the driver's seat and when it was
a
opened, I had the chance to see it.
THE COURT:
q Including the contents?
WITNESS:
a Yes, your Honor.
ATTY LEE:
q It was not you who bring that bag to xxx
THE COURT:
Already answered.
ATTY LEE:

And after that, you never had the chance to see that bag again. Is that correct? a Not
q [25]
anymore Sir.

The Prosecution also presented SPO1 Rojas, another member of the team, but he provided no direct
evidence about the possession by Belocura of the confiscated marijuana bricks, and actually stated that
he did not witness the recovery of the marijuana bricks from Belocura, viz:
 PUB. PROS. TAN, JR:
While you were taking the gun of this accused what were your other companion
q
specifically Major Divina doing?
WITNESS:
Since I was the first one who approached Reynaldo Belocura I was the one who took the
gun from his waistline and I informed Major Divina that I already took the gun and place
a
it inside the Tamaraw FX and when I left the members of the SWAT arrive at the scene
and I don't know what transpired.
PUB. PROS. TAN, JR:
q And where was Major Divina then?
a Beside the owner type jeep, sir.
q You are referring to the owner type jeep of the accused?
a Yes, sir.
q Did you go back to the said jeep?
I did not return there anymore sir because the members of the other group surrounded
a
the place, sir.
Since you were then at that scene did you come to know if there is any other thing that
q [26]
was retrieved from the herein accused in the said vehicle?
xxx
WITNESS:
a Yes. When I was there according to them marijuana was taken from the owner type jeep.
PUB. PROS. TAN, JR:
[27]
q Who said that?
xxx
WITNESS:
a The member of the SWAT and other team, sir were there.
q And then what else happen after such recovery?
Actually sir at the scene I did not see anything recovered but it was only in the office that
a
I heard their conversation about it.
q What did you see or observe while in your office?
a He was investigated.
q Investigated for what?
According to them the recovery of the plate number and the expired MR of the gun and
a
the marijuana recovered.
PUB. PROS. TAN, JR:
q Before whom was he investigated?
WITNESS:
[28]
a General Assignment Section, sir.
xxx

On further examination, SPO1 Rojas reiterated that he did not actually witness the seizure of the
marijuana bricks from Belocura's possession, to wit:
 ATTY LEE:
Mr. Witness, so you did not see the actual the alleged recovery of marijuana, is that
q
correct?
WITNESS:
a Yes sir.
ATTY LEE:
q And you have never that marijuana?
WITNESS:
a Yes sir. But only in the office.
q What do you only took from the accused is a gun, is that correct?
a Yes sir.
So you cannot say positively that there was a marijuana recovered from the accused
q
because you did not see?
[29]
a I just got the information from my co-police officer, sir.
xxx
PUB. PROS TAN, JR:
q Were you able to see the marijuana in the police station?
WITNESS:
a Yes sir.
q You mean to say that was the first time that you saw the marijuana?
[30]
a Yes, sir.

The Prosecution presented no other witnesses to establish the seizure of the marijuana bricks from
Belocura.

Based on the foregoing, Chief Insp. Divina and SPO1 Rojas' declarations were insufficient to incriminate
Belocura, much less to convict him. If neither of them was personally competent to be an eyewitness
regarding the seizure of the marijuana bricks from Belocura, their testimonies could not be accorded
probative value, considering that the Rules of Court requires that a witness could testify only to facts that
he knew of his own knowledge, that is, only to those facts derived from his own perception.[31]

Indeed, only PO2 Santos could reliably establish Belocura's illegal possession of the marijuana bricks, if
Chief Insp. Divina's account was to be believed. Surprisingly, the RTC did not give due and proper
significance to the failure to present PO2 Santos as a witness against Belocura.

Nonetheless, the OSG contends that the State had no need to present PO2 Santos because his testimony
would only be corroborative; and that the testimonies of Chief Insp. Divina and SPO1 Rojas sufficed to
establish Belocura's guilt beyond reasonable doubt.

The OSG's contention is grossly erroneous.

As the arresting officer who alone actually seized the marijuana bricks from Belocura's vehicle beyond the
viewing distance of his fellow arresting officers, PO2 Santos was the Prosecution's only witness who could
have reliably established the recovery from Belocura of the marijuana bricks contained in the red plastic
bag labeled as "SHIN TON YON." Without PO2 Santos' testimony, Chief Insp. Divina's declaration of
seeing PO2 Santos recover the red plastic bag from under the driver's seat of Belocura's jeep was
worthless. The explanation why none of the other police officers could credibly attest to Belocura's
possession of the marijuana bricks was that they were at the time supposedly performing different tasks
during the operation. Under the circumstances, only PO2 Santos was competent to prove Belocura's
possession.

Worse, the Prosecution failed to establish the identity of the prohibited drug that constituted the corpus
delicti itself. The omission naturally raises grave doubt about any search being actually conducted and
warrants the suspicion that the prohibited drugs were planted evidence.

In every criminal prosecution for possession of illegal drugs, the Prosecution must account for the
custody of the incriminating evidence from the moment of seizure and confiscation until the moment it is
offered in evidence. That account goes to the weight of evidence.[32] It is not enough that the evidence
offered has probative value on the issues, for the evidence must also be sufficiently connected to and tied
with the facts in issue. The evidence is not relevant merely because it is available but that it has an actual
connection with the transaction involved and with the parties thereto. This is the reason why
authentication and laying a foundation for the introduction of evidence are important.[33]

Yet, no such accounting was made herein, as the following excerpts from the testimony of Chief Insp.
Divina bear out, to wit:

PUB. PROS TAN, JR:

How about the plastic bag containing the suspected stuff, what did you do with the same?
q
You did not know?
WITNESS:
I think it was turned over to the investigator of the General Assignment Section who made
a
the proper disposition.
q Who is the investigator again, Mr. witness?
a I remember SPO4 Boy Guzman
Did you know what SPO4 Boy Guzman did with the accused as well as the confiscated
q
stuff?
xxx
WITNESS:
The items upon turn over to the investigator on case were handed to the custodian with
a
proper receipt and after those disposition, there were case filed against the subject.
PUB. PROS. TAN, JR:
Were you able to know what did they do with the accused as well as the confiscated stuff if
q
you know?
I remember appearing in the MTC court Br, 20, I saw the exhibits, firearm and plate
a number, two blocks of marijuana. I don't have any idea where did the investigator brought
[34]
them or have done.
xxx
q You never had a knowledge of what happened to that bag and the contents thereof?
I learned later that the items that were confiscated were turned over to the General
a
Assignment Section which held the investigation.
So, it was not your group who conducted the examination and the alleged things that were
q [35]
recovered from the alleged accused?
xxx
a No, Sir.
q How about the things that were allegedly recovered from the accused?
[36]
a I just said that it was the General Assignment Section who handled the investigation.
The Prosecution thereby failed to establish the linkage between the bricks of marijuana supposedly
seized by PO2 Santos from Belocura's jeep following his arrest and the bricks of marijuana that the
Prosecution later presented as evidence in court. That linkage was not dispensable, because the failure to
prove that the specimens of marijuana submitted to the forensic chemist for examination were the same
marijuana allegedly seized from Belocura irreparably broke the chain of custody that linked the
confiscated marijuana to the marijuana ultimately presented as evidence against Belocura during the
trial. Proof beyond reasonable doubt demanded that unwavering exactitude must be observed in
establishing the corpus delicti the body of the crime whose core was the confiscated prohibited
substances. Thus, every fact necessary to constitute the crime must be established.[37]

The chain-of-custody requirement ensures that all doubts concerning the identity of the evidence are
removed.[38] The requirement has come to be associated with prosecutions for violations of Republic Act
No. 9165 (Comprehensive Drugs Act of 2002),[39] by reason of Section 21[40] of Republic Act No. 9165
expressly regulating the actual custody and disposition of confiscated and surrendered dangerous drugs,
controlled precursors, essential chemicals, instruments, paraphernalia, and laboratory equipment.
Section 21(a) of the Implementing Rules and Regulations of Republic Act No. 9165 issued by the
Dangerous Drugs Board pursuant to its mandate under Section 94 of Republic Act No. 9165 reiterates the
requirement, stating:

xxx

(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies of the inventory and
be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the nearest police station or at the nearest office
of the apprehending officer/team, whichever is practicable, in case of warrantless seizures;
Provided, further that non-compliance with these requirements under justifiable grounds, as long as
the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of and custody over said
items.
xxx

That this case was a prosecution brought under Republic Act No. 6425 (Dangerous Drugs Act of 1972),
as amended by Republic Act No. 7659, did not matter. The chain-of-custody requirement applied under
both laws by virtue of the universal need to competently and sufficiently establish the corpus delicti. It is
basic under the Rules of Court, indeed, that evidence, to be relevant, must throw light upon, or have a
logical relation to, the facts in issue to be established by one party or disproved by the other.[41] The test
of relevancy is whether an item of evidence will have any value, as determined by logic and experience, in
proving the proposition for which it is offered, or whether it would reasonably and actually tend to prove
or disprove any matter of fact in issue, or corroborate other relevant evidence. The test is satisfied if there
is some logical connection either directly or by inference between the fact offered and the fact to be
proved.[42]

The chain of custody is essential in establishing the link between the article confiscated from the accused
to the evidence that is ultimately presented to the court for its appreciation. As the Court said in Mallillin
[43]
v. People:[43]

As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what
the proponent claims it to be. It would include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and from whom it was received, where it was
and what happened to it while in the witness' possession, the condition in which it was received and
the condition in which it was delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always
impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the
item of real evidence is not distinctive and is not readily identifiable, or when its condition at the
time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same
standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination
and even substitution and exchange. In other words, the exhibit's level of susceptibility to
fungibility, alteration or tampering without regard to whether the same is advertent or otherwise
[44]
not dictates the level of strictness in the application of the chain of custody rule.

The first link in the chain of custody started with the seizure from the jeep of Belocura of the red plastic
bag said to contain the marijuana bricks. The first link was immediately missing because the Prosecution
did not present PO2 Santos, the only person with direct knowledge of the seizure and confiscation of the
marijuana bricks. Without his testimony, proof that the marijuana bricks were really taken from the
jeep of Belocura did not exist. The second link was the turnover of the marijuana bricks by PO2 Santos to
another officer back at the WPD Headquarters. As to this, Chief Insp. Divina stated that he learned
following the seizure by PO2 Santos that the marijuana bricks were turned over to the General
Assignment Section for investigation. That was all. On the other hand, SPO1 Rojas' testimony
contributed nothing to the establishment of the second link because he had immediately left after seizing
the gun from Belocura. As for the subsequent links, the records[45] showed that the marijuana bricks
were forwarded to the General Assignment Section on March 22, 1999, but the Prosecution did not prove
the identities of the officer from the General Assignment Section who received the red plastic bag
containing the marijuana bricks, and the officer from whom the receiving officer received the marijuana
bricks. Although Chief Insp. Nelson Yabut prepared the request for laboratory examination of the
marijuana bricks,[46] which were thereafter examined by Forensic Chemist Valdez, the records did not
show if Chief Insp. Yabut was the officer who had received the marijuana bricks from the arresting team.
The request for laboratory examination was dated March 23, 1999, or the day following Belocura's arrest
and the seizure of the marijuana bricks from his jeep; however, the Prosecution did not identify the
person from whom Chief Insp. Yabut had received the marijuana bricks.

Sadly, the Prosecution did not establish the links in the chain of custody. This meant that the corpus
delicti was not credibly proved. This further meant that the seizure and confiscation of the marijuana
bricks might easily be open to doubt and suspicion, and thus the incriminatory evidence would not stand
judicial scrutiny.

Thirdly, Belocura's denial assumed strength in the face of the Prosecution's weak incriminating evidence.
In that regard, Belocura denied possession of the marijuana bricks and knowledge of them as well, to
wit:

q Were you able to view the alleged marijuana that were confiscated from you?
a: I saw it for the first time when it was presented in Court, Sir.
Now, according to Inspector Divina, it was police officer Santos who was able to recover
q:
from your vehicle these two bricks of marijuana. What can you say about this?
At first, I did not see this marijuana, Sir, that they are saying because they immediately
a: [47]
handcuffed me and disarmed me even before I could board my owner type jeepney.

The Court holds that the guilt of Belocura for the crime charged was not proved beyond reasonable
doubt. Mere suspicion of his guilt, no matter how strong, should not sway judgment against him. Every
evidence favoring him must be duly considered. Indeed, the presumption of innocence in his favor was
not overcome. Hence, his acquittal should follow, for, as the Court fittingly said in Patula v. People:[48]

xxx in all criminal prosecutions, the Prosecution bears the burden to establish the guilt of the
accused beyond reasonable doubt. In discharging this burden, the Prosecution's duty is to prove
each and every element of the crime charged in the information to warrant a finding of guilt for that
crime or for any other crime necessarily included therein. The Prosecution must further prove the
participation of the accused in the commission of the offense. In doing all these, the
Prosecution must rely on the strength of its own evidence, and not anchor its success
upon the weakness of the evidence of the accused. The burden of proof placed on the
Prosecution arises from the presumption of innocence in favor of the accused that no
less than the Constitution has guaranteed. Conversely, as to his innocence, the
accused has no burden of proof, that he must then be acquitted and set free should the
Prosecution not overcome the presumption of innocence in his favor. In other words,
the weakness of the defense put up by the accused is inconsequential in the
proceedings for as long as the Prosecution has not discharged its burden of proof in
establishing the commission of the crime charged and in identifying the accused as
[49]
the malefactor responsible for it.

WHEREFORE, we REVERSE and SET ASIDE the decision promulgated on January 23, 2006;
ACQUIT accused REYNALDO BELOCURA y PEREZ for failure of the Prosecution to prove his guilt
beyond reasonable doubt; DIRECT the immediate release from detention of REYNALDO
BELOCURA y PEREZ, unless he is also detained for some other lawful cause; and ORDER the
Director of the Bureau of Corrections to forthwith implement this decision upon receipt and to report his
action hereon to this court within 10 days from receipt.

No pronouncement on costs of suit.

SO ORDERED.

Sereno, C.J., Leonardo-De Castro, Villarama, Jr., and Reyes, JJ., concur.

[1]
[1] Records, pp. 210-215.

[2] CA Rollo, pp. 132-140; penned by Associate Justice Aurora Santiago-Lagman (retired), with Associate
Justice Ruben T. Reyes (later Presiding Justice and a Member of the Court, since retired) and Associate
Justice Rebecca Guia-Salvador concurring.

[3] Records, p. 1.

[4] Id. at 15.

[5] TSN dated April 4, 2000, pp. 3-10.

[6] TSN dated April 10, 2000, pp. 5-14.

[7] Records, p. 212.

[8] Id.

[9] Id. at 210-211.

[10] Id. at 212-213.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 215.

[15] CA Rollo, pp. 132-140 (the appeal was originally made directly to the Court, but the Court referred
the appeal to the CA for intermediate review).

[16] Rollo, pp. 40-59.

[17] Id. at 56.

[18] Id. at 102-111.

[19] Rule 126, Rules of Court, provides:

Section 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense
without a search warrant. (12a)

[20] Caballes v. Court of Appeals, G.R. No. 136292, January 15, 2002, 373 SCRA 221.

[21] Section 31. Imitation and false representations. - No person shall make or use attempt to make or
use a driver's license, badge, certificate of registration, number plate, tag, or permit in imitation or
similitude of those issued under this Act, or intended to be used as or for a legal license, badge,
certificate, plate, tag or permit, or with intent to sell or otherwise dispose of the same to another. No
person shall falsely or fraudulently represent as valid and in force any driver's license, badge, certificate,
plate, tag or permit issued under this Act which is delinquent or which has been revoked or suspended.

[22] Go v. Leyte II Electric Cooperative, Inc., G.R. No. 176909, February 18, 2008, 546 SCRA 187, 195.

[23] Valdez v. People, G.R. No. 170180, November 23, 2007, 538 SCRA 611.

[24] Manalili v. Court of Appeals, G.R. No. 113447, October 9, 1997, 280 SCRA 400.

[25] TSN, April 10, 2000, pp. 13 15.

[26] TSN, October 3, 2000, pp. 9-10.

[27] Id. at 10.

[28] Id. at 11-12.

[29] Id. at 13-14.

[30] Id. at 15.

[31] Section 36, Rule 130, Rules of Court; Philippine Free Press Inc., v. Court of Appeals, G.R. No.
132864, October 24, 2005, 473 SCRA 639, 656.

[32] People v. Pagaduan, G.R. No. 179029, August 9, 2010, 627 SCRA 308, 323, citing Black's Law
Dictionary, citing Com. v White, 353 Mass 409, 232 N.E. 2d 335.

[33] Id.

[34] TSN, April 4, 2000, pp. 11-12.

[35] TSN, April 10, 2000, p. 15.

[36] Id.

[37] People v. Pagaduan, supra, note 32 at 322.

[38] People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194, 212; People v. Kimura, G.R.
No. 130805, April 27, 2004, 428 SCRA 51.

[39] The effectivity of the law is from July 4, 2002.

[40] Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have
custody of al dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel,
a representative from the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof.

(2) Within twenty-four hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment, the same shall be submitted to the PDEA forensic laboratory for a qualitative and
quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the
forensic laboratory examiner, shall be issued within twenty-four hours after the receipt of the subject
item/s: Provided, that when the volume of the dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities
of dangerous drugs still to be examined by the forensic laboratory. Provided, however, That a final
certification shall be issued on the completed forensic laboratory examination on the same within the
next twenty-four (24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular
inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia
and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter
proceed with the destruction or burning of the same, in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up
the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne
by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be
donated, used or recycled for legitimate purposes; Provided, further, That a representative sample, duly
weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject
item/s which, together with the representative sample/s in the custody of the PDE, shall be submitted to
the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a
minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally observe al of
the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said
offender or accused refuses or fails to appoint a representative after due notice in writing to the accused
or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence
in question, the Secretary of Justice shall appoint a member of the pubic attorney's office to represent the
former;

(7) After the promulgation and judgment in the criminal case wherein the representative sample/s was
presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the
case and, in turn, shall request the court for leave to turn over the said representative sample/s to the
OPDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same;
and
(8) Transitory Provision. A) Within twenty-four (24) hours from the effectivity of this Act, dangerous
drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of
court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of
Health (DOH) and the accused and/or his/her counsel, and, b) Pending the organization of the PDEA,
the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided
under this Section shall be implemented by the DOH.

[41] Section 3 and Section 4, Rule 128, Rules of Court.

[42] 31A CJS, Evidence, §199.

[43] G.R. No. 172953, April 30, 2008, 553 SCRA 619.

[44] Id. at 632-633.

[45] Joint Affidavit of Arrest executed on March 22, 1999 by Santos, Rojas and Divina, Records, p. 4;
Booking Sheet & Arrest Report executed by SPO3 Guzman and signed by Belocura, Records, p. 5.

[46] Records, p. 43.

[47] TSN, May 7, 2002, pp. 15-16.

[48] G.R. No. 164457, April 11, 2012.

[49] Bold emphasis supplied.

 DIVISION

[ GR NO. 168071, Dec 18, 2006 ]

LUCIANO TAN v. RODIL ENTERPRISES

DECISION
540 Phil. 183

CHICO-NAZARIO, J.:
[1]
The instant Petition for Review on Certiorari assails the Decision dated 21 October 2002 and the
[2]
Resolution dated 12 May 2005 of the Court of Appeals in CA-G.R. SP No. 67201, which set aside the 18
[3]
June 2001 Decision of the Regional Trial Court (RTC) of Manila, Branch 26 in Civil Case No. 01-
[4]
99797. The RTC reversed the 6 October 2000 Decision of the Metropolitan Trial Court (MeTC) of
Manila, Branch 13 in Civil Case No. 166584, and dismissed the Complaint filed by respondent Rodil
Enterprises against petitioner Luciano Tan for utter lack of merit.

[5]
This case has its origin from the Complaint for Unlawful Detainer filed on 13 March 2000 by Rodil
Enterprises against Luciano Tan with the MeTC of Manila, Branch 13, docketed as Civil Case No. 166584.

The factual antecedents to the filing of the Complaint show that Rodil Enterprises is a lessee of the
subject premises, the Ides O'Racca Building since 1959. The Ides O'Racca Building, located at the corner
of M. de Santos and Folgueras Streets in Binondo, Manila, is owned by the Republic of the Philippines.
On 18 May 1992, Rodil Enterprises and the Republic, through the Department of Environment and
Natural Resources (DENR), entered into a Renewal of a Contract of Lease over the Ides O'Racca
Building. A subsequent Supplementary Contract dated 25 May 1992 was similarly entered into, thus,
extending the lease agreement until 1 September 1997.

The validity of the 18 May 1992 and the 25 May 1992 contracts was placed in question in several actions
involving Rodil Enterprises, the Ides O'Racca Building Tenants Association, Inc., and other tenants. This
Court upheld the validity of the aforesaid contracts in a Decision rendered on 29 November 2001, in the
consolidated cases of Rodil Enterprises, Inc. v. Court of Appeals, Carmen Bondoc, Teresita Bondoc-Esto,
Divisoria Footwear and Chua Huay Soon (G.R. No. 129609) and Rodil Enterprises, Inc. v. Ides O'Racca
[6]
Building Tenants Association, Inc. (G.R. No. 135537).

Prior thereto, the Office of the President in OP Case No. 4968 entitled, Spouses Saturnino B. Alvarez and
[7]
Epifania Binay Alvarez v. Rodil Enterprises Company, Inc. rendered a Decision dated 8 February
1994, declaring the Renewal of Contract of Lease and the Supplementary Contract, dated 18 May 1992
and 25 May 1992, respectively, of no force and effect.

It appears that Rodil Enterprises appealed the 8 February 1994 Decision to the Court of Appeals,
docketed as CA-G.R. SP No. 34586 which was dismissed by the appellate court for non-compliance with
procedural requirements. The dismissal was appealed by Rodil Enterprises to the Supreme Court,
docketed as G.R. No. 119711 which was also dismissed. Subsequently, the Office of the President issued
an Order of Execution of its 8 February 1994 Decision in OP Case No. 4968. Thereafter, Rodil
Enterprises filed a Petition for Review on Certiorari with the Court of Appeals on the Order of Execution,
docketed as CA-G.R. SP No 79157. The Court of Appeals rendered a Decision therein dated 28 March
2005 which annulled the Order of Execution, and enjoined the Office of the President from enforcing its
8 February 1994 Decision in OP Case No. 4968. Likewise, the Court of Appeals ordered the Office of the
President to abide by the 29 November 2001 Decision of the Supreme Court in the consolidated cases of
G.R. No. 129609 and G.R. No. 135537, upholding the validity of the Renewal of Contract of Lease and the
Supplemental Contract, dated 18 May 1992 and the 25 May 1992, respectively. Finally, the Decision of
the Court of Appeals in CA-G.R. SP No. 79157 was brought on certiorari by the Ides O'Racca Building
Tenants Association, Inc. to the Supreme Court, and docketed as G.R. No. 169892. On 25 January 2006,
the Court, in G.R. No. 169892, issued a Resolution denying the Petition. On 20 March 2006, a Resolution
was rendered in the same case denying with finality the amended Motion for Reconsideration.

Meanwhile, during the pendency of the preceding cases, on 18 October 1999, a subsequent Contract of
Lease was drawn between Rodil Enterprises and the Republic, the same to be effective retroactively from
1 September 1997 to 21 August 2012 at a monthly rental of P65,206.67, subject to adjustment upon the
approval of a new appraisal covering the Ides O'Racca Building. Rodil Enterprises subleased various
units of the property to members of the Ides O'Racca Building Tenants Association, Inc. A space thereof,
known as Botica Divisoria was subleased to herein petitioner, Luciano Tan.

In Rodil Enterprises' Complaint for Unlawful Detainer filed against Luciano Tan, the former alleged that
Luciano Tan bound himself to pay under a Contract of Sublease, the amount of P13,750.00 as monthly
rentals, representing the reasonable use and occupancy of the said premises. However, Luciano Tan
unjustifiably and unreasonably refused to pay the rentals from September 1997 up to the time of the
filing of the Complaint, and despite repeated oral and written demands, refused to vacate the premises
and to pay the rents due. Rodil Enterprises prayed that Luciano Tan and those claiming rights under him
be ordered to vacate the leased premises. A payment of rentals in arrears, amounting to P385,000.00
was similarly sought, including attorney's fees and litigation costs, as well as, subsequent monthly rentals
in the amount of P13,750.00 until Luciano Tan vacates Botica Divisoria.

In his Answer, Luciano Tan insists that he is a legitimate tenant of the government who owns the Ides
O'Racca Building and not of Rodil Enterprises. As such, he has the right to lease the said premises
pending the disposition and sale of the building. He based his claim on the fact that on 8 February 1994,
the Office of the President in OP Case No. 4968, had declared the Renewal of Contract of Lease dated 18
May 1992 and the Supplemental Contract dated 25 May 1992 between Rodil Enterprises and the
Republic to be without force and effect. Accordingly, the DENR was directed to award the lease contract
in favor of the Ides O'Racca Building Tenants Association, Inc. of which Luciano Tan is a member. He,
thus, prayed for the dismissal of the Complaint, and for the return of whatever amount Rodil Enterprises
had collected from 1987 to 1997, or during such time when he was still paying rentals to the latter.

On 27 June 2000, the MeTC issued an Order, recognizing an agreement entered into in open court by
Luciano Tan and Rodil Enterprises. The Order, inter alia, declared, thus:
On second call, the parties and counsel agreed in principle in open court to the following terms to
put an end to this civil case for ejectment between them:

1.) that [Luciano Tan] will pay P440,000.00 representing rentals from September, 1997 up to the
present, which is the outstanding obligation of [Luciano Tan] as of June, 2000, on or before June
30, 2000; and

2.) [Luciano Tan] will pay the monthly rentals computed at P13,750.00 on or before the 5th day of
[8]
each month after June 30, 2000.

[9]
On 14 August 2000, Luciano Tan filed a Motion to Allow Defendant to Deposit Rentals,[9] averring
therein that he had agreed to pay all the rentals due on the subject premises and to pay the subsequent
monthly rentals as they fall due; that the rentals in arrears from September 1997 amounted to
P467,500.00; and in line with his good faith in dealing with Rodil Enterprises, he would like to deposit
the aforesaid amount, and the subsequent monthly rentals as they fall due. He prayed that he be allowed
to deposit the Manager's Check for the amount of P467,500.00, made payable to the City Treasurer of
Manila. However, on 15 August 2000, the MeTC denied the Motion on the rationalization that Luciano
Tan's prayer to deposit the specified sum with the City Treasurer of Manila contravenes Section 19,[10]
Rule 70 of the 1997 Rules of Civil Procedure.

Subsequently, the issues for the resolution of the MeTC were synthesized by the court in its Order, dated
25 July 2000, to wit:
[T]he issue insofar as [Rodil Enterprises], revolved on:

"Whether [Rodil Enterprises] is legally entitled to collect from [Luciano Tan] the amount of rentals
and interest thereon as prayed for in the complaint and to ask for the ejectment of the defendant
from the leased premises."

On the other hand, [Luciano Tan]'s counsel formulated the issues of the case in the following
manner[,] to wit:

1) Whether or not under the circumstances[,][Luciano Tan] could be ejected from the premises in
question;

2) Whether or not under the circumstances[,] [Rodil Enterprises] should be made to return the
[11]
amounts collected from [Luciano Tan] from 1987 to 1997 amounting to P988,650.00.

On 6 October 2000, the MeTC rendered a Decision in favor of Rodil Enterprises. The court said that
Luciano Tan did not contest the sublease on a monthly basis, and in fact admitted in judicio, viz:
1) That [Luciano Tan] will pay P440,000.00 representing rentals from September 1997 up to the
present, which is the outstanding obligation of the defendant as of June, 2000, on or before June
30, 2000; and

2) [[Luciano Tan] will pay the monthly rentals computed at P13,750.00, on or before the 5th day of
[12]
each month after June 30, 2000.(Order dated June 27, 2000)

According to the MeTC, notwithstanding the evidentiary norm in civil cases that an offer of compromise
is not an admission of any liability, and is not admissible in evidence against the offeror, the court cannot
overlook the frank representations by Luciano Tan's counsel of the former's liability in the form of
rentals, coupled with a proposal to liquidate.[13] The foregoing gestures, as appreciated by the MeTC,
were akin to an admission of a fact, like the existence of a debt which can serve as proof of the loan, and
was thus, admissible.[14] The court pronounced that Luciano Tan had explicitly acknowledged his
liability for the periodic consideration for the use of the subleased property. Estoppel, thus, precludes
him from disavowing the fact of lease implied from the tender of payment for the rentals in arrears.[15]
The MeTC, explained further:
 Prescinding from the foregoing discourse, it ineluctably follows that [Luciano Tan]'s indifference to
heed the two demand letters, the cognition of which were recognized (paragraphs VII and IX,
Complaint; paragraph 2, Answer), rendered him a deforciant (1 Regalado, Remedial Law
Compendium, 6th Revised Edition, 1997, page 770, citing Dikit vs. Ycasiano, 89 Phil. 44), and was
thus vulnerable to the special civil action under Section 1, Rule 70 of the 1997 Rules of Civil
Procedure, especially so when non-payment of rentals is an accepted prelude to, and a secondary
matrix for, a tenant's eviction (Article 1673 (2), New Civil Code).

From a different plane, [Luciano Tan]'s quest at this juncture for recovery of the rentals he paid to
the plaintiff from 1987 to 1997 will not merit the desired result since, in a manner of speaking, it will
place the cart ahead of the horse, when juxtaposed with another pending controversy between the
parties before the Supreme Court (Annex "1," Position Paper for the Defendant; Annex "B," Answer
to Counterclaim).

The decretal portion of the Decision, states, viz:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered in favor of [Rodil
Enterprises], ordering:
1. Defendant Luciano Tan, and all persons claiming rights under him, to vacate the subject realty,
and to peacefully deliver possession to the plaintiff's representative;
2. Defendant [Luciano Tan] to pay the sum of FOUR HUNDRED FORTY THOUSAND PESOS
(P440,000.00) as recognized unpaid rentals from September, 1997 up to June 30, 2000;
3. Defendant [Luciano Tan] to pay the sum of THIRTEEN THOUSAND SEVEN HUNDRED
FIFTY PESOS (P13,750.00) as agreed rental per month, starting July, 2000, and every month
thereafter, until possession is delivered to the plaintiff's representative;
4. Defendant [Luciano Tan] to pay the sum of FIVE THOUSAND PESOS (P5,000.00) as
reasonable attorney's fees; and
5. Defendant [Luciano Tan] to pay the cost of suit.
For want of merit, defendant's counterclaim is hereby DISMISSED.
IT IS SO ORDERED.[16]

Aggrieved thereby, Luciano Tan appealed the Decision to the RTC. Meanwhile, Rodil Enterprises filed a
[17]
Motion for Issuance of Writ of Execution, which was subsequently denied by the MeTC in the
[18]
Order of 15 December 2000.

On 18 June 2001, the RTC rendered a Decision reversing the judgment appealed from and dismissing the
Complaint. It found that the MeTC erred in holding that the offer to compromise by Luciano Tan's
[19]
counsel was akin to an admission of fact, the same being contrary to Section 27, Rule 130 of the 1997
Rules of Civil Procedure. As reasoned by the RTC:
During the pre-trial conference held in the lower court, proposals and counter-proposals emanated
from the parties' counsels, which was normally inspired by the desire to "buy peace", nay, to put an
end to the troubles of litigation, and to promote settlement of disputes as a matter of public policy.
The act of defendant/appellant's (sic) in the midst of pre-trial is not an admission of any liability
and therefore, should not be considered admissible evidence against him.[20]

Proceeding to the issue of the right of Rodil Enterprises to collect rentals and eject Luciano Tan based on
the contracts, dated 18 May 1992 and 25 May 1992, the RTC ruled that the controversy is still pending
before the Supreme Court. It, thus, held that the prayer for recovery of rentals from 1987 to 1997 is
premature.
The RTC, disposed, as follows:
IN VIEW OF THE FOREGOING, the judgment appealed from is hereby REVERSED, and a new
judgment is hereby entered DISMISSING the complaint in Civil Case No. 166584 for utter lack of
[21]
merit.

Subsequently, Rodil Enterprises filed a Petition for Review with the appellate court, which, in a Decision
dated 21 October 2002 set aside the judgment of the RTC, and affirmed and reinstated the 6 October
2000 Decision of the MeTC.

According to the appellate court, there is, between Rodil Enterprises and the Republic of the Philippines,
a valid and subsisting Contract of Lease executed on 18 October 1999, the same for a period of fifteen (15)
years.[22] The period of the lease, under the 18 October 1999 contract is from 1 September 1997 to 31
August 2012. The Court of Appeals gave credence to the fact that the existence of the aforesaid contract
was not denied nor controverted by Luciano Tan. What Luciano Tan, instead, impugned was the validity
of the contracts dated 18 and 25 May 1992, which was upheld by this Court in the consolidated cases of
Rodil Enterprises, Inc. v. Court of Appeals, Carmen Bondoc, Teresita Bondoc-Esto, Divisoria Footwear
and Chua Huay Soon (G.R. No. 129609) and Rodil Enterprises, Inc. v. Ides O'Racca Building Tenants
Association, Inc. (G.R. No. 135537).[23]

Ruling on the more important question of whether Luciano Tan made a judicial admission anent his
liability as a sublessee of Rodil Enterprises, the Court of Appeals held that the former made an implied
admission of the existence of a contract of sublease between him and Rodil Enterprises on the subject
premises; and that he had reneged in the payment of rentals since 1 September 1997. Moreover, it
deemed Luciano Tan's Motion to Allow Defendant to Deposit Rentals as another admission in favor of
Rodil Enterprises. The appellate court elucidated, thus:
 The evidence on record indubitably shows that respondent [Luciano Tan] is a sublessee of petitioner
[Rodil Enterprises] who failed to pay rentals from 01 September 1997 and even until the case was
filed before the [M]etropolitan [T]rial [C]ourt, when respondent [Luciano Tan] "agreed in principle
in open court" to the following terms:

1) that the defendant [Luciano Tan] will pay P440,000.00 representing rentals from September,
1997 up to the present, which is the outstanding obligation of the defendant as of June, 2000, on or
before June 30, 2000; and

2) defendant [Luciano Tan] will pay the monthly rentals computed at P13,750.00 on or before the
5th day of each month after June 30, 2000.

at the hearing on 27 June 2000 though no settlement was eventually reached between the parties,
respondent [Luciano Tan] in effect made an implied judicial admission that there was a subsisting
contract of sublease between him and petitioner, and that he was remiss in the payment of rentals
from 01 September 1997 up to that day (Rollo, Annex "9" of petition). Respondent [Luciano Tan]'s
admission was further bolstered by the fact that he filed a "Motion to Allow Defendant to Deposit
Rentals" (Rollo, p. 3 of Annex "15" of petition). By such acts, respondent [Luciano Tan] accepted the
truth of petitioner [Rodil Enterprises'] allegation of the existence of a contract of sublease between
them and of his non-payment of the rentals from 01 September 1997. A judicial admission is an
admission made in the course of the proceedings in the same case, verbal or written, by a party
accepting for the purposes of the suit the truth of some alleged fact, which said party cannot
thereafter disprove (Remedial Law by Herrera, Oscar M. citing Section 4, Rule 129 of the Revised
[24]
Rules on Evidence and Evidence by Salonga).

The decretal portion of the 21 October 2002 Court of Appeals' Decision, states, thus:
WHEREFORE, in the light of the foregoing, the petition for review is GIVEN DUE COURSE. The
Decision dated 18 June 2001 of the Regional Trial Court of Manila, Branch 26 is hereby SET ASIDE.
The Decision dated 06 October 2000 of the Metropolitan Trial Court of Manila, Branch 13 is
[25]
AFFIRMED and REINSTATED.

The appellate court denied Luciano Tan's Motion for Reconsideration thereon, in a Resolution,[26] dated
12 May 2005.

Thus, petitioner comes before us, raising the following grounds, to wit:

I
 THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR WHEN
IT ISSUED ITS RESOLUTION DENYING PETITIONER'S MOTION FOR RECONSIDERATION OF
ITS DECISION BY RELYING SOLELY AND EXCLUSIVELY ON THE MARCH 28, 2005 DECISION
OF THE COURT OF APPEALS AND DESPITE THE FACT THAT THE SAID DECISION HAS NOT
YET BECOME FINAL AND EXECUTORY.

II

RESPONDENT RODIL ENTERPRISES IS GUILTY OF FORUM SHOPPING WHEN IT FILED THE

PETITION FOR CERTIORARI WITH THE COURT OF APPEALS DOCKETED AS CA-G.R. SP. NO.
79517 SEEKING TO NULLIFY THE ORDER OF EXECUTION BY THE OFFICE OF THE
PRESIDENT OF ITS 8 FEBRUARY 1994 DECISION IN OP CASE NO. 4968, DESPITE THE FACT
THAT ITS PREVIOUS PETITION FOR REVIEW FILED WITH THE COURT OF APPEALS OF THE
SAME DECISION OF THE OFFICE OF THE PRESIDENT DATED 8 FEBRUARY 1994 HAD BEEN
DISMISSED BY THE COURT OF APPEALS IN ITS RESOLUTION DATED NOVEMBER 17, 1994
DUE TO NON-COMPLIANCE WITH PROCEDURAL RULES.

III

THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR AND A

GRAVE MISAPPREHENSION OF THE FACTS AND MISAPPRECIATION OF THE EVIDENCE
WHEN IT RULED THAT PETITIONER IS A SUBLESSEE OF RESPONDENT AND THAT
[27]
PETITIONER WAS REMISS IN THE PAYMENT OF HIS RENTALS OVER THE PREMISES.

The Petition is without merit.

We shall address the first ground raised by petitioner with regard to the alleged reliance of the Court of
Appeals on the Decision of the Tenth Division of the same court, dated 28 March 2005 in CA-G.R. SP No.
79157, entitled, Rodil Enterprises, Inc. v. The Office of the President and Ides O'Racca Building Tenants
Association, Inc.[28]

Contrary to petitioner's contention, we do not find that the Court of Appeals was in error when it took
notice of the ruling in CA-G.R. SP No. 79157 in resolving petitioner's Motion for Reconsideration. As
respondent Rodil Enterprises asseverated, for the appellate court to ignore a decision rendered by a
division thereof would be to turn a blind eye on a valid judgment rendered by the same appellate body.
Neither can we give merit to petitioner's submission that the reliance by the Court of Appeals on its
Decision in CA-G.R. SP No. 79517 is premature and misplaced. More significantly, the contention of the
petitioner that the Decision in CA-G.R. SP No. 79517 has not attained finality has become mute when
viewed within recent factual developments. The ruling in CA-G.R. SP No. 79517 has long reached finality.
This Court in a Resolution[29] dated 25 January 2006 denied the Petition for Review on Certiorari filed
by the Ides O'Racca Building Tenants Association, Inc. thereon. On 20 March 2006, this Court denied
with finality the Motion for Reconsideration of the 25 January 2006 Resolution for lack of compelling
reason or substantial argument.[30]

Moreover, on 12 April 2004, the appellate court issued a Resolution,[31] granting petitioner a hearing on
its Motion for Reconsideration as the grounds cited therein needed further clarification. This belies
petitioner's claim that the resolution on the Motion for Reconsideration was based solely on the ruling of
the Court of Appeals in CA-G.R. SP No. 79517.
We come to the second ground raised by the petitioner. Petitioner argues that Rodil Enterprises is guilty
of forum shopping when it filed the Petition for Certiorari with the Court of Appeals, docketed as CA-G.R.
SP No. 79157,[32] after it filed an Appeal with the appellate court in CA-G.R. SP No. 34586.[33] Forum
shopping is the act of a party against whom an adverse judgment has been rendered in one forum,
seeking another and possibly favorable opinion in another forum other than by appeal or special civil
action of certiorari.[34]

The question of forum shopping is not even material to the instant petition.

It must be emphasized that neither CA-G.R. SP No. 79157 nor CA-G.R. SP No. 34586 is before this Court
for consideration. These cases are separate and distinct from CA-G.R. SP No. 67201 now before us.

What are assailed in the instant Petition are the Decision of the Court of Appeals, dated 21 October 2002
and the Resolution, dated 12 May 2005 in CA G.R. SP No. 67201, which reversed the ruling of the RTC,
and affirmed the MeTC, ordering Luciano Tan to vacate the premises and peacefully deliver possession to
Rodil Enterprises. The matter in controversy is the refusal of Luciano Tan to pay the monthly rentals over
Botica Divisoria under the contract of sublease between the parties.

On the other hand, CA-G.R. SP No. 79157 was a Petition for Review on Certiorari seeking to nullify the
Order of Execution of the Office of the President of its 8 February 1994 Decision in OP Case No. 4968
finding the Renewal of Contract of Lease, and the Supplemental Contract of no force and effect. CA-G.R.
SP No. 34586 was an appeal on the Decision in O.P. Case No. 4968, which was the basis of the Order of
Execution. If there has indeed been forum shopping when CA-G.R. SP No. 79517 was instituted during
the pendency of CA-G.R. SP No. 34586, such question should have been raised by petitioner, at first
instance, before the Court of Appeals in CA-G.R. SP No. 79517. It should be noted that the petition in CA-
G.R. SP No. 79517 was already given due course by the Court of Appeals and its ruling therein has long
attained finality when, on appeal to this Court, docketed as G.R. No. 169892, we denied the said appeal
with finality in our Resolutions dated 25 January 2000 and dated 20 March 2006. Whatever matters
concerning the said case is now beyond the jurisdiction of this Court to resolve.

We proceed to the final ground raised by the petitioner for the allowance of the instant Petition.
Petitioner assails the factual findings of the Court of Appeals when it ruled that there was a judicial
admission as to petitioner's liability under a contract of sublease between him and Rodil Enterprises.

To resolve this issue, a reading of the significant orders of the MeTC and the pleadings filed by petitioner
is warranted.

The MeTC issued an Order, dated 27 June 2000 of the following import, to wit:
On second call, the parties and counsel agreed in principle in open court to the following terms to
put an end to this civil case for ejectment between them:

1.) that the defendant [Luciano Tan] will pay P440,000.00 representing rentals from September,
1997 up to the present, which is the outstanding obligation of the defendant as of June, 2000 on or
before June 30, 2000; and

2.) the defendant [Luciano Tan] will pay the monthly rentals computed at P13,750.00 on or before
[35]
the 5th day of each month after June 30, 2000.
On 14 August 2000, petitioner filed a Motion to Allow Defendant to Deposit Rentals with the MeTC,
praying that he be allowed to deposit the rentals due as of August 2000, in the amount of P467,500.00,
and the subsequent monthly rentals as it falls due.

Petitioner posits that the aforesaid admission, made in open court, and then, reiterated in his Motion to
Allow Defendant to Deposit Rentals, cannot be taken as an admission of his liability, citing Section 27,
Rule 130 of the Rules of Court,[36] which states, inter alia, that an offer of compromise in a civil case is
not a tacit admission of liability.

The general rule is an offer of compromise in a civil case is not an admission of liability. It is not
admissible in evidence against the offeror.

The rule, however, is not iron-clad. This much was elucidated by this Court in Trans-Pacific Industrial
Supplies, Inc. v. Court of Appeals,[37] to wit:
To determine the admissibility or non-admissibility of an offer to compromise, the circumstances of
the case and the intent of the party making the offer should be considered. Thus, if a party denies
the existence of a debt but offers to pay the same for the purpose of buying peace and avoiding
litigation, the offer of settlement is inadmissible. If in the course thereof, the party making the offer
admits the existence of an indebtedness combined with a proposal to settle the claim amicably,
then, the admission is admissible to prove such indebtedness (Moran, Comments on the Rules of
Court, Vol. 5, p. 233 [1980 ed.]); Francisco, Rules of Court, Vol. VII, p. 325 [1973 ed.] citing McNiel
v. Holbrook, 12 Pac. (US) 84, 9 L. ed., 1009). Indeed, an offer of settlement is an effective admission
of a borrower's loan balance (L.M. Handicraft Manufacturing Corp. v. Court of Appeals, 186 SCRA
[38]
640 [1990]. x x x.

Similarly, in the case of Varadero de Manila v. Insular Lumber Co.[39] the Court applied the exception to
the general rule. In Varadero' there was neither an expressed nor implied denial of liability, but during
the course of the abortive negotiations therein, the defendant expressed a willingness to pay the plaintiff.
Finding that there was no denial of liability, and considering that the only question discussed was the
amount to be paid, the Court did not apply the rule of exclusion of compromise negotiations.

In the case at bar, the MeTC and the Court of Appeals properly appreciated petitioner's admission as an
exception to the general rule of inadmissibility. The MeTC found that petitioner did not contest the
existence of the sublease, and his counsel made frank representations anent the former's liability in the
form of rentals. This expressed admission was coupled with a proposal to liquidate. The Motion to Allow
Defendant to Deposit Rentals was deemed by the MeTC as an explicit acknowledgment of petitioner's
liability on the subleased premises. The Court of Appeals agreed with the MeTC. Indeed, the existence of
the Contract of Lease, dated 18 October 1999 was not denied by petitioner. The contracts that were
assailed by petitioner are the contracts dated 18 and 25 May 1992, the validity of which has been upheld
by this Court in the consolidated cases of G.R. No. 129609 and G.R. No. 135537.

Finally, we find a categorical admission on the part of petitioner, not only as to his liability, but also, as to
the amount of indebtedness in the form of rentals due. The Order of the MeTC dated 27 June 2000 was
clear that the petitioner agreed in open court to pay the amount of P440,000.00, representing
petitioner's unpaid rentals from September 1997 to June 2000; and that petitioner will pay the monthly
rentals computed at P13,750.00 on or before the 5th day of each month after 30 June 2000. The
petitioner's judicial admission in open court, as found by the MeTC, and affirmed by the Court of Appeals
finds particular significance when viewed together with his Motion to Allow Defendant to Deposit
Rentals, wherein petitioner stated that the rentals due on the premises in question from September 1997
up to the present amounted to P467,500.00, as of the date of filing the Motion. Petitioner cannot now be
allowed to reject the same. An admission made in the pleading cannot be controverted by the party
making such admission and are conclusive as to him, and that all proofs submitted by him contrary
thereto or inconsistent therewith should be ignored whether objection is interposed by a party or not.
[40] A judicial admission is an admission made by a party in the course of the proceedings in the same
case, for purposes of the truth of some alleged fact, which said party cannot thereafter disprove.[41]

WHEREFORE, the Petition is DENIED. The Decision dated 21 October 2002 and the Resolution dated 12
May 2005 in CA-G.R. SP No. 67201, affirming and reinstating the 6 October 2000 Decision of the MeTC
in Civil Case No. 166584 are AFFIRMED. Costs against petitioners.

SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez, and Callejo, Sr., JJ., concur.

* Retired as of 7 December 2006.

[1] Penned by Associate Justice Andres B. Reyes, Jr. with Associate Justices Ruben T. Reyes and Danilo
B. Pine, concurring; rollo, pp. 43-51.

[2] Id. at 53-59.

[3] Penned by Judge Guillermo L. Loja, Sr.; records, pp. 300-301.

[4] Penned by Presiding Judge Eduardo B. Peralta, Jr.; id. at 216-219.

[5] Id.at 2-7.

[6] Per Bellosillo, J. with the concurrence of Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ,
concurring. G.R. No. 129609 and G.R. No. 135537; 422 PHIL 388 (2001).

[7] Rollo, pp. 173-188.

[8] Records at 121.

[9] Id. at 162-163.

[10] SEC. 19. Immediate execution of judgment; how to stay same. If judgment is rendered against the
defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the
defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court
and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of
the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to time under the contract, if any, as determined by the
judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional
Trial Court the reasonable value of the use and occupation of the premises for the preceding month or
period at the rate determined by the judgment of the lower court on or before the tenth day of each
succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court,
with the other papers, to the clerk of the Regional Trial Court to which the action is appealed.

All amounts so paid to the appellate court shall be deposited with said court or authorized government
depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by
agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to
withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the
payments above prescribed from time to time during the pendency of the appeal, the appellate court,
upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment
appealed from with respect to the restoration of possession, but such execution shall not be a bar to the
appeal taking its course until the final disposition thereof on the merits.

After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for
purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment
of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the
lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the
Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be
allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal.

[11] Id. at 127.

[12] Id. at 217.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 219.

[17] Id. at 248-252.

[18] The MeTC, in denying Rodil Enterprises' Motion held that Section 1, Rule 39 of the 1997 Rules of
Civil Procedure explicitly applies to a situation where no appeal was duly perfected, which situation was
not attendant in the case at bar; id. at 278-279.

[19] SECTION 27. Offer of compromise not admissible. In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromise by the accused may be received in evidence as an
implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal liability for the injury.

[20]
[20] Id. at 301.

[21] Id.

[22] On the matter of the subsisting Contract dated 18 October 1999, the Court of Appeals, held:

...
The evidence on record shows that there is a valid and subsisting Contract of Lease executed on 18
October 1999 between petitioner and the Republic through then Secretary Antonio H. Cerilles of the
DENR, which lease is for a period of fifteen (15) years from 01 September
1997 to 31 August 2012 (Rollo, Annex "3" of petition). This contract was executed after study and
recommendation by the DENR in view of a Resolution dated 21 May 1999 issued by the Office of the
President which: 1) held in abeyance its decision dated 08 February 1994, which decision, among
others, declared the renewal of contract of lease and its supplement of no force and effect and
directed the DENR to award the lease contract in favor of the Ides O'Racca Building Tenants
Association (ASSOCIATION) of which respondent herein is a member; and 2) ordered the remand
of the decision of the Office of the President awarding the lease contract to the ASSOCIATION for
further study and recommendation by the DENR (Rollo, Annex "A" of Annex "6" of petition).; CA
rollo, pp. 253-254.

[23] Supra note 6.

[24] CA rollo, p. 255-256.

[25] Id. at 256.

[26] Rollo, pp. 53-59.

[27] Id. at 24-25.

[28] Penned by Associate Justice Santiago Javier Ranada, with the concurrence of Associate Justice
Marina L. Buzon and Associate Justice Mario L. Guariña III; id. at 194-206.

[29] Rollo, p. 305.

[30] Id. at 305.

[31] CA rollo, p. 297.

[32] Entitled Rodil Enterprises, Inc. v. The Office of the Presidentand Ides O'Racca Building Tenants
Association, Inc.. This Petition for Review on Certiorari filed with the Court of Appeals is directed against
the Order of Execution by the Office of the President of its 8 February 1994 Decision in OP Case No.
4968, which declared the 18 May 1992 and the 25 May 1992 contracts of no force and effect.

[33] Entitled Rodil Enterprises Company, Inc. v. Spouses Saturnino B. Alvarez and Epifania Binay
Alvarez. This Petition for Review was directed on the 8 February 1994 Decision of the Office of the
President in OP Case No. 4968

[34] Heirs of Trinidad de Leon Vda. De Roxas v. Court of Appeals, G.R. No. 138660, 5 February 2004,
422 SCRA 101.
[35] Records, p. 121.

[36] SECTION 27. Offer of compromise not admissible. In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromise by the accused may be received in evidence as an
implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal liability for the injury. (Italics supplied.)

[37] G.R. No. 109172, 19 August 1994, 235 SCRA 494, 504.

[38] Id. at 504.

[39] G.R. No. 21911, 46 Phil. 176 (1924).

[40] Id. at 150.

[41] Republic v. Sarabia, G.R. No. 157847, 25 August 2005, 468 SCRA 142.
 DIVISION

[ GR No. 181829, Sep 01, 2010 ]

PEOPLE v. SATURNINO VILLANUEVA

DECISION
644 Phil. 175

DEL CASTILLO, J.:

[1]
On appeal is the November 5, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
[2]
02210 which affirmed with modification the November 28, 2003 Decision of the Regional Trial Court
(RTC) of Tayug, Pangasinan, Branch 51. The CA found appellant Saturnino Villanueva guilty beyond
reasonable doubt of three counts of qualified rape and sentenced him to suffer the penalty of reclusion
perpetua and to pay his victim the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral
damages, and P25,000.00 as exemplary damages, for each count.

Factual Antecedents:

On November 6, 2002, three Informations were filed against appellant for the crime of rape. The
accusatory portions of the Informations read:
 Crim. Case No. T-3157:

th
That on or about the 9 day of June, 2002, at dawn, x x x, province of Pangasinan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused who is the father of
complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and
[3]
there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a minor 12
years of age, against her will and consent, to the damage and prejudice of said "AAA."

[4]
CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.

Crim. Case No. T-3158:

th
That on or about the 27 day of September, 1999, in the evening, at x x x, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is
the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation,
did then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a
minor 9 years of age, against her will and consent, to the damage and prejudicie of said "AAA."

[5]
CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.

Crim. Case No. T-3159:

th
That on or about the 28 day of September, 1999, at dawn, at x x x, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is
the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation,
did then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a
minor 9 years of age, against her will and consent, to the damage and prejudice of said "AAA."

[6]
CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.

When arraigned on November 14, 2002, appellant pleaded not guilty to all charges.[7]

During pre-trial, the parties stipulated that the appellant is the father of "AAA." It was likewise agreed
that "AAA" was below 12 years of age when the rape incidents happened.[8] "AAA's" birth and medical
certificates were likewise marked as Exhibits "A" and "C," respectively.[9]

Thereafter, the cases were tried jointly.[10]

Version of the Prosecution

The prosecution presented "AAA" as its witness. "AAA" narrated that when she was about 4 years old,
her mother left her in the care of her father, herein appellant. Since then, she had been living with her
father.

"AAA" claimed that appellant sexually abused her on September 27 and 28, 1999 and on June 9, 2002.
During her testimony, "AAA" narrated that:
PROS. ULANDAY:

Will you please state your name, age and other personal circumstances?
Q

WITNESS:
[11]
I am "AAA," 13 years old, out-of-school youth, presently residing at x x x
A

xxxx

PROS. ULANDAY:

Q Madam Witness, do you still remember September 27, 1999?

Yes, sir.
A

Q Why do you remember that particular date?

That was the birthday of my father and the date when he touched me, sir.
A

xxxx
Q Who rape[d] you?
My papa, sir. Witness pointed to the accused.
A

xxxx
PROS. ULANDAY:

Q You claimed that your father touched and used you. How did he begin in touching you?
He tied me, sir.
A

xxxx

Q What part of your body was x x x tied by your father?

My mouth, sir.
A

Q What other parts of your body, if there [are] any?

My hands and my feet, sir.
A

PROS. ULANDAY:
[12]
My witness is crying, your Honor.

xxxx

Q Now, after your father tied you on September 27, 1999, what did he do, if there's any?
He raped me, sir.
A

COURT:
What do you mean by x x x saying he raped you?
Q

xxxx
He undressed me, sir.
A
xxxx

COURT:
[13]
And we make of record that [witness is now] in tears.

xxxx
PROS. ULANDAY:

Madam Witness, during the last hearing you uttered the word "incua na." What do you
Q
mean by that?
He inserted his penis into my vagina, sir.
A

Q How long a time did your father [insert] his penis into your vagina?
About two minutes, sir.
A

At early dawn of September 28, 1999, what happened if any, between you and your
Q
father?
The same, sir.
A

Q What do you mean by the same?

That he inserted his penis into my vagina, sir.
A

Q Before your father inserted his penis into your vagina, what did he do, if there was any?
He first undressed me, sir.
A

Q While he was undressing you what were you doing, if any?

I failed to do any, sir.
A

Q Why did you fail to do any?

Because I was afraid, sir.
A

Q Why were you afraid at the time?

Because he threatened me, sir.
A

Q How did he [threaten] you?

That if I would report the matter to anyone he would kill the person to whom I will
A report, sir.

Q Do you remember June 9, 2002 at 3:00 o'clock dawn?

Yes, sir.
A

Q Why do you remember that particular date?

Because he again raped me, sir.
A

Q Who raped you?

My father, sir.
A

Q In what particular place [were] you raped?

In our house, sir.
A
 xxxx
Q You claimed that you were raped by your father, how did he rape you?
He undressed me, sir.
A

Q What else did he do aside from undressing you?

He poked a knife at me, sir.
A

Q And after poking a knife at you, what happened next, if any?

Then he touched (kinuti) me, sir.
A

Q What part of your body was touched by your father?

My vagina, sir.
A

Q How did he touch your vagina?

He inserted his penis into my vagina, sir.
A

Q What happened when he inserted his penis into your vagina?

[14]
I cried, sir.
A

Q: You have no idea about what?

[20]
A: I do not know how to come to this court, sir.

After the presentation of "AAA's" testimony, the prosecution rested its case.

Version of the Defense

The defense presented appellant as its first witness. In his testimony, appellant admitted that "AAA" is
his daughter.[15] He also admitted that on September 27 and 28, 1999 and June 9, 2002, he was living
in the same house as "AAA."[16] However, when asked regarding the rape charges filed against him by
his daughter, appellant denied the same. Thus:

And this daughter of your[s] now charge you [with] rape in Crim. Case Nos. T-
Q 3157/3158/3159 for allegedly having sexual intercourse with her against her will and
consent. What can you say against these charges by your daughter?
[17]
A [Those are] not true, sir.

The defense next presented Marcelino Villanueva (Marcelino) who testified that he is the father of the
appellant.[18] He claimed that "AAA" filed the rape cases against appellant because the latter forbade
her to entertain suitors.[19] Marcelino also alleged that after appellant was incarcerated, "AAA" eloped
with her 20-year old boyfriend and that "AAA" only separated from her boyfriend when she was brought
under the care of the Department of Social Welfare and Development.[20] When asked how old "AAA"
was when she allegedly eloped with her boyfriend, Marcelino answered that "AAA" was only 13 years old.
[21]

Ruling of the Regional Trial Court

The trial court lent credence to the testimony of "AAA." However, it noted that although it was agreed
upon during the pre-trial that "AAA" was a minor below 12 years of age, the fact remains that "AAA" was
12 years, six months and 19 days when she was ravished by the appellant on June 9, 2002.[22] The court
below also observed that "AAA has always been a pathetic child of oppression, abuse and neglect" and
that "[h]er innocence, tender age, dependence [on appellant] for survival, and her virtual orphanhood
sufficed to qualify every sexual molestation perpetrated by her father as rape x x x."[23]

The dispositive portion of the Decision reads:

WHEREFORE, finding the accused SATURNINO VILLANUEVA guilty beyond reasonable doubt of
three counts of rape, defined and penalized by Article 266-A of the Revised Penal Code, perpetrated
against [his] daughter on September 27, 1999, September 28, 1999 and June 9, 2002, x x x and as
mandated by Article 266-B, same Code, the Court hereby sentences him to suffer the penalty of
DEATH for each offense, to indemnify the complainant "AAA" for damages in the amount of
P50,000.00 per [count], and to pay the costs.

[24]
SO ORDERED.

Ruling of the Court of Appeals

In his brief filed before the appellate court, appellant claimed that the prosecution failed to present
evidence that would overcome the presumption of his innocence. Appellant also alleged that the trial
court erred in lending credence to the unrealistic and unnatural testimony of "AAA."[25] He claimed that
it was unusual for "AAA" not to offer any resistance to the advances allegedly made by him considering
that he was unarmed. According to the appellant, "AAA" should have struggled or at least offered some
resistance because she was not completely helpless.[26] Appellant also suggested that "AAA" must have
been coached because initially, she did not know the acts which constitute rape. However, during the
succeeding hearings, "AAA" allegedly testified in detail the bestial acts committed against her.[27]

Moreover, appellant argued that the prosecution failed to formally offer in evidence the medical
certificate and to present the doctor who conducted the medical examination to testify on his findings.
[28] Likewise, "AAA's" birth certificate was not formally offered. Neither did the Municipal Civil
Registrar who allegedly prepared the same take the witness stand. Thus appellant claimed that assuming
he was indeed guilty of the crimes charged, he should only be held liable for simple rape and not qualified
rape because the minority of the victim was not duly established.[29] Further, with the passage of
Republic Act No. 9346, appellant should not be sentenced to death.[30]

On the other hand, appellee maintained that "AAA's" credibility was beyond doubt[31] and that it was
unnecessary to offer proof of resistance where the assailant exercised moral ascendancy against his
victim, as in this case.[32] Appellee insisted that the crimes committed were three counts of qualified,
and not simple, rape considering that "AAA" was a minor and the offender was her father,[33] and that
the parties had already stipulated during pre-trial as regards the age of the victim.[34]

On November 5, 2007, the appellate court rendered its Decision disposing thus:
 WHEREFORE, premises considered, the Decision dated 28 November 2003 of the Regional Trial
Court of Tayug, Pangasinan, Branch 51 in Crim. Case Nos. T-3157, T-3158 and T-3159 finding
accused-appellant Saturnino Villanueva guilty beyond reasonable doubt of three (3) counts of
qualified rape under Articles 266-A and 266-B is AFFIRMED with the MODIFICATION that
pursuant to Republic Act No. 9346, the penalty of death imposed on appellant is reduced to
reclusion perpetua for each count of qualified rape, without eligibility for parole under Act No.
4103, as amended. Further, accused-appellant is ordered to pay the private complainant/victim
["AAA"], for each count of qualified rape, the amounts of Php 75,000.00 as civil indemnity, Php
75,000.00 as moral damages and Php 25,000.00 as exemplary damages.

[35]
SO ORDERED.

The appellate court found no reason to reverse the findings of the trial court on the credibility of "AAA."
[36] Although there were occasions when "AAA" would not immediately answer the questions
propounded to her, the CA opined that it was because she was either distressed in recounting her horrible
experiences or in tears.[37] The appellate court likewise considered the fact that "AAA" was only 13 years
old when she testified on her harrowing experiences.[38]

The appellate court likewise brushed aside appellant's contention that "AAA" did not offer any
resistance. According to the CA, appellant's moral ascendancy over "AAA" substitutes for violence or
intimidation.[39]

The CA also concluded that even without the medical certificate, appellant could still be held liable for
three counts of rape. His conviction could rest exclusively on the credible testimony of "AAA" and the
medical certificate would only be corroborative evidence.[40] Anent the birth certificate, the CA recalled
that during pre-trial, the minority of the victim and her relationship with the appellant had already been
stipulated upon. Hence, the said elements have been sufficiently alleged in the Informations and proven
during trial.[41]

Finally, the CA held that appellant's denial is intrinsically weak and self-serving especially considering
"AAA's" credible and straightforward testimony.[42]

Our Ruling

Both the appellant and the appellee opted not to file their supplemental briefs.[43]

The appeal is partly meritorious.

At the outset, we must state that we entertain no doubt that appellant thrice raped his daughter, "AAA."
We examined the records and we find "AAA's" testimony convincing and straightforward. We therefore
have no reason to reverse or modify the findings of the trial court on the credibility of the victim's
testimony, more so in this case where the said findings were affirmed by the CA.

We also agree with the ruling of the appellate court that appellant could be convicted of rape even
without the medical certificate. "In rape cases, the accused may be convicted solely on the testimony of
the victim, provided the testimony is credible, natural, convincing, and consistent with human nature
and the normal course of things."[44] As stated above, "AAA's" testimony was credible and convincing.
As such, appellant's conviction could rest solely on it. The medical certificate would only serve as
corroborative evidence.

We, however, agree with the appellant that both the medical certificate and "AAA's" birth certificate,
although marked as exhibits during the pre-trial, should not have been considered by the trial court and
the CA because they were not formally offered in evidence. Section 34, Rule 132 of the Rules of Court
explicitly provides: "The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified."

In this case, we note that after the marking of the exhibits during pre-trial, the prosecution did not
formally offer the said medical certificate or birth certificate in evidence. In fact, the prosecution rested
its case after presenting the testimony of "AAA" without formally offering any documentary exhibit at all.

Our ruling in Heirs of Pedro Pasag v. Parocha[45] is instructive, thus:

The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a
considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any
evidence that has not been offered shall be excluded and rejected.

xxxx

The Rules of Court [provide] that `the court shall consider no evidence which has not been formally
offered.' A formal offer is necessary because judges are mandated to rest their findings of facts and
their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is
to enable the trial judge to know the purpose or purposes for which the proponent is presenting the
evidence. On the other hand, this allows opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court will not be required to review
documents not previously scrutinized by the trial court.

xxxx

Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the
documents not offered. Documents which may have been identified and marked as
exhibits during pre-trial or trial but which were not formally offered in evidence
cannot in any manner be treated as evidence. Neither can such unrecognized proof be
assigned any evidentiary weight and value. It must be stressed that there is a significant
distinction between identification of documentary evidence and its formal offer. The former is done
in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit;
while the latter is done only when the party rests its case. The mere fact that a particular document
is identified and marked as an exhibit does not mean that it has already been offered as part of the
evidence. It must be emphasized that any evidence which a party desires to submit for the
consideration of the court must formally be offered by the party; otherwise, it is excluded and
[46]
rejected.

We reiterated the above ruling in Dizon v. Court of Tax Appeals[47] where one of the issues presented
was whether the Court of Tax Appeals and the CA gravely abused their discretion "in allowing the
admission of the pieces of evidence which were not formally offered" by the Bureau of Internal Revenue.
[48] In finding the case impressed with merit, the Court held that:
 Under Section 8 of RA 1125, the CTA is categorically described as a court of record. As cases filed
before it are litigated de novo, party-litigants shall prove every minute aspect of their cases.
Indubitably, no evidentiary value can be given the pieces of evidence submitted by the BIR, as the
rules on documentary evidence require that these documents must be formally offered before the
CTA. x x x

xxxx

x x x [T]he presentation of the BIR's evidence is not a mere procedural technicality which may be
disregarded considering that it is the only means by which the CTA may ascertain and verify the
truth of BIR's claims against the Estate. The BIR's failure to formally offer these pieces of evidence,
despite CTA's directives, is fatal to its cause. Such failure is aggravated by the fact that not even a
single reason was advanced by the BIR to justify such fatal omission. This, we take against the BIR.
[49]

We are not unaware that there is an exception to the above-stated rule. In People v. Mate,[50] Silvestre
Mate (Mate) was charged with the crime of "Kidnapping for Ransom with Murder and Frustrated
Murder."[51] During arraignment, he entered a plea of "guilty." The court then propounded clarificatory
questions to determine whether the accused understood the consequences of his plea. Immediately
thereafter, the trial court promulgated its decision finding the accused guilty as charged and sentenced
him to death.[52] It was only after the rendition of the judgment that the trial court conducted hearings
for the reception of the prosecution's evidence.[53]

From the prosecution's evidence, it would appear that during the investigation, Mate voluntarily made
extra-judicial statements as contained in Exhibits "A," "B," and "J." Also, after his conviction, he
appeared as witness for the prosecution against his co-accused where he affirmed his extra-judicial
statements in Exhibits "A," "B," and "J." However, the state prosecutor failed to formally offer said
exhibits.

In debunking the defense's contentions that the trial court erred in rendering a judgment of conviction
on Mate even before the prosecution could present its evidence, and in considering the exhibits which
were not formally offered, the Court held thus:
 The defense contends that the trial court committed a serious error in rendering judgment of
conviction immediately after Mate had pleaded guilty to the crime charged on the basis of his plea of
guilty and before receiving any evidence. While the trial court committed an error in rendering
judgment immediately after the accused had pleaded guilty, and, thereafter, conducted hearings for
the reception of the evidence for the prosecution, such an irregularity, is insufficient to justify the
setting aside of the judgment of conviction, considering that it is supported by the judicial and
extra-judicial confessions of the accused and by other evidence. x x x

xxxx

The defense questions also the failure of the state prosecutor Cornelio Melendres to make a formal
offer of his exhibits, although they have been marked and identified. Such an oversight appears
trivial because the entire evidence for the prosecution is recorded. Even without the exhibits which
have been incorporated into the records of the case, the prosecution can still establish the case
because the witnesses properly identified those exhibits and their testimonies are recorded.

Exhibits "A", "B", and "J" are all admissible against Mate because it appears with clarity that he
voluntarily and spontaneously gave those narrations without compulsion from anybody. In fact, . . .
[54]
when he testified against Ben Bohol he affirmed those narrations again.

In Mato v. Court of Appeals,[55] we concretized the above ruling by holding that evidence, although not
formally offered in evidence, may be "admitted and considered by the trial court provided the following
requirements are present, viz: first, the same must have been duly identified by testimony duly recorded
and, second, the same must have been incorporated in the records of the case."[56] In Ramos v. Dizon,
[57] we deemed the exhibits to have been incorporated into the records because they had been
"presented and marked during the pre-trial of the case."[58] Likewise, the first requisite was deemed
satisfied because one of the parties therein explained the contents of the exhibits when interrogated by
the respondents' counsel.[59]

In the instant case, we find the rulings espoused in People v. Mate,[60] Mato v. Court of Appeals,[61]
and Ramos v. Dizon[62] not applicable. Thus, we find that both the trial court and the CA erred in
allowing the admission of "AAA's" medical certificate and birth certificate. The records would show that
the lone witness for the prosecution did not identify the said exhibits or explain their contents. When
"AAA" was placed on the witness stand, she merely stated that she was 13 years old. No reference was
ever made to her birth certificate. The same is true with the medical certificate. After the marking during
the pre-trial, the prosecution did not refer to it in any stage of the proceedings. Neither did it present the
doctor who prepared the same.

Moreover, appellant's admission during the pre-trial that "AAA" was a minor below 12 years of age[63]
would not help the prosecution's case. First, the trial court found this admission inaccurate as in fact,
"AAA" was already above 12 years of age when the rape incident transpired on June 9, 2002. Second and
more important, appellant's admission during pre-trial is not admissible as it violates Section 2, Rule 118
of the Rules of Court which explicitly provides that: "All agreements or admissions made or entered
during the pre-trial conference shall be reduced in writing and signed by the accused and his counsel,
otherwise they cannot be used against the accused. x x x." In People v. Chua Uy,[64] we held that:
 Even granting for the sake of argument that RAMON admitted during the pre-trial that Exhibits "D"
to "D-4", inclusive, and Exhibit "E" contained methamphetamine hydrochloride, the admission
cannot be used in evidence against him because the Joint Order was not signed by RAMON and his
counsel. Section 4 of Rule 118 of the Rules of Court expressly provides:

SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered

during the pre-trial conference shall be used in evidence against the accused unless reduced to
writing and signed by his counsel.

Put in another way, to bind the accused the pre-trial order must be signed not only by him but his
counsel as well. The purpose of this requirement is to further safeguard the rights of the accused
against improvident or unauthorized agreements or admissions which his counsel may have entered
into without his knowledge, as he may have waived his presence at the pre-trial conference;
eliminate any doubt on the conformity of the accused of the facts agreed upon.

In this case, records would show that the Pre-trial Order was not signed by both appellant and his
counsel.

In view of the foregoing, we find that the prosecution did not present any satisfactory evidence to prove
"AAA's" minority. "In the prosecution of criminal cases, x x x, nothing but proof beyond reasonable
doubt of every fact necessary to constitute the crime with which an accused is charged must be
established. Qualifying circumstances or special qualifying circumstances must be proved with equal
certainty and clearness as the crime itself; otherwise, there can be no conviction of the crime in its
qualified form. As a qualifying circumstance of the crime of rape, the concurrence of the victim's
minority and her relationship to the accused-appellant must be both alleged and proven beyond
reasonable doubt."[65]

In view of the foregoing, we find appellant guilty only of three counts of simple rape[66] the penalty for
which is reclusion perpetua for each count. Accordingly, the awards of civil indemnity must be reduced
to P50,000.00 and moral damages to P50,000.00. Finally, the award of exemplary damages is proper.
"Exemplary damages may be awarded in criminal cases as part of civil liability if the crime was
committed with one or more aggravating circumstances. Relationship as an alternative circumstance
under Article 15 of the Revised Penal Code is considered aggravating in the crime of rape."[67] In this
case, the aggravating circumstance of relationship was duly established. Appellant himself admitted
when he testified in open court that he is "AAA's" father. However, the award of P25,000.00 as
exemplary damages must be increased to P30,000.00 in line with prevailing jurisprudence.[68]

WHEREFORE, we find appellant Saturnino Villanueva GUILTY of three counts of simple rape and
accordingly sentence him to suffer the penalty of reclusion perpetua and to indemnify his victim "AAA"
the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as
exemplary damages, for each count.

SO ORDERED.

Corona, C. J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Perez, JJ., concur.
[1] CA rollo, pp. 167-198; penned by Associate Justice Celia C. Librea-Leagogo and concurred in by
Associate Justices Regalado E. Maambong and Sixto C. Marella, Jr.

[2] Records of Crim. Case No. T-3157, pp. 69-77; penned by Judge Ulysses Raciles Butuyan.

[3] The identity of the victim or any information which could establish or compromise her identity, as
well as those of her immediate family or household members, shall be withheld pursuant to Republic Act
No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse,
Exploitation and Discrimination, and for Other Purposes; Republic Act No. 9262, An Act Defining
Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule
on Violence Against Women and Their Children, effective November 5, 2004.

[4] Records of Crim. Case No. T-3157, p. 1.

[5] Records of Crim. Case No. T-3158, p. 1.

[6] Records of Crim. Case No. T-3159, p. 1.

[7] Records of Crim. Case No. T-3157, p. 15.

[8] Id. at 28.

[9] Id.

[10] Id.

[11] TSN, January 22, 2003, pp. 2-3.

[12] TSN, February 5, 2003, pp. 2-4.

[13] TSN, February 19, 2003, pp. 4-6.

[14] TSN, February 26, 2003, pp. 2-4.

[15] TSN, April 2, 2003, p. 3.

[16] Id. at 3, 5 and 7.

[17] Id. at 3.

[18] TSN, July 24, 2003, p. 3.

[19] Id.

[20] Id. at 5.

[21] Id. at 6.

[22]
[22] Records of Crim. Case No. T-3157, p. 74.

[23] Id. at 77.

[24] Id.

[25] CA rollo, p. 116.

[26] Id. at 119.

[27] Id.

[28] Id. at 120.

[29] Id. at 121-122.

[30] Id. at 122.

[31] Id. at 148.

[32] Id. at 149.

[33] Id. at 151-152.

[34] Id. at 155.

[35] Id. at 196.

[36] Id. at 183.

[37] Id. at 187.

[38] Id. at 188.

[39] Id. at 189.

[40] Id. at 191.

[41] Id. at 192.

[42] Id. at 193.

[43] Rollo, pp. 43-51.

[44] People v. Valenzuela, G.R. No. 182057, February 6, 2009, 578 SCRA 157, 168.

[45] G.R. No. 155483, April 27, 2007, 522 SCRA 410.

[46] Id. at 412, 416, 419-420. Emphasis supplied.

[4 ]
[47] G.R. No. 140944, April 30, 2008, 553 SCRA 111.

[48] Id. at 126.

[49] Id. at 126, 129-130.

[50] 191 Phil. 72 (1981).

[51] Id. at 74.

[52] Id. at 76.

[53] Id. at 77.

[54] Id. at 81-82.

[55] 320 Phil. 344 (1995).

[56] Id. at 350.

[57] G.R. No. 137247, August 7, 2006, 498 SCRA 17.

[58] Id. at 31.

[59] Id.

[60] Supra note 50.

[61] Supra.

[62] Supra.

[63] Records of Crim. Case No. T-3157, p. 28.

[64] 384 Phil. 70, 90-91 (2000).

[65] People v. Lopit, G.R. No. 177742, December 17, 2008, 574 SCRA 372, 383.

[66] Id. at 384.

[67] Id. at 385.

[68] People v. Macapanas, G.R. No. 187049, May 4, 2010.

 EN BANC

[ GR No. 181881, Oct 18, 2011 ]

BRICCIO 'RICKY' A. POLLO v. CHAIRPERSON KARINA CONSTANTINO-DAVID

DECISION
675 Phil. 225

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employee's personal files stored in the
computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
[1] [2]
Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals
(CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio
"Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found
him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and
violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna
Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier
service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the
Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

 The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused gov't employee having a pending
case in the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is
the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be served if this will continue.
Please investigate this anomaly because our perception of your clean and good office is being
tainted.

[3]
Concerned Govt employee

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back
up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."[4] After
some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents
Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of
Chairperson David's directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD)
was witnessed by several employees, together with Directors Castillo and Unite who closely monitored
said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD,
who were both out of the office at the time, informing them of the ongoing copying of computer files in
their divisions upon orders of the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can't do anything about ... it ... it's a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via
[5]
mms"

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will
just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence
of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."[6] At around 10:00
p.m. of the same day, the investigating team finished their task. The next day, all the computers in the
PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes
containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to
Chairperson David. The contents of the diskettes were examined by the CSC's Office for Legal Affairs
(OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings
or letters[7] in connection with administrative cases in the CSC and other tribunals. On the basis of this
finding, Chairperson David issued the Show-Cause Order[8] dated January 11, 2007, requiring the
petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five
days from notice.

Evaluating the subject documents obtained from petitioner's personal files, Chairperson David made the
following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or
connected with administrative cases that may broadly be lumped as pending either in the CSCRO
No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these
draft pleadings are for and on behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the
interest of the CSC as the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of pleadings so prepared
further demonstrates that such person is not merely engaged in an isolated practice but pursues it
with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his direct control and
[9]
disposition.

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for
people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they
unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his
comment which violated his right against self-incrimination. He asserted that he had protested the
unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in
which he informed Director Castillo that the files in his computer were his personal files and those of his
sister, relatives, friends and some associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional right to privacy and protection against
self-incrimination and warrantless search and seizure. He pointed out that though government property,
the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded
to the employee who may exercise all attributes of ownership, including its use for personal purposes. As
to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service
(URACC). In view of the illegal search, the files/documents copied from his computer without his
[10]
consent is thus inadmissible as evidence, being "fruits of a poisonous tree."[10]

On February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees). Petitioner was directed to submit his answer under oath within five days from notice
and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the
URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon
receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is beyond the authority of
the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided
any people with pending cases at the CSC and alleged that those files found in his computer were
prepared not by him but by certain persons whom he permitted, at one time or another, to make use of
his computer out of close association or friendship. Attached to the motion were the affidavit of Atty.
Ponciano R. Solosa who entrusted his own files to be kept at petitioner's CPU and Atty. Eric N.
Estrellado, the latter being Atty. Solosa's client who attested that petitioner had nothing to do with the
pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner.
Petitioner contended that the case should be deferred in view of the prejudicial question raised in the
criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner
believes had instigated this administrative case. He also prayed for the lifting of the preventive
suspension imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC denied the
omnibus motion. The CSC resolved to treat the said motion as petitioner's answer.

On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules of Court, docketed
as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No.
070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to
excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of
Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for disbarment against Director Buensalida.[14]

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of
the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of
TRO and preliminary injunction.[15] Since he failed to attend the pre-hearing conference scheduled on
April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or
his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the
formal investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing conference,
claiming that the investigation proceedings should be held in abeyance pending the resolution of his
petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May
18, 2007 with similar warning on the consequences of petitioner and/or his counsel's non-appearance.
[17] This prompted petitioner to file another motion in the CA, to cite the respondents, including the
hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No. 071134[19] denying petitioner's motion to set aside the
denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard
G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner
was deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a.
Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service
[21]
examinations.

On the paramount issue of the legality of the search conducted on petitioner's computer, the CSC noted
the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer
invades the private files of an employee stored in the computer assigned to him for his official use, in the
course of initial investigation of possible misconduct committed by said employee and without the latter's
consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court,
and cited the leading case of O'Connor v. Ortega[22] as authority for the view that government agencies,
in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the
governmental workplace without meeting the "probable cause" or warrant requirement for search and
seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons[23]
which declared that the federal agency's computer use policy foreclosed any inference of reasonable
expectation of privacy on the part of its employees. Though the Court therein recognized that such policy
did not, at the same time, erode the respondent's legitimate expectation of privacy in the office in which
the computer was installed, still, the warrantless search of the employee's office was upheld as valid
because a government employer is entitled to conduct a warrantless search pursuant to an investigation
of work-related misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office in view
of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any
privacy right to a computer assigned to him. Even assuming that there was no such administrative policy,
the CSC was of the view that the search of petitioner's computer successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The
CSC stressed that it pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct, which exempts it
from the warrant requirement under the Constitution. With the matter of admissibility of the evidence
having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of
grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A.
No. 6713 against the petitioner. These grave infractions justified petitioner's dismissal from the service
with all its accessory penalties.

In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 071800[25] which denied his
motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave
abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not
charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could
not be said that in ordering the back-up of files in petitioner's computer and later confiscating the same,
Chairperson David had encroached on the authority of a judge in view of the CSC computer policy
declaring the computers as government property and that employee-users thereof have no reasonable
expectation of privacy in anything they create, store, send, or receive on the computer system; and (3)
there is nothing contemptuous in CSC's act of proceeding with the formal investigation as there was no
restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that
-
 I

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS

IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER
E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER
nd
2 PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN
[AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN

LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER
CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE,
AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A
MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT
DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS
INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM
WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE
TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT
GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF
DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE
ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE
GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS
PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN
IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE
DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE
TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC
RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED
SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO
[26]
RESOLVE ANCILLARY PRAYER FOR TRO.

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the
copying of his personal files without his knowledge and consent, alleged as a transgression on his
constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,[27] which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable"
searches and seizures.[28] But to fully understand this concept and application for the purpose of
resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in
another jurisdiction. As the Court declared in People v. Marti[29]:

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
[30]
and State Appellate Courts which are considered doctrinal in this jurisdiction.

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth violated
his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable
expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the
Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further
noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that
a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be
one that society is prepared to recognize as reasonable (objective).[32]

In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard
to an office at union headquarters that he shared with other union officials, even as the latter or their
guests could enter the office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case
of O'Connor v. Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital,
claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of
mismanagement of the psychiatric residency program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the state medical aid program, searched his
office and seized personal items from his desk and filing cabinets. In that case, the Court categorically
declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer."[35] A plurality of four Justices concurred that the correct
analysis has two steps: first, because "some government offices may be so open to fellow employees or
the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities
of the workplace" in order to determine whether an employee's Fourth Amendment rights are implicated;
and next, where an employee has a legitimate privacy expectation, an employer's intrusion on that
expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the circumstances."[36]

On the matter of government employees' reasonable expectations of privacy in their workplace, O'Connor
teaches:

x x x Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices
and procedures, or by legitimate regulation. x x x The employee's expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal invitees. Instead, in many cases
offices are continually entered by fellow employees and other visitors during the workday for
conferences, consultations, and other work-related visits. Simply put, it is the nature of government
offices that others - such as fellow employees, supervisors, consensual visitors, and the general
public - may have frequent access to an individual's office. We agree with JUSTICE SCALIA that "
[c]onstitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its capacity as
employer," x x x but some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable. x x x Given the great variety of
work environments in the public sector, the question of whether an employee has a
[37]
reasonable expectation of privacy must be addressed on a case-by-case basis.
(Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega's
Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an
expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence
that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept
personal correspondence and other private items in his own office while those work-related files (on
physicians in residency training) were stored outside his office, and there being no evidence that the
hospital had established any reasonable regulation or policy discouraging employees from storing
personal papers and effects in their desks or file cabinets (although the absence of such a policy does not
create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr.
Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.[38]

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the O'Connor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search...was not a reasonable search under
the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted
by [public employers] is only to begin the inquiry into the standards governing such searches...
[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must
determine the appropriate standard of reasonableness applicable to the search. A determination of
the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the
nature and quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." x x x In the case of
searches conducted by a public employer, we must balance the invasion of the
employees' legitimate expectations of privacy against the government's need for
supervision, control, and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable. In contrast to other circumstances in which we have
required warrants, supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely incident to the
primary business of the agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the "common-sense realization that government offices could not
function if every employment decision became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before
they entered an employee's desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal
investigatory context, much meaning when the purpose of a search is to retrieve a file for work-
related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory
conducted by public employers for the purpose of securing state property. x x x To ensure the
efficient and proper operation of the agency, therefore, public employers must be given wide
latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-

related employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other
work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted
with tremendous responsibility, and the consequences of their misconduct or incompetence to both
the agency and the public interest can be severe. In contrast to law enforcement officials, therefore,
public employers are not enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a proper and efficient
 manner. In our view, therefore, a probable cause requirement for searches of the type at
issue here would impose intolerable burdens on public employers. The delay in
correcting the employee misconduct caused by the need for probable cause rather
than reasonable suspicion will be translated into tangible and often irreparable
damage to the agency's work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law
enforcement make the...probable-cause requirement impracticable," x x x for
legitimate, work-related noninvestigatory intrusions as well as investigations of work-
related misconduct. A standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation of the workplace, nor authorize
arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public
employer intrusions on the constitutionally protected privacy interests of government
employees for noninvestigatory, work-related purposes, as well as for investigations
of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances. Under this reasonableness standard, both the inception and
the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider `whether the...action was justified at its inception,' x x x ; second, one must determine
whether the search as actually conducted `was reasonably related in scope to the
circumstances which justified the interference in the first place,'" x x x

Ordinarily, a search of an employee's office by a supervisor will be "justified at its

inception" when there are reasonable grounds for suspecting that the search will turn
up evidence that the employee is guilty of work-related misconduct, or that the search
is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.
x x x The search will be permissible in its scope when "the measures adopted are
reasonably related to the objectives of the search and not excessively intrusive in light
of ...the nature of the [misconduct]." x x x[39] (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that was
undertaken, the case was remanded to said court for the determination of the justification for the search
and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.

In O'Connor the Court recognized that "special needs" authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employee's reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement, which are related to law enforcement.
[40]

O'Connor was applied in subsequent cases raising issues on employees' privacy rights in the workplace.
One of these cases involved a government employer's search of an office computer, United States v. Mark
[41]
L. Simons where the defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child pornography. Simons was
provided with an office which he did not share with anyone, and a computer with Internet access. The
agency had instituted a policy on computer use stating that employees were to use the Internet for official
government business only and that accessing unlawful material was specifically prohibited. The policy
also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the
user's Internet access as deemed appropriate. CIA agents instructed its contractor for the management of
the agency's computer network, upon initial discovery of prohibited internet activity originating from
Simons' computer, to conduct a remote monitoring and examination of Simons' computer. After
confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files
on the hard drive of Simon's computer were copied from a remote work station. Days later, the
contractor's representative finally entered Simon's office, removed the original hard drive on Simon's
computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the
agency secured warrants and searched Simons' office in the evening when Simons was not around. The
search team copied the contents of Simons' computer; computer diskettes found in Simons' desk drawer;
computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents,
including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that
the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the
district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons' computer
and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held
that the search remains valid under the O'Connor exception to the warrant requirement because evidence
of the crime was discovered in the course of an otherwise proper administrative inspection. Simons'
violation of the agency's Internet policy happened also to be a violation of criminal law; this does not
mean that said employer lost the capacity and interests of an employer. The warrantless entry into
Simons' office was reasonable under the Fourth Amendment standard announced in O'Connor because
at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive
would yield evidence of misconduct, as the employer was already aware that Simons had misused his
Internet access to download over a thousand pornographic images. The retrieval of the hard drive was
reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while
Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation
of privacy with regard to the files in his computer.
 x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove
that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in
order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation
of privacy is one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons' computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons' Fourth
Amendment rights were not violated by FBIS' retrieval of Simons' hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or
fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated
that FBIS would "audit, inspect, and/or monitor" employees' use of the Internet,
including all file transfers, all websites visited, and all e-mail messages, "as deemed
appropriate." x x x This policy placed employees on notice that they could not reasonably expect
that their Internet activity would be private. Therefore, regardless of whether Simons subjectively
believed that the files he transferred from the Internet were private, such a belief was not objectively
reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly,
FBIS' actions in remotely searching and seizing the computer files Simons downloaded from the
Internet did not violate the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in

his office. x x x Here, Simons has shown that he had an office that he did not share. As noted
above, the operational realities of Simons' workplace may have diminished his legitimate privacy
expectations. However, there is no evidence in the record of any workplace practices, procedures, or
regulations that had such an effect. We therefore conclude that, on this record, Simons possessed
a legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employee's supervisor entering the employee's
government office and retrieving a piece of government equipment in which the employee had
absolutely no expectation of privacy - equipment that the employer knew contained evidence of
crimes committed by the employee in the employee's office. This situation may be contrasted with
one in which the criminal acts of a government employee were unrelated to his employment. Here,
there was a conjunction of the conduct that violated the employer's policy and the conduct that
violated the criminal law. We consider that FBIS' intrusion into Simons' office to retrieve the hard
[42]
drive is one in which a reasonable employer might engage. x x x (Citations omitted; emphasis
supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and private
offices, and persons charged before the prosecutor's office with certain offenses, have also recognized the
fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the reasonableness of drug testing requirement. The
employees' privacy interest in an office is to a large extent circumscribed by the
company's work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon such privacy has been
upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O'Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office
and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of
the hard drive on petitioner's computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee's
relationship to the item seized; (2) whether the item was in the immediate control of the employee when
it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These
factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we
consider the two questions together.[44] Thus, where the employee used a password on his computer,
did not share his office with co-workers and kept the same locked, he had a legitimate expectation of
privacy and any search of that space and items located therein must comply with the Fourth Amendment.
[45]

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone,
or that his office was always locked and not open to other employees or visitors. Neither did he allege that
he used passwords or adopted any means to prevent other employees from accessing his computer files.
On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally
would have visitors in his office like friends, associates and even unknown people, whom he even allowed
to use his computer which to him seemed a trivial request. He described his office as "full of people, his
friends, unknown people" and that in the past 22 years he had been discharging his functions at the
PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in
charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of
name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office
as a paying customer."[46] Under this scenario, it can hardly be deduced that petitioner had such
expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he
claims, such is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:
POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be used
only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of
their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an
expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign
Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create,
store, send, or receive on the computer through the Internet or any other computer network.
Users understand that the CSC may use human or automated means to monitor the
use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for

the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be
shared or operated by other users. However, he is accountable therefor and must insure its care
and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for
access to the computer system. Individual passwords shall not be printed, stored online, or
given to others. Users shall be responsible for all transactions made using their passwords. No
User may access the computer system with another User's password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to
encode particular files or messages does not imply that Users have an expectation of privacy in
the material they create or receive on the computer system. The Civil Service Commission has
global passwords that permit access to all materials stored on its networked computer system
regardless of whether those materials have been encoded with a particular User's password.
Only members of the Commission shall authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and that
the CSC may monitor the use of the computer resources using both automated or human means. This
implies that on-the-spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.

One of the factors stated in O'Connor which are relevant in determining whether an employee's
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.[48]
In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown
that he had a reasonable expectation of privacy in his computer files where the university's computer
policy, the computer user is informed not to expect privacy if the university has a legitimate reason to
conduct a search. The user is specifically told that computer files, including e-mail, can be searched when
the university is responding to a discovery request in the course of litigation. Petitioner employee thus
cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless
search of his computer for work-related materials.[49]

As to the second point of inquiry on the reasonableness of the search conducted on petitioner's computer,
we answer in the affirmative.

The search of petitioner's computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding
anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is
supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her
sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office
IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding
parties with pending cases, all done during office hours and involved the use of government
properties;

9. That said text messages were not investigated for lack of any verifiable leads and details
sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and
its effect on the integrity of the Commission, I decided to form a team of Central Office staff to
back up the files in the computers of the Public Assistance and Liaison Division (PALD) and
Legal Division;

[50]
xxxx

A search by a government employer of an employee's office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related
misconduct.[51] Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held
that where a government agency's computer use policy prohibited electronic messages with pornographic
content and in addition expressly provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and technology, the government employee had
no legitimate expectation of privacy as to the use and contents of his office computer, and therefore
evidence found during warrantless search of the computer was admissible in prosecution for child
pornography. In that case, the defendant employee's computer hard drive was first remotely examined by
a computer information technician after his supervisor received complaints that he was inaccessible and
had copied and distributed non-work-related e-mail messages throughout the office. When the
supervisor confirmed that defendant had used his computer to access the prohibited websites, in
contravention of the express policy of the agency, his computer tower and floppy disks were taken and
examined. A formal administrative investigation ensued and later search warrants were secured by the
police department. The initial remote search of the hard drive of petitioner's computer, as well as the
subsequent warrantless searches was held as valid under the O'Connor ruling that a public employer can
investigate work-related misconduct so long as any search is justified at inception and is reasonably
related in scope to the circumstances that justified it in the first place.[52]

Under the facts obtaining, the search conducted on petitioner's computer was justified at its inception
and scope. We quote with approval the CSC's discussion on the reasonableness of its actions, consistent
as it were with the guidelines established by O'Connor:
 Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollo's computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its
capacity as a government employer and that it was undertaken in connection with an
investigation involving a work-related misconduct, one of the circumstances exempted from
the warrant requirement. At the inception of the search, a complaint was received recounting that a
certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the
said regional office or in the Commission. The nature of the imputation was serious, as it
was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the
practice of "lawyering" for parties with pending cases before the Commission would be a highly
repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in
the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser
of administrative justice. It is settled that a court or an administrative tribunal must not only be
actually impartial but must be seen to be so, otherwise the general public would not have any trust
and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if
only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving the computer resources in the
concerned regional office. That it was the computers that were subjected to the search
was justified since these furnished the easiest means for an employee to encode and
store documents. Indeed, the computers would be a likely starting point in ferreting
out incriminating evidence. Concomitantly, the ephemeral nature of computer files,
that is, they could easily be destroyed at a click of a button, necessitated drastic and
immediate action. Pointedly, to impose the need to comply with the probable cause requirement
would invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in
the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of
files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-related misfeasance of its employees.
[53]
Consequently, the evidence derived from the questioned search are deemed admissible.

Petitioner's claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited authorities.
We likewise find no merit in his contention that O'Connor and Simons are not relevant because the
present case does not involve a criminal offense like child pornography. As already mentioned, the search
of petitioner's computer was justified there being reasonable ground for suspecting that the files stored
therein would yield incriminating evidence relevant to the investigation being conducted by CSC as
government employer of such misconduct subject of the anonymous complaint. This situation clearly
falls under the exception to the warrantless requirement in administrative searches defined in O'Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing
and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot
investigation aided by NBI agents. The team was able to access Atty. Morales' personal computer and
print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA
and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales' computer was
seized and taken in custody of the OCA but was later ordered released on his motion, but with order to
the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating
Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC
personnel who were interviewed would give a categorical and positive statement affirming the charges
against Atty. Morales, along with other court personnel also charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held
that while Atty. Morales may have fallen short of the exacting standards required of every court
employee, the Court cannot use the evidence obtained from his personal computer against him for it
violated his constitutional right against unreasonable searches and seizures. The Court found no evidence
to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty.
Morales, as in fact the latter immediately filed an administrative case against the persons who conducted
the spot investigation, questioning the validity of the investigation and specifically invoking his
constitutional right against unreasonable search and seizure. And as there is no other evidence, apart
from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold
him administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a
personal computer of a court employee, the computer from which the personal files of herein petitioner
were retrieved is a government-issued computer, hence government property the use of which the CSC
has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office
computer) and other relevant factors and circumstances under American Fourth Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish
that petitioner had a reasonable expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in
the administrative case against him, we now proceed to the issue of whether the CSC was correct in
finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not
only respect but even finality if such findings are supported by substantial evidence. Substantial evidence
is such amount of relevant evidence which a reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might conceivably opine otherwise.[55]

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses
it presented during the formal investigation. According to the CSC, these documents were confirmed to
be similar or exactly the same content-wise with those on the case records of some cases pending either
with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of
those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the
explanation given by petitioner, to the effect that those files retrieved from his computer hard drive
actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer
for drafting their pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSC's factual finding regarding the authorship of the subject pleadings
and misuse of the office computer is well-supported by the evidence on record, thus:
 It is also striking to note that some of these documents were in the nature of pleadings responding
to the orders, decisions or resolutions of these offices or directly in opposition to them such as a
petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the
author thereof knowingly and willingly participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the
retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends
plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with
less than a laudable motivation. Whoever was responsible for these documents was simply doing the
same for the money - a "legal mercenary" selling or purveying his expertise to the highest bidder, so
to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo
raises the presumption that he was the author thereof. This is because he had a
control of the said computer. More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the pleadings found in the case records lying on
the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to
the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the
documents were the personal files of some of his friends, including one Attorney Ponciano Solosa,
who incidentally served as his counsel of record during the formal investigation of this case. In fact,
Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her
entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent.
Reyes more particularly stated that she worked in close proximity with Pollo and would have known
if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty.
Solosa himself was never presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight and credence. The same is
true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation...Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private
joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not
indicative of anything more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the respondent, unless he
[56]
had something to do with it?

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint
since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II - Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files
stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part
of the disciplining authority's own fact-finding investigation and information-gathering -- found a prima
facie case against the petitioner who was then directed to file his comment. As this Court held in Civil
Service Commission v. Court of Appeals[57] --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II
of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated
against a civil service officer or employee by the appropriate disciplining authority,
even without being subscribed and sworn to. Considering that the CSC, as the disciplining
authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis
supplied.)

As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by the
CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum
to Commissioner Buenaflor's previous memo expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said memorandum order was in fact
exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended
by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the
time saw no need to issue a Resolution for the purpose and further because the CUP being for internal
use of the Commission, the practice had been to issue a memorandum order.[58] Moreover, being an
administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC
and not the public, the CUP need not be published prior to its effectivity.[59]

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC's ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service,
and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the
ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007
and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are
AFFIRMED.

With costs against the petitioner.

SO ORDERED.

Corona, C.J., Brion, Peralta, Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, J., see separate opinion.
Velasco, Jr., J., joins opinion of J. Bersamin.
Leonardo-De Castro and Abad, JJ., joins the concurring and dissenting opinion of J. Bersamin.
Bersamin, J., please see concurring opinion and dissenting opinion.
Del Castillo, J., No part.
Sereno, J., concur but share J. Carpio's concerns.

[1] Rollo, pp. 63-83. Penned by Associate Justice Romeo F. Barza, with Associate Justices Mariano C. Del
Castillo (now a Member of this Court) and Arcangelita M. Romilla-Lontok concurring.

[2] Id. at 85.

[3] Id. at 306.

[4] Id. at 305.

[5] CA rollo, p. 56.

[6] Id.

[7] Id. at 21-24.

[8] Id. at 20-25.

[9] Id. at 25.

[10] Id. at 55-62.

[11] Id. at 26-33. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in ruling that a prima facie case existed against petitioner while Commissioner Cesar
D. Buenaflor dissented [see Memorandum (OCOM-C Memo No. 14, s. 2007, CA rollo, pp. 431-434).

[12] CSC records, pp. 71-l to 71-n. Chairperson Karina Constantino-David and Commissioner Mary Ann
Z. Fernandez-Mendoza concurred in the denial of the omnibus motion while Commissioner Cesar D.
Buenaflor reiterated his dissent.

[13] CA rollo, pp. 2-19.

[14] Id. at 288-294, 321-325.

[15] Id. at 336-340.

[16] Id. at 373.

[17] Id. at 376-378.

[18] Id. at 388-392.

[19] Id. at 457-463. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in denying the motion while Commissioner Cesar D. Buenaflor dissented stating that
based on his dissenting position, any subsequent proceedings in this case is of no moment since the
initiatory proceedings was in violation of a person's fundamental rights enshrined in the Bill of Rights of
the Constitution. (Id. at 465.)

[20] Id. at 586-618. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in ruling that petitioner is guilty as charged while Commissioner Cesar D. Buenaflor
maintained his dissent.

[21] Id. at 618.

[22] 480 U.S. 709 (1987).

[23] 206 F.3d 392 (4th Cir. 2000).

[24] Id. at 560-585.

[25] Id. at 707-719. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in the denial of the motion for reconsideration while Commissioner Cesar D.
Buenaflor reiterated his dissent under his "Addendum to the Dissenting Position Under OCOM-C Memo
No. 14, S. 2007". (Id. at 720.)

[26] Rollo, p. 19.

[27] Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and 161658,
November 3, 2008, 570 SCRA 410, 427, citing Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA
141, 169.

[28] Joaquin Bernas, S.J., The Constitution of the Republic of the Philippines: A Commentary, 2003 ed.,
p. 162.

[29] G.R. No. 81561, January 18, 1991, 193 SCRA 57.

[30] Id. at 63.

[31] 389 U.S. 437 (1967).

[32] Id.

[33] 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968).

[34] Supra note 22.

[35] Id. at 717.

[36] City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, U.S. 2010, June 17, 2010.

[37] Supra note 22 at 717-718.

[38] Id. at 718-719.

[39] Id. at 719, 722-725.

[40] Francis v. Giacomelli, 588 F.3d 186, C.A. (Md), December 2, 2009.

[41] Supra note 23.

[42] Id.

[43] Supra note 27 at 432-433.

[44] U.S. v. Barrows, 481 F.3d 1246, C.A.10 (Okla.), April 3, 2007, citing United States v. Anderson, 154
F.3d 1225, 1229 (10th Cir. 1998).

[45] U.S. v. Ziegler, 474 F.3d 1184 C.A.9 (Mont.), January 30, 2007.

[46] CA rollo, pp. 42, 61.

[47] Id. at 440-443.

[48] Biby v. Board of Regents, of the University of Nebraska at Lincoln, 419 F.3d 845 C.A.8 (Neb),
August 22, 2005.

[49] Id.

[50] CA rollo, p. 639.

[51] U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13, 2004.

[52] Id.

[53] CA rollo, pp. 611-612.

[54] A.M. Nos. P-08-2519 and P-08-2520, November 19, 2008, 571 SCRA 361.

[55] Vertudes v. Buenaflor, G.R. No. 153166, December 16, 2005, 478 SCRA 210, 230, citing Rosario v.
Victory Ricemill, G.R. No. 147572, February 19, 2003, 397 SCRA 760, 766 and Bagong Bayan Corp.,
Realty Investors and Developers v. NLRC, G.R. No. 61272, September 29, 1989, 178 SCRA 107.

[56] CA rollo, pp. 616-617.

[57] G.R. No. 147009, March 11, 2004, 425 SCRA 394, 401.

[58] Rollo, p. 299.

[59] See Tañada v. Hon. Tuvera, 230 Phil. 528, 535 (1986).
 DIVISION

[ GR No. 197788, Feb 29, 2012 ]

RODEL LUZ Y ONG v. PEOPLE

DECISION
G. R. No. 197788

SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA)
[2]
Decision in CA-G.R. CR No. 32516 dated 18 February 2011 and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution, are
as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police Station
as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 o'clock in the
morning, he saw the accused, who was coming from the direction of Panganiban Drive and going to
Diversion Road, Naga City, driving a motorcycle without a helmet; that this prompted him to flag
down the accused for violating a municipal ordinance which requires all motorcycle drivers to wear
helmet (sic) while driving said motor vehicle; that he invited the accused to come inside their sub-
station since the place where he flagged down the accused is almost in front of the said sub-station;
that while he and SPO1 Rayford Brillante were issuing a citation ticket for violation of municipal
ordinance, he noticed that the accused was uneasy and kept on getting something from his jacket;
that he was alerted and so, he told the accused to take out the contents of the pocket of his jacket as
the latter may have a weapon inside it; that the accused obliged and slowly put out the contents of
the pocket of his jacket which was a nickel-like tin or metal container about two (2) to three (3)
inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife; that
upon seeing the said container, he asked the accused to open it; that after the accused opened the
container, he noticed a cartoon cover and something beneath it; and that upon his instruction, the
accused spilled out the contents of the container on the table which turned out to be four (4) plastic
sachets, the two (2) of which were empty while the other two (2) contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not guilty" to the charge of
illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial
ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the prosecution.
On the other hand, petitioner testified for himself and raised the defense of planting of evidence and
extortion.

[4]
In its 19 February 2009 Decision, the RTC convicted petitioner of illegal possession of dangerous

[ ]
drugs[5] committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had
been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the
discovery on his person of two plastic sachets later found to contain shabu. The RTC also found his
defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The dispositive portion
of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and
sentencing him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years
and (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred
Thousand Pesos (?300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency
for its proper disposition and destruction in accordance with law.

[6]
SO ORDERED.

Upon review, the CA affirmed the RTC's Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari dated 1
September 2011. In a Resolution dated 12 October 2011, this Court required respondent to file a comment
on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF

THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT

SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE
[7]
REASONABLE DOUBT (sic).

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He
claims that the finding that there was a lawful arrest was erroneous, since he was not even issued a
citation ticket or charged with violation of the city ordinance. Even assuming there was a valid arrest, he
claims that he had never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:
 It is beyond dispute that the accused was flagged down and apprehended in this case by Police
Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the
use of crash helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing
penalties for violation thereof. The accused himself admitted that he was not wearing a helmet at
the time when he was flagged down by the said police officers, albeit he had a helmet in his
possession. Obviously, there is legal basis on the part of the apprehending officers to flag down and
arrest the accused because the latter was actually committing a crime in their presence, that is, a
violation of City Ordinance No. 98-012. In other words, the accused, being caught in flagrante
delicto violating the said Ordinance, he could therefore be lawfully stopped or arrested by the
[8]
apprehending officers. x x x.

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal
cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct
errors, though unassigned in the appealed judgment, or even reverse the trial court's decision based on
grounds other than those that the parties raised as errors.[9]

First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic
violation, he was not, ipso facto and solely for this reason, arrested.

Arrest is the taking of a person into custody in order that he or she may be bound to answer for the
commission of an offense.[10] It is effected by an actual restraint of the person to be arrested or by that
person's voluntary submission to the custody of the one making the arrest. Neither the application of
actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is
required. It is enough that there be an intention on the part of one of the parties to arrest the other, and
that there be an intent on the part of the other to submit, under the belief and impression that
submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a
traffic violation is not the arrest of the offender, but the confiscation of the driver's license of the latter:

SECTION 29. Confiscation of Driver's License. Law enforcement and peace officers of other
agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act
or any regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to
any provisions of this Act, confiscate the license of the driver concerned and issue a receipt
prescribed and issued by the Bureau therefor which shall authorize the driver to operate a motor
vehicle for a period not exceeding seventy-two hours from the time and date of issue of said receipt.
The period so fixed in the receipt shall not be extended, and shall become invalid thereafter. Failure
of the driver to settle his case within fifteen days from the date of apprehension will be a ground for
the suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the following procedure
for flagging down vehicles during the conduct of checkpoints:
 SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a
general concept and will not apply in hot pursuit operations. The mobile car crew shall undertake
the following, when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic
Violation Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with
the driver or any of the vehicle's occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to
have been "under arrest." There was no intention on the part of PO3 Alteza to arrest him, deprive him of
his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which petitioner
was at the police station may be characterized merely as waiting time. In fact, as found by the trial court,
PO3 Alteza himself testified that the only reason they went to the police sub-station was that petitioner
had been flagged down "almost in front" of that place. Hence, it was only for the sake of convenience that
they were waiting there. There was no intention to take petitioner into custody.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length whether the
roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered
custodial interrogation. The Court held that, such questioning does not fall under custodial interrogation,
nor can it be considered a formal arrest, by virtue of the nature of the questioning, the expectations of the
motorist and the officer, and the length of time the procedure is conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action"
of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a
crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away
without permission. x x x

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized
by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly,
but only in those types of situations in which the concerns that powered the decision are implicated.
Thus, we must decide whether a traffic stop exerts upon a detained person pressures that
sufficiently impair his free exercise of his privilege against self-incrimination to require that he be
warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced
"to speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U. S., at 467. First,
detention of a motorist pursuant to a traffic stop is presumptively temporary and
brief. The vast majority of roadside detentions last only a few minutes. A motorist's expectations,
when he sees a policeman's light flashing behind him, are that he will be obliged to spend a short
period of time answering questions and waiting while the officer checks his license and registration,
that he may then be given a citation, but that in the end he most likely will be allowed to continue on
his way. In this respect, questioning incident to an ordinary traffic stop is quite different from
stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware
that questioning will continue until he provides his interrogators the answers they seek. See id., at
451.

Second, circumstances associated with the typical traffic stop are not such that the
motorist feels completely at the mercy of the police. To be sure, the aura of authority
surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in
deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond
to questions. But other aspects of the situation substantially offset these forces. Perhaps most
importantly, the typical traffic stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called "Terry
stop," see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The
comparatively nonthreatening character of detentions of this sort explains the absence of any
suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly
noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained
pursuant to such stops are not "in custody" for the purposes of Miranda.

xxx xxx xxx

We are confident that the state of affairs projected by respondent will not come to pass. It is settled
that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of
action is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U. S. 1121,
1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is
subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the
full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495
(1977) (per curiam). (Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest
questions while still at the scene of the traffic stop, he was not at that moment placed under custody
(such that he should have been apprised of his Miranda rights), and neither can treatment of this sort be
fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner here
be considered "under arrest" at the time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure
to wear a crash helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a
warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a
fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an
offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an
intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into custody,
the former may be deemed to have arrested the motorist. In this case, however, the officer's issuance (or
intent to issue) a traffic citation ticket negates the possibility of an arrest for the same violation.

Even if one were to work under the assumption that petitioner was deemed "arrested"
upon being flagged down for a traffic violation and while awaiting the issuance of his
ticket, then the requirements for a valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to
inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any.
Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any
statement they might make could be used against them.[14] It may also be noted that in this case, these
constitutional requirements were complied with by the police officers only after petitioner had been
arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person
apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or
trick captive suspects into confessing, to relieve the "inherently compelling pressures" "generated by
the custodial setting itself," "which work to undermine the individual's will to resist," and as much
as possible to free courts from the task of scrutinizing individual cases to try to determine, after the
fact, whether particular confessions were voluntary. Those purposes are implicated as much by in-
custody questioning of persons suspected of misdemeanors as they are by questioning of persons
suspected of felonies.

If it were true that petitioner was already deemed "arrested" when he was flagged down for a traffic
violation and while he waiting for his ticket, then there would have been no need for him to be arrested
for a second time after the police officers allegedly discovered the drugs as he was already in their
custody.

Second, there being no valid arrest, the warrantless search that resulted from it was
likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental
to a lawful arrest; (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented
warrantless search; (v) customs search; (vi) a "stop and frisk" search; and (vii) exigent and emergency
circumstances.[15] None of the above-mentioned instances, especially a search incident to a lawful arrest,
are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in
"plain view." It was actually concealed inside a metal container inside petitioner's pocket. Clearly, the
evidence was not immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but
shown by clear and convincing evidence.[17] It must be voluntary in order to validate an otherwise illegal
search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any
duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3 Alteza,
this alleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC found that
petitioner was merely "told" to take out the contents of his pocket.[18]

Whether consent to the search was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the defendant; (2)
whether the defendant was in a public or a secluded location; (3) whether the defendant objected to the
search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of
coercive police procedures; (6) the defendant's belief that no incriminating evidence would be found; (7)
the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the
possibly vulnerable subjective state of the person consenting. It is the State that has the burden of
proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and
voluntarily given.[19] In this case, all that was alleged was that petitioner was alone at the police station
at three in the morning, accompanied by several police officers. These circumstances weigh heavily
against a finding of valid consent to a warrantless search.

Neither does the search qualify under the "stop and frisk" rule. While the rule normally applies when a
police officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act
may be afoot, the stop and frisk is merely a limited protective search of outer clothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for
speeding and correspondingly issues a citation instead of arresting the latter, this procedure does not
authorize the officer to conduct a full search of the car. The Court therein held that there was no
justification for a full-blown search when the officer does not arrest the motorist. Instead, police officers
may only conduct minimal intrusions, such as ordering the motorist to alight from the car or doing a
patdown:
 In Robinson, supra, we noted the two historical rationales for the "search incident to arrest"
exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to
preserve evidence for later use at trial. x x x But neither of these underlying rationales for the search
incident to arrest exception is sufficient to justify the search in the present case.

We have recognized that the first rationale officer safety is "'both legitimate and weighty,'" x x x The
threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of
a custodial arrest. In Robinson, we stated that a custodial arrest involves "danger to an officer"
because of "the extended exposure which follows the taking of a suspect into custody and
transporting him to the police station." 414 U. S., at 234-235. We recognized that "[t]he danger to
the police officer flows from the fact of the arrest, and its attendant proximity, stress, and
uncertainty, and not from the grounds for arrest." Id., at 234, n. 5. A routine traffic stop, on the
other hand, is a relatively brief encounter and "is more analogous to a so-called 'Terry
stop' . . . than to a formal arrest." Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also
Cupp v. Murphy, 412 U. S. 291, 296 (1973) ("Where there is no formal arrest . . . a person might well
be less hostile to the police and less likely to take conspicuous, immediate steps to destroy
incriminating evidence").

This is not to say that the concern for officer safety is absent in the case of a routine traffic
stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for
officer safety in this context may justify the "minimal" additional intrusion of ordering a
driver and passengers out of the car, it does not by itself justify the often considerably
greater intrusion attending a full fieldtype search. Even without the search authority Iowa urges,
officers have other, independent bases to search for weapons and protect themselves from danger. For
example, they may order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers,
Wilson, supra, at 414; perform a "patdown" of a driver and any passengers upon reasonable suspicion
that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry patdown" of
the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and
may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even
conduct a full search of the passenger compartment, including any containers therein, pursuant to a
custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to arrest the need to
discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all
the evidence necessary to prosecute that offense had been obtained. No further evidence of
excessive speed was going to be found either on the person of the offender or in the passenger
compartment of the car. (Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the
illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not,
however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.[22]

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.[23] Any evidence obtained in violation of said right
shall be inadmissible for any purpose in any proceeding. While the power to search and seize may at
times be necessary to the public welfare, still it must be exercised and the law implemented without
contravening the constitutional rights of citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government.[24]
The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the very corpus
delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes
conviction and calls for the acquittal of the accused.[26]

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in
CA-G.R. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional
Trial Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is hereby
REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered
immediately released from detention, unless his continued confinement is warranted by some other
cause or ground.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Reyes, JJ., concur.

[1] The Petition was originally captioned as "Rodel Luz y Ong v. Hon. Court of Appeals, Hon. Presiding
Judge, Regional Trial Court, Branch 21, Naga City." However, under Section 4, Rule 45 of the Rules of
Court, the petition must state the full name of the appealing party as the petitioner and the adverse party
as respondent, without impleading the lower courts or judges thereof either as petitioners or
respondents.

[2] Penned by Associate Justice Ricardo R. Rosario and concurred in by Associate Justices Hakim S.
Abdulwahid and Samuel H. Gaerlan.

[3] Rollo, p. 91.

[4] Docketed as Criminal Case No. RTC 2003-0087; rollo, pp. 90-102.

[5] See Section 11, Republic Act No. (R.A.) 9165, or the Comprehensive Dangerous Drugs Act of 2002.

[6] Rollo, p. 101.

[7] Rollo, p. 23.

[8] Id. at 96.

[9] People v. Saludes, 452 Phil. 719, 728 (2003).

[10] Rules of Court, Rule 113, Sec. 1.

[11] People v. Milado, 462 Phil. 411 (2003).

[12] PNPM-DO-DS-3-1 dated March 2010.

[13] 468 U.S. 420 (1984).

[14]
[14] Morales v. Enrile, 206 Phil. 466 (1983).

[15] People v. Bolasa, 378 Phil. 1073, 1078-1079 (1999).

[16] See People v. Macalaba, 443 Phil. 565 (2003).

[17] Caballes v. Court of Appeals, 424 Phil. 263 (2002).

[18] RTC Decision, rollo, p. 91.

[19] Caballes v. Court of Appeals, 424 Phil. 263 (2002).

[20] People v. Sy Chua, 444 Phil. 757 (2003).

[21] 525 U.S. 113 (1998).

[22] People v. Lapitaje, 445 Phil. 729 (2003).

[23] 1987 CONST., Art. III, Sec. 2.

[24] Valdez v. People, G.R. No. 170180, 23 November 2007, 538 SCRA 611.

[25] People v. Martinez, G.R. No. 191366, 13 December 2010.

[26] Id.
 EN BANC

[ AM No. MTJ-96-1110, Jun 25, 2001 ]

CONG. MANUEL N. MAMBA v. JUDGE DOMINADOR L. GARCIA

DECISION
412 Phil. 1

PER CURIAM:
This is a "resolution," which is more accurately a manifesto or a petition of concerned citizens of Tuao,
Cagayan, denouncing certain acts of Judge Dominador L. Garcia, Municipal Trial Court, Tuao, Cagayan,
in connection with his handling of Criminal Case No. 399, entitled "People vs. Renato Bulatao." The
complainants are then Representative of the Third District of Cagayan, the mayor and vice mayor, ten
(10) members of the Sangguniang Bayan, thirty-two (32) barrio captains, ten (10) LGU department heads
of Tuao, Cagayan, and eight (8) heads of non-governmental organizations or NGOs in the municipality of
Tuao.
The "resolution," dated November 4, 1996, was presented to this Court. It was adopted at an assembly led
by Rep. Manuel N. Mamba which picketed the municipal trial court on that day.[1] The "resolution" was
treated as an administrative complaint and respondent Judge Dominador L. Garcia was required to
answer. The matter was referred to Executive Judge Orlando D. Beltran, Jr. of the Regional Trial Court of
Tuao, Cagayan, for investigation, report, and recommendation.[2]
Thereafter, an investigation was held during which the affidavits and sworn statements of NBI Special
Investigator Ablezer Rivera, the joint affidavit of NBI agents, Raul A. Ancheta and Paul D. Rivera, the
sworn statement of the accused in Criminal Case No. 699, Renato Bulatao, and the testimonies of Abner
P. Cardenas, clerk of court, MTC, Tuao, Cagayan and Tomas Latauan, Jr., interpreter of the same court,
were presented. The gist of the evidence for the complainants is as follows:
On August 23, 1996, a complaint for violation of Presidential Decree No.1866 (illegal possession of
firearms) was filed against a certain Renato Bulatao by the Cagayan Provincial Police Command before
the sala of respondent Judge Dominador L. Garcia of the Municipal Trial Court, Tuao, Cagayan.[3]
Respondent set the preliminary investigation on September 4, 1996, but the same was subsequently
postponed and reset to October 23, 1996 as respondent was not present, although the complaining
officer, P/Sr. Inspector Danny F. Salvador, appeared in court. On October 23, 1996, the preliminary
investigation was again reset to October 30, 1996. On October 29, 1996, the accused, Renato Bulatao,
complained to the NBI that at the scheduled preliminary investigation on September 4, 1996, P/Sr.
Inspector Salvador demanded P30,000.00 from him in consideration of the withdrawal of the criminal
case against him. According to Bulatao, the demand was reiterated by Salvador and respondent judge on
October 23, 1996. As Bulatao told them that he could not afford it, the amount was reduced to
P6,000.00.
Based on Bulatao's report, the NBI set out to entrap Salvador and respondent judge. The NBI gave
Bulatao 12 pieces of P500.00marked bills amounting to P6,000.00, which the latter would give to
[4]
Salvador and respondent the next day.
Accordingly, at about 7 o'clock in the morning of the following day, October 30, Bulatao met the NBI
operatives in the house of Francisco Mamba, Sr., former representative of the 3rd District of Cagayan,
where the entrapment was planned. Bulatao was given a tape recorder to record his conversation with
whoever will receive the money. At 9 a.m., Bulatao went to the Municipal Trial Court and waited for his
case to be called. At 10:30 a.m., respondent went out of his chambers and talked to SPO2 Jonathan
Santos and SPO4 Carlos Poli, representatives of P/Sr. Inspector Salvador in the preliminary
investigation. Respondent then called Bulatao and led him and the two police officers to the office of the
MTC court personnel. Inside, respondent asked Bulatao if he had the money with him. When he
answered in the affirmative, respondent took them to his chambers and left them there as he proceeded
to his sala. After handing the money to the police officers, Bulatao went out of respondent's chambers.
Upon his signal, the NBI operatives waiting outside respondent's court then rushed to the judge's
chambers and arrested the two police officers after recovering 11 pieces of P500.00 marked bills in their
possession.[5]
After the matter was referred by this Court to Executive Judge Orlando Beltran for investigation, the
latter scheduled several hearings for the reception of evidence for the respondent. The records show that
hearings were set on different dates (December 10, 1997, January 30, 1998, February 10, 1998, March 3,
1998, March 10, 1998, September 10, 1998, October 9, 1998, November 11, 1998, January 5, 1999,
February 9, 1999, March 4, 1999, and April 5, 1999), but respondent did not appear despite due notice.
Accordingly, he was deemed to have waived the right to present evidence and the case was submitted for
decision. Hence only his counter-affidavit was considered, in which respondent claimed that it was
Bulatao who asked permission to talk to the two police officers. He denied that he took the three to his
[6]
chambers.
On the basis of these facts, the Investigating Judge made the following recommendation:

"The foregoing facts indisputably show that the respondent Judge allowed the use of his chambers
by the two (2) police officers SPOII Jonathan Santos and SPOIV Carlos Poli and Renato Bulatao, the
accused in the criminal case for illegal possession of firearms, so that they could talk about the
"settlement" of Bulatao's case which was then pending preliminary investigation by the respondent
Judge. Although the two (2) witnesses, Abner Cardenas and Tomas Latauan, Jr., claimed that they
did not hear the subject of the conversation between Bulatao, on one hand, and the two (2)
policemen and the respondent Judge Dominador L. Garcia, on the other, before the three first-
named persons went inside the chambers of the respondent Judge, it is not difficult to conclude that
they must have talked about the criminal case of Bulatao and its "settlement." For if the subject-
matter of their conversation were other than said "settlement" there appears no reason or purpose
to allow the policemen and the accused to go inside the judge's chambers and there to continue their
conversation. Simply stated, the respondent judge allowed the two (2) policemen and the accused
Renato Bulatao to use his chambers so that they could consummate the arrangements for the
dismissal of the case, particularly the payment of the sum of money being demanded as
consideration for such dismissal.

"In this connection, the undersigned Investigating Judge cannot help but refer to the taped
conversation between the two (2) policemen and Renato Bulatao inside the chamber of the
respondent Judge. A portion of the translated dialogue between Poli and Bulatao, which was in
Ilocano, tends to show that the P6,000.00 pay-off handed by Bulatao to the policemen was not
intended for the respondent Judge but solely for the policemen and their superior, P/Sr. Inspector
Salvador. However, it is not easy to disregard the implication obvious from the said conversation
that the respondent Judge was privy to the entire transaction. SPOIV Poli pointedly told Bulatao "to
take care of the Judge" which implies that the Judge knew of the pay-off being made and was willing
to abide by the "deal" provided he would be "taken care of" by Bulatao.
 "Such acts of the respondent Judge are improper, to say the least. He, therefore, violated the duty of
every Judge to uphold the integrity of the judiciary and to avoid impropriety and the appearance of
impropriety in all activities. (Mortel vs. Leido, Jr. 44 SCAD 567). It cannot be over-emphasized that
a judge's official conduct should be free from the appearance of impropriety, and his personal
behavior, not only upon the bench and in the performance of official duties but also in his every day
life, should be beyond reproach. (Marcos, Sr. vs. Arcangel, 72 SCAD 1). Canon 2 of the Code of
Judicial Conduct enjoins judges to avoid not just impropriety in their conduct but even the mere
appearance of impropriety. This is true not only in the performance of their official duties but in all
their activities, including their private life. They must conduct themselves in such a manner that
they give no ground for reproach. (Pedro San Juan vs. Judge Lore V. Bagalsera, RTC, BR. 23, Naga
City, A. M. No. RTJ-97-1395, December 22, 1997). In this case, the acts of the respondent judge
were clearly improper as he facilitated, if not participated in, the obviously unauthorized/illegal
transaction between the two (2) police officers and the accused Renato Bulatao for the
settlement/dismissal of the latter's criminal case, in consideration of a sum of money, particularly
since the offense charged against Bulatao is a grievous one and that it is one which is not allowed by
law to be compromised.

"In view of all the foregoing, the undersigned Investigating Judge respectfully recommends that the
respondent Judge Dominador L. Garcia be found guilty of improper conduct and be punished
[7]
accordingly. "

The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two police
officers is erroneous. The recording of private conversations without the consent of the parties
contravenes the provisions of Rep. Act. No. 4200, otherwise known as the Anti-Wire Tapping Law, and
renders the same inadmissible in evidence in any proceeding.[8] The law covers even those recorded by
persons privy to the private communications, as in this case.[9] Thus, the contents of the tape recorder
cannot be relied upon to determine the culpability of respondent judge.
In all other respects, however, the findings of the Investigating Judge are in accordance with the
evidence. We hold, however, that respondent judge is guilty not just of improper conduct but of serious
misconduct. Serious misconduct is such conduct which affects a public officer's performance of his duties
as such officer and not only that which affects his character as a private individual. For serious
misconduct to warrant a dismissal from the service, there must be reliable evidence showing that the
judicial acts complained of were corrupt or inspired by an intention to violate the law. It must (1) be
serious, important, weighty, momentary, and not trifling; (2) imply wrongful intention and not mere
error of judgment; and (3) have a direct relation to and be connected with the performance of his official
[10]
duties.
In the case at bar, it is clear that the crime of bribery was committed. Although the evidence may not be
sufficient to support a conviction in a criminal case, it is adequate for the purpose of these proceedings.
The standards of integrity required of members of the Bench are not satisfied by conduct which merely
allows one to escape the penalties of the criminal law.[11] In an administrative proceeding, such as this
case, only substantial evidence, or that amount of relevant evidence which a reasonable mind might
accept as adequate to support a conclusion, is required.[12]
To constitute bribery, the following must be shown: (1) the offender is a public officer within the scope of
Art. 203; (2) the offender accepts an offer or a promise or receives a gift or present by himself or through
another; (3) such offer or promise is accepted, or gift received by the public officer, (a) with a view to
committing some crime; (b) in consideration of the execution of an act which does not constitute a crime,
but which is unjust; or (c) to refrain from doing something which it is his official duty to do; and (4) the

[13]
act which he agrees to perform is connected with the performance of his official duties.[13] From the
records, it is evident that P/Sr. Inspector Salvador, a public officer, solicited money from Bulatao in
consideration of the withdrawal of the case against the latter. The former categorically told the latter that
he would withdraw the criminal case against Bulatao if Bulatao gives him P30,000.00, which was later
lowered to P6,000.00. The fact that two of his men came for the preliminary investigation and, without
hesitation, followed respondent judge to his chambers after hearing that Bulatao had the money, bears
out Bulatao's allegations. Although these circumstances do not show conclusively that respondent judge
was privy to the crime of bribery, there is substantial evidence showing that he was at least an accomplice
to the crime who cooperated in the execution of the offense by previous or simultaneous acts.[14] The
following circumstances, as corroborated by the report of the NBI and the testimonies of two employees
of the MTC, who were disinterested witnesses, show that respondent judge knowingly and voluntarily
cooperated with P/Sr. Inspector Salvador in consummating the crime:
(1) On the day of the entrapment, respondent judge asked Bulatao if he had the money, and when he
received an affirmative answer, he took Bulatao and the two police officers to his chambers, told the
[15]
police officers to receive whatever Bulatao would give them, and then left; and
(2) When Bulatao left respondent's chambers and gave the signal to the NBI operatives waiting outside,
the marked bills were found by the agents in the possession of SPO2 Jonathan Santos, as the latter was
leaving the chambers of respondent judge with SPO4 Carlos Poli. As the Investigating Judge observed,
respondent willingly allowed his chambers to be used for the consummation of the illegal transaction.
The actions of respondent implies a wrongful intention to commit an unlawful act while in the
performance of his official duties.
Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not only impropriety but even the
appearance of impropriety in all their conduct. This includes not taking an undue interest in the
settlement of criminal cases pending before them as this may compromise the integrity and impartiality
[16]
of their office. As the visible representation of the law and of justice, their conduct must be above
[17]
reproach and suspicion. By acting as an accomplice to P/Sr. Inspector Salvador, respondent judge
violated not only the law but also the Code of Judicial Conduct.
Nor does the fact that respondent committed misconduct during a preliminary investigation, which is
non-judicial in character, exempt him from the disciplinary power of this Court as the conduct of a
preliminary investigation is only an addition to his judicial functions.[18]
[19]
In Cabrera vs. Pajares, where the payment of the money to respondent judge in his chambers was
witnessed by an NBI agent, this Court ordered his dismissal from the service. Likewise, in Court
[20]
Administrator vs. Hermoso, where the judge received money from a party to a case pending before
his sala and was entrapped by an NBI agent, this Court ordered his dismissal. In addition, the erring
judge is liable to the forfeiture of his leave credits and retirement benefits and his dismissal shall be with
prejudice to reemployment in any branch of the government or any of its agencies or instrumentalities,
including government-owned and controlled corporations, as provided by Section 9, Rule 14 of the
Omnibus Rules Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) and our
[21]
current rulings.
Respondent judge was previously convicted in two administrative cases filed before this Court. In A.M.
No. MTJ-91-616, entitled "Clodualdo Escobar vs. Garcia," the Court, in a resolution dated September l,
1992, found respondent guilty of palpable ignorance of Rule 114, section 8 resulting in the denial of due
process to the prosecution in a criminal case. Respondent was fined an amount equivalent to 15 days
salary with warning that a repetition of the same would be dealt with more severely. In another case,
A.M. No. MTJ-95-1049, entitled "Eloisa Bernardo v. Garcia," the Court, in a resolution dated June 28,
1995, found respondent guilty of deliberately delaying his decision in a civil case and falsifying
certificates of service. He was reprimanded and ordered to pay a fine of P5,000.00 with warning that a
repetition of the same or similar acts will be dealt with more severely.
WHEREFORE, the Court finds respondent Judge Dominador L. Garcia guilty of serious misconduct
and accordingly orders his DISMISSAL from the service and the forfeiture of his leave credits and
retirement benefits, with prejudice to reemployment in any branch of the government or any of its
agencies or instrumentalities, including government-owned and controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

[1]
Rollo, pp. 34-44.
[2] Id., p. 143.
[3]
Id., p. 24.
[4] Id., pp. 57-59, 65.
[5]
Id., pp. 63-64, 66-68.
[6] Id., p. 122.
[7]
Id., pp. 247-248.
[8] "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 over hear, 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. (Italics ours).
"....
"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. (Italics ours)."
[9]
Ramirez vs. Court of Appeals, 248 SCRA 590 (1995).
[10] Manuel vs. Calimag, Jr., 307 SCRA 657 (1999).
[11]
Centrum Agri-business Realty Corporation vs. Katalbas-Moscardon, 247 SCRA 147 (1995).
[12] Lorenza vs. Encomienda, 302 SCRA 632 (1999); Liwanag vs. Lustre, 306 SCRA 55 (1999); REVISED
RULES OF EVIDENCE, Rule 133, Sec. 5.
[13] th
L.B. Reyes, The Revised Penal Code: Criminal Law, vol. 2, pp. 366-367 (14 ed., 1998).
[14] Revised Penal Code, Art.18.
[15]
Rollo, p. 132.
[16] Ferrer vs. Maramba, 290 SCRA 44 (1998), Code of Judicial Conduct, Rule 2.01.

[1 ]
[17] Cabrera vs. Pajares, 142 SCRA 127 (1986); Quiz vs. Castano, 107 SCRA 196 (1981); Montemayor vs.
Collado, 107 SCRA 258 (1981).
[18]
Radomes vs. Jakosalem, 320 SCRA 445 (1999).
[19] 142 SCRA 127 (1986).
[20]
150 SCRA 269 (1987).
[21] National Bureau of Investigation vs. Reyes, 326 SCRA 109 (2000); Nazareno vs. Almario, 268 SCRA
657 (1997); Tabao vs. Espina, 257 SCRA 298 (1996); Centrum Agri-Business Realty Corporation vs.
Katalbas-Moscardon, 247 SCRA 145 (1995); Lee vs. Abastillas, 234 SCRA 29 (1994); Imbing vs.
Tiongson, 229 SCRA 690 (1994).
 DIVISION

[ GR No. 69809, Oct 16, 1986 ]

EDGARDO A. GAANAN v. IAC

DECISION
229 Phil. 139

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 Laconic. 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
wits: (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) P1,000.00 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 complaint 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 over heard 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 citizen 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 provision 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 coming 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 Company v. Rufino (90 SCRA 437, 443-44), 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 paragraphs 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 handset 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
549; 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 Costruction, Rev. Ed. pp. 183-184)."

In the same case of Purisima, we also ruled that in 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 Tanada. 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 Tanada. 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. III, 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 Tanada. 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.

Feria (Chairman), Fernan, Alampay, and Paras, JJ., concur.

 DIVISION

[ GR No. 110662, Aug 04, 1994 ]

TERESITA SALCEDO-ORTANEZ v. CA

DECISION
G.R. No. 110662

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-905360 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
'pingpong' 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.

[1]
WHEREFORE,the petition for certiorari being devoid of merit, is hereby DISMISSED".

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 decisions 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
[2]
petition for certiorari."
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
[4]
from the military to wire tap his home telephone.
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:
 "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. x x x"

"Section 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.
Narvasa, C.J., (Chairman), Regalado, Puno, and Mendoza, JJ., concur.

* Penned by Justice Emeterio C. Cui with Justices Jainal D. Rasul and Alfredo G. Lagamon concurring.
[1] Rollo, pp. 24-25.
[2]
Rollo, p. 11.
[3] Marcelo v. de Guzman, G.R. No. L-29077, 29 June 1982, 114 SCRA 657.
[4]
TSN, 9 December 1992, p. 4.
[5] Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of
the acts declared to be unlawful in the preceding section or who violates the provisions of the following
section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon
conviction thereof, be punished by imprisonment for not less than six months or more than six years and
with accessory penalty of perpetual absolute disqualification from public office if the offender be a public
official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to
deportation proceedings."
 DIVISION

[ GR No. 93833, Sep 28, 1995 ]

SOCORRO D. RAMIREZ v. CA

DECISION
318 Phil. 701

KAPUNAN, J.:
civil case for 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
[1]
petitioner's dignity and personality," contrary to morals, good customs and public policy.

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
[2]
civil case was based was culled from a tape recording of the confrontation made by petitioner. 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-
aapply 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. Panunumbvoyan 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, nilapastanganan 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 Accuses 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 wilfully, 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
dated 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,
[5]
the respondent judge acted in grave abuse of discretion correctible by certiorari."

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution[6] 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 argues 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
[11]
would be resorted to only where a literal interpretation would be either impossible[11] or absurd or
would lead to an injustice[12].

Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:

Section I. 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.

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 Tanada: 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 Tanada: 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 Tanada: 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 Tanada: 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 Tanada: 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 these are being
recorded.

Senator Padilla: Now, I can understand.

Senator Tanada: 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

(Congressional Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section I of the bill as now worded,
 if a party secretly records a public speech, he would be penalized under Section I? Because the
speech is public, but the recording is done secretly.

Senator TANADA: 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 conversation 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
[14]
well as its communication to a third person should be professed."

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, as in
[15]
a conversation, or signifies the "process by which meanings or thoughts are shared between
[16]
individuals through a common system of symbols (as language signs or gestures)" 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 Tanada 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 as the undeniable
fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose.
Free conversations are 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
[17]
unjustifiable intrusion by whatever means."

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 devises enumerated in Section 1 of the law nor was it similar to 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.

Padilla, (Chairman), Davide, Jr., and Bellosillo, JJ., concur.

Hermosisima, Jr., J., on leave.

[1] Docketed as Civil Case No. 88-403, Regional Trial Court, Makati, Branch 64.

[2] Rollo, p. 48.

[3] Rollo, pp. 47-48.

[4] Rollo, p. 9.

[5] Rollo, p. 37.

[6] Rollo, p. 99, Annex "H."

[7] Rollo, p. 13.

[8] Id.
[9] Rollo, p. 14.

[10] Rollo, pp. 14-15.

[11] Pacific Oxygen and Acytelene Co. Vs. Central Bank 37 SCRA 685 (1971).

[12] Casela v. Court of Appeals, 35 SCRA 279 (1970).

[13] Rollo, p. 33.

[14] Rollo, p. 67.

[15] WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1976).

[16] Id.

[17] CONGRESSIONAL RECORD, Vol. III, No. 31, at 573 (March 10, 1964).

[18] 145 SCRA 112 (1986). See also, Salcedo-Ortanez v. CA 235 SCRA 111 (1994).

[19] Id., at 120.

[20] Id., at 121.

 DIVISION

[ GR No. 190749, Apr 25, 2012 ]

VALENTIN ZAFRA Y DECHOSA v. PEOPLE

DECISION
G.R. No. 190749

PEREZ, J.:
For review before this Court is the Decision of the Court of Appeals (CA) in CA-G.R. CR No. 31713 dated
[1]
30 October 2009, affirming the decision of the Regional Trial Court (RTC), Branch 76, Malolos,
[2]
Bulacan, which found petitioners Valentin Zafra y Dechosa (Zafra) and Eroll Marcelino y Reyes
(Marcelino) guilty beyond reasonable doubt of Possession of Dangerous Drugs in violation of Section 11,
Article II of Republic Act (RA) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) and
imposing on each of them the penalty of imprisonment of twelve (12) years and one (1) day as the
minimum term, to thirteen (13) years as maximum, and of fine of Three Hundred Thousand Pesos
(P300,000.00).

The Facts

[3]
The prosecution charged Zafra and Marcelino with violation of Section 11, Article II of RA No. 9165
before the RTC of Bulacan under the Information below:

That on or about the 12th day of June, 2003, in the municipality of Balagtas, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law and legal justification, did then and there willfully, unlawfully and feloniously have
in their possession and control dangerous drug consisting of two (2) heat-sealed
transparent plastic sachet of methylamphetamine hydrochloride (shabu) weighing
0.061[4] gram, in conspiracy with one another.[5]

[6]
The prosecution's lone witness, SPO4 Apolinario Mendoza (SPO4 Mendoza), Chief of the
Investigation and Drug Enforcement Unit of the Philippine National Police of Balagtas, Bulacan, testified
that on 12 January 2003, at around 4:30 in the afternoon, he conducted surveillance in front of a sari-
sari store at the corner of Miraflor Subdivision and P. Castro Street in Balagtas, Bulacan, due to reported
drug trafficking in the area. SPO4 Mendoza found there the group of Zafra, Marcelino, and a certain
[7]
Marlon Daluz (Daluz) standing and facing each other. In that position, he saw Zafra and Marcelino
[8]
holding shabu, while Daluz was holding an aluminum foil and a disposable lighter. Seeing this illegal
activity, SPO4 Mendoza single-handedly apprehended them. He grabbed the shabu from the hands of
Zafra and Marcelino, and confiscated the drug paraphernalia from Daluz. Then, he ordered the three to
[9]
lie down; he frisked them. Boarding a tricycle, he brought them to the Balagtas Police Station, where
he personally marked the confiscated two (2) sachets of shabu, one with VSD, the initials of Valentin
[10]
Zafra y Dechosa and the other with EMR, the initials of Eroll Marcelino y Reyes.

On the following day, 13 June 2003, SPO4 Mendoza brought the accused and the items to the crime

[11]
laboratory for urine sampling and laboratory examination, respectively.[11] The test of the items resulted
to positive presence of methylamphetamine hydrochloride.[12]

The RTC, Branch 76, Malolos, Bulacan, in a decision dated 11 June 2008, convicted Zafra and Marcelino
for the crime of possession of shabu:

WHEREFORE, finding guilt of the accused beyond reasonable doubt in Criminal Case No. 2297-
M-2003, accused VALENTIN ZAFRA y DECHOSA and accused EROLL MARCELINO y
REYES are hereby CONVICTED for possession of sachets of methylamphetamine hydrochloride
commonly known as shabu, with a weight of 0.31 gram and 0.30 gram, respectively, which are
classified as dangerous drugs in violation of Section 11, Article II of Republic Act No. 9165,
otherwise known as the "Comprehensive Dangerous Drugs Act of 2002" and are each
SENTENCED to suffer the IMPRISONMENT of, applying the Indeterminate Sentence Law,
TWELVE (12) YEARS AND ONE DAY, AS THE MINIMUM TERM, TO THIRTEEN (13)
YEARS, AS THE MAXIMUM TERM, and to pay the FINE of THREE HUNDRED
[13]
THOUSAND PESOS (P300,000.00).

Daluz, on the other hand, who was charged of possession of drug paraphernalia in violation of Section 12
of RA No. 9165 pleaded guilty to the charge and was released after serving his sentence of eight (8)
months.[14]

Zafra and Marcelino appealed; but the CA affirmed in toto the RTC Decision:

WHEREFORE, premises considered, the instant appeal is DENIED for lack of merit.
[15]
Accordingly, the assailed 11 June 2008 Decision of the Court a quo STANDS.

Hence, this appeal on the following grounds: first, the arrest was unlawful; second, the prohibited drugs
are inadmissible in evidence; third, Section 21 of RA No. 9165 was not complied with; and, finally, the
prosecution failed to prove petitioners' guilt beyond reasonable doubt.

The Court's Ruling

We resolve to ACQUIT petitioners Zafra and Marcelino on the following grounds:

First, the prosecution's lone witness, SPO4 Mendoza,[16] testified that, from a distance, he saw Zafra and
Marcelino holding shabu by their bare hands, respectively, while Daluz was holding an aluminum foil
and a disposable lighter.[17] Seeing this illegal activity, he single-handedly apprehended them.[18] He
grabbed the shabu from the hands of Zafra and Marcelino, and confiscated the drug paraphernalia from
Daluz.

In his affidavit, however, SPO4 Mendoza stated, that:

 Na, nitong nakaraang Hunyo 12, 2003 ng 4:30 ng hapon humigit kumulang, sa P. Casto St.,
Barangay Borol-1, Balagtas Bulacan, habang ako ay nagsasagawa ng surveillance sa Suspected Drug
Pusher sa nasabing lugar ay aking nakita ang tatlo (3) kalalakihan na nakatalikod sa isang corner ng
tindahan sa P. Castro St., na nakilala ko na sina Valentine D. Zafra @ Val, Eroll R. Marcelino @
Eroll, at Marlon B. Daluz @ Marlon na pawang mga residente ng Borol-1, Balagtas, Bulacan.

Na, ako ay lumapit na naglalakad kina Valentine Zafra, Errol Marcelino at Marlon Daluz at sa aking
paglapit sa kanilang tatlo ay aking nakita at naaktuhang inabot ni Valentine Zafra kay Eroll
Marcelino ang isang (1) plastic sachet ng shabu may timbang na 0.30 grams, at isa pang
plastic sachet ng shabu na si Marlon Daluz ay hawak ang isang disposable lighter at 2 piraso ng
aluminum foil na inaayos na nilalagyan ng lupi at 7 piraso ng empty plastic sachet. (Emphasis
[19]
supplied)

xxxx

On cross examination, SPO4 Mendoza testified that it was Zafra and not Daluz, who was holding the
aluminum foil (contrary to his earlier testimony that Zafra was holding shabu);[20] that Daluz (whom he
claimed during the direct examination to be holding the aluminum foil) and Marcelino were holding
handkerchiefs and on top of them were shabu;[21] When the defense confronted SPO4 Mendoza about
the inconsistency, he told the court that his version during his direct testimony was the correct one.[22]

While, it is hornbook doctrine that the evaluation of the trial court on the credibility of the witness and
the testimony is entitled to great weight and is generally not disturbed upon appeal,[23] such rule does
not apply when the trial court has overlooked, misapprehended, or misapplied any fact of weight or
substance.[24] In the instant case, these circumstances are present, that, when properly appreciated,
would warrant the acquittal of petitioners.

Certainly, SPO4 Mendoza's credibility has to be thoroughly looked into, being the only witness in this
case. While in his affidavit, SPO4 Mendoza claimed that he saw the sachet of shabu (0.30 gram) because
Zafra was in the act of handing it to Marcelino, his testimony during the direct examination reveals
another version, that is, from a distance, he saw Zafra and Marcelino holding shabu, respectively, hence,
he approached them from behind and confiscated the shabu from both of them and the paraphernalia
from Daluz. How he saw a 0.30 gram of shabu from a distance in a busy street, baffles this Court. Asked,
however, on cross examination, who among the three were holding the shabu and drug paraphernalia,
SPO4 Mendoza failed to be consistent with his earlier testimony and pointed to Daluz as the one holding
shabu with a handkerchief in his hand and Zafra as the one in possession of drug paraphernalia. These
inconsistencies are not minor ones, and, certainly, not among those which strengthens the credibility of a
witness. Possession of drug paraphernalia vis-à-vis shabu, are two different offenses under RA No. 9165.
That Zafra was holding drug paraphernalia and not shabu is material to this case, to the accusation
against him, and to his defense.

Second, a reading of the RTC decision on this matter reveals that the conviction was arrived at upon
reliance on the presumption of regularity in the performance of Mendoza's official duty.[25]

It is noteworthy, however, that presumption of regularity in the performance of official functions cannot
by its lonesome overcome the constitutional presumption of innocence.[26] Evidence of guilt beyond
reasonable doubt and nothing else can eclipse the hypothesis of guiltlessness. And this burden is met not
by bestowing distrust on the innocence of the accused but by obliterating all doubts as to his culpability.
[2 ]
[27]

Third, SPO4 Mendoza was the lone arresting officer, who brought the petitioners to the police station,
[28] who himself marked the confiscated pieces of evidence sans witnesses, photographs, media, and in
the absence of the petitioners. His colleagues were nowhere.[29] And, worse, he was the same person
who took custody of the same pieces of evidence, then, brought them on his own to the crime laboratory
for testing.[30] No inventory was ever done;[31] no inventory was presented in court.

The solo performance by SPO4 Mendoza of all the acts necessary for the prosecution of the offense is
unexplained and puts the proof of corpus delicti, which is the illegal object itself in serious doubt. No
definite answer can be established regarding the question as to who possessed what at the time of the
alleged apprehension. More significantly, we are left in doubt whether not the two sachets of shabu
allegedly seized from the petitioners were the very same objects offered in court as the corpus delicti.

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of
a prohibited substance be established with moral certainty.[32] The dangerous drug itself constitutes the
very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction.[33]
Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt.
[34] Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable
mind the moral certainty required to sustain a finding of guilt.[35] More than just the fact of possession,
the fact that the substance illegally possessed in the first place is the same substance offered in court as
exhibit must also be established with the same unwavering exactitude as that requisite to make a finding
of guilt.[36] The chain of custody requirement performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed.[37]

Section 21, paragraph 1, Article II of RA No. 9165 reads:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof.

Section 21(a) Article II of the Implementing Rules and Regulations of RA No. 9165 reads:
 (a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof:
Provided, that the physical inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over said items.

As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be.[38] It would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what happened
to it while in the witness' possession, the condition in which it was received and the condition in which it
was delivered to the next link in the chain.[39] These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.[40]

The records readily raise significant doubts as to the identity of the sachets of shabu allegedly seized from
Zafra and Marcelino. SPO4 Mendoza's claim that the two sachets of shabu presented in court were the
same ones confiscated from the petitioners, cannot be taken at its face value, solely on the presumption
of regularity of one's performance of duty. SPO4 Mendoza blatantly broke all the rules established by law
to safeguard the identity of a corpus delicti. There was even no mention about the details of the
laboratory examination of the allegedly seized drugs. To allow this to happen is to abandon everything
that has been said about the necessity of proving an unbroken chain of custody. SPO4 Mendoza cannot
alone satisfy the requirements in RA No. 9165 which is anchored on, expressly, the participation of
several personalities and the execution of specified documents.

And, while jurisprudence has refined the enumerated duties of an apprehending officer in a drug case
and has thus described the equivalent requirements for a proper chain of custody of the corpus delicti,
still, the case at bar cannot pass the constitutional requirement of proof beyond reasonable doubt.

We reiterate, that this Court will never waver in ensuring that the prescribed procedures in the handling
of the seized drugs should be observed. In People v. Salonga,[41] we acquitted the accused for the failure
of the police to inventory and photograph the confiscated items. We also reversed a conviction in People
v. Gutierrez,[42] for the failure of the buy-bust team to inventory and photograph the seized items
without justifiable grounds. People v. Cantalejo[43] also resulted in an acquittal because no inventory or
photograph was ever made by the police.

We reached the same conclusions in the recent cases of People v. Capuno,[44] People v. Lorena,[45] and
People v. Martinez.[46]

The present petition is the sum total of all the violations committed in the cases cited above.
Lest the chain of custody rule be misunderstood, we reiterate that non-compliance with the prescribed
procedural requirements does not necessarily render the seizure and custody of the items void and
invalid; the seizure may still be held valid, provided that (a) there is a justifiable ground for the non-
compliance, and (b) the integrity and evidentiary value of the seized items are shown to have been
properly preserved.[47] These conditions, however, were not met in the present case as the prosecution
did not even attempt to offer any justification for the failure of SPO4 Mendoza to follow the prescribed
procedures in the handling of the seized items. As we held in People v. De Guzman,[48] the failure to
follow the procedure mandated under RA No. 9165 and its Implementing Rules and Regulations must be
adequately explained. The justifiable ground for the non-compliance must be proven as a fact. The
Court cannot presume what these grounds are or that they even exist.

In our constitutional system, basic and elementary is the presupposition that the burden of proving the
guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on
the weakness of the defense.[49] The rule is invariable whatever may be the reputation of the accused, for
the law presumes his innocence unless and until the contrary is shown.[50] In dubio pro reo.[51] When
moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a
matter of right.[52]

WHEREFORE, premises considered, we REVERSE and SET ASIDE the Decision of the Court of
Appeals dated 30 October 2009 in CA-G.R. CR No. 31713. Petitioners Valentin Zafra y Dechosa and Eroll
Marcelino y Reyes are hereby ACQUITTED for the 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 to the Director of the Bureau of Corrections, Muntinlupa City, for
immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court
the action taken within five (5) days from receipt of this Decision.

SO ORDERED.

Carpio, (Chairperson), Brion, Sereno, and Reyes, JJ., concur.

[1] Penned by Associate Justice Myrna Dimaranan Vidal with Associate Justices Jose Catral Mendoza
(now an Associate Justice of the Supreme Court) and Marlene Gonzales Sison, concurring. CA rollo, 126-
141.

[2] Penned by Presiding Judge Albert R. Fonacier. Id. at 66-78.

[3] Possession of Dangerous Drugs.

[4] Based on the findings of the RTC decision, the two (2) sachets of methylamphetamine hydrochloride
(shabu) weighing 0.31 and 0.30 gram, respectively, which totals to 0.61 and not 0.061 gram.

[5] Records, p. 9.

[6] TSN, 27 June 2005, p. 2, identifies Mendoza with the rank of SPO4 though the RTC and the Court of
Appeals decision identifies him with the rank of SPO3.

[7] Id. at 7-8.

[8] Id. at 7.

[9] Id. at 9.

[10] TSN, 23 January 2006, p. 3.

[11] Id. at 3-4.

[12] Id. at 4.

[13] CA rollo, p. 78.

[14] Records, pp. 113-114.

[15] CA rollo, p. 141.

[16] Records, pp. 13-30.

[17] Id. at 74.

[18] RTC Decision, CA rollo, p. 48.

[19] Id. at 54.

[20] TSN, 29 May 2006, p. 3.

[21] Id at 5.

[22] Id at 6.

[23] People v. Casimiro, G.R. No. 146277, 20 June 2002, 383 SCRA 390, 398; citations omitted.

[24] Id.

[25] RTC Decision, CA rollo, p. 37.

[26] Malillin v. People, G.R. No. 172953, 30 April 2008, 553 SCRA 619, 623.

[27] Id. at 623-624.

[28] TSN, 27 June 2005, p. 9.

[29] Petition. Rollo, p. 24.

[30] Id. at 23-24.

[31]
[31] Id. at 24.

[32] Malillin v. People, supra note 26 at 631.

[33] Id. at 631-632.

[34] Id. at 632.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 632-633.

[41] G.R. No. 186390, 2 October 2009, 602 SCRA 783, 794-795.

[42] G.R. No. 179213, 3 September 2009, 598 SCRA 92, 101.

[43] G.R. No. 182790, 24 April 2009, 586 SCRA 777, 783-784.

[44] G.R. No. 185715, 19 January 2011, 640 SCRA 233.

[45] G.R. No. 184954, 10 January 2011, 639 SCRA 139.

[46] G.R. No. 191366, 13 December 2010, 637 SCRA 791.

[47] Id. at 813.

[48] G.R. No. 186498, 26 March 2010, 616 SCRA 652, 662.

[49] Malillin v. People, supra note 26 at 639.

[50] Id.

[51] Id.

[52] Id.
 DIVISION

[ GR No. 189817, Oct 03, 2012 ]

PEOPLE v. REYNA BATALUNA LLANITA

DECISION
G.R. No. 189817

PEREZ, J.:
[1] [2]
For review through this appeal is the decision dated 15 July 2009 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 03335 which affirmed the conviction of herein accused-appellants REYNA
BATALUNA LLANITA alias "Sirena/Reyna" and SOTERO BUAR y BANGUIS alias "Roy" of illegal sale of
[3]
dangerous drugs in violation of Section 5, Article II of Republic Act (R.A.) No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002.

The factual rendition of the prosecution follows:

The first witness presented by the prosecution was PO2 Joseph Gene Catuday (PO2 Catuday). He
testified that he has been a member of the Philippine National Police (PNP) since 21 March 2000
presently assigned at the Station Anti-Illegal Drugs Special Operations Task Force (SAIDSOTF),
[4]
Paranaque City Police Station. His functions, among others, are to conduct buy-bust and surveillance
operations.

[5]
On 21 October 2005, he reported for duty at his Station at about 9:00 o'clock in the morning. At
around 12:30 o'clock in the afternoon of the same day, a female informant alias "Inday" went to the
[6]
station to give information about the illegal drug activities of one alias "Reyna." He then relayed the
information to PO3 Rene Rendaje (PO3 Rendaje) who in turn relayed the same to the station's action
[7]
officer Lt. Dominador Bartolazo (Lt. Bartolazo). Upon receiving this information, Lt. Bartolazo
immediately formed a team to conduct a buy-bust operation against Reyna. The team was composed of
PO2 Catuday as the poseur-buyer and PO3 Ricky Macaraeg, PO3 Rendaje, PO2 Alfonso Del Rosario, PO2
Edwin Plopinio (PO2 Plopinio) and PO2 Felix Domecillo (PO2 Domecillo) acted as back-up police
[8]
officers. PO2 Catuday, being the designated poseur-buyer, was given three (3) pieces of P100.00 peso
[9]
bill to be used as marked money in the operation.

At around 1:40 o'clock in the afternoon, the team together with Inday, went to the target area located at
[10]
Sitio Daughters, Brgy. San Martin De Porres, Parañaque City. Upon reaching it at about 2:00 o'clock
in the afternoon, PO2 Catuday and Inday proceeded to the alleged alley of drug activities with the rest of
the team following behind. Inside the alley, Inday waived her hand to a woman, later identified as Reyna
[11]
Llanita y Bataluna (Llanita) and a man later identified as the co-accused Sotero Banguis Buar
[12]
(Buar). Llanita and Buar then approached Inday and PO2 Catuday. PO2 Catuday was introduced by
[13]
Inday to Llanita as a person in need of shabu. PO2 Catuday then gave the P300-peso marked money
[14]
to Llanita who in turn handed it to Buar. In exchange, Llanita gave him a small sachet which upon his
examination turned out to be shabu. PO2 Catuday then placed a white towel in his head as a pre-
[15]
arranged signal that the illegal sale was already completed. He immediately introduced himself as a
[16]
police officer and the back-up police officers rushed to the place. Llanita and Buar tried to evade the
police officers but were immediately apprehended. Soon after, Llanita and Buar were ordered to empty
their pockets. PO2 Domecillo recovered a plastic sachet of shabu from Llanita and the marked money
and another sachet from Buar.[17] PO3 Rendaje immediately apprised them of their constitutional rights
and brought them to the police station for investigation.[18] Sachets of the specimen recovered were
forwarded to the Crime Laboratory in Makati for examination[19] which after examination yielded
positive results for shabu.[20] On the other hand, the buy-bust money recovered was turned over to the
Office of the City Prosecutor of Parañaque and identified in court as the marked money.[21]

In sum, witness PO2 Plopinio who acted as one of the back-up officers during the buy-bust operation
corroborated the testimony and recollection of facts of PO2 Catuday in open court. He added that Llanita
surrendered to PO2 Catuday one small sachet of shabu[22] and the same sachet yielded positive results
for methamphetamine hydrochloride[23]. During the cross-examination, he testified that it was PI
Rolando Santiago (PI Santiago) who put the marking on the sachet inside the police station.[24]

The Chemistry Report of PNP Forensic Chemist Sandra Decena Go (Forensic Chemist Go) proving that
the examination of the white crystalline substance yielded positive results for methamphetamine
hydrochloride was dispensed with per Order of the trial court dated 7 March 2006.[25] In its Formal
Offer of Evidence, the prosecution submitted the "Pinagsamang Salaysay" executed by the police
officers who conducted the operation to prove the circumstances of the arrest of Llanita and Buar.[26]
The Pre-Operation/Coordination Sheet, Inventory of Recovered/Seized Evidence and Certificate of
Coordination with the Philippine Drug Enforcement Agency (PDEA) were also submitted to prove
coordination with the PDEA and proper accounting of the seized illegal drugs.[27]

On the other hand, the factual version of the defense as presented by accused Llanita follows:

She testified that at around 6:00 o'clock in the morning of 21 October 2005, she was with her live-in
partner Buar in their house located at Daang Hari, Taguig City when a number of unknown persons who
introduced themselves as police officers unlawfully barged into their home and entered without any
search warrant.[28] The police officers were looking for a certain person named "Nene."[29] When she
replied that she did not know any person by that name, the police officers got hold of her and frisked her
but recovered nothing.[30] She added that they showed her shabu, the ownership of which she
vehemently denied.[31] Buar asked whether a search warrant was issued against them but the police
officers replied that, "Huwag na kayong magtanong, sumama nalang kayo sa amin."[32] Upon arrival
at the police station, a police officer identified as PO2 Domecillo was asking for P50,000.00 in exchange
for their release.[33] She however replied that they do not have such amount of money.[34] She was
placed inside the office while Buar was detained for three days.[35]

On 24 October 2005, the prosecutor assigned to conduct the inquest investigation informed her that the
charges against them were violation of Sections 5 and 11 of R.A. No. 9165 or the illegal sale and
possession of dangerous drugs.[36]

Buar in his testimony corroborated the testimony given by Llanita, he denied any involvement in the
illegal sale and possession of dangerous drugs.[37]

Eventually, three sets of Information were filed:

For Criminal Case No. 05-1220 against Llanita and Buar for violation of Sec. 5, Art. II of R.A. 9165:
 st
That on or about the 21 day of October 2005, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, conspiring and confederating
together and both of them mutually helping and aiding one another, not being lawfully authorized
by law, did them and there, willfully, unlawfully and feloniously sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport [Methamphetamine]
Hydrochloride (shabu) weighing 0.07 gram, a dangerous drug.

[38]
CONTRARY TO LAW.

For Criminal Case No. 05-1221 against Llanita for violation of Sec. 11, Art. II of R.A. 9165:

st
That on or about the 21 day of October 2005, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, not being lawfully authorized to
possess, did then and there willfully, unlawfully and feloniously have in her possession and under
her control and custody [Methamphetamine] Hydrochloride (shabu) weighing 0.03 gram, a
dangerous drug.

[39]
CONTRARY TO LAW.

For Criminal Case No. 05-1222 against Buar for violation of Sec. 11, Art. II of R.A. 9165:

That on or about the 21st day of October 2005, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, not being lawfully authorized to
possess dangerous drugs, did then and there willfully, unlawfully and feloniously have in his
possession and under his control and custody [Methamphetamine] Hydrochloride (shabu) weighing
0.03 gram, a dangerous drug.

[40]
CONTRARY TO LAW.

Upon arraignment on 3 November 2005, both the accused-appellants, with the assistance of their
counsel Atty. Leonardo Rodriguez, Jr. of the Public Attorney's Office, pleaded NOT GUILTY to the
offenses charged against them.

On 5 March 2008, the trial court found the accused-appellants GUILTY of violation of Section 5, Article
II, of R.A. 9165 in Criminal Case No. 05-1220 but NOT GUILTY of violation of Section 11, Article II, of
R.A. 9165 in Criminal Case Nos. 05-1221 and 05-1222. The disposition reads:
 WHEREFORE, PREMISES CONSIDERED, in Criminal Case No. 05-1220 the court finds accused
REYNA BATALUNA LLANITA alias "SIRENA/REYNA" and SOTERO BANGUIS BUAR alias "BOY"
GUILTY beyond reasonable doubt for violation of Section 5 Art. II of R.A. 9165, for unlawfully
selling 0.07 gram of Methamphetamine Hydrochloride otherwise known as shabu, this Court hereby
sentences both accused to life imprisonment and to pay a fine of P500, 000.00 each.

In Criminal Case No. 05-1221, the court promounces a verdict of NOT GUILTY as against accused
REYNA BATALUNA LLANITA for violation of Sec. 11 Art. II of R.A. 9165 considering that offense
charged being inherent in the offense charged against her in Criminal Case No. 05-1220.

In Criminal Case No. 05-1222, the court finds accused SOTERO BANGUIS BUAR, NOT GUILTY for
violation of Sec. 11 Art. II of R.A. 9165 for insufficiency of evidence.

The Branch Clerk of court is hereby directed to prepare the Mittimus for the immediate transfer of
accused REYNA BATALUNA LLANITA alias "SIRENA/REYNA" and SOTERO BANGUIS BUAR
alias "BOY" from the Parañaque City jail to the New Bilibid Prisons, Muntinlupa City and to turn
over the physical evidence in this case to the Philippine Drug Enforcement Agency (PDEA) pursuant
[41]
to Administrative Order No, 145-2002, for proper disposition.

Upon appeal, the accused-appellants, represented by the Public Attorney's Office, argued that the trial
court erred in convicting them despite the fact that the prosecution failed to overthrow the constitutional
presumption of innocence.[42] The accused-appellants centered their argument on the alleged failure of
the prosecution to establish a continuous unbroken chain of custody of evidence.[43]

The People, through the Office of the Solicitor General, countered that police operatives acted in
accordance with Section 21, Art. II of R.A. 9165 in preserving the integrity and the evidentiary value of
the seized items.[44]

The CA affirmed the ruling of the trial court. The dispositive portion reads:

WHEREFORE, the appeal is DENIED. The Decision of the Regional Trial Court of Parañaque City,
[45]
Branch 259, dated March 5, 2008 is, in light of the foregoing discussion, AFFIRMED.

The appellate court ruled that the evidence for the prosecution fully proved beyond reasonable doubt the
elements necessary to successfully prosecute a case for illegal sale of prohibited drugs, namely, (1) that
the transaction or sale actually took place; (2) that the corpus delicti or the illicit drug was presented as
evidence; and (3) that the buyer and seller were identified.[46] It trusted the testimonies of the police
officers who conducted the buy-bust operation.[47] Finally, it upheld as unbroken the chain of custody
of evidence as presented by the prosecution.[48]

In this appeal, accused-appellants, repeat their arguments before the appellate court with the addition in
its supplemental brief of citation of instances which supposedly prove the break in the chain of custody
and absence of integrity of the evidence presented.[49]

We do not agree.

There are several instances cited by the accused-appellants to prove the broken chain of custody, such
as: (1) PO2 Catuday failed to testify on the identity of the individual to whom he directly turned over the
seized illegal drug; (2) PO2 Domecillo, the police officer who recovered the illegal drug from Buar, was
not presented to testify and disclose to whom he turned over the confiscated drug; (3) PI Santiago, the
one who marked the specimen drug, was also not presented to disclose how he came to such possession
and to whom he handed the same; (4) failure to show how the possession of the illegal drug was turned
over to PO2 Plopinio who thereafter delivered the specimen to the forensic laboratory; and (5) failure to
show evidence on how the illegal specimens were handled and safeguarded pending their presentation in
court.[50]

Reviewing the records of the case, we cannot subscribe to the arguments of the defense.

In order to successfully prosecute an offense of illegal sale of dangerous drugs, like shabu, the following
elements must first be established: (1) the identity of the buyer and the seller, the object and
consideration of the sale; and (2) the delivery of the thing sold and the payment therefor.[51]

What is material is proof that the transaction or sale actually took place, coupled with the presentation in
court of evidence of the corpus delicti.[52] The commission of illegal sale merely requires the
consummation of the selling transaction, which happens the moment the buyer receives the drug from
the seller. As long as the police officer went through the operation as a buyer, whose offer was accepted
by appellant, followed by the delivery of the dangerous drugs to the former, the crime is already
consummated. In this case, the prosecution has amply proven all the elements of the drugs sale with
moral certainty.[53]

We find credibility in the statements of the police officers as to the completed illegal sale of dangerous
drug. Examination of the testimony of PO2 Catuday reveals that the elements of illegal sale are present
to affirm conviction of Llanita and Buar. Pertinent provisions of the stenographic notes are here cited:
 Fiscal Hernandez: After your informant waived her hands to the two (2) persons, what happened
next?
PO2
We immediately approached them, sir.
Catuday:
Q: Why did you approach them?
A: I was introduced by our informant as a person in need of shabu, sir.
Q: Were you introduced by your informant to these two (2) persons?
A: Yes, sir.
Q: And how were you introduced to these two persons?
A: I was introduced as a scorer/user, sir.
Q: That was all that was said by your informant that you were a user in need of shabu?
A: Yes, sir.
Q: To whom was that statement addressed?
A: It was directed to our female subject, sir.
Q: You are referring to alias Reyna?
A: Yes, sir.
So what was the reaction of this alias Reyna after you were introduced by your informant
Q:
as a user of shabu?
A: I immediately gave to alias Reyna the marked money, sir.
Q: How much money did you give her?
A: P300.00, sir.
Q: And in return of that money, what did you receive?
A: I received a small sachet of shabu, sir.
xxxx
Q: Did you examine the same?
A: Yes, sir.
Q: And after examining the same, what happened next?
After alias Reyna received the money, sir, she immediately handed the money to his male
A:
companion, sir.
So after the money was turned over by this alias Reyna to her male companion, what
Q:
happened next?
A: Immediately placed a white towel on my head, sir.
Q: What does that mean or signify?
[54]
A: It means that I successfully bought shabu from them, sir. xxx (Emphasis supplied).

This recitation of facts was further corroborated on material points by PO2 Plopinio in his testimony
dated 13 August 2007.[55]

It is well settled rule that narration of the incident by law enforcers, buttressed by the presumption that
they have regularly performed their duties in the absence of convincing proof to the contrary, must be
given weight.[56] This Court will not reverse the finding of facts of the trial court and appellate court on
the basis of the denial and alibi of the two accused-appellants. Neither will this be done on the claim of
extortion, substantiated only by their self-serving statements.

Accused-appellants relied heavily on their claim of broken chain of custody. Among these instances cited
by the accused-appellants are the failure of PO2 Catuday to testify on the identity of the individual to
whom he directly turned over the seized illegal drug and of PO2 Domecillo's failure to testify and disclose
to whom he turned over the confiscated drug. Also, PI Santiago, the one who marked the specimen drug,
was also not presented to disclose how he came to such possession and to whom he handed the same.
Questions are also raised on how the possession of the illegal drug was turned over to PO2 Plopinio who
thereafter delivered the specimen to the forensic laboratory and on the failure to show evidence on how
the illegal specimens were handled and safeguarded pending their presentation in court.[57]

After review of the records and pleadings submitted, we remain firm in our decision for conviction.

"Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the
time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court
for destruction. Such record of movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized item, the date and time when such
transfer of custody was made in the course of safekeeping and use in court as evidence, and the final
disposition.[58]

In the case of People v. Kamad,[59] the Court had the opportunity to enumerate the different links that
the prosecution must prove in order to establish the chain of custody in a buy-bust operation, namely:

First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer;

Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer;

Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory
examination; and

Fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the
court.

The Court finds that the different links to establish the chain of custody are here present. PO2 Catuday
testified on the matter:

Q: And in return for that money, what did you receive?

[60]
A: I received a small sachet of shabu, sir.
xxxx
Q: Where did you bring the two (2) suspects after that [the arrest]?
[61]
A: We brought them to our headquarters, sir.
xxxx
So what happened to the alleged shabu and the buy-bust money recovered from this alias
Q:
Reyna and alias Roy?
The items that we recovered from the two (2) suspects, sir, we immediately forwarded it
A:
to the Crime Laboratory in Makati for examination.
And did you have occasion to know the result of the examination conducted on the
Q:
specimens submitted to that office?
A: Yes, sir.
Q: What is the result, if you know?
[62]
A: Positive for shabu.
xxxx
In his subsequent testimonies, he identified the shabu examined by Forensic Chemist Go as the same
shabu which was given to him during the buy-bust operation through the marking RLB-1-21-05 placed
on it.[63] Though he cannot recall who placed the marking, he testified that he was present inside the
office when it was made.[64]

On the other hand, witness PO2 Plopinio was able to substantiate the testimony of PO2 Catuday and
identify PI Santiago as the police officer who placed the marking on the specimen.[65]

The prosecution and the defense have already stipulated on the testimony of Forensic Chemist Go, hence,
what is left are the examination and appreciation of the pertinent pieces of evidence. Upon examining
Exhibits "A" and "C" of the prosecution, the Request for Laboratory Examination and Chemistry Report
respectively, this Court is convinced that there were: (1) proper turnover by the investigating officer of
the illegal drug to the forensic chemist for laboratory examination; and (2) submission of the marked
illegal drug seized by the forensic chemist to the court. The Request for Examination,[66] readily reveals
that Paranaque City Police Station, Station Anti-Illegal Drug Operation Task Force requested the Chief of
Physical Science Section of PNP Camp Crame for a laboratory examination of three (3) heat sealed
transparent plastic sachets, all containing white crystalline substance believed to be MHCL or better
known as shabu marked as SBB-21-10-05, RLB-21-10-05 and RLB-1-21-10-05. The samples were
delivered to the Camp Crame by PO2 Plopinio on 21 October 2005.[67] The examination eventually
yielded positive results for methamphetamine hydrochloride as verified by Forensic Chemist Go. This
result is submitted to the Court as Exhibit "C" and stipulated on by both parties.[68]

The function of the chain of custody requirement is to ensure that the integrity and evidentiary value of
the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are
removed. To be admissible, the prosecution must show by records or testimony, the continuous
whereabouts of the exhibit at least between the time it came into possession of the police officers and
until it was tested in the laboratory to determine its composition up to the time it was offered in evidence.
[69]

The accused-appellants also highlighted the non-compliance of certain requisites provided under Sec. 21,
Art. II of R.A. 9165 and the implementing rules such as lack of physical inventory and photograph.[70]
 Sec. 21 Art. II of R.A. No. 9165 provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous
Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof;

xxxx

(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act,
dangerous drugs defined herein which are presently in possession of law enforcement agencies
shall, with leave of court, be burned or destroyed, in the presence of representatives of the
Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b)
Pending the organization of the PDEA, the custody, disposition, and burning or destruction of
seized/surrendered dangerous drugs provided under this Section shall be implemented by the
DOH.

However, the substantial compliance with the procedure is provided for in Sec. 21 (a) of the
Implementing Rules and Regulations of R.A. No. 9165 which reads:
 Sec. 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory so confiscated, seized
and/or surrendered, for disposition in the following manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies of the inventory and
be given copy thereof. Provided, that the physical inventory and the photograph shall be conducted
at the place where the search warrant is served; or at least the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures;
Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and evidentiary value of the seized items are properly
preserved by the apprehending team/officer, shall not render void and invalid such
seizures of and custody over said items. (Emphasis supplied)

Clearly, the implementing rules sanction substantial compliance with the procedure to establish a chain
of custody, as long as the integrity and evidentiary value of the seized items are properly preserved by the
apprehending team/officer.

Jurisprudence supports the acceptance of substantial compliance with the procedure on custody of
evidence in drug cases. As held in People of the Philippines v. Ara:[71]

RA 9165 and its subsequent Implementing Rules and Regulations (IRR) do not require strict
compliance as to the chain of custody rule. xxx We have emphasized that what is essential is "the
preservation of the integrity and the evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the accused."

Briefly stated, non-compliance with the procedural requirements under RA 9165 and its IRR
relative to the custody, photographing, and drug-testing of the apprehended persons, is not a
serious flaw that can render void the seizures and custody of drugs in a buy-bust operation.

In People v. Lorena:[72]

[73]
People v. Pringas teaches that non- compliance by the apprehending/buy-bust team with
Section 21 is not necessarily fatal. Its non- compliance will not automatically render an accused's
arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance
is the preservation of the integrity and the evidentiary value of the seized items, as the same would
be utilized in the determination of the guilt or innocence of the accused. We recognize that the strict
compliance with the requirements of Section 21 may not always be possible under field conditions;
the police operates under varied conditions, and cannot at all times attend to all the niceties of the
[74]
procedures in the handling of confiscated evidence.
WHEREFORE, the instant appeal is DENIED. Accordingly, the decision of the Court of Appeals dated
15 July 2009 in CA-G.R. CR-H.C. No. 03335 is hereby AFFIRMED. No costs.

SO ORDERED.

Carpio, (Chairperson), Brion, Reyes,* and Perlas-Bernabe, JJ., concur.

* Designated additional member per Raffle dated 10 September 2012.

[1] Via a notice of appeal, pursuant to Section 2 (c) of Rule 122 of the Rules of Court. Rollo, pp. 15- 16.

[2] Penned by Associate Justice Mariano C. Del Castillo (now a member of this Court) with Associate
Justices Monina Arevalo-Zenarosa and Priscilla J. Baltazar-Padilla concurring. Id. at 2-14.

[3] Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation
of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten
million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall
sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport
any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity
involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos
(P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any
controlled precursor and essential chemical, or shall act as a broker in such transactions.

xxxx

[4] PO2 Catuday's testimony. TSN 19 July 2006. Records, pp. 34-38.

[5] Id. at 39-40.

[6] Id. at 41-44.

[7] Id. at 44-45.

[8] Id. at 45-46.

[9] Id. at 47.

[10] Id. at 47-48.

[11] Id. at 54-55 and 72.

[12]
[12] Id. at 54-56.

[13] Id. at 57.

[14] Id. at 59-61.

[15] Id. at 61.

[16] Id. at 62-63.

[17] Id. at 65-66.

[18] Id. at 66-68.

[19] Id. at 70.

[20] Id. at 71.

[21] Id. at 76.

[22] PO2 Plopinio's testimony. TSN, 13 August 2007. Records, p. 148.

[23] Id. at 151.

[24] Id. at 166.

[25] Order of RTC Parañaque and Formal Offer of Evidence, Chemistry Report Number D-1341-05
conducted by Sandra Decena Go dated 21 October 2005. Id. at 23 and 172.

[26] Exhibit "D." Id. at 173-174.

[27] Id. at 169-170.

[28] Reyna Llanita's testimony. TSN, 17 September 2007. Id. at 186 191 and 193.

[29] Id. at 192.

[30] Id. at 193-195.

[31] Id. at 195-196.

[32] Id. at 197.

[33] Id. at 199-200.

[34] Id.

[35] Id. at 201-203.

[36] Id. at 204.

[37] Sotero Buar's testimony. TSN, 5 November 2007. Id. at 227-241.

[38] Id. at 1 and 288.

[39] Id. at 2 and 288.

[40] Id. at 3 and 289.

[41] Id. at 306, CA rollo, p. 26.

[42] Accused-Appellants' Brief. Id. at 49.

[43] Id. at 50.

[44] Plaintiff-Appellee's Brief. Id. at 98.

[45] Rollo, p. 14.

[46] CA Decision. Id. at 8.

[47] Id. at 8-10.

[48] Id. at 12-13.

[49] Accused-Appellants' Supplemental Brief. Id. at 42-50.

[50] Id. at 42-43.

[51] People v. Unisa, G.R. No. 185721, 28 September 2011, 658 SCRA 305, 324 citing People v.
Manlangit, G.R. No. 189806, 12 January 2011, 639 SCRA 455, 463.

[52] Id. citing People v. Gaspar, G.R. No. 192816, 6 July 2011, 653 SCRA 673, 686.

[53] Id. at 325.

[54] PO2 Catuday's testimony. TSN, 19 July 2006. Records, pp. 56-61.

[55] Id. at 133-168.

[56] People v. Mamaril, 6 October 2010, G.R. No. 171980, 632 SCRA 369, 379.

[57] Accused-Appellants' Supplemental Brief. Rollo, pp. 42-43.

[58] Section 1(b) of the Dangerous Board Resolution No. 1, Series of 2002.

[59] G.R. No. 174198, 19 January 2010, 610 SCRA 295, 307-308; People v. Flordeliza Arriola y de Lara,
G.R. No. 187736, 8 February 2012.

[60] PO2 Catuday's testimony. TSN, 19 July 2006. Records, p. 29.

[61] Id. at 68.

[62] Id. at 70-71.

[63] Id. at 86-88.

[64] Id. at 88-89.

[65] PO2 Plopinio's testimony. TSN, 13 August 2007. Id. at 152-153.

[66] Exhibit "A." Id. at 171.

[67] Id.

[68] Id. at 172.

[69] People v. Dela Rosa, G.R. No. 185166, 26 January 2011, 640 SCRA 635, 653 citing People v.
Rosialda, G.R. No. 188330, 25 August 2010, 629 SCRA 507, 521; People v. Unisa, G.R. No. 185721, 28
September 2011, 658 SCRA 305, 334-335.

[70] Accused-Appellants' Supplemental Brief, CA rollo, p. 55.

[71] G.R. No. 185011, 23 December 2009, 609 SCRA 304, 325.

[72] G.R. No. 184954, 10 January 2011, 639 SCRA 139.

[73] G.R. No. 175928, 31 August 2007, 531 SCRA 828.

[74] People v. Lorena, supra note 72 at 151.