PEOPLE OF THE PHILIPPINES vs. BERNARDO QUIDATO, JR.

Before us is an appeal from the judgment of the Regional Trial Court of Davao, finding accused-appellant Bernardo Quidato, Jr. guilty of the crime of parricide.

Accused-appellant was charged with the crime of parricide before the Regional Trial Court of Davao.

September 17, 1988, Municipality of Kaputian, Province of Davao, accused, conspiring, confederating and mutually helping with Reynaldo Malita and Eddie Malita, who are charged for (sic) Murder in a separate information, 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.

Accused-appellants 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.

Prosecution’s version:

Presented as its witnesses accused-appellants brother Leo Quidato, appellants 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.

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.

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.

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-laws 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. Accused-appellant objected to Gina Quidatos 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. The judge, acknowledging the applicability of the so-called rule, allowed said testimony only against accused-appellants 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 formers house to discuss an important matter. Upon Reynaldos arrival at accused-appellants 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 Bernardos 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 Bernardos 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-appellants son, who had gone there to call his Lolo for breakfast. The cause of death, as stated in Bernardos death certificate was hypovolemic shock secondary to fatal hacking wound on the posterior neck area.

On September 27, 1988, Leo Quidato confronted his brother regarding the incident and learned that Reynaldo and Eddie Malita were the ones responsible for Bernardos 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.

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.

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 fathers house, threatening him with harm if he refused. Out of fear, he led the way to Bernardos house and even knocked on the latters 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

Bernardos 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 latters participation in the crime.

Trial court: 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.

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. 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.

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 conspiracys 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. 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:

[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-appellantThus, 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 Quidatos 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. Hence, Gina Quidato could testify in the murder case against Reynaldo and Eddie, which was jointly tried with accused-appellants 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 Quidatos testimony, as well as of Reynaldo and Eddies extrajudicial confessions, nothing remains on record with which to justify a judgment unfavorable to accused-appellant. Admittedly, accused-appellants defense, to put it mildly, is dubious. His alleged acquiescence to the demand of the Malita brothers to accompany them to his fathers house on the strength of the latters 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. 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.

REYES VS. CA

Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the respondent Court's decision which affirmed with modification the agrarian court's decision which ordered them and the other defendants therein to, among others, restore possession of the disputed landholding to private respondent, Eufrocina Vda. dela Cruz.

FACTS:

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 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 expenses incurred), in a bonded warehouse of the locality subject to the disposition of the court. 3

The respondent Court rendered judgment affirming the appealed agrarian court's decision with the modification that Lot 106 is not covered by it.

Appealed decision: 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.

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 insufficient, then the balance should be paid by defendants, jointly and severally. 4

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 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 High School. 6 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 Jesus M. Pamintuan, as approved by Pampanga Provincial Fiscal Villamor I. Dizon, in I.S. No. 8576, 7 wherein private respondent's complaint against petitioners and the other defendants in the agrarian court for violation of P.D. 583 8 was dismissed, to show that private respondent's "point is already settled and considered closed." 9 lastly, petitioners claim that they were included in the present controversy so that their political career would be destroyed. 10

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 retiocination, 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 . . ." (Complaint, Record, vol. 1, p.1). However, during Violeta's testimony, she clarified that actually only Lot No. 106, which contains an area of P19,000 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 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 in the complaint since together with Lot 106 had been include in the complaint since together with Lot 46, it is owned by Olympio'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 Olympio personally, some of them were even asked by Olympio to help him cultivate the land, thus lending credence to the allegation that defendant Olympio, 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. CS, 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

PEOPLE VS. TURCO

Accused-appellant Rodegelio Turco, Jr. (aka "Totong") was charged with the crime of rape.

That on or about the 8th day of July, 1995, at Km. 6, Begang Barangay, Municipality of Isabela, Province of Basilan, accused, by the use of force, threat and intimidation, 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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

HEIRS OF SABANPAN VS. COMORPOSA

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

Before us is a Petition for Review2 under Rule 45 of the Rules of Court, seeking to set aside the August 7, 2001 Decision and the February 27, 2002 Resolution of the Court of Appeals3 (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

The assailed Resolution5 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. x x x"6

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 sufficiently 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 Gloria Leano Saez, Noel [Oboza], and Paulina Paran for allegedly being self serving?'"8

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 lands11 (now the director of the Lands Management Bureau or LMB),12 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 shade or tone of each area by a specified amount of electric current. x x x"18

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 to any person x x x."21

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 procedure23 nor jurisprudence24 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.

TAN VS PEOPLE

Before the Court is a Petition for Review on Certiorari filed by accused David Tan (petitioner) assailing 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:

x x x x x x x x x 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 (Paraaque) 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 attorneys fees in the amount of P20,000.00 and to pay the costs.

SO ORDERED. Petitioner filed a motion for reconsideration with the MTC wherein he denied

receipt of the demand letter 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 Paraaque, 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 attorneys 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.

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, Paraaque City, it committed reversible error, thus: 1. In affirming the trial courts verdict of conviction despite the

prosecutions failure to prove the guilt of herein petitioner/accused beyond reasonable doubt.

2. In affirming the trial courts verdict awarding damages to private respondent.

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

The CA dismissed the appeal and affirmed the RTC Decision, ruling that petitioners 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 MTCs award for interest in the amount of P50,000.00 and attorneys 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. 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, petitioners guilt had not been proven beyond reasonable doubt. The CA denied said motion for reconsideration in its Resolution 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 COURTS VERDICT OF CONVICTION DESPITE THE PROSECUTIONS 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.

x x x x x x x x x II. THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURTS

VERDICT AWARDING DAMAGES TO PRIVATE RESPONDENT. x x x x x x x x x

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 COURTS 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. 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 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 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 stenographic notes 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, 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 prosecutions formal offer of evidence. Verily, therefore, petitioners 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 petitioners 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. In Ongson v. People, 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. 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, [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, petitioners conviction for the crime of violation of B.P. Blg. 22 must be set aside.

However, the CA correctly affirmed the RTCs 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.

Petitioners 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 Courts ruling in Trade & Investment Development Corporation of the Philippines v. Roblett Industrial Construction Corporation, 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 MTCs error of awarding attorneys fees, but as correctly pointed out by the CA, the RTC had already deleted such award for attorneys 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.

PEOPLE VS. YATCO

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-1637 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 extrajudicial 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, Rules 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 (Marcella 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 trial 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 the 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 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.

PEOPLE VS. YATAR

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 P511,410.00, and costs of litigation.1

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 morning.3

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 in the house.4

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 was getting lumber to bring to the house of his mother.5

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. Rondero38 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 P75,000.0059 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.

PEOPLE VS. BELOCURA

The credibility of the evidence of the corpus delicti in a prosecution for illegal possession of marij11ana 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 Court (RTC) in Manila, and sentenced to suffer reclusion perpetua and to pay a fine of P 500,000.00.

1

On appeal, the Court of Appeals (CA) affirmed the conviction on January 23, 2006.2 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 P 500,000.00.14

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:

q Mr. Witness, it was SPO1 Rojas who examined the contents of the plastic bag. That is 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.

q And you never had a chance to examine that plastic bag, the contents of that plastic bag 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?

a No, Sir. When the bag was recovered from under the driver’s seat and when it was 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:

q And after that, you never had the chance to see that bag again. Is that correct?

a Not anymore Sir.25

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:

q While you were taking the gun of this accused what were your other companion specifically Major Divina doing?

WITNESS:

a 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 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?

a I did not return there anymore sir because the members of the other group surrounded the place, sir.

q Since you were then at that scene did you come to know if there is any other thing that was retrieved from the herein accused in the said vehicle?26

xxx

WITNESS:

a Yes. When I was there according to them marijuana was taken from the owner type jeep.

PUB. PROS. TAN, JR:

q Who said that?27

xxx

WITNESS:

a The member of the SWAT and other team, sir were there.

q And then what else happen after such recovery?

a Actually sir at the scene I did not see anything recovered but it was only in the office that 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?

a According to them the recovery of the plate number and the expired MR of the gun and the marijuana recovered.

PUB. PROS. TAN, JR:

q Before whom was he investigated?

WITNESS:

a General Assignment Section, sir.28

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:

q Mr. Witness, so you did not see the actual the alleged recovery of marijuana, is that 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.

q So you cannot say positively that there was a marijuana recovered from the accused because you did not see?

a I just got the information from my co-police officer, sir.29

x x x

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?

a Yes, sir.30

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:

q How about the plastic bag containing the suspected stuff, what did you do with the same? You did not know?

WITNESS:

a I think it was turned over to the investigator of the General Assignment Section who made the proper disposition.

q Who is the investigator again, Mr. witness?

a I remember SPO4 Boy Guzman

q Did you know what SPO4 Boy Guzman did with the accused as well as the confiscated stuff?

x x x

WITNESS:

a The items upon turn over to the investigator on case were handed to the custodian with proper receipt and after those disposition, there were case filed against the subject.

PUB. PROS. TAN, JR:

q Were you able to know what did they do with the accused as well as the confiscated stuff if you know?

a I remember appearing in the MTC court Br, 20, I saw the exhibits, firearm and plate number, two blocks of marijuana. I don’t have any idea where did the investigator brought them or have done.

34

x x x

q You never had a knowledge of what happened to that bag and the contents thereof?

a I learned later that the items that were confiscated were turned over to the General Assignment Section which held the investigation.

q So, it was not your group who conducted the examination and the alleged things that were recovered from the alleged accused?35

xxx

a No, Sir.

q How about the things that were allegedly recovered from the accused?

a I just said that it was the General Assignment Section who handled the investigation.36

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.371âwphi1

The chain-of-custody requirement ensures that all doubts concerning the identity of the evidence are removed.38The 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 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 not—dictates the level of strictness in the application of the chain of custody rule.44

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 records45 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.

q: Now, according to Inspector Divina, it was police officer Santos who was able to recover from your vehicle these two bricks of marijuana. What can you say about this?

a: At first, I did not see this marijuana, Sir, that they are saying because they immediately handcuffed me and disarmed me even before I could board my owner type jeepney.47

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 the malefactor responsible for it.

49

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.

TAN VS. RODIL

The instant Petition for Review on Certiorari assails the Decision1 dated 21 October 2002 and the Resolution2 dated 12 May 2005 of the Court of Appeals in CA-G.R. SP No. 67201, which set aside the 18 June 2001 Decision

3 of the Regional Trial Court (RTC) of Manila, Branch 26 in

Civil Case No. 01-99797. The RTC reversed the 6 October 2000 Decision4 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.

This case has its origin from the Complaint5 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 Building Tenants Association, Inc. (G.R. No. 135537).6

Prior thereto, the Office of the President in OP Case No. 4968 entitled, Spouses Saturnino B. Alvarez and Epifania Binay Alvarez v. Rodil Enterprises Company, Inc. rendered a Decision7 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 5

th day of each month after June 30, 2000.

8

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 amounts collected from [Luciano Tan] from 1987 to 1997 amounting to P988,650.00.

11

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 each month after June 30, 2000.

(Order dated June 27, 2000)12

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 Motion for Issuance of Writ of Execution,

17 which was subsequently

denied by the MeTC in the Order18 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 counsel was akin to an admission of fact, the same being contrary to Section 27,19 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 merit.21

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 Rules on Evidence and Evidence by Salonga).24

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 AFFIRMED and REINSTATED.25

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 PETITIONER WAS REMISS IN THE PAYMENT OF HIS RENTALS OVER THE PREMISES.27

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 Resolution29 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 the 5th day of each month after June 30, 2000.35

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 640 [1990]. x x x.38

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 5

th

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.

PEOPLE VS. VILLANUEVA

On appeal is the November 5, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02210 which affirmed with modification the November 28, 2003 Decision2 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:

That on or about the 9th 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 there willfully, unlawfully and feloniously have sexual intercourse with one "AAA,"3 a minor 12 years of age, against her will and consent, to the damage and prejudice of said "AAA."

CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.4

Crim. Case No. T-3158:

That on or about the 27th 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."

CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.5

Crim. Case No. T-3159:

That on or about the 28th 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."

CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.6

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:

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

WITNESS:

A I am "AAA," 13 years old, out-of-school youth, presently residing at x x x11

x x x x

PROS. ULANDAY:

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

A Yes, sir.

Q Why do you remember that particular date?

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

x x x x

Q Who rape[d] you?

A My papa, sir. Witness pointed to the accused.

x x x x

PROS. ULANDAY:

Q You claimed that your father touched and used you. How did he begin in touching you?

A He tied me, sir.

x x x x

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

A My mouth, sir.

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

A My hands and my feet, sir.

PROS. ULANDAY:

My witness is crying, your Honor.12

x x x x

Q Now, after your father tied you on September 27, 1999, what did he do, if there’s any?

A He raped me, sir.

COURT:

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

x x x x

A He undressed me, sir.

x x x x

COURT:

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

x x x x

PROS. ULANDAY:

Q Madam Witness, during the last hearing you uttered the word "incua na." What do you mean by that?

A He inserted his penis into my vagina, sir.

Q How long a time did your father [insert] his penis into your vagina?

A About two minutes, sir.

Q At early dawn of September 28, 1999, what happened if any, between you and your father?

A The same, sir.

Q What do you mean by the same?

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

Q Before your father inserted his penis into your vagina, what did he do, if there was any?

A He first undressed me, sir.

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

A I failed to do any, sir.

Q Why did you fail to do any?

A Because I was afraid, sir.

Q Why were you afraid at the time?

A Because he threatened me, sir.

Q How did he [threaten] you?

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

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

A Yes, sir.

Q Why do you remember that particular date?

A Because he again raped me, sir.

Q Who raped you?

A My father, sir.

Q In what particular place [were] you raped?

A In our house, sir.

x x x x

Q You claimed that you were raped by your father, how did he rape you?

A He undressed me, sir.

Q What else did he do aside from undressing you?

A He poked a knife at me, sir.

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

A Then he touched (kinuti) me, sir.

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

A My vagina, sir.

Q How did he touch your vagina?

A He inserted his penis into my vagina, sir.

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

A I cried, sir.14

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:

Q And this daughter of your[s] now charge you [with] rape in Crim. Case Nos. T-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?

A [Those are] not true, sir.17

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.

SO ORDERED.24

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 doubt31 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.

SO ORDERED.35

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. Parocha45 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.

x x x x

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.

x x x x

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 rejected.46ten.lihpwal

We reiterated the above ruling in Dizon v. Court of Tax Appeals47 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

x x x x

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

x x x x

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, . . . when he testified against Ben Bohol he affirmed those narrations again.54

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. Dizon62 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 rape66 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.

POLLO VS. CONSTANTINO DAVID

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 Decision1 dated October 11, 2007 and Resolution2 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.

Concerned Govt employee3 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 mms"5

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 Order8 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 disposition.9

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 consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 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. 07051912 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 Petition13 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. 07113419 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 examinations.

21

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. Ortega22 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. Simons23 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 Memorandum24 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. 07180025 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 2nd 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 RESOLVE ANCILLARY PRAYER FOR TRO.26

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. Marti29 :

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 and State Appellate Courts which are considered doctrinal in this jurisdiction.30

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. DeForte33 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 reasonable expectation of privacy must be addressed on a case-by-case basis.

37 (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.

x x x x

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

x x x x

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

x x x x

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 x39 (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 L. Simons41 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

x x x x

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.

x x x x

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.

x x x x

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 drive is one in which a reasonable employer might engage. x x x

42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43

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.

x x x x

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.

x x x x

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 x47 (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;

x x x x50

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. Consequently, the evidence derived from the questioned search are deemed admissible.53

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 Manila54 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 had something to do with it?56

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.

x x x x

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 Appeals57 --

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.

LUZ VS. PEOPLE

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February 20112 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.

In its 19 February 2009 Decision,4 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 (P 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.

SO ORDERED.6

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 REASONABLE DOUBT (sic).7

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 apprehending officers. x x x.8

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 Manual12 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.

x x x x x x x x x

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.1âwphi1 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.